Docket: IMM-4646-11
Citation: 2012 FC 117
BETWEEN:
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ALLAMA BHUIYAN
FARRAH FAHMIDA IQBAL
ISHMAM IQBAL
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Applicants
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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
HARRINGTON J.
[1]
The
Bhuiyan family, from Bangladesh, unsuccessfully applied for refuge status in Canada. Thereafter,
their request for permission to apply for permanent resident status from within
Canada, which is
the exception rather than the rule, was rejected on 14 April 2011. Afterwards,
on 24 June 2011, they submitted further information and requested that the
matter be reopened. The senior immigration officer charged with the matter
refused to do so. This is the judicial review of that decision.
ISSUES
[2]
For
some time, there was a division within this Court as to whether immigration
officers were barred from revisiting a matter after they had made their
decision, because of the doctrine of functus officio. However, the Court
of Appeal held in Canada (Minister of Citizenship and Immigration) v
Kurukkal, 2010 FCA 230, [2010] FCJ No 1159 (QL), that that principle does
not strictly apply in non-adjudicative administrative proceedings, and that the
officer in appropriate circumstances has discretion to reconsider his or her
decision.
[3]
Therefore,
the first issue in this case is whether or not the senior immigration officer
was aware she had discretion to reconsider her decision. If so, the second
issue is whether or not that discretion was exercised. Finally, on what standard
should the refusal be reviewed by this Court?
BACKGROUND
[4]
The
applicants came to Canada in August 2003 to seek refugee status. Their
claim was dismissed by the Immigration and Refugee Board of Canada in June
2004. Leave to judicially review that decision was denied by this Court.
Subsequently, they applied for a pre-removal risk assessment. A negative
decision was handed down in August 2008, and leave to judicially review that
decision was also dismissed.
[5]
They
also sought permission to apply for permanent resident status from within Canada based on
humanitarian and compassionate considerations. That application was refused in
April 2008. However, their circumstances may have changed and so they submitted
a second application in July 2009, an application which was dismissed, as
aforesaid, in April 2011.
[6]
A
number of issues had been raised in the application. Of relevance to the
request to reopen is the health of Ms. Farrah Iqbal, who had been involved in a
serious automobile accident. She had suffered injuries, had ongoing pain and
was undergoing medical care.
[7]
In
her original decision dismissing the H&C application, the officer noted
that Ms. Iqbal was receiving physiotherapy treatment for backlash following her
motor vehicle accident; “however, submissions indicate that she has “improved
considerably”.” There was no evidence to support the proposition that she was
medically unable to travel or would not be able to receive similar treatment in
Bangladesh.
[8]
It
is the position of the applicants that in their request that the H&C
application be reopened, they provided material which indicated that Ms. Farrah
Iqbal’s situation is now deteriorating, and that she would not receive adequate
medical treatment in Bangladesh.
THE DECISION UNDER
REVIEW
[9]
On
29 June 2011, the senior immigration officer wrote as follows:
Dear Mr. Bhuiyan and Ms. Iqbal:
This letter is in response to the receipt
of additional submissions dated 24 June 2011, pertaining to your
Humanitarian and Compassionate (H&C) application for permanent residence in
Canada.
Your H&C application was considered
on its substantive merits and has been refused. You were provided with the
decision in person on 14 April 2011, thereby fully concluding your
application; the additional submissions will not be considered.
Should you have different or additional
information, you may wish to submit a new H&C application for permanent
residence in Canada, including fees to the Case
Processing Centre in Vegreville, Alberta.
DID
THE SENIOR IMMIGRATION OFFICER KNOW SHE HAD DISCRETION TO REOPEN?
[10]
It
might be inferred from the refusal letter, if taken alone, that the officer was
not aware she had discretion to reopen. She states the matter was concluded and
additional submissions would not be considered. However, the officer is taken
to have been aware of Inland Processing Manual IP5: Immigrant Applications
in Canada made on
Humanitarian and Compassionate Grounds. Annex 12 is a form
letter which may be used when a case is not reopened. It reads:
Annex 12 – Submissions received after
refusal – Case not reopened
This letter is in response to the receipt
of additional submissions dated (date), pertaining to your Humanitarian and
Compassionate (H&C) application for permanent residence in Canada.
Your H&C application was considered
on its substantive merits and has been refused. You were provided with the
decision in person on (date), therefore fully concluding your application. After
considering the additional submissions, the initial decision to refuse your
H&C application remains unchanged.
Should you have different or additional
information, you may wish to submit a new H&C application for permanent
residence in Canada, including fees to the Case
Processing Centre in Vegreville,
Alberta.
[My emphasis.]
[11]
Given
the similarity of language, it is reasonable to infer that the officer was
aware she had discretion.
HOW WAS THE DISCRETION
EXERCISED?
[12]
Given
that the following words “after considering the additional submissions, the
initial decision to refuse your H&C application remains unchanged” did not
appear in the refusal letter, it is reasonable to infer that the officer did
not consider the additional submissions.
[13]
Although
a contract case, the decision of Lord Cross of Chelsea, in Mottram
v Sunley, [1975] 2 Lloyd’s Rep. 197 (HL), is instructive. He said at page
209:
When the parties use a printed form and
delete parts of it one can, in my opinion, pay regard to what has been deleted
as part of the surrounding circumstances in the light of which one must
construe what they have chosen to leave in.
[14]
As
to the distinction between inference and conjecture, as Mr. Justice MacGuigan
wrote in Minister of Employment and Immigration v
Satiacum (1989), 99 NR 171, 16 ACWS (3d)
191 (FCA), at paragraphs 34 and 35:
The common law has long recognized the difference between
reasonable inference and pure conjecture. Lord Macmillan put the distinction
this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, at
45, 144 L.T. 194, at 202 (H.L.):
“The dividing line between conjecture and inference is often a
very difficult one to draw. A conjecture may be plausible but it is of no legal
value, for its essence is that it is a mere guess. An inference in the legal
sense, on the other hand, is a deduction from the evidence, and if it is a
reasonable deduction it may have the validity of legal proof. The attribution
of an occurrence to a cause is, I take it, always a matter of inference.”
In R. v. Fuller (1971), 1 N.R. 112 at 114, Hall J.A. held
for the Manitoba Court of Appeal that “[t]he
tribunal of fact cannot resort to speculative and conjectural conclusions.”
Subsequently a unanimous Supreme Court of Canada expressed itself as in
complete agreement with his reasons: [1975] 2 S.C.R. 121 at 123, 1 N.R. 110 at
112.
The Court of Appeal recently turned its
mind to this issue again in Attaran v Canada (Minister of
Foreign Affairs), 2011 FCA 182, 420 NR 315, at paragraphs 32 and following.
In my opinion, in this case we are in the realm of inference, not speculation.
[15]
Even
if the boilerplate remark that the additional material had been considered had
been inserted in the refusal letter, it would not necessarily follow that
reconsideration actually took place. As stated in Court of Appeal in Attaran,
above, at paragraph 36:
Conversely, just as the absence of express evidence about the
exercise of discretion is not determinative, the existence of a statement in a
record that a discretion was exercised will not necessarily be determinative.
To find such a statement to be conclusive of the inquiry would be to elevate
form over substance, and encourage the recital of boilerplate statements in the
record of the decision-maker. […]
WHAT IS THE STANDARD OF
REVIEW?
[16]
The
decision not to consider the additional submissions must be subject to review
on the standard of reasonableness. Discretion is not unfettered. It cannot
operate without reference to the statute or regulation which empowers the
decision-maker.
[17]
As
stated by Mr. Justice Rand in Roncarelli v Duplessis, [1959] S.C.R. 121, at
page 140:
[…] there is no such thing as absolute and untrammelled
“discretion”, that is that action can be taken on any ground or for any reason
that can be suggested to the mind of the administrator; no legislative Act can,
without express language, be taken to contemplate an unlimited arbitrary power
exercisable for any purpose, however capricious or irrelevant, regardless of
the nature or purpose of the statute.
[18]
In C.U.P.E. v Ontario (Minister of Labour),
2003 SCC 29, [2003] 1 S.C.R. 539, at paragraph 91, Mr. Justice Binnie seized
upon another passage from that same set of reasons.
The Minister does not claim an absolute and
untrammelled discretion. He recognizes, as Rand J. stated more than
40 years ago in Roncarelli v. Duplessis, [1959] S.C.R. 121, at
p. 140, that “there is always a perspective within which a statute is
intended to operate”.
[19]
As recently noted by the Supreme Court in Catalyst
Paper Corp. v North Cowichan (District), 2012 SCC 2, [2012] SCJ No 2 (QL),
the reasonableness standard of review is even applicable to the review of a
municipal taxation by-law. As to what that standard requires, in speaking for
the Court, Chief Justice McLachlin stated at paragraph 18 of Catalyst:
The
answer lies in Dunsmuir’s recognition that reasonableness must be
assessed in the context of the particular type of decision making involved and
all relevant factors. It is an essentially contextual inquiry: Dunsmuir,
at para. 64. As stated in Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at
para. 59, per Binnie J., “[r]easonableness is a single standard that
takes its colour from the context.” The fundamental question is the scope
of decision-making power conferred on the decision-maker by the governing
legislation. The scope of a body’s decision-making power is determined by
the type of case at hand. For this reason, it is useful to look at how
courts have approached this type of decision in the past: Dunsmuir,
at paras. 54 and 57. To put it in terms of this case, we should ask how
courts reviewing municipal bylaws pre-Dunsmuir have proceeded.
This approach does not contradict the fact that the ultimate question is
whether the decision falls within a range of reasonable outcomes. It
simply recognizes that reasonableness depends on the context.
WAS THE
DECISION REASONABLE?
[20]
In canvassing this point during argument, the
parties agreed that if the decision-maker had said she was too busy, or did not
feel like looking at the material, that decision would be unreasonable. Indeed,
to use the language of section 18.1(4)(d) of the Federal Courts Act, such
a decision would be perverse or capricious. To complete that paragraph, this
Court may grant judicial review on the grounds that the decision was made
“without regard for the material before it”.
[21]
In first instance in Kurukkal v Canada (Minister of
Citizenship and Immigration), 2009 FC 695, [2010] 3 FCR 195, Madam
Justice Mactavish was dealing with an H&C application. The officer gave Mr.
Kurukkal a delay in which to provide proof that his wife had died. As no
documentation was provided within that delay, the application was denied.
Shortly thereafter, Mr. Kurukkal came up with his wife’s death certificate
together with an explanation as to why there were delays in obtaining it. In
addition to holding that the doctrine of functus officio did not apply,
she remitted the matter to a different immigration officer for
re-determination. In particular, the officer was directed to consider the said
death certificate and to decide what, if any, weight should be attributed to
it.
[22]
The
Court of Appeal agreed that the decision maker was not functus officio,
but it disagreed with the direction that the immigration officer had to
consider the new evidence. Madam Justice Layden-Stevenson stated, at paragraph
5:
The judge directed the immigration officer to consider the new
evidence and to decide what, if any, weight should be attributed to it.
In our view, that direction was improper. While the judge correctly concluded
that the principle of functus officio does not bar a reconsideration of
the negative section 25 determination, the immigration officer’s obligation, at
this stage, is to consider, taking into account all relevant circumstances,
whether to exercise the discretion to reconsider.
[23]
Of course, we do not know what the immigration
officer did, or did not do, once the matter was referred back.
[24]
The Minister submits that as long as bad faith
is not involved, the decision maker need not consider the additional material
submitted. Reliance was placed on Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 (QL), a decision of Mr. Justice
Mainville, as he then was; Trivedi v Canada (Minister of Citizenship and
Immigration), 2010 FC 422, [2010] FCJ No 486 (QL), a decision of Mr. Justice
Crampton, as he then was; and Noor v Canada (Minister of Citizenship and
Immigration), 2011 FC 308, [2011] FCJ No 388 (QL), a decision of Mr.
Justice Scott. I consider this reliance misplaced.
[25]
All three cases dealt with visa applications.
The instructions made available to applicants make it perfectly clear that they
have to get it right the first time. There is no obligation on visa officers to
point out that documents are missing. For instance, in Trivedi, the
applicant was on notice: “We will not request further information to support
your application. You must therefore submit complete and detailed information
and documents at this time.”
[26]
Thus, it was not unreasonable in those three
cases for the visa officers to refuse to reconsider. However, an H&C
application is an ongoing process. In fact, the application had been updated
more than once before the decision was rendered denying permission to apply for
permanent residency from within Canada.
[27]
To use the words of the Court of Appeal in Kurukkal,
above, how can an officer “[take] into account all relevant circumstances”
without even a preliminary vetting of the further documentation submitted? In
my opinion, it follows that the decision was unreasonable, and must be sent
back to another immigration officer for re-determination.
CERTIFIED
QUESTION
[28]
Counsel for the Minister shall have one (1)
week herefrom to propose a serious question of general importance to certify.
If so, the applicant shall have one week thereafter to reply.
“Sean Harrington”
Ottawa,
Ontario
January
30, 2012
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