Ottawa, Ontario, April 5, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
ZENFIRA SKRIPNIKOV
and
AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
REASONS FOR ORDER AND ORDER
“Suffering is permanent, obscure and dark
And shares the nature of infinity”
(Wordsworth)
[1] The Skripnikovs, husband Mikhail, wife Zenfira, and two year old son Denis emigrated from Uzbekistan to Israel in 1997. Although Zenfira was a practicing Christian, they were entitled to emigrate because her mother was Jewish. By their account they were not treated well in Israel. The majority discriminated against them because they were both Russian and Christian. They were not accepted by the Christian community either. Their son had difficulties in daycare because he was not circumcised.
[2] In 2001, they sent him to visit his grandmother back in Uzbekistan. Tragically he fell from a fourth-storey balcony and died.
[3] They came to Canada and launched a refugee claim. They say they had left Uzbekistan because of serious anti-Semitism and were humiliated and physically abused. However they were not accepted in Israel either. Their claim was dismissed, as was their application for leave and judicial review thereof.
[4] They then applied for landing on humanitarian and compassionate grounds. That application was dismissed, but is subject to this judicial review.
THE DECISION UNDER REVIEW
[5] The basis of the Skripnikovs’ submissions was that after the tragic death of their son, they sought solace in religion because of their depression and anxiety. However, neither the Christian nor the Jewish community in Israel accepted them. Their marriage was in jeopardy because of desperation and anxiety. They wanted a fresh start in Canada.
[6] The immigration officer was of the view that they would not be subjected to unusual hardship if they were to return to either Israel or Uzbekistan and apply for Canadian permanent residence status from there in the normal manner.
[7] He considered the mental, emotional and medical states of Ms. Skripnikov, and the doctor’s plan to treat her post-traumatic stress disorder, as well as proposals with respect to individual and family counselling.
[8] The immigration officer expressed three concerns in his reasons. He said he asked for and did not receive an update concerning Ms. Skripnikov’s treatment for depression and anxiety, and so concluded that they were not still at issue.
[9] Neither Denis’ death certificate nor the birth certificate indicates parentage. He said, “I am not satisfied that this child is the biological offspring of the applicants.”
[10] With respect to the submission that they had found solace in religion in Canada and would not be able to find it in Israel, he said they had provided him with insufficient evidence that they were not accepted by both the Jewish and Christian communities there.
[11] He concluded: “Hence, having reviewed all the information in my possession, Mr. and Mrs. Mikhail Skripnikov have not satisfied me that sufficient humanitarian and compassionate grounds exist to warrant waiving the normal legislative requirements of the Immigration and Refugee Protection Act.”
[12] They were then told to report for removal. They sought a stay. The stay was not granted on the grounds that there was no evidence of irreparable harm. Counsel informed the Court that they are currently in Israel.
THE SKRIPNIKOVS’ SUBMISSIONS
[13] The Skripnikovs submit that they acted on the immigration officer’s request for an update on Zenfira’s mental health. They say the decision must be set aside because it was made on the basis of an incomplete file.
[14] As to their son Denis, they had sworn he was their son, and produced a death certificate form from Uzbekistan. That form does not give room to identify the deceased’s parents. Had the immigration officer shared his concerns with them, they would have produced further evidence, as they did before this Court.
[15] They did not focus on the ease with which they could express their religion in Canada, as opposed to Israel, but submit that either of the first two grounds justifies the setting aside of the decision.
THE MINISTER’S CASE
[16] Essentially, the Minister submits that any one of the three concerns expressed by the immigration officer was sufficient to dismiss the H&C application. With respect to the update on Zenfira’s state of health, counsel’s careful analysis shows that it is impossible for some, if not all, of the updated medical report to have been in the envelope mailed to Citizenship and Immigration Canada. The dates simply do not work out.
[17] As to Denis being their son, it was pointed out that the burden was on the Skripnikovs to make their case. The immigration officer weighed the evidence and found it wanting. The Court should not interfere.
ISSUES
[18] The first issue is the degree of deference the Court owes to the immigration officer. It was established by the Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, that the overall standard of judicial review in humanitarian and compassionate cases is reasonableness simpliciter. However, findings of fact, as opposed to the exercise of discretion, are usually reviewed on the basis of patent unreasonableness (Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.) (QL); Canada (Minister of Citizenship and Immigration) v. Thanaratnam, 2005 FCA 122).
[19] However, matters of procedural fairness are beyond the pragmatic and functional approach to judicial review as stated in such cases as Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. The Court owes no deference to the immigration officer on this issue (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539). Put another way, in order to stand the underlying decision must be correct (Canada (Attorney General) v. Sketchley, 2005 FCA 404).
DISCUSSION
[20] Mrs. Skripnikov’s post-traumatic stress disorder and depression cannot be isolated from the death of her son Denis. Rather than giving full consideration to whether the loss of a child should give rise to humanitarian and compassionate considerations and support a move to another country, with which they had no previous connection whatsoever, the immigration officer was not satisfied they even had a child.
[21] With respect, this is not simply a matter of weighing of evidence. By not sharing his concerns with the Skripnikovs, the immigration officer failed to observe a principle of procedural fairness and, in all likelihood, made an erroneous finding of fact in a perverse or capricious manner, without regard to the material before him. This failure and error justify relief in accordance with subsection 18.1(4) of the Federal Courts Act.
[22] There is a rebuttable presumption that the Skripnikovs were telling the truth (Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302 (FCA)). The death certificate did not contradict the Skripnikovs. It did not identify anyone else as Denis’ parents. If the immigration officer had his doubts, it was his duty to share those concerns with the Skripnikovs so as to allow them to respond in a meaningful way. Natural justice demands that one be informed of the case one has to meet and be given an opportunity to meet it (Adegbayi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1348; Khwaja v. Canada (Minister of Citizenship and Immigration), 2006 FC 522, [2006] F.C.J. No. 703 (QL); Guo v. Canada (Minister of Citizenship and Immigration), 2006 FC 626, [2006] F.C.J. No. 795 (QL)).
[23] This ground in and of itself is sufficient to grant judicial review. However, the submission that the decision was made on the basis of an incomplete record deserves comment. A decision made on the basis of an incomplete record constitutes a denial of natural justice (Pramauntanyath v. Canada (Minister of Citizenship and Immigration), 2004 FC 174).
[24] Mr. Skripnikov swore that on or about 10 November 2005, several months before the decision, he mailed an updated doctor’s letter dated 9 November 2005 with other supporting documents including proof of payment of the government fee of $1,950.
[25] The tribunal record includes an envelope with two Canada Post machine dated stamps on it, one dated 7 November 2005, and the other 8 November 2005. The file also includes the receipt of payment of $1,950 paid at a bank 4 November 2005, and stamped received by Citizenship and Immigration 9 November. However, the doctor’s letter is not to be found.
[26] Mr. Skripnikov attached as an exhibit to his affidavit a copy of the doctor’s letter and notes confirming regular attendance. The letter is dated 9 November 2005. Could there have been same day delivery by registered mail, as the receipt which was said to be in the same envelope was received by Citizenship and Immigration Canada that very day? Furthermore, attached to the letter were updates from January, March, May and June 2006. It was impossible for those updates to have been in the envelope. However, there were other attendance reports, in the same form, which predated the doctor’s letter. It may be that Mr. Skripnikov did not carefully segregate the old from the new.
[27] The thought crossed my mind, as expressed during the hearing, that if the judicial review were granted I might give directions that the doctor’s letter of 9 November 2005 not be taken into account. However, I realized I would be doing exactly what the immigration officer did: have doubts, but not give the Skripnikovs an opportunity to respond. Consequently, the judicial review will be allowed without this restriction.
[28] The parties, and the Court, agree that there is no question of general importance to certify.
ORDER
THIS COURT ORDERS that:
a. The application for judicial review is allowed.
b. The matter is referred to another immigration officer for re-determination.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2505-06
STYLE OF CAUSE: Mikhail Skripnikov
Zenfira Skripnikov
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 27, 2007
REASONS FOR ORDER: HARRINGTON J.
APPEARANCES:
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Mr. Hart Kaminker
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Mr. Michael Butterfield
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SOLICITORS OF RECORD:
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Hart Kaminker Barrister & Solicitor Toronto, Ontario
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John H. Sims, Q.C. Deputy Attorney General of Canada
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