Docket: IMM-1846-14
Citation:
2015 FC 677
Toronto, Ontario, May 25,
2015
PRESENT: The
Honourable Mr. Justice Brown
|
BETWEEN:
|
|
PABLO SEBASTIAN
SALAZAR MUNOZ
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review by
Pablo Sebastian Salazar Munoz [the Applicant] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 of a decision by an Immigration
Officer [the Officer], dated December 19, 2013, in which the Officer refused
the Applicant’s application for permanent residence in Canada on humanitarian
and compassionate [H&C] grounds. The application is granted because the
Applicant was denied procedural fairness.
[2]
The Applicant was born on June 9, 1981 in Chile, where he is a citizen. The Applicant entered Canada on July 8, 2010 and was granted
temporary resident status as a visitor, valid until January 7, 2011. The
Applicant remained in Canada beyond the expiry of his temporary resident status
without authorization. On May 26, 2011, the Applicant married a Canadian
citizen who submitted a sponsorship application to sponsor him on January 31,
2012. This sponsorship application was withdrawn on September 16, 2012 due to a
separation in the relationship. On March 1, 2013, the Applicant applied for
permanent residence from within Canada on H&C grounds. His application was
based on establishment (he resided in Canada for over three years, was employed
for over one year, participated in volunteering activities, and had numerous
letters of support from friends, community liaison and volunteer coordinator in
Canada) as well as risk and adverse country conditions (hardship,
discrimination and violence due to his homosexuality and HIV status).
[3]
On December 19, 2013, the Officer refused the
Applicant’s application for permanent residence from within Canada on H&C grounds. The Applicant filed an application for leave and judicial review
in this Court on March 25, 2014, which was granted on February 4, 2015.
[4]
The Officer was asked to determine whether the
Applicant, in order to obtain permanent residence, should be exempt, on H&C
grounds, from the requirement of presenting his application from outside Canada and from the obligation to meet the requirements of a permanent resident category. In
this connection, the Officer noted that the Applicant bore the onus of establishing
that his personal circumstances are such that the hardship of having to obtain
a permanent resident visa from outside Canada in the normal manner would be
unusual and underserved, or disproportionate.
[5]
The Officer made a number of findings in his
reasons, many if not most of which were challenged by the Applicant in his
written and oral submissions.
[6]
However, in my view the determinative issue is
the Officer’s discussion and findings that the Applicant, as a national of a
country which is a member of the Union of South American Nations [USAN], had
the right to live and work in Brazil, Paraguay, Uruguay, Venezuela, Bolivia,
and specifically, in Argentina. The Applicant alleges this discussion and
analysis were arrived at in breach of his right to procedural fairness. I agree.
[7]
The Officer reported on research conducted
independent of the application and found that “[w]hile
same-sex marriage and same-sex adoption is not currently legal in Chile, […] they are legal and acceptable in Argentine, Chile and Uruguay”. I note
parenthetically that the Officer erred in mentioning Chile; the Applicant
suggested Brazil was intended. The Officer said there were no reports of
societal discrimination against persons with HIV/AIDS in Argentina and Uruguay. The Officer also found there was no official discrimination based on sexual
orientation in employment, housing, statelessness, and no issues of access to
education or health care in Argentina. The Officer criticized the Applicant for
not demonstrating why he could not relocate to these countries. The Officer
noted that based on the information the Applicant provided, the Applicant
himself had held previous employment in Argentina and Brazil as a sales representative and tour guide.
[8]
The critical finding made by the Officer is that,
based on the results of the Officer’s review of various country conditions, the
Applicant could relocate to Argentina because he had a legal right to live and
work there should he desire.
[9]
In my view, the Officer erred in making these
findings for several reasons.
[10]
First, there was no evidence before the Officer
that nationals of USAN member countries had the right to work and live in other
member countries. Neither is there any such evidence before this Court. A
finding made without regards to the evidence is an error of law: Siad v Canada (Secretary of State), [1997] 1 FC 608 at para 24 (FCA).
[11]
In addition, the USAN treaty was not before the
Officer. While the treaty was filed with this Court on judicial review, in my
view its language does not support the Officer’s findings that the Applicant
had a right to live and work in other USAN countries.
[12]
The Officer referred to a number of webpages as
sources for his finding that the Applicant could relocate to other USAN
countries. However, none of these webpages support the Officer’s conclusions in
this regard. This underscores both the need for evidence on the record and the
unreasonableness of expecting the Applicant to anticipate the Officer’s
procedurally unfair independent research.
[13]
The Officer denied the Applicant procedural
fairness by engaging in this examination and making the resulting conclusions without
providing him any notice or warning. Procedural fairness entitles the claimant
to know the case he or she has to meet: Muthusamy v Canada (Minister of Employment and Immigration) (1994), 50 ACWS (3d) 475 at para 4; Garcia v Canada (Minister of Citizenship and Immigration), 2011 FC 1368 at para 36; Yildiz v Canada (Minsiter of Citizenship and Immigration), 2013 FC 839 at para 47. Knowledge of
the case to meet may be imputed where it is reasonable to expect the claimant
to know or anticipate the panel’s findings, such as where the RPD relies on
publicly available country documentation that is not materially different from
the documents it disclosed: Chen v Canada (Minister of Citizenship and
Immigration), 2012 FC 1218 at paras 16-17. Here however, the claimant
could not reasonably be expected to know or anticipate that the Officer would
engage in this supplementary research and reach the conclusions he did on its
basis.
[14]
If an officer wishes to find that an H&C
claimant could return elsewhere than the country of his or her nationality, which
finding an Officer may or may not be entitled to make in the context of an
H&C application, a point I do not need to decide, that officer must respect
the rules of procedural fairness.
[15]
Finally, it was a breach of procedural fairness
for the Officer to criticize the Applicant for failing to rebut the Officer’s
findings where the Applicant had no reason to anticipate either the Officer’s
line of investigation or the Officer’s conclusions.
[16]
The Court is asked to uphold the decision of the
Officer because, according to the Respondent, it would be futile to send it
back for re-determination given the many other findings the Officer made
against the Applicant. The Respondent argues that these flawed findings were
irrelevant, immaterial or peripheral. I disagree.
[17]
In this connection, the leading authorities are Mobil
Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, [1994] 1 SCR
202 and Cardinal v Director of Kent Institution, [1985] 2 S.C.R. 643. In
this Court, Justice de Montigny summarized the relevant principles in Sarker
v Canada (Minister of Citizenship and Immigration), 2014 FC 1168 at paras
16-17:
[16] Where the parties differ, however, is
with respect to the consequences of this breach. Relying on Cardinal v
Director of Kent Institution, [1985] 2 S.C.R. 643, 24 DLR (4th) 44, counsel
for the Applicant argues that this denial of natural justice is so egregious
that it calls for the quashing of the decision. Counsel for the Respondent, on
the other hand, submits that nothing turns on this mistake and that it was
purely peripheral to the assessment of the Applicant’s credibility.
[17] Having carefully examined the
impugned decision, I do not think it can confidently be said that this breach
of procedural fairness had no impact on the decision of the Board. The
Respondent’s argument may have been more compelling had the Board Member not
dealt with the identity issue after paragraph 16 of his decision. To the
contrary, the Board’s identity concerns appear to have permeated its
credibility analysis and may have had a material impact on the Applicant’s
claim. At paragraph 23 of its decision, the Board mentions the Applicant’s lack
of personal identity documents in questioning the authenticity of the newspaper
articles and the arrest documents. Most importantly, the Board explicitly links
the identity concern with the credibility analysis at paragraph 27 (“The
absence of documentation confirming both his identity and arrival in Canada is problematic and further contributes to an overall concern with the credibility of
the claim”). Accordingly, it cannot be said that the breach of procedural
fairness was not material and that there is no point sending the Applicant’s
claim back to the Board. This is not such a case as Mobil Oil Canada Ltd v
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, 111 DLR
(4th) 1, where it could safely be said that the Board would most likely reach
the same decision if it were to re-examine the Applicant’s claim afresh. There
is every indication that the Board’s assessment of the Applicant’s identity
coloured its credibility analysis.
[18]
The Respondent submitted, and I certainly agree,
that not every breach of procedural fairness results in a right to a new
hearing because otherwise the doctrine of futility would have no purpose. Judicial
review as has often been stated, is not a “line-by-line
treasure hunt for error” criticized by the Supreme Court of Canada in Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at paragraph 54, [2013] 2 S.C.R. 458. However, in the case at
bar, I am unable to say with confidence that these particular breaches had no
impact on the Officer’s decision. The Officer devoted some considerable
attention to these issues. The Applicant’s alternative places of residence and
work were researched in detail by the Officer. I am entitled to assume that the
Officer went to this effort because it was considered important to decide the
point in the Applicant’s case. On balance, these findings were material to the decision
of the Officer in the sense that they formed an integral part of his reasons. I
am unable to determine if the result would be the same but for the errors. I
conclude that it would be unsafe to permit this decision to stand and therefore
it is set aside.
[19]
Having found that the decision is flawed by an
error of law, there is no need to address the impugned findings further. However,
I note a report from the Chilean consular offices in Toronto, filed by the
Applicant as proposed new evidence, that indicated that there is no agreement
between USAN member countries that allow citizens of one member country,
without obtaining work permits, to work in another member country. In this
connection, there is no evidence before this Court on whether work permits are
easy or difficult to obtain. However, I need not decide the admissibility of
the proposed new evidence but wish to add that the applicable law in this
connection was recently revised in Delios v Canada (AG), 2015 FCA 117.
[20]
Given the above, it is not necessary to
determine the other issues raised by the Applicant.
[21]
Neither party proposed a question to certify,
and none arises.
Email this Content