Date: 20000712
Docket: IMM-3917-99
IMM-5048-99
BETWEEN:
PHEMA PHUTI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] There are three central questions in these judicial review proceedings which arise from two separate decisions made by visa officers in the context of the refusal of the application for permanent residence in Canada by Phema Phuti (the "applicant"), a citizen of India who still resides there. These questions are: (1) whether the respondent breached its duty of fairness in the way its officers handled the application; (2) whether its officers unlawfully reopened a positive decision; and (3) whether the decision made was perverse.
[2] File IMM-3917-99 deals with the visa officer's decision to refuse the application. It did not need leave of the Court. File IMM-5048-99 came to this Court with leave because it dealt with the Minister's decision not to exempt the applicant on humanitarian and compassionate grounds.
THE BACKGROUND FACTS
[3] The applicant, for thirty years, was in the employ of Mr. & Mrs. Manucha and accompanied them abroad when Mr. Manucha was a Foreign Service Officer in the service of the Government of India and later Ambassador of India.
[4] Mr. & Mrs. Manucha, after his retirement, became permanent residents of Canada to be with their two sons who had settled in Toronto. In 1992, Mrs. Manucha, whose husband had passed away and who herself was stricken with cancer, began her efforts to sponsor and obtain the applicant's landing in Canada based on humanitarian and compassionate grounds related to the applicant and to herself.
[5] Matters languished somewhat until Rajiv Manucha, one of the two sons, got involved. He wrote a letter on November 21, 1994 to the Canadian High Commission in New Delhi endorsing the applicant's settlement in Canada and undertaking to pay for all her expenses and to support her financially and emotionally in Canada. He stated he was employed as the President of Management System Resources Inc. and mandated the company's solicitor Anne Smokorowsky to follow up on matters.
[6] On December 8, 1994, Claire Lord, Third Secretary, Immigration, at the High Commission in New Delhi, wrote a memo to the Program Officer (Immigration) recommending a waiver of the selection criteria for the applicant based on humanitarian and compassionate grounds, (certified Tribunal record, page 41).
[7] The certified Tribunal record ("CR") then next records at page 40 a letter dated August 1, 1996 from Claire Lord to the applicant referring to her application for permanent residence, stating that medical instructions had been forwarded to her on November 15, 1995, for the first time but that no results had been received and asking her whether she was still interested in migrating to Canada and when she underwent medical examinations. The applicant was advised to respond within the next 60 days because otherwise her application would be refused.
[8] The CR has a gap between December 8, 1994 and August 1, 1996 which can be reconstructed by reference to the CAIPS notes on the applicant's file. It appears the following transpired:
(a) Claire Lord interviewed the applicant in Bombay on November 18, 1994;
(b) As noted, on December 8, 1994, Claire Lord made a favourable recommendation to the Program Officer who had authority to waive the selection criteria;
(c) On February 14, 1995, the Program Officer did not believe there were sufficient humanitarian and compassionate grounds for a waiver of the selection criteria;
(d) On November 9, 1995, Claire Lord made the following CAIPS entry:
Case was with BB for approval of refusal letter but after discussion about this case BB advised that I should reopen the case and recommend it for positive discretion to him; [emphasis mine]
(e) On November 13, 1995, BB records the following note:
I concur, based on info provided in above-mentioned discussion and review of file;
(f) On November 14, 1995, Claire Lord records in the CAIPS notes "we will resume processing by issuing the meds to the applicant and send suppl. forms to B Unit". The CAIPS notes record that the medicals were issued to the applicant that same day.
[9] On September 3, 1996, in response to the August 1, 1996 letter from Claire Lord to the applicant, Anne Smokorowsky wrote to Claire Lord indicating the applicant did wish to migrate to Canada and the matter had been turned over to her for attention and reply. She indicated they were proceeding with all of the requirements and asked that all correspondence being sent to the applicant or her sponsor be sent to her as their solicitor in Canada. On December 19, 1996, she filed with the Canadian High Commission ("CHC") the applicant's notarized authorization appointing her to act as her agent in all matters concerning her application for permanent residence. She asked for all documents on the file and followed up with that request.
[10] On June 23, 1997, the second secretary (Immigration) at CHC sent a letter to the applicant indicating her application for permanent residence could not be approved because she had not undergone medical examinations as requested in the November 15, 1995 letter and subsequent follow-ups.
[11] On November 10, 1997, Anne Smokorowsky wrote to CHC indicating to them that, despite her requests, she had never received any correspondence from CHC. She felt the file should be reopened and the application reinstated immediately because of the factors mentioned in her letter.
[12] A follow-up letter was sent by her on November 15, 1997 and another one on November 21 of that year.
[13] On February 21, 1998, Brian LeConte, Councillor, Immigration at CHC faxed Anne Smokorowsky a note referring to her letter of November 10, 1997 stating "Like you, I would like to resolve this case". He referred to the fact originally the programme officer had turned down the H & C recommendation "but after further review, managerial concurrence was given in November 1995. At this point, the applicant was sent medical instructions"[emphasis mine].
[14] Mr. LeConte then told Anne Smokorowski it was possible to reopen the file and to issuethe medical instructions but he required some information. He wrote:
However, before doing so, I would like to clarify the following:
- it is my understanding that one of the reasons for wishing to have the applicant in Canada is to be with an aged parent of your client. Is this still the situation?
- in the event that the elderly relative passes on, is it the intention of your client to have the applicant remain in Canada and be supported by your client (given that the applicant is unlikely to be self supporting)?
[15] Anne Smokorowsky responded on February 24, 1998 advising "We do wish to reopen the file and to have you reissue the medical instructions, as outlined in your letter (CR, page 21).
[16] In that letter of February 24, 1998, Anne Smokorowsky advised Mr. LeConte that Mrs. Manucha has passed away but that her son still wished to care for the applicant in her old age and let his children have the presence and love of someone who could stand as a grandmother. She reiterated Mr. Manucha intended to fully support the applicant and to have her remain in Canada as one of his family. On April 15, 1998 Mr. LeConte advised Anne Smokorowsky ". . . we have reopened the file...". Mr. LeConte asked for four photographs of the applicant in order to reissue the medical instructions (CR page 18).
[17] Anne Smokorowsky followed up on progress and on September 22, 1998, asked for an update to which Mr. LeConte replied on October 12, 1998, in the following terms:
Medical results have been received and I hope to finalize this case as soon as possible. I also wish to confirm that all correspondence will be directed to you as per your request. There seems to be conflicting information concerning her date of birth. Prior to visa issuance we would require a photocopy of the personal details page of her passport. Please arrange to have this sent to us. (CR page 15) [emphasis mine]
THE DECISIONS MADE BY THE VISA OFFICERS
[18] Approximately nine months later, on June 27, 1999, Mr. LeConte wrote to Anne Smokorowsky indicating that he had been instructed to advise the applicant her application for permanent residence could not be accepted. He advised the applicant was unable to meet the regular immigration selection criteria and the program manager was unwilling to exercise positive discretion under section 2.1 of the Immigration Regulations. He attached the refusal letter which was addressed to the applicant. He acknowledged he last corresponded with Anne Smokorowsky on October 12, 1998 and indicated he had sent the file to the Program Manager for his opinion under regulation 2.1. Mr. LeConte said he did so because he "had only realized at that time that program manager concurrence had not been given as required under the Regulations" [emphasis mine]. He added:
When I had corresponded with you on February 21, 1998, I had advised you of my impression that this concurrence had been given in November 1995. It was on this basis that I had agreed to your request to reopen the file.
However, I subsequently realized that I had been mistaken with respect to program manager concurrence to deal with this case. I had erred in assuming that the deputy program manager, Mr. Bob Brack, had had this regulatory authority and that, in referring the file to me in November 1997, he was confirming his authority to deal positively with the case. I did not become aware of my error until reviewing the case at the time of my October 12 fax to you.
When I realized my error, I brought the file to the attention of Mr. Roberge. Unfortunately, Mr. Roberge was taken seriously ill soon after my October 12 fax and did not have the opportunity to review the application. This responsibility has been exercised by the acting program manager, Mr. Brian Beaupre. He has reviewed thoroughly the application. His concerns about the potential settlement difficulties in this case and his refusal to grant discretionary approval on humanitarian and compassionate grounds are outlined in the enclosed refusal letter to Ms. Phuti. (CR pages 13 and 14) [emphasis mine]
[19] By letter dated June 28, 1999, Mr. LeConte advised the applicant she had been refused permanent residence in Canada indicating that her application had been reopened in 1998. He advised delays in processing her application had been caused because CHC had been asked to examine her case under special humanitarian and compassionate criteria "which means that only the program
manager of this visa office may exercise his delegated authority to render a decision in your case".
[20] In his June 28, 1999 letter to the applicant, Mr. LeConte advised her she had been assessed against the requirements of "maid, domestic" CCDO 6142.130. He advised her she fell well below the required 70 units and added although her application was to be refused under independent selection criteria, CHC examined it under special grounds which were "that your former employer of many years, Mrs. Manucha, was ill in Canada and wanted you to be with her. Mrs. Manucha has since passed away, but her son Mr. Rajiv Manucha, offered to continue his offer of support for you should you be granted a visa to settle in Canada". He then wrote:
Processing of your application was resumed, but, for finalizing your case, it came to the attention of the program manager that his concurrence had not been given as is required by Regulation 2.1 of the Immigration Regulations in cases submitted under humanitarian and compassionate grounds. In order to assess the merits of your case, your application has been reviewed thoroughly by the Program Manager, Mr. Brian Beaupre.
In his review, Mr. Beaupre noted that the original reason for your application -your close association with your former employer, Mrs. Manucha -no longer existed because of her demise.
He noted that her son Mr. Rajiv Manucha, for whom you had cared many years ago, was willing to maintain his late mother's offer of assistance and support for your immigration. However, Mr. Beaupre also noted that at your age (now 60) and being uneducated and non-conversant in English, you would be totally dependent on Mr. Manucha. Should, for any reason, he be unable or unwilling to support you or care for all your needs, there would be no legal obligation on his part to provide for you. Since you apparently have no close relatives in Canada or any other substantial connection with Canada, Mr. Beaupre's decision is that the risk of potential social costs to Canada outweighs any other considerations that might have mitigated in favour of approving your application. As a result, he has refused to approve your application on special grounds. [emphasis mine]
ANALYSIS
(1) Issue one -was the duty of fairness breached?
[21] The applicant argues breach of fairness by the respondent through the failure of visa officer Beaupre to identify to the applicant and her sponsors in Canada the concerns which he had with the application and the failure to provide them with an opportunity to respond.
[22] The applicant argues these breaches are particularly flagrant because of the lengthy file history including the encouraging signals given by visa officer LeConte the applicant would be issued an immigrant's visa and the last minute reversal based, in part, on certain inferences and assumptions drawn as to the lack of any assurance the sponsors in Canada would abide by their commitment to take care of the applicant.
[23] Counsel for the respondent argues Mr. LeConte asked for an update in his February 21, 1998 fax to Anne Smokorowski which expressed his specific concerns: whether Mrs. Manucha was still alive and what would happen to the applicant if the son's mother passed away.
[24] There is no doubt the applicant was owed a duty of fairness in the processing of her application for permanent residence in Canada. The visa officer's decision affects the applicant's rights, privileges or interests and this is sufficient to trigger the application of the duty of fairness (see paragraph 20 of Madam Justice L'Heureux Dubé's reasons for judgment in Mavis Baker v. The Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 at 836). The nature of the specific obligation, such as the duty to express concerns and the duty to permit a response (type of participatory right), will depend upon the factors identified in Baker, supra.
[25] These propositions find recent application by the Federal Court of Appeal in Nasser Sadeghi v. The Minister of Citizenship and Immigration (docket A-737-98, May 17, 2000) with Evans J.A. writing the reasons for judgment of the Court. Sadeghi, supra, is a visa case where a visa officer negatively exercised the power granted under section 11(3) of the Immigration Regulations. Justice Evans said this at paragraphs 17 and 18 of the decision:
In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant's chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables him or her to respond, at least when they are of the kind on which the applicant may be able to shed some useful light. Accurate decision-making is particular important when an adverse decision may deprive a person of her legal rights or, as here, a legitimate expectation of receiving a statutory benefit.
The burden normally borne by visa applicants to put their "best foot forward" by placing before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria, reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application. However, once an applicant has been awarded the units of assessment normally required for a visa by persons applying in the relevant category, it will often be unfair to expect the applicant to anticipate the grounds on which a visa officer may base a negative discretionary decision. [emphasis mine]
[26] I accept counsel for the applicant's submissions and find the duty of fairness was breached in this particular case, both in terms of the obligation on the visa officer to identify concerns and the right of the applicant to respond to those concerns.
[27] The facts of this case are important and I emphasize the following:
(1) CHC had been advised twice, once in November 1994 and then in February 1998, the applicant's sponsor Rajiv Manucha wished to take care of the applicant in her old age and would be financially responsible for her;
(2) The file progressed positively and, indeed, was reopened in April 1998 after the mix-up on the medicals had occurred and Anne Smokorowski had specifically responded to Mr. LeConte's update questions;
(3) An indication of clear sailing was given in Mr. LeConte's last communication before the refusal letter came nine months later;
(4) The refusal letter came because Mr. Beaupre refused to grant a section 2.1 Immigration Regulation exemption on humanitarian and compassionate grounds based, in part, on the hypothesis "should, for any reason, he be unable or unwilling to support you or care for all of your needs, there would be no legal obligation on his part to provide for you. Since you apparently have no close relatives in Canada or any other substantial connection with Canada, Mr. Beaupre's decision is that the risk of potential social costs to Canada outweighs any other considerations that might have mitigated in favour of approving your application".
[28] There can be no question in my mind the issue of the applicant's financial welfare in Canada was a central element in Mr. Beaupre's decision not to exercise the section 2.1 Immigration Regulation exemption.
[29] In my view, it was manifestly unfair for CHC to refuse her application for permanent residence in Canada in the circumstances without at the very least informing to the applicant and her sponsor the issue of financial support and commitment had become a problem or a concern of CHC and providing them with an opportunity to satisfy such concerns as they had done in the past.
[30] I cannot accept counsel for the respondent's submissions the time to measure the expression of Mr. LeConte's concerns is the February 21, 1998 communication where he asked for an update. He received that update on February 24, 1998 and reopened the file which meant he was satisfied.
[31] In the circumstances of this case, it was inappropriate to make a decision without the procedural safeguards, namely, expression of concern and right to respond.
(b) Issue 2 -Functus officio -no permissible reversal of decision
[32] Having found breach of procedural fairness which is sufficient to grant this judicial review application and set aside the visa officer's refusal, the Court would normally not see the necessity of dealing with the other grounds advanced by the applicant. However, in this case, I feel the obligation to do so because success on the second ground may lead to her admission to Canada.
[33] Counsel for the applicant argues the facts of this case run counter to the well-known proposition that, once a decision has been made, that decision cannot, absent statutory authority, be reopened except to cure a defect spawned by a denial of natural justice (see Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, at page 862, per Sopinka J.; and Brar v. Canada (M.C.I.), [1997] F.C.J. No. 1527).
[34] The legal foundation for this argument is the existence, in the Immigration Regulations, of two powers of override to the normal selection process based on objectively defined selection criteria.
[35] The first exception is contained in section 2.1 of the Immigration Regulations under the heading Ministerial Exemptions. That section reads:
|
2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada 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. |
|
2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière. DORS/93-44, art. 2.
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[36] The second exception is found in subsection 11(3) of the Immigration Regulations which reads:
| (3) A visa officer may (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or (b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10, if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
|
(3) L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
[37] The factual premise for this argument is based on the CR which records the following events:
(1) When originally made, the applicant's permanent residence application was accompanied by an H & C exemption request waiving the requirement for the applicant to meet the selection criteria as a person in the independent category;
(2) Despite Claire Lord's favourable recommendation to the program officer (M. Opperthauser), the CAIPS notes record his negative decision on February 14, 1995 where he wrote "I do not believe there are sufficient H & C grounds..." and where three days later Claire Lord records "the program manager is not willing to waive PI from the requirement to meet the points system and feel that her future prospects are not good. I will have no choice but to refuse her";
(3) Ten months later, Claire Lord records in the CAIPS on November 9, 1995, the following:
Case was with BB for approval of refusal letter but after discussion about this case BB advised that I should reopen the case and recommend it for positive discretion to him.
(4) BB wrote on November 13, 1995 this CAIPS note entry "I concur, based on info provided in above mentioned discussion and review of file".
(5) Claire Lord's November 14, 1995 CAIPS entry reads "We will resume processing by issuing the meds to the applicant and send suppl. forms to B Unit".
(6) Then, on February 21, 1998, Brian LeConte advised Anne Smokorowski "managerial concurrence was given in November 1995. At this point, the applicant was sent medical instructions".
[38] Counsel for the applicant says two facts are clear. First, Mr. Opperthauser, program manager, refused to waive the applicant's meeting the selection criteria contained in the Regulations and he did this on February 14, 1995. Second, no refusal letter was sent because BB directed Claire Lord to reopen the file and to recommend the application for positive discretion to him which he exercised on November 13, 1995. Mr. Waldman argues this necessarily meant the exercise by BB of the discretion vested in him under section 11(3) of the Regulations which was the only other route available upon which this application for permanent residence could proceed because the other avenue of waiving the selection criteria had been closed. I do not believe this is the case for two reasons: (a) lack of evidentiary foundation and (b) my findings on the H & C decision.
[39] Counsel for the Minister argues from the basis of Dass v. Canada (Minister of Employment and Immigration), [1996] 2 F.C. 410 (C.A.). This case dealt with the distinction to be drawn between an exemption on H & C grounds from the normal section 9 requirement of applying for permanent residence outside Canada and approval for landing. It also dealt with what are the hallmarks of a decision for administrative law purposes.
[40] In Dass, supra, Strayer J.A. held that "a decision is taken to have been made when notice of that decision is given to the parties affected with some measure of formality" (p. 421, para. 23). He held it was inappropriate for the Court to examine interdepartmental and intradepartmental correspondence to determine if and when a decision had been taken. Internal, tentative, interim, uncommunicated decisions are not subject to judicial review.
[41] Counsel for the Minister then focusses on the CAIPS notes and argues BB's decision was not communicated to the applicant and was purely an internal administrative matter.
[42] There is an evidentiary difficulty in this case because no affidavits in support were filed by the Minister. The CR is the best evidence of what we have on the Minister's side.
[43] I cannot accept the Minister's characterization as purely internal certain decisions taken by the visa officers about the applicant before the formal refusal letter in 1998 was sent. I do so for two reasons. First, whatever the basis for BB's decision was, it was communicated to the applicant because the medical instructions were sent to her. On the other hand, Mr. Opperthauser's was not and remained based on Dass, supra, an internal decision. Second, Mr. LeConte specifically advised the applicant's representative on February 21, 1998 that managerial concurrence had been given to a favourable H & C decision. Based on Chandler, supra, BB's favourably exercising his H & C discretion could not be reserved except on grounds of breach of natural justice and none exist here.
[44] Having reached this conclusion, I need not deal with the third issue raised by the applicant who argued visa officer Beaupre's decision was perverse because its factual foundation was flawed.
[45] As a result, the decisions of the visa officers are set aside and the applicant's application for permanent residence is to be redetermined by a different visa officer in accordance with these reasons. Party-party costs are awarded to the applicant.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JULY 12, 2000
Date: 20000712
Docket: IMM-3917-99
IMM-5048-99
OTTAWA, ONTARIO, WEDNESDAY, JULY 12, 2000
PRESENT: THE HONOURABLE MR. JUSTICE LEMIEUX
BETWEEN:
PHEMA PHUTI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons given, the decisions of the visa officers are set aside and the applicant's application for permanent residence is to be redetermined by a different visa officer in accordance with these reasons. Party-party costs are awarded to the applicant.
"François Lemieux"
J U D G E
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3917-99 and IMM-5048-99
STYLE OF CAUSE:Phema Phuti v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 15, 2000
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE LEMIEUX DATED: July 12, 2000
APPEARANCES
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Lorne Waldman FOR THE APPLICANT Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada