[1993] 3 F.C. 370
92-T-1362
Ramdeo Ramoutar (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Ramoutar v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Rothstein J.—Winnipeg, May 25; Ottawa, June 9, 1993.
Citizenship and Immigration — Immigration practice — Application to quash refusal to refer case to Governor in Council for exemption from requirement application for landed immigrant or permanent resident status be made from outside Canada — In holding reasonable doubts about bona fides of marriage to Canadian citizen, Immigration officer requiring proof beyond reasonable doubt — Standard of proof in civil proceedings proof on balance of probabilities — Department cannot by policy change standard of proof required — Denial of procedural fairness as refusal referring to contradictory information provided by applicant, but applicant not given opportunity to address concerns — Question whether reasonable doubt criterion for bona fides of marriage consistent with proper application of humanitarian and compassionate considerations certified for decision by F.C.A. even if not dispositive of matter — F.C.A. not restricted to deciding question certified — May within its jurisdiction consider all aspects of appeal before it.
This was an application to quash a decision not to refer the applicant’s case to the Governor in Council for an exemption on humanitarian and compassionate grounds from the requirement in Immigration Act, subsection 9(1) to apply for landed immigrant or permanent resident status from outside Canada. The refusal letter stated that there were reasonable doubts as to the bona fides of the applicant’s marriage to a Canadian citizen, and that he had provided information to the Immigration and Refugee Board, Appeal Division, contradictory to that provided to Immigration counsellors. The issues were: whether the respondent applied the wrong standard of proof i.e. proof beyond a reasonable doubt rather than proof on a balance of probabilities; whether there had been a denial of procedural fairness because the applicant had never had an opportunity of confronting the alleged contradictions so as to address and explain them; whether the matter was moot because the applicant had already been deported.
The Minister requested certification for decision by the Federal Court of Appeal of the question as to whether the reasonable doubt criterion for the bona fides of a marriage set forth in the immigration policy is consistent with a proper application of humanitarian and compassionate considerations as set out in subsection 114(2) of the Act.
Held, the application should be allowed.
The implication of the approach used by the Immigration officers was that the applicant would have had to satisfy them as to the bona fides of his marriage beyond a reasonable doubt. This was an error in law. Proceedings under subsection 114(2) are civil in nature and therefore the appropriate standard of proof was proof on a balance of probabilities. The Immigration officers were following deparmental guidelines. Merely because the Department has set forth a policy does not confer upon that policy the status of law. The Department cannot, by policy, require that the standard of proof in a civil matter be proof beyond a reasonable doubt.
There had been a denial of procedural fairness. The applicant was entitled to know the concerns of Immigration officers so that he could address them and, if possible, satisfy their concerns.
The matter was not moot. A very prejudicial decision was now part of the applicant’s record for immigration purposes. That decision could have an adverse effect on the applicant in any further proceedings he may wish to bring. The applicant still has rights under the Immigration Act which should not be adversely affected by a decision made by application of the wrong standard of proof and without affording the applicant procedural fairness. Even if the case were moot, the adversarial relationship between the parties continues. There are collateral consequences to the applicant if the decision appealed from is allowed to stand.
The proposed question was certified even though the resolution by the Federal Court of Appeal of only the question proposed by the respondent would not be dispositive because of the additional finding of denial of procedural fairness. Once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified. It may, within its jurisdiction, consider all aspects of the appeal before it.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1), 83(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19), 114(2).
Immigration Regulations, 1978, SOR/78-172.
CASES JUDICIALLY CONSIDERED
APPLIED:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Brooks, Robert Philip (1970), 1 I.A.C. 33 (I.A.B.); Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; (1978), 88 D.L.R. (3d) 671; 78 CLLC 14,181; 23 N.R. 410; Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.); Re K. (H.) (an infant), [1967] 1 All E.R. 226 (Q.B.).
AUTHORS CITED
Wydrzynski, Christopher J. Canadian Immigration Law and Procedure. Aurora, Ontario: Canada Law Book, 1983.
APPLICATION for judicial review of decision not to refer the applicant’s case to the Governor in Council for an exemption on humanitarian and compassionate grounds from the requirement in Immigration Act, subsection 9(1) to apply for landed immigrant or permanent resident status from outside Canada. Application allowed.
COUNSEL:
David Matas, for applicant.
Gerald L. Chartier for respondent.
SOLICITORS:
David Matas, Winnipeg, Manitoba for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Rothstein J.: In this application for judicial review, the applicant seeks to quash a decision of Gilles Bibeau, for the Assistant Manager, Canada Immigration Centre, Winnipeg, dated August 17, 1992. Mr. Bibeau decided not to refer the applicant’s case to the Governor in Council for an exemption, on humanitarian and compassionate grounds, from the requirement in subsection 9(1) of the Immigration Act, R.S.C., 1985, c. I-2, to apply for landed immigrant or permanent residency status from outside of Canada.
The applicant was ordered deported on August 3, 1990. An appeal of that order to the Appeal Division of the Immigration and Refugee Board was dismissed on April 15, 1991.
The applicant made a request pursuant to subsection 114(2) of the Immigration Act for an exemption from the requirement to apply for landed immigrant status from outside of Canada. On August 17, 1992, the request was refused. The applicant was deported on October 1, 1992.
The decision refusing the subsection 114(2) request for exemption dated August 17, 1992, took the form of a letter from the Canada Immigration Centre at Winnipeg to the applicant. The letter stated:
This refers to your request, pursuant to sub-section 114(2) of the Immigration Act for an exemption from the Governor-in-Council of sub-section 9(1) of the Immigration Act on Humanitarian and compassionate grounds.
The individual circumstances of your request have been carefully reviewed and it has been determined that your case does not warrant referral to the Governor-in-Council either for reasons of public policy or humanitarian and compassionate grounds. You have not established that undeserved or disproportionate hardship would result if you were required to leave Canada, nor have you demonstrated that your presence in Canada is in the national interest. This decision is based on the following:
1. There appears to be reasonable doubts as to the bona fides of your marriage in this case since it took place after all avenues of appeals were exhausted by you against your removal order.
2. The Commission has given consideration to the well being of your wife and child and find no evidence that she would not be able to support herself and child while you made application outside of Canada. Your wife has siblings and parents in Winnipeg on whom she may call upon for support. If she chooses she can also return with you to Trinidad and be with you during processing of your application.
3. As you may know our Canadian visa officials in Port of Spain have interviewed your former wife and as a result of this interview they have also formed the opinion that you may have entered this marriage for the sole purpose of circumventing the Immigration Act and Regulations.
4. You originally came to Canada by misrepresentation and you have continued to misrepresent yourself by providing the Immigration Refugee Board, Appeal Division with information contradictory to what was told to our Immigration counsellors during your interviews at this office.
The removal order made against you on August 3, 1990 will be effected as soon as practicable. You may continue with your application for permanent residence status by contacting the Canadian Embassy in Port of Spain once you have returned to that country.
I regret that this decision could not have been more favourable.
The applicant raised a number of grounds for judicial review including the following:
1. In dealing with whether the applicant’s marriage to a Canadian citizen was bona fide, the respondent applied the wrong standard of proof—proof beyond a reasonable doubt rather than proof on a balance of probabilities.
2. The respondent found that contradictory information had been provided by the applicant but the applicant was never confronted with the contradictions so as to be able to address them and explain them.
As to the first ground, the decision of August 17, 1992 states:
There appears to be reasonable doubt as to the bona fides of your marriage in this case ….
In a memorandum from Barry Pike, one of the Immigration Officers who conducted the investigation regarding the applicant, to Rocky Gushuliak, Supervisor of Admissions at Winnipeg, dated July 13, 1992, Mr. Pike states:
After a careful and sympathetic review of this case, I feel there is reasonable doubt about the bona fides of subjects present marriage.
On a note attached to the memorandum dated July 13, 1992, M. A. Colvin, Acting Supervisor, states:
I concur with this recommendation. I feel that reasonable doubt does exist concerning the bona fides of this marriage.
The immigration officers appear to have formed a reasonable doubt about the bona fides of the applicant’s marriage to a Canadian citizen, i.e. that it was entered into to circumvent the Immigration Act and Regulations [Immigration Regulations, 1978, SOR/78-172]. It seems to me that the clear implication of the approach they used is that the applicant would have had to have satisfied them as to the bona fides of his marriage to the Canadian citizen beyond a reasonable doubt.
Proceedings under subsection 114(2) of the Immigration Act are civil in nature and therefore the appropriate standard of proof upon which to consider evidence of the bona fides of the marriage of the applicant to a Canadian citizen is proof on a balance of probabilities—the standard applicable in civil proceedings. This, of course, is a less stringent standard for the applicant to meet than proof beyond a reasonable doubt.
Counsel for the respondent says that the policy in respect of assessing the bona fides of a marriage is set forth in guidelines given to immigration officers. The guidelines include the following:
The onus is on the client, in this case, the spouse, to satisfy the Immigration Officer that the marriage is genuine. As these cases do not involve an application for permanent residence but simply a request to have an application for permanent residence processed from within Canada, it is sufficient, in order to refuse to exercise discretion, that officers have a reasonable doubt about the bona fides of the marriage. Absolute proof is not necessary….
Counsel for the respondent took the position that because the immigration officers in this case were following the stated guidelines or policy of the Department of Immigration, their approach could not be successfully challenged. However, merely because officials at the Department of Immigration have set forth a policy does not confer upon that policy the status of law. The Department cannot by policy, require that the standard of proof in a civil matter be proof beyond a reasonable doubt.
I am quite satisfied that in assessing the bona fides of the applicant’s marriage to a Canadian citizen on the basis of requiring proof of such bona fides beyond a reasonable doubt, the respondent erred in law.
As to the question of whether the applicant was entitled to know the concerns of the immigration officers so that he could address them and, if possible, satisfy their concerns, counsel for the respondent, quite responsibly, in my view, acknowledged this requirement as a matter of procedural fairness. There seemed to be little dispute on this issue. The law has been stated repeatedly.
In my opinion, the appellant should have been told why his services were no longer required and given an opportunity, whether orally or in writing as the Board might determine, to respond. The Board itself, I would think, would wish to be certain that it had not made a mistake in some fact or circumstance which it deemed relevant to its determination. [Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, at page 328.]
…
The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it. [Selvarajan v. Race Relations Board, [1976] 1 All E.R. 12 (C.A.), at page 19.]
…
[E]ven if an immigration officer is not acting in a judicial or quasi-judicial capacity, he must at any rate give the immigrant the opportunity of satisfying him of the matters in the subsection, and for that purpose let the immigrant know what his immediate impression is so that the immigrant can disabuse him. That is not, as I see it, a question of acting or being required to act judicially, but of being required to act fairly. [Re K. (H.) (an infant), [1967] 1 All E.R. 226 (Q.B.), at page 231.]
In this case, the applicant has asserted that he was not given the opportunity to know the contradictions that concerned the immigration officials. The respondent has not challenged this assertion. I am satisfied that there has been a denial of procedural fairness.
During oral argument, counsel for the respondent argued that the entire matter was moot since the applicant has now been deported from Canada. However, subsequent to the oral argument, counsel for the respondent withdrew this argument.
Mootness raises questions that may go beyond the direct interest of the parties to a dispute. Sopinka J. in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, dealt with the subject of mootness at some length. Once a court decides that a matter is moot, the Court may still exercise its discretion to decide the matter. Although the list is not intended to be exhaustive, Sopinka J. identified three guiding principles: (1) despite the elimination of a live controversy, does an adversarial relationship between the parties subsist? (2) is the expenditure of judicial resources justified? (3) in the absence of a dispute, is a decision by the Court an intrusion into the functions of the legislative branch of government?
Because of the latter two considerations, I think it is desirable (although perhaps not strictly necessary), the issue having been raised, for me to briefly address the issue of mootness. I would first observe that at the leave stage of these proceedings, counsel for the respondent advanced the mootness argument. Where a party argues that an issue is moot at the leave stage and leave is granted notwithstanding, I had initially thought that the question had been dealt with, providing circumstances did not change between the granting of leave and the hearing of the judicial review. However, since reasons are not usually given at the leave stage, it is not possible to say with certainty whether or not the Judge that granted leave was rejecting the mootness argument or was merely deciding that the applicant had raised a fairly arguable question which justified judicial review at which time the mootness argument could be considered. For this reason I do not think I can rule out the mootness issue at the judicial review stage of these proceedings.
In this case, a decision very damaging to the applicant is now part of the applicant’s record for immigration purposes. That decision could have an adverse effect on the applicant in any further proceedings he may wish to bring under Canada’s immigration laws. For example, if the applicant wishes to make an application for landed immigrant status in the conventional manner from Trinidad, the immigration officer at the visa office in Trinidad will likely be aware of the August 17, 1992 decision. It is quite conceivable that this decision could have a bearing on the success of the applicant’s application. In these circumstances, a decision decided by reference to the wrong standard of proof and without affording the applicant procedural fairness, could potentially prejudice the applicant in the future.
Counsel for the applicant also argued that nothing precluded the applicant from making another application for exemption from the requirements of subsection 9(1) of the Immigration Act in order to be able to make an application for landed immigrant status from within Canada. Nothing in the Immigration Act would appear expressly to preclude a person who has been deported, from making a later application for exemption from subsection 9(1). While counsel’s suggestion seems to me to involve a somewhat convoluted process and is perhaps impractical, it is not for me to speculate as to the exact circumstances that could give rise to such an application. The deportation of an individual from Canada, while having negative consequences to the individual, does not eliminate all rights that may accrue to him under the Immigration Act. Those rights should not be adversely affected by a decision made by application of the wrong standard of proof and without affording the applicant procedural fairness. I therefore find that this case is not moot.
Even if the case were moot, I would exercise my discretion to decide it. The adversarial relationship between the parties continues. There are collateral consequences to the applicant if the decision appealed from is allowed to stand. And this is not a case in which a decision by this Court could reasonably be considered to be an intrusion into the functions of the legislative branch of government.
As a result, I would quash the decision of Gilles Bibeau dated August 17, 1992, and refer the matter back to a different officer for redetermination of the applicant’s request for exemption from the requirement of subsection 9(1) of the Immigration Act. I do not contemplate that the applicant must be returned to Canada for the purposes of the redetermination. This may be carried out on the basis of written submissions, facsimiles or other communications without the necessity of personal attendance by the applicant.
Pursuant to subsection 83(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19] of the Immigration Act, counsel for the respondent requested that I consider certifying the following question for decision by the Federal Court of Appeal:
Is the reasonable doubt criterion for the bona fides of a marriage set forth in the immigration policy consistent with a proper application of humanitarian and compassionate considerations as set out in subsection 114(2) of the Immigration Act?
In my view this question essentially asks whether proof beyond a reasonable doubt is the proper standard of proof for assessing the bona fides of a marriage for purposes of subsection 114(2) of the Immigration Act. While I am of the opinion that it is quite clear that proof beyond a reasonable doubt is not the proper standard in immigration matters—see for example re: Brooks, Robert Philip (1970), 1 I.A.C. 33 (I.A.B.), at page 62 and Wydrzynski, Canadian Immigration Law and Procedure, 1983, at page 263, no decided cases were identified by counsel for either party at the Federal Court of Appeal level on the question proposed.
The resolution by the Federal Court of Appeal of only the question proposed in favour of the respondent would not be dispositive in this case because of my additional finding of denial of procedural fairness, on which point I have not been asked to certify a question. Initially, it seemed to me that the process contemplated by subsection 83(1) of the Immigration Act assumed that the Federal Court of Appeal would be asked to consider a question only when its resolution would have some practical effect and that the Court would not be asked to consider a question that was of academic interest only. However, on reflection, it appears to me that once a case is to be considered by the Federal Court of Appeal, that Court is not restricted only to deciding the question certified. It may, within its jurisdiction, consider all aspects of the appeal before it. It is therefore not possible for me to be satisfied with certainty that the appeal would be academic. Under the circumstances, I would certify the question as proposed by counsel for the respondent.