Date: 19990608
Docket: IMM-2598-98
Between :
SANDRA MAUREEN SAMUELS
& NIKKO ADRIAN HARRIS
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The principal applicant, Sandra Maureen Samuels, and her son, Nikko Adrian Harris, seek judicial review of the decision of R. Benger, Immigration Counsellor, CIC Admissions, Vancouver, British Columbia, dated March 12, 1998, in which he held there were insufficient humanitarian and compassionate grounds to process the applicants for landing in Canada. The impugned decision reads in part as follows:
| While sympathetic to the emotions surrounding this case, reunion with the applicant's mother has already been accomplished by her extended visit to Canada. The additional grounds claimed by the regretable (sic) deaths of persons close to her do not constitute sufficient humanitarian and compassionate grounds to warrant an exception to the visa requirement. |
| It is concluded that the applicant would not suffer unusual, undeserved or disproportionate hardship if required to depart Canada and apply abroad in the required manner. |
[2] The decision of an immigration officer as to whether or not to grant an exemption under subsection 114(2) to the normal landing requirements found in subsection 9(1) of the Immigration Act (the Act) is a discretionary one. The Federal Court of Appeal decision in Shah v. M.E.I. (1994), 170 N.R. 238, established the following with respect to the duty of fairness owed to an applicant on an humanitarian and compassionate application at pages 239 and 240:
| In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. [See Muliadi v. Minister of Employment and Immigration (1986), 66 N.R. 8; 18 Admin.L.R. 243 (F.C.A.).] In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. . . . |
[3] In Vidal v. Canada (M.E.I.) (1991), 41 F.T.R. 118, Justice Strayer made the following observation with respect to subsection 114(2) applications, at page 121:
| There are a few basic propositions which are, in my view, self-evident and which should be kept in mind in dealing with these issues. |
| (1) In s. 114(2) Parliament has authorized the Governor-in-Council to make exceptions to the rules found in the Act and in the Regulations. There is therefore nothing inconsistent with the Act in the Governor-in-Council creating such exceptions by regulation. |
| (2) The exceptions so made are for the benefit of those in whose favour they are made and do not detract from the normal application of the general rules to all others. Those who complain that they have not been made the beneficiary of a regulation adopted under s. 114(2) are in effect complaining that they have not received a special benefit. |
[4] In addition, this Court should avoid entering into its own weighing of the evidence that was before the immigration officer, as noted by my colleague Justice MacKay in the case of Sema v. Canada (M.C.I.) (1995), 30 Imm.L.R. (2d) 249, at page 253:
| . . . The weight of evidence in a matter for determination on an H & C application is clearly one for determination by the decision-maker. Under s. 18.1(4)(d) of the Federal Court Act, the Court will not intervene in an application for judicial review where a finding of fact is in question unless it is established that the decision was based on a perverse or capricious finding or made without reference to the material before the decision-maker. That standard is not here said by the applicant to be breached, and such breach is not established. |
[5] Applying these principles to the case at bar, I am not convinced, in light of the evidence, that the immigration officer committed a reviewable error. In my view, it was reasonably open to him to exercise his discretion in the manner that he did and to find that the applicant would not suffer undue hardship should she be required to depart from Canada and apply from abroad as required by the Act.
[6] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
June 8, 1999