Date: 20020911
Docket: IMM-648-02
Neutral citation: 2002 FCT 952
Ottawa, Ontario, Wednesday the 11th day of September 2002
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
NATALIA VOITSEKHOVSKY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] This is an application for judicial review of a decision of a removal officer made on February 4, 2002, not to defer the deportation of Ms. Voitsekhovsky.
THE FACTS
[2] Ms. Voitsekhovsky is a 48 year-old citizen of Israel who was born in Moldova in the former Soviet Union. She initially arrived in Canada in 1993 with her husband and daughter on a visitor's visa. Shortly after arriving in Canada, Ms. Voitsekhovsky made a refugee claim against Israel, which was denied by the Immigration and Refugee Board in May 1995. Leave for judicial review of that decision was denied. Following a negative Post-determination Refugee Claimants in Canada ("PDRCC") assessment Ms. Voitsekhovsky and her family were removed to Israel in 1996.
[3] In 1998, Ms. Voitsekhovsky, her husband and daughter returned to Canada on another visitor's visa and shortly after arrival they made a second refugee claim. Ms. Voitsekhovsky's other daughter, who is a permanent resident of Canada, filed a sponsorship application for her mother on November 2, 2000. On November 27, 2000, Ms. Voitsekhovsky submitted a humanitarian and compassionate ("H & C") application.
[4] The Immigration and Refugee Board rendered a negative decision with respect to the second refugee claim in December 2000. Her daughter's sponsorship application, and Ms. Voitsekhovsky's H & C application were refused in August 2001. A negative PDRCC decision was issued in December 2001.
[5] In October 2001, Ms. Voitsekhovsky and her daughter attended their first pre-removal interview.
[6] According to Ms. Voitsekhovsky, in October and November 2001 she attended a number of such interviews with Officer Dickie, a university student working at Canada Immigration as a co-op student. Ms. Voitsekhovsky says that Officer Dickie encouraged Ms. Voitsekhovsky to file a second H & C application, expressing the view that the first H & C decision was not correct. Ms. Voitsekhovsky says that as a result of that encouragement and advice, in December 2001 she filed her second H & C application.
[7] Officer Dickie denies both making these comments and giving this advice.
[8] On February 4, 2002, Ms. Voitsekhovsky attended a removal interview with a removal officer who informed Ms. Voitsekhovsky that, notwithstanding her pending H & C application, her removal would take place during the week of February 24, 2002. The removal officer noted that there were no notes on file indicating Officer Dickie's "encouragement". On February 14, 2002, Ms. Voitsekhovsky again met with the removal officer to discuss removal arrangements. At that time, Ms. Voitsekhovsky served the removal officer with the notice of application for leave and for judicial review filed in this proceeding.
[9] On February 22, 2002, an order was issued by this Court staying Ms. Voitsekhovsky's deportation until the present application was dealt with.
THE ISSUE
[10] A single issue is raised in this application. Did the removal officer breach the duty of fairness based on the doctrine of legitimate expectation when he refused to defer the removal arrangements pending the outcome of the second H & C application filed by Ms. Voitsekhovsky?
ANALYSIS
[11] The analysis begins from the premise that conduct said to give rise to a reasonable expectation must be clear, unambiguous and unqualified. See: Brown and Evans, Judicial Review of Administrative Action in Canada, at page 7-41, cited with approval by McLachlin C.J. and Binnie J. in Mount Sinai Hospital Centre v. Quebec (Minister of Health and Social Services), 2001 SCC 41 at paragraph 29.
[12] The evidence provided by Ms. Voitsekhovsky in support of her assertion of a legitimate expectation is contained in three affidavits sworn respectively by Ms. Voitsekhovsky, her daughter, and a friend. That evidence, in its entirety, is as follows:
1. Ms. Voitsekhovsky swore:
In October and November of 2001, subsequent to the negative decision on my first Humanitarian and Compassionate application, I had a number of interviews with immigration officer Ambra Dickie. At one of these interviews, immigration officer Ambra Dickie told me to hire a lawyer and submit another Humanitarian and Compassionate application. Immigration officer Ambra Dickie also said that there were many mistakes in the decision on my first Humanitarian and Compassionate application.
2. Ms. Voitsekhovsky's daughter swore in her affidavit that:
In October and November of 2001 I attended three interviews with immigration officer Ambra Dickie and had many telephone conversations with her. In one of the interviews, immigration officer Ambra Dickie said that my mother has a very good chance of winning and that she should file another Humanitarian & Compassionate application. She said that we should hire a lawyer to complete this application. In the next interview, immigration officer Ambra Dickie asked how we were doing with hiring a lawyer and making the application. She said to hurry up with the application.
3. Ms. Voitsekhovsky's friend swore in her affidavit that:
After that, we started discussing the Humanitarian decision. I do remember that there was considerable discussion about whether there was sufficient income for a sponsorship. We also discussed other issues, including about some sort of child benefit which the Applicant was supposed to have received but didn't. This discussion was about 45 minutes or an hour. Mark and I then said to immigration officer Dickie that there were many mistakes in the humanitarian decision. She agreed and replied that she sees that there are mistakes in this case. I asked immigration officer Dickie whether it would be possible for the case to be reviewed again. Immigration officer Dickie said that was not possible and that even if there are mistakes it was not possible to review the case. However, immigration officer Dickie said that we could apply a second time. I asked her how we can have a guarantee that next time there will not be mistakes again. Immigration officer Dickie said that we are all human and that we all make mistakes. Immigration officer Dickie said that it was the Applicant's right to hire a lawyer and apply again. She also said that the Applicant has a chance to win if she applies again. I am not completely certain whether immigration officer Dickie said the Applicant has a good chance, but I am sure that she said the Applicant has a chance to win. Immigration officer Dickie said that she would continue preparing the documents for leaving the country, but that this would take some time. She said that the Applicant will have enough time to hire a lawyer and go ahead with another humanitarian application. [Underlining added]
[13] What is not contained in any of these affidavits is evidence that any representation, let alone a clear, unambiguous and unqualified representation, was made that removal would be deferred until after the second H & C application was both made and processed. Indeed, the evidence of the friend, the most detailed evidence provided about what transpired, acknowledges that Officer Dickie said she would continue to prepare the removal documents.
[14] Officer Dickie swore that:
In response to paragraph 3 of Natalia Voitsekhovsky's affidavit, I deny that I made the comments described. I recall that I advised Ms. Voitsekhovsky that I was not in any position to decide if there had been a mistake made in her negative humanitarian and compassionate application, but if she wanted to she could hire a lawyer to submit another application but in the meantime removal arrangements would proceed.
[15] Even if one looks only at the evidence of Ms. Voitsekhovsky, her daughter and friend, the evidence falls short of establishing either an express or implied representation that removal would not proceed so as to found application of the doctrine of legitimate expectation.
[16] On Ms. Voitsekhovsky's behalf it is argued that an invitation to file a second H & C application that carries with it, by implication, the promise that if filed removal would not be carried out until the application was processed. Otherwise, it is said, the filing of an H & C application would confer no benefit. With respect, even if it is accepted that Ms. Voitsekhovsky was encouraged to file an H & C application, I accept the evidence of Officer Dickie that she advised Ms. Voitsekhovsky that removal arrangements would proceed even if a new H & C application was filed because that evidence is corroborated by Ms. Voitsekhovsky's friend. That express statement must necessarily oust any contradictory implicit representation.
[17] Further, the filing of an H & C application does confer a benefit even if removal proceeds because the application will continue to be processed even after removal, and if successful the applicant would then be allowed to return to Canada to be landed from within Canada.
[18] For these reasons, the application for judicial review is dismissed.
[19] Counsel for Ms. Voitsekhovsky posed certification of the following question:
Whether an explicit promise is necessary for a legitimate expectation to arise or whether an implicit promise is sufficient.
[20] The Minister opposed certification of the question and submitted that there is no evidentiary record to support the question.
[21] I agree with the submission of counsel for the Minister that the question does not arise out of the evidentiary record before the Court because I have found on the evidence that there was no implicit representation contrary to the express advice given by Officer Dickie.
ORDER
[22] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-648-02
STYLE OF CAUSE: Natalia Voitsekhovsky v. M.C.I.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 28, 2002
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: September 11, 2002
APPEARANCES:
Martin J. Bauer FOR THE APPLICANT
Helen Park FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Hobson & Company FOR THE APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada