Date: 20051012
Docket: IMM-2257-05
Citation: 2005 FC 1386
BETWEEN:
DAVERAJ SINGH TOOR
HARPREET KAUR TOOR
JASWINDER SINGH TOOR
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] The Toors are unsuccessful Convention refugees from India. Their application was under the Immigration Act, now repealed. Pursuant to that Act, they then made an application for consideration as what was then known as the Post-Determination Refugee Claimants in Canada class. As a result of the new Immigration and Refugee Protection Act ("IRPA") coming into force, their application was converted into one for a Pre-Risk Removal Assessment ("PRRA"). That application, and this is important, has not been heard to this day.
[2] In the meantime, in April 2004 they asked the Minister grant them permanent resident status on Humanitarian and Compassionate ("H & C") grounds, and that they be allowed to remain in Canada pending that determination, the whole pursuant to section 25 of IRPA. Their lawyer wrote to the Processing Centre in Vegreville, Alberta. Rightly or wrongly he anticipated that the file would be transferred to Vancouver, where the Toors live, and might be determined concurrently with the PRRA. He said:
I will be making complete representations in support of the requests once the applicants have received their notice to make representations and file evidence in support of a pre removal risk assessment application.
[3] The H & C request was turned down. This is the judicial review thereof.
ANALYSIS
[4] The decision, standing alone, appears to be imminently reasonable. The officer weighed the hardships facing the Toors should they be obliged to leave Canada and the hardships they might face if they were returned to India. The children were duly taken into account.
[5] However, when the decision is considered in the context of the entire tribunal record, it simply falls apart. The notes to file are entitled "Humanitarian and Compassionate Grounds Application PRRA Unit". The decision is signed by a member of the PRRA Vancouver office. A PRRA officer may make an H & C determination. One letter addressed to "Mr. Toor and family" dated February 22, 2005, bears the heading "Request for Exemption from Immigrant Visa Requirement" and deals with the application for permanent residence from within Canada on Humanitarian and Compassionate grounds. All this is well and good. But the same officer wrote another letter the same day entitled "Pre-Removal Risk Assessment (PRRA) Results". She said their application for a PRRA had been reviewed carefully and had been rejected. What was she thinking? Was she thinking of an H & C application, a PRRA application, or both? PRRAs and H & Cs are distinct. There has been no PRRA hearing as yet.
[6] There are at least two other disturbing features of the record. The Toors should have put their best foot forward in the H & C application. There is no question of doing it piecemeal. They had no legitimate right to expect that the H & C and PRRA might be heard concurrently. However, they gave their lawyers' address as the place to which communications should be sent. The acknowledgement letter from Vegreville was nevertheless sent to the Toors, not to their lawyer. It said in effect don't call us, we'll call you. Had this letter been sent to the lawyer, he would have been on notice that he had better submit the psychological assessments he claims he would have sent. This letter only came to light after judicial review was granted and the tribunal record prepared.
[7] The officer had concluded that travel to India was "feasible." Within the meaning of an H & C application, that is quite true. However, the Indian Consulate has refused to issue travel documents as they are not yet convinced of the Toors' nationality. That was not an issue in the original H & C application. Indeed, at the present time, removals from Canada are enforced by the Minister of Public Emergency and Preparedness, not by the Minister of Citizenship and Immigration. Still, the tribunal record includes a letter from the Consulate General of India, Vancouver, dated in January 2005, stating that they have not yet been able to verify the Toors' nationality status. The Minister is fond of saying that there is a presumption that the decision-maker read everything in the file. If so, was she also holding that a return to India was feasible at this time, despite the fact that the Toors have no travel documents?
[8] The Minister relies on the decision of Gauthier J. in Melchor v. Canada (Minister of Citizenship and Immigration) 2004 FC 1327. So do I. That case demonstrates the difference between an H & C application and a PRRA and the fact that applicants bear the burden of supplying all the necessary documentation to support their application, but that they can provide additional information at any time before a decision is made. No additional information was supplied in this case because Vegreville ignored the fact that the Toors had a lawyer and wrote to them, rather than to him.
[9] In any event, the main point is that the decision-maker does not appear to have focused on what was before her. The decision is patently unreasonable in the light of the record.
[10] There is no question of general importance to certify.
(Sgd.) "Sean Harrington"
Judge
Vancouver, BC
October 12, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2257-05
STYLE OF CAUSE: DAVERAJ SINGH TOOR et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 5, 2005
REASONS FOR ORDER AND ORDER: HARRINGTON J.
DATED: October 12, 2005
APPEARANCES:
Mr. Charles Groos FOR APPLICANTS
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Charles E.D. Groos
Barrister & Solicitor
Surrey, BC FOR APPLICANTS
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada