IMM-2339-07
Toronto, Ontario, June 5, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
PREETKIRAN KHAKH
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This case concerns two applications for judicial review heard together pursuant to an Order of this Court. The first application, docket IMM-2342-07, concerns an application for judicial review of a decision of the Program Manager at the Canadian High Commission in New Delhi, India dated May 25, 2007, which refuses the applicants’ request for authorization to return to Canada. The second application, docket IMM-2339-07, concerns an application for judicial review of a decision of visa officer Cinthia Roberge, dated May 25, 2007, which refuses the applicants’ application for permanent residence in Canada. The decision in docket IMM-2339-07 depends entirely on the fact that the applicants did not receive authorization to return to Canada as required by subsection 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
I. Facts
[2] Both citizens of India, the principal applicant, Gurbhagwant Singh Khakh, and his wife, Preetkiran Khakh, arrived in Canada illegally on December 10, 2003 after three failed attempts to obtain Canadian visitors visas.
[3] In January 2004, the applicants filed a claim for refugee protection on the basis that they were being extorted by local authorities in India. That claim was dismissed on November 5, 2004 when the Refugee Protection Division of the Immigration and Refugee Board (the RPD) concluded that the applicants possessed an internal flight alternative within India. An application for leave and judicial review of that decision was dismissed by this Court on February 22, 2005.
[4] On July 23, 2005, the applicants applied for a Pre-Removal Risk Assessment (PRRA) pursuant to section 112 of the IRPA. On the advice of counsel, the applicants withdrew their PRRA application on November 24, 2005. On March 12, 2006, the applicants left Canada in compliance with a removal order.
[5] Prior to leaving Canada, the applicants explored their immigration options and applied as provincial nominees under the Provincial Nominee Program of Prince Edward Island. Having been accepted as provincial nominees, the applicants applied for permanent residence in Canada. Their applications were received at the Canadian High Commission in New Delhi on September 27, 2005. However, due to the fact that they had previously been subject to an enforced removal order, the applicants’ permanent residence application could not be processed unless they first obtained authorization to return to Canada pursuant to subsection 52(1) of the Act.
[6] On November 30, 2006, the principal applicant was convoked to an interview at the Canadian High Commission in New Delhi to review his eligibility as a provincial nominee. On April 19, 2007, the applicants were convoked to a second interview at the Canadian High Commission, which was designed to address their admissibility to Canada and whether they should be granted authorization to return under subsection 52(1) of the Act. Both interviews were conducted by the same visa officer (the VO).
[7] On May 17, 2007, the VO recommended that the Immigration Program Manager (the IPM) refuse the applicants’ request for authorization to return to Canada. The recommendation of the VO stated:
The Principal Applicant bears the onus of satisfying me that the compelling reasons present in his individual circumstances are sufficient to warrant an exemption, which I was not. As such, I recommend refusal of [authorization to return to Canada] under the Immigration Program Managers delegated authority.
[8] On May 25, 2007, the IPM in the exercise of his delegated authority concludes that the applicants should not be granted authorization to return to Canada. This decision is impugned by the applicants’ judicial review application in docket IMM-2342-07.
[9] Also on May 25, 2007, relying on the fact that the applicants had not received authorization to return to Canada, the VO refused their application for permanent residence in Canada. The VO’s decision is impugned by the applicants’ judicial review application in docket IMM-2339-07.
II. Issues
[10] The applicants raise three issues for consideration, which the Court rephrases as follows:
1. Did the IPM breach the rules of fairness or otherwise err in basing his decision on the visa officer’s recommendation, which contains false credibility findings premised on misconstrued evidence;
2. Did the IPM breach the rules of fairness in relying on extrinsic evidence and failing to advise the applicants of the case to be met; and
3. Was the visa officer’s decision to refuse the applicants’ permanent residence application unreasonable on the circumstances of this case?
[11] Given that the visa officer’s decision depends entirely of the IPM’s refusal to grant the applicants authorization to return, the Court’s conclusion on the third issue will necessarily depend upon its conclusion regarding the first two issues.
III. Standard of Review
[12] Issues of natural justice and procedural fairness are not governed by the pragmatic and functional approach to judicial review. Such matters are questions of law subject to the standard of correctness. In such cases, the Court must “examine the specific circumstances of the case and determine whether the [decision maker] in question adhered to the rules of natural justice and procedural fairness” (Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168 at paragraph 15). In the event that a breach is found, no deference is due and the decision will be set aside (Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392).
[13] The majority of the Supreme Court held in Dunsmuir v. New Brunswick, 2008 SCC 9, that judicial reviews should be limited to two standards: correctness for legal questions outside of the enabling statute of the tribunal and reasonableness for all other questions. The Court also noted that the analysis of the appropriate standard of review need not by undertaken where courts have arrived at consensus in similar cases.
[14] The authority granted to the IPM is contained in subsection 52(1) of the Act, which states:
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52. (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances. |
52. (1) L’exécution de la mesure de renvoi emporte interdiction de revenir au Canada, sauf autorisation de l’agent ou dans les autres cas prévus par règlement.
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This authority shall therefore be reviewed on a standard of reasonableness (formally reasonableness simpliciter as decided in Sahakyan v. Canada (Minister of Citizenship and Immigration, 2004 FC 1542, 267 F.T.R. 126, at paragraph 34).
IV. Relevant Legislation
[15] Failed refugee claimants such as the applicants are subject to removal from Canada once their claim has been finally determined. Section 223 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations) outlines three types of removal orders, namely, departure orders, exclusion orders and deportation orders.
[16] Under subsection 224(2) of the Regulations, a foreign national who is issued a departure order must leave Canada within 30 days of the order becoming enforceable. Failure to do so results in the departure order becoming a deportation order.
[17] This transformation is significant. Under section 224 (1) of the Regulations, a foreign national subject to an enforced departure does not need to obtain authorization under subsection 52(1) of the Act in order to return to Canada. However, once a departure order becomes an enforceable deportation order, removal from Canada carries significant consequences. Section 226 of the Regulations, which governs deportation orders, states that a foreign national subject to an enforced deportation order cannot return to Canada at any point in the future without first obtaining written authorization to do so.
[18] In the case at bar, the applicants became subject to an enforceable departure order in February 2005 when their application for leave and judicial review of their refugee claim was dismissed by this Court. By not leaving Canada within the 30-day period mandated in subsection 224(2) of the Regulations, the applicants became subject to a deportation order that was executed when they ultimately left Canada on March 12, 2006. Accordingly, by operation of subsection 52(1) of the Act and section 226 of the Regulations, the applicants cannot return to Canada without written authorization.
[19] The above-noted relevant provisions of both the Law and the Regulations are attached at the end of this judgment as Appendix “A”.
V. Analysis
Issue No. 1: Did the Program Manager breach the rules of fairness or otherwise err in basing his decision on the visa officer’s recommendation, which contained false credibility findings premised on misconstrued evidence?
[20] The applicants argue that the IPM breached the rules of fairness in failing to give them an opportunity to respond to the credibility findings made by the VO who interviewed the applicants regarding their request for authorization to return to Canada.
[21] Whether or not the applicants were treated unfairly in their interview with VO depends on the extent of the duty of fairness owed to the applicants in the circumstances of this case. It is clear that the decision to grant an authorization under subsection 52(1) of the Act is a discretionary administrative decision. While the duty of procedural fairness applies to discretionary administrative decisions, its content varies according to the circumstances of each case (Baker v. Canada (Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817). In Baker, the Supreme Court outlined a number of factors that must be taken into account when determining the appropriate level of fairness. These factors include, inter alia, the importance of the decision to the individual, the nature of the decision and the process followed, the legitimate expectations of the individual, the public interest, and the factual context.
[22] In addition to those factors, it is important to also to keep in mind the values underlying the concept of fairness and “that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision” (Baker, above, at paragraph 28).
[23] In Akbari v. Canada (Minister of Citizenship and Immigration, [2006] F.C.J. No.1773, at Paragraphs 9-11, this Court commented as follows on the considerations to be made when determining the extent of the duty of fairness as it relates to decisions under subsection 52(1) of the Act:
¶ 9 The public interest factor requires that attention be directed to our immigration laws, to ensuring that non-citizens adhere to them and that officials enforce them. As noted in [Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.)] a decision adversely affecting an individual may engage a lower content of procedural fairness where prejudice to national security or international relations is engaged. There do not appear to be issues of that nature or issues of criminality in this matter.
¶ 10 The factors must be balanced, not in the abstract, but in the factual context of the particular case. Thus, the level of procedural fairness required in one case may not be the same as that required in another. It is not insignificant that some hardship has been imposed in this matter as a result of the loss of Ms. Akbari’s passport.
¶ 11 In balancing the factors in the situational context of this matter, I consider the content of procedural fairness to be near the low end of the spectrum. I do not agree with Ms. Akbari’s suggestion that an interview was required. Nor is there a requirement that formal reasons be provided. As in Baker, I conclude that the notes of the immigration officer may be taken as the reasons for the decision. That said, I also agree with the respondent that an [authorization to return to Canada] should not be construed as a mini humanitarian and compassionate application. However, regard must be had to the various factors that I have discussed. This requirement necessitates that consideration be given to the totality of the factual circumstances that are presented to the immigration officer.
[24] In the case at bar, the Court agrees with the respondent that the content of the duty of fairness falls even lower on the spectrum than in Akbari, above. This is mainly because of the fact that the IPM’s refusal in the case at bar did not lead to, or maintain, the break up of the applicants’ immediate family as was the case in Akbari.
[25] However, given that the applicants were granted an interview at the Canadian High Commission in order to address whether authorization should be granted, the Court must determine whether they were given an adequate opportunity to respond to the concerns of the immigration officials before a final decision was rendered. Accordingly, at a minimum, the applicants in the case at bar were entitled to be given an opportunity to respond to the concerns of VO that formed part of her recommendation to the IPM. For the following reasons, this Court does not believe that such an opportunity was given in this case.
[26] As stated in Akbari, above, a decision on whether to grant authorization to return to Canada should not be construed as a “mini humanitarian and compassionate application.” Such a decision should, however, be based on all the circumstances of the case, including the underlying objectives of the Act. For example, paragraph 3(1)(h) of the Act states that the legislation must be construed in a manner that protects the health and safety of Canadians and maintains the security of Canadian society. However, this objective must be balanced with the other objectives of the Act, which include permitting Canada to pursue the social, cultural, and economic benefits of immigration, enriching and strengthening our social and cultural fabric, and promoting the successful integration of permanent residents into Canada.
[27] In the case at bar, the recommendation of the VO focuses primarily on the applicants’ immigration history, particularly on the fact that they entered Canada illegally in 2003 and failed to leave in a timely manner after a final decision was rendered on their refugee claim. This focus is demonstrated in the notes of the VO who refers to the applicants’ illegal entry into Canada and failure to comply with Canadian immigration law as reasons for her negative recommendation. Further, such rationale is then relied on by the IPM, who states in his decision that the applicants “committed multiple violations of Canadian Law, knowing that [their] behaviour was illegal.”
[28] The recommendation of VO is also premised on the nature of the applicants’ refugee claim, which she finds to have “no credible basis” and amounting to an abuse of Canada’s refugee system. The applicants, however, argue that such findings were premised on the VO’s misconstruction of the evidence before her and were, accordingly, unreasonable. The applicants further argue that the VO failed to comply with the duty of fairness in reaching such conclusions without first informing them of her concerns and providing them with an opportunity to respond.
[29] Having reviewed the evidence, the Court finds that the conclusion of The VO that the applicants’ refugee claim had “no credible basis” and was an abuse of Canada’s refugee system was an unreasonable conclusion on the evidence. While the VO’s decision seems to be premised on the fact that the applicants’ illegally entered Canada in 2003, with an express intention of immigrating, her conclusion is in no way supported by the reasons of the IPM, which does not base its decision on the applicants’ credibility, but rather on the existence of an internal flight alternative in India, as he states in his decision that :
The claimants have sought protection in the country of Canada; however, I find that protection was available to them in their own country of India. Assuming, without making a finding to that effect, that the brutal mistreatment at the hands of the local Punjabi police unfolded as alleged, instead of fleeing to Canada for protection, I am of the view the claimants could have found respite within India. Delhi, Mumbai and Calcutta, are, in my opinion, viable [internal flight alternative] areas for the claimants.
[30] Accordingly, it was unreasonable for the VO to find that the applicants’ refugee claim had no credible basis. The applicants arrived in Canada in 2003, and forwarded what they believed was a well-founded claim for refugee protection on account of extortion threats from local authorities in India. In concluding that the applicants were not Convention refugees or persons in need of protection, the Board based its decision not on the credibility of the applicants, but on the issue of state protection in India, i.e., the applicants would have been able to receive adequate state protection by relocating to another area within the country. On this basis, there was no evidence before the visa officer on which to conclude that the applicants’ refugee claim was anything less than genuine. Accordingly, the applicants had the right under the Law to seek refugee protection in Canada and it was not open to the VO to comment on the genuineness of their claim. As Mr. Justice Harrington stated in Sahakyan v. Canada (Minister of Citizenship and Immigration), 2004 FC 1542, 267 F.T.R. 126,, at paragraph 22:
... No matter how [the applicant] got here, no matter how he may have pitched his chance of success, no matter that he wanted to join his brother, no matter his economic motives, he had the right under Part 2 of the Act to seek refugee protection in Canada. As the Regulations make clear, the fact that his application was not successful has no bearing on his right to seek permanent residence as an immigrant. All he did was run afoul of the timing requirements governing his departure from Canada, and yet he was not asked the reasons for that delay. [Emphasis added]
[31] The respondent argues that any error alleged by the applicants regarding the genuineness of their refugee claim is immaterial to the reasonableness of the IPM’s decision since such findings did not form the basis of that decision. However, the Court finds on the evidence that while the IPM’s decision was not directly based on the view that the applicants abused Canada’s refugee system, it was based largely on a finding that the applicants committed “multiple violations” of Canadian immigration law, which, in turn, was informed by the unreasonable conclusions of the VO.
[32] In Sahakyan, above, the Court considered a case quite analogous to the present issue. In that case, the Court addressed the factors relevant to a decision under subsection 52(1). In relation to an individual’s immigration history the Court stated that while such history is not entirely irrelevant to a request for authorization, it must be considered within the appropriate context – i.e., whether that immigration history was relevant to why the applicant remained in Canada longer than authorized.
[33] Based on these considerations, the factors seized upon by the VO in her recommendation, and by the IPM in his decision, were not relevant to the applicants’ reasons for leaving Canada after the date in which they were required to do so. For example, had the applicants left Canada within the period prescribed in the Regulations, they would have been entitled to return to Canada in the future notwithstanding the legality of their initial entry in 2003 or the well-fondness of their refugee claim.
[34] Accordingly, the IPM’s reliance on the applicants’ illegal entry into Canada in 2003, which along with their late departure in March 2006 combined to form the “multiple violations” referred to in the decision, was unreasonable in that no consideration was given to the applicants’ purpose for illegally entering Canada in 2003; namely file a claim for refugee protection, which, as stated in Sahakyan, above, they were entitled to do under the law. While respecting immigration laws is a legitimate policy consideration in the IPM’s exercise of discretion, the evidence before this Court establishes that the applicants’ only true violation was their failure to leave Canada within the timeframe mandated.
[35] Moreover, the Court has trouble finding that the IPM’s decision was made with regard to all the circumstances of the case and the underlying objectives of Canadian immigration law. First, while the Program Manager attempted to balance the economic benefit to Canada of granting the applicants’ request for authorization, at no point did he consider the applicants’ reasons for not leaving Canada until March 2006. The applicants state that their late departure is largely due to the fact that they had trouble renewing their Indian passports. They explain that despite paying extra fees to have their renewal applications expedited, they could not secure renewed passports until March 2006, the very same month in which they left Canada. While correspondence concerning the applicants’ difficulty in renewing their passports was recorded in the VO’s notes, at no point in either her recommendation or the IPM’s decision are such reasons considered within the context of whether authorization should be granted. Had they advised the applicants of their concerns they could have obtained more precision on their late departure.
[36] Further, at no time in the IPM’s decision or the VO’s recommendation is any consideration given to the fact that deportation orders are often applied to those individuals who have been found inadmissible to Canada on various grounds including serious criminality, national security, or violations of human and international rights. Unlike in those situations, the applicants in the case at bar are not security risks, nor do they possess criminal records. While they entered Canada illegally, they made a valid, albeit unsuccessful claim for refugee protection. They now seek to return to Canada as immigrants, having already been found eligible as provincial nominees. Accordingly, in the words of Mr. Justice Harrington in Sahakyan, above, their only violation was to “run afoul of the timing requirements” governing their departure from Canada. It strikes the Court as unreasonable that the applicants would be denied authorization to return under such circumstances, especially considering that no consideration was given to their reasons for not departing Canada before March 2006.
[37] Accordingly, in basing his rejection on factors not relevant to their delayed departure, and then not further considering the applicants’ reasons for such tardiness, the IPM erred in his decision. On this basis, the applicants’ application for judicial review in docket IMM-2342-07 must be allowed.
Issue No. 2: Did the Program Manager breach the rules of fairness in relying on extrinsic evidence and failing to advise the applicants of the case to be met?
[38] In her recommendation to the IPM, the VO made reference to a document entitled RIL 06-017, which are draft guidelines of overarching principles that are used to inform on the exercise of discretion under subsection 52(1) of the Act. In reference to these guidelines, the VO notes:
As per RIL 06-017 guidelines, Section 52 of the [IRPA] was written, and passed, in order to encourage individuals to comply with enforceable departure orders. A permanent bar to return to Canada is a serious consequence of non-compliance. An ARC should not be routinely granted as a way to overcome this bar, but rather should only be granted in cases where an officer considers the issuance to be justifiable based on the facts of the case. The onus is on the applicant to provide reasons to consider the issuance of an ARC given the circumstances that necessitated the issuance of a removal order. Aside from meeting eligibility requirements for the issuance of a visa, there must also be compelling reasons to grant an ARC.
[39] The applicants argue that the VO breached the rules of fairness in relying on the draft guidelines as part of her recommendation without giving the applicants any notice of their content or even their existence. Accordingly, the applicants submit that had they known about the existence of the draft guidelines, they would have made additional submissions explaining how the considerations outlined therein “worked in the Applicants’ favour.”
[40] Having reviewed the draft guidelines, it is clear that they possess a number of overarching principles that are intended to guide the IPM’s decision on how to exercise his or her discretionary power under subsection 52(1) of the Act. These principles are not intended to fetter that discretionary power, nor do the applicants argue that such was the case here. However, the Court finds that these principles provide substantial additions to the guidelines that were already in force within Citizenship and Immigration Canada’s Overseas Processing Manual OP1 – Procedures, which, at the time, did not address any overarching principles to be taken into consideration by the IPM when making a decision. Accordingly, had the draft guidelines been disclosed to the applicants prior to their interview with the VO, the applicants would have been able to more fully comprehend the factors being weighed by the IPM concerning whether an authorization to return was warranted. By failing to disclose their existence and then relying on them in reaching a negative recommendation, the VO did not give the applicants adequate knowledge of the case to be met, which breached their right to fair treatment. This is especially the case given that the draft guidelines were not publicly available at the time that the applicants were interviewed in April 2007.
[41] Accordingly, the decision of the IPM to deny the applicants’ request for authorization must also be set aside on these grounds.
Issue No. 3: Was the visa officer’s decision to refuse the applicant’s application for permanent residence unreasonable on the circumstances of this case?
[42] The applicants argue that the decision of the VO was based solely on the fact that they did not receive authorization to return to Canada as required under subsection 52(1) of the Act. The Court agrees. Accordingly, because the Court already found that the IPM’s decision to no grant the applicants’ request for authorization was made in error, then the VO was not entitled to rely in that decision in refusing their application for permanent residence.
[43] For these reasons, the Court will allow the applicants’ application for judicial review in docket IMM-2339-07. A final determination of their permanent residence application shall be made once a new decision is rendered regarding whether they are authorized to return to Canada.
[44] The Court agrees with the party that there is no question of general interest to certify.
JUDGMENT
FOR THE FOREGOING REASONS THIS COURT ORDERS that:
1. Allows the application for judicial review in docket IMM-2342-07, sets aside the decision of the Program Manager, and refers the matter back to a different individual for redetermination in accordance with these Reasons; and
2. Allows the application for judicial review in docket IMM-2339-07, sets aside the decision of the visa officer denying the applicants’ permanent residence application, and the matter is sent back to another visa officer for redetermination once a decision has been rendered on whether the applicants are to be granted authorization to return to Canada.
“Maurice E. Lagacé”
APPENDIX “A”
Immigration and Refugee Protection Act, S.C. 2001, c. 27
Immigration and Refugee Protection Regulations, S.O.R./2002-227
FEDERAL COURT
SOLICITORS OF RECORD
DOCKETS: IMM-2342-07 & IMM-2339-07
STYLE OF CAUSE: GURBHAGWANT SINGH KHAKH, PREETKIRAN
KHAKH v. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES:
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Chantel Desloges
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Sharon Stewart Guthrie
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SOLICITORS OF RECORD:
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Green & Spiegel Barristers & Solicitors Toronto, Ontario
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John H. Sims, Q.C Deputy Attorney General of Canada Toronto, Ontario
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