Date: 20021003
Docket: IMM-2914-01
Neutral citation: 2002 FCT 1038
BETWEEN:
WANNAKU RALALAGE AJITH LAKWIJAYA JINADASA
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of Immigration Officer Brenda Lloyd, dated June 1, 2001, denying Mr. Jinadasa's application under subsection 114(2) to remain in Canada for compassionate or humanitarian considerations ("H & C grounds").
FACTS
-
- The applicant, a Sinhalese citizen of Sri Lanka, made a refugee claim in May 1996. The applicant's refugee claim was refused and an application for judicial review was dismissed by this Court.
[3] On February 12, 1999 the applicant filed an application to waive the requirements of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") on H & C grounds. He based his claim on his establishment in Canada, the potential hardship he faced if he returned to Sri Lanka and the presence of his only brother in Canada. After the applicant attended an interview with immigration officer Lloyd on September 14, 1999 his file was forwarded to a post determination claim officer ("PDCO") to determine whether the applicant would be at risk if returned to Sri Lanka.
[4] The PDCO rendered his risk opinion on November 21, 2000, finding the applicant would not be at risk if returned to Sri Lanka. The PDCO gave the applicant an opportunity to comment on errors and omissions regarding the negative risk opinion and the applicant's counsel submitted comments with supporting documentation from current newspapers showing a dramatic increase in violence and terror toward opponents of the government. After reviewing the additional submissions, the PDCO declined to alter his opinion and passed both his risk opinion and the applicant's responses to the immigration officer.
[5] The applicant was informed on June 4, 2001 that his application had been refused. He seeks to have that determination set aside by way of judicial review.
ISSUES
[6] Counsel for the applicant raised seven issues:
(i) whether the immigration officer erred in law in making an unreasonable decision that insufficient H & C grounds existed;
(ii) whether the immigration officer took into account irrelevant considerations in reaching her decision;
(iii) whether the immigration officer made an unreasonable decision by exclusively relying on the risk opinion prepared by the PDCO;
(iv) whether the officer erred in applying a reasonableness standard in reviewing the PDCO's opinion;
(v) whether the immigration officer erred in determining that the applicant would not face a risk on return to Sri Lanka;
(vi) whether the immigration officer erred in law in breaching the duty of fairness by unduly delaying the processing of this application; and
(vii) whether the immigration officer improperly fettered her discretion by applying a restrictive interpretation of H & C grounds.
Six of the seven issues are dismissed. The fifth issue is allowed.
RELEVANT LEGISLATION
[7] The relevant provision to a determination on H & C grounds is subsection 114(2) of the Act, which reads:
114(2)Exemption from regulations
(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
114(2) Idem
(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
STANDARD OF REVIEW
[8] The appropriate standard when reviewing the decision of an immigration officer on an application based on H & C grounds is reasonableness simpliciter, as set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857-858. The Court will not set aside a discretionary decision of an immigration officer, nor substitute its decision for an officer's, unless that decision was unreasonable or clearly wrong.
ANALYSIS
Issue No. 1
Did the immigration officer err in law in making an unreasonable decision that insufficient H & C grounds existed?
[9] The applicant submits the immigration officer erred because she conducted a "disjunctive analysis" and examined each factor supporting the application in isolation from the others. The Court finds there is no basis for the applicant's argument on this point. The officer examined the relevant evidence put before her and engaged in the process of weighing that evidence. The officer listed the factors supportive of the application and those that pointed to a refusal in her decision, and concluded:
On reviewing all the information and documentation presented I am not satisfied that Mr. Jinadasa's personal circumstances are such that the hardship of having to obtain an immigrant visa from outside Canada in the normal matter would be unusual, undeserved or disproportionate.
I am not satisfied that there exists sufficient humanitarian and compassionate grounds to warrant exception of Canada's immigration laws. As such, Mr. Jinadasa's request for waiver of subsection 9(1) of Canada's Immigration Act is refused.
[10] Accordingly, there is no basis to disturb the officer's finding that insufficient H & C grounds existed.
Issue No. 2
Did the immigration officer err in law by taking into account irrelevant considerations in reaching her decision?
[11] In his submissions to the immigration officer, the applicant argued that the presence of his brother in Canada was a factor that supported his application. The immigration officer dealt with this by stating:
I have considered Mr. Jinadasa's ties to Canada and am satisfied that his brother resides here and that they are close. However, it is noted that Mr. Jinadasa has strong ties to Sri Lanka that include his spouse, child and parents, which is given significant weight.
[12] The applicant submits the immigration officer's consideration of his family ties to Sri Lanka was irrelevant. The applicant directed the Court to Mohamed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90. The applicant in Mohamed sought to have her mother accepted into Canada on H & C grounds. The applicant's claim was based on the Act's goal of family reunification. The immigration officer refused the application and stated that allowing it would not have furthered family reunification because the applicant's brother remained in India. The Court held the immigration officer erred by basing his decision on an irrelevant consideration.
[13] The Mohamed decision does not mean that the presence of family ties in one's country of origin is an irrelevant consideration in all H & C cases. Support for this position can be found in the Supreme Court of Canada's decision in Baker, supra. at page 862, paragraph 72:
. . . immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections.
The presence of family members in an applicant's country of origin is a relevant factor when determining whether an applicant would suffer hardship by being sent to a place where they no longer have connections. The comments of the officer regarding the applicant's family ties to Sri Lanka are properly viewed in this light. Therefore, the immigration officer did not err by taking into account the presence of the applicant's family ties to Sri Lanka.
Issue No. 3
Did the immigration officer made an unreasonable decision by exclusively relying on the risk opinion prepared by the PDCO?
[14] The applicant submits that the officer erred by directing the applicant's comments and submissions on the risk opinion back to the same PDCO rather than receiving and evaluating them herself.
[15] In Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407, [2000] F.C.J. No. 854 (QL), the Federal Court of Appeal held that the immigration officer had improperly surrendered her discretion to the PDCO by merely "rubber-stamping" the PDCO's risk assessment report. The Court stated at paragraph 36 that an applicant must be able to direct a response to the immigration officer because:
. . . the decisive weight often likely to be given by immigration officers to risk assessment reports from PDCOs is a reason to "level the playing field" by permitting subsection 114(2) applicants to respond to them. Otherwise, the influence on the decision maker of the submissions that they made in support of their application is likely to be greatly diminished by the report.
[16] Even though the applicant did not sent his responses directly to the immigration officer, the applicant was given ample opportunity to draw the immigration officer's attention to any errors or omissions in the PDCO's report. After the PDCO received and reviewed the applicant's response to the initial negative risk opinion, he passed both his risk opinion and the applicant's rebuttal to the
officer to review so she could make the final decision. Ms. Lloyd stated this in her affidavit and it is confirmed by the PDCO's memorandum to her dated December 7, 2000. The applicant's counsel acknowledged that the immigration officer had received the applicant's rebuttal in a letter to the immigration officer dated March 2, 2001:
You have before you the decision of [the PDCO] Mr. Allen and the rebuttal from our office with regard to risk. You are not bound by the decision of Mr. Allen in any way and therefore, have the ability to consider both opposing viewpoints.
[17] The applicant argued that the officer was not open to receiving the applicant's response and as evidence of this highlighted the officer's statements in a letter dated January 8, 2001: "I have received and reviewed the risk opinion and I am not seeking information to revisit the risk; you have had the opportunity to rebut the officer conducting the risk opinion." The Court does not agree with the applicant's argument. The immigration officer had fulfilled her obligation to allow the applicant to respond to the PDCO's risk assessment. She was not obligated to give the applicant an opportunity to re-argue his case, see Haghighi at paragraph 37, and did not err by indicating this in her letter.
Issue No. 4
Did the officer err in applying a reasonableness standard in reviewing the PDCO's opinion?
[18] The applicant submits that the immigration officer erred by stating that she was satisfied that the PDCO's risk opinion was "reasonable". The applicant submits that this indicates the officer fettered her discretion as "reasonableness" was not the appropriate standard.
[19] The applicant's claim on this point is overly legal. While it is true that the officer referred to the PDCO's report as "reasonable", it is evident that she was using "reasonable" simply as means of saying she accepted and agreed with the PDCO's finding. I do not think the officer intended to apply the term "reasonable" in the manner used when dealing with administrative law.
Issue No. 5
Did the immigration officer err determining that the applicant would not face a risk on return to Sri Lanka?
[20] The applicant submits that the PDCO officer erred by simply adopting the reasoning of the Convention Refugee Determination Division's ("CRDD") decision on the applicant's refugee claim. The applicant contends that the PDCO's reliance on the CRDD's decision meant that issue of risk to the applicant if returned to Sri Lanka was not truly reassessed, which undermines the purpose of an application on H & C grounds.
[21] The Federal Court of Appeal in Longia v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 288 held that facts may change or a political event may occur which can lead to a conclusion that a fear found by the CRDD not to be well-founded, has now become reasonable. The remedy is not a new hearing before the CRDD, but an application on H & C grounds under the Act. This is the situation faced by the applicant.
[22] The risk assessments dated November 21, 2000 and December 7, 2000 relied upon by the visa officer essentially repeat the findings of the CRDD in its decision dated October 10, 1997. These risk assessments do not mention or analyse the new documentary evidence submitted by the applicant.
[23] The new documentary evidence included newspaper articles reporting a "bone-chilling" escalation in violence and terror directed against opponents of the Sri Lankan government. The newspaper reports refer to:
(i) the murder of a newspaper editor at his home;
(ii) a new terror campaign against activists of opposing political parties, artists, media personalities and intellectuals;
(iii) the assassination on January 4, 2000 of a prominent Tamil politician and human rights lawyer; and,
(iv) death threats against a prominent Sri Lankan, who migrated to London following accusations that he had linked with the Tamil Tigers, but returned to Sri Lanka in 1999.
[24] In its decision, the CRDD recognized that the applicant is a high profile Sri Lankan known to oppose the government, and to sympathise and support the Tamil Tigers. Therefore, the new documentary evidence he presented was important to his claim. As this evidence was not mentioned or analysed in the risk assessment reports or in the immigration officer's decision, the Court is entitled to infer that the immigration officer made an erroneous finding of fact "without regard to the evidence". Mr. Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) at paragraph 17, stated:
However the more important the evidence that is not mentioned specifically and analysed 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 [...] 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.
While the immigration officer was not required to refer to every piece of evidence in her decision, as per Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.), [1992] F.C.J. No. 946 (QL), the immigration officer should have addressed the new documentary evidence presented by the applicant which contradicted the currency of the 1997 CRDD decision.
[25] In Buri v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1358 at paragraph 22, I held that the decision-maker is under an obligation to explain why the decision-maker discounted critical contradictory evidence presented by an applicant. See also Iqbal v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 568 (T.D.) (QL), Orgona v. Canada (Minister of Citizenship and Immigration), 2001 FCT 346, Vaithilingam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 401, Piel v. Canada (Minister of Citizenship and Immigration), 2001 FCT 562, and Polgari v. Canada (Minister of Citizenship and Immigration), 2001 FCT 626. The reasoning in these cases is applicable to the case at bar.
[26] The immigration officer made an erroneous finding of fact because she failed to consider or disregarded relevant evidence, viz. the current newspaper evidence in assessing the risk of danger to the applicant if he returned to Sri Lanka. The officer also erred by adopting the CRDD's four year old assessment of risk, and by failing to conduct an independent, up-to-date risk assessment.
Issue No. 6
Did the immigration officer err in law in breaching the duty of fairness by unduly delaying the processing of this application?
[27] The applicant argues the immigration officer breached the duty of fairness by unduly delaying the processing of his application. The respondent contends that the alleged delay could have been remedied by the applicant if he had sought an order of mandamus.
[28] I agree with the position of the respondent. The issue of delay in a case where an applicant is seeking a benefit was dealt with in Gill v. Canada (Minister of Employment and Immigration), [1984] 2 F.C. 1025 (C.A.), where Mr. Justice Hugessen said at pages1028-29:
It may well be that the recently discovered administrative duty to act fairly encompasses a duty not unreasonably to delay to act; or, put positively, that the procedural duty to act fairly includes a duty to proceed within a reasonable time. It does not by any means follow, however, that the breach of such a duty would give rise to the setting aside of the tardy action when it is finally taken. The remedy surely is to compel timely action rather than to annul one that, though untimely, may otherwise be correct.
[29] Furthermore, the applicant's claim must be accompanied by some evidence that an applicant has suffered some prejudice or unfairness as a result of the delay, see Akthar v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 32 (C.A.). As the Court has not been presented with any evidence of prejudice or unfairness to the applicant as a result of the delay, I find for the respondent on this issue.
Issue No. 7
Did the immigration officer err in law by improperly fettering her discretion by applying an overly restrictive interpretation of H & C grounds?
[30] The applicant submits the immigration officer fettered her discretion by considering the absence of unusual, undeserved or disproportionate hardship to be determinative of the applicant's claim.
[31] Based on the immigration officer's decision and her cross-examination, the Court finds she considered the presence of unusual, undeserved or disproportionate hardship to be a determinative factor requiring a positive finding on H & C grounds. However, the immigration officer's answers during cross-examination demonstrate that she did not view the absence of unusual, undeserved or disproportionate hardship as requiring a negative finding on H & C grounds. This is supported by her consideration of factors other than hardship in her decision, notably the applicant's degree of establishment and the presence of his brother in Canada, despite finding the applicant would not face unusual, undeserved or disproportionate hardship if returned to Sri Lanka. Accordingly, the officer did not apply an overly restrictive approach to subsection 114(2).
DISPOSITION
[32] For these reasons, this application for judicial review is allowed, the decision of the immigration officer is set aside and Mr. Jinadasa's H & C application shall be referred to another immigration officer and another Post Determination Claim Officer for an independent, up-to-date risk assessment.
(signed) Michael A. Kelen _________________________
JUDGE
OTTAWA, ONTARIO
October 3, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2914-01
STYLE OF CAUSE: WANNAKURALALAGE AJITH LAKWIJAYA JINADASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, SEPTEMBER 24, 2002
REASONS FOR ORDER BY: THE HONOURABLE MR. JUSTICE KELEN
DATED: THURSDAY, OCTOBER 3, 2002
APPEARANCES BY: Ms. Barbara Jackman
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Ms. Barbara Jackman
Barrister & Solicitor
596 St. Claire West, Unit 3
Toronto, Ontario
M6C 1A6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20021003
Docket: IMM-2914-01
BETWEEN:
WANNAKU RALALAGE AJITH LAKWIJAYA JINADASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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