Federal Court Decisions

     IMM-2143-96

Between:

     GURMAIL SINGH,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ, J.

     This application is for judicial review of the decision of Immigration Officer Ms. Andrea Barker, dated February 19, 1996, whereby she failed to determine that the applicant was a person described as a "member of the Deferred Removal Orders Class" ("DROC").

     The applicant applied for permanent residence from within Canada by submitting an application form entitled "In Canada Application for Permanent Residence - Form 5001". It was signed by the applicant on August 31, 1995, and submitted to the respondent on October 2, 1995. Form 5001 is the standard generic form used for in Canada applications for landing. At the top of the form under "A - TYPE OF APPLICATION (Check one) "the applicant checked the box titled" Humanitarian and compassionate case".

         The applicant was accompanied at the interview by his immigration consultant, B.S. Sandhu, who also acted as his interpreter when required. According to Ms. Andrea Barker's Report to File and her affidavit, Mr. Sandhu advised her that he had submitted a DROC application, but she advised him that the application she had before her was one made under humanitarian and compassionate grounds. Mr. Sandhu asked if the applicant might be eligible under DROC and she explained that she was not able to make that assessment, but gave the applicant a DROC application form. This key paragraph from Ms. Barker's Report to File bears reproduction in toto:

Mr. Sandhu advised that PI had submitted a "DROC" application. I advised that the application that I had before me was one made under humanitarian and compassionate (h & c) grounds. I asked PI if he had made another application under "DROC". He stated he had not. Mr. Sandhu asked if PI might be eligible under DROC. I explained that I was not able to make that assessment. I gave PI a DROC application and explained that if I refused his case for inland processing, he could review the DROC kit and determine if he is eligible to apply. If he is, I advised he should make his DROC submission as soon as possible.

     Subsequent to the interview, the applicant filed another Form 5001 along with Form 5328 titled "Supplementary Information - Deferred Removal Orders Class", the form specifically provided for DROC applications.

     By letter dated February 19, 1996, Ms. Barker informed the applicant that his application for exemption on humanitarian and compassionate grounds was denied. On March 6, 1996, a senior immigration officer wrote to the applicant to inform him that he did not meet the requirements for landing under the DROC class because he did not submit his application for landing within 120 days of becoming a member of that class as stipulated in Immigration Regulations 11.401(a). The senior immigration officer further explained that, as he became a member of that class on July 15, 1995, his application ought to have been submitted no later than November 20, 1995, and his application was received on February 22, 1996, "well beyond the date for acceptance".

     It is common ground that if the applicant had submitted a DROC application on the date he filed his humanitarian and compassionate application, on September 12, 1995, his application would have been considered. However, the respondent does not admit that the application would have been granted. And on the date of the interview with Ms. Barker, it was already too late to file his DROC application.

     The applicant argues that since the applicant had filed his application for landing within the requisite period of time and that since Ms. Barker was aware at the interview that he wanted to be considered as a member of the DROC class, it was an error of law on her part to pursue the humanitarian and compassionate application.

     Moreover, he claims she erred when she failed to consider the applicability of the regulations concerning a member of DROC as enacted by SOR-94-681 on November 4, 1994. Since it was obvious from the information already on file and from the application itself that the applicant was a member of DROC, his application ought to have been considered in that light, and Ms. Barker ought not to have limited herself to the consideration of the bureaucratic form in front of her. In all fairness, she should have come to the assistance of the applicant and have considered Form 5001 as being a generic In Canada application for landing applying to all categories of persons seeking to be exempted from the obligation to apply for landing from outside this country. More so where the applicant's consultant clearly indicated at the outset of the interview that the applicant was seeking a DROC exemption.

     The applicant relies on a decision of the Honourable Mr. Justice Jerome, A.C.J. of this Court, Thakorlal Hajariwala v. Minister of Employment and Immigration, [1989] 2 F.C. 79, wherein he held that "the visa officer was required as a matter of law under the Immigration Act and Regulations to assess alternate occupations inherent in work experience when such experience is brought forward by the applicant.". He said as follows at p. 82:

. . . The purpose of the statute is to permit immigration, not prevent it. It follows that applicants have the right to frame their application in a way that maximizes their chances for entry. It is the corresponding obligation of immigration officers to provide a thorough and fair assessment, and to provide adequate reasons for refusals when they occur.

He also continued as follows at p. 83:

15.      Alternate occupations will also be considered by the officer where there is the possibility that the applicant is qualified for and prepared to follow that occupation.

I take that to be a very important expression of fundamental fairness to the applicant. Counsel for the applicant asks me to find that it imposes upon the visa officer the obligation to assess alternate occupations inherent in the applicant's work experience, whether the applicant puts them forward or not. I am not prepared to go that far, but I do find that it puts beyond question the responsibility of the visa officer to do so where, as here, the applicant seeks it by designating alternate occupations in the application.

It is also important to emphasize that the Immigration Act, 1976 in section 6 requires that those seeking landing in Canada must satisfy an immigration officer that they meet the selection standards set out in the Immigration Regulations, 1978. It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or the Regulations.

     On the other hand, the respondent submits that whereas the applicant became eligible to apply for landing under section 11.401(a) of the DROC Regulations on July 15, 1995, the applicant only actually qualifies as a member of the DROC when he is so determined to be and, at the time of the interview, he had not even applied to become a member of DROC. It was then too late to apply. The Court has stated that until an applicant actually qualifies as a member of the DROC he has not yet acquired any status under the Act. He has not been determined to be a member of the class and has not acquired any rights to landing pursuant to the Act. See Singh v. MCI, October 25, 1995, IMM-2643-95 (F.C.T.D.).

     According to the respondent, the immigration officer is not under a duty to assess the applicant in every possible category in which he may be eligible to apply. The applicant applied under the humanitarian and compassionate category and that is the category under which he was assessed. Subsection 8(1) of the Immigration Act clearly places the burden on the applicant to demonstrate that he has a right to come into Canada. Since the applicant had not applied under DROC, it was not open to the immigration officer to assess him under that category.

     The respondent argues that the first application filed by the applicant and considered by the immigration officer was based on humanitarian factors which are not a consideration in a DROC application. She determined after a full and fair review that he did not have sufficient humanitarian and compassionate grounds to be accepted in that category. There was no further obligation to assess the applicant's eligibility under DROC or under any other class for which the applicant had not applied.

     In my view, there was no legal obligation upon the immigration officer to convert a humanitarian and compassionate application to a DROC application, and more so at the interview stage when it was already too late for the applicant to make a DROC application. The factors to be considered in one application are different from the factors to be considered in the other application. There is no explanation as to why the consultant decided at that late stage to change his application from one category to the other.

     The facts and the regulations involved are quite distinguishable in this case from those in the Hajariwala decision. Hajariwala was applying for permanent residence in Canada as an independent candidate pursuant to subsection 6(1) of the Act and was assessed by a visa officer. There are several criteria for such an assessment, including experience, but one of the most significant factors is the applicant's possibility of employment in Canada. Hajariwala filed the application for the category of an independent immigrant and the visa officer was expected to apply all the criteria for that category. It is understood that experience in alternate occupations are to be considered by the visa officers as mentioned in paragraph 15 referred to in Mr. Justice Jerome's reasons for judgment. The learned judge also added that:

It is clearly therefore the responsibility of the applicant to produce all relevant information which may assist his application.

     In the case at bar, the applicant failed to file the application for the category for which, at the interview, his consultant says he wanted to file. Surely, Ms. Barker was not expected to re-draft a new application based on a different category because of a sudden change of mind of the consultant.

     Thus, I cannot find that the immigration officer erred in law or failed to observe a principle of natural justice or procedural fairness.

     At the end of the hearing of this matter, I granted both solicitors ten days after receipt of these reasons for order and order within which to file directly with the Federal Court their submissions with respect to the certification of a question pursuant to section 83 of the Immigration Act.

                             (Sgd.) "J.E. Dubé"

                                 J.F.C.C.

Vancouver, British Columbia

January 24, 1997