Saturday, April 23, 2011

Pusat–procedural fairness and disclosure in inadmissibility

Pusat v. Canada (Citizenship and Immigration), 2011 FC 428

Judge: Justice Mosley

Date heard: January 24, 2011

Date decided: April 7, 2011

Counsel for Pusat: Lorne Waldman

Counsel for the Minister: John Loncar

The applicant was an Alevi Kurd who applied oversees as a member of the family class. His wife was a Canadian permanent resident who had been granted refugee status some years before and was attempting to sponsor her husband (paras. 1-4).

The applicant was interviewed at the Canadian embassy in Ankara in September 2007:

The interview focused on whether he qualified as a member of the family class, but did briefly discuss his admissibility. The applicant explained that though he supports some of the PKK’s goals, he does not support the PKK because he did not believe in violence. (para. 4)

The application was dismissed on the basis that the applicant was inadmissible as a member of the PKK. The applicant brought a judicial review (IMM-5482-09), which was settled when the Minister agreed to re-determine the application (para. 5).

Another interview was scheduled at the Ankara embassy for April 2010. The applicant’s counsel in Canada repeatedly requested disclosure from the Minister, to no avail; however, the CAIPS notes contained a notation that the applicant was advised a day before the interview and told that the interview was related to inadmissibility (para. 6).

At the second interview, the applicant admitted to being involved with PKK advocacy activities in Switzerland (and that he had lived there), but stated that any involvement with the PKK was due to social pressure. He reiterated his abhorrence of violence and his non-membership, and that he had not been involved with the PKK in Turkey. The applicant’s counsel was not allowed to make submissions following the interview, and the decision was made the next day (paras. 7-8).

The Certified Tribunal Record (CTR) contained redacted information, and the Respondent filed a motion under s. 87 to maintain the confidentiality of that information. On the basis that neither the Court nor the Respondent would seek to rely on the redacted information, the redactions were not challenged (para. 9).

The FC decision was made on the basis of the breach of procedural fairness, and none of the other grounds alleged (para. 12).

The breaches of procedural fairness cited by the applicant were the failure to disclose the basis of the allegation of membership prior to the interview, and the failure to give an opportunity to respond with submissions after the interview (paras. 15-16). The judge rejected the Minister’s submission that the phone call prior to the interview, in combination with the knowledge arising from the previous case, comprised sufficient disclosure:

The record is clear that the respondent did not reply to the communications from counsel and did not provide any meaningful disclosure before the interview, notwithstanding that the application was sent back on consent to be reconsidered for that reason. The respondent' s attempt to rely on the CAIPS notes as evidence that he was informed of the purpose of the interview by a telephone call from someone, presumably an administrative assistant at the Embassy, two days prior to the event, is misplaced. There is no affidavit evidence from the assistant to verify the facts stated in the CAIPS notes. (para. 19)

While acknowledging that the content of procedural fairness must be assessed on a case-by-case basis, Justice Mosley found that there were documents that had clearly influenced the decision, contained in the CTR, which ought to have been disclosed to the applicant prior to the interview.

Citing Mekonen v. Canada (Minister of Citizenship and Immigration), 2007 FC 1133 (which cites Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.), and Canada (Minister of Citizenship and Immigration) v. Bhagwandass, 2001 FCA 49), Justice Mosley found that this was a case where procedural fairness required the evidence to be disclosed and the applicant given a meaningful opportunity to respond to it (paras. 21-32).

Justice Mosley also rejected the Minister’s submission that, having found a breach of procedural fairness, the court ought not to grant a remedy on the doctrine of “no useful purpose” as expressed in Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 SCR 202 (para. 33). He found that the question was still live and that the inadmissibility decision was not inevitable (para. 34).

Sapru–adequate reasons in medical inadmissibility

Sapru v. Canada (Citizenship and Immigration), 2011 FCA 35

Panel: Dawson J.A., Layden-Stevenson J.A., Stratas J.A.

Date heard: December 14, 2010

Date decided: February 1, 2011

For the Appellants: Cecil Rotenberg, Q.C.; Mario Bellissimo

For the Minister: Lorne McClenaghan

The reasons were written by Dawson J.A.. The case was an appeal from 2010 FC 240, wherein the following questions were certified by Justice Mosley:

a.         When considering whether a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, is a Medical Officer obligated to actively seek information about the applicants' ability and intent to mitigate excessive demand on social services from the outset of the inquiry, or is it sufficient for the Medical Officer to provide a Fairness Letter and rely on the applicants' response to that letter?

b.         Is a Medical Officer under a duty to provide adequate reasons for finding that a person is inadmissible on health grounds pursuant to paragraph 38(1)(c) of the Act, which is independent from the Visa Officer's duty to provide reasons and which is therefore not satisfied by the Visa Officer providing reasons that are clearly adequate?

The background was the immigration application of a family from India consisting of a principal applicant engineer, his wife, a pediatrician, and their two children, including Rishi (8 years old). As usual, the family had to undergo medical examinations prior to approval, with the following result:

The Medical Officer determined that Rishi suffers from developmental delay, including psychomotor delay and delay in speech development. At age 8, he had a mental age of 4 years and an I.Q. between 60 and 65. The Medical Officer determined that Rishi is likely to require a variety of social services in Canada. She provided detailed reasons for reaching these conclusions. (FC decision, para. 4)

A “fairness letter” was sent to the applicants advising of the above conclusion and offering the applicants an opportunity “to provide additional information on Rishi’s medical condition, social services required, and/or ‘your individualized plan to ensure that no excessive demand will be imposed on Canadian social services for the entire period indicated above and your signed Declaration of Ability and Intent.’”* (FC decision, para. 5)

Dr. Sapru, Rishi’s mother, responded by challenging the findings on the severity of his condition (para. 9) and the social services he would require (para. 10). She also submitted an education plan (private school at the family’s expense with additional support from his mother who would not be able to practice in Canada and would therefore be free to concentrate on Rishi), and an agreement to indemnify the province of Ontario against any services used for five years (para. 10) as well as other supporting documentation. These submissions were assessed by the medical officer (MO) and the immigration officer (IO) as follows:

The Fairness Response was sent to the medical officer for review and consideration.  A Procedural Fairness assessment was then completed by the medical officer and sent to the immigration officer.  In the Procedural Fairness assessment the medical officer listed the additional documents she had reviewed in the Fairness Response.  She then wrote:

[“]I have reviewed our medical file for the above-named Foreign National along with the additional material listed above and it is my opinion that no information has been provided which would indicate that the original immigration medical assessment was incorrect.  Therefore there is insufficient evidence to support a change or re-evaluation of this Foreign National’s medical assessment at this time.  Hence remains M5.[”]

The tribunal record contains no letter, note, e-mail or other writing that explains how the medical officer analysed the information provided in the Fairness Response or her basis for concluding that the Fairness Response contained no information that would lead the medical officer to the view that her original assessment was incorrect. (paras. 12-13)

The FC found that the MO had no obligation “to make any inquiries into the applicants' ability and intent to offset any excessive demand.” (FC decision, para. 35) Furthermore, the MO’s reasons in response to the fairness submissions were inadequate but “the inadequacy of the medical officer's reasons was saved by the detailed reasons of the immigration officer.” (FC decision, paras. 37-42)

The FCA agreed with Justice Mosley on the issue of inquiring into the applicant’s ability to offset excessive demand:

The Judge dealt with this submission at paragraph 35 of his reasons where he wrote:

[“][…] The applicants are in the best position to provide evidence of their ability and intent, and they are given a fair opportunity to do so in the Fairness Letter. There is no reason that a Medical Officer should have to make an inquiry at an earlier stage, as long as she considers any Fairness Response carefully and with an open mind.[”]

In my view the Judge was correct, for the reasons that he gave.  I would add one cautionary note.  The Judge’s conclusion was premised on the basis that the Fairness Letter gives an applicant “a fair opportunity” to respond to any concerns.  This requires the Fairness Letter to set out clearly all of the relevant concerns so that an applicant knows the case to be met and has a true opportunity to meaningfully respond to all of the concerns of the medical officer. (paras. 30-31)

The FCA then turned to the question of the adequacy of the reasons from the MO.

Having reviewed the legislation and the case law, the FCA held that “it follows from the obligation placed on an immigration officer to review the reasonableness of a medical officer's opinion that a medical officer must provide the immigration officer with sufficient information to enable the immigration officer to be satisfied that the medical officer's opinion is reasonable.” (para. 41)

The FCA also noted that different fact scenarios might give rise to an adequate opinion from the MO, including where the applicant’s responses did not call for further comment from the MO; where the MO issues a report to the IO; where advice is given orally (as long as that communication is adequately recorded, e.g. in CAIPS notes); or where the IO asks questions of and receives a response from the MO which is likewise documented (para. 42).

However, the main point was that the IO’s assessment, however complete it appears, must be based on the MO’s assessment; therefore the IO’s reasons cannot “repair” the inadequacy of the MO’s reasons (para. 54).

The FCA also held that the FC erred in its reliance on the MO’s affidavit, in particular the MO’s statement in the affidavit “that she had considered the applicants’ ability and intent to manage Rishi’s needs.” (para. 50) This information was not before the IO, and was bolstering as found to be of no weight in Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness),2008 FCA 255 (para. 52).


* See Operational Bulletin 063 for information on the declaration, which is a formal undertaking detailing the applicant’s willingness and ability to mitigate the excessive cost on social services.