Date: 20010928
Docket: IMM-5314-00
Neutral Citation: 2001 FCT 1068
BETWEEN:
ALICE ANNE MARIE BERNARD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of Ava Muir, an immigration officer, dated September 18, 2000, wherein the immigration officer decided not to recommend a favourable decision under subsection 114(2) of the Immigration Act.
FACTS
[2] The applicant was born on December 7, 1972 and is a citizen of Grenada. After high school graduation, the applicant was employed as a receptionist in her country. However, because of a difficult pregnancy she had to leave her job.
[3] The applicant gave birth to her first child, Jarrell Jedd Junior Bernard, on June 10, 1994 in Grenada.
[4] As a single parent, the applicant began experiencing economic problems. She could not find employment and her parents were in no financial position to assist her.
[5] The applicant entered Canada as a visitor on August 19, 1995.
[6] The applicant found employment as a baby-sitter/caregiver immediately after arriving in Canada.
[7] On February 6, 1996, the applicant gave birth to her second child, Jedd Jerron Bernard at a Toronto hospital.
[8] After a short maternity leave, the applicant returned to work in April, 1996. The applicant continues to be employed as a baby-sitter/caregiver.
[9] In April 1999, the applicant submitted an application for landing within Canada on the basis of humanitarian and compassionate grounds ("H & C").
[10] The applicant has a sister who is a landed immigrant in Canada. She has been a volunteer with the Daily Bread Food Bank. She has no history of criminal behaviour nor ever sought any financial assistance from the government.
[11] The applicant explained that the compelling reason for wanting to remain in Canada indefinitely is that she has a Canadian born child and it would be very difficult for her and her Canadian born child to return to Grenada and to submit an application there. Further, she explained that such a demand would create financial hardship for her.
[12] The applicant also stated in a supplementary affidavit dated July 23, 2001 that she has registered for a course "Introduction to Computer Applications", at Seneca College in Toronto, that began in May 2001 and finished in August 2001. She explained that she wished to upgrade in order to complete a course in Business Administration.
[13] She also explained that she has tried to save as much money as she could, all the while sending funds to support her son in Grenada as well as taking care of her son in Canada.
[14] She has volunteered in the community three days a week. She helped prepare breakfast and feed children in the Scarborough Crossroads Family Resource Centre. They also provide a drop-in centre for children aged 3 to 5 years of age.
ISSUES
[15] 1. Did the immigration officer err in not requesting further information from the applicant?
2. Did the immigration officer fail to assess the interest of the applicant's Canadian born child?
3. Did the immigration officer fail to consider the evidence and is her decision reasonable?
ANALYSIS
Did the immigration officer err in not requesting further information from the applicant?
[16] Subsection 9(1) of the Immigration Act provides:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
|
[17] Subsection 114(2) of the Immigration Act states:
| (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
|
[18] The Minister's power to authorize the exemption is found in section 2.1 of the Immigration Regulations, 1978.
[19] The applicant observes that the IP5 guidelines - Immigration application in Canada made on humanitarian or compassionate grounds at section 6.2 gives assessors great latitude in requesting further information from applicants, where officers feel information is lacking.
[20] The applicant contends that the immigration officer failed to follow the guidelines as she never requested additional information from the applicant. Had such a request been made, the applicant would have provided all and any information requested.
[21] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada explained the scope of the duty of procedural fairness owed by immigration officers when making decisions pursuant to subsection 114(2) of the Immigration Act. The Supreme Court of Canada held:
However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. The Federal Court has held that procedural fairness does not require an oral hearing in these circumstances: see, for example, Said, supra, at p. 30.
I agree that an oral hearing is not a general requirement for H & C decisions. An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application from a social worker at the Children's Aid Society and from her psychiatrist. These documents were before the decision-makers, and they contained the information relevant to making this decision. Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
[22] In the case at bar, the applicant was given the opportunity to provide information about her situation in support of her application, to the immigration officer.
[23] As was stated in Patel v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 54 (F.C.T.D.), by Heald D.J.:
The applicant submits that he is entitled to have all relevant evidence considered on a humanitarian and compassionate application. I agree with that submission. However, the onus in this respect lies with the applicant. It is his responsibility to bring to the visa officer's attention any evidence relevant to humanitarian and compassionate considerations.
(my emphasis)
[24] I cannot conclude that the immigration officer erred in not requesting further information from the applicant.
2. Did the immigration officer fail to assess the interest of the applicant's Canadian born child?
[25] In Baker, supra, the Supreme Court of Canada explained at paragraphs 73 and 74:
[para 73] The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interest of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.
[para 74] It follows that I disagree with the Federal Court of Appeal's holding in Shah, supra, at p. 239, that a s. 114(2) decision is "wholly a matter of judgment and discretion" (emphasis added). The wording of s. 114(2) and of the Regulations shows that the discretion granted is confined with in certain boundaries. While I agree with the Court of Appeal that the Act gives the applicant no right to a particular outcome or to the application of a particular legal test, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments, the decision must be made following an approach that respects humanitarian and compassionate values. Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values. The Minister's guidelines themselves reflect this approach. However, the decision here was inconsistent with it.
[26] In Mayburov v. Canada (Minister of Immigration and Citizenship), [2000] F.C.J. No. 953 (F.C.T.D.), Lemieux J. quoted the immigration officer at paragraph 17:
[para 17] I have taken into consideration the fact that subject has a Canadian born child. Having this child in Canada while their immigration status was undetermined and they possibly faced the requirement of having to leave Canada, was a decision they took. It would also be their decision if they were to leave their child in Canada with their relatives. The parents are free to decide what would be in the best interests of their Canadian child. Having considered all the information provided by the applicants and that presented by their counsel on their behalf, I do not find that there are sufficient humanitarian and compassionate grounds to warrant an exemption of the visa requirement. I recommend that they apply from abroad.
[27] Lemieux J. also addressed the issue of the interests of the Canadian born child after reviewing the principles established in Baker, supra, at paragraph 39:
[39] The applicants raised a number of arguments which, when all considered, amount to several inconveniences of leaving Canada to make a landing application abroad which is the normal rule laid down by Parliament. Inconvenience is not the criteria of undue hardship as laid out in the guidelines and in several decisions of this court on stay of removal order applications dealing with irreparable harm. Specifically, in terms of the Canadian child, the immigration officer considered those interests and, as noted, a reviewing court cannot substitute its opinion for that of the immigration officer. I conclude this case is a far stretch from Baker, supra, and warranting intervention given the legislative context that permanent residents to Canada must normally apply from abroad plus the context of a failed refugee claimant who does not otherwise qualify under PDRCC. Without more, which has not been met in this case, a H & C application in this context cannot be a back door when the front door has, after all legal remedies have been exhausted, been denied in accordance with Canadian law.
[28] In my view, the immigration officer has assessed the interest of the applicant's born child in light of the evidence provided. I cannot conclude that the immigration officer made a reviewable error in this regard.
3. Did the immigration officer fail to consider the evidence and is her decision reasonable?
[29] The Supreme Court of Canada in Baker, supra, at paragraph 62, stated on the standard of review of a decision of an immigration officer as follows:
[para 62] These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[30] In considering the reasonableness of the decision of the immigration officer in Baker, supra, the Supreme Court of Canada stated at paragraph 63:
[para 63] I will next examine whether the decision in this case, and the immigration officer's interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgement of Iacobucci J. in Southam, supra, at para.56:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[31] In Irimie v. Canada, [2000] F.C.J. No. 1906 (F.C.T.D.), Justice Pelletier held at paragraphs 11-13:
[ para 11] In Baker v. Canada, [1999] 2 S.C.R. 817, (1999), 243 N.R. 22, Madam Justice L'Heureux-Dubé pointed out that the manual is a good indicator of how the discretion given to the Minister and exercised in her name by the H & C officer is to be exercised:
The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
Baker supra at para 72.
[ para 12] If one then turns to the comments about unusual or undeserved which appear in the Manual, one concludes that unusual and undeserved is in relation to others who are being asked to leave Canada. It would seem to follow that the hardship which would trigger the exercise of discretion on humanitarian and compassionate grounds should be something other than that which is inherent in being asked to leave after one has been in place for a period of time. Thus, the fact that one would be leaving behind friends, perhaps family, employment or a residence would not necessarily be enough to justify the exercise of discretion.
[para 13] The applicants complain that the officer who dealt with their application considered and gave weight to irrelevant factors. Among the irrelevant factors was the fact that the applicants were failed refugee claimants. The applicants say this is irrelevant since, by definition, one must be without status to make an H & C application, so that the reason one is without status should be irrelevant. Given that one of the criteria to be considered is whether the hardship arising from having to leave the country is undeserved, the question of how one entered the country is of some relevance to that issue. It might be a positive or a negative element depending upon the circumstances. In this case, the visa officer place this factor in the "cons" column, just as she did with the fact that the applicants had applied for a visa and been refused. These are factors which could reasonably be considered in deciding whether the hardship which the applicants might face was undeserved.
[32] The applicant alleges that she established herself in Canada and that the immigration officer should have accepted the establishment factors as sufficient to approve the applicant's request.
[33] I cannot concluded that the immigration officer erred in her assessment of the evidence. There is no evidence that the immigration officer ignored nor properly considered the evidence. In my view, the immigration officer's decision was reasonable.
[34] Therefore, this application for judicial review is dismissed.
[35] Counsel for the applicant suggested a question for certification:
Is it in the interest of justice that the H & C officer, in determining the best interest of the child, request the applicant to provide evidence on the child's circumstances in absence of such evidence?
[36] The respondent opposes the certification because in its view, the "question as proposed is vague and overly broad" and that this question "has essentially already been answered".
[37] Counsel for the respondent wrote:
...The Supreme Court of Canada, in Baker was asked to rule upon the content of the duty of fairness in H & C cases, and the obligations on H & C Officers in making an assessment regarding the best interests of children. Specifically, the applicant in Baker suggested that fairness required the following: « an oral interview before the decision-maker, notice to her children and the other parent of that interview, a right for the children and the other parent to make submissions at that interview, and notice to the other parent of the interview and of that parent's right to have counsel present » . The Supreme Court determined that what was required was that an applicant must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. The Supreme Court was satisfied that the opportunity to put forward all relevant information and evidence (including information and evidence regarding the circumstances of the children) in written form satisfied the requirement that an applicant have a meaningful opportunity to present all the evidence relevant of the case, and to have it fully and fairly considered by the decision-maker.
It is submitted that this process endorsed by the Court upholds the notion that the only obligation on the H & C Officer is to fully and firmly consider the case that is before him or her, and does not impose on him or her the duty to elicit information, which may also amount to a never-ending process.
[38] I totally agree with the argument suggested by the respondent that it has already been answered and this is not a serious question of general importance.
[39] Therefore, the suggested question will not be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 28, 2001