Date: 20031218
Docket: IMM-69-03
Citation: 2003 FC 1339
Toronto, Ontario, this 18th day of December, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
SANDRA TOSCANO FIGUEROA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
(To amend Reasons for Order and Order dated November 13, 2003)
[1] Mrs. Sandra Toscano Figueroa (the "Applicant") seeks judicial review of the decision made by an Immigration Officer (the "Immigration Officer"), dated December 6, 2002. In that decision, the Immigration Officer refused the Applicant's request for an extension of her temporary resident status in Canada.
[2] The Applicant is a Cuban citizen. She met her husband, Mr. Cecil Stein, in March 2001 when he was vacationing in Cuba. Mr. Stein continued to visit the Applicant in Cuba after his holiday, staying for a few weeks at a time. He proposed to the Applicant on December 24, 2001.
[3] The Applicant sought a Canadian visitor's visa from the Canadian Embassy in Cuba but was refused. Mr. Stein, a resident of Stephenville, Newfoundland, contacted his member of Parliament and obtained a Minister's Permit for the Applicant in the summer of 2002. That permit authorized her temporary residence in Canada until September 30, 2002.
[4] On August 21, 2002, the Applicant married Mr. Stein. On August 26, 2002, more than 30 days before the expiration of her temporary resident permit, the Applicant sought an extension of her temporary resident status, pending a final determination of her permanent resident application. That application was filed on September 12, 2002. She applied as a member of the spouse in Canada class and her application was supported by Mr. Stein's sponsorship application.
[5] On December 6, 2002, the Applicant's request for an extension of her temporary resident status was refused. The refusal letter provided as follows:
Under the authority delegated to me by the Minister of Citizenship and Immigration in accordance with the provisions of the Immigration and Refugee Protection Act, take notice that the written permit which authorises you to remain in Canada until September 30, 2002, pursuant to subsection 24(1) Of the Immigration and Refugee Protection Act, will not be extended. Consequently, you MUST leave Canada immediately. If you do not leave Canada voluntarily, enforcement action may be taken against you. [emphasis in original]
[6] Subsequently, the Applicant's application for permanent residence was refused. That refusal is the subject of another application for judicial review.
[7] The Applicant's main argument is that the Immigration Officer failed to provide reasons for the negative decision, even though the cover letter that accompanied the decision referred to reasons for that decision. The Applicant says that the lack of reasons amounts to a breach of procedural fairness.
[8] As well, the Applicant argues that the decision was unreasonable since she is a member of the family class and her departure from Canada would defeat the purpose of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act").
[9] The Respondent takes the position that there was no breach of natural justice and says that the Immigration Officer was not obliged to provide reasons since she was simply acting upon instructions given by the Minister's office. Further, the Respondent argues that there is no duty to give reasons when the decision is the exercise of the Minister's personal prerogative and, relying on Baker v. Canada, [1999] 2 S.C.R. 817, says that there is a lower duty to give reasons when the decision involves a high degree of discretion.
[10] As well, the Respondent submits that, according to Suresh v. Canada, [2002] 1 S.C.R. 3, since there are no ministerial guidelines, treaty obligations or instructions to the Minister as to how he should exercise his discretion, as opposed to the situation in Baker, supra, the decision in issue represents the highest exercise of discretion available under the Act.
[11] The dispositive issue arising from this application is whether the Immigration Officer breached the Applicant's right to procedural fairness by failing to provide written reasons for her decision.
[12] The Applicant was initially denied a visitor's visa by the Canadian Embassy in Cuba. She was granted a Minister's permit in the summer of 2002. That permit was issued under the authority of section 24 of the Act which provides as follows:
| (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time. (2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada. (3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make. |
|
(1) Devient résident temporaire l'étranger, dont l'agent estime qu'il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s'il estime que les circonstances le justifient, un permis de séjour temporaire - titre révocable en tout temps. (2) L'étranger visé au paragraphe (1) à qui l'agent délivre hors du Canada un permis de séjour temporaire ne devient résident temporaire qu'après s'être soumis au contrôle à son arrivée au Canada. (3) L'agent est tenu de se conformer aux instructions que le ministre peut donner pour l'application du paragraphe (1).
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[13] Section 124 of the Immigration and Refugee Protection Regulations, SOR/2002-227; also applies to the Applicant and provides as follows:
| A foreign national is a member of the spouse or common-law partner in Canada class if they (a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada; (b) have temporary resident status in Canada; and (c) are the subject of a sponsorship application. |
|
Fait partie de la catégorie des époux ou conjoints de fait au Canada l'étranger qui remplit les conditions suivantes : a) il est l'époux ou le conjoint de fait d'un répondant et vit avec ce répondant au Canada; b) il détient le statut de résident temporaire au Canada; c) une demande de parrainage a été déposée à son égard. |
[14] The covering letter from the Immigration Officer says that she was attaching "copies of the decision giving written reasons for the decision". However, it is clear from the decision that it does not include any written reasons. The Field Operating Support System ("FOSS") notes and email correspondence attached to the affidavit of Karen Miranda that is included in the Respondent's Application Record do not provide an explanation for refusal of an extension of the Applicant's temporary resident status.
[15] In Baker, supra, the Supreme Court of Canada summarized the factors relevant to determining the content of procedural fairness owed in a given context as follows:
· the nature of the decision and the process followed in making it (the closer it is to a judicial process, the higher the content of fairness owed
· the nature of the statutory scheme (for example, greater procedural protections are required where there is no provision for appeal procedures in the statute)
· importance of the decision to the individuals affected is a significant factor
· the legitimate expectations of the person challenging the decision
· choice of procedure made by the agency itself
[16] In my opinion, the factor that is most relevant to the Applicant is the importance of the decision to her. The decision of the Respondent to issue a temporary resident permit is highly discretionary and the exercise of that discretion is not limited by guidelines or directives. In the absence of evidence that would support the existence of legitimate expectation by the Applicant that a positive decision would be made, that factor does not come into play here. Similarly, there is no issue raised concerning the choice of procedure by the Respondent in dealing with the Applicant's request.
[17] The negative decision has serious consequences for her since it impacts upon her ability to pursue her application for admission into Canada as a member of the spouse in Canada class, as addressed in section 124 of the Regulations. The fact which makes the negative decision significant for the Applicant is her marriage, during the period when she held temporary resident status in Canada. That matter was wholly in the control of the Applicant and by itself, does not impose an obligation on the Respondent to give reasons for the negative decision, if the duty does not otherwise exist.
[18] According to the Respondent, the Immigration Officer acted in accordance with instructions from the Minister in making her decision. The record is silent as to the content of those instructions. In the absence of any evidence as to those instructions and without reasons, a question arises as to how the Immigration Officer followed those instructions. In these circumstances and on the facts of this case, the lack of reasons raises an appearance of arbitrariness on the part of the Immigration Officer in dealing with the Applicant's request for an extension of her temporary resident status.
[19] In this case and upon the facts presented, there is a doubt about the fairness with which the Applicant was treated. That doubt will be resolved in favour of the Applicant. The application for judicial review is allowed and the matter is referred back to the Respondent Minister or his authorized delegate, as the case may be for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is referred back to the Respondent Minister or his authorized delegate, as the case may be, for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-69-03
STYLE OF CAUSE: SANDRA TOSCANO FIGUEROA v. MCI
DATE OF HEARING: August 13, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER BY: Heneghan J.
AMENDED REASONS FOR
ORDER AND ORDER DATED: December 18, 2003
APPEARANCES BY: Mr. Cecil Rotenberg Q.C.
For the Applicant
Ms. Patricia Mac Phee
For the Respondent
SOLICITORS OF RECORD: Mr. Cecil Rotenberg Q.C.
Barristers & Solicitors
255 Duncan Mill Rd. Suite 803.
Toronto, Ont.
M3B 3H9
For the Applicant
Ms. Patricia MacPhee
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent