Ottawa, Ontario, October 4, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an immigration manager (the manager) dated January 21, 2005, in which Shin Ki Kim's (the applicant) application for temporary residency on humanitarian and compassionate grounds (H & C) was refused.
FACTS
[2] The applicant is a citizen of South Korea. He moved to Canada in 1991 with his wife and two children, one of whom is developmentally delayed. The applicant applied for permanent residency under the skilled worker category, but was refused as he was inadmissible due to his son's medical disability.
[3] The applicant then made an H & C application, which required him to attend an oral hearing on April 22, 2004 with an immigration officer (the officer). At that hearing, the applicant provided little in support of his application. Therefore, of her own initiative, the officer sought third-party information concerning services available to the applicant's disabled child. After receiving that information, the officer recommended to her manager that the case be dismissed. The manager claims that he did not consider the third-party information, but that on the evidence before him, there were insufficient H & C factors present to grant the application.
ISSUES
[4] 1. Did the manager err in considering information provided by a third party, without the knowledge of the applicant?
2. Did the manager properly take into account the best interests of the applicant's two children?
3. Did the officer infringe on the applicant's procedural fairness in any way through her actions during the hearing?
ANALYSIS
[5] This seems to be a case in which the applicant's arguments are an attempt to supplement the little support for his H & C application which he provided to the officer on April 22, 2004. A judicial review is not the appropriate venue for adducing such information to bolster a failed application:
It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker.
(Lemiecha (Litigation guardian of) v. Canada (Minister of Employment and Immigration) (1992) 72 F.T.R. 49 at paragraph 4)
[6] Nonetheless, setting aside the new evidence provided by the applicant, I will examine the remaining arguments to assess whether the officer erred in dismissing the H & C application.
1. Did the manager err in considering information provided by a third party, without the knowledge of the applicant?
[7] The applicant alleges that the manager improperly relied on extrinsic evidence which was not disclosed to him. The respondent argues that although such information was sought by the officer, it was not considered in the final determination of the matter.
[8] It is a fundamental right to all parties that evidence relied on be disclosed to them, allowing an opportunity to respond and submit their own evidence in rebuttal:
Accordingly, the principles of natural justice are violated when the officer bases his decision on extrinsic evidence that has not been brought to the attention of the applicant.
(Haouari v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 925 at paragraph 10)
[9] In the present case, the officer obtained the third-party information and concluded the following:
He [the applicant] was unable to discuss what options were available for the care and support of the child in the home country. I subsequently obtained information from our office in Seoul. From the information provided it appears that the child would be eligible for similar programs to those available in Canada.
(See page 6 of the Tribunal Record - CAIPS notes from Immigration Officer Moira Escott.)
[10] The officer then goes on to conclude that she was not satisfied that there were sufficient H & C grounds to warrant an acceptance of the application. Her determination was only a recommendation however, as the case was then considered on the basis of the evidence by the manager.
[11] Even though the manager claims not to have considered the evidence, I find that the applicant's procedural fairness has been breached. The information was not unsolicited by the officer. She made formal efforts to obtain that information in order to consult it. Furthermore, she did consult it, and made a recommendation on that basis. Although she was not the final decision maker, because that information was consulted and because her recommendation included that consultation, the manager could do nothing but implicitly accept the findings of that third-party report.
[12] It is not sufficient for the manager to state that he never consulted the third-party information. Although it would be absurd, the manager would have also needed to swear to not having spoken to the officer about her recommendation and to not having read her CAIPS notes. However, his own affidavit reveals that he did indeed consult all the information contained in the file, except the actual documents which the officer had obtained:
The Officer who conducted the applicant's interview is Ms. Moira Escott. Her initials in the CAIPS system are "MLE". Ms. Escott's CAIPS notes in respect of the interview allude to the fact that the applicant provided very little information in support of his H & C application. After the interview, Ms. Escott sought out information, on her own initiative, viz whether services were available in South Korea to the disabled. This information was not disclosed to the applicant. I know this because Ms. Escott confirmed to me verbally that this was not the case. I did not rely on this information, therefore, in assessing the applicant's H & C factors. I did, however, consider everything else before me, including but not limited to the information supplied to me by the applicant and his consultant.
(See page 3 of the affidavit of the manager, Philip Lupul, dated May 16, 2005)
[13] In the case of Ardiles v. Canada(Minister of Citizenship and Immigration), (2003) 227 F.T.R. 187, it was stated that:
This is clearly a borderline case. Even though the Immigration Officer stated that she did not consider the information to be "extrinsic" and that, in any event, she did not rely on it, the non-disclosure of this relevant information leads to a perception of unfairness and breach of duty. Further, I cannot conclude that the breach of natural justice was so minor in extent and could not have appreciably affected the final decision. [my emphasis]
[14] In my opinion, the present issue is even less of a borderline case than that of the Ardiles v. Canada, supra, decision. I can understand the difficulties which would arise if the officers or managers would have to disclose every piece of unsolicited evidence received, even though they made no reliance on them. However, this is a situation in which the officer placed herself; actively requesting the information and establishing her recommendation on that basis.
[15] It is therefore not necessary for me to examine the remaining two issues, as this application for judicial review will be granted.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review be granted;
2. The file be returned for reconsideration by a different immigration officer in light of this decision;
3. Neither counsel suggested question for certification.
"Pierre Blais"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1269-05
STYLE OF CAUSE: SHIN KI KIM v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 29, 2005
REASONS FOR ORDER AND ORDER: BLAIS J.
.
,
APPEARANCES:
Mary Lam
Brad Gotkin
SOLICITORS OF RECORD:
Mary Lam
Toronto, Ontario
John H. Sims, Q.C
Deputy Attorney General of Canada
Toronto, Ontario