Date: 20010904
Docket: IMM-516-00
Neutral citation: 2001 FCT 985
BETWEEN:
YOKANANTHAM ARUMUGAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application under subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") for judicial review of, and an order setting aside, the decision of an immigration officer ("IO"), dated January 18, 2000, in which the officer refused to approve the applicant's application for landing from within Canada on humanitarian and compassionate ("h & c") grounds.
Background
[2] The applicant is a citizen of Sri Lanka, a Tamil from the north of that country. His claim for protection as a Convention refugee was rejected in January 1998, as was his subsequent request for protection under regulations concerning the Post-Determination Refugee Claimants in Canada ("PDRCC") class, in April 1999. Applications for leave and judicial review of both of those decisions were dismissed. The applicant applied for consideration on humanitarian and compassionate grounds in July 1998. He was interviewed in March 1999 when the interviewing officer noted that the PDRCC report was requested while the h & c decision was pending. Thereafter, in December 1999 his h & c application was reviewed. The applicant was notified of the negative determination on January 18, 2000.
Issues
[3] The applicant raises the following issues:
(a) Did the IO breach the duty of fairness in considering extraneous information without allowing the applicant an opportunity to address the officer's concerns?
(b) Did the IO breach the duty of fairness in reaching a determination based on outdated information, without providing the applicant an opportunity to address the current conditions in Sri Lanka?
(c) Did the IO err in law by making unreasonable conclusions by ignoring or misinterpreting evidence?
Consideration of the issues raised
[4] The applicant submits that the IO breached the duty of fairness by referring to information concerning the applicant without providing him the opportunity to make representations about it.
[5] The applicant urges that the IO's notes from December 1999 indicate concern about him seeking welfare in June 1999. It was further noted that he had $6,000 in savings, and concluded that he had not sufficiently established himself in Canada. The applicant submits that he did not receive welfare in 1999, and had not received welfare since the first few months following his arrival in Canada. The applicant urges that while the officer knew he was employed and noted that he had $6,000. in savings, she appears to have been concerned about the possibility that he might have sought welfare following his interview in March, 1999.
[6] It is urged by the applicant that evidence obtained about a person by an immigration officer upon which the officer relies must be disclosed, and the person must be provided with an opportunity to explain or address any concerns, an opportunity not provided to the applicant. In Haghighi v. M.C.I. (1999) 174 F.T.R. 123 at para. 15 (T.D.), Mr. Justice Gibson held that in dealing with an h & c application, fairness requires an opportunity for the applicant to know the evidence considered by an IO and to be provided an opportunity to comment on it. He stated:
[T]he question has become whether the Immigration Officer, in failing to share a document such as the PCDO's recommendation and its rationale, and thereafter relying on it, has denied the person or persons whose interests are affected, here the applicant, "... a meaningful opportunity to present [his] case fully and fairly" or has denied the applicant "... a meaningful opportunity to present the various types of evidence relevant to [his] case and have it fully and fairly considered".
[7] The applicant submits that in failing to notify him of her concerns regarding the possibility that he was collecting welfare, the IO breached the duty of fairness. Had he been aware of her concerns he could have addressed them.
[8] The respondent submits that while welfare is mentioned in the officer's notes, there is no evidence that the officer relied on any information regarding welfare, nor that the issue of welfare was a factor in her decision. The IO's notes acknowledged that file information, regarding a welfare application in June 1999, was unverified, but made no further comment. The notes also state that the applicant had been employed since 1996. It is urged that there is no evidence that the officer relied on the information to the applicant's detriment.
[9] The notes of the IO made on 12/07/99 indicate that "...subj. referred by welfare = Peel in June 99", and later on 11 Dec. 99 that "welfare application in June 99 not verified". The notes also clearly state that he had been employed in Canada since 1996. Those references do not indicate that the officer considered the reported reference to welfare a particularly negative factor in assessing the application, though references to it are included among other factors considered. More significant factors considered were the decisions of the CRDD in relation to the applicant's refugee claim and the decision on his PDRCC claim, as well as the lack of any immediate family in Canada for they all remained in Sri Lanka.
[10] The comments in the IO's notes, the apparent bases of her decision, rely on the credibility findings and the negative determinations of the IRB, the PDRCC and the dismissals of previous applications for judicial review. This is apparent in the IO's final comments:
Noted IRB didn't find evidence credible concerning subjects time in the North - IRB also found subj. story not to be trustworthy.
Case sent for PDRCC risk - a negative decision was returned in APR 99
Little or no ability in official languages - insufficient establishment - Not satisfied that subj. would suffer undue hardship if he were required to leave CDA & return to his country.
[11] In the circumstances I am not persuaded that failure of the IO to apprise the applicant of her concern, about any request he reportedly made for welfare in June 1999, before her decision by letter of January 18, 2000, warrants an order to set that decision aside. Even if the applicant had disabused the officer of any concern about his seeking welfare, that in itself would not have affected her concerns about other matters, particularly the previous assessments of his case and of his credibility.
[12] With regard to the issue of dated evidence, the applicant applied for h & c consideration in July 1998, and was interviewed eight months later in March 1999. The refusal of his PDRCC application was made in April 1999. The immigration officer reviewed the case for h & c consideration in December 1999, and relied on information obtained in March and April, 1999. Generally, the passage of time will not result in breach of the duty of fairness. However, it is submitted that given the rapidly changing situation in Sri Lanka, and the presence of the applicant's wife in a Tamil area, it was unfair for the officer to rely on assessments of country conditions in Sri Lanka based on evidence available in March and April 1999 without considering the conditions existing there in December 1999 or at least providing the applicant an opportunity to convey his understanding of the situation then, before making a decision.
[13] The IO relied on the submissions of the applicant made with his h & c application in July 1998, his interview in March 1999 and on the PDRCC assessment concluded in April 1999. She noted that the applicant's wife had returned to her village after having spent time in a camp. According to the applicant, this demonstrates that the officer was not aware of the actual situation. It is urged that the village was in an area of conflict and his concern for his family grew as the circumstances in that area of the country deteriorated. As a northern Tamil, the applicant believes he does not have the right to reside in Colombo, and he likely could not return to his home in the north. Even if he could return, it would have been risky given the military operations that were ongoing. It is urged this information would have been relevant to the officer's determination of hardship upon his return to Sri Lanka.
[14] The respondent denies that the immigration officer prevented the applicant from providing more current information respecting risk after he was interviewed in March 1999. The onus is on the applicant to convince the officer that special reasons exist to exempt him from the normal operation of the Immigration Act. Admittedly the officer must provide the applicant an opportunity to provide full evidence, including written documentation, in support of an h & c application, to satisfy the duty of fairness. Here, there is no evidence that the officer failed in this regard.
[15] The respondent submits that the immigration officer gave full and fair consideration to all the relevant evidence submitted by the applicant in the h & c application. Moreover, the IO properly relied on information from the applicant's failed refugee claim, from the rejected PDRCC class risk assessment and from the applicant himself in relation to his h & c application.
[16] The applicant's assertion that the IO failed to appreciate the changing situation in Sri Lanka is based on a perception of unfairness because she relied on information the applicant considers outdated. That does not, in my opinion, establish a basis for the Court to set aside the decision in this case. The onus is on the applicant to persuade the immigration officer that humanitarian or compassionate circumstances warrant exemption from normal statutory requirements.
[17] In my opinion, although the IO did not seek new or updated country information from the applicant or elsewhere after the interview in March 1999, except for the PDRCC decision, there was no duty on the IO to do so. It was open to the applicant to submit further relevant information following the interview at any time before the decision, whether it be personal or related to the changing circumstances in Sri Lanka. The applicant did not do so. The IO rendered a decision based on the evidence provided to her. I cannot agree that the process was unfair or that the decision was unreasonable where the applicant did not take any initiative to provide further information concerning country conditions which, in his opinion, deteriorated through 1999. The responsibility of the IO was to consider the application to apply for admission on h & c grounds on the basis of the evidence provided by the applicant, and any evidence available from the applicant's immigration records or provided by the Minister. This the officer did.
[18] The applicant submits that the IO's conclusions were unreasonable because they were not supported by the evidence, or they resulted from the officer's misunderstanding of the evidence. While the officer referred to the applicant's two brothers in Sri Lanka, she failed to appreciate that the applicant does not know their whereabouts, nor even if they are still alive. Further, the officer concluded that the applicant had little or no facility in Canada's official languages when there was no evidence before her that this was the case. Because the applicant used an interpreter, the applicant submits that the officer assumed he could not speak English, a conclusion not warranted and about which he was not questioned at the interview. Finally, the officer concluded that the applicant's wife was concerned about being alone, based on a single letter from her. The IO relied on the letter in part and ignored other significant aspects of the letter that reflect the wife's fear of the Sri Lankan Army.
[19] The respondent submits that the IO relied mainly on information from the applicant's failed refugee claim, from the rejected PDRCC class risk assessment or from the applicant himself in regard to his h & c application. The respondent submits that the IO gave the h & c application full and fair consideration to all the relevant issues raised by the applicant, and rendered a reasonable decision.
[20] In my opinion the officer's reference to Mr. Arumugam's brothers in Sri Lanka was based on the evidence from the applicant himself in his refugee claim. It is not without a basis in the evidence properly before the IO. The same may be said of the officer's reference, in her notes, to the applicant's wife. Both references were made, in my reading of the IO's notes, as a basis for assessing close family ties of the applicant. In relation to his h & c application, letters from five cousins and an aunt living in Canada were submitted in support, but the officer's assessment of "no close family ties - cousins record. Wife now back in village and 2 young children ages 9 & 11 yrs in Sri Lanka - Has also 2 brothers in Sri Lanka" does reflect the evidence originating from the applicant about the location of members of his immediate family. Similarly, the comment about the wife's concern with being alone does reflect comment in the letter provided by the applicant with his h & c application.
[21] The officer's assessment of Mr. Arumugam's ability in official languages does appear to have no evidentiary foundation for the applicant, while heard with assistance of a translator, as was his right, was not asked about his ability in either of Canada's official languages. That assessment, without evidentiary foundation, was made in error. Yet it cannot be said that the officer's decision was based upon this factor to an extent that the Court should intervene.
The standard of review
[22] The Supreme Court of Canada in Baker v. Canada (MCI), [1999] 2 S.C.R. 817, held that the standard of review for h & c decisions is reasonableness simpliciter. However, the Court acknowledged that the Minister, or her delegate, should be entitled to considerable deference in the exercise of discretion under the Act. Writing for the Court Madam Justice L'Heureux-Dubé commented:
...
[_62] These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
(emphasis added)
[23] In I.G. v. M.C.I. (1999), 177 F.T.R. 76 at para. 39 (T.D.), Mr. Justice Lemieux noted:
Not only does Baker [infra] require a more focussed approach by immigration officers, it places a new and more "hands-on" responsibility by a reviewing judge. A reviewing judge must take a "hard look" at the H & C decision, must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination in the evidentiary foundation.
[24] Issues of fairness in the process followed by the decision-maker do not ordinarily raise questions about the standard of review. Yet where those issues concern findings of fact made by the decision-maker an element of reasonableness of the decision does arise when the Court must assess the significance for the decision of the facts found without fair opportunity for the party affected to comment, or where the facts have no basis in the evidence. That element of reasonableness is expressed in one way in ss. 18.1(4)(9d) of the Federal Court Act, R.S.C. 1985, c.F-7 as amended, which provides that the Court may grant relief where a decision is based on errors of fact made in a perverse or capricious manner or without regard to the material before the decision-maker. Assessing the basis for the questioned decision may, as in this case, require the Court on review to determine the significance for the decision of the erroneous findings of fact.
[25] In this case the failure to provide opportunity for the applicant to respond to the IO's concern about his referral to welfare, and her assessment of limited ability of the applicant in Canada's official languages do not, in my opinion, warrant setting aside the decision. Those facts were not significant for the decision of the officer. Had they been determined to the contrary, that is, that there was no referral to welfare in 1999 and that Mr. Arumugam was proficient in both official languages, the IO's decision would not have changed. It was based primarily on other evidence and factors.
[26] In my opinion, the specific errors of fact referred to by the officer relate primarily to the applicant's adjustment to life in Canada, a matter that is only marginally relevant in assessing humanitarian or compassionate circumstances in his case.
[27] In sum, the conclusions here objected to are not significant factors upon which the decision in question was based. The general reasonableness of the decision is not affected, in my opinion, by any unfairness or error of the IO in reaching these particular conclusions. In this case it is clear the officer relied primarily on the CRDD decision concerning the applicant's refugee claim. In her notes the officer includes the following comments:
subject is a failed Refugee claimant -
noted IRB didn't find evidence credible
concerning subjects time in the North -
IRB also found subj story not to be trustworthy.
Further reliance was placed on the negative PDRCC risk decision in April 1999 which in effect found no serious risk would arise for the applicant if he were to return to Sri Lanka. Finally, reliance was placed on the lack of close family ties in Canada, with his immediate family in Sri Lanka.
[28] On the basis of the prior assessments of the applicant's situation and considering his application and submissions for h & c consideration, the IO was "not satisfied that the subject would suffer undue hardship if he were required to leave Canada and return to his country".
Conclusion
[29] Considering the conclusion reached by the immigration officer on the basis of the evidence provided, I am not persuaded that the decision to refuse the h & c application was unreasonable.
[30] An Order goes dismissing the application.
[31] No question was proposed for certification pursuant to s-s. 83(1) of the Immigration Act and no question is certified.
(signed) W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
September 4, 2001.
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