Date:
19991206
Docket:
IMM-555-99
BETWEEN:
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MALAR NAVARATNAM also
known as MALAR SUMITHIRAN
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Applicant
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-and-
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THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR ORDER
GIBSON, J.:
[1]
These reasons arise out of a decision of an immigration
officer to refuse the applicant's application for an exemption from the
requirements of subsection 9(1) of the Immigration Act
(the "Act") that require the applicant to apply for and obtain
an immigrant visa prior to coming to Canada as a permanent resident. The
decision to deny the applicant's request for exemption on humanitarian and
companionate grounds pursuant to 114(2) of the Act is dated the 28th of
October, 1998 and followed an interview conducted with the applicant and her
husband on the same date.
[2] The applicant is a citizen of Sri Lanka. On the 4th of June, 1995 she
arrived in Canada and claimed refugee status. In July, 1995, the applicant met
a Canadian citizen to whom. Shortly thereafter, they married.
[3] The applicant and her husband were married in a religious ceremony by a
Hindu priest on the 27th of August, 1995. Apparently the marriage was not
properly registered. The applicant and her husband lived together as husband
and wife. On the 9th of April, 1996, their daughter, Jerusha, was born. By
birth, Jerusha is a Canadian Citizen.
[4] The applicant's claim to convention refugee status was denied and a
judicial review application in respect of that decision was dismissed in
November of 1996. The applicant's Post-Determination Refugee Claimants in Canada review was denied in March of 1997.
[5] The applicant's husband had difficulty finding or maintaining work in Toronto. As a result, in February of 1998, he moved to Calgary where he secured employment,
albeit that employment was not of long duration. The applicant and Jerusha
joined their husband and father some four months later.
[6] In July of 1998 the applicant and her husband attended an interview in Calgary with an immigration officer. The interview related to the removal of the applicant
from Canada. It was at that interview that the applicant and her husband were
first advised they were not legally married by reason of their failure to
properly register the marriage. Within a day or two, the applicant and her
husband went through a civil form of marriage. The applicant's husband sought
to sponsor the applicant for landing from within Canada. The result of that
application for landing from within Canada on humanitarian and companionate
grounds is the decision here under review.
[7] The immigration officer’s notes of the interview with the
applicant and her husband regarding the application for landing from within
Canada, at least part of which was held with each of them separately, disclose
significant inconsistencies in the answers to questions regarding the
circumstances of their meeting, the circumstances of their first wedding and
some of the circumstances of their living together. The notes further indicate
that the immigration officer inquired as to whether the applicant and her
husband had children and that he was advised that they had one child. A birth
certificate was produced. The notes indicate that Jerusha remained in Toronto with her mother after the applicant’s husband moved to Calgary to secure employment
and until the applicant and Jerusha joined the applicant’s husband in Calgary.
[8] The
interview notes disclose absolutely no analysis of the written material that
was before the interviewing officer and of the results of the interview. No
affidavit was filed by the immigration officer in this application for judicial
review that might have disclosed the process of analysis by which the decision
to deny landing from within Canada was arrived at.
[9] In Baker
v. Canada (Minister of Citizenship and Immigration)
, the Supreme Court of Canada determined that the standard of review of a
decision such as that here under review is "reasonableness simpliciter".
[10] On the issue of the
duty of fairness, the Court concluded at paragraph 28:
The values underlying the duty of
procedural fairness relate to the principle that the individual or individuals
affected should have the opportunity to present their case fully and fairly,
and have decisions affecting their rights, interests, or privileges made using
a fair, impartial, and open process, appropriate to the statutory,
institutional, and social context of the decision.
[11] After acknowledging
expressed concerns about the desirability of a written reasons requirement at
common law, Madame Justice L'Heureux-Dubé wrote at paragraph 40:
In my view, however, these
concerns can be accommodated by ensuring that any reasons requirement under the
duty of fairness leaves sufficient flexibility to decision-makers by accepting
various types of written explanations for the decision as sufficient.
On the facts before the Court in Baker,
the Court concluded at paragraph 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.
As in Baker, the notes of
the interviewing officer in this matter were eventually provided to the
applicant. However, those notes leave it entirely to inference as to how, and
for what reasons, the interviewing officer reached his decision. The notes consist
of nothing more than a hand-written record of questions and answers. A
subsequent document entitled "Case Summary", also shared, dated the
3rd of February, 1999, provides some analysis. That analysis focuses entirely
on whether or not the marriage between the applicant and her husband was
"...one of substance and likely duration entered into in good faith."
The brief analysis makes no mention whatsoever of the impact of the denial of
the humanitarian and compassionate grounds application on Jerusha.
[12] The Baker decision
focussed extensively on the interests of children such as Jerusha. Madame
Justice L’Heureaux-Dubé concluded in paragraph 65:
In my opinion, the approach taken
to the children's interests shows that this decision was unreasonable in the
sense contemplated in Southam, supra.
Madame Justice L’Heureaux-Dubé
continued in paragraph 65:
The officer was completely
dismissive of the interests of Ms. Baker's children. ...I believe that the
failure to give serious weight and consideration to the interests of the
children constitutes an unreasonable exercise of the discretion conferred by
the section [subsection 114(2) of the Immigration Act], notwithstanding the
important deference that should be given to the decision of the immigration officer.
I am satisfied that here, as in Baker,
on the material before the Court, the immigration officer "...was
completely dismissive of the interests of [Jerusha]".
[13] Madame
Justice L’Heureaux-Dubé continued in paragraph 67:
In my opinion, a reasonable
exercise of the power conferred by the section requires close attention to the
interests and needs of children. Children's rights, and attention to their
interests, are central humanitarian and compassionate values in Canadian
society.
In
paragraph 73, Madame Justice L’Heureux-Dubé concluded:
The above factors
indicate that emphasis on the rights, interests, and needs of children and
special attention to childhood are important values that should be considered
in reasonably interpreting the "humanitarian" and
"compassionate" considerations that guide the exercise of the
discretion. I conclude that because the reasons for this decision do not
indicate that it was made in a manner which was alive, attentive, or sensitive
to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise
of the power conferred by the legislation, and must, therefore, be overturned.
I am satisfied that the same must
be said on the facts of this matter and the same result must follow.
[14] That is not to say that
the decision under review was not reasonably open to the immigration officer,
but rather that, in reaching the decision under review, the failure to
emphasize the rights, interests, and needs of Jerusha and to provide special
attention to childhood in the rationale eventually provided for the decision,
resulted in a decision that, whatever its ultimate merit, was simply not
"...alive, attentive, or sensitive..." to the interests of Jerusha
and "...did not consider [her] as an important factor in making the
decision, ..." with the result that the decision, on the analysis
provided, was simply not reasonably open to the decision maker.
[15] For the forgoing reasons,
this application for judicial review will be allowed, the decision of the
immigration officer under review will be set aside and the matter will be
referred back to the respondent for redetermination.
[16] No question will be
certified. There will be no order as to costs.
"Frederick
E. Gibson"
Ottawa, Ontario
December 6, 1999
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