Date: 20090827
Docket: IMM-2709-08
Citation: 2009 FC 850
BETWEEN:
MELITA
BELLO SABANAL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
ISSUED AUGUST 4, 2009
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for leave and judicial
review of a decision of an immigration officer (the officer), dated June 21,
2007, which determined that Melita Bello Sabanal (the applicant) did not meet
the statutory requirements to apply for permanent residence from within Canada
on humanitarian and compassionate (H&C) grounds.
[2]
The
applicant requests that the application for judicial review be granted and the
decision set aside.
Background
[3]
The
applicant is a citizen of the Philippines. The applicant came to
Canada in March of 1991 as a live-in caregiver but did not qualify for
permanent residence through the live-in caregiver program because she had not
applied within the 36 month period of arrival in Canada.
[4]
The
applicant applied for permanent residence on H&C grounds. The application
was based on the importance of her ties to Canada including a
common-law relationship and two children of that relationship and the hardship
that the applicant would have suffered if she were required to return to Singapore and apply at
a visa office.
[5]
In
May 2003, the applicant received an approval in principle on her inland
application for permanent residence status, subject to an assessment of the
applicant’s admissibility on medical and criminality grounds. The applicant was
issued an open work permit at this time.
[6]
On
March 10, 2004, the applicant was advised that Citizenship and Immigration
Canada were still waiting for overseas police clearance certificates from the
Philippines and Singapore.
[7]
The
applicant “passed” the medical examination for the purposes of the application.
The applicant obtained police clearance documents from the Royal Canadian
Mounted Police and the police authorities in Singapore where she
had also lived. These clearances disclosed no reason that she was inadmissible
for criminality.
[8]
The
applicant was also required to provide documentation from the Philippines since she
had resided there. In July 2006, this police clearance was outstanding; the
last requirement outstanding. By July of 2007, the applicant had not provided
police clearance from the National Bureau of Investigation (NBI) in the Philippines.
Officer’s Reasons
[9]
The
following are the salient matters related to the rejection of the applicant’s
application for permanent residence as stated in a letter to the applicant on
June 21, 2007:
As indicated in our previous letter, a
decision about whether you meet all requirements of the Immigration and Refugee
Protection Act has been made based upon the information on your file. On June
21, 2007, a representative of the Minister of Citizenship and Immigration
reviewed your file and decided to refuse your Application to Remain in Canada as a Permanent Resident. This
refusal was based upon insufficient information to make a proper decision about
whether you met all the admissibility requirements of the Immigration and
Refugee Protection Act due to your lack of response for more information on
this matter. Requests for additional information were mailed to you on October
30 2006, January 16 2007 and March 30 2007.
[10]
Issues
The applicant submitted the
following issues for consideration:
1. The officer made an
erroneous finding of fact, in that the decision maker had ignored evidence and
came to a conclusion that is not consistent with the evidence.
2. Has there been a
breach of natural justice in that the applicant had sent all of the materials
requested and had complied with all requests and requirements, including the
NBI police clearance, but the decision maker failed to consider the materials
before making a decision, and concluded instead that the applicant had not
complied with the request to submit the NBI police clearances?
[11]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review for the officer’s June 21, 2007 decision?
2. Did the officer commit
an error of fact in coming to a conclusion that was not consistent with the
evidence?
3. Did the officer breach
principles of natural justice when he rejected the applicant’s claim because
she had failed to comply with requests to file the required documentation for
permanent residency status?
Applicant’s Submissions
[12]
The
applicant submits that she obtained clearances from the police in the city of Zamboanga in the Philippines and that
these documents were submitted at the immigration office. She alleges that the
immigration office was not satisfied with these documents. Although they raised
more than one concern, the primary concern was that it did not come from the
central Filipino police authorities: the National Bureau of Investigation
(NBI).
[13]
The
applicant alleges that she was delayed in responding because she was confused
about the documentation required. She sent the correct NBI police clearance to
the immigration office in early 2007 which she alleges showed that she had no
criminal record in the Philippines.
[14]
The
applicant alleges that she did not have news for many months after submitting
the documentation in early 2007. She said that in July 2007 her work permit was
renewed leading her to conclude that her application for permanent residence
had been accepted because she understood that unless she was eligible for
permanent residence she would not be entitled to a work permit.
[15]
By
May 2008, the applicant alleges that she became increasingly concerned that she
had not heard from the immigration authorities. The applicant consulted a
lawyer to provide assistance in bringing the matter to a conclusion. The
immigration office responded with a note that the applicant had been rejected.
The applicant alleges that this was the first time that the applicant had been
informed that a decision had been made on her application.
[16]
The
applicant submits that she saw a copy of her file when her lawyer asked for a
copy under a Privacy Act request. Her file contained a copy of a letter
to the applicant dated June 21, 2007 stating that her application had been
rejected on the basis that the NBI police clearances had not been received. She
alleges that she sent the appropriate NBI police clearances well before June
2007.
[17]
The
applicant submits that a document was issued by the NBI in December 2006 for
the purposes of a police clearance. She submits that she retained a “personal
copy” of the document for her records and sent the official copy to the
immigration officer as she had been requested to do. A photocopy of the
“personal copy” as provided to this Court, confirms that the document was
issued in December 2006.
[18]
The
applicant submits that she sent the document to the immigration office in early
2007 and the applicant submits that “there is no good reason” to doubt this
evidence as it is consistent with the following alleged facts:
-
she
obtained the document at the end of 2006
-
she
had previously tried, in good faith, to provide Filipino police clearances but
had simply submitted the wrong ones
-
she
had tried, in good faith, to cooperate with the immigration office and provide
all appropriate documents up to that point
-
the
document confirms that she has no criminal record in the Philippines and she had
no reason to hide it
-
it
was the sole remaining requirement before she obtained her permanent residence
status.
[19]
The
applicant submits that the decision maker overlooked it or the document did not
find its way into the decision maker’s file. The applicant submits that it is
“impossible for the applicant to know or prove exactly where the police
clearance went astray” and whether it was lost in the mail, lost by immigration
authorities given the size of their “operation”, and/or whether it was
misfiled.
Respondent’s Submissions
[20]
The
respondent submits that the applicant’s inland application for permanent
residence status was refused because she failed to provide an appropriate
police clearance certificate from the Philippines despite repeated
attempts to do so. The respondent acknowledges that the applicant wishes to
challenge the refusal because she alleges that she did submit the document but
for some reason it was not received. The respondent submits that the applicant
was treated fairly at all times and the applicant failed to exercise due
diligence in the application process.
[21]
The
respondent submits that the applicant was asked approximately eight times to
provide a police clearance from the Philippines. The last letter sent
to the applicant in March of 2007 was registered and stated that if the
applicant did not provide the requested document; a final decision would be
rendered based on the information that was in her file.
[22]
On
June 21, 2007, the officer reviewed the applicant’s file and refused the
application for non-compliance.
[23]
The
respondent notes the applicant’s submission that the document was sent in January
2007 and crossed in the mail with the letter from immigration authorities. The
respondent submits that even if this were true, the applicant has not provided
any explanation as to why she failed to respond to the registered mail sent to
her in March 2007. No reasonable explanation, such as a change of residence
during this time period or even failure to receive the registered letter was suggested
by the applicant. Finally, the respondent submits that even if she did not
receive the letter, this does not explain why she did not check the status of
her application on-line or make further inquiries following the letter she says
was submitted in early January 2007. Ultimately, the respondent does not find
the applicant’s explanation adequate.
Analysis and Decision
[24]
Issue
1
What is the appropriate
standard of review for the officer’s June 21, 2007 decision?
There are two
different standards to apply in this review. Issue one deals with findings of
fact which are assessed on the standard of reasonableness in accordance with Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190. This Court has consistently
recognized the specialized nature of immigration officers’ decisions tasked
with evaluating evidence in accordance with the Act. The decision under review in
this case was administrative in nature. This further solidifies the need for
deference on questions of fact finding. Khakh v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 904, suggests that factors
such as reliance on irrelevant or extraneous considerations and unlawful
exercise of or fettering of discretion can lead to a finding that an impugned
finding of fact was unreasonable (see Scislowicz v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No.
991).
[25]
Procedural
fairness, in issue two, is subject to the standard of correctness (see Khakh above) because of the
undermining inviolate legal principles involved. As stated in Khakh
above:
In
such cases, the Court must "examine the specific circumstances of the case
and determine whether the [decision maker] in question adhered to the rules of
natural justice and procedural fairness" (Thamotharem
v. Canada (Minister of
Citizenship and Immigration),
2006 FC 16, [2006] 3 F.C.R. 168 at paragraph 15). In the event that a breach is
found, no deference is due and the decision will be set aside (Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392).
[26]
The Court in Dunsmuir above, also noted that the analysis
of the appropriate standard of review need not by undertaken where courts have
arrived at consensus in similar cases.
[27]
Issue
2
Did the officer commit an error
of fact in coming to a conclusion that was not consistent with the evidence?
The applicant
submitted that the officer failed to take into consideration all the evidence
before her and as such breached the requirements of procedural fairness. The
respondent in reply submitted that there is a presumption that the officer took
into account all the evidence before her (see Sidhu v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 741 at paragraph 15).
The respondent further submitted that the applicant has failed to show
otherwise.
[28]
I
agree with the respondent that as per Sidhu above, that there exists a
presumption that immigration officers have considered all the information
before them and I further accept that the police clearance from NBI in the
Philippines was not in front of the officer and not in the file. In Quiroa
v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 661 at paragraph 38,
this Court held that there is no requirement that an officer reference every
piece of evidence. The Court went on to say: “If the reasons, when taken as a
whole, indicate that the Officer was alive to the issue, they will survive a
somewhat probing examination and will not be found to be unreasonable.”
[29]
In
this case, the immigration officer did not have a key piece of information that
was necessary, namely the police clearance from the NBI for a successful
application. As such, the officer made a decision based on what was included in
her file. It was not unreasonable for the officer to make a decision of
non-compliance as Immigration and Citizenship Canada required police clearances
in accordance with paragraph 3(1)(h) of the Act which includes the objective
“to maintain and protect the health, safety and good order of Canadian society”.
I cannot accept that the officer committed an error of fact in evaluating the
evidence before him.
[30]
Issue
3
Did the
officer breach principles of natural justice when he rejected the applicant’s
claim because she had failed to comply with requests to file the required
documentation for permanent residency status?
It is my
opinion that the applicant was given full and fair opportunity to meet the
requirements under the Act for permanent residency. For whatever reason, she
decided not to attend to the requests for documentation diligently and I agree
with the respondent that her explanations are inadequate.
[31]
Paragraph
3(1)(f) of the Act outlines the many objectives of our immigration legislation
including the need for “consistent standards and prompt processing” in
attaining Canadian immigration goals. Included in these goals is the protection
of Canadians from a security perspective. Subsection 21(a) of the Act conveys a
statutory requirement of applicants to meet obligations. Finally, Chang v. Canada (Minister
of Citizenship and Immigration), [2000] F.C.J. No. 132, stands for the
proposition that notice of sanction clauses are important, and procedural
fairness requires notice be given if sanctions are intended to be enforced. In
my view, the applicant in this case was adequately informed of the consequences
of failing to provide documentation in a timely manner as well as the
consequences of not communicating back to immigration officers within 30 days
of receiving a notice from them.
[32]
The
applicant first received a letter on December 20, 2002 outlining the process of
applying for permanent residency from within Canada on
humanitarian and compassionate (H&C) grounds. The letter also advised that
an application for permanent residency could be refused if “you receive a
letter asking for a reply within 30 days and do not respond”. A letter of
December 1, 2003, March 10, 2004 and December 23, 2004, requesting the
outstanding police certificates again noted that if the applicant did not reply
within 30 days of the date of the letter, “and the decision is to refuse your
application for permanent residence, there is no authority to re-examine or
reopen this decision”.
[33]
Although
the applicant did at times write back immediately after receiving letters
including on April 30, 2005 and March 12, 2004 requesting more time to provide
the documentation from the Philippines and Singapore, she was not
consistent in her replies. In particular, she did not respond to three letters
sent in the 12 months leading up to the decision to refuse for non-compliance
including the registered letter sent to her in March 2007.
[34]
The
duty of procedural fairness as it applies to discretionary administration
decisions was most comprehensively set out in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817
which stated that the duty varies according to the circumstances of each case.
As enunciated in Khakh above, these
factors include, inter alia, the importance of the decision to the
individual, the nature of the decision and the process followed, the legitimate
expectations of the individual, the public interest, and the factual context.
[35]
In
Singh v. Canada (Minister of Citizenship and Immigration), 2008 CanLII 51693 (I.R.B.), the Immigration Review Board
finds that the applicant’s best intentions to comply with the requirements
under the Act, does not change the fact that the immigration officer acted
fairly in fulfilling his duties under the Act.
[36]
In
this case, the explanation by the applicant as to why she did not follow up
with Citizenship and Immigration Canada after sending a form that had been
requested so many times is problematic. I am not convinced that a granting of
review will rectify the issue of non-compliance with this applicant. The Court is
not aware of any other efforts to obtain an original copy of the police
clearance by the NBI having just been provided with a “personal copy”. The possibility
of a further delay in obtaining the police certificates and the extended
unnecessary use of immigration resources suggest that the decision must stand
despite the unfortunate outcome involving young children.
[37]
As
I cannot come to the conclusion that the officer committed an error of fact or
that the officer breached the principles of natural justice, I have no choice
but to dismiss the application for judicial review.
[38]
Neither
party wished to submit a proposed question of general importance for my consideration
for certification.
[39]
The
application for judicial review is therefore dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
Federal Courts Act, R.S.C., 1985, c. F-7
|
18.1(4) The
Federal Court may grant relief under subsection (3) if it is satisfied that
the federal board, commission or other tribunal
. . .
(d) based its
decision or order on an erroneous finding of fact that it made in a perverse
or capricious manner or without regard for the material before it;
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18.1(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le cas :
. .
.
d)
a rendu une décision ou une ordonnance fondée sur une conclusion de fait
erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des
éléments dont il dispose;
|
Immigration
and Refugee Protection Act,
S.C. 2001, c. 27
|
3.(1)
The objectives of this Act with respect to immigration are
. . .
(f) to
support, by means of consistent standards and prompt processing, the
attainment of immigration goals established by the Government of Canada in
consultation with the provinces;
(h) to protect
the health and safety of Canadians and to maintain the security of Canadian
society;
21.(1)A
foreign national becomes a permanent resident if an officer is satisfied that
the foreign national has applied for that status, has met the obligations set
out in paragraph 20(1)(a) and subsection 20(2) and is not inadmissible.
(2) Except in
the case of a person described in subsection 112(3) or a person who is a
member of a prescribed class of persons, a person whose application for
protection has been finally determined by the Board to be a Convention
refugee or to be a person in need of protection, or a person whose
application for protection has been allowed by the Minister, becomes, subject
to any federal-provincial agreement referred to in subsection 9(1), a
permanent resident if the officer is satisfied that they have made their
application in accordance with the regulations and that they are not
inadmissible on any ground referred to in section 34 or 35, subsection 36(1)
or section 37 or 38.
72.(1) Judicial review by the Federal Court with respect
to any matter — a decision, determination or order made, a measure taken or a
question raised — under this Act is commenced by making an application for
leave to the Court.
(2) The
following provisions govern an application under subsection (1):
(a) the
application may not be made until any right of appeal that may be provided by
this Act is exhausted;
(b) subject to
paragraph 169(f), notice of the application shall be served on the other
party and the application shall be filed in the Registry of the Federal Court
(“the Court”) within 15 days, in the case of a matter arising in Canada, or
within 60 days, in the case of a matter arising outside Canada, after the day
on which the applicant is notified of or otherwise becomes aware of the
matter;
(c) a judge of
the Court may, for special reasons, allow an extended time for filing and
serving the application or notice;
(d) a judge of
the Court shall dispose of the application without delay and in a summary way
and, unless a judge of the Court directs otherwise, without personal
appearance; and
(e) no appeal
lies from the decision of the Court with respect to the application or with
respect to an interlocutory judgment.
|
3.(1)En
matière d’immigration, la présente loi a pour objet :
. .
.
f)
d’atteindre, par la prise de normes uniformes et l’application d’un
traitement efficace, les objectifs fixés pour l’immigration par le
gouvernement fédéral après consultation des provinces;
h)
de protéger la santé des Canadiens et de garantir leur sécurité;
21.(1) Devient résident permanent
l’étranger dont l’agent constate qu’il a demandé ce statut, s’est déchargé
des obligations prévues à l’alinéa 20(1)a) et au paragraphe 20(2) et n’est
pas interdit de territoire.
(2) Sous réserve d’un accord
fédéro-provincial visé au paragraphe 9(1), devient résident permanent la
personne à laquelle la qualité de réfugié ou celle de personne à protéger a
été reconnue en dernier ressort par la Commission ou celle dont la demande de
protection a été acceptée par le ministre — sauf dans le cas d’une personne
visée au paragraphe 112(3) ou qui fait partie d’une catégorie réglementaire —
dont l’agent constate qu’elle a présenté sa demande en conformité avec les
règlements et qu’elle n’est pas interdite de territoire pour l’un des motifs
visés aux articles 34 ou 35, au paragraphe 36(1) ou aux articles 37 ou 38.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
(2)
Les dispositions suivantes s’appliquent à la demande d’autorisation :
a)
elle ne peut être présentée tant que les voies d’appel ne sont pas épuisées;
b)
elle doit être signifiée à l’autre partie puis déposée au greffe de la Cour
fédérale — la Cour — dans les quinze ou soixante jours, selon que la mesure
attaquée a été rendue au Canada ou non, suivant, sous réserve de l’alinéa
169f), la date où le demandeur en est avisé ou en a eu connaissance;
c)
le délai peut toutefois être prorogé, pour motifs valables, par un juge de la
Cour;
d)
il est statué sur la demande à bref délai et selon la procédure sommaire et,
sauf autorisation d’un juge de la Cour, sans comparution en personne;
e)
le jugement sur la demande et toute décision interlocutoire ne sont pas
susceptibles d’appel.
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
|
10.(1) Subject
to paragraphs 28(b) to (d), an application under these Regulations shall
(a) be made in
writing using the form provided by the Department, if any;
(b) be signed
by the applicant;
(c) include
all information and documents required by these Regulations, as well as any
other evidence required by the Act;
(d) be
accompanied by evidence of payment of the applicable fee, if any, set out in
these Regulations; and
(e) if there
is an accompanying spouse or common-law partner, identify who is the principal
applicant and who is the accompanying spouse or common-law partner.
(2) The
application shall, unless otherwise provided by these Regulations,
(a) contain
the name, birth date, address, nationality and immigration status of the
applicant and of all family members of the applicant, whether accompanying or
not, and a statement whether the applicant or any of the family members is
the spouse, common-law partner or conjugal partner of another person;
(b) indicate
whether they are applying for a visa, permit or authorization;
(c) indicate
the class prescribed by these Regulations for which the application is made;
and
(c.1) include
the name, postal address and telephone number of any person who represents
the applicant, and the person's fax number and electronic mail address, if
any;
(c.2) if the
person who represents the applicant is charging a fee for representation,
include
(i) the name
of the organization referred to in the definition "authorized
representative" of which the person is a member, and
(ii) the
membership identification number issued by that organization to the person;
and
(d) include a
declaration that the information provided is complete and accurate.
66. A request
made by a foreign national under subsection 25(1) of the Act must be made as
an application in writing accompanied by an application to remain in Canada
as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.
68. If an exemption from paragraphs 72(1)(a),
(c) and (d) is granted under subsection 25(1) of the Act with respect to a
foreign national in Canada who has made the applications referred to in
section 66, the foreign national becomes a permanent resident if, following
an examination, it is established that the foreign national meets the
requirements set out in paragraphs 72(1)(b) and (e) and
(a) in the
case of a foreign national who intends to reside in the Province of Quebec
and is not a member of the family class or a person whom the Board has
determined to be a Convention refugee, the competent authority of that
Province is of the opinion that the foreign national meets the selection
criteria of the Province;
(b) the
foreign national is not otherwise inadmissible; and
(c) the family
members of the foreign national, whether accompanying or not, are not
inadmissible.
|
10.(1) Sous réserve des alinéas 28b) à
d), toute demande au titre du présent règlement :
a)
est faite par écrit sur le formulaire fourni par le ministère, le cas
échéant;
b)
est signée par le demandeur;
c)
comporte les renseignements et documents exigés par le présent règlement et
est accompagnée des autres pièces justificatives exigées par la Loi;
d)
est accompagnée d’un récépissé de paiement des droits applicables prévus par
le présent règlement;
e)
dans le cas où le demandeur est accompagné d’un époux ou d’un conjoint de
fait, indique celui d’entre eux qui agit à titre de demandeur principal et
celui qui agit à titre d’époux ou de conjoint de fait accompagnant le
demandeur principal.
(2)
La demande comporte, sauf disposition contraire du présent règlement, les
éléments suivants :
a)
les nom, date de naissance, adresse, nationalité et statut d’immigration du
demandeur et de chacun des membres de sa famille, que ceux-ci l’accompagnent
ou non, ainsi que la mention du fait que le demandeur ou l’un ou l’autre des
membres de sa famille est l’époux, le conjoint de fait ou le partenaire
conjugal d’une autre personne;
b)
la mention du visa, du permis ou de l’autorisation que sollicite le
demandeur;
c)
la mention de la catégorie réglementaire au titre de laquelle la demande est
faite;
c.1)
le nom, l’adresse postale, le numéro de téléphone et, le cas échéant, le
numéro de télécopieur et l’adresse électronique de toute personne qui
représente le demandeur;
c.2)
si la personne qui représente le demandeur le fait contre rémunération :
(i)
le nom de l’organisation visée à la définition de «représentant autorisé»
dont elle est membre,
(ii)
le numéro de membre qui lui a été délivré par l’organisation;
d)
une déclaration attestant que les renseignements fournis sont exacts et
complets.
66. La demande faite
par un étranger en vertu du paragraphe 25(1) de la Loi doit être faite par
écrit et accompagnée d’une demande de séjour à titre de résident permanent
ou, dans le cas de l’étranger qui se trouve hors du Canada, d’une demande de
visa de résident permanent.
68.
Dans le cas où l’application des alinéas 72(1)a), c) et d) est levée en vertu
du paragraphe 25(1) de la Loi à l’égard de l’étranger qui se trouve au Canada
et qui a fait les demandes visées à l’article 66, celui-ci devient résident
permanent si, à l’issue d’un contrôle, les éléments ci-après, ainsi que ceux
prévus aux alinéas 72(1)b) et e), sont établis :
a)
dans le cas où l’étranger cherche à s’établir dans la province de Québec, n’appartient
pas à la catégorie du regroupement familial et ne s’est pas vu reconnaître,
par la Commission, la qualité de réfugié, les autorités compétentes de la
province sont d’avis qu’il répond aux critères de sélection de celle-ci;
b)
il n’est pas par ailleurs interdit de territoire;
c)
les membres de sa famille, qu’ils l’accompagnent ou non, ne sont pas
interdits de territoire.
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