Docket: IMM-5200-13
Citation:
2014 FC 1239
Toronto, Ontario, December 18, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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ÉTIENNE AVOUAMPO
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], of the decision of a Citizenship and Immigration
[CIC] officer [Officer] dated May 22, 2013 refusing the Applicant’s pre-removal
risk assessment [PRRA].
II.
Facts
[2]
Étienne Avouampo [the Applicant] is a citizen of
the Republic of Congo who fears returning to his country of origin due to
imputed political opinion and his failed refugee claim. He first came to Canada in 2001. His refugee claim was denied in 2003. He submitted a humanitarian and
compassionate [H&C] application, and in 2005, he also submitted a PRRA
application. His H&C application was approved in principle in 2009, and so
processing of his PRRA was suspended. However, the Applicant’s permanent
resident status was ultimately denied in 2012, due to a criminal conviction in
2010 and failure to comply with the requirements of IRPA.
[3]
On April 30, 2013, CIC advised the Applicant
that it was re-opening his PRRA and that he had until May 24, 2013 to send
submissions in support thereof [Fairness Letter]. On May 8, 2013, the
Applicant’s counsel replied to CIC, requesting it to “hold
off initiating the PRRA process for Mr. Avouampo”, given the recent
filing of a second H&C application [Delay Letter]. CIC did not reply.
[4]
On May 22, 2013, the Officer denied the
Applicant’s PRRA application [Decision]. The decision was delivered to the
Applicant on June 27, 2013.
[5]
On May 24, 2013, in accordance with the deadline
in CIC’s letter, the Applicant’s counsel sent PRRA submissions on the
Applicant’s behalf to CIC by fax and courier [Submission Letter].
III.
Issue
[6]
The sole issue in this matter is whether the
Officer breached the duty of procedural fairness by making his decision prior
to the deadline given to the Applicant for making PRRA submissions.
IV.
Standard of Review
[7]
The standard for determining whether the
decision maker complied with the duty of procedural fairness is correctness:
See Mission Institution v Khela, 2014 SCC 24 at para 79; MCI v
Khosa, 2009 SCC 12 at para 43. However, the content of the duty is flexible
and may differ depending on the context: See Baker v MCI, [1999] 2 SCR
817 at paras 21-28; Khela at para 89.
V.
Parties’ Submissions
[8]
The Applicant submits that the Officer breached
the duty of fairness by making his decision on May 22, 2013, two days prior to
the deadline given to the Applicant to make submissions on the PRRA. Relying on
the May 24 deadline, the Applicant made risk-based submissions on that date.
Yet it is clear the Officer did not take those submissions into account,
instead using the May 8 Delay Letter upon which to base the PRRA refusal.
[9]
The Applicant further submits that, when the
Officer received the Submission Letter, he should have reconsidered his May 22
decision, taking the submissions into consideration (Chudal v MCI, 2005
FC 1073 at paras 19-21; CIC’s PP3 Manual). The Applicants submit that a PRRA
officer cannot render a decision prior to the deadline provided to the
Applicant, and indeed must take into account “late-delivered” documents,
including new evidence up to the point of the decision being communicated: see Chudal,
Zokai v Canada (MCI), 2005 FC 1103, and Gil Arango v Canada (MCI),
2014 FC 370.
[10]
Here, the Applicant had a legitimate expectation
that he would have at minimum until the May 24 CIC deadline, and had every
right to submit a preliminary delay request in the interim period: see also Figurado
v Canada (Solicitor General), 2005 FC 347 at para 40. This
expectation was particularly valid in view of the fact that CIC had taken years
with the Applicant’s file, and two extra days would have made no difference, as
the few days extra days made no difference given the June 27 delivery.
[11]
The Officer should have voiced his concerns
about the May 8 letter or refused the extension request, instead of treating it
as substantive PRRA risk submissions: Zokia, above.
[12]
The Respondent submits that the Officer did not
breach a duty of procedural fairness. First, the Applicant had no legitimate
expectation that the Officer would wait until May 24, 2013 to make his
decision, rather than promptly considering the submissions received on May 8 “in response to” the Fairness Letter: Vasanthakumar v
MCI, 2012 FC 74 at para 12. Second, since the May 8 Letter and attached
documents did not contain information relevant to the PRRA, it was reasonably
open to the Officer not to take it into account. Third, the Applicant failed to
advise CIC in the May 8 Letter that further submissions were forthcoming.
[13]
Overall, the Applicant argues that the 30 day Fairness
Letter represented a window that opened, and the window closed once a response
had been received, with no obligation or further requirement for the Officer to
reopen the window once he closed it with his May 22 Decision. In other words,
any submissions made were taken as a response – whether complete, deficient or
somewhere in between – after which the Officer was entitled to make a final
PRRA decision at any time, and which occurred in this case on May 22.
[14]
The Respondent further submits that even if the
Officer had considered the Submission Letter, these submissions would not have
changed the outcome of the PRRA.
[15]
Finally, the Respondent submits in the
alternative that if this Court finds that the Officer erred in failing to
consider the Submission Letter, the Decision should not be set aside since the
PRRA Officer also looked at other evidence on the record, and the May 24
submissions added nothing substantial to that evidence: see Patel v MCI,
2002 FCA 55 and Toussaint v Canada (AG), 2010 FC 810 at para 59.
VI.
Analysis
[16]
In my view, the Officer had a duty to consider
the Submission Letter in the circumstances and breached his duty of procedural
fairness by failing to do so.
[17]
The Respondent relies on Vasanthakumar,
above, at para 12 for the proposition that the Applicant did not have a
legitimate expectation that he would have a further opportunity to provide
additional submissions prior to the Decision being rendered. Unlike in Vasanthakumar,
however, CIC in this case provided the Applicant with a clear deadline by which
he was required to make submissions.
[18]
As such, the Applicant was entitled to rely on
that date and to make submissions both in advance of and up to that date,
particularly because the Delay letter of May 8 contained nothing related to
risk or the PRRA analysis, and never held itself to be anything but a request
for delay. The Officer therefore had every reason to expect that submissions on
the basis of the PRRA would follow, since the Applicant had responded – but
only on the procedural request for a PRRA delay, rather than on the basis for
the PRRA. Finally, there was nothing in the CIC Fairness Letter that suggested
the Applicant was allowed to submit only one letter.
[19]
While the Respondent is correct that PRRA
matters are to be dealt with in a timely fashion, this goal should not
prejudice an applicant’s opportunity to present evidence and to put his or her
case forward in full, especially where life and security of the person are at
stake. This must also be the case in situations where there have been long
processing CIC delays. The Applicant had been in Canada for well over a decade
when CIC issued the 30 day Fairness Letter. Surely in these circumstances it
could have waited until those 30 days had run their course before finalizing
the case.
[20]
In view of all the circumstances, the duty of
fairness in this case required the Officer to wait until May 24, 2013, before
making his determination on the Applicant’s PRRA. By not doing so, he breached
his duty of procedural fairness.
[21]
I further find that regardless of whether the
Officer should have waited until May 24, 2013 to make his decision, he was
required to consider the Submission Letter as the Applicant submitted the
letter before he was notified that the Decision had been made. This Court has
determined that a PRRA officer has an obligation to consider all evidence which
may affect the determination even after the officer has written the decision,
so long as the evidence is received before the applicant is notified that the
decision has been made, or before the date on which the applicant has been told
a decision will be made: See Chudal, above, at para 19; Ayikeze v MCI,
2012 FC 1395 at para 16.
[22]
Even though the Officer had made a Decision
when the Applicant’s Submission Letter arrived, the Submission Letter arrived
well before the Applicant was notified of the said Decision, and therefore
before the Decision became final: see Chudal, above, at paras 16-21; see
also Gil Arango and Zokai, above. He therefore had an obligation
to consider these submissions.
VII.
Conclusions
[23]
This application for judicial review is allowed.
The Officer had an obligation to make his decision only after the date on which
the Applicant had been given as a deadline to make submissions. The Officer
thereby breached his duty of procedural fairness by making his decision prior
to that date, and by failing to reconsider his decision in light of the
submissions made by the Applicant on the deadline date, two days later, in the
weeks after those submissions were received and before the Decision was
communicated.
[24]
I therefore will allow this Application and send
the matter back to be reconsidered by a different Officer, having regard to all
the material, including the submissions of May 24, 2013, and any new material
on risk.
[25]
No questions for certification were raised and I
will certify none.
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