Samola v. Canada (Minister of Citizenship and Immigration), 2003 FC 1378

Date: 20031124

Docket: IMM-3595-02

Citation: 2003 FC 1378

BETWEEN:

                                                           JEMMY DAVID SAMOLA

                                                                                                                                                     Applicant

                                                                                 and

                               THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                            REASONS FOR ORDER

MACKAY J.:

[1]                  This is an application for judicial review, commenced pursuant to section 82.1 of the former Immigration Act, R.S.C. 1985, c. I-2 as amended ("the former Immigration Act"), of a decision dated July 15, 2002, in which the Applicant's request for a humanitarian and compassionate exemption from the requirement that he apply for an immigrant visa prior to entering Canada was denied. Pursuant to section 190 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA"), this application is now proceeding under the provisions of the IRPA. The Applicant seeks an Order granting his application for judicial review and setting aside the deportation order that has been issued against him. In the alternative, the Applicant seeks an Order granting his application for judicial review, setting aside the decision of the Immigration Officer, and sending the application back for reconsideration by a different Immigration Officer.

[2]                  Jemmy David Samola ("the Applicant") is a twenty-eight-year-old citizen of Indonesia. He is of Chinese descent, and practices the Christian faith.

[3]                 The Applicant arrived in Canada at the port of Halifax in July 2002 as a deckhand aboard the Kenkyo Maru, and later made a refugee claim, based on alleged persecution as a member of an ethnic and religious minority in Indonesia. This claim was denied by the Refugee Board. The Applicant later applied for consideration under the Post-Determination Refugee Claimants in Canada Class ("PDRCC"), but that application was submitted after the deadline had expired and was never assessed.

[4]                 In May 2002, the Applicant filed an application, pursuant to subsection 114(2) of the former Immigration Act, for a humanitarian and compassionate exemption ("H & C application") from the requirement under subsection 9(1) that he apply for an immigrant visa prior to entering Canada. In support of his H & C application, the Applicant submitted written submissions, and on July 15, 2002, was interviewed by the Immigration Officer.    No translator was present. The Applicant claims that the Immigration Officer did not ask him to submit any further evidence or documentation, nor did he indicate that there was any lack of evidence or additional information required for a positive determination, yet his application was denied.

[5]                 In his written decision, the Immigration Officer listed the factors that supported granting the exemption and the factors that did not, and came to the following conclusion:

[...]    Jemmy Samola was a tall ship deserter. He applied for convention refugee status in August of that same year, (IRB results on file). As a result, he was found not to be a convention refugee on 19 Sept 2001 by the Immigration and Refugee board. The results of the IRB seemed reasonable, and I could not find grounds to dispute their findings. Mr. Samola did not submit an application for PDRCC (Post Determination Refugees Claimants in Canada) within the specified time and has since remained in Canada with no status.

Mr. Samola does not have any immediate family in Canada, but does have a four year old daughter in Indonesia that resides with the birth mother. He also has a brother living in Jakarta.

Mr. Samola was given the opportunity to be heard at CIC Halifax to satisfy a deligate [sic] of the Minister of Citizenship and Immigration that if there was any additional information, it would be considered to support H & C grounds. When interviewed at CIC Halifax, the client did not have anything further to add, and was satisfied with all previous submissions provided on his part.

Letters of support from eight community members and a minister of the Fort Massey United Church accompanied the client's file, all with positive reflection of the client.

A letter from Green Leaf Construction was also included, promising employment to the applicant. When contacted, Mintaria Johan of Green Leaf Construction advised that Mr. Samola has been working with the company since May 2002. Mr. Samola was refused an employment authorization on 03 April 2002, though accepted and engaged in employment without proper authorization, a reportable offence under the Immigration Act.

Mr. Samola has been in Canada for two years. Removal at this point would not be unreasonable given the circumstances of this case. Mr. Samola is presently under an effective removal order.

After strict consideration of all components previously mentioned, I am not satisfied that there are sufficient grounds to process this application from within Canada under the umbrella of humanitarian and compassionate considerations.

[6]                 In his affidavit, the Applicant described incidents of persecution he experienced in Indonesia, including being thrown from a moving train due to his ethnicity. Also, frequent harassment by Muslims (the religious majority in Indonesia), including being forced to pay bribes in order to receive medical attention and police assistance, and harassment at his place of worship. Since his arrival in Canada, he has been able to openly practice his religion without fear of discrimination or persecution.

[7]                 The Applicant claims that he left his identification documents aboard the ship on which he was employed, and he fears that his employers will make a complaint to the Indonesian police about his defection and abandoning his employment contract.

[8]                 The Applicant has a daughter in Indonesia, who lives with her mother and her mother's boyfriend. The Applicant claims that he has given his daughter gifts and money, both before leaving Indonesia and while at sea. However, he has never been welcome to see her, and presently he does not know where she lives, as her mother moved recently while he was at sea.

[9]                 The following issues are raised for consideration in this application for judicial review:

1.         What is the standard of review in reviewing a decision regarding an H & C application?

2.         Was there a denial of procedural fairness in the Immigration Officer's decision?

3.         Was there a reasonable apprehension of bias on the part of the Immigration Officer?            

4.         Was the exercise of the Immigration Officer's discretion unreasonable?

[10]            The relevant sections of IRPA are as follows:

The Standard of Review

[11]            Both the Applicant and the Respondent agree that the standard of review applicable to a decision on an H & C application is reasonableness. As explained by Justice Iacobucci in Southam Inc. v. Canada (Director of Investigation and Research, Competition Act), [1997] 1 S.C.R. 748, at para. 56:

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.

Procedural Fairness

[12]            The Applicant submits that the decision resulted in a breach of procedural fairness, and cites Baker v. Canada (M.C.I.) [1999] 2 S.C.R. 817, with respect to the elements of procedural fairness in an H & C application. Justice L'Heureux-Dubé states at paras. 21 and 22:

All of the circumstances must be considered in order to determine the content of the duty of procedural fairness....Although the duty of fairness is flexible and variable, and depends on an appreciation of the context of the particular statute and the rights affected, it is helpful to review the criteria that should be used in determining what procedural rights the duty of fairness requires in a given set of circumstances. I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.

[13]            In determining what is required by the duty of fairness, the Applicant points to the fact that since this was a discretionary decision that was determinative of the issue, and in light of the significant impact of the decision on the Applicant, a high level of procedural fairness is required.

[14]            The Applicant submits that there was a denial of procedural fairness in the Immigration Officer's decision for essentially three reasons. First, the Applicant argues that the Immigration Officer did not adequately review all of the submissions from the Applicant when arriving at his decision. Additionally, the Applicant had the legitimate expectation that the information in regards to his fear of returning to Indonesia would be fully assessed. He claims it was only assessed by the Immigration Officer in regards to the "reasonableness" of the Refugee Board's decision. Additionally, there was no mention as to whether the information regarding the PDRCC application was assessed as part of the H & C application.

[15]            However, as the Respondent correctly points out, there is a presumption that when the decision-maker says they have considered all the relevant material they have done so. The Immigration Officer notes that he reviewed all the material submitted before him in reaching his decision, and explains some specific factors in the reasons given. The Applicant's argument concentrates on the consideration of his PDRCC application, but in my view the Immigration Officer did not place any reliance on that decision, other than to mention the fact of the application and its refusal.

[16]            Second, the Applicant argues that the Immigration Officer had an obligation to inform the Applicant that, essentially, unless something more was said or submitted, a negative determination would be made. By not informing him that if no further evidence or documentation was submitted, his H & C application would be denied, it is said the Immigration Officer breached the principles of procedural fairness.

[17]            The Respondent argues that this amounts to a reverse onus, and submits, in contrast, that the burden is on the Applicant to demonstrate his case for an exemption. The Respondent points to Justice Heald's statement from Patel v. Canada (M.C.I.), [1997] F.C.J. No. 54 (T.D.), at para. 10:

The applicant submits that he is entitled to have all relevant evidence considered on a humanitarian and compassionate application. I agree with that submission. However, the onus in this respect lies with the applicant. It is his responsibility to bring to the visa officer's attention any evidence relevant to humanitarian and compassionate considerations.

[18]            Although I do not think this amounts to a reverse onus, I agree with the Respondent that the onus is on an applicant in an H & C application to submit all facts and documents that support granting the exemption. In his affidavit, the Immigration Officer stated that he asked the Applicant if he had anything more to say, or any further documentation to submit. If there were further documentation or facts that could have been presented, the Applicant was given the opportunity to do so. He did not.

[19]            Thirdly, the Applicant argues that without a translator, he struggled with English during his interview. Additionally, the Applicant claims that had he been informed that this was his last time to present information about his application, he would have requested a translator.

[20]            In his affidavit, the Immigration Officer stated that at no time did the Applicant request a translator, nor did he seem to have difficulty understanding or responding to questions.

[21]            The fact that the interview was the last opportunity for the Applicant to present evidence to the Immigration Officer should not have come as a surprise to the Applicant. If he felt he was not able to adequately present his case, he should have made that known. The fact that the Immigration Officer did not offer a translator to the Applicant, who seemed able to understand English, is not a breach of procedural fairness.

Reasonable Apprehension of Bias

[22]            The Applicant once again cites to Baker, supra, in the discussion of the reasonable apprehension of bias. In Baker, Justice L'Heureux-Dubé reaffirms the test originally set out by Justice de Grandpré, writing in dissent, in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p. 394:

[...]    the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information [...]    [T]hat test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

[23]            The Applicant argues that the Immigration Officer was biased against the Applicant because of his reliance on the Refugee Board's negative decision in the Applicant's refugee claim. In the decision, the Immigration Officer referred to the Refugee Board's decision, and stated that it was "reasonable" and that he could not find grounds to dispute the finding.

[24]            However, as the Applicant points out, the considerations for a positive determination in a refugee claim and in an H & C application are different. Specifically, a refugee must have demonstrated some past persecution, whereas in an H & C application, the likelihood of future persecution can be sufficient.

[25]            It is important to note that nowhere in the reasons does the Immigration Officer indicate that he felt bound in any way by the decision of the Refugee Board. This is also set out in his affidavit. Finally, he mentions it in only two sentences in the introductory paragraph of the decision. In my opinion, this is not sufficient to raise a reasonable apprehension of bias. It merely notes one factor of many taken into consideration by the Immigration Officer.

Unreasonable Use of Discretion

[26]            The Applicant submits that the Immigration Officer misused his discretion in refusing the Applicant's H & C application, and bases this submission primarily on the wording used in the reasons, in particular that the Immigration Officer found the Refugee Board's decision to be "reasonable." The Applicant argues that it was not the Immigration Officer's job to act as a review tribunal for the Refugee Board's decision.

[27]            The context of the phrase "reasonable" in the decision does not point to the interpretation the Applicant is suggesting. That is, I do not believe that the Immigration Officer was making a finding of law that the Refugee Board's decision was "reasonable." Rather, the Refugee Board's decision appears to be one of a number of factors considered in reaching the negative conclusion.

[28]            In summary, the principles of procedural fairness were not breached by the decision, nor was there a reasonable apprehension of bias on the part of the Immigration Officer. His exercise of discretion was reasonable, and the decision to reject the Applicant's H & C application was based on a number of factors, not just on the decision of the Refugee Board.

Conclusion

[29]            In summary, the decision was reasonable on the evidence before the Immigration Officer and there was no procedural error, in fairness or by reason of an apprehension of bias, that would support intervention of the Court.

[30]            By separate Order, this application for judicial review is dismissed.

                                                                              W. Andrew MacKay

J.F.C.

                                       FEDERAL COURT

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-3595-02

STYLE OF CAUSE:                                       JEMMY DAVID SAMOLA

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                  Halifax, Nova Scotia

DATE OF HEARING:                                     April 30, 2003

REASONS FOR ORDER

AND ORDEROF    THE HONOURABLE MR. JUSTICE MACKAY

DATED:                     November 24, 2003

APPEARANCES:

Lee Cohen                 FOR THE APPLICANT

Melissa Cameron     FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Lee Cohen, Q.C.

Barrister and Solicitor

P.O. Box 304, Halifax CRO

Halifax, Nova Scotia

B3J 2N7                                                              FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada            FOR RESPONDENT