Date: 20020225
Docket: IMM-229-01
Neutral citation: 2002 FCT 187
BETWEEN:
CARL ANTHONY BLAKE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O'KEEFE J.
[1] This is an application for judicial review under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 of the decision dated January 29, 2001 by the immigration officer. The immigration officer's decision denied the applicant's request to be approved on humanitarian and compassionate ("H & C") grounds for an exemption from the requirement to apply for, and obtain, an immigrant visa prior to coming to Canada as required by subsection 9(1) of the Immigration Act, supra.
[2] The applicant seeks an order to quash the decision of the immigration officer and send the matter back for redetermination.
Background Facts
[3] The applicant is a citizen of Jamaica. The applicant's arrival in Canada and ensuing immigration history is chronicled in the time-line below. Paragraphs in brackets indicate information that was not before the immigration officer at the time of the decision.
· April 25, 1997: The applicant arrives in Canada without an immigration visa or visitor's visa as required by the Immigration Act, supra.
· January 18, 1999: A joint bank account belonging to the applicant and his sponsor is opened, according to a letter from The Bank of Nova Scotia dated August 3, 2000. The account had a balance of $154.12 at the time of the letter.
· April 23, 1999: The applicant meets his sponsor, according to the applicant's recent application for H & C consideration (submitted December 15, 1999).
· May 10, 1999: The applicant attends an interview with a previous immigration officer in connection with a previous application for spousal H & C consideration. The applicant is accompanied in the interview by his then wife and sponsor.
· June 19, 1999: The applicant proposes to his current sponsor.
· July 21, 1999: The applicant's previous application for H & C consideration is refused.
· September 29, 1999: The applicant divorces the wife who acted as his sponsor for the previous H & C application.
· November 27, 1999: The applicant marries his current sponsor.
· December 15, 1999: The applicant submits the recent H & C application.
· May 25, 2000: A deportation order is issued against the applicant, noting that he was found working without authorization as described under paragraph 27(2)(b) of the Immigration Act, supra.
· May 25, 2000: The applicant files a refugee claim.
· July 28, 2000: A letter with this date is sent from the immigration officer to the applicant requesting further information, including evidence of a genuine marriage to his sponsor, and of co-habitation and dating that had taken place since November 1999.
· August 4, 2000: The immigration officer is informed that the applicant's spouse has become pregnant, by letter on this date sent from the applicant's Immigration Representative. A doctor's note indicating that the sponsor is pregnant and that the expected date of delivery is 21 January 1900 [sic] is attached.
· August 30, 2000: The immigration officer decided on this date not to grant an exemption for the applicant's recent H & C application, according to the letter dated January 29, 2001, the immigration officer's notes and the immigration officer's affidavit.
· (January 11, 2001: The applicant's current sponsor gives birth to a Canadian-born child and the applicant is the child's father, according to the applicant's affidavit of March 5, 2001.)
· (January 29, 2001: A letter with this date is sent from the immigration officer to the applicant in which the decision to deny the applicant's request under H & C grounds is refused.)
· (March 5, 2001: The applicant swears an affidavit which states, in part, that the applicant knew his current sponsor since childhood, and that he met her again in the summer of 1998.)
[4] As noted above, by letter dated January 29, 2001, the immigration officer informed the applicant of the decision to deny the H & C request for an exemption from the requirement of subsection 9(1).
Applicant's Submissions
[5] The applicant submits that the immigration officer breached the principles of procedural fairness in making a determination on the basis of a credibility finding without conducting an interview of the applicant.
[6] The applicant cites the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, as support for the proposition that a high duty of procedural fairness applies in this case. The applicant refers to a quote by L'Heureux Dubé J. where she stated:
The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.
[7] The applicant submits that courts have recognized that credibility cannot be determined by way of written submissions. As a result, the applicant submits that an affected person whose credibility is impugned must be given the opportunity to present via voce evidence to the decision-maker, and respond to concerns. The applicant refers to the decision of Wilson J. in Singh v. Canada (Minister of Employment and Immigration) [1985] 1 S.C.R. 177 and the case of Baker, supra for this proposition.
[8] The applicant submits that the applicant has a right to enter into marriage and to form and enjoy the sanctity of a family under internationally recognized human rights.
[9] The applicant submits that a credibility finding that a marriage is not bona fides has a direct and fundamental impact on the child of the relationship as it results in the dissolution of the family unit and indefinite separation of the father from his child. The applicant contends that such a finding may ultimately be permissible but not without a fair and appropriate process.
[10] The applicant submits that the immigration officer's decision that the applicant's relationship with his spouse was not bona fides was unreasonable and perverse. The applicant contends that it is unreasonable to base a refusal decision on a prior application for landing with a different spouse.
Respondent's Submissions
[11] The respondent submits that the immigration officer complied with the duty of fairness and properly exercised her discretion in concluding that the applicant did not merit a waiver of the landing requirement pursuant to section 9(1) of the Immigration Act, supra.
[12] The respondent submits that H & C review is a special and additional consideration for an exemption from Canadian immigration laws which are otherwise universally applied. As such, the decision of an immigration officer not to recommend an exemption under section 114(2) does not take away any right from the applicant.
[13] The respondent submits that the Supreme Court of Canada in Baker, supra makes it clear that an oral hearing is not necessary in order to consider an application based on humanitarian and compassionate grounds.
[14] The respondent contends that the "child" referred to by the applicant was only a fetus at the time that the immigration officer reviewed the individual circumstances of the applicant's application and decided that an exemption would not be granted. The applicant contends that the immigration officer reviewed the application on August 30, 2000 and the child was due to be born in January, 2001. The respondent submits that Baker, supra does not impose a requirement to be alive and attentive to the interests of unborn children.
[15] The respondent submits that the immigration officer discharged all duties incumbent on her in making the assessment.
Law
[16] Subsection 9(1) of the Immigration Act, supra states:
|
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
[17] Subsection 114(2) of the Immigration Act, supra states:
|
114.(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
[18] Issues
1. What is the standard of review to be applied to this application?
2. Whether the immigration officer rendered a decision that was unreasonable.
3. Whether the immigration officer breached the principles of procedural fairness in making a determination on the basis of a credibility finding without conducting an interview of the applicant.
Analysis and Decision
[19] Issue 1
What is the standard of review to be applied to this application?
In Baker, supra, the Supreme Court of Canada addressed the standard of review for a H & C decision at page 821 as follows:
In applying the applicable factors to determining the standard of review, considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as "patent unreasonableness". The appropriate standard of review is, therefore, reasonableness simpliciter.
Discretionary decisions of the immigration officer on humanitarian and compassionate grounds involve issues of mixed fact and law and are to be reviewed on the standard of reasonableness
simpliciter. The standard of review for decisions of an immigration officer on questions of pure law is correctness.
[20] Issue 2
Whether the immigration officer rendered a decision that was unreasonable.
It is quite clear from the record and other filed material that the applicant's first H & C application was based on a marriage of convenience or a marriage that was not bona fides. That marriage was entered into to facilitate the applicant's application to apply for landing from within Canada. That is not the end of the matter, however, since this judicial review deals with a second H & C application which is based on his second and current wife's sponsorship of him as a member of the family class.
[21] The second application must be dealt with on its own merits. As I read the reasons of the immigration officer, considerable weight is placed on the fact that the applicant had made a prior H & C application with a different spouse sponsoring him. This factor can be considered but it should only be considered along with other factors which show the second marriage not to be bona fides or genuine. I have reviewed the last paragraph on page one of the immigration officer's "Decision and Rationale" and when I compare the request with the reply of the applicant's counsel dated August 4, 2000, it would appear that many pieces of the information sought were supplied. If there were concerns about any of the information, a follow-up could have been carried out. I cannot find any evidence other than the fact that the previous marriage was not genuine and the fact that the applicant applied for H & C consideration within one month
of his marriage to his second sponsor to support the finding that his second marriage is not genuine. For this reason, I find that the decision of the immigration officer is unreasonable and must be set aside. I should note that I make no comment on whether the second marriage is bona
fides as that is a question for an immigration officer. The matter is submitted to a different immigration officer for redetermination.
[22] Because of my disposition of the second issue, it is not necessary for me to deal with Issue 3.
[23] The parties will have one week from the date of these Reasons to submit any proposed serious question of general importance for my consideration and three days to make any response to a submitted question, before I render my Order.
"John A. O'Keefe"
J.F.C.C.
Vancouver, British Columbia
February 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-229-01
STYLE OF CAUSE: CARL ANTHONY BLAKE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, November 1, 2001
REASONS FOR ORDER OF O'KEEFE J.
DATED: Monday, February 25, 2002
APPEARANCES:
Mr. Ronald Poulton
FOR APPLICANT
Ms. Mielka Visnic
FOR RESPONDENT
SOLICITORS OF RECORD:
Mamann and Associates
Suite 114
74 Victoria Street
Toronto, Ontario
M5C 2A5
FOR APPLICANT
Department of Justice
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT