Federal Court Decisions

Date: 20040202

Docket: IMM-1622-03

Citation: 2004 FC 174

BETWEEN:

                                          TEERADECH PRAMAUNTANYATH,

                                                                                                                                         Applicant,

                                                                          and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

                                       REASONS FOR ORDER AND ORDER

MACTAVISH J.

[1]                 Teeradech Pramauntanyath made an application for a Humanitarian and Compassionate (H & C) exemption in November of 2000. By letter dated January 2, 2003, Citizenship and Immigration Canada (CIC) advised Mr. Pramauntanyath that his application was being reviewed, and he was asked to provide updated information regarding his situation. CIC's letter stipulated that any supplementary information that Mr. Pramauntanyath wished to have considered was to be mailed to CIC within 30 days of the date of the letter.

[2]                 Mr. Pramauntanyath's former counsel has filed an affidavit with the Court wherein she deposes that Mr. Pramauntanyath provided her with a package of information regarding his current situation, and that this information was mailed to CIC on January 29, 2003.

[3]                 On February 20, 2003, Mr. Pramauntanyath's application was considered by an immigration officer, who determined that an H & C exemption would not be granted. It is evident from a review of the immigration officer's reasons that the officer did not have Mr. Pramauntanyath's updated information before her when she made her decision to reject the application.

[4]                 Mr. Pramauntanyath seeks to have the decision of the immigration officer set aside, alleging that the failure of the immigration officer to consider his January 29^th, 2003 submissions prior to making her decision constitutes a breach of natural justice.

Background

[5]                 Mr. Pramauntanyath came to Canada from Thailand in February of 1994 on a student visa. After the school that he was attending closed, Mr. Pramauntanyath began working without authorization at a restaurant in Toronto. In April of 2000, Mr. Pramauntanyath and two partners opened their own restaurant. Mr. Pramauntanyath is a one-third owner in the operation, and works as the chef.

[6]                 It appears that the restaurant has been very successful. Although it initially lost money, in recent years the restaurant has become profitable, and now employs ten people. The restaurant has received very positive reviews, and was voted Toronto's best new restaurant by NOW magazine. Letters submitted by Mr. Pramauntanyath's partners attest to his skills, and describe him as a key part of the operation.

[7]                 Mr. Pramauntanyath has evidently worked hard and lived frugally, and, as a result, has been able to accumulate significant savings. He has become fluent in English, and has been active in his community. He is very involved with the life of his temple, and has taught Thai cooking at a community college. A January, 2003 letter from the President of the Thai Society of Ontario describes Mr. Pramauntanyath as "a truly hardworking young person that gives pleasure to all Thai community" (sic).

[8]                 Mr. Pramauntanyath's H & C application was not considered until approximately four weeks after his supplementary submissions were mailed to CIC. While it is common ground that the submissions never made it onto Mr. Pramauntanyath's file, it is unclear whether the submissions were lost in the mail or were misplaced by the immigration authorities. With respect to this second possibility, an affidavit filed by an employee in the office of Mr. Pramauntanyath's current counsel indicates that it is not uncommon for material to be misplaced or misfiled by CIC.

[9]                 Whatever the explanation, it is agreed that Mr. Pramauntanyath's H & C application was determined solely on the basis of information regarding Mr. Pramauntanyath's situation in 2000.

Issue

[10]       The issue on this application is whether there has been a breach of natural justice in the manner in which Mr. Pramauntanyath's H & C application was dealt with, such that the decision of the immigration officer should be set aside, and the matter referred back for reconsideration on the basis of a complete record.

Position of the Parties

[11]       Mr. Pramauntanyath submits he acted within the time limits imposed by CIC, and provided cogent information relating to his current situation. According to Mr. Pramauntanyath, he should not be prejudiced with respect to his claim by the errors of a third party, whether it be Canada Post or CIC.

[12]            CIC submits that applicants for H & C consideration are responsible for ensuring that up-to-date and relevant information is submitted within the requisite time-frames, and that it is incumbent on applicants, and not CIC, to ensure that this information is received. In this case, Mr. Pramauntanyath has failed to provide an explanation as to why his 2003 submissions were not received.

[13]            CIC further argues that Mr. Pramauntanyath and his counsel could have submitted the information earlier, and did not have to wait until three days before the deadline to forward the information. Having waited until the last minute to file the submissions, Mr. Pramauntanyath should have taken further steps to ensure that the submissions were received.

[14]            The immigration officer considered all of the material in the file on February 20, 2003, and made her decision accordingly. The decision that Mr. Pramauntanyath would not face undue hardship if he were required to apply under the normal scheme cannot be successfully challenged merely because the decision was unfavourable.

[15]            Finally, CIC submits that Mr. Pramauntanyath ought not to complain because, had the government made its decision on the H & C application in the year 2000, or shortly thereafter, the additional submissions Mr. Pramauntanyath is seeking to have considered would not have been available.

Analysis

[16]       Dealing with the respondent's last submission first, while it is true that CIC could have dealt with Mr. Pramauntanyath's H & C application in 2000 on the basis of his situation at that time, it did not. Mr. Pramauntanyath is not responsible for the lengthy delay in having his application assessed. Having taken over two years to deal with the matter, it was reasonable for CIC to request updated information from Mr. Pramauntanyath, in order that his application could be assessed on the basis of a complete picture of his current situation.

[17]            Having given Mr. Pramauntanyath the opportunity to provide this additional information, CIC created the legitimate expectation on the part of Mr. Pramauntanyath that whatever new information he provided would be considered, as long as it was sent to CIC within the specified time frame.

[18]            In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada concluded that H & C applicants are owed more than a minimal level of procedural fairness. In coming to this conclusion, the Court considered a number of factors, including the exceptional importance that an H & C decision will have for the life of the applicant. The Court also noted that the legitimate expectations of a person challenging an H & C decision may also affect the process that has to be followed in a given case.

[19]            In this case, the reasons of the immigration officer indicate that Mr. Pramauntanyath did "not present proof of sound financial management or business financial activities/statements". The reasons describe Mr. Pramauntanyath as a minor shareholder in the restaurant business, and note that no updated information had been provided to demonstrate that the business was successfully established and contributing to the Canadian economy.

[20]            The unchallenged evidence of Mr. Pramauntanyath's former counsel is that the information submitted by Mr. Pramauntanyath in 2003 included financial statements for his restaurant business. These statements disclose that the business had grown steadily in sales and profitability since its creation in 2000. CIC was also provided with evidence regarding Mr. Pramauntanyath's accumulated savings. Thus it appears that the supplementary information provided by Mr. Pramauntanyath was highly relevant to his H & C application, and could well have influenced the result.

[21]            The question, then, is whether an H & C decision should be set aside where there has been a failure to consider an application on the basis of a complete record, where that failure occurs through no fault of the individual decision-maker.

[22]            Emphasizing that the onus is on an H & C applicant to ensure that all relevant information is filed with CIC, the respondent relies on the decision of this Court in Arshad v. Minister of Citizenship and Immigration, 2003 FC 1130. In Arshad, the Court refused to set aside a Pre-Removal Risk Assessment (PRRA) where information filed by the applicant was not received by the PRRA officer until the day on which the decision was made, and was not considered by the officer as a result.

[23]            In my view, the decision in Arshad is distinguishable from the present case. In Arshad, the applicant failed to file the information in issue with the immigration authorities within the thirty day period specified in the PRRA regulations. In this case, Mr. Pramauntanyath was directed to send any supplementary information that he wished to have considered to CIC, and to do so, in writing, within thirty days. CIC's letter does not specify that the information should be sent by courier or registered mail, nor does it require that the information actually be received by CIC within the thirty day period. Similarly, no obligation is imposed on an applicant to follow-up and make sure that the information was in fact received by the immigration officer assigned to the file.

[24]            In this case, the uncontroverted evidence before this Court is that Mr. Pramauntanyath did precisely what he was asked to do by CIC. Whether as a result of a problem with the mail system, or an error within the CIC's own offices, through no fault on the part of Mr. Pramauntanyath, the supplementary information was not put before the immigration officer at the time that his H & C application was considered. The result was that Mr. Pramauntanyath's application was not considered on the basis of a complete record. As was previously noted, the additional information may well have affected the result.

[25]            The fact that the immigration officer did nothing wrong in arriving at the decision in issue is not determinative of the case. A breach of natural justice can occur without fault on the part of the decision-maker. I agree with counsel for Mr. Pramauntanyath that in this regard, an analogy can properly be drawn to cases where a party is denied a fair hearing as a result of the negligent actions of his or her solicitor. In such cases, even though the decision-maker may have conducted the hearing properly, the actions of a third party - in these cases, the applicants' solicitors - may result in there being a denial of natural justice: Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51, Gulishvili v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1200.

[26]            In the present case, even though the decision of the immigration officer may have been entirely appropriate in light of the information in the file, nevertheless the intervening actions of an unidentified third party prevented Mr. Pramauntanyath from having his case determined on the basis of a complete record. In my view, this constitutes a denial of natural justice, and for this reason, the decision of the immigration officer should be set aside.

[27]            Counsel for CIC submits that it would impose an undue administrative burden on the respondent if immigration officers were obliged to search for missing documents before making each decision. No such obligation is being imposed here. The burden is on an applicant to ensure that all relevant information is submitted within the appropriate time frames. What occurred in this case appears to be an exceptional situation, as neither counsel was able to direct me to a similar case. These exceptional circumstances, specifically the blamelessness of the applicant, justify the Court's intervention here.

[28]            As a result, the decision of the immigration officer is set aside, and the matter remitted to a different officer for reconsideration, on the basis of a complete record.

Certification

[29]       Neither party has suggested a question for certification, and accordingly none will be certified.

                                                                      ORDER

1. The decision of the immigration officer is set aside, and Mr. Pramauntanyath's H & C application is remitted to a different immigration officer for reconsideration, on the basis of a complete record.

2.    No serious question of general importance is certified.

"Anne L. Mactavish"

                                                                                                                                                  Judge                          

OTTAWA

                                                  

                        FEDERAL COURT OF CANADA

                                    TRIAL DIVISION

Date: 20040202

Docket: IMM-1622-03

BETWEEN:

                    TEERADECH PRAMAUNTANAYATH,

                                                                                        Applicant

                                              - and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                   Respondent.

                                                                                                                              

                     REASONS FOR ORDER and ORDER

                                                                                                                              

                                    FEDERAL COURT

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:          IMM-1622-03

STYLE OF CAUSE:

                TEERADECH PRAMAUNTANAYATH v. MCI

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:                 January 29, 2004

ORDER AND REASONS FOR ORDER:

Mactavish J.

DATED:            February 2, 2004

APPEARANCES:

SOLICITORS OF RECORD: