Judgments

[1995] 1 F.C. 791

IMM-3574-93

Adolfo Garcia (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Garcia v. Canada (Minister of Employment and Immigration) (T.D.)

Trial Division, Gibson J.—Ottawa, November 10 and December 12, 1994.

Citizenship and Immigration — Immigration practice — Judicial review of decision denying request for exemption from visa requirements of Immigration Act, s. 9(1) — No opportunity for applicant to reply to rationale for rejection — Handwritten interview notes not shared with applicant — Extrinsic evidence not brought forward by applicant — Duty of fairness breached.

This was an application for judicial review of an immigration officer’s decision rejecting the applicant’s request for exemption from the visa requirements of subsection 9(1) of the Immigration Act. The applicant, a citizen of Nicaragua, faces removal to that country. His application for exemption was based upon a well-founded fear of return to Nicaragua, documented psychiatric considerations and effective attachment to Canada through study, training and community support. During a removal interview with the applicant, an immigration officer had made handwritten notes which were not communicated to him. He was afforded no opportunity to reply to the rationale for rejecting his visa exemption application although the decision was based on those notes. The main issue was whether the immigration officer breached the duty to act fairly.

Held, the application should be allowed.

The duty of fairness varies according to circumstances. If the immigration officer relied on extrinsic evidence, not brought forward by the applicant, she was obliged to give him a chance to respond thereto. The term “extrinsic evidence not brought forward by the applicant” means evidence of which the applicant is unaware because it comes from an outside source. Such was the handwritten note although it was a note of an interview in which the applicant had participated. The note was not prepared by him and there was no evidence that he had ever seen it or was even aware of its existence. The immigration officer was under a duty to give the applicant a chance to respond to her proposal to rely on the handwritten statement. In failing to do so, she breached the duty to act fairly in basing her decision on extrinsic evidence not brought forward by the applicant, and in doing so, committed a reviewable error.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].

Federal Court Immigration Rules, 1993, SOR/93-22, R. 17.

Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 83(1) (as am. idem, s. 73), 114(2) (as am. idem, s. 102).

CASES JUDICIALLY CONSIDERED

APPLIED:

Dasent v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1902 (T.D.) (QL).

DISTINGUISHED:

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.); Shah v. Minister of Employment and Immigration (1992), 55 F.T.R. 87 (F.C.T.D.).

REFERRED TO:

Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (1986), 18 Admin. L.R. 243; 66 N.R. 8 (C.A.).

APPLICATION for judicial review of an immigration officer’s decision rejecting a request for exemption from the visa requirements of subsection 9(1) of the Immigration Act. Application allowed.

COUNSEL:

Chantal Tie for applicant.

Linda Wall for respondent.

SOLICITORS:

South Ottawa Community Legal Services, Ottawa, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

Gibson J.: These are my reasons for order in respect of this application for judicial review of a decision of an immigration officer dated June 22, 1993 wherein the immigration officer denied the applicant’s request to exempt him from the visa requirements of subsection 9(1) of the Immigration Act[1] pursuant to an application made by the applicant under subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of that Act, which application was made June 7, 1993.

The applicant is a citizen of Nicaragua. He arrived in Canada on May 21, 1987. He faces removal back to Nicaragua.

The facts that underlie this application may be briefly summarized as follows. Prior to his arrival in Canada, the applicant had been an active participant with the “contra” rebels against the Sandinista government in Nicaragua. His anti-Sandinista activities were carried out both in Nicaragua and in Honduras where he lived in exile for a period of four years before coming to Canada. On arrival in Canada, he applied for Convention refugee status. In October of 1991, a credible basis tribunal determined that there was no credible basis to the applicant’s claim to Convention refugee status. This decision was based on changed country conditions in Nicaragua. The applicant was granted leave by the Federal Court of Appeal to seek judicial review of the credible basis decision. The judicial review application was dismissed by the Federal Court of Appeal on March 17, 1993.

In support of the applicant’s application for exemption from the visa requirements of subsection 9(1) of the Immigration Act, the applicant submitted some forty-five pages of material. It included documentary evidence, which had not been advanced in support of his refugee claim, concerning the extra-judicial treatment, including executions, of contra members returned to Nicaragua. Further, it included psychiatric evidence of the applicant’s fragile psychiatric condition, for which he had been under treatment since 1988, extending to serious suicidal intentions if faced with deportation to Nicaragua. Finally, it included documentation relating to the applicant’s school and employment history in Canada as evidence that he had effectively established himself in Canada.

Following his application for visa exemption, no interview was afforded to the applicant and he was given no opportunity to respond to any concerns that the immigration officer reviewing his application might have had.

The certified record filed by the respondent in this matter pursuant to Rule 17 of the Federal Court Immigration Rules, 1993,[2] indicates that the immigration officer considering the applicant’s application for visa exemption had before her the totality of the applicant’s immigration file, that is, the material relating to the applicant’s claim to Convention refugee status as well as the material filed by him in support of his visa exemption application. At the first numbered page of the certified record, the following handwritten note appears:

After review of entire file I find no H & C or National policy to warrant special relief in this case. Please note at his interview in May 92—Mr Garcia asked “why we are breaking up a family unit” he explained he was dependent on his parents financially and in other ways. His parents have now returned to Nicaragua in June 93 & he has no immediate family in Canada. Please inform Mr Garcia of my decision and proceed with removal

Counsel for the applicant appearing before me referred me to pages 87 and 88 of the certified record which appear to be handwritten notes of a removal interview with the applicant and his parents conducted in May of 1992. A perusal of the notes indicates that they would have been prepared by an immigration officer. There is no indication that they were shared in any way with the applicant. No indication of the importance to the applicant of his relationship with his parents was put forward by the applicant in support of his visa exemption application. Indeed, the material that was put forward, on its face, made it clear that the applicant’s fear of return to Nicaragua far exceeded any advantages he might see in a return to Nicaragua, including any opportunity to re-establish his relationship with his parents.

No opportunity was provided to the applicant to reply to the rationale for rejecting his application for visa exemption that is contained in the handwritten note quoted above. This despite the fact that the rationale was based upon notes of an interview conducted some two years earlier that were never shared with the applicant.

In Shah v. Minister of Employment and Immigration,[3] Hugessen J.A., in delivering reasons from the bench, stated [at page 239]:

It is a commonplace that the content of the duty of fairness varies according to the circumstances. In the present case we are all of the view that such content is minimal.

The circumstances of that case, also an application for exemption from the visa requirements of subsection 9(1) of the Immigration Act on humanitarian and compassionate grounds, can be determined from the reasons of Associate Chief Justice Jerome for his order in that matter that was under appeal.[4] Those reasons disclose that the issue in that case was whether there were sufficient humanitarian and compassionate grounds for landing from within Canada based on a marriage between the applicant and a permanent resident of Canada. The immigration officer whose decision was there in question concluded that the marriage had been entered into solely for immigration purposes and that there were therefor insufficient humanitarian and compassionate grounds for landing from within Canada. Separate interviews had been conducted with the applicant in that case and his spouse. Following those interviews, the two had been interviewed together.

The facts of the Shah case contrast markedly with the facts of the matter before me. The humanitarian and compassionate grounds alleged in this matter arise out of the applicant’s fear of return to Nicaragua, his fragile psychiatric condition and the degree of his attachment to Canada since his arrival more than seven years ago, an attachment arising not from marriage to a permanent resident of Canada or a Canadian citizen.

Authority for the proposition quoted from Mr. Justice Hugessen above, that the duty of fairness varies according to circumstances, may be found in the following passage from the reasons of Chief Justice Laskin, speaking for the majority in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police:[5]

In short, I am of the opinion that although the appellant clearly cannot claim the procedural protections afforded to a constable with more than eighteen months’ service, he cannot be denied any protection. He should be treated “fairly” not arbitrarily. I accept, therefore, for present purposes and as common law principle what Megarry J. accepted in Bates v. Lord Hailsham … “that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness”. [Footnote omitted.]

Later in his reasons in Shah, Hugessen J.A. states [at pages 239-240]:

In a case such as this one the applicant does not have a “case to meet” of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant’s attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. Any dicta arguably to the contrary in H.K. (An Infant), Re; Kaur v. Minister of Employment & Immigration, and Ramoutar v. Minister of Employment and Immigration should be read in this light. [Citations omitted.]

The first question that arises then against the foregoing quotation is: Is the case before me “a case such as this one?” That is to say, is the case before me a case such as the one that was before the Federal Court of Appeal in Shah? While both are applications for visa exemption pursuant to subsection 114(2) of the Immigration Act, the factual bases for the applications are very different. This is not a “bona fide marriage” based application, but, as indicated earlier, an application based upon what would appear to me, at least, to be a subjectively well-founded fear of return to Nicaragua, documented psychiatric considerations, and effective attachment to Canada through study, training and community support rather than through marriage.

Without further guidance from the Federal Court of Appeal, I conclude that this case is not a case such as the one that was before the Federal Court of Appeal in Shah.

Even if I am wrong in my foregoing conclusion, there remains another issue. Did the officer who made the decision here in issue rely on extrinsic evidence, not brought forward by the applicant? If she did, as indicated in the second quotation from Shah that appears above, she was obliged to give the applicant a chance to respond to that evidence.

In Dasent v. Canada (Minister of Citizenship and Immigration),[6] Rothstein J. examined the question of what constitutes extrinsic evidence not brought forward by an applicant. He wrote:

The term “extrinsic evidence” is normally used with reference to ambiguous documents. In that context, extrinsic evidence is evidence of statements, facts or circumstances that do not appear on the face of the document or that are not referred to in the document, but which serve to explain, vary or contradict the document. The introduction of such evidence is not often allowed. In the case at bar, having regard to the words “not brought forward by the applicant” used by Hugessen J.A. to qualify the term “extrinsic evidence”, and his reference to Muliadi, I interpret the term “extrinsic evidence not brought forward by the applicant” as evidence of which the applicant is unaware because it comes from an outside source. This would be evidence of which the applicant has no knowledge and on which the immigration officer intends to rely in making a decision affecting the applicant. While this would include information obtained from an outside party as in Muliadi, I fail to see why it would not also include evidence from a spouse obtained separately from the applicant, or other information in the immigration file that did not come from the applicant, of which the applicant could not be expected to have knowledge.

The relevant point as I see it is whether the applicant had knowledge of the information so that he or she had the opportunity to correct prejudicial misunderstandings or misstatements. The source of the information is not of itself a differentiating matter as long as it is not known to the applicant. The question is whether the applicant had the opportunity of dealing with the evidence. This is what the long-established authorities indicate the rules of procedural fairness require. In the well known words of Lord Loreburn L.C. in Board of Education v. Rice [1911] A.C. 179 (H.L.) at page 182:

They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. [Underlining added by me for emphasis.][7]

On the facts before me, and against the foregoing statement by Mr. Justice Rothstein, with which I concur in its application to the particular facts before me, I conclude that the handwritten note dated May, 1992 that appears at pages 87 and 88 of the certified record of the Tribunal, although a note of an interview in which the applicant participated, is “extrinsic evidence, not brought forward by the applicant” for the purposes of this application. The note was not prepared by the applicant. There is no evidence that it was ever seen by the applicant. It was not part of the material submitted by him for consideration on his application for visa exemption. There is no reason to believe that he was even aware of its existence. Against the content of the duty of fairness enunciated by Hugessen J.A. in cases such as the one that was before him in Shah, the immigration officer determining the applicant’s visa exemption application was under a duty to give the applicant a chance to respond to her proposal to rely on the handwritten statement. In failing to do so, even if this case is a case such as the one that was before the Federal Court of Appeal in Shah, and I am not satisfied that it is, the immigration officer breached the duty to act fairly in basing her decision on extrinsic evidence not brought forward by the applicant, and in so doing committed a reviewable error.

For the foregoing reasons, I conclude that this application must be allowed.

At the close of the hearing before me, I consulted counsel as to whether or not this matter raises a serious question or questions of general importance that ought to be certified pursuant to subsection 83(1) [as am. idem, s. 73] of the Immigration Act. I allowed time for counsel to make written submissions on this issue. The time allowed has now expired and I have received written submissions from counsel for both parties.

Counsel for the applicant proposes that the following question be certified:

When considering the content of the “duty of fairness” owed to an applicant in section 114(2) applications under the Immigration Act, does the decision in Syed Shah and The Minister of Employment and Immigration apply only to cases with a similar fact basis, or is the content different where an applicant’s Charter rights are engaged? For example, is the content the same where the basis of the s. 114(2) application is that the applicant’s life, liberty or security of the person pursuant to section 7 of the Charter are at risk?

Counsel for the respondent argued that no question should be certified and, more specifically, urged that, since no Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] arguments were raised before me, to certify the question in the form proposed by counsel for the applicant

… would be to risk having a case determined by the Court of Appeal on an incomplete record with an inadequate factual foundation (MacKay et al. v. The Government of Manitoba, [1989] 2 S.C.R. 357).

I have determined to certify two questions in the following form:

1. When considering the content of the “duty of fairness” owed to an applicant in subsection 114(2) applications under the Immigration Act, does the decision in Syed Shah v. The Minister of Employment and Immigration apply only in respect of cases with a similar fact basis, or does it apply to all visa exemption applications under subsection 114(2) or, more specifically, where such applications are based upon a subjective fear of removal to the applicant’s country of citizenship, on psychiatric fragility and on alleged effective integration into Canada that is supported by substantial evidence provided by the applicant?

2. If the “duty of fairness” owed to an applicant in subsection 114(2) visa exemption applications under the Immigration Act is the same in all cases as that enunciated in Syed Shah v. The Minister of Employment and Immigration or is the same on the facts of this case as it is on the facts of the Syed Shah case, is information relied upon by an immigration officer that is on the applicant’s immigration file and that has not been provided by him, or in the case of notes of an interview in which he participated, shared with him, extrinsic evidence, not brought forward by the applicant to which the applicant for the visa exemption must be given an opportunity to respond?

On application made orally on behalf of the respondent at the opening of the hearing before me, counsel for the respondent taking no objection, I agreed to amend the style of cause in this matter to designate the Minister of Citizenship and Immigration as respondent.

---