Date: 20041021
Docket: IMM-1472-03
Citation: 2004 FC 1469
Toronto, Ontario, October 21st, 2004
Present: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an immigration officer (the "H & C Officer"), dated January 18, 2003, wherein it was determined that there were insufficient humanitarian and compassionate ("H & C") and public policy grounds to warrant processing the applicant's permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] The applicant requests an order setting aside the H & C Officer's decision and directing the Minister or her delegates to re-assess the applicant's H & C application in accordance with law and procedural fairness.
Background
[3] The applicant, Ihsan Babilly (the "applicant") is a citizen of Syria who came to Canada on October 30, 1999 and made a refugee claim which was ultimately rejected on May 29, 2000.
[4] On August 8, 2000, the applicant submitted a request for visa exemption, asking that he be exempted on H & C grounds from the requirement set out in subsection 11(1) of IRPA that such an application be made from outside Canada. The applicant claimed he had a well-founded fear of persecution in Syria based on his Sunni Muslim religion, his perceived political opinion (that being a supporter of the Muslim Brotherhood) and his membership in a particular family group, (that being his family).
[5] On December 18, 2002, Citizenship and Immigration Canada ("CIC") sent the applicant a letter asking him to provide any information/document with respect to his H & C application within 30 days. Evidence of a work permit, employment records, bank statements, car lease and insurance documentation, driver's licence, a tax return for 2001 and his affidavit was received by CIC on January 13, 2003.
[6] In a letter dated January 18, 2003, the applicant's H & C application was denied. Enclosed with the letter were written reasons, comprised of the H & C Officer's notes.
[7] This is the judicial review of the H & C Officer's decision denying the applicant's request for inland processing on H & C grounds.
Reasons of the H & C Officer
[8] The H & C Officer's "narrative report", dated January 18, 2003 contains her reasons for rejecting the applicant's H & C application.
[9] The H & C Officer was not satisfied that the applicant would suffer undue, disproportionate or undeserved hardship if he was required to apply for permanent residence from outside Canada for the following reasons:
1. While recognizing that the applicant may face some loss of income were he to leave Canada, she was not satisfied the hardship will be disproportionate;
2. The applicant claimed fear of imprisonment or torture if he was forced to return to Syria, however, no evidence was submitted to support this claim; and
3. The information submitted was also found to be insufficient to warrant sending this file for a risk opinion, as no new or additional information was submitted since the Convention Refugee Determination Division ("CRDD") hearing and neither the applicant nor his counsel had requested the file be sent for a risk assessment.
Applicant's Submissions
[10] The applicant submitted that in his application for permanent residence on H & C grounds, the issue of risk to him should he be required to return to Syria was clearly raised in his counsel's letter and by reference to his Personal Information Form ("PIF") as well as the decision of the CRDD regarding his claim for Convention refugee status.
[11] The applicant referred to the CIC Manual IP 5 Immigrant Applications in Canada Made on H & C Grounds ("IP5 Guidelines") to set out the H & C Officer's obligations with respect to the issue of personalized risk. The following points were alleged to arise from the IP5 Guidelines:
1. The H & C Officer is under a positive obligation to consider the issue of personalized risk when it is raised in the application;
2. The H & C Officer is under an obligation when the applicant does not provide adequate detail concerning the risk to request further details before considering the application;
3. The H & C Officer is not to proceed with the proceeding until the applicant has a reasonable opportunity to respond, and;
4. The H & C Officer is only to assess non-risk factors of an H & C application and if personalized risk is an issue, then that portion of the application is to be referred to a PRRA Officer to assess that feature of the case as it is the latter officer's area of expertise.
[12] It is submitted that the H & C Officer failed in her duty of fairness by not sending the applicant a letter requesting further details of the personalized risk and not stopping her processing of the case in order to give him an opportunity to provide such details. The applicant alleged that the H & C Officer was reasonably alerted to the issue but ignored the requirements of fairness which are reflected in the Respondent's manuals, by unilaterally deciding not to remit the file for a risk opinion once the issue was raised. It is submitted that the H & C Officer breached the obligation of procedural fairness which is accorded to persons in the applicant's circumstances where there is an issue with serious repercussions for them.
Respondent's Submissions
[13] The respondent submitted that the applicant was given a fair opportunity to provide details of his allegation of risk when the H & C Officer provided him an opportunity to submit additional information or documents to support his application in December of 2002. Further, the respondent submitted that it was open to the H & C Officer to find on the facts of this case that there was insufficient evidence to substantiate a personalized risk.
[14] The respondent submitted that the IP5 Guidelines do not bind the H & C Officer, are not hard and fast rules, and while they provide direction, the H & C decision is still a discretionary one. Citing Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the respondent submitted that procedural fairness is variable to the specific content and circumstances of each case. In this case, it is argued that the application was assessed fairly on the relevant factors.
[15] Also citing Baker, supra, the respondent asserted that it is the responsibility of the applicant to satisfy the decision-maker that there are sufficient grounds for an exemption on H & C grounds. The respondent referred to two cases, Popovic v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 900 (QL), 2001 FCT 588 and Singh v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 155, [2000] F.C.J. No. 1160 (QL) to support its contention that an H & C Officer is not obliged to refer an applicant's file to a PCDO for a risk assessment in every case. The respondent also pointed to section 8.8 of the former IP5 Guidelines which indicate that an officer should refer an application for a risk assessment where the identifiable personalized risk is greater than a mere possibility and where the applicant had sufficiently detailed the nature of the risk.
[16] The respondent alleged that the real matter before the Court is the weight given to the facts before the H & C Officer. It is submitted that it is open to an H & C Officer to conclude that there was no need for a risk assessment in a proper exercise of her discretion. The respondent concluded that the applicant had not demonstrated that the H & C Officer misunderstood the material submitted on his behalf, nor has he demonstrated that his application was assessed unfairly or that there is a basis for judicial intervention.
Issue
[17] The issue is stated as:
Did the H & C Officer breach the rules of fairness in her assessment of the applicant's
request for inland processing of his permanent residence application on H & C grounds?
Relevant Statutory Provisions
[18] Subsection 11(1) of IRPA requires a foreign national to apply for a visa before entering Canada:
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
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[19] Subsection 25(1) of IRPA, however, permits the Minister to grant a foreign national permanent residence status, or an exemption from any applicable criteria or obligation of IRPA, if she is of the opinion that such an exemption is justified by H & C considerations:
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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.
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
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Analysis and Decision
[20] Standard of Review
It is well established, as a result of the decision in Baker, supra, that the standard of review to be applied when reviewing an H & C Officer's decision is reasonableness simpliciter.
[21] Issue
Did the H & C Officer breach the rules of fairness in her assessment of the applicant's request for inland processing of his permanent residence application on H & C grounds?
The applicant submitted that the H & C Officer breached the duty of procedural fairness owed to him by failing to send his application to a PRRA Officer for an assessment of risk and by failing to write to him and request further information about his personal risk which he stated in his H & C application.
[22] The IP5 Guidelines state that if, after an assessment of the purely non-risk factors, the H & C Officer does not find sufficient grounds to allow the H & C application, it is transferred to a PRRA officer for the assessment of risk (section 13.4). The application was not referred to a PRRA officer in this case.
[23] In Adourian v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 915 (QL) (F.C.T.D.), [2002] F.C.T. 672, Hansen J. stated at paragraph 9:
It should be noted that Reed J.'s observation was in relation to the guidelines prior to their amendment in October 2001. The pre-October 2001 guidelines contained a specific direction that "[w]hen the application is based largely on risk factors, send the application for review by a PCDO, who will provide an opinion about the risks faced by the applicant". This direction does not appear in the amended guidelines. Instead, the current guidelines direct the officer, where non-risk H & C factors are insufficient on their own to warrant approval, to send the application to a PCDO for review. The guidelines further direct that a PCDO review may not be necessary in the absence of specific risk concerns.
[24] Thus, it appears that the H & C Officer in this case should have forwarded the application to a PRRA officer for a risk assessment.
[25] The applicant also submitted that since his application alleged a personalized risk without stating all the details of the risk, the H & C Officer should have written to him and specifically asked him to provide the details of his personalized risk. Although the H & C Officer sent a letter to the applicant, it was general in nature and asked him to " . . . provide any information or documents you would like to be considered". Annex 3 to the IP5 Guidelines provides sample wording for the letter to be sent to the applicant for further information. Annex 3 reads in part as follows:
Before a decision can be made about exempting you from the requirements of the Immigration and Refugee Protection Act, further information is required, specifically: (explain)
[26] The H & C Officer did not give the specifics of the information required in her letter of December 18, 2002.
[27] Based on the facts of this case, I am of the opinion that there was a breach of the duty of procedural fairness. The H & C Officer failed to ask the applicant for particulars of his claim of a personalized risk, and did not refer the matter to a PRRA officer for a risk assessment. The proper risk assessment could only be made after a request for particulars of the personalized risk, as outlined in the IP5 Guidelines.
[28] The application for judicial review is therefore allowed and the matter is referred to a different officer for reassessment.
[29] The respondent did not wish to submit a proposed serious question of general importance for my consideration.
[30] The applicant, at the hearing, proposed the following question for my consideration for certification as a serious question of general importance:
What procedural duty of fairness is on an immigration officer, on the facts of this case?
[31] The applicant agreed to submit the question in writing with any submissions before July 11, 2004 and the respondent could reply by July 19, 2004. No submissions were received by that date. In any event, I am not prepared to certify the question proposed at the hearing as a serious question of general importance as it appears to be based on the facts of this particular case.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is allowed and the matter is referred to a different officer for reassessment.
2. No serious question of general importance will be certified.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1472-03
STYLE OF CAUSE: IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 24, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: OCTOBER 21, 2004
APPEARANCES BY :
Yehuda Levinson
FOR THE APPLICANT
A. Leena Jaakkimainen
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Levinson & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041021
Docket: IMM-1472-03
BETWEEN:
IHSAN BABILLY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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