Date: 20030206
Docket: IMM-888-02
Neutral citation: 2003 FCT 129
BETWEEN:
RICHARD RYLOTT and
NATALY GAVRILOW,
Applicants
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LAYDEN-STEVENSON, J.:
[1] This is an application for judicial review of the decision of an immigration officer dated October 24, 2001, wherein it was determined that an exemption under subsection 114(2) of the former Immigration Act, R.S.C., 1985, c. I-2, as amended (the Act), from the requirement to obtain an immigrant visa prior to coming to Canada, would not be granted to Ms. Nataly Gavrilow on humanitarian and compassionate (H & C) grounds.
[2] Although the style of cause refers to Richard Rylott (Ms. Gavrilow's husband), by order of MacKay J. dated May 1, 2002, Ms. Gavrilow is an applicant. The style of cause will therefore be amended accordingly.
[3] Ms. Gavrilow is a citizen of Israel. She has two daughters from a previous marriage. The tribunal record indicates that she came to Canada in 1994 with her family. Upon arrival, she made a refugee claim which was ultimately denied. Ms. Gavrilow met Mr. Rylott on June 6, 1998 in Wasaga Beach, Ontario. He is a Canadian citizen. She was married when she met him.
[4] The applicant was deported to Israel in 1998. She returned to Canada on July 31, 1999 and made another claim for refugee status. She was found not to be a Convention refugee on May 9, 2000. Her application for leave to seek judicial review was dismissed on August 22, 2000.
[5] Ms. Gavrilow's divorce from her first husband was pronounced on September 15, 1999 and she married Mr. Rylott on December 12, 1999. She then submitted her H & C application. The couple, and the applicant's youngest daughter Olga, were interviewed by the immigration officer on February 13, 2001. At the time of the interview, Ms. Gavrilow and Mr. Rylott were living in different towns.
[6] It was determined that an exemption would not be granted and the applicant was informed of the decision by letter dated October 24, 2001. No reasons for the decision are provided in the correspondence.
[7] The applicant argues that the immigration officer committed reviewable error in a number of respects. Because I have determined that the application for judicial review should be allowed, I will address only those allegations relative to the "reasons". The primary arguments advanced in this respect may be succinctly stated. First, Ms. Gavrilow contends that the respondent has failed to give reasons for the decision and has therefore breached the duty of fairness. She relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker) to advance this position.
[8] Secondly, the applicant refers to the immigration officer's notes that are exhibited to the affidavit of counsel for the Ontario Regional Office of the Department of Justice filed in support of the respondent's written submission. Ms. Gavrilow alleges that the concerns that the officer delineated in his notes were addressed during the interview and the officer failed to indicate that the information was given. Therefore, the totality of the evidence was not considered. The gist of the submission is that the officer failed to consider the fact that although the applicant and her husband live in different towns, they meet every weekend and their "separation" was short-term to enable Mr. Rylott to establish himself. If inquiries had been made between February and October, 2001, the concerns relative to the living arrangements could have been alleviated.
Last, the applicant alleges error in relation to the officer's statement that hardship based on separation becomes moot if the couple does not live together. The applicant argues that the distance of two hours by car is surely different than one spouse living in Canada while the other is in Israel.
[9] Regarding the failure to give reasons, I agree with the respondent Minister's submissions. In Baker, the court held that the profound importance of this type of decision to those affected militates in favour of the requirement to provide reasons. It is common ground that reasons were not provided to Ms. Gavrilow in the refusal letter.
[10] In Marine Atlantic Inc. v. Canadian Merchant Service Guild (2000), 258 N.R. 112 (F.C.A.), a post-Baker decision, Rothstein J. stated as follows:
Based on the rationale outlined in Baker, while not required in every case, it will generally be a salutary practice for tribunals to provide reasons for their decision. However, it is not necessary for this Court to determine whether this is a case in which reasons are required. The applicant concedes that it did not ask the Board to provide reasons. In fact, although the applicant sought reconsideration by the Board, the absence of reasons was not one of the grounds for that application.
In Liang v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1301, Evans J. (as he then was) stated at paragraph 31:
However, in my opinion, 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.
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.
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.
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 rare.
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.
[11] The comments of Rothstein J. are dispositive with respect to the failure of the respondent to provide reasons. There is no evidence that the applicant requested reasons and this is not, in my view, one of the exceedingly rare or unusual situations referred to by Rothstein J.
[12] Although reasons were not provided in the refusal letter sent to Ms. Gavrilow, the officer's notes constitute reasons for the decision. In considering the other arguments of the applicant, these notes can be relied upon as the reasons for the decision. However, since the officer has not sworn to the truth of their contents, they cannot be relied upon as evidence of what occurred at the interview: Chou v. Canada (Minister of Citizenship and Immigration) (2000) 190 F.T.R. 78, aff'd. (2001) 285 N.R. 188 (F.C.A.).
[13] A review of the notes leaves no doubt that Ms. Gavrilow's application for an H & C waiver was denied because the officer was not satisfied that her marriage to Mr. Rylott was genuine. Rather, he believed that it was entered for immigration purposes. The reasons for finding that the marriage was not genuine were three-fold: the couple was not living together; they knew little about each other, and the couple was "mismatched" in that they did not share in common "culture, background, intellect or mutual knowledge".
[14] Regarding the finding that the couple was not living together, both the applicant and her husband depose that they explained to the immigration officer that they were living apart only temporarily. Briefly stated, the explanations were: the husband could not find long term work in Wasaga Beach but had found work in Kitchener; the move was recent; until he was settled and could find a suitable place for them to live his wife would continue to work in Wasaga; it was necessary for the applicant to work to fund her daughter's private schooling, and the couple lived together on the weekends. The officer's notes do not refer to those explanations. The closest reference is contained in the following excerpt:
- whatever the alleged reasons or financial aspects, they nonetheless appear to be apart
- hence the H & C element cannot really exist, approval of an AFL in Canada is based on the hardship of being separated and this becomes a moot point if they do not reside together
[15] Leaving aside any distinction that might exist between couples who are separated by a two hour drive and those who are separated by an ocean, the most significant issue is that the officer's notes do not reference the explanations provided by the applicant and her husband. As stated earlier, the notes can be relied upon only as reasons for the decision. They cannot be used as evidence of what was said at the interview. Thus, the evidence of the applicant and her husband stands uncontradicted in this respect and I can only conclude that the officer made his decision without regard to this evidence. The explanations provided as to why the couple were not living together at the time of the interview, which were relevant, appear not to have been considered.
[16] The fact that this couple did not reside together was but one of three factors relied upon by the visa officer in concluding that the marriage was not bona fide. It cannot be said, however, that this consideration was immaterial to the decision. It appears to have been an important factor particularly when the officer felt that it was preferable to request another home visit before rendering a decision. I refer to the following passage from his notes:
- I decided that from the point of view of naturel justice, I would delay my decision and yet again ask for enforcement to visit after a while; I doubted that they would be found together
- I returned the file to the Enforcement bins in May & June but due to internal issues, they could not go out to visit
- I made attempts to contact the principals by phone, @ 519-745-3420, in July but got no response and I was absent in August
- my next plan was to persist in my efforts to have Enforcement visit again but the events of 11 Sep cause this not to be feasible
- I thereby opted to take a decision at this point, feeling secure that my analysis of the relationship is correct
[17] The immigration officer may well be correct in the final analysis. However, that is not the issue with which I am concerned today. The allegation of error is that the officer failed to consider relevant evidence in arriving at his determination and that his failure constitutes an error of law. For the reasons given, I conclude that such error has been established. The application
for judicial review will therefore be allowed and the application will be referred back for
reconsideration by a different officer. Counsel did not suggest a question for certification. This matter raises no serious issue of general importance.
"Carolyn Layden-Stevenson"
________________________________
J.F.C.C.
Toronto, Ontario
February 6, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-888-02
STYLE OF CAUSE: RICHARD RYLOTT AND NATALY GAVRILOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, FEBRUARY 5, 2003
REASONS FOR ORDER : LAYDEN-STEVENSON, J.
DATED: THURSDAY, FEBRUARY 6, 2003
APPEARANCES: Mr. Edward Corrigan
For Applicants
Mr. Martin Anderson
For Respondent
SOLICITORS OF RECORD:Mr. Edward Corrigan
Mr. Rodney Woolf
Barristers and Solicitors
1474 Bathurst Street, Suite 100
Toronto, Ontario M5P 3G9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030206
Docket: IMM-888-02
BETWEEN:
RICHARD RYLOTT and NATALY GAVRILOV
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER