OTTAWA, ONTARIO, July 26, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an Immigration Officer dated October 21, 2005 rejecting the Applicant's request for exemption from the Immigrant Visa Requirements on humanitarian and compassionate grounds. For the reasons that follow I am allowing this application, quashing the decision of the Officer, and directing that the matter be returned to be heard by a different Officer. No party requested that a question be certified and none will be. There is no order as to costs.
[2] The Applicant, Somasundram, is a sixty-one year old, single, Tamil, female citizen of Sri Lanka. The Applicant originally resided in the Jaffna area of Sri Lanka where she received a Bachelor of Arts degree and worked as a manger at a bank in a rural Tamil area. Warring factions were active in that area. The Applicant was taken by one of these factions to a campsite where she was interrogated, abused and threatened. Relatives paid a ransom for her release. The Applicant then fled to Colombo where she was seized and detained by the police who abused her and demanded information as to the warring factions in her local area. The applicant was released by the police whereupon she fled to Canada claiming refugee protection.
[3] Once in Canada, the Applicant took up residence with relatives in the Toronto area, she has steady employment as a cashier in a local business and has settled into the community without incident. The Applicant's claim for refugee status was rejected in July 2001. In November, 2001, the Applicant made a claim for exemption from visa requirements on humanitarian and compassionate grounds. This is the claim that was dismissed in October 2005 and now is the subject of these proceedings.
[4] At the time that the exemption application was made in 2001, a Pre-Removal Risk Assessment (PRRA) Officer was also asked to look into the risk involved should the Applicant be returned to Sri Lanka. For unexplained reasons that Officer delayed providing a report until June 2005. That report concluded that the Applicant would not be at risk if returned to Sir Lanka. Applicant's counsel was invited to make submissions as to the report. Extensive submissions were sent later the same month. In August 2005 the PRRA Officer made a final decision that was unchanged from the earlier report and made no reference to the extensive submissions made by counsel.
[5] The decision under review here is that of the Immigration Officer dated October 21, 2005. That decision included reasons less than one page in length. Those reasons included the following statement:
"However, after considering Ms. Somasundram establishment here in Canada, I am not satisfied that her establishment is compelling..."
(emphasis added)
The use of the word "compelling" is puzzling. That word is one that appears in the guidelines set out in the Manual used by Immigration Officers dealing with humanitarian and compassionate grounds but applies only if the Applicant has a criminal record. This Applicant has none.
[6] In the next paragraph these reasons make reference to the Applicant's family ties in Sri Lanka but then puzzlingly refers to Pakistan:
"Therefore, Ms. Somasundram would not be without familial ties in Pakistan." (emphasis added)
[7] The most substantive paragraph of these reasons is the next one which states:
I have also considered Ms. Somasundram concern with her personal circumstances in Sri Lankawhich prompted her to file a Convention Refugee claim. Further, I have considered Ms. Somasundram risk to life, or her risk to her personal security if returned to Sri Lanka. However, it is noted that it was determined by the Refugee Board that Ms. Somasundram was found not to be a Convention Refugee. It is further noted that on August 10, 2005, the Pre-Removal Risk Assessment Officer concluded following the review of applicant's submission and other published documentation that Ms. Somasundram would not be at risk to return to Sri Lanka. Henceforth, based on the information/documentation presented by applicant concerning her general concern, and personal circumstances in Sri Lanka, and taking into consideration the risk opinion by the Pre-Removal Risk Assessment Officer I am not satisfied that unusual, undeserved, or disproportionate hardship would be encountered should Ms. Somasundram return to Sri Lanka, and applied through the normal processing procedures.
[8] The first two passages quoted above, while suggesting a level of carelessness or lack of proof-reading, may be excused as not rising to the level of reviewable error, when added to the last of the quoted passages, indicates that there is substantive reviewable error committed by the Officer in arriving at the decision under review. The decision was at best careless and inattentive, or more likely, superficial and does not indicate that appropriate consideration was given to the file.
[9] The standard of review to be applied to decision of this kind and the effect of the Immigration Manual guidelines in considering humanitarian and compassionate applications such as this was thoroughly considered by Layden-Stevenson J. of this Court in Agot v. Canada (M.C.I.) [2003] F.C.J. No. 607; 2003 FCT 436, at paragraph 8 where she summarized the state of the law. The standard of review is reasonableness simpliciter; the onus is on the applicant; the Supreme Court has qualified the guidelines as being of great assistance to the Court; it is inappropriate to require administrative officers to give as detailed reasons as may be required of those holding adjudicative hearings.
[10] The Federal Court of Appeal has established reasonable guidelines as to how an officer is to approach a file of this kind, how to consider the matter, and how to give reasons. In VIA Rail Canada Inc. v. Canada (National Transportation Agency) (2000), 193 D.L.R. (4th) 357 at paragraph 22 that Court states that reasons are not merely to recite the submissions and evidence of the parties and state a conclusion, the reasons must address the major points at issue. In Ozdemir v. Canada (M.C.I.) [2001] F.C.J. No.1646; 2001 FCA 331, at paragraph 10 that Court affirms that a decision-maker need not address every particular item of evidence, particularly if it has little probative value. Given these boundaries, it is clear that the decision-maker must state in the reasons given what the major points at issue were, how they were considered in respect of the evidence and law, and their disposition. Not every point must be addressed if unnecessary or of little probative value.
[11] With these considerations in mind, the reasons for the decision at issue are to be considered. This Court finds that the last of the quotations from the reasons above is nothing more than a recital of general categories of materials reviewed following which is a recital of the criteria set by the guidelines and of the decision made. In this respect the reasons fail to satisfy the VIA Rail test. The reasons fail to address any consideration given to the major points at issue. No issues are stated; no point or points of evidence are discussed, and no explanation of the thought process engaged by the Officer is given.
[12] To the extent that this paragraph of the reasons can be understood, including the curious use of the word "henceforth", it appears that the Officer relied heavily, if not entirely, on the PRRA Officer's decision. If so, the humanitarian and compassionate Officer failed to recognize that the PRRA Officer seems to have had no regard to submissions made by Applicant's counsel in response to that officer's opinion rendered some three years after the initial application. In Haghighi v. Canada (M.C.I.), [2000] 4 F.C. 407 a decision of the Federal Court of Appeal relied upon by the Respondent here, that Court at paragraph 36 says that "decisive weight" can be placed upon the PRRA Officer's report, but says so in the context that an applicant is permitted to respond to that report. Here, where there was a substantive response to the report but no consideration of that response made in the PRRA Officer's decision, the humanitarian and compassionate Officer cannot rely upon that decision without some reasoned consideration of the response. There is no indication that this was done here.
[13] Therefore, the decision at issue does not stand up to a reasonably probative examination as required by the reasonableness simpliciter test. The application is allowed.
ORDER
UPON APPLICIATION made to this Court on the 25th day of July, 2006 for an Order setting aside the decision of an Immigration Officer dated October 21, 2005, wherein the Applicant's application for exemption from visa requirements on humanitarian and compassionate grounds was dismissed;
AND UPON reviewing the Records filed herein, and hearing submissions by counsel for the parties;
AND FOR the Reasons delivered herewith;
THIS COURT ORDERS that:
1. This Application is allowed;
2. The decision of the officer dated October 21, 2005 is set aside;
3. The application is remitted to be heard by a different Officer;
4. There is no question for certification; and
5. There is no order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6618-05
STYLE OF CAUSE: SOMASUNDRAM v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 25, 2006
AND ORDER: The Honourable Mr. Justice Hughes
APPEARANCES:
| Barbara Jackman
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| Kristina Dragaitis |
SOLICITORS OF RECORD:
| Jackman & Associates 596 St. Clair Avenue West # 3 Toronto, ON M6C 1A6
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| Mr. John H. Sims, Q.C. for the Respondent Deputy Attorney General of Canada The Exchange Tower 130 King Street West Suite 3400, Box 36 Toronto, ON M5X 1K6 |