Toronto, Ontario, November 23, 2006
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
AFSANEH AMIN AKBARI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Akbari’s application for an authorization to return to Canada (ARC) under subsection 52(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) was refused. She seeks judicial review of the refusal alleging that the officer failed to consider the totality of the evidence upon which the application was based. Despite the articulate submissions of counsel for the respondent, I conclude that the application for judicial review should be allowed.
Background
[2] The facts can be succinctly stated. Ms. Akbari has a reasonably lengthy immigration history. She is an Iranian citizen and a failed refugee claimant. She has been married to a Canadian citizen since July 14, 2002. The bona fides of the marriage is not in issue. An application under the spousal sponsorship provisions of the IRPA has been submitted. A previous application was refused. There is some indication of a possible problem with the current spousal sponsorship application. At present, it is pending.
[3] Ms. Akbari had earlier applied for a green card in the United States although it is not clear from the record precisely when the application was made. When her green card was approved in August of 2004, she travelled to the United States. In so doing, she was deemed deported (as a failed refugee claimant) and therefore required authorization under subsection 52(1) of the IRPA and subsection 226(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) to return to Canada. Subsection 52(1) of the IRPA provides that if a removal order has been enforced, a foreign national is precluded from returning to Canada unless authorized by an officer. Regulation 226(1) states, for the purposes of subsection 52(1) of the IRPA, that a deportation order obliges the foreign national to obtain a written authorization in order to return to Canada at any time after the deportation order was enforced.
[4] Ms. Akbari claims not to have been aware, at the time of her departure, that by leaving voluntarily, she was effecting her deportation and would thus require authorization to return. When she returned to Canada she was intercepted at the airport. She completed a pre-removal risk assessment (PRRA) application, which was ultimately determined to be negative. Her passport was seized and subsequently lost by the Canada Border Services Agency (CBSA) officials. Ms. Akbari was removed from Canada. She made another attempt to return in April, 2005, but was denied admission.
[5] As noted earlier, she has twice applied for authorization to return to Canada. She has been refused on each occasion. Her husband cannot enter the United States because he is married to a green card holder and requires a waiver. He has applied for, but as yet has not received, the waiver. Ms. Akbari has not been able to obtain a new passport and therefore she and her husband cannot meet in a third country.
Issue
[6] Ms. Akbari asserts that it was a breach of the duty of procedural fairness for the officer to refuse her application without considering the totality of the circumstances.
Analysis
[7] It is common ground that the impugned decision is a discretionary administrative decision. The duty of procedural fairness applies to discretionary administrative decisions and its content varies according to context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817(Baker). The concept of fairness is situational, not abstract or absolute: Chiau v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 297 (C.A.) (Chiau). In determining the content of the duty, Baker teaches that a number of factors are to be taken into account. The factors include: the importance of the decision to the individual; the nature of the decision and the decision-making process; the public interest; and the factual context.
[8] Since Ms. Akbari is a foreign national, the decision in this matter did not deprive her of any legal right. Nonetheless, it has a significant impact on her because it deprives her of the ability to reside with, or visit, her husband. It is noteworthy that if she were physically in Canada, she would be entitled to remain (notwithstanding her lack of status) pending the outcome of the spousal sponsorship application. In relation to the administrative discretionary nature of the decision and the decision-making process, the decision is factually driven and is largely based on open-ended and subjective discretion.
[9] The public interest factor requires that attention be directed to our immigration laws, to ensuring that non-citizens adhere to them and that officials enforce them. As noted in Chiau, a decision adversely affecting an individual may engage a lower content of procedural fairness where prejudice to national security or international relations is engaged. There do not appear to be issues of that nature or issues of criminality in this matter.
[10] The factors must be balanced, not in the abstract, but in the factual context of the particular case. Thus, the level of procedural fairness required in one case may not be the same as that required in another. It is not insignificant that some hardship has been imposed in this matter as a result of the loss of Ms. Akbari’s passport.
[11] In balancing the factors in the situational context of this matter, I consider the content of procedural fairness to be near the low end of the spectrum. I do not agree with Ms. Akbari’s suggestion that an interview was required. Nor is there a requirement that formal reasons be provided. As in Baker, I conclude that the notes of the immigration officer may be taken as the reasons for the decision. That said, I also agree with the respondent that an ARC should not be construed as a mini humanitarian and compassionate application. However, regard must be had to the various factors that I have discussed. This requirement necessitates that consideration be given to the totality of the factual circumstances that are presented to the immigration officer.
[12] Here, the notes of the immigration officer reveal a focus on Ms. Akbari’s immigration history. The officer noted that the sponsorship application, thus far, has not been successful and that there may be problems with it (the information in the FOSS notes is ambivalent in this regard). The officer also indicated apprehension with respect to Ms. Akbari remaining beyond her authorization, if given an ARC. Regrettably, there is no indication that consideration was given to any of the factual circumstances presented by, and of concern to, Ms. Akbari. More specifically, she submitted, among other things, that she had left Canada voluntarily, that she and her husband could not reunite in North America or elsewhere, and that she was not inadmissible for reasons of criminality.
[13] If the immigration officer considered Ms. Akbari’s specific submissions, his notes do not reflect that consideration. Absent some indication in the notes that the officer at least turned his mind to Ms. Akbari’s circumstances, I have little choice but to assume that he did not.
[14] In my view, it follows that the failure of the officer to consider the totality of the evidence resulted in a denial of procedural fairness to Ms. Akbari. I emphasize that my conclusion is factually driven and it applies to the unique circumstances of this matter. Further, my determination is not to be construed as constituting an opinion or position regarding the merits of Ms. Akbari’s ARC application.
[15] For the foregoing reasons, the application for judicial review will be allowed. Counsel, recognizing that this matter was factually-driven, declined to suggest a question for certification. I agree that no question for certification arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is allowed and the matter is remitted to a different immigration officer for determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7493-05
STYLE OF CAUSE: AFSANEH AMIN AKBARI v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 22, 2006
AND ORDER: LAYDEN-STEVENSON, J.
APPEARANCES:
Lorne Waldman FOR THE APPLICANT
Alison Engel-Yan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario