BETWEEN:
and
& IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of the decision of Charles Godfrey, an immigration program manager, the “Officer”, dated December 23, 2005, wherein the Officer rejected the applicant’s request for humanitarian and compassionate (H & C) relief pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Placido Pascua Gaoat Jr., the applicant, applied for permanent residence after his wife, Merrylyn Agabao, was granted permanent residence.
[3] Gaoat and Agabao were married on April 24, 2005. Shortly thereafter Agabao was granted permanent resident status. Agabao did not declare to Citizenship and Immigration Canada that she got married and, as a result, Gaoat’s application was rejected on the grounds that he was not a member of the family class pursuant to section 117 of the Immigration and Refugee Protection Regulations, SOR/2002-227.
[4] In a letter dated October 26, 2005, Gaoat was informed that he was not a member of the family class and he was invited to make submissions on any H & C considerations which would justify allowing his application to be processed in any event.
[5] In a letter dated December 23, 2005, the applicant received formal notification that his application had been rejected because he is not a member of the family class. In a letter of the same date, he was informed of the Officer’s decision that there were no H & C considerations warranting relief from the decision that found he was not a member of the family class.
[6] The applicant submitted applications for leave for judicial review for both the H & C decision and the decision rejecting his application on the ground that he is not a member of the family class. Leave for the latter was denied by Mr. Justice Teitelbaum on May 29, 2006.
[7] The only issue raised by the applicant is the issue of the adequacy of the reasons. As this is an issue of procedural fairness, the appropriate standard of review is correctness (Sketchley v. Attorney General, 2005 FCA 404).
[8] The respondent submits that the applicant cannot complain of inadequate reasons because he never requested a more comprehensive explanation for the decision. I agree.
[9] In Marine Atlantic Inc. v. Canadian Merchant Service Guild (2000), 258 N.R. 112, the Federal Court of Appeal adopted the reasoning of Evans J. (as he then was) in Liang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1301 (QL), that “the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness” and stated that
[5] . . . We agree with Evans J. Before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.
[6] A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.
[7] We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual.
[8] In this case, the failure to request reasons is fatal to this aspect of the judicial review applications. While the matter may be of significance to the applicant, there is no satisfactory explanation why the applicant could not have requested reasons from the Board. This ground of the applicant's judicial review must be rejected.
[10] In Marine Atlantic, no reasons were provided at all. Subsequent jurisprudence from the Federal Court has held that the rule from Marine Atlantic applies even in cases where reasons were provided.
[11] For example, in Gardner v. Attorney General, 2004 FC 493, Mr. Justice Gibson held that the rule from Marine Atlantic applies such that even if some reasons were provided initially the applicant is still required to request further reasons before making a claim in Court that the reasons are inadequate.
[12] Mr. Justice Blanchard arrived at the same conclusion in Hayama v. Minister of Citizenship and Immigration, 2003 FC 1305. In that case, an immigration officer sent the applicant a simple refusal letter, as in the present case, and the Court held that this letter along with the CAIPS notes constituted the reasons:
[13] . . . The applicant further argues that he did not request reasons because he already had the program manager's reasons. He contends that this Court has determined that a refusal letter and the CAIPS notes could constitute reasons and that he already had those documents. The applicant argues that, since these documents provide no analysis or "reasons" for the decision, the program manager cannot subsequently file an affidavit in a judicial review application as supplemental reasons.
[14] In Marine Atlantic Inc. v. Canadian Merchant Service Guild (2000), 258 N.R. 112 (F.C.A.), a post-Baker decision, Rothstein J.A. stated as follows:
[. . .]
[15] The comments of Rothstein J.A. are dispositive with respect to the failure of the respondent to provide reasons. The applicant did not request reasons. His argument that he had the reasons and therefore there was nothing left to request is without merit. If the applicant was unsatisfied with the decision letter and felt it did not adequately explain the decision, a request should have been made for further elucidation. There is no evidence that such a request would have been refused. I therefore conclude that, in the circumstances of this case, there is no breach of duty of fairness due to an absence of reasons, or inadequacy of reasons.
[13] In my opinion, the fact that the applicant in the present case failed to ask for further reasons bars him from claiming on judicial review that the duty of fairness owed to him was breached because the reasons provided were inadequate.
[14] Consequently, the application for judicial review is dismissed.
[15] Upon hearing counsel for the parties on the possibility of certifying a question with respect to the timing and/or the adequacy of the reasons in this matter, I am of the view, given the clear decision in Marine Atlantic, supra, that no certification is warranted.
Ottawa, Ontario
May 1, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-574-06
STYLE OF CAUSE: PLACIDO PASCUA GAOAT JUNIOR v. THE
MINISTER OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 19, 2007
REASONS FOR JUDGMENT: Pinard J.
DATED: May 1, 2007
APPEARANCES:
Ms. Wennie Lee FOR THE APPLICANT
Mr. Martin Anderson FOR THE RESPONDENT
SOLICITORS OF RECORD:
LEE & COMPANY FOR THE APPLICANT
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada