Date: 20091022
Docket: IMM-5411-08
Citation: 2009 FC 1083
Vancouver, British Columbia, October 22, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LI
QIN GAN and QIU LAN SHEN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to section 72 of the Immigration
and Refugee Protection Act, R.S.C. 2001, c. 27 (Act), of a decision by
Citizenship and Immigration Canada (CIC) dated December 9, 2008, to refer the
Applicants’ application for permanent residence based on humanitarian and
compassionate grounds (H&C application) to the Pre-Removal Risk Assessment
(PRRA) Unit of CIC for determination.
[2]
This
application has nothing to do with the Applicants themselves. This application has
nothing to do with the merits of their application to remain in Canada. This application
concerns process and procedure and has everything to do with the situation created
by their counsel who was determined that the H&C application would not be assessed
by a PRRA officer.
BACKGROUND
[3]
Li
Qin Gan and Qui Lan Shen are citizens of China. The facts relevant to this application are
best summarized by way of chronology.
|
March 21, 2001
|
The
Applicants arrived in Canada.
|
|
April 2, 2001
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The
Applicants file claims for Convention refugee status.
|
|
March 27, 2002
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The
claims for refugee status are rejected. The Board found that the Applicants
were not credible, that they were not Falun Gong practitioners, and that they
were not Convention refugees.
|
|
May 31, 2002
|
The
Applicants applied for consideration under the Post-Determination Refugee
Claimant in Canada Class (PDRCC).
|
|
November 2005
|
The
Applicants made an H&C application; this application is still outstanding.
The application was based on establishment in Canada
and risk upon return to China.
|
|
May 3, 2006
|
The
Case Processing Centre of CIC in Vegreville, Alberta,
informed the Applicants that their H&C application had been transferred
to the CIC office in Vancouver for further assessment.
|
|
May 26, 2006
|
The
CIC office in Vancouver, the Inland Processing Unit (IPU), advised the
Applicants that their H&C application had been transferred to the
Vancouver PRRA Unit for a decision.
|
|
June 24, 2008
|
At
an in-person interview at the CBSA Enforcement Centre, the Applicants were
given a letter informing them that they had 30 days to supplement their
H&C application prior to a decision by a PRRA Officer.
|
|
July 11, 2008
|
Counsel
for the Applicants submitted supplementary H&C submissions. In these
submissions, counsel writes: “I repeat my request that this H&C
assessment should be conducted by a CIC officer familiar with H&C cases
instead of a PRRA officer. I regard a PRRA officer is someone who is in the
enforcement stream of your organization” [sic].
|
|
July 15, 2008
|
Counsel
for the Applicants submitted supplementary submissions on the Applicants’
PDRCC. In these submissions counsel again requested that the H&C be
considered by a CIC Officer.
|
|
October 7, 2008
|
The
PRRA Coordinator, Adrienne Nash, responded to counsel’s July 15, 2008 letter.
She writes that “it is our policy, as set out in section 13 of IP5, that when
H&C applications include allegations of personal risk, and there does not
appear to be sufficient non-risk factors to approve the H&C application
on the non-risk grounds, the application is referred to the PRRA unit for
processing. In cases where there is an outstanding PRRA application, both
applications are assessed concurrently.”
She
requested counsel to advise in writing whether his clients wanted their
H&C application to be determined without any consideration of their
personalized risk by an CIC Officer or if they wanted their risk
allegations to be considered as part of the H&C by a PRRA Officer.
|
|
October 14, 2008
|
Counsel
for the Applicants responds: “I am still requesting you to proceed with the
H&C review and PRRA review separately. [I]t is my respectful view and
request that the file should go to CIC first before PRRA” [sic].
|
|
October 16, 2008
|
The
PRRA Coordinator responded, reiterating the explanation about the policy
found in section 13 of IP5 and stating: “If we receive specific instructions
that your clients do not wish to have their personalized risk factors
considered as part of their H&C application, I will forward the file to
the Inland Processing Unit for consideration. Please note, this will have no impact
on their PRRA applications, which will continue to be processed in the PRRA
Unit (and for which they were invited to provide updated submissions … when
their case was converted from the Post-Determination Refugee Claimants in
Canada Class (PDRCC) to the PRRA program.”
|
|
October 28, 2008
|
Counsel
for the Applicants confirmed his “request that this file be sent to the CIC
H&C unit for their separate assessment on H&C grounds”. Counsel did
not acknowledge in writing that this would mean a waiver of an H&C
assessment on the allegations of risk.
|
|
November 6, 2008
|
The
PRRA Coordinator informed counsel that his October 28, 2008 letter did not
contain the required waiver necessary to transfer the H&C application to
the H&C Unit. The PRRA Coordinator stated that the application would be processed
in accordance with section 13 of IP5 and would be assigned to a PRRA Officer
who would consider all aspects of the Applicant’s H&C application,
including both risk and non-risk factors.
|
|
November 20, 2008
|
The
PRRA Officer summoned the Applicants to an in-person interview on December
17, 2008, with respect to their PRRA application and further indicated that “at
this hearing I may also ask each of you questions about the circumstances
which support your 2005 Humanitarian and Compassionate application.”
|
|
December 4, 2008
|
Counsel
for the Applicants informed the PRRA Officer that he was unable to attend the
interview because of a conflict. He reiterated his request to have the CIC
H&C Unit assess the H&C application stating: “If you insist on doing
this PRRA hearing then my clients may have to withdraw their PRRA, without
prejudice. My clients applied for H&C 3 years ago and after this long
wait, he was canvassed if he wanted his H&C assessed and his answer was
clearly affirmative. But somehow the officer still decided to send this case
to PRRA.”
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December 9, 2008
|
The
PRRA Officer responded informing counsel that the interview would proceed
unless he could provide alternative dates in early January 2009 and requesting
that he be informed if the Applicants were withdrawing their PRRA
application. He refers to the letter dated November 6, 2008, above, and
states that “in accordance with that decision the H&C application will
stay in the PRRA unit and I will consider the risk and non-risk factors
found in your client’s [sic] H&C application.
|
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December 10, 2008
|
This
application for leave and judicial review of the PRRA Officer’s refusal to
transfer the H&C to the CIC H&C Unit was filed.
|
[4]
In
the application for judicial review, the Applicants sought the following
relief:
a.
A declaration that
the Respondent, the Minister of Citizenship and Immigration (“Minister”) breached
his duties to the Applicants as set out herein;
b.
An order in the
nature of mandamus and, a direction compelling the Minister to cause the
[CIC Humanitarian and Compassionate Unit] to immediately process the
Applicants’ H&C application; and
c.
An order setting
aside the decision of Adrienne Nash and Robert North to refuse to forward the
file to CIC Humanitarian and Compassionate Unit;
d.
Such further and
other relief as this Court seems just.[sic]
[5]
Events
after the application for leave and judicial review was filed are relevant and
further explain the procedural morass that has been created.
[6]
The
December 17, 2008 in-person interview was postponed. On March 11, 2009, the
PRRA Officer faxed the Applicants’ counsel with a request to schedule dates for
an in-person interview in April 2009 with respect to both the outstanding
H&C and the outstanding PRRA applications. No response was received. On
June 1, 2009, the PRRA Officer directed the Applicants to report for an
in-person interview with respect to both applications to be held on June 18,
2009.
[7]
Counsel
for the Applicants wrote the PRRA Officer the same day, objecting to holding
the interview prior to the determination of the judicial review hearing in this
matter then scheduled for August 11, 2009. Counsel further informed the PRRA Officer
that he was unavailable on the proposed date. Counsel also stated that if the
PRRA Officer was not going to hold matters in abeyance, then he requested that
the Applicants’ H&C application be sent “to a CIC H&C Officer for assessment
… without taking into account their personal risks” [emphasis added].
Counsel lastly stated that “depending on the outcome of that assessment, we
reserve the right to re-file or continue with the PRRA application.”
[8]
The
Applicants did not attend the June 18, 2009 call-in. On June 19, 2009, they
were sent a final notice to attend a PRRA oral hearing. Again, it was
indicated that questions may be asked concerning their H&C applications.
The interview was set for July 15, 2009.
[9]
Counsel
for the Applicants swore an affidavit in which he attests that upon receipt of
this letter he called counsel for the Respondent “and asked her how come Mr.
North did not accept my offer and why he continued to set down these PRRA
interviews.” He swears that Ms. Park, counsel for the Respondent, told him that
his “offer” as set out in his letter dated June 1, 2009, was not clear to which
he replied that he “would discontinue my proceeding if Mr. North would hold off
doing PRRA” and he swears that “Ms. Park then said this would be the agreement
if her client confirms it.”
[10]
On
June 22, 2009, the PRRA Officer transferred the H&C application to the CIC
Inland Processing Unit for assessment by an H&C Officer and informed
counsel for the Applicants of this occurrence. The PRRA Officer wrote:
As
per your request in our telephone conversation of today, I accept the offer
contained in your letter of 01 June 2009 (attached) to withdraw the
personalized risk elements from your clients’ 2005 H&C application.
Accordingly, the application has been sent to the Inland Processing Unit of CIC
Vancouver where it will be assessed by an H&C officer.
[11]
On
July 7, 2009, counsel for the Respondent wrote to counsel for the Applicants
stating:
Further
to our telephone conversation of June 22, 2009 and the faxed transmittal from
PRRA Officer North to you dated June 22, 2009, your client’s [sic]
H&C application has been sent to the CIC Inland Processing Unit for
assessment by an H&C application [sic]. Therefore the application
for judicial review is now moot. Would you kindly advise when the Notice of Discontinuance
will be filed.”
[12]
On
July 10, 2009, the Officer assessing the H&C application wrote to the Applicants
requesting further submissions within 15 days from receipt of the letter. By
letter of July 11, 2009, counsel for the Applicants requested that the Officer
consider all of the submissions made by their former counsel. By letter dated
July 15, 2009, the Officer wrote counsel for the Applicants requesting
clarification as the majority of the submissions of previous counsel pertained
to risk factors. Counsel was asked to be precise as to the factors the
Applicants wished to have considered in their H&C application.
[13]
In
the interim, counsel for the Applicants wrote to Mr. North, the PRRA Officer,
asking that the meeting with his clients scheduled for July 15, 2009, be
postponed for the following reasons:
My
understanding was the August JR would not proceed on the basis of my
agreement with Ms. Helen Park that Mr. Gan’s H&C application would be
assessed first. But you seem to think otherwise as you are proceeding with the
PRRA. If so, there would be no point not to proceed with the JR as you still
insist on taking the unilateral action to do PRRA. If you are to do PRRA first
then there is no assurance that H&C would ever be done as the Gan is
removable as soon as the PRRA is done [sic].
[14]
In
this letter, he makes the perceptive observation: “Somewhere along the line,
there was miscommunication.”
[15]
The
Applicants failed to attend the July 15, 2009 meeting with the PRRA Officer.
The PRRA application was declared abandoned and pursuant to section 171 of the
Act was rejected.
[16]
On
July 31, 2009, the Respondent brought a motion to dismiss this application for
judicial review as moot. The Respondent submitted that the Applicants had
failed to raise a timing issue with respect to the H&C in their Notice of
Application, and that since the H&C application had been transferred to an
H&C Officer, the application for judicial review was now moot. By Order dated
September 1, 2009, Justice Dawson dismissed the Respondent’s motion, holding
that the judicial review application was not moot. Justice Dawson noted that
the Applicants had raised an issue as to whether the H&C ought to have been
decided prior to the PRRA and, notwithstanding the fact that the Applicants’
submissions may not be supported by the jurisprudence, raised an issue that was
not moot.
[17]
On
August 12, 2009, the Applicants filed an application for leave and judicial
review of the dismissal of their PRRA application: Court File IMM-4077-09.
ISSUES
[18]
At
the hearing of this application, counsel for the Applicants stated that there
were two issues before the Court:
a. Whether the Applicants’
H&C application should have been processed prior to their PRRA application;
and
b. Whether the H&C
application should be processed with or without risk factors.
ANALYSIS
[19]
In
my view, the history of these Applicants with the immigration authorities as
set out above does not reflect a failure to communicate; it reflects a
failure to understand the fundamental elements of the H&C and PRRA
processes. It is unclear whether that failure is innocent or wilful on the part
of counsel.
Whether the Applicants’ H&C application should have been
processed prior to their PRRA application
[20]
The
Applicants acknowledge that there is no legal requirement that the H&C
application be assessed prior to the PRRA application. It is their submission
that the Respondent offered them the option of having the H&C application
determined first by way of an “undertaking” or “agreement” (the Applicants used
both terms in oral argument), which was subsequently breached by the
Respondent. They further submit that the Respondent failed to follow its own
processes established by section 13 of IP5 in that it failed to make a preliminary
assessment of the H&C application before sending it to the PRRA Officer. I
find no merit in either submission.
[21]
First,
if there was any understanding or agreement as alleged, it most certainly
occurred after the decision under review. The only reference to postponing the
PRRA assessment until after the H&C determination is to be found in the
letter from Applicants’ counsel dated October 14, 2008, in which he
writes:
[I]t
is my respectful view and request that the file should go to CIC before
PRRA” [emphasis added]. As is evident from the history set out previously, the
Applicants were specifically advised that if they wished the H&C
application assessed within the Inland Processing Unit then they would have to
specifically instruct CIC that they did not wish to have their personalized
risk factors considered as part of their H&C application. If that was to
occur, they were also specifically told that “this will have no impact on
their PRRA applications, which will continue to be processed in the PRRA Unit
[emphasis added]. Nowhere is there any evidence prior to the decision under
review of any agreement to postpone the PRRA determination.
[22]
It
was suggested at the hearing that there was an agreement between counsel to
this effect. If so, it occurred after the date of the decision at issue
and forms no part of this application. No motion was made to amend this
application to raise as an issue the alleged settlement agreement and I will
say no more about it as it is raised in the IMM-4077-09 leave application which
is outstanding.
[23]
The
Applicants further submitted that section 13 of IP5 was not observed by the Respondent.
They point to section 13.2 entitled ‘Role of H&C Units: Preliminary
screening without formal H&C assessment’ which reads: “If there is a claim
for personalized risk, but there does not appear to be sufficient other
non-risk H&C grounds for accepting the application, the application is
referred to the PRRA unit.”
[24]
The
Applicants submit that the response received to their H&C application in
the letter dated May 26, 2006, indicates that no assessment that was required
by section 13.2 was done as no reason is given for referring the application to
a PRRA Officer. They submit that the writer failed to do the proper analysis to
reach a conclusion that insufficient H&C grounds exist to accept the
application without the risk factors.
[25]
I
agree with the submissions of the Respondent that the letter in question cannot
support that conclusion. First, the letter was not the first response
received by the Applicants to their H&C application. The first response is
a letter dated May 3, 2006, from Case Processing Centre in Vegreville in which
the Officer writes: “This is to advise that your application has been
transferred to the Canada Immigration Centre located in Vancouver for further
assessment” [emphasis added]. The May 26, 2006 letter was sent after that
further assessment, namely, after the preliminary screening referenced in
section 13.2 of IP5.
[26]
Further,
the preliminary screening is a simple administrative review of the application
and, as stated in section 13 of IP5, is not a formal H&C assessment. It is
a review of the application to determine into which of the two streams it will
fall. If that was a decision subject to review by this Court, then I note that
no application was brought in a timely manner by these Applicants for leave to
judicially review it.
Whether the H&C
application should be processed with or without risk factors
[27]
Quite
simply, this is not an issue for the Court; this is an issue within the full
and complete control of the Applicants.
[28]
At
the hearing, the Court was informed that as of two weeks ago the Applicants had
advised CIC that they now wished the H&C application to be assessed including
the risk factors. The Respondent will do so. As was stated by its counsel, the
Respondent has never refused to process the H&C application either with or
without the risk factors. However, whether the risk factors are included is a
decision within the sole prerogative of the Applicants.
[29]
I
suspect that the real issue for the Applicants is that they wish the H&C
application to be assessed including the risk factors, but not by a PRRA
Officer. Frankly, they have no right to dictate whether an officer from the
Inland Processing Unit or one from the PRRA Unit is to make the determination.
Both have authority from the Minister to make such an assessment. The
Minister’s policy as set out in IP5 is that it is to be a PRRA Officer when the
H&C factors alone appear insufficient to grant the application. I expect, given
that the Applicants again wish to have the risk factors considered, that their
H&C application will be assessed by a PRRA Officer. If so, that is
unobjectionable.
[30]
For
these reasons this application is dismissed. Neither party, when asked,
proposed any question for certification and there is none on these facts.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this
application is dismissed and no question is certified.
“Russel W. Zinn”
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