Date: 20010112
Docket: IMM-5666-99
Ottawa, Ontario, this 12th day of January, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
LELIS JOHNAIDE PEREZ BONILLA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
PROCEEDINGS
[1] This is an application for judicial review brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of the visa officer contained in a letter dated October 14, 1999, rejecting the applicant's permanent residence application. The applicant seeks an Order setting aside the decision of the visa officer and "referring the application back to the Visa Office for reconsideration by another officer or, alternatively, for reconsideration by the same Visa Officer under direction from the Court."
BACKGROUND FACTS
[2] The applicant, Lelis Johnaide Perez Bonilla (the "applicant") is married with a child and is a citizen of Cucuta, Columbia. In 1998, she applied for permanent residence in Canada as a member of the source country class. A church in Calgary, where her parents now live, submitted a sponsorship on behalf of her and her family in 1999.
[3] The applicant was interviewed by the visa officer on October 8, 1999 in Bogata, Columbia. There is some dispute as to how long the interview lasted. The applicant states it lasted about 20 minutes in her affidavit, while the visa officer's affidavit states it lasted approximately one hour. The visa officer took notes during the interview. During the interview, the applicant was advised that she and her family did not meet the definition of member of the source country category, nor the requirements for immigration in the independent category.
[4] On or about October 26, 1999, the applicant received a letter dated October 14, 1999 rejecting her application for permanent residence in Canada pursuant to subsection 19(2)(d) of the Act. The letter included the definition of a member of the source country class and then stated:
| As I advised you at the time of your interviewed [sic], I am not satisfied that you or your husband are being seriously or personally affected by civil or armed conflict in Columbia, nor am I satisfied that you or your husband are or have been detained or imprisoned in Columbia or that you are or have been subjected to any form of penal control, nor am I satisfied that you have a well-founded fear of persecution in Columbia. |
[5] The refusal letter also states the applicant was considered according to the general criteria under subsection 8(1) of the Immigration Regulations, 1978, S.O.R./78-172, but that neither she nor she husband meet these criteria. The applicant and the visa officer filed affidavits (the visa officer was cross-examined) in relation to this application for judicial review.
[6] The issues as stated by the applicant were:
| 1. What is the substantive meaning of paragraph b(iii) of the Humanitarian |
Designated Class Regulations, S.O.R./97-183 ("HDCR"), as amended, and did the visa officer err in applying the definition of "member of the source country class"?
| 2. Did the visa officer fail to give reasons to the applicant for her decision? |
| 3. If the visa officer failed to give reasons, was this a breach of the duty of |
procedural fairness?
4. What is the standard of review with respect to the visa officer's decision?
5. Did the visa officer err in that her decision was unreasonable, based on a finding of lack of credibility or unreasonably based on a lack of well-foundedness?
APPLICANT'S SUBMISSIONS
| [7] The applicant submits she is a member of the class defined in subparagraph |
(b)(iii) under the definition of "member of the source country class" in section 1 of the HDCR. She submits the substantive test of whether a person is a member of this class (the class in subparagraph (b)(iii)), is the same test for determining whether a person is a convention refugee, except that the person is not outside of the country of nationality. Thus, the test is whether on the balance of probabilities, there is a reasonable chance or good grounds to believe, that if the claimant remains in their country of nationality they would be persecuted. The applicant argues that a reasonable chance or good grounds is anything more than a mere possibility. Furthermore, she submits the concept of well-foundedness in subparagraph (b)(iii) is a forward looking definition and only requires that claimants establish a well-founded fear of persecution. The applicant cites the definition of "convention refugee" under subsection 2(1) of the Act and the cases of Adjei v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 169 (F.C.A.); Ponniah v. Canada (Minister of Employment and Immigration) (1991), 132 N.R. 32 (F.C.A.); Ioda v. Canada (Minister of Employment and Immigration) (1993), 65 F.T.R. 166 (F.C.T.D.); and Naredo v. Canada (Minister of Employment and Immigration) (1981), 40 N.R. 436 (F.C.A.) in support of these submissions.
| [8] What is the content of the duty of procedural fairness in a case like this and |
specifically are reasons required? Did the visa officer err in failing to provide reasons to the applicant?
| [9] The applicant submits the duty of procedural fairness owed to her entailed that she |
be given reasons for the decision. She cites Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 in support of this submission. The applicant argues:
| · . the letter of the visa officer dated October 14, 1999, contained no reasons whatsoever; |
| · . the notes of the interviewing officer contained as Exhibit "A" in the respondent's affidavit do not constitute reasons because there is no explanation of why the decision was reached; |
| · . alternatively, if the notes are reasons, the reasons are inadequate in that it is not possible for the applicant to understand why the result was reached; |
| · . in the further alternative, if the reasons are adequate, the only rationale possible for the decision is that the applicant never went to the Fiscalia or other authorities and that so far nothing had happened and she had received no threats; and |
| · . the absence of reasons is not vitiated by the visa officer's affidavit or her cross-examination on that affidavit. |
| [10] If these are adequate reasons for concluding her fear was not well-founded, this is |
an error in law as she did not have to prove she was persecuted, but only that she had a well-founded fear of persecution. She also submits it is unreasonable for her to go to the authorities if she fears persecution from the very same authorities.
| [11] What is the standard of judicial review in connection with the visa officer's |
decision and in connection with any reasons given for that decision?
| [12] Given that the factors defined and applied in Baker, supra pertain to this decision |
process, the applicant submits that the standard of review is reasonableness simpliciter the applicant refers to the decision of Iacobucci, J. in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, to define an unreasonable decision.
| [13] Did the visa officer err in that her decision was unreasonably based on a finding |
of lack of credibility or unreasonably based on a lack of well-foundedness?
| [14] In the alternative, the applicant submits the visa officer made the decision based |
on a finding of no credibility and that this finding must also have been reasonably open to the visa officer. Reasonableness simpliciter, in the applicant's submission, is the appropriate standard of review for findings of credibility. The visa officer's notes do not indicate that the applicant was not believed.
| [15] The applicant argues it is apparent from the visa officer's affidavit and cross- |
examination thereon, that she did not find her statements credible due to: the applicant only mentioning the issue of fear halfway into the interview after the definition was read to her, that nothing happened to her in the past, and because she had not approached the Columbian authorities or NGO's to report any danger. The applicant submits that if open-ended questions about why she wants to leave Columbia are replied with open-ended responses such as "because things were very difficult in Columbia," it is incumbent upon the visa officer to pursue the issue of such difficulties. The applicant submits this in fact happened and she relayed details with respect to her parents' flight from Columbia and the reasons thereof.
| [16] The applicant submits there is no indication that she gave contradictory |
statements. Furthermore, the visa officer should have considered if there was a serious chance of persecution if she stayed in Columbia. In conclusion, the applicant submits the reasoning of the visa officer on cross-examination discloses an error in understanding the meaning of the definition of a member of the source country class.
RESPONDENT'S SUBMISSIONS
| [17] The respondent, The Minister of Citizenship and Immigration (the "respondent") |
frames the issues as follows:
| 1. Did the Visa Officer err in applying the definition of member of the ource |
country class?
| [18] The respondent submits the Source Country Class is defined in section 1 of the |
HDCR as an Immigrant who meets all of the five criteria set out in that definition. The visa officer found that the applicant did not meet the criteria in subparagraph (b) of the definition. Thus, since the applicant has only challenged the finding under subparagraph (b)(iii), she has agreed with the findings of the visa officer that the definitions provided in subparagraphs (b)(i) and (b)(ii) were not met.
| [19] The respondent submits the burden rests with the applicant to prove she has the |
right to come to Canada and that omission would not be contrary to the Regulations or the Act. As set out in Adjei, supra the applicant has to prove her case on the balance of probabilities.
| [20] The applicant did not provide enough credible evidence to the visa officer to show |
a serious possibility or good grounds to believe she would suffer persecution. As evident from the applicant's affidavit, only speculation regarding any future persecution was provided. As she does not state how or why her family members were persecuted and how this persecution would lead to her own persecution in paragraph 4 of her affidavit, this evidence is of little or no value in assessing if her fear is well-founded. The applicant states her reasons for wanting to come to Canada in paragraph 11 of her affidavit as: the situation was not good, she was not earning very much, and the major issue was one of security and the fact that her whole family was in Canada. The respondent submits this is of little value in determining what the security concerns were and points to the fact that she wants to come to Canada not due to persecution, but to re-unite with her family and for economic reasons.
| [21] The respondent submits it is also clear from the visa officer's affidavit that the |
applicant did not provide enough evidence of a well-founded fear. Specifically, the respondent lists twelve points at pages 5 and 6 of its memorandum of fact and law to support its submission that she did not provide credible evidence of a well-founded fear. The cross-examination on the visa-officer's affidavit only reinforced this position. The respondent submits the applicant failed to provide any objective evidence to support her claim and that in any event, the visa officer had a basis to find she did not have a well-founded fear of persecution.
2. Did the visa officer fail in her duty of procedural fairness?
| [22] The respondent submits that prior to Baker, supra the position at common law was |
that the duty of fairness did not require reasons to be provided for administrative decisions. In support of this, the respondent submits that Williams v. Canada (Minister of Citizenship and Immigration) (1997), 212 N.R. 63 (F.C.A.) went so far as to state at paragraph 39 that the basic tenets of our legal system "have never imposed a duty on tribunals to give reasons where a statute has not specifically so provided."
| [23] In the case at bar, the respondent submits the applicant was given reasons for the |
decision on five different occasions: verbally at the hearing (at which time she could have asked questions); by letter dated October 14, 1999; via the visa officer's notes; via the visa officer's affidavit; and via the cross-examination of the visa officer. Thus, the duty of procedural fairness has been met.
3. What is the standard of judicial review in connection with the visa officer's decision and did the visa officer fail to meet this standard of review?
| [24] The respondent argues it is debatable as to whether the standard of review in the |
humanitarian and compassionate grounds context of Baker, supra applies here. In light of the Suresh v. Canada (Minister of Citizenship and Immigration) (2000), 252 N.R. 1 (F.C.A.) decision, MCI submits it is also unclear how the standard of review in Baker, supra affects the traditional administrative law standard (error of fact must be truly erroneous, the finding must be made capriciously or without regard to the evidence). Equally unclear is how the increased deference traditionally given to findings of credibility are to be factored into the Baker, supra standard.
| [25] In any case, the respondent submits that if the appropriate standard of review is |
reasonableness simpliciter, the findings of the visa officer were reasonably open to her on the record and there is no basis for her decision to be set aside.
RELEVANT STATUTORY PROVISIONS
| [26] The relevant sections of the Humanitarian Designated Class Regulation state as |
follows:
| "member of the source country class" means an immigrant (a) who is residing in the immigrant's country of citizenship or of habitual residence, where the immigrant's country of citizenship or of habitual residence is a source country set out in the schedule; (b) who (i) is being seriously and personally affected by civil or armed conflict in the immigrant's country of citizenship or of habitual residence, (ii) as a direct result of acts committed outside Canada that in Canada would be considered a legitimate expression of free thought or a legitimate exercise of civil rights pertaining to dissent or to trade union activity, (A) is being or has been detained or imprisoned in that country with or without charge, or (B) is being or has been subjected to some other recurring form of penal control, or (iii) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group is unable or, by reason of such fear, unwilling to avail himself of the protection of the immigrant's country of citizenship or of habitual residence; (c) in respect of whom there is no possibility, within a reasonable period, of a durable solution; (d) in respect of whom a determination has been made under paragraph 4(1)(b); and (e) who is seeking admission to Canada for the purpose of resettling in Canada. |
| « _personne de pays source_ » Immigrant à l'égard duquel les circonstances suivantes existent: a) il réside dans le pays de sa citoyenneté ou de sa résidence habituelle, lequel pays source est visé à l'annexe; b) selon le cas: (i) une guerre civile ou un conflit armé dans ce pays ont des conséquences graves et personnelles pour lui, (ii) en raison d'actes accomplis à l'étranger qui seraient considérés au Canada comme une expression légitime de la liberté de pensée ou comme l'exercice légitime de droits civils relatifs aux activités syndicales ou à la dissidence, il a vécu l'une des situations suivantes: (A) il est ou a été détenu ou emprisonné dans ce pays avec ou sans acte d'accusation, (B) il fait ou a fait périodiquement l'objet de quelque autre forme de contrôle pénal, (iii) craignant avec raison d'être persécuté du fait de sa race, de sa religion, de sa nationalité, de ses opinions politiques ou de son appartenance à un groupe social particulier, il ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection du pays de sa citoyenneté ou du pays de sa résidence habituelle; c) aucune solution durable n'est, à son égard, réalisable dans un laps de temps raisonnable; d) il a fait l'objet d'une détermination selon l'alinéa 4(1)b); e) il cherche à être admis au Canada pour s'y réinstaller. |
| SCHEDULE (Section 1) SOURCE COUNTRIES Bosnia-Herzegovina Columbia Croatia Democratic Republic of the Congo El Salvador Guatemala Sudan |
ANNEXE (article 1) PAYS SOURCE Bosnie-Herzégovine Colombie Croatie El Salvador Guatemala République démocratique du Congo Soudan |
| 4. (1) Where a person seeks admission to Canada as a member of the country of asylum class or a member of the source country class, the person and their accompanying dependants, if any, are subject to the following admission requirements: (a) a visa officer is satisfied that the person is a member of the country of asylum class or a member of the source country class, as the case may be; |
4. (1) Les exigences relatives à l'admission de la personne qui demande à être admise au Canada à titre de personne de pays d'accueil ou de personne de pays source, ainsi que des personnes à sa charge qui l'accompagnent, le cas échéant, sont les suivantes : a) l'agent des visas est convaincu que la personne est une personne de pays d'accueil ou une personne de pays source, selon le cas; |
| And the relevant sections of the Immigration Act state as follows: |
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
| 2.(1) "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or (ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and (b) has not ceased to be a Convention refugee by virtue of subsection (2), but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act; |
2.(1) « réfugié au sens de la Convention » Toute personne_: a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_: (i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays, (ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner; b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2). Sont exclues de la présente définition les personnes soustraites à l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit à l'annexe de la présente loi. |
| 6.(3) Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada's humanitarian tradition with respect to the displaced and the persecuted, may be granted admission, subject to such regulations as may be established with respect thereto and to the immigration plan currently in force and notwithstanding any other regulations made under this Act. |
| 6.(3) Les réfugiés au sens de la Convention et les personnes appartenant à une catégorie déclarée admissible par le gouverneur en conseil conformément à la tradition humanitaire suivie par le Canada à l'égard des personnes déplacées ou persécutées peuvent être admis, sous réserve des règlements pris à cette fin et du plan d'immigration et par dérogation aux règlements d'application générale. |
| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: . . . d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
| ISSUES |
| [27] I wish to deal with the issues as follows: |
| 1. What is the standard of review to be applied in the review of the visa |
| officer's decision? |
| 2. Did the visa officer provide reasons for her decision? |
| 3. Did the visa officer err in applying the definition of member of the source |
| country class contained in subsection 6(iii)? |
| 4. Did the visa officer err in that her decision was unreasonably based on a finding of a lack of credibility or unreasonably based on a lack of well-foundedness? |
ANALYSIS AND DECISION
| [28] Issue 1 |
What is the standard of review to be applied in the review of the visa
officer's decision?
The visa officer's determination of the law must be correct while her decisions relating to the application of the facts to the law, which is a question of mixed fact and law, must be assessed on the standard of reasonableness simpliciter.
| [29] Issue 2 |
Did the visa officer provide reasons for her decision?
I am of the view that the visa officer provided reasons for her decision in her letter to the applicant dated October 14, 1999 and additionally, the visa officer's notes contain reasons for her decision. These documents meet any requirement to provide reasons for the decision. Accordingly, there was no breach of the duty of procedural fairness.
| [30] Issue 3 |
Did the visa officer err in applying the definition of member of the source
country class contained in subsection 6(iii)?
The visa officer clearly stated in her letter of October 14, 1999 the law that she was applying. For ease of reference, paragraph (b)(iii) of the definition "member of the source country class" contained in the Humanitarian Designated Classes Regulations, SOR/97-183 is repeated for ease of reference:
| "member of the source country class" means an immigrant (a) who is residing in the immigrant's country of citizenship or of habitual residence, where the immigrant's country of citizenship or of habitual residence is a source country set out in the schedule; (b) who (i) is being seriously and personally affected by civil or armed conflict in the immigrant's country of citizenship or of habitual residence, (ii) as a direct result of acts committed outside Canada that in Canada would be considered a legitimate expression of free thought or a legitimate exercise of civil rights pertaining to dissent or to trade union activity, (A) is being or has been detained or imprisoned in that country with or without charge, or (B) is being or has been subjected to some other recurring form of penal control, or (iii) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group is unable or, by reason of such fear, unwilling to avail himself of the protection of the immigrant's country of citizenship or of habitual residence; |
| « _personne de pays source_ » Immigrant à l'égard duquel les circonstances suivantes existent: a) il réside dans le pays de sa citoyenneté ou de sa résidence habituelle, lequel pays source est visé à l'annexe; b) selon le cas: (i) une guerre civile ou un conflit armé dans ce pays ont des conséquences graves et personnelles pour lui, (ii) en raison d'actes accomplis à l'étranger qui seraient considérés au Canada comme une expression légitime de la liberté de pensée ou comme l'exercice légitime de droits civils relatifs aux activités syndicales ou à la dissidence, il a vécu l'une des situations suivantes: (A) il est ou a été détenu ou emprisonné dans ce pays avec ou sans acte d'accusation, (B) il fait ou a fait périodiquement l'objet de quelque autre forme de contrôle pénal, (iii) craignant avec raison d'être persécuté du fait de sa race, de sa religion, de sa nationalité, de ses opinions politiques ou de son appartenance à un groupe social particulier, il ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection du pays de sa citoyenneté ou du pays de sa résidence habituelle; |
This judicial review deals only with that part of the visa officer's decision which discusses subparagraph (b)(iii). The applicant has the burden of proving that she has a right to come to Canada (section 8 of the Act).
| [31] The applicant stated that if she remained in Columbia, she would be persecuted by |
Columbian State forces or para-military groups in the same way that other members of her family were persecuted. There is no evidence of how the other members of her family were persecuted.
| [32] The respondent's memorandum summarizes statements of the visa officer |
contained in her affidavit and they include the following:
18. That the Applicant clearly did not provide enough evidence of the well-founded fear is also evident from the Visa Officer's Affidavit. A review of her Affidavit indicates:
a) neither the Applicant nor her husband have ever been detained or threatened;
b) when asked whey she wanted to come to Canada, the Applicant gave three reasons;
| i) her whole family was in Canada; |
ii) it was difficult in Columbia;
iii) her family was doing well in Canada;
c) When asked why she wanted to leave Columbia she answers she made little money and life in Canada was much better.
d) Only after the source country definition was put to her and she was told that she did not meet its requirements, did the Applicant mention fear or security.
e) The Applicant and her dependants had never received any threats or ill-will from anyone.
f) The applicant has not approached anyone, including any NGO's, to report threats or danger.
g) The letter from the sponsor did not indicate what the Applicant was at risk of.
h) The Applicant gives different reasons at different times in the interview why her father may have had problems with the authorities. One of the answers was that he had problems but she didn't know what the problems were, other than perhaps a law suit.
i) The Applicant had never been threatened, physically harmed, forced to leave home, work, or studies, or otherwise had her normal routine affected.
j) The Applicant had no evidence of any malice against her in the four years since her father left Columbia.
k) The Applicant did not leave her hometown.
| [33] Based on these facts and the references contained in the visa officer's notes, I am |
of the opinion that the visa officer did not err in applying that portion of the definition of "member of the source country class" contained in subparagraph (b)(iii). The facts submitted by the applicant, both at the hearing and in her affidavit, do not establish that she has a well-founded fear as required by subparagraph (b)(iii) thus, she does not meet the definition of a "member of the source country class".
| [34] I do not find it necessary to deal with Issue 4 as this issue was dealt with by my |
ruling in paragraph 33.
| [35] I would therefore dismiss the application for judicial review. |
| [36] The applicant has requested that I certify, pursuant to subsection 83(1) of the Act, |
the following questions as serious questions of general importance. The issues stated in her memorandum of argument with issue number 2 being subsumed in issue number 3. These issues are:
1. What is the substantive meaning of paragraph b(iii) of the Humanitarian Designated Class Regulation and did the visa officer err in applying the definition of member of the source country class?
2. What is the impact of the decision on the applicant?
3. What is the content of duty of procedural fairness in a case like this and specifically are reasons required? Did the visa officer err in failing to provide reasons to the applicant?
4. What is the standard of judicial review in connection with the visa officer's decision and in connection with any reasons given for that decision?
5. Did the visa officer err in that her decision was unreasonably base don a finding of lack of credibility or unreasonably based on a lack of well-foundedness?
| [37] I have reviewed these questions and I am not prepared to certify any of them |
pursuant to subsection 83(1) of the Act.
ORDER
| [38] IT IS ORDERED that the application for judicial review is dismissed. |
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
January 12, 2001