Date: 20011212
Docket: IMM-6436-00
Neutral citation: 2001 FCT 1366
BETWEEN:
NELLY VICHES, SHARON VILCHES
AND AYLEEN VILCHES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicants seek judicial review of a decision of an immigration officer dated November 24, 2000, wherein the officer refused the applicants' request for an exemption from section 9 of the Immigration Act on humanitarian and compassionate grounds.
[2] The primary issues are: 1) whether the officer's reasons raised a reasonable apprehension of bias and 2) whether the officer erred in failing to take into account the best interests of the children. The other issues are whether the officer breached the principle of fairness by failing to provide a copy of the PCDO report to the applicant in relation to the risk assessment or by making adverse inferences from the lack of submissions on risk, and whether the officer erred in writing his reasons on January 5, 2001, when the decision was made November 24, 2000. The final issue is whether the officer erred in comparing the answers at the interviews with two separate applicants.
[3] The issue of reasonable apprehension of bias arises in the submission of the applicant because of the comment in the officer's decision and reasons when he is discussing the issue of assessment of risk and states:
As recent as 25 October 2000, Michael Crane made a four page submission which fails to mention any risk to return. It instead dwells on the relationship between Nelly and Francesca, which smacks of morbid opportunism on counsel's part.
Nelly is one of the three applicants and Francesca is her granddaughter from a daughter who recently died.
[4] While the officer should have used better wording, the remarks must be looked at in context to determine whether a person would have a reasonable apprehension of bias upon reading these remarks. The officer stated in his comment on humanitarian or compassionate factors:
During the past year, I granted landed status to Nelly's daughter Julie. Since then Julie has passed away. At the October 2nd interview, Sharon stated that Julie's husband does not talk to her any longer, though she had seen him the week prior. Because of the applicant's loss of her daughter, I am deeply sympathetic to the attachment she has to her grandchild. Counsel's submission that Julie's tragic death increases the humanitarian aspect of this case appears incorrect. Francesca's father is alive, and no indication has been made that he is unable to raise his daughter without the applicant's assistance. The applicant does not have any family members in Canada that can provide economic support to her or Ayleen.
He then went on to state:
As previously discussed, the grandchild would not suffer disproportionate, undue or undeserved hardship if separated from her grandmother. No indications of substantive support for the grandchild have been submitted. The child's young age reduces the possibility of a substantial negative emotional impact.
These are not the words of an officer who is biased against the applicant, Nelly Viches or the granddaughter, Francesca. The officer also noted that Julie's husband does not talk to Sharon anymore which contradicts an earlier submission that Sharon is actively involved in the child's life. In my view, there is nothing in the officer's reasons which would raise a reasonable apprehension of bias in a reasonable person. The conclusions of the officer were open to him and hopefully in the future he will use more tempered language.
[5] The applicant made further submissions with respect to the best interests of the children and took the view with respect to Nelly that the officer erred in considering Francesca's best interests only in an economic sense. However, as shown above, the officer was aware of the emotional problems of Francesca and dealt with them. The officer is the one who exercises discretion. It is not my view of what should have been done that matters, as long as the discretion was exercised reasonably.
[6] The applicant also submits that the officer erred in failing to consider a letter from Ms. Viches' housing support worker which provided strong support that Francesca's well-being would suffer if Nelly were removed from her life. However, there is no compelling evidence that Sharon played any role in the life of Francesca and the evidence indicates that Sharon had virtually no contact with Francesca's father. In my view, the evidence I have quoted above shows that the officer took into account the nature of the submission by the worker with respect to the relationship between Nelly and her grandchild Francesca, and that he did take into account the best interests of Francesca. He considered both the economic and emotional impact on the child and, further, in light of the evidence that Sharon was not involved in the child's life, I do not believe that the officer is required to address this issue on Sharon's application. Also, the officer was not required to specifically refer to the letter from the worker and it is clear from his comments that he did consider the substance of the letter.
[7] The question of whether a grandchild is included in the definition of children as is discussed in Baker does not arise in this case because, in any event, the officer did deal with the best interests of Francesca, the grandchild. Accordingly, I do not have to decide whether a grandchild is a child within the meaning of the Baker decision.
[8] I must now deal with whether the officer breached the principles of fairness by failing to provide a copy of the PCDO report to the applicant in relation to the risk assessment or by making adverse inferences from the lack of submission on risk. The applicant submits that the officer breached the principle of fairness as set out in Haghighi v. M.C.I., [2000] 4 F.C. 407 (C.A.), by taking into account the PCDO risk assessment with respect to Nelly without disclosing it to the applicant.
[9] The applicant agrees with the respondent that the applicants did receive the PCDO decision but states that at no time did they receive disclosure of the risk assessment report. The only evidence with respect to the risk assessment is at page 12 of the tribunal record wherein the officer is dealing with the standard questions in an H & C application. Question 4 reads as follows:
4. Risk based? Risk assessment received from PCDO?
Yes When/Where 11 February 2000 at Hamilton
Outcome: No Risk
Furthermore, the applicants did not make any submissions with respect to risk. The officer did not rely on this report and it is my view that the onus is on the applicant to show that the assessment report was received by the officer and not just the decision. This is a totally different case from Haghighi where the immigration officer requested a further risk assessment report from another PCDO and then relied on the assessment report without disclosing it to the applicant. In this case, the officer did not request a further risk assessment from the PCDO. The officer simply noted the fact that there had been a negative decision and that no new evidence with respect to risk had been put before him. There is no breach of the principles of fairness on the facts in this case.
[10] The next issue is whether the officer was required to issue reasons contemporaneously with the decision. The applicant submitted that the Baker decision implies that reasons ought to be contemporaneous. Counsel refers specifically to Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 at 845 where L'Heureux-Dubé J. states:
The process of writing reasons for decision by itself may be a guarantee of a better decision.
She then goes on to state:
Reasons also allow parties to see that the applicable issues have been carefully considered, and are invaluable if a decision is to be appealed, questioned, or considered on judicial review ...
While I would agree that in most cases it is preferable to have the reasons and the decision come out simultaneously, it is not an improper practice to not do so. It is common in the courts for a judge to give a decision from the bench and to indicate that reasons will follow. The officer's notes indicated that he stated on November 24, 2000 that "reasons to follow". In my view, administrative tribunals should not be restricted to issuing reasons contemporaneous with the decision. In some instances it is very important for a party to receive the result on a certain date. In such cases if the tribunal or officer, as the case may be, is in a position to provide the result without the reasons at that time then this should be permitted. The court, of course, is always able to determine whether the reasons justify the result. The important thing for the court is to have reasons, and the fact that reasons may be issued later than the decision does not preclude a court from reviewing them. I also note in this case that the time frame is not excessively long between the decision and reasons.
[11] The applicant also raises the question as to whether it was proper for the officer to refer to inconsistencies between remarks made by the applicant, Nelly Viches, on her behalf and her daughter, Ayleen's behalf, and Sharon, another daughter whose application was filed separately. The officer made the remarks about credibility in connection with his review of the status of Nelly Viches' marriage. He was suspicious about the bona fides of the marriage and he had already referred to documents submitted by Nelly Viches and her separated husband that contradicted their statements regarding the length of time they co-habited. The officer then states:
An interview with Sharon Rivera (initially a dependent in this application), who also lived at 79C Sackville, highlighted other inconsistencies. Firstly, the couple had stated that Sharon, her daughter and Ayleen all slept in the same bedroom; however, Sharon states that she slept on the couch. Secondly, on October 2nd, Sharon states that Mr. Medina still lived with the family; however, Mr. Medina submitted a letter dated October 24th which states he moved out on September 6th. The credibility of all subjects is lessened by these inconsistencies.
Since the parties are agreed that the sponsor no longer co-habits with Nelly Viches, there can be no harm in noting these inconsistencies which only related to the state of the marriage. Furthermore, even counsel for the applicant made submissions in one letter with respect to all the applicants and did not treat them separately. It is true that evidence in one application should not be dealt with in the second application but in this case, in all the circumstances it is clear that evidence from one case was not used to determine the result of the other case. I do not need to decide whether the rule for administrative officers is the same as the courts in dealing with separate applications.
[12] The application for judicial review is dismissed.
[13] The applicant proposes two questions for certification. The first one is:
Do reasons for a decision of an application under s.114(2) of the Immigration Act have to be made contemporaneously with the decision or can the reasons be made subsequent to the decision?
In my view this is a question of general importance and I certify this first question.
The second question is:
Is a grandchild a child for the purpose of the requirement of the Minister to consider the "best interests of the child" for an application under s. 114(2) of the Immigration Act?
This second question does not arise as a result of the reasons in my case. A more general question on the best interests of the child is not required. The facts in this case are quite clear that the officer considered the best interests of the child. Accordingly, the second question will not be certified.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
December 12, 2001