Date: 20020829
Docket: IMM-4709-01
Ottawa, Ontario, the 29th day of August, 2002
Present: The Honourable Mr. Justice Pinard
Between:
KADIATOU TRAORE
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of Denise Couture, an immigration officer, dated June 20, 2001, determining that there was no reason under subsection 114(2) of the Immigration Act, R.S.C., 1985, c. I-2, that could warrant granting the applicant a ministerial exemption under subsection 9(1) of that Act, is dismissed.
YVON PINARD
JUDGE
Certified true translation
S. Debbané, LLB
Date: 20020829
Docket: IMM-4709-01
Neutral citation: 2002 FCT 909
Between:
KADIATOU TRAORE
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J :
This is an application for judicial review under section 82.1 of the Immigration Act, R.S.C., 1985, c. I-2 (the "Act") of the decision of Denise Couture (hereinafter "the immigration officer") dated June 20, 2001, determining that there was no reason under subsection 114(2) of the Act that could warrant granting the applicant a ministerial exemption under subsection 9(1) of the Act.
On September 7, 1999, the applicant arrived at Dorval Airport with a six-month visitor's visa. She met Roberto Vézina for the first time on September 18, 1999.
On October 2, 1999, there was a marriage proposal between the applicant and Mr. Vézina, and they were married on October 29, 1999.
On December 20, 1999, the applicant made a request to be exempted from applying for landing outside of Canada, for humanitarian considerations under subsection 114(2) of the Act. On October 5, 2000, a first interview was held with an immigration officer to determine whether the marriage that was celebrated on October 29, 1999, was bona fide. On October 26, 2000, the application for an exemption was denied, and this led the applicant to submit an application for leave and for judicial review on December 5, 2000.
On February 15, 2001, the applicant filed a second request for exemption, this time for humanitarian considerations with risks of return.
On February 28, 2001, the respondent was notified by the applicant that she was withdrawing her application for leave and for judicial review.
On April 27, 2001, the post-claim determination officer (hereinafter "PCDO") issued an opinion concerning the risks of return for the applicant, and on May 9, 2001, the applicant submitted her comments to the PCDO.
Following an interview on June 7, 2001, with the applicant and Mr. Vézina, the immigration officer denied the applicant's request for a visa exemption on June 20, 2001, and that led the applicant to file this application for judicial review on or about October 12, 2001. In her application for leave and for judicial review, the applicant acknowledged receiving the impugned decision on June 28, 2001.
It is worth reproducing the following conclusions of the immigration officer's fully reasoned decision:
[TRANSLATION] I reviewed the opinion on the assessment of the risks of return and this report indicates that Ms. Traoré is not at risk if she returns to Mali. The analysis carried out by the PCDO is thorough and is based on relevant documents. The applicant was given the opportunity to make observations, which did not produce any new evidence. Having regard to the analysis, this report seems to me to be impartial and I am in agreement with the decision of the PCDO with respect to the absence of risks of return.
After reviewing all of the statements made by the applicant and the sponsor, I note several inconsistencies that lead me to believe that these two individuals do not share their daily lives together and do not live together even though the spouses gave a similar description of the place of residence.
In view of all this evidence, I conclude that there is no humanitarian ground to exercise my discretion.
The request for exemption is therefore denied.
First off, the order granting leave for these proceedings did not address the applicant's application for an extension of time, and the respondent submitted that the applicant had not validly justified the extension sought.
The main reason cited by the applicant to support her application for an extension is that she only became aware that her application for judicial review had been refused on August 23, 2001. Subsequent to this, she apparently asked her previous counsel to intervene with the immigration officer in order to change the decision but was unsuccessful. She then gave instructions to her current counsel in the case to file this application.
In Tarsem Singh Grewal v. M.E.I., [1985] 2 F.C. 263, the Federal Court of Appeal laid down the four factors that an applicant must show if he or she is to succeed in an application for an extension of time:
1. A continuous intention to continue the application;
2. A sound application;
3. No prejudice to the applicant will result from the extension; and
4. A satisfactory explanation for the delay.
Those factors have been cited a number of times in the case law, in particular in Canada (Attorney General) v. Hennelly, [1999] F.C.J. No. 846 (QL), a unanimous decision by the Federal Court of Appeal.
In Novotny v. Canada (M.C.I.), [2000] F.C.J. No. 30 (T.D.) (QL), Prothonotary Hargrave said:
"as the condition for obtaining such an extension of time an applicant must show that there was some justification for the delay throughout the whole period of the delay and that he has an arguable case . . . "
After reviewing the file and considering the parties' arguments, I am of the opinion that the applicant did not in any way justify the entire delay at issue of some three months, notwithstanding the able submissions of counsel for the applicant. A pending decision concerning her claim for refugee status and the attempt to have the immigration officer's decision in this case changed do not constitute a satisfactory explanation justifying the delay. The applicant could and should have filed her application for leave within fifteen days following June 28, 2001, the date on which she acknowledged being informed of the decision in question. The applicant's delay that was not appropriately justified is therefore fatal and results in itself in the dismissal of this application.
In any event, I consider this application for judicial review devoid of any merit.
In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, Madam Justice L'Heureux-Dubé stated, at pages 857 to 858, that the standard of review applicable to decisions made under subsection 114(2) of the Act is reasonableness simpliciter:
These factors must be balanced to arrive at the appropriate standard of review. I conclude that 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, the fact that the decision-maker is the Minister, 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 Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
The applicant first submitted that the immigration officer was wrong to have based her decision solely on the opinion of the PCDO. On that point, I do not agree. In Al-Joubeh v. Canada (M.C.I.) (1996), 109 F.T.R. 235, at page 239, Mr. Justice Campbell concluded that it is appropriate for an immigration officer to seek the opinion of a PCDO when risks of return are at issue as in this case. Moreover, it was established that obtaining such an opinion and considering it in the context of a decision of an immigration officer does not fetter his or her discretion.
In Haghighi v. Minister of Citizenship and Immigration (September 8, 1999), IMM-4780-98 (F.C.T.D.), Mr. Justice Gibson stated that it was a common and acceptable practice for an immigration officer to consult with a PCDO as long as the final decision is made by the immigration officer.
In Bertram v. Canada (M.C.I.), [1999] F.C.J. No. 1362 (T.D.) (QL), Mr. Justice Cullen also concluded that it was open to an immigration officer to consult with a PCDO:
Notwithstanding this shortcoming, jurisprudence of this court has held that an immigration officer making a decision under subsection 114(2) may rely on a risk assessment conducted by a PCDO.
Given that in this case, the immigration officer further took into consideration a number of inconsistencies between the statements of the applicant and her sponsor, no one can blame her for having also consulted with an expert such as the PCDO to assess the risks of return, in order to make a fair and reasonable decision.
The applicant then goes on to allege that the immigration officer failed to question her on the comments made by the PCDO. In Haghighi v. Canada (M.C.I.), [2000] 4 F.C. 407, at page 423, Mr. Justice Evans, writing for the Federal Court of Appeal, stated the following:
In my opinion, the duty of fairness requires that inland applicants for H & C landing under subsection 114(2) be fully informed of the content of the PCDO's risk assessment report, and permitted to comment on it, even when the report is based on information that was submitted by or was reasonably available to the applicant. Given the often voluminous, nuanced and inconsistent information available from different sources on country conditions, affording an applicant an opportunity to comment on alleged errors, omissions or other deficiencies in the PCDO's analysis may well avoid erroneous H & C decisions by immigration officers, particularly since these reports are apt to play a crucial role in the final decision. I would only add that an opportunity to draw attention to alleged errors or omissions in the PCDO's report is not an invitation to applicants to reargue their case to the immigration officer.
In this case, the PCDO gave the applicant the opportunity to make comments in order to raise errors or omissions in the PCDO's report, which she did. The immigration officer made reference both to the PCDO's opinion and to the applicant's observations. It therefore appears that the immigration officer reasonably took both into account.
The applicant also argues that the immigration officer failed in her duty of procedural fairness by failing to inform the applicant or her husband of the doubts she had regarding whether
the marriage was genuine and the apparent contradictions. In Shah v. Canada (M.E.I.), [1994] F.C.J. No. 1299 (QL), the Federal Court of Appeal held:
. . . The power to grant such exemption resides in subsection 114(2) of the Act. The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. In this respect it differs from many other decisions, e.g. by a visa officer dealing with a sponsored application for landing where the law establishes criteria which, if met, give rise to certain rights.
In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. See Muliadi v. Canada (Min. of Employment & Immigration) (1986), 18 Admin. L.R. 243. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. Any dicta arguably to the contrary in In re H.K. (An Infant), [1967] 2 Q.B. 617, Kaur v. Canada (Minister of Employment & Immigration) (1987), 5 Imm. L.R. (2d) 148, and Ramoutar v. Canada, [1993] 3 F.C. 370, should be read in this light.
To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. See Vidal v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 123. And generally as to the standard of review of statutory discretions see D.R. Fraser and Co., LD. v. Minister of National Revenue, [1949] A.C. 24. It is a heavy burden and the applicant has not met it. The application was properly dismissed.
In light of this case law, I am of the opinion that there is no duty to confront the applicant with the apparent contradictions in the record. Moreover, I cannot accept the applicant's arguments relating to the assessment of facts made by the immigration officer since I am not satisfied, after reviewing the evidence, that the decision of the immigration officer was based on an erroneous finding of fact that she made in a perverse or capricious manner or without regard
for the material before her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C., 1985, c. F-7).
The applicant's final argument was that the immigration officer and the PCDO erred in law by imposing on her an excessive burden of proof. It is settled law that the burden of showing on a balance of probabilities that he or she should benefit from an exemption falls on the applicant (see Shah, supra). I am of the opinion that the applicant did not meet that burden, and in light of the relevant evidence, the decision made by the immigration officer does not appear to me to be unreasonable.
For all of these reasons, the application for judicial review is dismissed. I am in agreement with counsel for the parties that this is not a case for certification.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 29, 2002
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4709-01
STYLE OF CAUSE: KADIATOU TRAORE v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: July 11, 2002
REASONS FOR ORDER OF: The Honourable Mr. Justice Pinard
DATED: August 29, 2002
APPEARANCES:
Serge Dumas FOR THE APPLICANT
Steve Bell FOR THE RESPONDENT
SOLICITORS OF RECORD:
Serge Dumas FOR THE APPLICANT
Sainte-Foy, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario