Quebec, Quebec, August 16, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the Act) of a decision of an immigration officer, Ron Legault (the officer), dated October 31, 2005, in which the reconsideration and withdrawal of a report made under subsection 44(1) of the Act (subsection 44(1) report) was refused.
FACTS
[2] The applicant is a citizen of Jamaica who came to Canada in 1993. She is a permanent resident of Canada and a single mother of three children. The applicant was convicted by Justice Mossip of the Ontario Superior Court of Justice on September 13, 2002, of importing cocaine. She was sentenced on March 26, 2003, to a conditional sentence of two years less a day. The first 20 months were under house arrest, with specific conditions. The remainder of the sentence involved a curfew instead of house arrest. The Crown appealed her sentence and on August 3, 2004, the Ontario Court of Appeal substituted a custodial sentence of 20 months, taking into consideration the fact that she had completed 16 months of her conditional sentence.
[3] The officer interviewed the applicant on July 27, 2005, at the Vanier Centre for Women in Milton, Ontario. The purpose of the interview was to determine if the applicant was inadmissible and whether or not the officer should write a report pursuant to subsection 44(1) of the Act.
[4] The officer, in a decision dated August 31, 2005, wrote a subsection 44(1) report indicating that the applicant was inadmissible for reasons of serious criminality pursuant to paragraph 36(1)(a) of the Act. The subsection 44(1) report was then considered, and a subsection 44(2) referral for an admissibility hearing was made, by the Canadian Border Services Agency (CBSA) Manager in Kitchener, K. Mustakas, in a decision dated September 14, 2005.
[5] The applicant received a copy of the subsection 44(1) report at her admissibility hearing on September 29, 2005. The admissibility hearing did not proceed on that date, as the applicant requested to be represented by counsel. The matter was put over for one week until October 6, 2005, when counsel requested a new date in order to prepare. The hearing of the case began on November 8, 2005.
[6] In a letter dated October 4, 2005 and another one dated October 31, 2005, counsel for the applicant requested that the Manager withdraw the referral for an admissibility hearing on the basis that the decision was unlawfully made.
[7] In a decision dated October 31, 2005, the officer, Mr. Legault, who was the Acting Manager at the time, decided that the decision would remain unchanged.
ISSUES
[8] 1. Did the officer err in the exercise of his discretion pursuant to subsection 44(1) of the Act?
2. Was the duty of fairness owed to the applicant met?
3. Did the officer err by ignoring evidence?
4. Did the officer display a reasonable apprehension of bias?
ANALYSIS
[9] Questions pertaining to the scope of the duty of fairness and the scope, if any, of the officer's discretion under the Act attract the standard of correctness (Awed v. Canada (Minister of Citizenship and Immigration) 2006 FC 469 at paragraph 8).
1. Did the officer err in the exercise of his discretion pursuant to subsection 44(1) of the Act?
[10] The applicant argues that the scope of the officer’s discretion under subsection 44(1) is broad enough for him to consider the factors outlined in the relevant sections of the Citizenship and Immigration Canada (CIC) Policy Manual (the Policy Manual), including the various humanitarian and compassionate considerations. In fact, the applicant asserts that the officer had a duty to consider a broad range of relevant factors, as outlined in the Policy Manual. The applicant submits that the officer failed to do this and that his sole consideration was whether or not a crime was committed that would constitute serious criminality pursuant to paragraph 36(1)(a) of the Act. The applicant alleges that the officer’s task was not simply to assess whether the nature of the offence was serious, and the sentence appropriate, but whether the applicant should benefit from the exercise of discretion.
[11] In Hernandez v. Canada (Minister of Citizenship and Immigration) 2005 FC 429, at paragraph 42, Justice Judith A. Snider discusses the scope of discretion afforded to the officer pursuant to subsection 44(1):
While acknowledging this concern, I conclude that the scope of the discretion of an immigration officer under subsection 44(1) and of the Minister's delegate under subsection 44(2) is broad enough for them to consider the factors outlined in the relevant sections of the CIC procedural Manual. To the extent that some of these factors may touch upon humanitarian and compassionate considerations, I see no issue.
[12] Even though Justice Snider concluded that the scope of the discretion of immigration officers is broad enough for them to consider the factors outlined in the Policy Manual, she does not say that the officers have a duty to do so.
[13] In Awed, above, Justice Richard Mosley takes a different position to the one articulated by Justice Snider. Justice Mosley does not stress the officer’s ability to consider factors outlined in the Policy Manual. Justice Mosley believes the officer’s discretion pursuant to subsection 44(1) is very limited. He states the following at paragraphs 16, 18 and 19:
Section 44 applies to all grounds of inadmissibility for foreign nationals and permanent residents. In the application of the discretion exercised under subsection 44(2), the scope of the Minister's discretion may vary depending on the grounds alleged or on whether the person concerned is a permanent resident or a foreign national. Permanent residents, as Justice Décary observed at paragraph 46, may have the opportunity to challenge both the immigration officer's report and the Minister's delegate's decision before the Immigration Division. But in either case, where criminality is alleged, the scope of the discretion afforded the officer and the Minister is very limited, reflecting Parliament's intention that non-citizens who commit certain types of crimes are not to remain in Canada.
. . .
In my view, where an interview is held under s.44 (1), the purpose of the interview is simply to confirm the facts that may support the formation of an opinion by the officer that a permanent resident or foreign national present in Canada is inadmissible. The use of the word "may" in s. 44(1) does not connote discretion but merely that the officer is authorized to perform an administrative function: Ruby v. Canada (Solicitor General) (C.A.), [2000] 3 F.C. 589 at 623 - 626, 187 D.L.R. (4th) 675 (F.C.A.).
While there is some force to the applicant's submission that it would be more efficient to allow the officer to exercise discretion at this stage of the process, such as to decide whether a criminal conviction should be discounted because of mental illness, the officer is not empowered by the enactment to make such a determination. Formation of the officer's opinion merely initiates a process which may or may not result in removal. In every case, it remains open to the applicant to seek an exception on humanitarian and compassionate grounds or a Pre-Removal Risk Assessment.
[my emphasis]
[14] In Canada (Minister of Public Safety and Emergency Preparedness) v. Jung Woo Cha, 2006 FCA 126, the Federal Court of Appeal, at paragraph 41, stated the following regarding the officer’s discretion:
I appreciate that before the Standing Committee the Minister and senior bureaucrats have expressed the view that personal circumstances of the offender would be considered at the front end of the process before any decision is taken to remove them from Canada (see Hernandez at paragraph 18). I also appreciate that the Manual contains some statements to the same effect (see Hernandez at paragraphs 20 to 23). However, these views and statements were all expressed or made in respect of permanent residents convicted of serious offences in Canada. No such assurances were given by specific reference to foreign nationals. I need not, therefore, decide what weight, if any, I would have given to such assurances in the circumstances of the present case. Whether weight was properly given to such assurances in Hernandez (where the issue was the scope of the Minister's delegate's discretion to refer a report of inadmissibility in respect of permanent residents to the Immigration Division), is a question better left for another day. I note that questions were certified in Hernandez, but the appeal has been abandoned (A-197-05).
[15] The jurisprudence is inconclusive as to the influence the factors outlined in the Policy Manual should have on the officer’s discretion. Regardless of the aforementioned inconclusiveness, I am of the opinion that officers can take the Policy Manual factors into consideration when making a decision pursuant to subsection 44(1) of the Act, but it is not their duty to do so.
[16] In the present matter, contrary to the assertions of the applicant, I am of the opinion that the officer did take into consideration humanitarian and compassionate factors and that his decision was not solely based on the applicant’s criminal acts. The officer wrote the following:
The writer is sensitive to the best interests of subject’s Canadian-born children in this case, given that subject will not have the right to appeal if ordered deported from Canada. The writer believes that the serious nature of the offence far outweighs any consideration to be given to the children. The writer notes that the children’s father has himself relocated to Jamaica, and would apparently be able to continue to provide the financial support he currently provides to them. While subject has been incarcerated, the children have been in the care of subject’s mother. These conclusions are supported fully in paragraphs 46 and 47 of the Ontario Court of Appeal decision attached.
(officer’s narrative report, Tribunal record at pages 3 and 4)
[17] In light of the above, I find that the officer did not err in the exercise of his discretion. The officer’s notes, which are being relied upon as reasons, disclose that all of the relevant factors were considered prior to the applicant’s referral to a hearing.
2. Was the duty of fairness owed to the applicant met?
[18] In Hernandez, above, at paragraphs 70 and 71, Justice Snider discussed the duty of fairness owed to the applicant for the purposes of subsection 44(1) of the Act:
Balancing all of these factors, I find that they point toward a more relaxed duty of fairness, similar to that found by the Supreme Court in Baker. In my view, the duty of fairness implicitly adopted by CIC for purposes of the subsection 44(1) report is appropriate. Although these are administrative decisions (rather than quasi-judicial) and although the person affected has some other rights to seek to remain in Canada, these are serious decisions affecting his rights. CIC, whose choice of procedures should be respected, has elected to give the affected person a right to make submissions, either orally or in writing and to obtain a copy of the report. Having a copy of the report would allow the affected person to decide whether he wishes to seek judicial review of the immigration officer's report to this Court. This, I conclude is the duty of fairness owed the applicant and others in his position with respect to the officer's report.
Implicit in this duty is, in my view, a requirement that the person being interviewed by an immigration officer is informed of the purpose of that interview so that he may make meaningful submissions. Further, I would think that the duty of fairness would require the immigration officer put to the interviewee any information he has that the interviewee would not reasonably be expected to have. A further implication is that the person should be offered the opportunity to have counsel present at any interview or to assist him in preparing written submissions. All of this is part of what CIC has acknowledged is required for the person to "fully understand both the case against them and the nature and purpose of the report".
[19] In light of the above, the duty of fairness owed pursuant to subsection 44(1) of the Act requires that the person being interviewed by an officer be informed of the purpose of that interview and the possible consequences of said interview. The officer must put to the person any information he has that the interviewee would not reasonably be expected to have. Also, the person should be offered the opportunity to have counsel present at any interview or to assist him in preparing written submissions.
[20] The applicant asserts a breach in the duty of fairness because she did not receive a copy of the report until her admissibility hearing. I disagree with this position. Justice Snider held that the duty of fairness does not require that the subsection 44(1) report be put to the applicant prior to the subsection 44(2) referral (Hernandez above at paragragh 72). The applicant received the report on September 29, 2005, at the first sitting of her admissibility hearing. Her right to seek judicial review of the report was not lost. Furthermore, as far as the admissibility hearing was concerned, the member adjourned the hearing, in order to provide the applicant with the opportunity to be represented by counsel. At the next sitting, the member once again adjourned the hearing in order to accommodate counsel’s request to prepare for the case. There has been no breach regarding the applicant’s right to receive a copy of the report.
[21] Although the applicant was given an oral interview, she submits that she was neither informed of the criteria against which her case was being assessed, the possible outcome of the review, nor the opportunity to provide further information. She states that given that she was not aware of the consequences, counsel was not advised to submit further information. Although, the officer’s notes of the interview indicate that he was aware that the applicant had contacted “Barb Jackman law office”, the applicant asserts that counsel was not given the opportunity to provide further information.
[22] Following the decision of the officer, dated October 31, 2005, refusing to reconsider and withdraw the writing and referral of the subsection 44(1) report, this matter proceeded to an admissibility hearing. At the admissibility hearing both the applicant and the officer testified before the Board. As noted by the respondent, the Board accepted the testimony of the officer as more credible than that of the applicant. The officer testified that typically, when conducting such interviews, he introduces himself, advises as to the purpose of his visit, verifies that the person is not a Canadian citizen and proceeds to obtain information. He further testified that at the time of the interview, no decision is made as to whether a report will be written, but that the person is advised of the possible repercussions, including the possibility of deportation. He also asked the applicant whether she had any information to add and whether she had counsel.
[23] The Board found the applicant’s assertion, that she had no concept of her possible deportation, was untrue. The Board concluded that the applicant was fully aware of the possibility of deportation without the statutory right of appeal prior to even being interviewed by immigration officials. The possibility of deportation was discussed during the course of her sentencing proceedings both at the trial and the appeal (see affidavit of Katie Lynch, Exhibit A, Immigration Division Decision, pages 9 and 10). The fact that the applicant told the officer that she was represented by the office of Ms. Barbara Jackman, further speaks to the fact that she was anticipating deportation proceedings.
[24] As noted by the respondent, the Board concluded that the applicant was fully alerted and advised of the purpose of the interview. The applicant was afforded the opportunity to add any other information. She was represented by counsel and had the opportunity to contact counsel after the immigration interview, prior to the writing up of the subsection 44(1) report.
[25] In light of the above, I find that the officer did in fact explain the purpose of the interview to the applicant and its possible outcome. I also find that the applicant was given an opportunity to make submissions opposing her removal from Canada.
3. Did the officer err by ignoring evidence?
[26] The applicant submits that the officer erred in law because his decision failed to take into consideration relevant evidence and was based on erroneous findings of fact.
[27] In Jeffrey v. Canada (Minister of Citizenship and Immigration) 2006 FC 605, at paragraph 15, Justice Mosley stated the following regarding administrative officers and detailed reasons:
While an H&C decision must be supported by reasons (see Baker, above ) it is inappropriate to require administrative officers to give as detailed reasons for their decision as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 , 2001 FCA 331; Agot v. Canada (Minister of Citizenship and Immigration) (2003) 232 F.T.R. 101, 2003 FCT 436 (F.C.T.D.).
[28] In the present matter, I find that the officer’s reasons adequately explain the basis of his decision and do not support an inference that he failed to consider all the material before him, including the best interests of the children. Upon review, it is clear that the officer considered what was mentioned about the applicant by the Court of Appeal for Ontario at her sentencing hearing. As noted by the respondent, this information was quite extensive and included details about the applicant, her children, her family relations here and in Jamaica, her education, her financial status, her employment history, her establishment in Canada and her immigration history and the details of her crime (see officer’s narrative report, Tribunal record at pages 3 and 4).
[29] The respondent admits that the officer inaccurately stated that all three children have one father, when in fact the third child has a different father from the first two. However, I find that this mistake is immaterial because it does not prejudice the applicant or change the outcome of the proceedings.
4. Did the officer display a reasonable apprehension of bias?
[30] The applicant asserts that the officer’s decision not to reconsider the referral of a report he himself had written gave rise to a reasonable apprehension of bias against the applicant.
[31] In Bhallu v. Canada (Solicitor General) 2004 FC 1324, Justice Yvon Pinard, at paragraph 12, commented on the necessary conditions to illustrate a reasonable apprehension of bias:
In order for an applicant to successfully claim that there was a reasonable apprehension of bias in the processing of his claim, he or she must demonstrate that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that it is more likely than not that the decision-maker would not decide fairly (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369). In the absence of any evidence to the contrary, it must be presumed that a decision-maker will act impartially. To rebut this presumption, the applicant must present more than vague allegations as to bias, which has not been done in this instance. The applicant admits that the fact that the same officer processed both claims is not sufficient to give rise to such a claim. However, I do not think that the fact that both decisions were made on the same day should negate them. The Officer's reasons leave nothing wanting. She deals with all the evidence presented and comes to reasonable conclusions in both instances.
[32] In the present matter, I find that the applicant failed to illustrate a reasonable apprehension of bias. Given the seriousness of the allegation, clear and cogent evidence should be provided in order for this Court to consider an allegation of bias. No such evidence has been provided in the present matter. The applicant did not illustrate that an informed person, viewing the matter realistically and practically and having thought the matter through to its conclusion would think it more likely than not that the decision-maker would unconsciously or consciously not decide fairly.
JUDGMENT
- The application for judicial review is dismissed;
- No question for certification.
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6910-05
STYLE OF CAUSE: TRACY-ANN SPENCER v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 9, 2006
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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Mr. Timothy Wichert
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Ms. Negar Hashemi
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SOLICITORS OF RECORD:
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Jackman & Associates Fax No. (416)653-1036
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John H. Sims, Q.C. Deputy Attorney General of Canada Fax No. (416)954-8982
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