Date: 20000906
Docket: IMM-4139-99
Between :
LOULE KAYIEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of a decision made by an immigration officer at Citizenship and Immigration Canada, Vegreville, Alberta, on August 3, 1999 (confirmed on August 24, 1999), in which the applicant's application for permanent residence as a member of the Deferred Removal Orders Class ("DROC") was refused.
[2] Following many previous requests, the applicant was again asked by letter dated June 30, 1999 to provide on or before July 30, 1999, information regarding her work history, a death or divorce certificate of her spouse, proof of six months legal employment as well as a copy of a passport. The letter noted that she had not presented evidence that she was "in possession of a passport, identity or travel document" as required by section 11.401(b) of the Immigration Regulations, 1978.
[3] Citizenship and Immigration Canada (the Department) wrote to the applicant again on July 12, 1999 requesting that she provide a divorce or death certificate of her spouse as well as a passport.
[4] By letter dated July 29, 1999, counsel for the applicant again wrote to the Case Processing Centre concerning the inability of the applicant to obtain a passport. Counsel enclosed with the letter a document from the U.S. Department of State entitled Human Rights Practices for 1998 Report: Somalia Country Report. This letter was sent by ordinary mail, as the fax number was not operational at that time and counsel for the applicant was not able to obtain the new one from Canada Immigration telecentre.
[5] By letter dated August 3, 1999, an immigration officer at the Case Processing Centre refused the applicant's DROC application. In the letter, the immigration officer stated that the applicant had "not presented evidence that she is in possession of a passport, identity or travel document as required in the Immigration Regulation 11.401(b)".
[6] The immigration officer again wrote to the applicant on August 24, 1999. In the letter, the immigration officer referred to the July 29, 1999 letter from counsel and stated that "[a]ll information submitted by you and your representative was taken into consideration in arriving at a decision on your application under the Deferred Removal Orders Class".
[7] The immigration officer maintained the original refusal.
[8] The applicant submits that the immigration officer breached the duty of fairness owed to her in making a decision prior to the deadline by which material could be submitted and also that the immigration officer erred in ignoring relevant evidence with respect to her ability to obtain a passport, identity or travel documents from Somalia.
[9] With respect to the first argument, the Department's letter dated June 30, 1999 clearly states:
| You have until 30 July 1999 to send new information, not previously on your immigration file. . . . |
[10] The Tribunal Record shows that the July 29, 1999 submissions were received in the Case Processing Centre Mailroom on August 3, 1999, the day of the decision. However, it can reasonably be inferred from the August 24, 1999 letter that the immigration officer did not consider these representations, since he writes:
| This is in response to the letter dated 29 July 1999 submitted by West Toronto Community Legal Services on your behalf. |
| All information submitted by you and your representative was taken into consideration in arriving at a decision on your application under the Deferred Removal Orders Class. |
[11] The Supreme Court of Canada explained in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at page 837:
| 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. |
[12] The immigration officer indicated in the "Work in Process - Remarks":
| 24AUG99. LETTER REC'D FROM WEST TORONTO COMMUNITY LEGAL SERVICES DATED 29JU99 REQUESTING RECONSIDERATION AND ADVISING THAT SPOUSE - "TO THE BEST OF HER KNOWLEDGE, WAS BORN IN CANADA...". ALSO SUBMITTING A COPY OF THE LETTER DATED 21JUN99 RESPONDING TO 25FEB99 LETTER FROM OUR OFFICE STATING FINGERPRINTS HAD ALREADY BEEN SENT TO OUR OFFICE (NOT AN ISSUE IN THE REFUSAL) AND ADVISING OF THE PLACE AND DATE OF BIRTH OF SPOUSE. ALSO ADVISING THAT SHE IS NOT IN POSSESSION OF A PASSPORT, AND THAT SHE HAS NEVER WORKED OUT OF THE HOME FROM MARCH 95 TO PRESENT; |
| THE INFORMATION CONTAINED IN THESE TWO LETTERS DOES NOT CHANGE THE DECISION MADE ON 03 AUGUST 1999. |
| THE APPLICANT DOES NOT MEET THE REQUIREMENTS SET FORTH IN THE LETTER OF THAT DATE. |
[13] Although the immigration officer omitted to consider the submissions on August 3, 1999, he reconsidered them on August 24, 1999 and in doing so did not breach, in my opinion, the duty of fairness.
[14] With respect to the applicant's second argument, it appears from the immigration officer's letter dated August 24, 1999 that the officer did review the additional material included in the July 29, 1999 letter from counsel for the applicant. Part of that letter also included a suggestion as to what further evidence the applicant might provide to satisfy the officer. The onus of satisfying the regulatory requirements is on the applicant. The latter's suggestion that further evidence might be forthcoming indicates that the applicant had not yet discharged that onus. As the applicant made such a suggestion in a letter dated two days before the deadline for filing evidence, which letter was received after the deadline, I am of the view that the officer has not erred in not waiting for further evidence to be filed.
[15] In the circumstances, the applicant has not demonstrated that the immigration officer committed any reviewable error in refusing the application for landing under the DROC regulations and the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
September 6, 2000
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