Date: 20031031
Docket: IMM-4563-01
Citation: 2003 FC 1277
Ottawa, Ontario, October 31, 2003
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
ENAMUL HUQUE QUAZI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Enamul Huque Quazi ("the applicant") is a citizen of Bangladesh who was denied refugee status and who subsequently, on September 24, 2000, filed an application for permanent residence sponsored by his wife with an application for a visa exemption on humanitarian grounds under section 114 of the old Immigration Act.
[2] One of the chief arguments made by the applicant in his application for judicial review against the decision by the immigration counsellor Maurice Groulx ("the tribunal") on September 13, 2001, dismissing his application for a visa exemption, concerned the lack of procedural fairness received at interviews granted by the tribunal.
[3] What is unfortunate in this case is the absence of an affidavit by Mr. Groulx contradicting the allegations of the applicant and his wife on the way in which their interviews were conducted. Further, the respondent filed no affidavit certifying the correctness of the notes taken by Mr. Groulx by hand or his computerized report.
[4] The tribunal considered that it had to meet with the applicant and his wife on the ground:
[translation]
Separate interviews. Interview necessary because spouses met one month after applicant arrived in Canada and were married a few months before IRB hearing and decision. At the hearing, the PIF mentioned the applicant was still single and unmarried. There are doubts about the good faith of the marriage. The interview was conducted in English, the common language of the two spouses. I wanted to know the extent to which one spouse knew the other. [Tribunal's record, p. 7]
[5] In its decision of September 13, 2001, the tribunal concluded that the marriage was not in good faith and that Mr. Quazi had married Bibiana Gongora de Guzman solely to obtain Canadian residence.
[6] Two affidavits were filed by the applicant in support of his application for judicial review: his own and that of his wife.
[7] I set out the principal allegations in Ms. de Guzman's affidavit about what took place at her interview with the tribunal:
3- On August 8th around four pm I have received a message by phone at home from Mr. Groulx asking us to call him back;
4- We did so and he told us to come at his office to meet him the next day at 9:00 am;
5- Mr. Groulx didn't say the purpose of this interview in his phone call to my husband and, as my husband told me, I sincerely believe that he had asked if we were still together and if I was pregnant and my husband answered yes to the first question and no to the second;
6- I went with my husband at his office on August 9th and Mr. Groulx came to see us at the reception entry asking me to follow him;
7- When I was walking with him alone to reach his office Mr. Groulx told that he had a problem with the identity of my husband;
8- . . .
9- He didn't inform me of the issues or problems concerning our request for exemption of Immigrant visa requirement or concerning my application to sponsor except concerning the identity of my husband;
10- Then I undergo the interview without knowing that the officer was suspecting our marriage to be one of convenience because of my recent divorce or for any other reasons;
11- In consequences I proceed to this interview without knowing what I should prove before the officer or what was in issue before him;
12- . . .
13- I didn't have the opportunity to explain to the officer that I was separated since more than five years ago and to provide proof if necessary;
. . .
18- In this decision the officer don't remember my answers about and didn't take in account this explanation.
22- I have provided to the officer a lot of details concerning the life of my husband in his country, with his family, occupation and education and so on.
23- During the interview the officer was not taking notes of all my answers;
. . .
27- I didn't say to the officer that my husband travelled on his own name;
28- What I have said to the officer was that my husband travelled with a passport provided by a person who helped him from Bangladesh for money; [My emphasis.]
[8] This is what the applicant stated in his affidavit about the way the interview was conducted with the tribunal:
[translation]
7- Mr. Groulx than asked me to report to his office the following day without telling me why;
8- I went to the CIC office with my wife on 9-08-2001 and was careful to take our marriage photos, photos of common life, lease and so on;
9- . . .
10- At that time, and subsequently, Mr. Groulx did not give any indication of the reason or purpose of the interview, except for establishing my identity;
11- Mr. Groulx indicated that a favourable decision depended only on satisfactory evidence of my identity;
12- . . .
13- After my wife's interview, the officer asked me to go with him to his office;
14- He then began questioning me about how my relationship with my wife began, our first meeting, our subsequent relations, our decision to get married, and then discussed the question of my identity papers;
15- I have to say that the officer did not write down all the responses I gave at the interview, which did not begin with identity documents . . .;
. . .
29- Further, the officer never asked me to explain why the PIF I signed in 1998 did not mention that I had been married since 2000;
. . .
34- The officer refused to look at the documents I had taken, namely photos of our family life, tax returns, various invoices establishing our living together and so on . . . and told me this was not necessary, suggesting that the good faith of my marriage was not in question;
35- The officer did not consider this evidence . . . [My emphasis.]
[9] The Supreme Court of Canada's judgment in Mavis Baker v. The Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817, is applicable in the case at bar since the decision considered by this Court was rendered by an Immigration officer on an application by Ms. Baker to be exempted from making her permanent residence application from outside Canada on humanitarian grounds.
[10] I accept the following principles set out in Baker, supra:
(1) the duty of procedural fairness applies to humanitarian decisions made by an Immigration officer;
(2) the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case (paragraph 21 of L'Heureux-Dubé J.'s judgment);
(3) "The values underlying the duty of procedural fairness relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision" (paragraph 28 of L'Heureux-Dubé J.'s decision) [My emphasis.]
(4) taking into account the factors she mentioned, L'Heureux-Dubé J. concluded in paragraph 32 that the content of the duty of procedural fairness is not simply minimal. This is what L'Heureux-Dubé J. said:
32. Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, supra, at p. 239, that the duty of fairness owed in these circumstances is simply "minimal". Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.
33. However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. The Federal Court has held that procedural fairness does not require an oral hearing in these circumstances: see, for example, Said, supra, at p. 30. [My emphasis.]
(5) the proper standard of review is that of the reasonable decision simpliciter.
[11] Application of the rules of the duty of procedural fairness requires that I consider whether, in the circumstances and the particular context here, the applicant was given the benefit of procedural fairness so as to have an opportunity of fully and fairly presenting his position and that the officer's decision was made after a fair, impartial and open process.
[12] I consider that the context in which the interviews took place was special because the immigration counsellor was considering an application for an exemption which did not necessarily and directly raise the question of the good faith of the marriage, which is the case pursuant to section 4 of the old Immigration Regulations, 1978, which provided that the parent category did not include a spouse who had married primarily to obtain admission to Canada as a parent, not with the intention of living permanently with his or her spouse. In other words, in the context of an exemption application the applicant could not reasonably expect that the good faith of his marriage was in question. However, it is for this reason that the tribunal decided these interviews were necessary for the limited purpose, as the tribunal said, [translation] "I wanted to know the extent to which one spouse knew the other".
[13] Does the evidence in the record allow me to conclude that the interviews gave the applicant "an opportunity to present [his] case fully and fairly"?
[14] I repeat that the only evidence in the record on what occurred at the interviews came from the applicant and his wife.
[15] The evidence of the applicant and his wife showed for several reasons a lack of procedural fairness in accordance with the standard required - "an opportunity to present their case fully and fairly": (1) a misunderstanding of the real purpose of the interviews (purpose not disclosed and improper); and (2) a procedure which did not allow the applicant and his wife to present their case on the good faith of their marriage (an opportunity to put forward facts establishing the good faith of the marriage).
[16] The absence of evidence by the respondent on how the interviews took place creates a serious doubt about what actually happened, a doubt which I must resolve in favour of the applicant.
[17] In the circumstances, I do not have to rule on the other question relating to the risks of return.
ORDER
For these reasons, this application for judicial review is allowed, the decision of the officer Groulx quashed and the matter referred back to the Minister for a different Immigration officer to make a new decision.
"François Lemieux"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4563-01
STYLE OF CAUSE: ENAMUL HUQUE QUAZI
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: MAY 1, 2003
REASONS FOR ORDER AND ORDER: FRANÇOIS LEMIEUX J.
DATE OF REASONS: OCTOBER 31, 2003
APPEARANCES:
Johanne Doyon FOR THE APPLICANT
Marie-Nicole Moreau FOR THE RESPONDENT
SOLICITORS OF RECORD:
Johanne Doyon FOR THE APPLICANT
Doyon & Montbriand
Montréal, Quebec
Morris Rosenberg, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada