Ottawa, Ontario, October 16, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Uberoi is a citizen of India and a failed refugee claimant in Canada. She was repatriated on August 5, 2004. At that time Ms. Uberoi had an outstanding application for landing on humanitarian and compassionate (“H&C”) grounds. Her application was subsequently refused. She seeks judicial review of that decision on the ground that a reasonable apprehension of institutional bias arises from the respondent’s policies and procedures for assessing H&C applications following removal of the applicants.
BACKGROUND:
[2] Ms. Uberoi came to Canada as a visitor on May 14, 2000 and received an extension of her visitor status until October 31, 2001. She remained beyond this time, making a refugee claim on April 15, 2002. A removal order was then issued. Her refugee claim was refused on July 9, 2003 and the removal order became effective. On June 4, 2004 the applicant received a negative pre-removal risk assessment decision. A motion to stay her removal and an application for judicial review were both denied. She was then removed. Updated submissions regarding her situation in India were submitted in January 2006. In refusing the H&C application on February 9, 2006, the officer concluded that Ms. Uberoi would not suffer unusual, undeserved or disproportionate hardship if required to apply for permanent residence from outside Canada.
ISSUE:
[3] The applicant does not contend that the officer ignored or misconstrued the evidence or made an unreasonable decision. The sole issue in these proceedings may be described as follows:
Do the policies followed by the Minister in the assessment of applications for exemptions under s. 25 (1) of the Immigration and Refugee Protection Act, give rise to a reasonable apprehension of institutional bias in the case of persons who have been removed from Canada?
STATUTORY FRAMEWORK:
[4] Subsection 25 (1) of the Immigration and Refugee Protection Act, S.C. 2001 C. 27 (IRPA) reads as follows:
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25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
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ANALYSIS:
Standard of Review:
[5] The parties agree and I accept that it is well established that questions of procedural fairness, including a question of bias in relation to a tribunal, should be assessed on a correctness standard: Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4 at para. 65.
As a result, where a breach of the duty of fairness is found, the decision must be set aside: Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631 at para. 44 (QL) [Benitez]; Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 at para. 54 (QL).
Reasonable Apprehension of Institutional Bias:
[6] It is trite law that procedural fairness requires that decisions be made free from a reasonable apprehension of bias. The test commonly employed is that enunciated by de Grandpré J., writing in dissent, in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394:
[T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.”
[7] Where institutional bias is alleged, the test is modified slightly to require that the informed person, viewing the matter realistically and practically and having thought the matter through, would have a reasonable apprehension of bias in a substantial number of cases: 2747-3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919, [1996] S.C.J. No. 112 at para. 44 (QL). Where a substantial number of cases can not be identified, allegations of an apprehension of bias cannot be brought on an institutional level but must be dealt with on a case-by-case basis: Benitez, above at para.196.
[8] The standard for a reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21 at para. 22 (QL).
[9] “Bias” was defined by Mr. Justice Cory in R. v. S. (R.D.), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84 at para. 105 (QL) as denoting “a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues”.
[10] The applicant argues that the test for institutional bias has been met in the present case because the criteria and procedures for the assessment of applications for permanent residence after the removal of an applicant results in an institutional state of mind predisposed to a particular result; namely the conclusion that the applicant would experience no undue, undeserved or disproportionate hardship in having to apply for landing from outside Canada.
[11] The applicant points to excerpts from Citizenship and Immigration Canada’s manual IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (the manual) that highlight that what an applicant is seeking is permission for their application to be processed in Canada due to humanitarian or compassionate considerations. In the applicant’s submission, the definitions provided by the manual of what constitutes “undue, undeserving or disproportionate hardship” focus the assessing officer’s attention on factors relating to the applicant’s establishment in Canada. The applicant argues that when those ties are severed by repatriation, the applicant is no longer in a position to demonstrate that the requirement to seek permanent residence abroad would be unduly severe.
[12] The applicant further points to the wording found in the standard refusal letter which states that “[h]umanitarian and compassionate factors are assessed to determine whether an exemption from certain legislative requirements to allow your application for permanent residence to be processed from within Canada shall be granted” [emphasis added]. This, she submits, illustrates that the determination of what constitutes humanitarian and compassionate factors is linked to presence in Canada.
[13]
The
applicant argues that the effect of these provisions is that the
immigration manual directs the reviewing officer to assess the hardship persons
requesting exemptions would face, if they were forced to return to their countries
of origin to apply for permanent residence. Where the requestor has already been
removed however, the undue, undeserving or disproportionate hardship occasioned
by removal has already occurred. Thus, the applicant submits, there no longer
exists a reason to exercise positive discretion and such requests are then
generally denied.
[14] The operation of subsection 25(1) of the IRPA is not restricted to requests brought by foreign nationals who are present in Canada. There is nothing on the face of this provision or IRPA as a whole that would preclude the granting of permanent resident status or an exemption from the Act’s requirements where the applicant is outside Canada “if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations…”.
[15] This case was argued entirely on the basis of the content of the respondent’s policy manual. No evidence of actual bias was submitted, nor was there any evidence provided to support the contention that immigration officers may believe that their discretion is fettered in assessing H&C requests following removal of the applicants. It is clear to me that the policy manual contemplates, as was the case in this instance, that H&C requests will continue to be processed following removal. Indeed, the manual states that:
Persons under a removal order who submit an H&C application and pay the appropriate fee are entitled to a decision on that application. There is no requirement to delay removal unless a positive determination has been made during a step-one H&C assessment [R233]. Therefore, clients seeking a decision prior to removal must submit their application well before removal is scheduled (section 5.10) [Emphasis in the original].
[16] And further:
If the H&C application cannot be completed prior to the applicant’s removal from Canada, a decision will be made after removal and the applicant will be informed of the decision…If their application is approved and they are otherwise admissible to Canada, they will be allowed to return to Canada for processing (section 5.11) [emphasis added].
[17] The provision of guidelines to assist in the interpretation and application of an enabling legislative authority is appropriate so long as the guidelines are not treated as mandatory in nature and allow for the exercise of the discretion afforded by the statute: Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Ha v. Canada (Minister of Citizenship and Immigration) (F.C.A.), [2004] 3 F.C.R. 195, 2004 FCA 49.
[18] The statute does not provide guidance as to the meaning of “humanitarian and compassionate considerations”. The policy manual, therefore, provides a useful function in drawing the attention of the assessing officers to what may constitute appropriate considerations. There is no evidence in the record before me that the exercise of the Minister’s discretion under s.25(1) of the IRPA has been fettered by the use of the terms “undue, undeserving or disproportionate hardship” in the manual or by the definitions provided for those terms.
[19] H&C officers are required by the manual to consider applicants’ submissions in light of all of the information known to the officer (section 5.6). They are explicitly told to approach each case with an open mind; being free to come to a decision on the basis of all of the known facts and the submissions made in an impartial and objective manner (section 5.30). Among the examples provided in the manual which indicate what it means to fail to approach a case with an open mind, is the following:
• Too much reliance on the factors set out in the H&C guidelines, to the exclusion of any other submissions made by the applicant… [Emphasis added].
[20] In oral argument, the respondent drew the Court’s attention to several other provisions of the manual that underscore the conclusion that it clearly takes into account the circumstances of persons in the applicant’s position. I do not need to review them all here. I am satisfied that the applicant’s premise, that the policies employed to review H&C applications leave no room for the exercise of positive discretion when the applicant has been removed, is not made out.
[21] Based on the record in these proceedings, a well-informed person, viewing the matter realistically and practically, would not have a reasonable apprehension of bias in a substantial number of cases where an H&C claim was being completed after an individual’s deportation. A reasonable apprehension of institutional bias has not been established.
[22] I also find no evidence of bias in the particular circumstances of the applicant’s case; no “state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues” to again cite Justice Cory’s definition. The officer considered all of the applicant’s submissions including those she had made following her return to India.
[23] In the result, the application will be dismissed.
[24] The respondent proposed the following question for certification:
Does the implementation of the IP 5 guideline produce an institutional or systemic bias on the part of decision makers assessing the [H&C] applications of persons who have been removed from Canada prior to the date of the assessment of the application?
[25] I see no reason to certify this question. There is no evidence of bias in the record before me; systemic or individual, actual or apprehended. The question would not be dispositive of an appeal in this matter.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. No questions are certified.
“Richard G. Mosley”
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1074-06
RACHNA UBEROI
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 28, 2006
REASONS FOR JUDGMENT
AND JUDGMENT BY: MOSLEY, J.
DATED: October 16, 2006
APPEARANCES BY:
Wennie Lee For the Applicant
Mary Matthews For the Respondent
SOLICITORS OF RECORD:
WENNIE LEE FOR THE APPLICANT
Lee & Company
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario