Date:
20121116
Docket:
IMM-610-12
Citation:
2012 FC 1222
Ottawa, Ontario,
November 16, 2012
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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ADEL BENHMUDA, AISHA BENMATUG,
AND MUAWIYA BENHMUDA, MOHAMED BENHMUDA, OMAR BENHMUDA
AND ADAM BENHMUDA (by their litigation guardians ADEL BENHMUDA AND
AISHA BENMATUG)
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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AMENDED REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
applicants are a family of six, comprised of the father, Adel Benhmuda, the
mother, Aisha Benmatug, and their four sons. Mr. Benhmuda, Ms. Benmatug and
their two eldest sons, Muawiya and Mohamed, are citizens of Libya. Their two younger children are Canadian citizens, having been born in this country
in 2000 and 2002. The family now resides in Malta and was granted refugee
status in that country in 2010. In this application for judicial review, they
seek to set aside the November 8, 2011 decision of the First Secretary
(Immigration) of the Canadian Embassy in Rome, who denied their application for
permanent resident visas as members of the Convention Refugee Abroad Class and
also dismissed the application they made on humanitarian and compassionate
[H&C] grounds.
[2]
While
the applicants raise several grounds in support of their judicial review
application, only one needs be considered, namely, their claim that the First
Secretary’s decision should be set aside because there is a reasonable
apprehension of bias on her part. For the reasons set out below, I have
determined that there is merit to this claim and, accordingly, the decision
will be set aside and a tailored remedy granted to ensure that the offending
information contained in the respondent’s files is excised and the matter is
remitted to a new decision-maker, who has not been tainted by the circumstances
that give rise to the apprehension of bias. I also find it appropriate to award
the applicants their costs in this matter, because the respondent unduly
prolonged proceedings in not consenting to judgment after the Certified
Tribunal Record [CTR] was filed. Even a cursory look at the CTR should have
indicated that the applicants would be successful in their bias arguments,
given the striking similarity between this case and the decision of the Supreme
Court of Canada in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] SCJ No 39 [Baker].
[3]
Because
my decision turns on the facts – including the lengthy immigration history of
the applicants – they are discussed in detail below.
Background
[4]
The
applicants’ immigration history is over a decade long and contains several
unfortunate chapters.
[5]
In
2000, Mr. Benhmuda, Ms. Benmatug, and their two eldest children, Muawiya and
Mohamed, fled from Libya to Canada and made refuge claims upon arrival. The
claims were based on the activities of Mr. Benhmuda’s brother, who was an
opponent of the Gaddafi regime. While the Refugee Protection Division of the
Immigration and Refugee Board [RPD] accepted that Mr. Benhmuda’s brother was an
anti-Gaddafi activist, it did not accept that this placed Mr. Benhmuda or his
family at risk and rejected Mr. Benhmuda’s evidence as not being credible. The
RPD accordingly dismissed their refugee claims in January 2003. An application
for judicial review of the RPD’s decision was filed, but it was not perfected.
The application was therefore dismissed by this Court on June 13, 2003.
[6]
The
family settled in Toronto, where Mr. Benhmuda found employment as a laboratory
assistant to an optician. (He had worked in his father’s optometry business in Libya.) The family became integrated into their local community. The eldest son, Muawiya,
was diagnosed with muscular dystrophy, which contributed to a learning
disability, and he received accommodations and support at school as well as
medical treatment. The other boys did well in school.
[7]
No
attempts were made to return the applicants to Libya until 2008, when they were
afforded the opportunity to apply for a pre-removal risk assessment [PRRA].
They did so on January 23, 2008. In support of the PRRA application, Mr.
Benhmuda filed a letter from his father in Tripoli, confirming that the Libyan
police were seeking Mr. Benhmuda, a police summons and reports on the detention
of his brother by the Libyan authorities. By decision dated June 10, 2008, a PRRA
officer dismissed the family’s PRRA application, finding that because the
summons did not set out why the authorities were seeking Mr. Benhmuda, it did
not establish that he would be at risk if returned to Libya. The PRRA officer gave no weight to the evidence concerning the Mr. Benhumda’s
brother and minimal weight to the letter from the applicant’s father. The
applicants did not seek to judicially review the decision on their PRRA
application. Nor did they make an H&C application while in Canada.
[8]
Following
the dismissal of the applicants’ PRRA application, the Canada Boarder Service
Agency [CBSA] provided the adult applicants with the forms necessary for CBSA
to renew their Libyan passports. The adult applicants expressed reluctance to
sign the forms as they feared that if CBSA renewed the passports the applicants
would become known to the Libyan authorities as failed refugee claimants and
they would be detained upon arrival in Libya. They instead requested and
obtained the opportunity to themselves renew their Libyan passports. They did
so at the Libyan embassy and the family was deported from Toronto to Tripoli on August 12, 2008.
[9]
The
applicants had hoped that they could board the flight in Canada with their own passports in hand, but CBSA, in accordance with its usual procedure, took the
passports and provided them to the flight crew who, in turn, handed them over
to Libyan customs officials when the flight landed in Tripoli. The family was
detained and questioned for several hours at the airport by the Libyan
authorities, who retained Mr. Benhmuda’s passport. Ms. Benmatug and the
children were released but Mr. Benhmuda was taken to Ain Zara prison where he
was held for several months. Mr. Benhmuda has filed affidavit evidence
indicating that he was subject to repeated torture while incarcerated and that
his jailors were intent on learning what connections he had to opponents of the
Gaddafi regime in Canada. (Mr. Benhmuda states he had no information in this regard.)
[10]
Mr.
Benhmuda was released at the end of December 2008. He was unable to find
employment in Libya, and the family lived with a number of different relatives,
moving from place to place. The children were not able to attend school after
funding for private school ran out, as they spoke little Arabic. Medical care
was not available for Muawiya’s muscular dystrophy in Libya.
[11]
In
June 2009, the Libyan authorities again arrested Mr. Benhmuda and held him for
an additional two months, during which time he states in his affidavit that he
was again interrogated and tortured. Following his release, he learned that the
security police were yet again looking for him so he paid a bribe, obtained his
passport and Schengen Visas for the family (issued by Malta), which allowed for
travel to and throughout the European Union. On January 20, 2010, the family
took a flight to Sweden and, upon arrival, made another refugee claim. On May
10, 2010, however, the family was removed from Sweden to Malta because Malta
had issued them visas and under the so-called “Dublin II Regulation”, EU
Council Regulation (EC) No 343/2003, the applicable EU regulations governing
asylum seekers, their asylum claim was to be adjudicated by the visa-issuing
state.
[12]
In
Malta, the family resided for nearly a year in an open air camp, the Hal Far
Tent Village Open Centre, where they lived in a shipping container, which did
not have running water or cooking facilities. The limited bathroom facilities
(for over 600 refugees) were shared, and Ms. Benmatug and the younger children
could not use the facilities at night due to assaults that occurred there. The
Jesuit Refugee Service, in a letter written on the applicants’ behalf,
described the living condition in the camp as falling “…way below acceptable
standards for dignified living” (Certified Tribunal Record [CTR] at p 175).
[13]
In
light of the conditions in the camp, the torture Mr. Benhmuda suffered and the
family’s attachment to Canada, their counsel sought the intervention of the
respondent, requesting either a Temporary Resident Permit, expedited
resettlement to Canada as Government Assisted Refugees or H&C
consideration. Representatives of the respondent in Ottawa indicated that they
would give consideration to a resettlement request if an official request were
made by the United Nations Commissioner for Refugees [the UNHCR].
[14]
On
December 17, 2012, a Resettlement Officer with UNHRC’s Malta office emailed the respondent’s embassy in Rome to request an opportunity to discuss the
applicants’ situation. A mere eighteen minutes later, Laurent Beaulieu, an
Immigration Officer at the Embassy who was temporarily acting as the section
manager that day, replied by email, indicting that he did not see what could be
done, noting that the applicants had been rejected as refugee claimants in
Canada “after an exhaustive process”. Officer Beaulieu concluded his email by
suggesting that the UNHCR might “wish to look at other options” (CTR at p 222).
[15]
The
UNHCR responded that it had been advised by representatives of the respondent
in Ottawa that resettlement would be considered if a formal request were made
and requested contact information for such a request. The respondent eventually
advised that Officer Beaulieu would be charged with handling the UNHCR’s request.
[16]
On
February 15, 2011, the UNHCR issued a Resettlement Registration form,
requesting that Canada accept the applicants as refugees. Even though the
applicants, by that time, had been granted refugee status in Malta, had been
relocated to an apartment and the children were attending (or, in Muawiya’s
case, slated to attend) Maltese schools, the UNHRC nonetheless submitted that
the applicants did not have a durable solution in Malta, in part due to the
number of refugees that the small country needed to accept and to the
xenophobia the UNHCR claimed existed in Malta towards Muslim immigrants from
North Africa. In the application, the UNHCR suggested that Canada should accept
the resettlement of the applicants by reason of the family’s close ties to
Canada (including the fact that two of the children are Canadian citizens) (see
CTR at pp 118-134 ).
[17]
The
UNHRC emailed the resettlement request to Officer Beaulieu on March 4, 1011. At
that point, the applicants had not yet filed an application for resettlement from
outside Canada as members of the Convention Refugees Abroad Class under section
144 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations]. As is detailed below, these forms were filed in early July
2011, when the respondent required the applicants complete them.
[18]
Email
exchanges between Officer Beaulieu and the respondent's managers in Ottawa and Paris, that occurred between March and July 2011, highlight the tensions
between the visa post in Rome and the respondent's headquarters in Ottawa. In the email exchange Officer Beaulieu also expressed his views on the merits of
the applicants’ applications and clearly indicated they would be rejected.
These statements were made based on incomplete and inaccurate information, were
repeated in several emails from Officer Beaulieu and were made before the
applications were even filed and before the applicants were interviewed.
Officer Beaulieu’s email exchanges were copied to several individuals at the Rome visa post and were contained in the file that the First Secretary considered in
reaching her decision. Because these emails are the central pieces in the
applicants’ bias claim, large parts of the exchanges are reproduced below.
[19]
By
email dated March 18, 2011, Judy Renwick, one of the respondent’s managers at
headquarters in Ottawa, wrote as follows to Officer Beaulieu:
I am writing further to our telephone conversation
of March 1, 2011, concerning Mr. Ben Hmuda [sic] and his family
who, as you know, are to be referred to your office by the UNHCR for
resettlement in Canada.
First allow me to address your concern and clarify
Case Management Branch’s (CMB) involvement in this case. At no time did CMB
indicate to counsel or to the UNHCR, that Citizenship and Immigration Canada
will be facilitating the return of this family to Canada. CMB has always
communicated that the visa office would conduct their assessment of the case.
[…]
We have been advised by the UNHCR that the referral
has been submitted to your office. Could you confirm if it has been received
and a file created?
[…]
(CTR at p 238)
[20]
Officer
Beaulieu replied as follows on March 21, 2011:
[…] Thank you for your message and clarification. We
first heard of this case by phone call from the UNHCR Malta who told us that
someone (never got a name despite frequent inquiries) in CIC had said we would
expedite and return this family to Canada. UNHCR Ottawa and the lawyer are the
ones who are pushing for this family to be returned pronto to Canada. Find this
odd that UNHCR would be involved to make this case a priority with a family who
has been resettled in Malta by Maltese authorities, when there are so many
other urgent cases due to the crisis in the Mag[h]reb.
We received last week a UNHCR Registration Form for
this family but nothing else. The registration form also contains information
you already would have seen from their initial application in Canada, referring
to events in L[iby]a which occurred some time ago prior to the current uprising
against the [Gaddafi] regime. At this point I wish to review what is presented,
though I have some concerns this family has decided they will not accept any
other resettlement country but Canada. I also learned from UNHCR Malta that the
family [was] in Sweden, they tried to enter Sweden but the authorities told
them that since they had already entered the Shengen Zone of the European Union
at Malta, the well known rule is that you make you[r] claim at the first border
point, in this case Malta […] The family returned to Malta, made a new refugee
claim and were accepted. Now Canada is again the focus of their attention and
again according to UNHCR Malta, not finding life in Malta to their liking are
once again trying for Canada.
We also have an email correspondence from Aisha
Benhmuda to Andrew Brouwer where she suggest[s] they go to the media to
pressure CIC, I am concerned with this approach, a form of blackmail.
I do not see what is Canada's obligation this case,
they were heard and the applicant[s] received the attention they deserved. A
decision was made, they returned to L[iby]a and then decided after some time,
on their own, to leave L[iby]a again for Sweden and are now in Malta.
The other issue has to do with the four children, or
at least one of them who appears to have a medical problem that may render him
inadmissible. The two youngest children who are born in Canada are 10 and 8
years old. I note that the initial grouping of this family is 6 persons but the
UNHCR has added the rest of the family (all other relatives living in Tripoli) 16 other individuals.
What this family wants is another refugee claim
hearing from us in the hope that this time they will be successful. Since the
claim was already heard in Canada do not see what mechanism we have here to
re-hear yet again same claim. Also am concerned for the precedent being set,
since the applicant has been resettled by the Maltese authorities, why are we
giving the impression that we are willing to take refugees resettled in safe
countries and resettle them in Canada.
As for your role, we cannot act without instruction
since this case came from Ottawa and CMB is involved. Rome [as] you know does
not have any refugee target […]
(CTR at p 237)
[21]
By
email dated April 12, 2011, Ms. Renwick wrote to Officer Beaulieu that “[w]e
noticed that in your email of March 21, 2011, you expressed concerns that the
family was seeking a review of the claim that was heard before the IRB. However
it is our understanding that the current UNHCR’s referral speaks to persecution
and events which occurred after the family was deported from Canada”. The email continued, noting Officer Beaulieu’s “concerns” regarding the processing
of the case and reassuring him that the decision on the application rested with
the visa post in Rome and not Ottawa. Ms. Renwick attached to her email the
submissions that had been made by counsel for the applicants, which included
several documents that were not before the RPD or the PRRA officer (CTR at p
168). Notable in this regard were a letter from Mr. Benhmuda’s former employer
in Canada, offering him employment in the event he returned to Canada, because
he was “one of [their] best employees (Applicants’ Record at p 87) and a strong
submission from a teacher at the children’s school, who wrote in eloquent terms
regarding the children’s best interests and her knowledge of the family (Applicants’
Record at p 106).
[22]
The
fact that the applicants were relying on facts that were not before the RPD and
were also advancing an H&C application appears to have been ignored by
Officer Beaulieu. On April 20, 2011, he forwarded a case analysis to the
respondent’s office in Ottawa and in his cover email concluded:
Since we do not have an application filled out and
only various summaries about this family, I recommend we not invite them to
apply and inform UNHCR Malta that we will not consider this case. Malta has
offered a solution and has recognized this family according to the information
we have received. I also understand that the family would much prefer to go to
Canada instead. However the long-established princi[ple] remains that refugee
claimants do not get to choose country of resettlement.
(CTR at p 248)
[23]
In
his attached case analysis, Officer Beaulieu wrote as follows:
Both Adel Ben-Hmuda and his spouse Aisha Ben-Matug
who was already in advance state of pregnancy, traveled to Canada as tourists on 4 July 2000 with two children Mohamed and Muawiya.
[…]
The refugee claim was rejected by the IRB, no appeal
was made and all other avenues open to the applicant and his spouse [were]
rejected. The family was removed from Canada on 12 August 2008. The applicant
and his family spent 8 years in Canada at public expense.
[…]
Adel Ben-Hmuda is not happy [or] satisfied with the
asylum provided for him and his family and is seeking to move to Canada and
present yet again another refugee claim based on the same claim presented in
2000, according to information from UNHCR Malta.
[…]
However given that while Adel Ben-Hmuda and his wife
Aisha Ben-Matug [were] in Canada they had two other children, Omar and Adam.
These two children are Canadian Citizens by birth. The family hopes to gain
entry to Canada by using the Canadian Citizenship of these two minor children,
who because of their citizenship could not be considered refugee claimants.
What is also interesting in this case is that the
UNHCR presents this case to us as if the whole family where [were] refugees,
when in fact two members are Canadians and the four others have been resettled
in Malta.
The sole argument made by the family is that they
would prefer to live in Canada. Though if we follow their travels we see that
Sweden was also a chosen option for them until they were told they had to apply
in Malta.
I also note that Adel Ben-Hmuda declares suffering
from diabetes and one son suffers from muscular dystrophy. It is likely that
this family will be in need of social assistance and other social services.
[…]
It should be explained to this family that you
cannot choose a country of asylum and once asylum has been granted, you cannot
start another asylum claim elsewhere.
I recommend we not consider this case given that it
has been settled by Malta. There is no claim for us to consider.
[Emphasis added]
(CTR at pp 249-250)
[24]
Many
of the facts in this analysis are inaccurate. In light of the job offer and the
fact that Mr. Benhmuda had been employed for the majority of the time the
family lived in Canada, there was no basis upon which Officer Beaulieu could
conclude it was likely that the family would be in need of social assistance if
they returned to Canada. Nor had the family remained in Canada for eight years at public expense. Likewise, the family did not pursue all avenues
open to it while they lived in Canada. Notably, judicial review applications
were not pursued and, more importantly, no H&C application was made.
Officer Beaulieu additionally ignored the fact that the family was relying on
circumstances that had not been considered by the RPD and the PRRA Officer,
including the incarceration and torture of Mr. Benhmuda by the Libyan
authorities. The analysis also fails to discuss the applicants’ request for H&C
consideration, the situation in Malta, the family’s ties to Canada and the
children’s best interests. It also contains gratuitous comments, like the
mention that Ms. Benmatug “was already in advance state of pregnancy” when the
family first sought refuge in Canada.
[25]
Ms.
Renwick replied the next day, inquiring as to whether Officer Beaulieu had
consulted with his manager about the case. Officer Beaulieu replied a few
minutes later, noting that they “were just talking about [the] case” when Ms.
Renwick’s email arrived and that “consensus in Rome [was] that [they
would] write to the Head of UNHCR to inform him that [they would] not consider
this case” [emphasis added]. Officer Beaulieu continued as follows in his April
21, 2011 email:
We do not have an application with us at this time.
What we have is a series of documents explaining the case. In reading those
documents it is clear that there is no new claim to examine and that what we
have was examined in Canada years ago and decided upon. It is interesting
to note that UNHCR Malta only approached us after being told by UNHCR Ottawa
that CIC would reconsider the case and was favourably disposed towards the
family. How they came to that conclusion has never been made clear. We are also
aware that the applicant has a lawyer in Ottawa. However this has not swayed
us.
Now Malta is a signatory to the Convention and an EU
member has acc[ep]ted the case and is resettling the family on its territory.
We should also not forget that the family had originally tried to present a
claim to Sweden. The [on]going Civil war in L[iby]a and the support the EU is
now showing for the rebellion and the NATO strikes indicates clearly that the
regime of [Gaddafi] is at an end.
What remains is the fact that Mr. Adel Ben Hmuda
stated that he would prefer to live in any other country than Malta. That of itself is not sufficient to support priority resettlement to Canada. He has
2 children born in Canada and 2 born in L[iby]a, the argument that he should
be resettled in Canada because of [his] 2 Canadian children is not an
overwhelming factor. It is in this case the only factor he presents, as for the
health issues for himself and one other child, Malta has modern facilities like
any other Western European country. Had this been determining factors to begin
with, the family would not have been removed from Canada in the first place.
So given these facts we will send a letter to UNHCR
declining to proceed on this case as per my recommendation in my analysis.
[….]
[Emphasis added]
(CTR at p 246)
[26]
Once
again this email contains factual inaccuracies in that it fails to recognize
that there were several new facts and a new request for H&C consideration
that the applicants wished to advance, which had not previously been ruled
upon.
[27]
The
tug-of-war between Ottawa and the Rome visa post continued. On May 11, 2011,
Ms. Renwick wrote to Officer Beaulieu, noting that representatives in Ottawa
had met with representatives of the respondent in the international region the
preceding week and had “determined that the Ben Humda [sic] family meets
the UNHCR’s criteria for resettlement referral in that they do not have a
durable solution in the EU and they have a connection to Canada”. She continued
by stating that the family also met the requirements of section 150(1)(a) of
the Regulations and requested that Officer Beaulieu open a file and process the
application. She reiterated that counsel for the applicants had been in touch
with the respondent’s Ottawa office to reiterate the family’s request for
H&C consideration in the event they could not meet the requirements of the
Convention Refugee Class and noted that target space to accept government
sponsored refugees could be allocated to Rome, if that were necessary to
facilitate the processing of the application. She concluded her email by
requesting Officer Beaulieu to advise as to the file number he opened to
process the family’s applications (CTR at p 245).
[28]
On
June 16, 2011, counsel for the applicants wrote to the Rome visa post, asking
for an update on the processing of the case and a file number. He also noted
that he had learned from the respondent’s office in Ottawa that the Rome visa post had forwarded forms directly to the adult applicants, for completion (CTR
at p 151). The forms in question were signed by the applicants and forwarded to
the Rome visa post by counsel for the applicants on July 1, 2011.
[29]
After
the case received media attention in Canada, the respondent’s Paris office (to
whom the Rome visa post appears to have reported) became involved, and the
manager of the Paris office wrote to Officer Beaulieu, requesting details about
the case. On July 6, 2011, after having received the applicants’ application
forms a few days earlier, Officer Beaulieu wrote to the manager of the
respondent’s Paris office, noting that he had already explained to Ms. Renwick
that he was going to refuse the case and did not understand all the back and
forth between the respondent in Ottawa and the UNHCR in Malta. The Paris manager replied, noting that Officer Beaulieu was bound to consider the new facts
raised by the applicants as well as the various grounds for admissibility they
were invoking, and directed Officer Beaulieu to ensure that in-depth interviews
were conducted, as they were absolutely required (CTR at pp 278-279).
[30]
Officer
Beaulieu was transferred from Rome in late July and the case was assigned to
the First Secretary for decision. She was newly-arrived at the Rome visa post.
The entire file, including Officer Beaulieu’s emails and analyses, was placed
before her to consider in reaching her decision. She travelled to Malta and
interviewed the applicants at length before writing her decision.
[31]
In
her November 8, 2011 decision, the First Secretary rejected the applicants’
resettlement application because they had been granted refugee status in Malta and found that H&C considerations did not warrant granting an exemption. Much of
her reasoning echoes the comments made by Officer Beaulieu in his various
emails. Notably, she found that:
- The family
had “full access to the benefits and processes of Canada’s refugee
determination system”;
- The
applicants were asylum shopping and based their claim on the fact that they
preferred the conditions in Canada to those in Malta; and
- The
applicants could safely return to Libya following the overthrow of the
Gaddafi regime.
The Issues
[32]
In
light of the foregoing, three issues arise in this case:
1. Do
the applicants have a reasonable apprehension that the First Secretary was
biased in light of the materials in the record that were placed before her?
2. If
so, what is the appropriate remedy?
3. Should
the applicants be awarded their costs, which is unusual in a judicial review
application in the immigration context?
Reasonable
Apprehension of Bias
[33]
The
applicants submit that the test for a reasonable apprehension of bias is set
out in Committee for Justice and Liberty v National Energy Board, [1978]
1 SCR 369, where Justice de Grandpré states that the test involves asking “what
would an informed person, viewing the matter realistically and practically – and
having thought the matter through – conclude. Would he think that it is more
likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly” (at para 44). The applicants further
argue that, as in Baker (cited above at para 2), a reasonable
apprehension of bias arises here given the comments made in Officer Beaulieu’s
notes, which contain multiple indications that Officer Beaulieu had prejudged
the case, based on inadequate and inaccurate information and the fact that
these notes were placed before the First Secretary.
[34]
The
respondent, on the other hand, argues that the formulation of the test for a
reasonable apprehension of bias has been articulated in the context of visa
officers to require only a lack of conflict of interest and a “mind that is
open to persuasion”, citing in this regard Au v Canada (Minister of
Citizenship and Immigration), 202 FTR 57,
[2001] FCJ No 435 [Au] and Horvat v Canada (Minister of Citizenship and Immigration), 2003 FCT 262, [2003] FCJ No
354.
The respondent argues that application of this test results in a determination
that the First Secretary was not biased because she conducted interviews of the
applicants and there is no evidence that she (as opposed to Officer Beaulieu)
had prejudged the case.
[35]
In
my view, this case is on all fours with Baker and, indeed, bears a
striking similarity to many of the facts in that case. There, an officer, who
was someone other than the officer who had decided Ms. Baker’s H&C
application, compiled notes that the decision-maker reviewed before rendering
the decision. These notes concluded that Ms. Baker would be a “tremendous
strain” on the Canadian social welfare system for the rest of her life and
mentioned her psychiatric condition, limited skills and training and number of
children she had, using capital letters at several points for emphasis. The
conclusion stood in contrast to the evidence that Ms. Baker had filed from her
treating psychiatrist, which indicated that she was recovering from her illness
and might be able to work in the future. Justice L’Heureux-Dubé held that the
duty to act fairly and in a manner that does not give rise to a reasonable
apprehension of bias applies to all immigration officers involved in the
handling of an application, who play a significant role in the making of
decisions. Thus, notes from the officer that were considered by the
decision-maker could – and did – give rise to a reasonable apprehension of
bias. Justice L’Heureux-Dubé concluded that a well-informed member of the
community would perceive bias when reading the notes in Baker, which
seemed to link Ms. Baker’s mental illness, her training as a domestic worker
and the fact she had a number of children with the conclusion that she was
likely to be a strain on the social welfare system. Because this conclusion was
contradicted by the evidence, she found there to be a reasonable apprehension of
bias.
[36]
An
identical conclusion must be drawn in this case. Here, Officer Beaulieu clearly
prejudged the applicant’s claims, jumping to conclusions before he had even
received a formal application. Moreover, his conclusions were based on
inaccurate information. Thus, his lack of objectivity is even more striking
than was the case with the author of the notes in the Baker case. In
addition, Officer Beaulieu’s emails reflect a similarly troubling tone and lack
of objectivity, evidenced, for example, by his needless comments regarding Ms.
Benmatug’s pregnancy and the comments regarding the number of members of the
applicants’ extended family in Libya. Moreover, as in Baker, the
documents Officer Beaulieu authored were considered by the decision-maker. And,
indeed, one of the offending emails indicated that the entire Rome visa post
had reached the conclusion that the applications were to be dismissed, before
they had even been submitted. As in Baker, it is my view that a
reasonable, well-informed member of the community would perceive bias in
reading Officer Beaulieu’s emails and therefore have a reasonable apprehension
that the First Secretary did not have a mind that is open to persuasion, to use
the terminology from Au and Horvat. This apprehension is not undone
by the fact that the First Secretary conducted interviews of the applicants.
Rather, a fair-minded person would believe that she had prejudged the case,
through her reading of the file and making of several conclusions that are very
similar to those reached by Officer Beaulieu. Accordingly, a reasonable
apprehension of bias has been shown to exist, and the decision of the First
Secretary must be set aside.
Remedy
[37]
The applicants request that in the event I find a reasonable
apprehension of bias, I order that all Officer Beaulieu’s notes, emails in
which he expresses an opinion and other similar analyses be stripped from the
file and the matter be remitted to a visa post other than Rome, for fresh
consideration by individuals who have not previously been involved in
considering the file. The applicants also request that, given the passage of
time, the nature of the application, and the events the applicants have
endured, I order that the re-determination be conducted within 90 days or
otherwise provide for ongoing supervision by the Court of the re-determination
to ensure it is completed expeditiously.
[38]
While not contesting the propriety of expunging the
offending materials from the file, before the re-determination is conducted (if
one is ordered), the respondent argues that there is no need to referred the
file to visa post other than Rome, arguing that it moves individuals between
posts frequently and that, were I to order the file transferred to visa post
other than Rome, it is not inconceivable that Officer Beaulieu might be
involved in the re-determination. As for the applicants’ request for a time
limit on the re-determination, counsel for the respondent objected to the same
as she was not in a position to advise how long a re-determination might reasonably
require.
[39]
Given the comments in one of Officer Beaulieu’s emails,
which noted that the entire Rome visa post had concluded that the applications
should be denied (well before the applications were actually filed) and the
fact that his emails were copied to several others at the Rome visa post, in
order to ensure a fair re-determination, I believe the file must be remitted
for fresh consideration at a visa post other than Rome. The respondent’s
concerns, regarding inadvertently involving Officer Beaulieu, can be addressed
by ensuring that the file is not sent to the visa post to which Officer
Beaulieu has been transferred.
[40]
As for the request that the matter be re-determined on an
expeditious basis within a stipulated time period, counsel for the respondent
ought to have been prepared to deal with this request during the hearing of
this application, as a request for this remedy was clearly set out by the
applicants in their Further Memorandum of Fact and Law. Thus, counsel’s
inability to provide the Court with information regarding how long the
respondent might need in order to conduct a re-determination is no reason for
denying the applicant’s request. In the absence of any evidence or argument from
the respondent regarding the reasonableness of the 90-day time period, I have
ordered that the re-determination be conducted within 90 days, leaving open the
possibility that the respondent may apply to the Court for an extension, in the
event it is impossible for it to meet a 90-day deadline.
Costs
[41]
Pursuant to Rule 22 of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22,
special reasons are required before costs may be awarded in an immigration
application for judicial review. Such special reasons have been
held to include situations where one party has unreasonably prolonged
proceedings or acted in an oppressive or improper manner or in bad faith (Johnson
v Canada (Minister of Citizenship and Immigration), 2005 FC 1262 at para 26
[Johnson]; Ndererehe v Canada (Minister of Citizenship and Immigration),
2007 FC 880 at para 29). The respondent relies on Johnson to argue that
costs should not be awarded against it. In that decision, Justice Dawson
declined to award costs because, although the decision of the RPD was perverse,
the respondent consented to the decision being set aside “on a timely basis”
after the CTR was delivered. The respondent would have been well-advised to
adopt a similar approach in this case, as, in my view, the case’s outcome was a
foregone conclusion, given the striking similarity between it and Baker.
Moreover, while there is no evidence of bad faith on the respondent's part,
Officer Beaulieu did behave improperly in prejudging the applicants’
applications and in basing his recommendations on a fundamental misapprehension
of the facts before him. Accordingly, the applicant shall have their costs in
the lump sum amount of $5000.00 which I have determined is a reasonable amount,
with reference to the amounts awarded in somewhat similar circumstances in Ndererehe
v Canada (Minister of Citizenship and Immigration), 2007 FC 880.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is granted and the decision of the First
Secretary (Immigration) in Rome, made on November 8, 2011 is set aside;
2.
The
respondent shall forthwith remove from its files all of Officer Beaulieu’s emails
and analyses in which he expresses any opinion on the merits of the applicants’
applications, any similar analyses or expressions of opinion contained in the
applicants’ files and the First Secretary’s November 8, 2011 decision;
3.
The
applicants’ applications for permanent resident visas as members of the
Convention Refugee Abroad Class and for H&C consideration shall be remitted
to a visa office, other than Rome, where Officer Beaulieu is not employed. The
Officer to whom the applications are submitted for re-determination shall have
had no previous involvement in the applicants’ files;
4.
The
applicants shall be afforded the opportunity to file additional evidence and to
make additional submissions for consideration on the re-determination regarding
any new matters that may have arisen since July 2011;
5.
The
respondent shall complete the re-determination as expeditiously as possible and
in any event within no later than 90 days following the date of this decision.
If it is impossible for the respondent to do so, it may apply to this Court for
an extension of the 90-day time limit;
6.
No
question of general importance is certified. No question was proposed for
certification and none arises in this case as my decision is closely tied to
the facts;
and
7.
Costs
are fixed on a lump sum basis in the amount of $5000.00, inclusive of fees,
disbursements and HST, to be paid by the respondent to the applicants.
"Mary J.L.
Gleason"
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