Date: 20050831
Docket: IMM-997-05
Citation: 2005 FC 1192
BETWEEN:
JASWINDER KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HUGHES J.
[1] The Applicant Jaswinder Kaur seeks judicial review in respect of a decision of a Counsellor of the Immigration Section of the Canadian High Commission in New Delhi, India dated December 15, 2004 wherein the Applicant's request for humanitarian and compassionate considerations in granting her permanent resident status in Canada or exemption from any applicable criteria or obligation, under subsection 25(1) of the Immigration and Refugee Protection Act, was refused.
[2] The Applicant was born in India in 1963 and is and always was a citizen of that country. The Applicant married in India to an Indian husband and has two children, one son born in India in 1987, the other son born in India in 1989. The Applicant's husband died in a train accident in 1989. After that, the Applicant lived with her sister-in-law in India, both were supported by family living in Canada who sent money on a regular basis.
[3] The Applicant's sister-in-law recently moved to Canada to join her family, leaving the Applicant alone in India and continuing to be dependent financially on her in-laws in Canada. Neither the Applicant nor her children have ever been to Canada.
[4] By letter dated October 1, 2004, solicitors for the Applicant made an application to the Canadian High Commission in India to allow the Applicant, and presumably her children, to enter Canada as permanent residents using an exercise of discretion under section 25(1) of the Immigration and Refugee Protection Act. A number of documents, including an affidavit from the Applicant, were submitted with the Application. The Applicant was not interviewed.
[5] This application was refused. By letter from a Counsellor (Immigration) of the Immigration Section of the Canadian High Commission in India, the Applicant was informed:
I have determined it would not be justified by humanitarian or compassionate considerations to grant you permanent resident status or exempt you from any applicable criteria or obligation of the Act.
As a result, I am refusing your request for consideration under the provision of the Act.
[6] Pursuant to a subsequent request made by the Applicant's solicitors, the relevant entries in the Computer Assisted Immigration Processing System (CAIPS) made by the Counsellor were provided and were stated to form part of the reasons for the decision. The relevant part of these entries states:
H & C Consideration
Although PI's in-laws are all in Canada, PI resides in the family house in Punjab. Whether she and her sons reside in India or in Canada, they all remain financially dependent on the family. I understand that PI'S relatives will not support her financially, which seems unnecessary, but all of PI's living relatives live in the same district of Ludhiana (her mother, one brother and three sisters). It is highly unlikely that they would not be able to give PI and her sons emotional support. Therefore, I am not satisfied that PI and her sons are "now alone in India".
I am not satisfied that there are sufficient humanitarian and compassionate considerations to exempt the Applicant from applicable criteria under the Act. I have also considered the best interest of the children and am satisfied they are not adversely affected by staying in India.
Case refused.
[7] Whereupon this application for judicial review has been made. In the course of this application, the Counsellor filed an affidavit elaborating upon the manner in which the decision was made, and the Counsellor was cross-examined upon that affidavit.
ISSUES
[8] In her further Memorandum of Fact and Law, the Applicant has raised four issues:
a) Did the officer err in law because she failed to properly assess the totality of the evidence?
b) Did the officer breach the Applicant's right to natural justice by relying on extrinsic evidence and failing to give the Applicant an opportunity to respond?
c) Did the officer err in law by conducting an inadequate assessment of the best interests of the Applicant's children?
d) Did the officer err in law by doubting evidence without good reason?
[9] At the hearing the issues resolved themselves into three:
1. What degree of deference is due to a determination made by the Minister's officer in respect of a humanitarian and compassionate application made outside Canada by a person who has never been to Canada?
2. Did the officer breach procedural fairness in not affording the Applicant an opportunity to respond to the officer's conclusions that it was highly unlikely that the Applicant's relatives would not give her emotional support?
3. Did the officer give sufficient consideration to the best interests of the children and give sufficient expression thereof in the reasons?
ANALYSIS
[10] The first issue is the degree of deference that should be given to a decision of the Minister's officer in respect of a humanitarian and compassionate application made under section 25(1) of the Immigration and Refugee Protection Act, particularly where the application is made from outside Canada and the applicant has never been to Canada. Section 25(1) provides:
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
[11] It is clear that humanitarian and compassionate (H & C) considerations under the Act are to be treated differently. As stated by Decary J.A. for the Court in Legault v. Canada (MCI) (2002), 212 D.L.R. (4th) 139 (F.C.A.) at paragraph 17:
17 Parliament chose, at s. 114(2), to restrain the discretionary exercise to cases where there are compassionate and humanitarian [page149] considerations. Once these grounds are established, the Minister may allow the exception, but he may also choose not to allow it. That is the essence of the discretion, which must be exercised within the general context of Canadian laws and policies on immigration. The Minister can refuse to allow the exception when he is of the view that public interest reasons supersede humanitarian and compassionate ones.
and more recently by Dawson J. of this Court in Ngo v. Canada (MCI), 2002 F.C.T. 1150 at paragraph 47:
47 To consider these submissions I begin from the premise that the duty of fairness is not absolute, but rather varies according to context. In the present context, a number of factors tend to limit the content of the duty of fairness, including: the absence of a legal right to admission on H & C grounds; the onus on an applicant to establish H & C criteria; and the fact that no benefit is being removed from an applicant. Given those limiting factors, I turn to the jurisprudence cited by the parties.
[12] Even more recently, Martineau J. of this Court in Dhillon v. Canada (MCI), 2005 F.C. 1067 found at paragraphs 17 and 18:
[17] The Respondent submits that, given the nature of the humanitarian and compassionate inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister albeit that such responsibility is delegated to an officer, and the considerable discretion evidenced by both the language of subsection 25(1) of the Act and the Ministerial guidelines, considerable deference should be accorded to decisions made by officers exercising the delegated function of making humanitarian and compassionate decisions. Thus, the Respondent urges, the standard of review for such decisions is reasonableness simpliciter. For this proposition, the Respondent cites the Baker decision, supra. Counsel for the Applicant does not dispute the foregoing assertion. I adopt the submission on behalf of the Respondent.
[18] The foregoing does not apply to the issue of adequacy of reasons. That issue is to be determined on its merits without reference to the concept of standard of review.
[13] Thus in reviewing a decision of the Minister's officer in dealing with humanitarian and compassionate grounds, a review is conducted on the basis of reasonableness simpliciter keeping in mind that the decision is a discretionary one and that the duty of fairness is not absolute.
[14] The second issue is whether the officer, having concluded that it was highly unlikely that the Applicant's remaining family in India would not give her emotional support, should have given the Applicant notice of that conclusion and an opportunity to provide a rebuttal to that conclusion.
[15] From the affidavit and cross-examination of the officer, it is apparent that this conclusion was drawn from the officer's experience and training generally as to such matters in India and not from a specific source or piece of information. The officer states at paragraph 14 of her affidavit:
I specifically considered the fact that any lack of emotional support would be contrary to the customs of this close-knit society. Married daughters in Punjabnormally continue to maintain close links with their own parents and siblings although they reside in the family home of their spouse. Families are strongly supportive of their daughters who lose their husband. Even where parents and siblings are unable to financially support a married daughter due to their own circumstances, the family bonds normally remain strong. There was insufficient evidence before me to demonstrate that Ms. Kaur did not have such a relationship with her own family, even if they could not support her and her two sons financially.
[16] In answers put to her in cross-examination as to what she stated in paragraph 14, the officer responded:
Q. Would you say your comments in this paragraph are based on your own observations?
A. Not only my own observation, but the training. Every officer who goes to work in Delhi receives upon his order - - arrival in Delhi, we have two weeks training on Indian laws, customs, traditions and different societies, different laws on marriages, adoption, and - - so, we have very extensive training when we arrive there.
And then you have two years of experience perfecting cases in the society.
And I was surrounded by a lot of Indian staff to who I could ask questions about their traditions and their customs.
So, it's not only observation, it's a lot of training that I've received and questions that I've asked.
Q. Okay. So, in the training, like, is there documentation provided on the customs, or is it through oral lectures that you learn?
A. Oral lectures and through written training, as well, yes.
Q. What kind of written training, do you recall?
A. It's a very thick binder we receive, especially on the laws on marriage in India, and on adoption, custody. I would say we receive, generally, a four-inch-thick binder during the training.
Q. Okay. And there's information on the customs in this binder, is that right?
A. Yes, plus several books on Sikh marriages and the customs in the Sikh community and on Sikhism.
[17] Thus the evidence shows that the officer relied on her general knowledge and training and experience in coming to her conclusions and not upon any particular piece of information or evidence sourced outside of this context.
[18] It is clear that if the officer received and acted upon what has been described in some cases as "extrinsic evidence", then failure to draw this evidence to the applicant's attention and affording an opportunity to respond to it would constitute a breach of procedural fairness and give grounds for quashing the decision upon judicial review. This happened in the Ngo case, supra at paragraphs 53 to 59 where the officer apparently had a discussion with the interpreter after the hearing as to the nature of certain documents placed in evidence.
[19] In Sorkhabi v. Canada (Secretary of State) [1994] F.C.J. No. 1976, an issue related to the effect that artificial insemination of a woman would have in Iran and the officer took into account a newspaper article on the subject suggesting that there would be little effect, without giving the applicant an opportunity to respond. The decision was quashed.
[20] The term "extrinsic evidence" is usually used in respect of specific evidence of which the applicant was not aware that is used to rebut evidence already before the tribunal. As stated by Rothstein J. (as he then was) in Dasent v. Canada (MCI), [1995] 1 F.C. 720 (T.D.) at paragraph 22:
22 The term "extrinsic evidence" is normally used with reference to ambiguous documents. In that context, extrinsic evidence is evidence of statements, facts or circumstances that do not appear on the face of the document or that are not referred to in the document, but which serve to explain, vary or contradict the document. The introduction of such evidence is not often allowed. In the case at bar, having regard to the words "not brought forward by the applicant" used by Hugessen J.A. to qualify the term "extrinsic evidence," and his reference to Muliadi, I interpret the term "extrinsic evidence not brought forward by the applicant" as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant.
[21] However, if the officer is relying on experience, knowledge and training in order to arrive at a conclusion and not upon specific evidence, there is no duty to put conclusions made to the applicant before arriving at a decision. As stated in paragraphs 13 and 14 of Dasent supra:
13 The most recent authority of which I am aware with respect to the question of procedural fairness pertaining to humanitarian and compassionate reviews is Shah v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1299 (C.A.) (QL). In Shah, Hugessen J.A. states that the content of the duty of fairness in humanitarian and compassionate reviews under subsection 114(2) of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49 s. 102)] is minimal. He points out that no hearing need be held and no reasons need be given.
14 The only indication he gives that a duty of fairness exists at all in these cases is that if an immigration officer relies on "extrinsic evidence, not brought forward by the applicant," he must give the applicant the chance to respond to this evidence. At page 2 Hugessen J.A. states:
The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. [Footnote omitted; emphasis added.]
[22] In the case now before this Court there is no suggestion that "extrinsic evidence" of the type discussed in the above cases was before the officer or considered in arriving at the decision at issue here. As stated by Hugessen J.A. (as he then was) in Shah supra, the officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her.
[23] Thus the officer committed no act of procedural unfairness in not affording the applicant notice and an opportunity to respond to her conclusions as to the ability of the Applicant's remaining family in India to provide emotional support.
[24] The third issue is whether the officer gave adequate consideration to the interests of the Applicant's children and whether her concerns were adequately expressed in her reasons.
[25] There is no doubt that the CAIPS notes, said to be part of the reasons, do state:
"I have also considered the best interests of the children and am satisfied they are not adversely affected by staying in India."
[26] Applicant's counsel points out that the officer had material placed before her by the Applicant's solicitors respecting the children, including a letter from their village Sarpanch (mayor or chief elder) stating:
"They are also feeling lonely and devoid of her love and affection because their maternal aunt... was doing their paternal duties. Now they are feeling despondence (sic) after her going to Canada".
and a letter from a hospital where the children are said to be regular patients stating:
"Since they have lost their father they appear to be under [a] lot of psychological stress".
[27] The Supreme Court of Canada has stated in Baker v. Canada (MCI), [1999] 2 S.C.R. 817 that the decision-maker in circumstances such as these must be "alert, alive and sensitive" to children's best interests. At paragraph 75, L'Heureux-Dubé J. for the Court, said:
75 The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.
[28] The affidavit of the officer who made the decision, having noted the letter from the Sarpanch and the hospital, states in respect of the children:
10. At the time I considered this note, I considered that it indicates the children visit the hospital as patients for medical treatment and that since their father's death they appear to be under a lot of psychological stress. No further details were provided. I also noted that Ms. Kaur had not indicated in Schedule 1 of her application form (page 10 of the Certified Tribunal Record) that either she or any family has or has ever had a serious physical or mental disorder.
11. A also noted that at the time of their father's death, Satpal had not yet been born and Gurshinder was only two years old. While I acknowledge that they have grown up without their father, they have both been cared for by their mother and have both resided with her for their entire life. I also noted that the children are pursuing a normal course of education. The children's school certificates indicate that in 2003, Gurshinder was a student of Class X and Satpal was a student of Class IX. I noted that Ms. Kaur provided no other information regarding her children. In considering the best interests of Ms. Kaur's two children, I was satisfied and remain satisfied that they would not be adversely affected by remaining in India.
[29] I am satisfied, therefore, that the officer was "alert, alive and sensitive" to the interests of the children and provided appropriate weight to those interests.
[30] The remaining question is whether the officer, in her reasons, gave sufficient expression to her consideration of the children's interests. The Supreme Court of Canada in Baker, supra stated that there was a need to provide reasons, but that an officer's notes would suffice. At paragraphs 37, 43 and 44 the Court said:
37 More generally, the traditional position at common law has been that the duty of fairness does not require, as a general rule, that reasons be provided for administrative decisions.
...
43 In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
44 In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness [page849] can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for decision.
[31] There is no doubt that "mere mention" of the children is insufficient, as stated by the Federal Court of Appeal in Legault supra at paragraph 13:
Question 2
2. Is the mere mention of the children sufficient to fulfil the requirements of Baker [supra]?
Answer: No. The mere mention of the children is not sufficient. The interests of the children are a factor that must be examined with care and weighed with other factors. To mention is not to examine and weigh.
[32] There is also no doubt that a "blanket statement" to the effect that the officer "has considered all evidence" is insufficient. In Cepeda-Gutierrez v. Canada (MCI), [1998] F.C.J. No. 1425, IMM-596-98, Evans J. (as he then was) said at paragraph 17:
17 However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[33] Here there is more than a "mere mention" of the children's interests, the statement in the Reasons is not simply a blanket statement. There is no obligation upon the officer to set out in her reasons every piece of evidence placed before her and provide an analysis as to why it was accepted or rejected or given a certain weight and not another. The reasons are sufficient so as to demonstrate that she was "alive, alert and sensitive" to the interests of the children.
CONCLUSION
[34] Accordingly, I find that there is insufficient basis for quashing the decision under review. The application will be dismissed. There will be no order as to costs.
[35] Counsel were asked whether there was any question for certification and they said there was none. I find that there is no question for certification.
"Roger T. Hughes"
Toronto, Ontario
August 31, 2005
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