Date: 20031107
Docket: IMM-794-02
Citation: 2003 FC 1305
Ottawa, Ontario, this 7th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
YUKIO HAYAMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative humanitarian and compassionate decision ("H & C") of Dougall Aucoin, Program Manager at the Canadian Embassy, Immigration Section, Manila, Philippines, made on September 26, 2001.
Background
[2] The applicant is a citizen of Japan who was born in Vietnam and who applied for immigration to Canada as an independent immigrant at the Canadian Embassy in Manila on December, 1999. The applicant also requested to be assessed on a H & C basis under subsection 114(2) of the Immigration Act, R.S.C. 1985, c.1-2 (the "Act").
[3] On September 11, 2001, the applicant and his wife were interviewed by visa officer Rick Schramm ("visa officer").
[4] The H & C portion of the request was referred to Immigration Program Manager, Dougall Aucoin ("program manager"), for consideration on September 25, 2001.
[5] The applicant was informed by letter dated September 26, 2002, that he did not meet Canada's immigration requirements and that his application had been refused. The letter also confirmed that the applicant's request for humanitarian and compassionate consideration had been considered by the program manager, who did not find the applicant's situation to be sufficiently compelling to justify special relief.
[6] The applicant raises two issues in this application:
A. Was the program manager required to provide reasons for his decision, and if so, were his reasons adequate?
B. Did the program manager commit a reviewable error by failing to interview the applicant on his application?
Standard of Review
[7] The standard of review applicable to a decision under subsection 114(2) of the Act is reasonableness simplicitor (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, para 62).
Analysis
A. Was the program manager required to provide reasons for his decision, and if so, were his reasons adequate?
[8] The applicant submits that he was deprived of fairness and natural justice when the program manager did not give adequate reasons for his rejection of the applicant's request for humanitarian and compassionate consideration. The applicant submits that in the refusal letter, the visa officer merely stated that an unnamed immigration program manager had considered the factors of the applicant's case and did not find the factors sufficiently compelling to justify special relief.
[9] The Supreme Court decision in Baker v. Canada (Minister of Citizenship and Immigration) , [1999] 2 S.C.R. 817, addresses the issue of providing reasons in the administration context. Baker recognizes that in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision, particularly in cases where the decision has important significance for the individual.
[10] In this case, the competing consideration that must be weighed in determining whether the duty of procedural fairness has been breached are administrative efficiency on the one hand, and the right of the applicant to know that the relevant issues have been carefully considered and the decision reached in an appropriate manner.
[11] A review of the information available to the applicant, namely the refusal letter of the visa officer and the Computer Assisted Immigration Processing System (" CAIPS") notes, disclose no analysis of the written materials considered by the program manager. The refusal letter indicates that the program manager "considered possible humanitarian and compassionate factors" and provided in his conclusion that the factors considered did not justify "special relief". It is noted that the CAIPS notes were made available to the applicant upon receipt of the tribunal record in the matter of a judicial review application of the visa officer's decision. No other request for reasons was made by the applicant.
[12] The program manager did however file an affidavit in this application. In his affidavit, he attests to the following:
9. There was a request from the Applicant's counsel for a review on humanitarian and compassionate reasons. The Deputy Program Manager who had been the interviewing officer referred the case to me. The case was referred to me on September 25, 2001.
10. On that day, I reviewed all the facts known to me including the CAIPS notes and the paper file of the Applicant. When I reviewed the case, I considered that the Applicant was a citizen of Japan and had full rights and responsibilities as other Japanese citizens.
11. The Applicant was married to a woman whose parents and all her siblings resided in Japan, and who was also eligible to become a full citizen of Japan.
12. I was aware of the circumstances which led the applicant and his family to leave Vietnam, but found that his eligibility to fully participate as a citizen of Japan, and the protection he and his family were afforded in Japan, did not warrant special relief.
13. After a careful review of all the circumstances of the case, I did not find any humanitarian or compassionate reason to exercise positive discretion in favour of the Applicant.
14. Consequently, I noted in CAIPS "that the case does not warrant special consideration".
[13] The applicant argues that the program manager's affidavit should not be considered part of his reasons and that without the affidavit the reasons are clearly inadequate in that the refusal letter and the CAIPS notes do not allow the applicant to know why his application was denied. The applicant further argues that he did not request reasons because he already had the program manager's reasons. He contends that this Court has determined that a refusal letter and the CAIPS notes could constitute reasons and that he already had those documents. The applicant argues that, since these documents provide no analysis or "reasons" for the decision, the program manager cannot subsequently file an affidavit in a judicial review application as supplemental reasons.
[14] In Marine Atlantic Inc. v. Canadian Merchant Service Guild (2000), 258 N.R. 112 (F.C.A.), a post-Baker decision, Rothstein J.A. stated as follows:
Based on the rationale outline in Baker, while not required in every case, it will generally be a salutary practice for tribunals to provide reasons for their decision. However, it is not necessary for this Court to determine whether this is a case IN WHICH REASONS ARE REQUIRED. The applicant concedes that it did not ask the Board to provide reasons. In fact, although the applicant sought reconsideration by the Board, the absence of reasons was not one of the grounds for that application.
In Liang v. Minister to Citizenship and Immigration, [1999] F.C.J. No. 1301, Evans J. (As he then was) stated at paragraph 31:
However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
We agree with Evans J. Before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.
A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.
We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly rare.
In this case, the failure to request reasons is fatal to this aspect of the judicial review applications. While the matter may be of significance to the applicant, there is no satisfactory explanation why the applicant could not have requested reasons from the Board. This ground of the applicant's judicial review must be rejected.
[15] The comments of Rothstein J. A. are dispositive with respect to the failure of the respondent to provide reasons. The applicant did not request reasons. His argument that he had the reasons and therefore there was nothing left to request is without merit. If the applicant was unsatisfied with the decision letter and felt it did not adequately explain the decision, a request should have been made for further elucidation. There is no evidence that such a request would have been refused. I therefore conclude that, in the circumstances of this case, there is no breach of duty of fairness due to an absence of reasons, or inadequacy of reasons.
B. Did the program manager commit a reviewable error by failing to interview the applicant on his application?
[16] The applicant submits that he should have been granted an interview with the program manager in relation to his humanitarian and compassionate application, in order to disabuse himself of any concerns the program manager may have had. The denial of this opportunity was consequently a denial of fairness and natural justice. The applicant also states in his affidavit that the visa officer who did interview him did not specifically question the applicant on humanitarian and compassionate considerations. Thus the applicant questions the information the program manager used to make such a determination.
[17] I am of the opinion that the applicant's lack of opportunity to have an oral interview with the program manager did not violate his right to procedural fairness. It is generally accepted that there is no duty to hold hearings for applications made under subsection 114(2) of the Act, and that it is within an officer's discretion to hold oral interviews. In the Supreme Court decision of Baker, supra, the Court clearly states that interviews are not an indispensable element of the duty of procedural fairness.
[18] In this case, the program manager based his decision on relevant factors such as the applicant's Japanese citizenship and the location of his wife's relatives, and noted that he reviewed all of the factors before him. As well, it is evident from the CAIPS notes which were made available to the program manager, that the visa officer did make note of the applicant's statement that he was his parent's eldest son and that he must be responsible for his parents. The visa officer also noted that the applicant gave no further reasons or support for this assertion. I am of the view that the program manager had sufficient information before him to make an informed decision. I also note that there were no issues of credibility before the program manager and that he did not rely on extrinsic evidence in rendering his decision.
[19] Consequently, I am satisfied that it was not unreasonable for the program manager, in the circumstances of this case, to omit a personal interview from his determination process. In my view, he properly exercised his discretion. I conclude that the applicant's right to procedural fairness was not violated by the lack of an oral hearing.
Conclusion
[20] For the reasons set out above, the application for judicial review will be dismissed.
[21] Neither party proposed a question for certification. The Court declines to certify a question.
ORDER
THIS COURT ORDERS:
1. The application for judicial review of the decision of Dougall Aucoin, Program Manager at the Canadian Embassy, Immigration Section, Manila, Philippines, dated September 26, 2001, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-794-02
STYLE OF CAUSE: Yukio Hayama v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 25, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: November 7, 2003
APPEARANCES BY:
Mr. Irvin H. Sherman, Q.C. For the applicant
Mr. Marcel Larouche For the respondent
SOLICITORS OF RECORD:
Martinello & Associates For the applicant
Don Mills, Ontario
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Toronto, Ontario
FEDERAL COURT
Docket: IMM-794-02
BETWEEN:
YUKIO HAYAMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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