[1] This is an application for judicial review of the decision of the immigration officer dated December 20, 2001, wherein the applicant's request for processing from within Canada on humanitarian and compassionate grounds, under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, was denied.

[2] The applicant requests that the decision of the immigration officer be quashed. The applicant further requests that this matter be sent back for redetermination by a different officer with instructions that the redetermination be made in accordance with the findings and directions of this Court.

[3] The applicant requests costs of this application on a solicitor-and-client basis.

Background

[4] The applicant is a citizen of Jamaica. In October 1997, the applicant arrived in Canada and made a Convention refugee claim.

Convention Refugee Determination Division Proceedings

[5] On October 21, 1998, the Immigration and Refugee Board (Refugee Division), determined that the applicant was not a Convention refugee.

[6] By letter dated January 13, 2000, the applicant was informed that it had been determined he was not a member of the Post-Determination Refugee Claimants in Canada class ("PDRCC").

[7] On February 25, 2000, and May 2, 2001, the applicant's motions for an order staying the execution of his deportation order were dismissed.

[8] The Refugee Division subsequently re-opened the applicant's refugee claim on the grounds there were problems with respect to his first refugee hearing.

[9] By reasons dated May 15, 2002, the Refugee Division again determined that the applicant was not a Convention refugee. On September 9, 2002, the applicant's application for leave and judicial review regarding this decision was dismissed.

Humanitarian and Compassionate Grounds Application

[10] On April 19, 2001, the applicant applied for processing within Canada on humanitarian and compassionate grounds.

[11] On December 19, 2001, the applicant had an interview with an immigration officer regarding his application. The applicant, his counsel and his Minister, Reverend Martin Garniss, attended the interview.

[12] In her Notes to File - Decision and Reasons, dated December 19, 2001, the immigration officer wrote:

. . . Client's sister left Jamaica in 1993, was found to be a Convention Refugee in 1994 and was landed in Canada in 1995. . . .

Client lives with friend in Ottawa. Client is involved with his Church and performs volunteer work from time to time. Other than Church activities client is not involved in the community. Client has not worked since 31October 2000. I am not satisfied that the degree of establishment in Canada is sufficient to cause unusual, undeserved or disproportionate hardship for the client if returned to Jamaica for processing abroad.

Mr. Donaldson has one sister and two aunts in Canada. He has two children (ages 17 & 21) and former spouse in Jamaica, all who he remains regular contact with. He also has six siblings, two aunts and one uncle in Jamaica. All family members are fine . . . Client maintains that he fears return to his homeland because his sister would not assist drug smugglers in Jamaica and he as a family member was targeted; however other family members are not being harmed. Significant ties to homeland exist and likely that client would receive some type of support from family members upon return. I have fully considered the applicant's allegations that he would face persecution upon return to Jamaica . . .

. . .

Client has submitted a letter from his Doctor stating that he is being treated for severe bilateral glaucoma.

Following the interview I provided Mr. Donaldson and his counsel time to provide any additional information they cared to. Also offered to answer any questions client might have.

I am not satisfied that any economic or social hardship exists to waive A9(1). I am not satisfied that there is proof that PC faces an identifiable risk or threat for his life, security or general well being by being required to leave Canada and apply for landing from his homeland. I am not satisfied that unusual, undeserved or disproportionate hardship exists.

[13] By letter dated December 20, 2001, the immigration officer informed the applicant that his application for processing from within Canada on humanitarian and compassionate grounds was denied.

[14] This is the judicial review of the decision of the immigration officer.

Applicant's Submissions

[15] The applicant submits the lack of a meaningful opportunity to present evidence related to a humanitarian and compassionate ("H & C") application and to have that evidence fully and fairly considered constitutes a denial of procedural fairness. The applicant submits the immigration officer disregarded the evidence of Rev. Garniss and was not interested in providing an opportunity to have that evidence presented. It is submitted that the immigration officer conducted herself in an unprofessional and unfair manner and thereby denied the applicant the opportunity to present his case fully and fairly.

[16] The applicant submits that the conduct and comments of the immigration officer during the interview create a reasonable apprehension of bias. It is submitted that the applicant was denied a hearing in accordance with natural justice and that the officer had an issue or problem with the applicant that she did not disclose. It is submitted that the immigration officer's affidavit, memo and reasons are not a true and accurate account of what occurred during the applicant's interview.

[17] The applicant submits that there are inconsistencies between the immigration officer's various statements. It is submitted that the immigration officer's reasons and affidavit do not indicate that she provided Rev. Garniss with an opportunity to provide evidence, but that her memorandum indicates she did. It is submitted that these inconsistencies indicate a lack of care and veracity on the part of the immigration officer, and that the evidence of the applicant should be preferred over the evidence of the respondent.

[18] The applicant submits the immigration officer provided inconsistent evidence and is not being truthful as to when and why she shredded her handwritten notes from the interview. The applicant believes these notes may have been relevant and should likely have been included in the certified tribunal record.

[19] The applicant submits that the timing and veracity of the immigration officer's memo dated March 4, 2002, is questionable as the term "Immigration Counsellor" was used and this was not a designation until the Immigration and Refugee Protection Act, S.C. 2001, c. 27 became effective on June 28, 2002.

[20] The applicant submits the immigration officer was obligated to disclose the negative PDRCC report, and provide the applicant with an opportunity to comment, prior to relying on it.

[21] The applicant submits the decision of the immigration officer is unreasonable as the evidence shows the applicant had established himself considerably in Canada and that he faces disruption of his community and family ties, loss of support and separation from his sister, and a serious threat of bodily harm if returned to Jamaica. It is submitted that his sister's children will lose the care and support of their uncle. It is submitted that the conduct of the immigration officer, coupled with the lack of any clear evidence to the contrary, leads to the conclusion that the decision of the immigration officer was not reasonable or based on reason.

[22] The applicant submits that special reasons exist in this case, arising from the conduct of the immigration officer, which warrant the awarding of costs pursuant to Rule 22 of the Federal Court Immigration Rules, 1993, S.O.R./93-22, as amended. The applicant therefore requests costs of this application on a solicitor-and-client basis.

Respondent's Submissions

[23] The respondent submits the fact the applicant would be leaving behind friends, family, employment or a residence is not generally sufficient to constitute hardship and thus warrant a positive H & C application.

[24] The respondent submits the immigration officer respected and applied the principles of natural justice and procedural fairness. It is submitted that at all times during the interview the immigration officer conducted herself in a professional manner and that the evidence confirms her account of what occurred at the interview. The respondent submits that the applicant was given a meaningful opportunity to present full and complete written submissions in relation to his case and therefore the immigration officer satisfied the requirements of the "participatory rights" required by the duty of fairness. The respondent submits the manner in which an interview is conducted is within the immigration officer's discretion and that it was entirely appropriate for the immigration officer to tell Rev. Garniss not to answer questions on the applicant's behalf. In any event, the respondent submits the decision indicates evidence submitted by the applicant was fully and fairly considered by the immigration officer. It is also submitted that the applicant has not specified what evidence he was prevented from presenting to the immigration officer or how such evidence was crucial to his case. The respondent submits that there is no duty on immigration officers to interview H & C applicants, nor is there a duty to seek clarification of information that an applicant submitted in support of his application.

[25] The respondent submits the actions of the immigration officer do not give rise to a reasonable apprehension of bias. It is submitted that the decision of the immigration officer clearly demonstrates that she had an open mind and considered the totality of the applicant's submissions free from any stereotypes and bias. It is submitted that an informed person would note that the decision of the immigration officer mentioned the positive aspects of the applicant's application. It is submitted that the immigration officer clearly indicated that the notes of the interview were destroyed on or about December 20, 2001.

[26] The respondent submits the immigration officer did not improperly rely on the negative PDRCC decision. It is submitted that the immigration officer merely noted that the applicant's PDRCC decision was denied in January 2000 and that this does not indicate that she fettered her discretion or failed to independently consider the evidence before her. As the reasons for the negative PDRCC decision do not form part of the certified tribunal record, the respondent submits there is no evidence the immigration officer relied on or considered the decision when rendering her decision. In any event, it is submitted that while the applicant in this case was not provided with a copy of the risk opinion, he was informed of its existence and result, and had ample opportunity to present evidence relevant to his case. As such, it is submitted the immigration officer did not err by not providing the applicant with a copy of the Post Claim Determination Officer's risk opinion.

[27] The respondent submits the applicant has failed to establish that the immigration officer's decision is unreasonable. It is submitted that the immigration officer's decision is founded on the evidence and facts of the case and is supported by reasons that can withstand a somewhat probing examination. It is submitted that the applicant assumed the risk of establishing himself in Canada while his immigration status was uncertain and he cannot now contend that the hardship of being required to leave is unusual, undeserved or disproportionate.

[28] The respondent submits no special reasons have been made out which would warrant departure from the general rule that costs are not payable in respect of judicial review applications involving immigration matters. It is submitted there is no basis for the awarding of solicitor-client costs.

Issues

1. Did the conduct of the immigration officer breach the requirements of fairness or natural justice by failing to provide, or otherwise unreasonably interfering with, the applicant's ability to present his case?

2. Did the conduct of the immigration officer during the interview give rise to a reasonable apprehension of bias or otherwise breach the requirements of fairness?

3. Did the Board err in fact, or breach the requirements of natural justice, by not disclosing the report of the Post Claim Determination Officer ("PCDO") on which she relied for comment, prior to finding there was no risk?

4. Was the decision of the immigration officer unreasonable?

Relevant Statutory Provision

[29] The relevant sections of the Immigration Act, supra, state as follows:

9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.

9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.

114.(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.

Analysis and Decision

[30] Issue 1

Did the conduct of the immigration officer breach the requirements of fairness or natural justice by failing to provide, or otherwise unreasonably interfering with, the applicant's ability to present his case?

The central dispute in this application is what transpired at the applicant's interview with the immigration officer. The applicant's Minister came to the interview to give evidence about the applicant's church activities and about his establishment within their community. The Minister had a doctor's appointment scheduled within one half hour of the beginning of the interview so a request was made for him to give his evidence prior to the immigration officer completing her questioning of the applicant. The applicant and his Minister both state that the immigration officer got upset and said that she was conducting the interview and that it would be conducted her way. There seems to be agreement that the Minister answered a question directed at the applicant. According to the applicant, this also upset the immigration officer. The Minister stated in his affidavit that when it was almost time to leave for his appointment, counsel asked the immigration officer if the Minister could give his evidence before the officer finished her questioning. According to the Minister, the immigration officer lost her temper and began to yell. The Minister stated that he then left the interview. The applicant, in his affidavit, generally confirms these facts.

[31] The immigration officer, on the other hand, states that the Minister told her what his evidence would be. She states that she asked the applicant a question and the Minister answered it. After, she states that she politely reminded the Minister that she expected the applicant to answer the question and that the Minister then became angry and abruptly left the interview. The immigration officer, in her memo-to-file, which was attached to her affidavit, states that she did not raise her voice, yell, exhibit angry behaviour or lose her temper.

[32] I am satisfied that the Minister did answer a question that was directed at the applicant. I am also satisfied the immigration officer did point out to the Minister that he should not answer the question. I am also satisfied that, at best, if the officer's testimony is to be accepted, she only received evidence from the Minister about the applicant's church involvement and about the applicant's eye problem. The decision makes no reference to evidence concerning the applicant's establishment in their community.

[33] The applicant and his Minister were not cross-examined on their affidavits. I note that on reviewing the immigration officer's Notes to File - Reasons and Decision (dated December 19, 2001) and in her affidavit, there is no reference as to giving the applicant's Minister an opportunity to present evidence other than the reference in the memo-to-file where the officer stated "at this time point the Reverend told me about Mr. Donaldson's involvement in the church and offered his support regarding the occupation." From a perusal of the affidavit material, I am of the opinion that the applicant's Minister was not afforded an opportunity to present all of the evidence that he wished to present on behalf of the applicant and consequently, the duty of procedural fairness was breached and the decision must be set aside and the matter remitted to a different officer for reconsideration.

[34] Because of my finding in Issue 1, it is not necessary to deal with the other issues.

[35] Neither party wished to propose a serious question of general importance for certification.

[36] I have considered the applicant's submissions with respect to costs and I am not prepared to make any award of costs.

[37] The application for judicial review is allowed and the matter is to be submitted to a different officer for reconsideration.

ORDER

[38] IT IS ORDERED that the application for judicial review is allowed and the matter is to be submitted to a different officer for reconsideration.

"John A. O'Keefe"

J.F.C.C.

Ottawa, Ontario

January 30, 2003

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: IMM-122-02

STYLE OF CAUSE: SAMUEL DONALDSON

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: Monday, December 2, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED: Thursday, January 30, 2003

APPEARANCES:

Mr. David Morris

FOR APPLICANT

Mr. Michael Roach

FOR RESPONDENT

SOLICITORS OF RECORD:

Bell, Unger, Morris

114 Argyle Avenue

Ottawa, Ontario

K2P 1B4

FOR APPLICANT

Department of Justice

East Memorial Building, Second Floor

284 Wellington Street

Ottawa, Ontario

K1A 0H8

FOR RESPONDENT

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Donaldson v. Canada (Minister of Citizenship and Immigration), 2003 FCT 100

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2003 FCT 100