Date: 2040831
Citation: 2004 FC 1192
Ottawa, Ontario, the 31st day of August 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
NAOMI SAITO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
OVERVIEW
[1] Repeated action creates expectation; thus, reflection is required at the seat of discretion, for an indication to mitigate surprise with a response for unwarranted expectation.
JUDICIAL PROCEDURE
[2] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act,[1] and section 72 of the Immigration and Refugee Protection Act,[2] of a decision of an Immigration Officer, dated August 12, 2003, wherein an Immigration Officer refused an application for an extension of the Applicant's visitor visa.
BACKGROUND
[3] Ms. Saito is a citizen of Japan. She first came to Canada in 1989 on a work/holiday visa. At that time, she met Mr. Hassan Samimifar, and they became a couple. Ms. Saito stayed in Canada. Ms. Saito and Mr. Samimifar have been living together in a common-law relationship in Canada since 1989, save and except for the periods of time that the Applicant has been ordered to leave Canada because her visitor's status had expired.
[4] Ms. Saito and Mr. Samimifar have had two Canadian born children together. One is currently enrolled in grade three in a school in Canada and the other child will be turning two in September.
[5] The Applicant submitted an application for permanent residence from within Canada based on humanitarian and compassionate grounds. Her application was rejected. Mr. Samimifar, who has been living in Canada for the past 18 years, has also applied for permanent residence on humanitarian and compassionate grounds. Although his application was approved in principle, he was never granted permanent resident status. In January 2003, he was found to be inadmissible. Mr. Samimifar has had the inadmissibility decision of the Immigration Officer reviewed; his application has been sent back for reconsideration.
[6] Over the course of the last 14 years, the Applicant has spent almost all of her time in Canada, leaving on eight occasions when her visas expired. Three of those times occurred after her eldest daughter was born. Ms. Saito took her daughter with her to Japan because she is the primary caregiver and her common-law husband has full time work.
[7] Before Ms. Saito's visa expired on July 11, 2003, she applied for an extension of her visitor's visa. Ms. Saito's counsel also wrote a letter to go along with the application, which explained the Applicant's circumstances. Ms. Saito's counsel requested that the visa be extended for another six months while Mr. Samimifar's status in Canada was being resolved.
[8] The Applicant's request for an extension was refused on August 12, 2003.
DECISION UNDER REVIEW
[9] The relevant portions of the Immigration Officer's letter is as follows:
This refers to your application for a Visitor Record.
Your application as requested is refused.
...
In reaching a decision, an officer considers several factors, which include the applicant's:
1. Reason for original entry and reason for requested extension;
2. Ties to country of permanent residence, including:
- employment and study commitments;
- family ties and responsibilities;
- status (citizenship or immigration status);
3. Financial means for the extended stay and return home;
4. Travel and identity documents;
5. Probability to leave Canada at the end of authorized stay.
After considering all the circumstances of your case, I am not satisfied that you meet the requirements of the Act and Regulations.[3]
[10] On July 4, 2004, the Respondent submitted an affidavit from a Program Specialist with the Immigration Officer's FOSS' notes attached as an exhibit to the affidavit. In his affidavit, the Program Specialist attests that the notes are those of the Immigration Officer, and that they concerned Ms. Saito.[4]
ISSUES
[11] Is the affidavit and exhibit admissible?
[12] Did the Immigration Officer breach the duty of fairness owed to Ms. Saito by providing insufficient reasons?
[13] Did the Immigration Officer commit a reviewable error by not considering the best interests of the children?
ANALYSIS
Is the affidavit and exhibit admissible?
[14] The Applicant submits that the affidavit and attached exhibit should not be admitted. In the application for leave and judicial review, the Applicant stated that "The Applicant HAS NOT received written reasons from the Tribunal." In response, the Applicant received a letter, pursuant to Rule 9 of the Federal Court Immigration and Refugee Protection Rules,[5] with a copy of the "decision/order and reasons rendered in connection with the above-noted application."[6] The letter is signed by Ray Leblanc, Client Services Officer of the Case Processing Centre, Vegreville. Attached to the cover letter was the same letter that had already been sent to Ms. Saito and which is quoted above.
Rule 9 of the Federal Court Immigration and Refugee Protection Rules reads as follows:
| 9. (1) Where an application for leave sets out that the applicant has not received the written reasons of the tribunal, the Registry shall forthwith send the tribunal a written request in Form IR-3 as set out in the schedule.
(2) Upon receipt of a request under subrule (1) a tribunal shall, without delay,
(a) send a copy of the decision or order, and written reasons therefor, duly certified by an appropriate officer to be correct, to each of the parties, and two copies to the Registry; or
(b) if no reasons were given for the decision or order in respect of which the application is made, or reasons were given but not recorded, send an appropriate written notice to all the parties and the Registry.
(3) A tribunal shall be deemed to have received a request under subrule (1) on the tenth day after it was sent by mail by the Registry.
(4) The applicant shall be deemed to have received the written reasons, or the notice referred to in paragraph 9(2)(b), as the case may be, on the tenth day after it was sent by mail by the tribunal.
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9. (1) Dans le cas où le demandeur indique dans sa demande d'autorisation qu'il n'a pas reçu les motifs écrits du tribunal administratif, le greffe envoie immédiatement à ce dernier une demande écrite à cet effet selon la formule IR-3 figurant à l'annexe.
(2) Dès réception de la demande prévue au paragraphe (1), le tribunal administratif envoie :
a) à chacune des parties une copie du dispositif et des motifs écrits de la décision, de l'ordonnance ou de la mesure, certifiée conforme par un fonctionnaire compétent, et au greffe deux copies de ces documents;
b) si aucun motif n'a été donné à l'appui de la décision, de l'ordonnance ou de la mesure visée par la demande, ou si des motifs ont été donnés sans être enregistrés, un avis écrit portant cette précision à toutes les parties et au greffe.
(3) Le tribunal administratif est réputé avoir reçu la demande prévue au paragraphe (1) le dixième jour après sa mise à la poste par le greffe.
(4) Le demandeur est réputé avoir reçu les motifs écrits ou, le cas échéant, l'avis visé à l'alinéa 9(2)b) le dixième jour après leur mise à la poste par le tribunal administratif. |
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[15] The Applicant submits that the Respondent cannot now rely on the Immigration Officer's notes as reasons, for this would be in violation of Rule 9 of the Rules, and is manifestly unfair to the Applicant.[7]
[16] The Court deems that the affidavit and exhibit should not be admitted. Firstly, the affidavit itself is deficient. The affiant, who is not the Immigration Officer who was the purported author of the FOSS notes, states: "Attached hereto and marked as Exhibit "A" to this my Affidavit is a true copy of the FOSS notes entered into the computer system by the officer that made this decision."[8] Because the affiant did not himself write the notes, he must indicate how he knows that it was the Immigration Officer that wrote the notes, and, given that he argues these are the reasons for the decision, when the Immigration Officer wrote the notes. He has not done so, and the exhibit is therefore of limited value.
[17] The affiant goes on to state: "The notes reveal, and I verily believe, that the Applicant's personal circumstances relevant to the Application for extension were considered."[9] This is a legal conclusion, and therefore, does not belong in an affidavit.[10]
[18] More importantly, the Court questions whether these notes should be taken to constitute the Immigration Officer's reasons. It is trite law that an officer's notes may constitute reasons.[11] In this instance, however, the Immigration Officer did not include the notes as part of the decision when the Applicant first requested them. Arguably, then, he did not intend for his notes to constitute his reasons.
[19] The affidavit purporting that the notes constitute reasons does not explain why the notes were not sent to Ms. Saito when she first asked for the reasons, nor does it indicate why the affiant believes the notes were the Immigration Officer's reasons. In the end, the Respondent has provided insufficient evidence to demonstrate that the notes set forth truly constitute the Immigration Officer's reasons.
[20] Even if the Court were to deem that the notes do constitute the Immigration Officer's reasons, the Court would still deem that the affidavit, is, in and of itself, problematic, and should not be admitted.
[21] As the Applicant has pointed out, the Respondent has breached Rule 9 of the Rules. The facts of Shirazi are similar to those of the case at bar on this issue. In his decision, McKeown, J. explained the importance of complying with Rule 9. He stated:
There can be no doubt about the importance of this decision to this applicant. In this case, there is a statutory right to apply for leave to file an application for judicial review. It is not possible for a person to make proper submissions with respect to a decision if the reasons for the same are not made available to that person at the relevant time.
Accordingly, the respondent should ensure that the reasons are provided to the applicant either at the same time as the decision is rendered or very shortly thereafter. Most importantly, reasons need to be given to the applicant in a timely manner, so that he or she has adequate time in which to file an application for judicial review. It is certainly most inappropriate that decisions such as this one are still issued without reasons despite the fact that the ruling in Baker, supra has been in effect for several months.
In the case before me, the applicant did receive the reasons in time to file his further memorandum of argument. Therefore, it is my view that no remedy is required, particularly in light of my findings in this matter. [12]
[22] In this case, the deficiency caused by not disclosing the purported reasons in a timely manner was not cured by providing them to Ms. Saito before she had to file her further memorandum of argument. The Applicant's case turns almost entirely on the argument that the reasons are insufficient. It was essential, therefore, for the Applicant to have the reasons at the earliest possible date. The Respondent knew that this was Ms. Saito's position, yet still waited until the eleventh hour to incorporate the notes within the reasons. There is no reason for this. The affidavit and exhibit are therefore, inadmissible.
Did the Immigration Officer breach the duty of fairness owed to Ms. Saito by providing insufficient reasons?
[23] Both the Applicant and Respondent agree that the criteria to be considered in determining the level of duty of fairness owed to applicants was re-iterated in Baker. There, L'Heureux-Dube, J. stated that the criteria are as follows: the nature of the decision being made and the process followed in making it, the nature of the statutory scheme and the terms of the statute pursuant to which the body operates, the importance of the decision to the individual in question, the legitimate expectations of the person challenging the decision, and the choices of procedure made by the agency itself.[13]
[24] Ms. Saito argues that, whether or not a general duty exists to provide reasons to applicants for visitor's visas, her particular situation required reasons. The Respondent, if the Court understands her argument correctly, indicates that the individual circumstances of a case are not relevant in determining the duty of fairness. Minimal duty of fairness is to be afforded to individuals seeking a visitor's visa. As such, reasons were not necessary in the case at bar.
[25] It is possible, as the Respondent states, that, in general circumstances, the duty owed to individuals applying for visitors' visas may not include the provision of reasons. Ms. Saito submits that the case law indicates that simple form letters do not constitute reasons in the case of student authorizations.[14] At the same time, the cases cited by Ms. Saito reiterate that the duty of fairness owed to individuals applying for student authorization is minimal. The level of duty of fairness owed to individuals applying for visitors' visas may be even less than that afforded to individuals applying for student authorization, given that it is likely that it is more important for an individual to study in Canada than to visit Canada.
[26] Ultimately, however, it is unnecessary to decide whether a general duty exists to provide reasons to applicants for visitor visas, as the Court finds that, given the particular and unique circumstances of this case,unique, unto itself, there was a duty to provide reasons to Ms. Saito.
[27] In Baker, the Supreme Court of Canada confirmed that the content of the duty of fairness is flexible, and can change from case to case. L'Heureux-Dube, J., stated:
...As I wrote in Knight v. Indian Head School Division No. 19, ... "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case." All the circumstances must be considered in order to determine the content of procedural fairness.[15] (emphasis that of the Court)
Thus, contrary to the submissions of the Respondent, the individual circumstances of the case may be a factor in determining the level of duty of fairness owed to an applicant. In the specific context of this case, the importance of the decision to Ms. Saito was greater than it would be to the average applicant. A negative result would mean separation from her common-law husband, and uprooting her children and herself. Given the importance of the decision to Ms. Saito, the Immigration Officer was required to issue more than a mere form letter to her.
[28] The reasons need not be lengthy nor comprehensive. However, they should include some reference to Ms. Saito's situation, as well as identification of the factors used to reach the decision to accept or reject Ms. Saito's application for an extension of her visitor's visa.
[29] In this unique case, specific to the Applicant solely, the Immigration Officer erred by not providing reasons to Ms. Saito. What the basis of those reasons would be is for the Immigration Officer to decide, not for this Court.
Did the Immigration Officer commit a reviewable error by not considering the best interests of the children?
[30] The Applicant submits that the Immigration Officer did not take into consideration the best interests of the child. Following Baker, the Applicant submits that it was incumbent upon the Immigration Officer to assess the best interests of Ms. Saito's daughters. The Applicant concedes that Baker was decided in the context of an application for landing inside of Canada on humanitarian and compassionate grounds ("H & C application"), but states that, in this case, as in the case of removal orders,[16] the best interests of the child should be considered.
[31] The Respondent distinguishes Baker, as the factors used to assess the H & C applications cannot be applied to the application for visitors' visas or extensions of the visas. The Court agrees. As established in Baker, the legislation intends that H & C applications be determined in a humanitarian and compassionate manner, which includes close attention to the needs of children. The intention of the legislation in the context of visitors' visas is far different. Section 179 of the Immigration and Refugee Protection Regulations,[17] clearly stipulates the criteria the officer must establish before granting a visa. Section 179 states:
| 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible; and
(f) meets the requirements of section 30.
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179. L'agent délivre un visa de résident temporaire à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis :
a) l'étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants;
b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2;
c) il est titulaire d'un passeport ou autre document qui lui permet d'entrer dans le pays qui l'a délivré ou dans un autre pays;
d) il se conforme aux exigences applicables à cette catégorie;
e) il n'est pas interdit de territoire;
f) il satisfait aux exigences prévues à l'article 30. |
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The only thing the immigration or visa officer must turn his or her mind to, on the basis of section 179 of the Regulations, is whether the applicant has a temporary purpose for coming to Canada. H & C considerations, and therefore the best interests of the children, are simply not mandated by the legislation.
[32] Ms. Saito has also submitted that the Court can look at all of the circumstances in the case to determine if the decision was reasonable. The Court deems that it is unnecessary at this point to determine whether a decision, properly made, would be reasonable. In this matter, unique unto itself, the assessment of the merits, as always, is left to the Immigration Officer; however, reiteration of paragraph 28 of the reasons for this order is deemed necessary. Reference to the appropriate individual should, at the very least, be made. This is simply due to the situation created by numerous visa extensions in which the person had left and returned to Canada on a number of occasions for what appear to be, no other undisclosed reasons, other than those linked to the common-law marriage and situation of the children, which seem to abruptly end with no explanation.
CONCLUSION
[33] The application for judicial review is allowed.
ORDER
THIS COURT ORDERS that:
1. A different visa officer reconsider the matter of the Applicant in light of the above decision.
2. No question be raised for certification.
"Michel M. J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6742-03
STYLE OF CAUSE: NAOMI SAITO v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 25, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
DATED: August 31, 2004
APPEARANCES:
Brena Parnes FOR THE APPLICANT
Marina Stefanovic FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Lorne Waldman FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
[1]R.S., 1985, c. F-7.
[2] S.C. 2001, c. 27.
[3] Applicant's Application Record, Letter dated August 12, 2003 at p. 5.
[4] Respondent's Record, Affidavit of Doug Haaland at p. 1.
[5] SOR/93-22 (the "Rules").
[6] Applicant's Application Record, Letter dated September 17, 2003, at p. 7.
[7] Shirazi v. Canada (M.C.I.), [2000] F.C.J. No. 1540 at paras. 5-7 (T.D.) ("Shirazi").
[8] Respondent's Record, Affidavit of Doug Haaland at para. 3.
[9] Supra.
[10] Neves v. Kristina Logos (The), [1998] F.C.J. No. 492 at para. 3 (Proth.).
[11] Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 ("Baker").
[12] Shirazi, supra at paras. 5-7.
[13] Baker, supra at paras. 23-27.
[14] Babalola v. Canada (M.C.I.), 2002 FCT 1062, [2002] F.C.J. No. 1391 at para. 5; Santos v. Canada (M.C.I.), 2002 FCT 494, [2002] F.C.J. No. 744 at paras. 3-4; Xu v. Canda (M.C.I.), [1999] F.C.J. No. 1184.
[15] Baker, supra at para. 21.
[16] Applicant cites: Harry v. Canada (M.C.I.), [2000] F.C.J. No. 1727 (T.D.); Boniowski v. Canada (M.C.I.), 2003 FC 1101, [2003] F.C.J. No. 1391.
[17] SOR/2002-227 (the "Regulations").