PABLO SEBASTIAN SALAZAR MUNOZ Applicant v. THE MINISTER OF, 2015 FC 677

Date: 20150525 Docket: IMM-1846-14 Citation: 2015 FC 677 Toronto, Ontario, May 25, 2015 PRESENT: The Honourable Mr.

Justice Brown BETWEEN:PABLO SEBASTIAN SALAZAR MUNOZApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] This is an application for judicial review by Pablo Sebastian Salazar Munoz [the Applicant] under subsection 72(1) of theImmigration and Refugee Protection Act, SC 2001, c 27 of a decision by an Immigration Officer [the Officer], dated December 19, 2013,in which the Officer refused the Applicant’s application for permanent residence in Canada on humanitarian and compassionate [H&C]grounds.

The application is granted because the Applicant was denied procedural fairness. [2] The Applicant was born on June 9, 1981 in Chile, where he is a citizen. The Applicant entered Canada on July 8, 2010 andwas granted temporary resident status as a visitor, valid until January 7, 2011. The Applicant remained in Canada beyond the expiry ofhis temporary resident status without authorization. On May 26, 2011, the Applicant married a Canadian citizen who submitted asponsorship application to sponsor him on January 31, 2012.

This sponsorship application was withdrawn on September 16, 2012 due toa separation in the relationship.

On March 1, 2013, the Applicant applied for permanent residence from within Canada on H&C grounds.His application was based on establishment (he resided in Canada for over three years, was employed for over one year, participated involunteering activities, and had numerous letters of support from friends, community liaison and volunteer coordinator in Canada) aswell as risk and adverse country conditions (hardship, discrimination and violence due to his homosexuality and HIV status). [3] On December 19, 2013, the Officer refused the Applicant’s application for permanent residence from within Canada onH&C grounds.

The Applicant filed an application for leave and judicial review in this Court on March 25, 2014, which was granted onFebruary 4, 2015. [4] The Officer was asked to determine whether the Applicant, in order to obtain permanent residence, should be exempt, onH&C grounds, from the requirement of presenting his application from outside Canada and from the obligation to meet the requirementsof a permanent resident category.

In this connection, the Officer noted that the Applicant bore the onus of establishing that his personalcircumstances are such that the hardship of having to obtain a permanent resident visa from outside Canada in the normal manner wouldbe unusual and underserved, or disproportionate. [5] The Officer made a number of findings in his reasons, many if not most of which were challenged by the Applicant in hiswritten and oral submissions. [6] However, in my view the determinative issue is the Officer’s discussion and findings that the Applicant, as a national of acountry which is a member of the Union of South American Nations [USAN], had the right to live and work in Brazil, Paraguay,Uruguay, Venezuela, Bolivia, and specifically, in Argentina.

The Applicant alleges this discussion and analysis were arrived at in breachof his right to procedural fairness. I agree. [7] The Officer reported on research conducted independent of the application and found that “[w]hile same-sex marriage andsame-sex adoption is not currently legal in Chile, […] they are legal and acceptable in Argentine, Chile and Uruguay”. I noteparenthetically that the Officer erred in mentioning Chile; the Applicant suggested Brazil was intended. The Officer said there were noreports of societal discrimination against persons with HIV/AIDS in Argentina and Uruguay.

The Officer also found there was no officialdiscrimination based on sexual orientation in employment, housing, statelessness, and no issues of access to education or health care inArgentina. The Officer criticized the Applicant for not demonstrating why he could not relocate to these countries.

The Officer noted thatbased on the information the Applicant provided, the Applicant himself had held previous employment in Argentina and Brazil as a salesrepresentative and tour guide. [8] The critical finding made by the Officer is that, based on the results of the Officer’s review of various country conditions,the Applicant could relocate to Argentina because he had a legal right to live and work there should he desire. [9] In my view, the Officer erred in making these findings for several reasons. [10] First, there was no evidence before the Officer that nationals of USAN member countries had the right to work and live inother member countries.

Neither is there any such evidence before this Court. A finding made without regards to the evidence is an errorof law: Siad v Canada (Secretary of State), (FCA), [1997] 1 FC 608 at para 24 (FCA). [11] In addition, the USAN treaty was not before the Officer. While the treaty was filed with this Court on judicial review, in my

view its language does not support the Officer’s findings that the Applicant had a right to live and work in other USAN countries. [12] The Officer referred to a number of webpages as sources for his finding that the Applicant could relocate to other USANcountries. However, none of these webpages support the Officer’s conclusions in this regard.

This underscores both the need forevidence on the record and the unreasonableness of expecting the Applicant to anticipate the Officer’s procedurally unfair independentresearch. [13] The Officer denied the Applicant procedural fairness by engaging in this examination and making the resulting conclusionswithout providing him any notice or warning.

Procedural fairness entitles the claimant to know the case he or she has to meet:Muthusamy v Canada (Minister of Employment and Immigration) (1994), 50 ACWS (3d) 475 at para 4; Garcia v Canada (Minister ofCitizenship and Immigration), 2011 FC 1368 at para 36; Yildiz v Canada (Minsiter of Citizenship and Immigration), 2013 FC 839 at para47.

Knowledge of the case to meet may be imputed where it is reasonable to expect the claimant to know or anticipate the panel’sfindings, such as where the RPD relies on publicly available country documentation that is not materially different from the documents itdisclosed: Chen v Canada (Minister of Citizenship and Immigration), 2012 FC 1218 at paras 16-17.

Here however, the claimant couldnot reasonably be expected to know or anticipate that the Officer would engage in this supplementary research and reach the conclusionshe did on its basis. [14] If an officer wishes to find that an H&C claimant could return elsewhere than the country of his or her nationality, whichfinding an Officer may or may not be entitled to make in the context of an H&C application, a point I do not need to decide, that officermust respect the rules of procedural fairness. [15] Finally, it was a breach of procedural fairness for the Officer to criticize the Applicant for failing to rebut the Officer’sfindings where the Applicant had no reason to anticipate either the Officer’s line of investigation or the Officer’s conclusions. [16] The Court is asked to uphold the decision of the Officer because, according to the Respondent, it would be futile to send itback for re-determination given the many other findings the Officer made against the Applicant.

The Respondent argues that theseflawed findings were irrelevant, immaterial or peripheral. I disagree. [17] In this connection, the leading authorities are Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, (SCC), [1994] 1 SCR 202 and Cardinal v Director of Kent Institution, (SCC), [1985] 2 SCR 643. Inthis Court, Justice de Montigny summarized the relevant principles in Sarker v Canada (Minister of Citizenship and Immigration), 2014FC 1168 at paras 16-17: [16] Where the parties differ, however, is with respect to the consequences of this breach.

Relying on Cardinal v Director of KentInstitution, (SCC), [1985] 2 SCR 643, 24 DLR (4th) 44, counsel for the Applicant argues that this denial of naturaljustice is so egregious that it calls for the quashing of the decision. Counsel for the Respondent, on the other hand, submits that nothingturns on this mistake and that it was purely peripheral to the assessment of the Applicant’s credibility. [17] Having carefully examined the impugned decision, I do not think it can confidently be said that this breach of procedural fairnesshad no impact on the decision of the Board.

The Respondent’s argument may have been more compelling had the Board Member notdealt with the identity issue after paragraph 16 of his decision. To the contrary, the Board’s identity concerns appear to have permeatedits credibility analysis and may have had a material impact on the Applicant’s claim.

At paragraph 23 of its decision, the Board mentionsthe Applicant’s lack of personal identity documents in questioning the authenticity of the newspaper articles and the arrest documents.Most importantly, the Board explicitly links the identity concern with the credibility analysis at paragraph 27 (“The absence ofdocumentation confirming both his identity and arrival in Canada is problematic and further contributes to an overall concern with thecredibility of the claim”).

Accordingly, it cannot be said that the breach of procedural fairness was not material and that there is no pointsending the Applicant’s claim back to the Board. This is not such a case as Mobil Oil Canada Ltd v Canada-Newfoundland OffshorePetroleum Board, (SCC), [1994] 1 SCR 202, 111 DLR (4th) 1, where it could safely be said that the Board would mostlikely reach the same decision if it were to re-examine the Applicant’s claim afresh.

There is every indication that the Board’sassessment of the Applicant’s identity coloured its credibility analysis. [18] The Respondent submitted, and I certainly agree, that not every breach of procedural fairness results in a right to a newhearing because otherwise the doctrine of futility would have no purpose. Judicial review as has often been stated, is not a “line-by-linetreasure hunt for error” criticized by the Supreme Court of Canada in Communications, Energy and Paperworkers Union of Canada,Local 30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at paragraph 54, [2013] 2 SCR 458.

However, in the case at bar, I am unable to saywith confidence that these particular breaches had no impact on the Officer’s decision. The Officer devoted some considerable attentionto these issues. The Applicant’s alternative places of residence and work were researched in detail by the Officer. I am entitled to assumethat the Officer went to this effort because it was considered important to decide the point in the Applicant’s case. On balance, thesefindings were material to the decision of the Officer in the sense that they formed an integral part of his reasons.

I am unable todetermine if the result would be the same but for the errors. I conclude that it would be unsafe to permit this decision to stand andtherefore it is set aside. [19] Having found that the decision is flawed by an error of law, there is no need to address the impugned findings further.However, I note a report from the Chilean consular offices in Toronto, filed by the Applicant as proposed new evidence, that indicatedthat there is no agreement between USAN member countries that allow citizens of one member country, without obtaining work permits,to work in another member country.

In this connection, there is no evidence before this Court on whether work permits are easy ordifficult to obtain. However, I need not decide the admissibility of the proposed new evidence but wish to add that the applicable law inthis connection was recently revised in Delios v Canada (AG), 2015 FCA 117. [20] Given the above, it is not necessary to determine the other issues raised by the Applicant. [21] Neither party proposed a question to certify, and none arises.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is granted, the decision is set aside, the matter is remitted for re-determination by a different H&C officer, no question is certified, and there is no order as to costs. "Henry S. Brown" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1846-14 STYLE OF CAUSE: PABLO SEBASTIAN SALAZAR MUNOZ v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 5, 2015 JUDGMENT AND REASONS: BROWN J.

DATED: MAY 25, 2015 APPEARANCES : Leigh Salsberg For The Applicant Leila Jawando For The Respondent SOLICITORS OF RECORD : Eugenia Cappellaro Zavaleta Barrister and Solicitor Toronto, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada For The Respondent