Federal Court Decisions

IMM-226-96

BETWEEN:

TAI VAN LE and THI VAN LE,

Applicants

- and -

MINISTER OF CITIZENSHIP and IMMIGRATION,

Respondent

REASONS FOR ORDER

JEROME A.C.J.:

     This application for judicial review of a visa officer decision dated December 3, 1995, which determined that the applicant's two sons were not "dependent sons" as described in the Immigration Act R.S.C. 1985, c. I-2 and the Immigration Regulations 1978, was heard in Vancouver, British Columbia on April 4, 1997. At the conclusion of argument, I took the matter under reserve and indicated that these written reasons would follow.

     The applicant father, Van Thiem Le, filed an application for permanent residence dated October 12, 1994, with the sponsorship of his Canadian resident son. As the principal applicant Van Thiem Le was required to list any dependents which were to accompany him to Canada. He listed his wife, two underage daughters and the two sons which are the applicants in this application for judicial review. The visa officer reviewed the application and informed the applicant that he, his wife and two daughters were successful but that his sons did not appear to qualify as "dependents." Although only a paper review of the application is required under the Act and Regulations, the visa officer granted an interview which gave the applicants a chance to fully explain their alleged dependency. The interview did nothing to assuage the concerns of the visa officer, i.e., that the applicants were not in full-time attendance at school, and he further explained to the applicants that they did not qualify as "dependent sons." At the interview, the officer also stated that no humanitarian or compassionate reasons existed which would aid their applications. The visa officer allowed the applicants to make additional submissions regarding the dependency issue. The applicants, however, were only able to proffer documentary evidence which conflicted with their own oral testimony. The visa officer, in his letter of December 2, 1995, to the applicant father, informed the father that his sons did not qualify as dependents and therefore they would not be included in the father's application.

     First, the applicants submit that the visa officer, in making his decision, disregarded evidence relevant to their matter. Receipts, detailing the amounts paid by the applicants for training courses, form the bulk of this evidence which was allegedly disregarded by the visa officer. In his affidavit, the visa officer, Mr. Daniel A. Vaughan, stated that because of conflicting evidence he placed more weight on the evidence provided by the applicants during the interview than which was later provided, namely the receipts. The visa officer, after having extended the privilege of an interview to the applicants and after having considered all the evidence put forward by the applicants, determined that the applicants are not "dependent sons" as defined by the Act and the Regulations.

     Second, the applicant submits that the visa officer breached the duty of fairness by not allowing the applicants an opportunity to fully make submissions with regard to compassionate and humanitarian considerations. Unfortunately, the applicants do not have a statutory right to compassionate or humanitarian consideration. Under subsection 6(5) and paragraph 114(1)(e) of the Act and section 11.2 of the Regulations only certain classes of immigrants have a statutory right to compassionate or humanitarian consideration. Section 11.2 of the Regulations lists those classes of immigrants.

11.2 The following classes are prescribed as classes of immigrants for the purposes of subsections 6(5) and (8) of the Act:

(a) the live-in caregivers in Canada class;

(b) the post-determination refugee claimants in Canada class; and

(c) the deferred removal orders class.

     However, any person who comes within the purview of the Act may apply under subsection 114(2) for compassionate or humanitarian (H & C) consideration. The process for subsection 114(2) consideration is informal and highly discretionary. The level of fairness in this process is very low and reasons are not required. In the instant matter the H & C consideration by the visa officer was unsolicited. The visa officer determined that no compelling H & C considerations existed. He came to the conclusion that the applicants should be able to earn a living in that they were sufficiently educated and trained. The applicants would also continue to have the support of the siblings who were to remain in Vietnam. Counsel for the respondent stressed that the principal application for permanent residence by the applicant father had been allowed and that four of the six people included in this application were to be granted entrance visas. Any hardship caused by the family's move to Canada could not trigger consideration for compassionate or humanitarian reasons because the decision to leave Vietnam rests solely with the family.

     The court has commonly held that findings of fact by a visa officer are not subject to review unless the visa officer's conclusions are patently unreasonable. (Lim v. M.E.I. (1991), 121 N.R. 241, 12 Imm.L.R. (2d) 161 (F.C.T.D.)) There is nothing on the record or in the correspondence to the applicant from the visa officer which would indicate a patently unreasonable decision. The visa officer in these circumstances went beyond what is normally required of his position. He granted the applicants an interview for which there was no statutory entitlement and he invited the applicants to make submissions on the issue of their dependency not only once but twice. The decision rendered by the visa officer was clearly within his decision-making jurisdiction and he employed a level of fairness well above what is usually required. The visa officer had to examine the evidence and determine what weight should be attributed to each piece of evidence. He discharged this duty in a diligent and reasonable fashion and in so doing committed no reviewable error.

     For these reasons this application for judicial review is dismissed.

O T T A W A

May 26, 1997                      "James A. Jerome"                              A.C.J.