Dokumento detalye

1996

Federal Court

1996 CanLII 11742 (FC)

IMM-3253-95

BETWEEN:

ANITA MITRA

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

ROULEAU, J.

This is an application for an order setting aside the decision of Mr. Brice Gurney who directed that an immigration inquiry be held regarding the applicant which resulted in subsequent removal proceedings against her.

On April 19, 1991, Ms. Mitra applied for a visa pursuant to the Foreign Domestic Workers Program. In order to meet the requirements to enter Canada as a domestic worker, she made misrepresentations concerning her age, marital status and whether she had children. Ms. Mitra was admitted and subsequently lived and worked in Canada as a domestic worker.

The Canadian immigration authorities have in effect a policy of not instituting removal proceedings against persons who have come to Canada under the Foreign Domestic workers program and who have made misrepresentations concerning their marital status and whether they have children. After the applicant was made aware of this policy, she advised the manager of the Immigration Centre in Prince George, British Columbia, Mr. Brice Gurney, that she had made misrepresentations.

Ms. Mitra subsequently had an interview on November 23, 1992, with an Immigration Officer, Rick Baylis, regarding her misrepresentations and her status in Canada. She executed a statutory declaration concerning details about her misrepresentations. On October 18, 1993, the applicant was advised by Mr. Gurney that if she obtained a divorce from her husband, she would be landed.

On November 22, 1993, after receiving approval from the Legal Services Society of British Columbia, the applicant retained a family law lawyer to initiate divorce proceedings against her husband in the Philippines. A letter was sent from the lawyer to Immigration Canada stating that divorce proceedings had been commenced.

On January 18, 1994, the applicant contacted the West Coast Domestic Workers Association, a publicly funded organization whose goal is to help domestic workers, in order to obtain some assistance in her immigration matters. Ms. Jessie Horner was the counsel assigned to the applicant's case. On March 7, 1994, Ms. Horner sent a letter to Mr. Gurney making representations on Ms. Mitra's behalf. Four days later, on March 11, 1994, Mr. Gurney directed that an inquiry be commenced.

At the inquiry, counsel for Ms. Mitra conceded that misrepresentations had been made by his client but took issue with the propriety of the proceedings. It was argued before the adjudicator that the Direction for Inquiry was not issued in accordance with the principles of natural justice and that Mr. Gurney had breached the duty of fairness in determining whether an inquiry should be held. The essence of the applicant's complaints are stated in a letter from her solicitor dated January 5, 1995, as follows:

Ms. Mitra approached the CIC - Prince George officials and voluntarily informed them she had misrepresented her age and marital status when she applied to come to Canada as a member of the Live-in Caregiver's Class (the old Foreign Domestic Worker's category as it was called at the time). She was then told by Mr. Gurney and Mr. Rick Baylis that if she was to get a divorce from her husband in the Philippines that she would be landed as a permanent resident since she had fulfilled all the other requirements of being landed under the Immigration Act and it's Regulations.
I enclose a copy of a letter from a predecessor of yours, John Watson, which indicates that CIC will not proceed to remove people in a similar situation to Ms. Mitra. This letter was written on the realization that some of the requirements of the old Foreign Domestic Workers Program were discriminatory and it did not make sense to punish people who misrepresented themselves about discriminatory requirements.
In order to help her deal with immigration authorities, Ms. Mitra retained Jessie Horner, a Barrister and Solicitor working with the West Coast Domestic Worker's Association to help her. In February 1994, Ms. Horner made a phone call to CIC - Prince George and spoke with Mr. Baylis. A few days later Ms. Horner sent the attached letter dated February 25, 1994 to CIC - Prince George. Ms. Horner received the enclosed reply indicating that the Prince George Immigration officials had decided to proceed with an inquiry.
This matter proceeded to an inquiry in which I argued that the direction for inquiry was taken in bad faith because it was taken solely because Ms. Mitra had decided to get a lawyer. Ms. Horner presented sworn testimony to the tribunal that she reluctantly believed the decision to have an inquiry was taken solely because she became involved in the case and for no other reason. Ms. Mitra provided sworn testimony that she believed that CIC - Prince George officials broke their promise to her.
By decision dated December 7, 1994, the Adjudicator held that she did not have jurisdiction to review the procedure followed that resulted in the Direction for Inquiry being made. She then issued a departure order against Ms. Mitra.

The applicant now seeks to have the decision of Mr. Gurney set aside on the grounds that it was made in bad faith and in breach of the principles of fairness and natural justice.

I am allowing the application. The evidence is clear that the respondent had in place a policy whereby individuals in a similar situation to the applicant would not be removed. There is no question that the respondent is at liberty to implement a policy of that nature in order to assist it in the exercise of its discretionary decision-making power. Having done so however, it is incumbent on the Minister to apply that policy to all concerned in an even-handed and consistent manner. A public authority is required to exercise its discretionary power fairly and impartially.

Here, the applicant was making every possible effort to comply with the requirements of the policy by obtaining the necessary divorce from her spouse. She was not provided with advance notice that a Direction for Inquiry was to issue nor has the respondent provided any reasonable explanation as to why, given the circumstances, that decision was made by Mr. Gurney. What the evidence does indicate is that there existed an element of bad faith on Mr. Gurney's part and that the decision to order a Direction for Inquiry was made because the applicant retained counsel to assist her. I am satisfied that there has indeed been a breach of the duty of fairness owed to the applicant.

For these reasons, the decision to order the inquiry is set aside. It follows therefore that the Adjudicator's decision cannot stand. The matter is to be referred back to immigration authorities to be dealt with in accordance with the respondent's policy.

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