Date: 19980623
Docket: IMM-2587-97
OTTAWA, ONTARIO, THE 23rd DAY OF JUNE 1998
PRESENT: THE HONOURABLE MR. JUSTICE RICHARD
BETWEEN:
VIGNESWARAN MAHARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON an application to review and set aside a decision of an Immigration Officer dated June 5, 1997, wherein it was determined that the circumstances of the applicant's case did not warrant favourable consideration on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act;
THIS COURT ORDERS THAT:
The decision of the Immigration Officer dated June 5, 1997 is set aside and the applicant's application for humanitarian and compassionate consideration under subsection 114(2) is to be reconsidered by a different immigration officer.
__________________________
Judge
Date: 19980623
Docket: IMM-2587-97
BETWEEN:
VIGNESWARAN MAHARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application to review and set aside a decision of an Immigration Officer dated June 5, 1997, wherein it was determined that the circumstances of the applicant's case did not warrant favourable consideration on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act.
[2] The applicant arrived in Canada in December 1991 and made a claim to be a Convention refugee. By decision dated July 6, 1992, he was determined not to be a Convention refugee. The application to set aside that decision was dismissed by the Federal Court of Canada.
[3] Subsequently, his parents were determined to be Convention refugees. His parents included the applicant in their application for landing in Canada. In May 1994, his father was contacted and told that it was necessary for him and the applicant to complete and sign certain declarations. They were also required to send identification documentation. Subsequently, in May 1994, the applicant was told that he had to sign a statutory declaration which he did.
[4] In May 1995, the applicant was told to come in to Immigration and bring the processing fee, proof of funds and all documents pertaining to his immigration to Canada and he did so in June 1995.
[5] In April 1996, he was again called in for an interview and he provided the same information.
[6] The applicant was advised, at these interviews, that his application for landing would be processed with his parents.
[7] In June 1995, the applicant had become eligible to apply under the Deferred Removals Order Class however, because he believed that his application for landing had been approved, he did not apply under that category.
[8] In 1997, the applicant applied for an extension of his work permit and he was advised that he couldn't have a work permit because his application for landing had been refused. This is the first time he was given any indication that his application had been refused. As a result, the applicant's lawyer commenced an application for judicial review and ultimately it was agreed that Immigration would reconsider his application. His lawyer took the position that Immigration could not refuse as they had previously accepted the applicant. By letter dated April 1, 1997, an immigration officer invited the applicant to make further submissions which his counsel delivered to the Immigration authorities on May 6, 1997. On June 5, 1997, his application for landing was refused. The immigration officer advised that his case was being referred to a Post Claim Determination Officer (PCDO) for a Post-determination Refugee Claimants in Canada Class (PDRCC Class) review.
[9] The applicant's counsel indicated, in the written submissions to the immigration officer, that the applicant was fearful of returning to Sri Lanka and that he had no one to return to there. This was the basis for the submission that his application for landing ought to be accepted.
[10] In the June 3, 1997 review of the applicants' application for landing and the submissions by his counsel, the officer noted:
The updated information provided by counsel, i.e. proof of employment and bank statement, has been evaluated.
I am of the view that subject has not demonstrated sufficient establishment in Canada. He has been employed at near minimum wage for a grand total of four (4) weeks. His bank account is suspect as he claim[ed] not to have had any assets in May of '96 and was dependent on social assistance.
It is conceded that some emotional attachments exist, however, subject is 31 years old and disproportion weight cannot be placed on that fact.
[11] Clearly, the applicant could not be processed as a dependent under his parents' application for landing at the time the application was made, based on his age at that time.
[12] Although counsel for the applicant raised as an issue the grounds of estoppel, patent unreasonableness and reliance on "general knowledge", I only find it necessary to deal with the first issue raised by the applicant, that is, did the immigration officer err in law because he failed to do a risk assessment.
[13] I have concluded that the officer did not make a risk assessment as required.
[14] Subsection 114(2) of the Immigration Act enables the Governor in Council to facilitate the admission of persons for compassionate or humanitarian considerations and exempt persons from the requirement of subsection 9(1) of the Act.
[15] The proper exercise of discretion is consistent with the objectives of the Act in upholding Canada's humanitarian traditions. It is implicit, in the exercise of such discretion, that decisions are made on a case-by-case basis. Officers must consider all aspects of the case, use their best judgment, and make an informed recommendation. Officers must also be guided by the Guidelines which are published by Employment and Immigration Canada.
[16] In examining whether humanitarian and compassionate circumstances exist, immigration officers must examine whether there exists a special situation in the person's home country, and whether undue hardship would likely result from removal. In most cases, such persons will have indicated an intention to claim refugee status.
[17] The onus is on the applicant to satisfy the officer that a particular situation exists in their country and that their personal circumstances in relation to that situation make them worthy of positive discretion.
[18] Counsel for the applicant addressed this issue.
[19] Therefore, the officer was called upon to conduct what is known as a "risk assessment".
[20] In his affidavit, the officer asserted at paragraph 3:
I specifically turned my mind to whether the applicant would face unusual, undeserved or disproportionate hardship or the imposition of sanctions if he were returned to Sri Lanka. After reviewing all of the documents listed above [supplied by counsel for the applicant] and specifically the UNHCR document and the reasons of the Refugee Division, I concluded that he would not.
[21] On cross-examination, he admitted that he had not read the reasons for the tribunal's decision but only the decision itself.
[22] Following an undertaking on cross-examination to make reasonable efforts to produce whatever other documents were considered by the officer in making the risk assessment, apart from those submitted by applicant's counsel, the officer produced two publications, one entitled Development, dated January 1991, which deals with economic development in Asia and another entitled A Cultural Profile dated 1993, which gives information on Sri Lanka's culture and history. Neither of these documents are of the type normally relied on to determine a country profile for risk assessment purposes. The officer also produced three brief articles, one dealing with demographics, the second consisting of an economic review and the third a brief article from Maclean's magazine of February 12, 1996 entitled "A terror attack in Colombo" where it is noted that government forces now occupy the Jaffna peninsula but that the government has not however pacified it to the extent that the hundreds of thousands of Tamils who have fled the fighting feel safe enough to return home.
[23] The officer's case review dated June 3, 1997, does not refer to any risk assessment, although it does refer to family dependencies and the sufficiency of establishment in Canada.
[24] The officer's notes following the interview with the applicant record that "Subject is deemed not to be a C.R. [Convention Refugee] but continues to argue that he is a refugee".
[25] The record shows that the officer erroneously assumed that the applicant was entitled to a PDRCC review and that such a risk assessment would be conducted by PCDO who had additional training and was specialized in doing risk assessments. However, the applicant was not eligible for such risk assessment because his refugee claim had been determined prior to February 1, 1993.
[26] Given all of these circumstances, I am not satisfied that the officer conducted a risk assessment as required.
[27] Accordingly, the decision of the Immigration Officer dated June 5, 1997 is set aside and the applicant's application for humanitarian and compassionate consideration under subsection 114(2) is to be reconsidered by a different immigration officer.
__________________________
Judge
Ottawa, Ontario
June 23, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2587-97
STYLE OF CAUSE: VIGNESWARAN MAHARATNAM v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 17, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE RICHARD
DATED: June 23, 1998
APPEARANCES
Ms. Marie-Claude Rigaud FOR THE APPLICANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Lorne Waldman FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada