Federal Court Decisions

     IMM-3764-96

BETWEEN:

     SUKHMANDER SINGH SANDHU

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     This is an application for judicial review of the decision of immigration officer K. L. McMurray, dated September 26, 1996, wherein it was determined that there were insufficient humanitarian and compassionate grounds for the processing of the applicant's application for landing from within Canada.

     The applicant seeks an Order quashing the said decision, and a further Order requiring the respondent to process the application for landing from within Canada in accordance with the policy provisions set out in section IE 9 of the Immigration Manual.

THE FACTS

     The applicant is a citizen of India. He came to Canada on March 17, 1991 and made a claim to Convention refugee status. The Convention Refugee Determination Division [hereinafter, "CRDD"] of the Immigration and Refugee Board [hereinafter, "IRB"] determined the applicant not to be a Convention refugee.

     The applicant submitted an application, dated May 13, 1996, to be allowed to apply for permanent residence from within Canada [hereinafter, "H & C application"]. On September 12, 1996, Paulette M. Johnson, an immigration officer, interviewed the applicant. During this interview, the applicant claimed to continue to fear persecution in India due to a number of events that had occurred subsequent to the rejection of his claim to refugee status. These events are listed in the applicant's Memorandum of Law. The immigration officer formed the opinion that there were insufficient humanitarian and compassionate grounds in the applicant's case to warrant granting subsection 114(2) relief. She recommended that the applicant's application be refused, and the immigration officer's manager concurred in her recommendation on September 24, 1996.

     In the immigration officer's notes regarding the interview, under the concluding section entitled, "Officers Recommendations / Decision and Rationale," she indicates, in the first of three paragraphs, as follows:

Sukhmandar [sic] Sandhu is a failed Refugee claimant who has also has [sic] a negative PCDO decision. He is presently awaiting his PDRCC review as well as the outcome of an appeal against his PCDO decision. A section 20 Report was written against Mr Sandhu in 1991 but it appears no order was ever issued against him.

     The second paragraph of this section refers to the applicant's employment history, community involvement, and family connections in Canada and in India. The third paragraph simply contains the officer's suggestion that there are insufficient humanitarian and compassionate grounds in this case, and that the application be directed to inquiry.

     However, the applicant was not entitled to a PDRCC review, as his refugee claim had been refused prior to February 1, 1993, the date when the PDRCC regulations were promulgated. In addition, although the immigration officer had the discretion to consult with a PDRCC officer concerning risk, but no such consultation was made.

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THE ISSUES

1.      Did the immigration officer fail to consider the applicant's stated fear of returning to India? That is, did the immigration officer fail to consider relevant evidence?

2.      Did the immigration officer make erroneous findings of fact in her reasons in referring to the applicant's negative PCDO decision, an appeal of the negative PCDO decision, and an upcoming PDRCC review, when none of these facts exist in the applicant's case? If so, were the erroneous findings of fact made in a perverse or capricious manner or without regard for the material before her?

DISCUSSION

1.      The applicant's stated fear of returning to India

The evidence

     In her notes regarding the interview, the immigration officer indicates that the applicant provided the following information regarding the individual merits of his case:

... Also claims he fears returning to India as he was arrested and tortured along with his father prior to coming to Canada. Claimed he was arrested in 1990 for supporting terrorist commando forces but that all he really did was to give food to this group and that he had no choice in the matter. He was not a member of the group neither was he or his family involved with them in any other way.

Analysis

     The above passage indicates that the immigration officer was well aware of the applicant's concerns relating to fear. Although she does not specifically refer to this fear in her recommendation, it is evident that these concerns were before her. On the basis of the above passage, I cannot conclude that the immigration officer failed to consider the applicant's fear of returning to India. The immigration officer did not fail to consider relevant evidence in this regard.

2.      Erroneous findings of fact

The evidence

     In the opening paragraph of the immigration officer's reasons / rationale quoted above, she clearly refers to the applicant's negative PCDO decision, an appeal of the negative PCDO decision, and an upcoming PDRCC review. However, none of these facts exist in the applicant's case.

     The immigration officer deposes that the above reference to a PCDO decision was inadvertent. She had intended, instead, to indicate that the applicant had received a negative DROC ("Deferred Removal Orders Class") decision and was awaiting the outcome of his appeal against the DROC decision.

     With respect to the reference to the upcoming PDRCC review, the immigration officer deposes that it is her practise to ask applicants who have had negative decisions with respect to their refugee claims, if they have had a PDRCC review. She, therefore, asked the applicant whether he had had such a review, and he responded in the negative. The immigration officer deposes that she merely assumed that the applicant was eligible for a PDRCC review and that he would receive one at a later date. The immigration officer further deposes that the PDRCC issue had no bearing on her decision, as she had thoroughly reviewed and considered the applicant's allegation that his life would be in danger in India and found that this was not the case.

Analysis

     Counsel to the applicant submits that it is inappropriate for the decision maker, in this case the immigration officer, to file an affidavit such as was filed.

     An application for judicial review is, except in very exceptional circumstances, to be based solely on the record that was before the decision maker. The immigration officer's affidavit does not introduce any new evidence that was not before the decision maker. The immigration officer's affidavit serves a function not unlike the applicant's affidavit. I, therefore, find no problems with the admissibility of the immigration officer's affidavit.

     As I have concluded above, the immigration officer did consider the applicant's stated fear of return to India. However, how did the erroneous findings of fact referred to above impact on the immigration officer's ultimate decision?

     The immigration officer deposes that she inadvertently referred to a PCDO, when in fact she meant a DROC. On this isolated point, I find the immigration officer's explanation to be plausible.

     However, the references to the PCDO must be examined in the context of the entire paragraph in which they are situated, as well as in the context of the decision as a whole.

     A preliminary observation is that, if we accept that the immigration officer was really referring to the applicant's negative DROC decision,¹ then it is curious indeed that she thought that the applicant would also be receiving a PDRCC review. It is not correct that in the Immigration Act one may have both a DROC and a PDRCC review.

     Even totally ignoring the DROC issue, I also find it curious that the immigration officer thought that the applicant had an upcoming PDRCC review, given that the evidence before the immigration officer was that the applicant's claim to Convention refugee status had been rejected on April 9, 1992. Surely, the immigration officer would have known that. The PDRCC regulations were promulgated on February 1, 1993, and the applicant's refugee claim had been rejected prior to that date. Surely, the immigration officer would have known that the applicant was not entitled to a PDRCC review given these facts.

     Inadvertent or typographical errors do not, in most instances, go to the merits of a case, and are not, therefore, sufficient grounds for judicial intervention in an immigration officer's decision. A decision maker's apparent unfamiliarity with the fact situation or legislation before her, however, can be good grounds, indeed, for judicial intervention.

     But the above is not the heart of the problem with the immigration officer's decision. The most troubling aspect is found when the above errors are examined in the context of the decision as a whole.

     The immigration officer deposes that she carefully assessed the danger of life, severe sanctions or inhumane treatment posed to the applicant in his country of origin. However, she was also under the impression that a PDRCC review would be conducted, in which the issue of risk to the applicant would be considered.

     Guidelines issued by the Department of Immigration (known as "IE 9") to immigration officers indicate that humanitarian or compassionate grounds exist when "... unusual, undeserved or disproportionate hardship would be cause to the person seeking consideration ..." upon departure from Canada.² The guidelines provide examples of situations which may justify humanitarian or compassionate relief, including the existence of severe sanctions in a person's country of origin. In the context of the three paragraph decision, it is evident that the introductory paragraph is the only paragraph in which the immigration officer came to a conclusion about the issue of risk.

     The wording of this paragraph indicates that the immigration officer believed that a PCDO decision, in which such a risk assessment would have been made, had been made, and that the result was negative for the applicant. However, there has been no such decision and no such risk assessment with respect to the applicant. The immigration officer has since clarified that the PCDO references were the result of an inadvertent errors.

     The wording of this paragraph also indicates that the immigration officer believed that a PDRCC review, in which a risk assessment would be made, would be forthcoming. However, no such review was forthcoming, nor, in the circumstances of this case, can there be.

     The immigration officer was thus under the erroneous impression that a risk assessment was somehow "in the picture" for this particular claimant. On this basis, I can conclude that, although the immigration officer was aware of the applicant's stated fears, she did not actually make any decision as to whether those fears, and the risks consequent thereon, were reasonable or not in the applicant's particular situation. Although the immigration officer now deposes that she did come to the conclusion that there was no reasonable basis for the applicant's fears, there is no indication at all in her notes that she actually did so. There is, instead, the implication that -- inadvertent error or not -- she believed that an appropriate risk assessment had, or would, be done in the case of the applicant.

     The immigration officer's decision is a two-part decision. The first part of the decision is with respect to elements of risk, as discussed above. The second part concerns the extent of the applicant's connections to Canada and to his home country. Thus, in the context of the whole of the decision, a significant portion of it is grounded in erroneous findings of fact. These erroneous findings of fact were made without regard for the material before the immigration officer, which clearly indicated that no risk assessment been made, nor would there be any forthcoming. In the circumstances of this case, it was incumbent on the immigration officer to perform such a risk assessment.³ I am not convinced that she did this.

CONCLUSION

     This matter will be referred back to a different immigration officer for redetermination, and that the policy provisions set out in section IE 9 of the Immigration Manual explicitly be taken into account in that redetermination.

OTTAWA, ONTARIO     

    

September 11, 1997.      J.F.C.C.

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     ¹      It is noteworthy that the applicant's DROC decision was negative because it was filed outside of the time limitations.

     ²      IE 9, section 9.07, subsection 2.

     ³      This conclusion is in keeping with the reasoning developed by McGillis J. in Senar Sinnappu, Thilagawathy Sinnappu v. The Minister of Citizenship and Immigration, Court File No. IMM-3659-95 (14 February 1997) (unreported), and followed by myself in Fernando Arduengo Naredo and Nieves del Carmen Salazar Arduengo v. The Minister of Citizenship and Immigration, Court File No. IMM-317-96 (29 May 1997) (unreported).