César Nguesso v. Canada (Citzenship and Immigration)

César Nguesso v. Canada (Citzenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2015-07-17
Neutral citation
2015 FC 880
File numbers
IMM-4821-14
Decision Content
Date: 20150717
Docket: IMM-4821-14
Citation: 2015 FC 880
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 17, 2015
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
WILFRID GUY CÉSAR NGUESSO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision rendered on April 14, 2014, by the Acting Associate Assistant Deputy Minister (the Deputy Minister), in which he refused an application for a temporary resident permit (TRP) by Wilfrid Guy César Nguesso (the applicant).
I. Background [2] The applicant is a citizen of the Republic of the Congo. He has been married to a Canadian citizen since 1999, and the couple has six children, all of whom are Canadian citizens. During the relevant period, four of the six children lived in Canada with their mother. The applicant is also a resident of France, where he holds a residency permit that is valid until 2022.
[3] On December 27, 2006, the applicant filed an application for permanent residence under the family class, including a sponsorship application by his wife, with the Immigration Section of the Canadian Embassy in Paris (the Immigration Section). After a long process that I do not need to describe in detail for the purposes of this decision, the applicant’s permanent residence application was refused by an immigration officer on December 20, 2013. At the end of that decision, the applicant was found to be inadmissible on grounds of organized criminality under paragraph 37(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), and his permanent residence application was refused.
[4] Between 2003 and 2014, the applicant obtained several multiple-entry temporary resident visas (TRVs). However, following the determination of the applicant’s inadmissibility and the refusal of his permanent residence application, his TRV, which was valid until September 29, 2014, was cancelled.
II. TRP application [5] On February 20, 2014, the applicant applied for a TRP under section 24 of the IRPA to visit his family in Canada despite his inadmissibility.
[6] The issuance of a TRP is governed by subsection 24(1) of the IRPA, which reads as follows:
24. (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
24. (1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que les circonstances le justifient, un permis de séjour temporaire — titre révocable en tout temps.
[7] In support of his application, the applicant filed several affidavits, including one sworn by his wife. The application was primarily based on the special needs of the applicant’s wife and their two youngest children and the absence of risk posed by the applicant to Canadian citizens.
[8] In her affidavit, the applicant’s wife, who is a pastor and student at Acadia University in evangelical theology, declared that the applicant had intended to visit them from January 18, 2014, until April 2015, and when his permanent residence application was refused, she had to cancel her winter semester. She also stated that she suffered from [translation] “thyroid”, indicating that she took medication daily and had to avoid stress because of her condition. The applicant’s wife filed a note from her physician in which he affirmed that she was undergoing treatment for a type of hypothyroidism.
[9] The applicant’s wife also stated that her husband’s presence and assistance were necessary for both her children and herself. She indicated that the two youngest children, twins, particularly needed their father’s support and authority, since one of them has functional challenges requiring occupational therapy, while the other is agitated and sometimes aggressive, requiring the services of a child psychiatrist. The applicant filed an occupational therapy evaluation report for one of the children in which the occupational therapist noted fine motor difficulties and recommended occupational therapy to develop the child’s motor skills and coordination. With respect to the second child, the applicant filed correspondence with school teachers indicating that his conduct in the classroom was disturbing and recommending psychological counselling. At the time the applicant’s wife filed the affidavit, they were waiting for an appointment with a child psychiatrist.
[10] The applicant also filed affidavits sworn by his wife’s sister and cousin. They stated that the twins were quite hyperactive and that only the applicant was able to calm them down.
[11] The applicant also filed a certificate from the Congolese police attesting that he had no criminal charges or convictions. He also stated in his TRP application that his previous stays in Canada had always been lawful and that he posed no risk to the health and safety of Canadians.
III. Processing of application and decision A. Processing of TRP application [12] The TRP application was initially handled by Rénald Gilbert, a Minister-Counsellor with the Immigration Section.
[13] On March 13, 2014, Mr. Gilbert sent an email to the Case Management Branch in Ottawa in which he summarized the applicant’s file and recommended that the TRP application be refused. The email was accompanied by various documents, including the decision of December 20, 2013, refusing the applicant’s permanent residence application and the notes taken by the immigration officer during the interview with the applicant on September 25, 2012. The content of this email was entered into the Global Case Management System (GCMS notes) on March 13, 2014.
[14] The file was then reviewed by an officer from the Case Management Branch, who prepared a report dated April 11, 2014, that contained a recommendation for the Deputy Minister. The Case Management Branch recommended the refusal of the applicant’s TRP application on the ground that the humanitarian and compassionate considerations, particularly those involving the best interests of the children, did not constitute sufficient and compelling reasons to allow the applicant to enter Canada.
[15] The Case Management Branch considered the fact that the applicant alleged that his presence in Canada was indispensible to his family life, mainly because of the difficulties of his wife and two youngest children, but no medical, psychological or other evidence was filed in support of these allegations. It also noted that the applicant had not lived with his wife and their four children for about eight years and that he had not submitted any evidence of his continued involvement with the family when outside of Canada. It concluded that it was unlikely that the applicant’s presence was indispensible to his family life.
[16] The Case Management Branch also found nothing in the file to indicate that it would be impossible for the applicant’s four children residing in Canada to visit the applicant in France. In response to the applicant’s argument that he would not be able to see his children outside of school vacations, it noted that he had provided no justification in support of this. The Case Management Branch recognized that it was more difficult for young children to travel, but not impossible, and that a TRP was justified by exceptional circumstances, not by convenience.
[17] The Case Management Branch concluded that a review of the circumstances did not support a finding that there were sufficient and compelling reasons to authorize the issuance of a TRP. It added that refusing to issue a TRP in the circumstances was consistent with the IRPA’s objective of promoting international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminal or security risks, as set out in paragraph 3(1)(i).
[18] The last section of the report contains two statements for the decision-maker. The Deputy Minister checked the box next to the following statement: [translation] “I have reviewed all of the documents before me and decided not to issue a temporary permit to Mr. Nguesso.” The Deputy Minister signed the recommendation report on April 14, 2014.
B. Impugned decision [19] In a brief letter, the Deputy Minister informed the applicant that his TRP application had been refused because the grounds were inadequate.
[20] The GCMS contains the notes entered by the Deputy Minister on April 16, 2014, which set out his reasons.
[21] The Deputy Minister emphasized at the outset that the issuance of a TRP is a discretionary tool that allows a person to enter Canada who is otherwise inadmissible and that it is used in exceptional circumstances. He noted that the application was based entirely on the best interests of the applicant’s children.
[22] He indicated that the applicant had cited medical and psychological reasons involving his wife and children, but he judged that the applicant had provided no information or independent assessments in support of his allegations. He added that nothing indicated that the problems at issue were related to separation from the father.
[23] The Deputy Minister added that living in two different countries seemed to be the family’s choice and that the applicant seemed to travel frequently.
[24] The Deputy Minister raised the applicant’s assertion that if he did not obtain the TRP, he would be limited to seeing his children during school vacations. He found that even if it could be desirable to preserve the traditional family unit, more and more families are living in different countries and this model seems to have been chosen by the applicant’s family. He found that the applicant’s family could go visit him in France, that flights between Quebec and France were frequent and that the applicant seemed to have the means to allow his family to travel to France regularly. He added that the applicant’s family would find itself in a situation similar to that experienced by many families and that the refusal to issue a TRP would not result in the family’s permanent or definitive separation.
[25] He concluded that in light of the serious allegations against the applicant involving his inadmissibility, the exceptional nature of the issuance and the thorough review of the file, including a careful review of the recommendation that had been submitted to him (dated April 11, 2014), he considered that the best interests of the children did not overcome the applicant’s inadmissibility.
C. Disclosure of reasons for decision [26] The application for leave and judicial review of this decision was filed on June 13, 2014, and it included an application under Rule 9 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, to obtain the reasons for the decision.
[27] On June 26, 2014, an immigration officer sent the applicant a copy of the notice of the Deputy Minister’s decision, with which she enclosed the GCMS notes and indicated that these notes formed part of the reasons for the decision. The excerpt from the GCMS contained the notes of April 16, 2014, reporting the reasons for the Deputy Minister’s decision and the email of March 13, 2014, sent by Mr. Gilbert to the Case Management Branch. However, the Case Management Branch’s recommendation of April 11, 2014, which the Deputy Minister had signed, was not among the documents sent to the applicant. This recommendation was sent to the applicant on July 21, 2014, after his counsel pushed to obtain it.
IV. Issues [28] This application for judicial review raises the following issues:
1. Was procedural fairness observed?
2. Did the decision-maker make errors of law that warrant this Court’s intervention?
3. Was the Deputy Minister’s decision reasonable?
V. Applicable standards of review [29] The standard of review applicable to cases of procedural fairness is correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339; Mission Institute v Khela, 2014 SCC 24 at para 79, [2014] 1 SCR 502). The question in this case is not so much whether the decision is correct as whether the process followed by the decision-maker was fair (Majdalani v Canada (Minister of Citizenship and Immigration), 2015 FC 294 at para 15, [2015] FCJ No 459; Krishnamoorthy v Canada (Minister of Citizenship and Immigration), 2011 FC 1342 at para 13, [2011] FCJ No 1643 [Krishnamoorthy]; Pusat v Canada (Minister of Citizenship and Immigration), 2011 FC 428 at para 14, [2011] FCJ No 541).
[30] As for the Deputy Minister’s interpretation of section 24 of the IRPA, I am of the view that it should be reviewed on a standard of reasonableness.
[31] The Deputy Minister had to interpret the phrase “if an officer is of the opinion that it is justified in the circumstances” found at subsection 24(1) of the IRPA, a provision of his own statute, with which he has particular familiarity. In Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at paras 49-50, [2013] 2 SCR 559 and Canadian National Railway Co. v Canada (Attorney General), 2014 SCC 40 at paras 55-62, [2014] 2 SCR 135, the Supreme Court applied the presumption that the standard of reasonableness applies to questions involving the interpretation of the decision-maker’s own statute or statutes closely connected to its functions in non-jurisdictional contexts. In this case, there is no indication that the presumption should be ousted. The Deputy Minister had to render a highly discretionary decision, which involved interpreting a provision with which he is deeply familiar.
[32] The Deputy Minister’s assessment of the circumstances raised by the applicant in support of his TRP application is reviewable on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 51, [2008] 1 SCR 190 [Dunsmuir]). It is well established that issuing a temporary resident permit is a highly discretionary act that justifies the application of the standard of reasonableness (Martin v Canada (Minister of Citizenship and Immigration), 2015 FC 422 at paras 23-24, [2015] FCJ No 438 [Martin]; Alvarez v Canada (Minister of Citizenship and Immigration), 2011 FC 667 at para 18, [2011] FCJ No 839; Afridi v Canada (Minister of Citizenship and Immigration), 2014 FC 193 at para 16, [2014] FCJ No 194 [Afridi]; Shabdeen v Canada (Minister of Citizenship and Immigration), 2014 FC 303 at para 13, [2014] FCJ No 327 [Shabdeen]; Marques v Canada (Minister of Citizenship and Immigration), 2010 FC 376 at para 20, [2010] FCJ No 424 [Marques]; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 784 at para 9, [2008] FCJ No 985 [Ali]; Nasso v Canada (Minister of Citizenship and Immigration), 2008 FC 1003 at para 12, [2008] FCJ No 1248 [Nasso]).
[33] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir at para 47).
VI. Analysis A. Procedural fairness [34] The applicant raises three specific breaches of procedural fairness: the failure to disclose the recommendations of March 13, 2014, and April 11, 2014, before the decision was rendered; the failure to disclose the Canada Border Services Agency (CBSA) report of November 1, 2012, before the decision was rendered; and a biased approach that raises a reasonable apprehension of bias.
(1) Non-disclosure of CBSA’s internal recommendations and report [35] I will begin by addressing the failure to disclose the CBSA’s internal recommendations and report.
[36] The applicant submits that in this case, he was entitled to a high degree of procedural fairness because of the significant consequences for himself and his family of the Deputy Minister’s refusal to issue him a TRP. He submits that the factors in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193 [Baker], militate in favour of more rigorous procedural protections. More particularly, he invokes the importance of the decision for the persons involved, the lack of a right of appeal and the legitimate expectations created by section 8 of the OP1 Manual. He notes that this decision prevents him from visiting his wife and children in Canada and providing them with the support they need, forcing them to leave Canada to see him.
[37] The respondents, on the other hand, submit that a decision-maker’s obligations with respect to procedural fairness in the context of processing a TRP application are at the lower end of the procedural fairness spectrum since the proceedings are not adversarial, the decision is highly discretionary and the consequences of the decision for the family are attenuated by the family’s considerable mobility and wealth. The respondents submit that the fact that TRP applications must be processed quickly should also be kept in mind.
[38] In Baker, at paragraphs 21 and 33, the Supreme Court of Canada recalled that the content of the duty of fairness is variable, flexible and needs to be decided in context. At paragraph 30, the Court noted that “[a]t the heart of this analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly.” The Court did not dictate the content of the duty of fairness, but it identified guidelines for determining the scope of the duty in a given context. They are summarized in Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48, [2004] 2 SCR 650 at para 5:
The content of the duty of fairness on a public body varies according to five factors: (1) the nature of the decision and the decision-making process employed by the public organ; (2) the nature of the statutory scheme and the precise statutory provisions pursuant to which the public body operates; (3) the importance of the decision to the individuals affected; (4) the legitimate expectations of the party challenging the decision; and (5) the nature of the deference accorded to the body: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. . . .
[39] I find that the circumstances in this case militate in favour of an obligation of fairness that is somewhat higher than the lowest end of the spectrum, but lower than that applicable to decisions involving a danger opinion or a declaration of inadmissibility.
[40] The decision as to whether to issue a TRP is highly discretionary, and the onus is on the applicant to demonstrate the circumstances that would justify it. Moreover, in some circumstances, decisions about TRP applications must be rendered quickly, and the consequences are not permanent. These factors suggest a less stringent duty of fairness.
[41] I find the comments of Justice Evans in Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345 at para 32, [2001] FCJ No 1699, made in the context of a visa application, equally applicable to TRPs:
32 Finally, when setting the content of the duty of fairness appropriate for the determination of visa applications, the Court must guard against imposing a level of procedural formality that, given the volume of applications that visa officers are required to process, would unduly encumber efficient administration. The public interest in containing administrative costs and in not hindering expeditious decision-making must be weighed against the benefits of participation in the process by the person directly affected.
[42] However, the particular context of this case militates in favour of more than a minimal degree of fairness because of the impact of the refusal of a TRP on the applicant’s family, which is the impossibility for the applicant to enter Canada to visit his wife and children. This is somewhat attenuated by the family’s mobility, the applicant’s financial means and the fact that the refusal to issue a TRP does not result in the definitive separation of the family. Furthermore, the applicant can always submit new TRP applications.
[43] The Court has dealt with several cases in which the alleged breaches of procedural fairness involved, as with this case, the failure to disclose documents or information before the decision was rendered.
[44] In Haghighi v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407 at paras 26-28, [2000] FCJ No 854 (CA) [Haghighi], the Federal Court of Appeal had to determine whether an immigration officer processing a humanitarian and compassionate application based in part on a fear of persecution had violated procedural fairness by failing to disclose a pre-removal risk assessment report prepared by another officer. The Court favoured an approach that took into account various elements such as the nature of the decision and the possible impact of the document at issue on the decision to determine whether its disclosure was required to enable the applicant to participate in a meaningful manner in the decision-making process.
[45] The Federal Court of Appeal was again invited to consider the duty to disclose certain documents before a decision was rendered in Bhagwandass v Canada (Minister of Citizenship and Immigration), 2001 FCA 49, [2001] 3 FC 3 [Bhagwandass], but this time in the context of a public danger opinion. The documents at issue, which had not been disclosed, were internal reports prepared by public servants that included an analysis of the file and a negative recommendation to the Minister. The Court addressed the Haghighi principles and emphasized the adversarial nature of the procedure for issuing a public danger opinion:
22 Haghighi also establishes that, in considering whether the duty of fairness requires advance disclosure of an internal Ministry report on which a decision maker will rely in making a discretionary decision, the question is not whether the report is or contains extrinsic evidence of facts unknown to the person affected by the decision, but whether the disclosure of the report is required to provide that person with a reasonable opportunity to participate in a meaningful manner in the decision-making process. The factors that may be taken into account in that regard may include the following: (i) the nature and effect of the decision within the statutory scheme, (ii) whether, because of the expertise of the writer of the report or other circumstances, the report is likely to have such a degree of influence on the decision maker that advance disclosure is required to “level the playing field”, (iii) the harm likely to arise from a decision based on an incorrect or ill-considered understanding of the relevant circumstances, (iv) the extent to which advance disclosure of the report is likely to avoid the risk of an erroneously based decision, and (v) any costs likely to arise from advance disclosure, including delays in the decision-making process.
. . .
31 Finally, the Crown argues that the danger opinion procedure is not adversarial and for that reason the Minister’s duty of fairness fall at the low end of the spectrum. I cannot accept this argument. It seems to me, on the contrary, that the danger opinion procedure adopted by the Minister suggests the need for a higher standard of fairness than for subsection 114(2) decisions. That is because the procedure is adversarial from the outset and remains so until its conclusion. The procedure in this case began with the letter of intent dated June 19, 1998 which informed Mr. Bhagwandass that an official of the Ministry believed that a danger opinion was warranted. It speaks of representations, arguments and evidence being considered by the Minister, which are clearly the badges of an adversarial process. The last step in the procedure, before the decision was rendered, was the presentation to the Minister’s delegate of the Ministerial Opinion Report and the Request for Minister’s Opinion. Given their content and apparent purpose, those documents can properly be characterized as instruments of advocacy, in which Ministry officials recommend the rendering of a danger opinion and state the facts that they believe justify such a recommendation. The documents indicate as clearly as can be that Ministry officials had aligned themselves against Mr. Bhagwandass. They are not to be criticized for that. They were obviously asked for their views and were entitled to state them. But to characterize the procedure as non-adversarial is simply not consistent with the evidence.
[Emphasis added.]
[46] In Chu v Canada (Minister of Citizenship and Immigration), 2001 FCA 113 at para 10, [2001] FCJ No 554, leave to appeal to SCC refused, 28647 (June 11, 2001), the Federal Court of Appeal again addressed the obligation to disclose an internal report containing a recommendation that had been prepared by public servants in the context of a danger opinion; it applied the principles set out in Bhagwandass, again emphasizing the particular procedure applicable to danger opinions.
[47] These principles were also applied in the context of decisions about permanent residence applications and inadmissibility. In several cases, the documents at issue involved unfavourable reports from the CBSA or the Canadian Security Intelligence Service. Mekonen v Canada (Minister of Immigration and Citizenship), 2007 FC 1133, [2007] FCJ No 1469 is often cited as a key reference for this issue. In that case, a visa officer had refused a permanent residence application and declared the applicant inadmissible for security reasons. The officer had not disclosed certain documents before rendering the decision, including a CBSA report that provided evidence in support of inadmissibility and certain information from public sources. Justice Dawson summarized the Haghighi and Bhagwandass factors as follows:
12 The content of the duty of fairness is variable and contextual; it is not abstract or absolute. In two cases, 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] 3 F.C. 3 (C.A.), the Federal Court of Appeal considered whether an officer was required by the duty of fairness to disclose for comment to the person affected by the officer’s decision a report received by the officer. The issue arose in Haghighi in the context of an inland humanitarian and compassionate application and in Bhagwandass in the context of a danger opinion. In both cases, the Court applied five factors in order to determine whether disclosure of the report in question was required in order to provide the person concerned with a reasonable opportunity to participate in a meaningful fashion in the decision-making process. The factors were:
(1) the nature and effect of the decision within the statutory scheme;
(2) whether, because of the expertise of the writer of the report or other circumstances, the report was likely to have such a degree of influence over the decision-maker that advance disclosure was required in order to “level the playing field”;
(3) the harm likely to arise from a decision based upon an incorrect or ill-considered understanding of the relevant circumstances;
(4) the extent to which advance disclosure of the report was likely to avoid the risk of an erroneously-based decision; and
(5) any costs likely to arise from advance disclosure, including delays in the decision-making process.
[48] Applying these principles, Justice Dawson mainly insisted on the fact that a decision on inadmissibility did not involve the exercise of a discretionary power and that the objectiveness of the decision and the absence of an appeal process played in favour of an extensive duty of fairness. She reached the following conclusion with respect to the factor involving the degree of influence that the report was likely to have on the decision-maker:
19 The content and purpose of the CBSA memorandum lead me to conclude that it was an instrument of advocacy designed, in the words of the Federal Court of Appeal in Bhagwandass, “to have such a degree of influence on the decision maker that advance disclosure is required ‘to ‘level the playing field’”.
[49] The same factors were applied in similar circumstances in various judgments of this Court, and in the majority of these files, the nature of the information contained in the documents and the influence they had on the decision-maker were determinative factors (Krishnamoorthy at para 37).
[50] The applicant maintains that, in this case, the failure to disclose to him the negative recommendation of the Case Management Branch, dated April 11, 2014, violated procedural fairness. He submits that the negative recommendation was an “instrument of advocacy” in that it was bound to have such an influence on the Deputy Minister that its advance disclosure was necessary to provide the applicant with a reasonable opportunity to participate in the decision-making process. The applicant notes that the Deputy Minister relied heavily on the recommendation, going so far as to adopt it in his reasons, and that the text of the recommendation raised certain doubts (contradictions between the interview notes and the TRP application undermining his credibility, lack of evidence regarding his involvement with his family, proceedings in the French [translation] “ill-gotten gains” investigation) to which he did not have an opportunity to respond. The applicant submits that the recommendation does not contain a mere summary of the facts, but includes an analysis that ignored important facts and arguments about the circumstances of the inadmissibility.
[51] The applicant adds that if the recommendation had been disclosed to him, he could have made submissions and raised arguments against the premises on which the recommendation was based, such as the fact that the inadmissibility decision was under judicial review. He also could have dissipated the Deputy Minister’s concerns, particularly those arising from the alleged contradictions involving his trips to Canada and his involvement in family life. The applicant submits that the disclosure of the recommendation would also have enabled him to raise his concerns about the biased approach to the processing of his application.
[52] The applicant also alleges that the recommendation made by Mr. Gilbert on March 13, 2014, which was the basis for the recommendation of April 11, 2014, should also have been disclosed to him, particularly given that that recommendation failed to mention the favourable CBSA report of November 1, 2012. That report would have been useful for the Deputy Minister’s review of the seriousness of the inadmissibility for the purpose of weighing it against the best interests of the applicant’s children.
[53] I find that the disclosure of Mr. Gilbert’s recommendation of March 13, 2014, is not really at issue. First, this recommendation was addressed to the Case Management Branch and not the Deputy Minister, and there is no evidence that the Deputy Minister even looked at it. What is at issue is the report of April 11, 2014, containing the analysis and recommendation of the Case Management Branch that was provided to the Deputy Minister.
[54] The respondents submit that this report formed part of the reasons for the decision rendered by the Deputy Minister (Miller v Canada (Solicitor General), 2006 FC 912 at para 63, [2006] FCJ No 1164) and that, accordingly, it did not have to be disclosed to the applicant in advance. I do not agree. I am of the view that the fact that the report, including the recommendation it contains, can be considered part of the Deputy Minister’s reasons does not resolve the issue of whether or not the Deputy Minister had a duty to disclose it to the applicant before rendering a decision. As Justice Sharlow wrote in Bhagwandass, at para 34, in a context in which a similar argument was raised, the report of the Case Management Branch could not be the reasons for a decision that had yet to be rendered.
[55] The issue is instead whether the disclosure of this report was required to enable the applicant to participate in a meaningful way in the decision-making process.
[56] First, it must be kept in mind that the Deputy Minister had to render a highly discretionary decision, the nature and effect of which are less important than a decision about a danger opinion or inadmissibility, for instance.
[57] The Deputy Minister’s decision also shows that the analysis and recommendation of the Case Management Branch did influence his decision. He even indicated in his decision that he had analyzed all the circumstances, including the recommendation, which he had signed. In this context, I consider the report of the Case Management Branch to be an advocacy instrument.
[58] However, for the reasons below, I find that its advance disclosure to the applicant was not required.
[59] First, the report does not refer to any report, document or information that was unknown to the applicant or to sources of information unknown to him. The analysis and recommendation of the Case Management Branch are essentially based on the decision of December 20, 2013, to refuse the applicant’s permanent residence application; the notes on the interview conducted by the immigration officer on September 25, 2012; and the affidavits and documentary evidence filed by the applicant in support of his TRP application.
[60] Next, the applicant should have expected that these documents would be consulted, even though they came from another file. The merits of his inadmissibility were not directly at issue in the processing of the TRP application, but the inadmissibility constituted the [translation] “circumstance” giving rise to a TRP application. In other words, the inadmissibility was the raison d’être and essential prerequisite of the TRP application; otherwise, the applicant could simply have applied for a TRV. In this context, it was open to the Deputy Minister to consult the decision of December 20, 2013, and the interview notes, and this should not have come as a surprise to the applicant. I find that the Deputy Minister could refer to these without informing the applicant for the purpose of enabling the latter to make submissions.
[61] I am also of the view that the principles developed in the case law regarding the disclosure of documents and information must, in this case, be viewed in light of the applicant’s duty to establish his right to a TRP.
[62] I find that the case law applicable to visas, which clearly recognizes that the onus is on applicants to file sufficient evidence in support of their applications, is equally applicable to TRPs. This case law establishes that it is not for the officer to inform the applicant that the evidence is inadequate or provide him or her with an opportunity to respond to concerns arising from an application that is unclear, incomplete or lacking sufficient evidence. The duty of fairness may require that officers disclose their concerns to applicants and provide them with an opportunity to respond when they relate to the credibility, veracity or authenticity of the evidence submitted by the applicant or to information of which the applicant could not have been aware. The duty of fairness does not, however, require that the applicant be provided with a running score or an opportunity to add to an incomplete or inadequately supported application. Justice Mosley provided a good description of these parameters in Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at paras 22-23, [2004] FCJ No 317:
22 It is well established that in the context of visa officer decisions procedural fairness requires that an applicant be given an opportunity to respond to extrinsic evidence relied upon by the visa officer and to be apprised of the officer’s concerns arising therefrom: Muliadi, supra. In my view, the Federal Court of Appeal’s endorsement in Muliadi, supra, of Lord Parker’s comments in In re H.K. (An Infant), [1967] 2 Q.B. 617, indicates that the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to “disabuse” an officer of such concerns, even where such concerns arise from evidence tendered by the applicant. Other decisions of this court support this interpretation of Muliadi, supra. See, for example, Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No 350 (T.D.) (QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise an applicant at an interview of her negative impressions of evidence tendered by the applicant.
23 However, this principle of procedural fairness does not stretch to the point of requiring that a visa officer has an obligation to provide an applicant with a “running score” of the weaknesses in their application: Asghar v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1091 (T.D.)(QL) at para. 21 and Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 (T.D.)(QL) at para. 23. And there is no obligation on the part of a visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations: Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296, Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.1023 (T.D.)(QL).
[Emphasis added.]
[See also Chawla v Canada (Minister of Citizenship and Immigration), 2014 FC 434 at para 14, [2014] FCJ No 451; Kaur v Canada (Minister of Citizenship and Immigration), 2014 FC 678 at paras 17-18, [2014] FCJ No 745; Hussaini v Canada (Minister of Citizenship and Immigration), 2013 FC 289 at para 10, [2013] FCJ No 318.]
[63] Justice Snider adopted these principles in Baybazarov v Canada (Minister of Citizenship and Immigration), 2010 FC 665, [2010] FCJ No 930 in a context in which the information that had not been disclosed to the applicant was contained in a CBSA report. She wrote the following:
11 First and foremost, applicants have the burden to establish entitlement to a visa. Applicants bear the responsibility to produce relevant information to assist their application. There is no obligation on officers to apprise an applicant of concerns that arise directly from statutory requirements. Officers are also not required to give applicants a “running score” of weaknesses in applications. See Rukmangathan, above, at paragraph 23; Nabin v. Canada (Minister of Citizenship and Immigration), 2008 FC 200, [2008] F.C.J. No 250, at paragraph 7; Rahim v. Canada (Minister of Citizenship and Immigration), 2006 FC 1252, 58 Imm. L.R. (3d) 80 at paragraph 14.
12 Second, officers have a duty to notify applicants where: a) concerns arise about credibility, accuracy or genuineness of the information submitted (see Nabin, above, at para. 8); or b) the officer has relied on extrinsic evidence (see Rukmangathan, above, at para. 22; Nabin, above, at para. 8; Mekonen, above, at para. 4). The purpose of t