Date: 20000914
Docket: IMM-1105-99
BETWEEN:
SERGEY DROZDOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Sergey Drozdov seeks judicial review on his own behalf, and on behalf of his former wife Olga and their son Elia, of the decision of a senior immigration officer dated February 9, 1999 refusing their request made under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, on humanitarian and compassionate grounds for a waiver of the requirement to apply for landing outside of Canada.
[2] I have taken a hard look at the reasons of the senior immigration officer for the purpose of assessing whether his decision was reasonable. The proper test is to evaluate whether the officer's reasons can stand up to a somewhat probing examination, so as to determine whether there was an absence of evidence to support the decision of the senior immigration officer, or whether the officer's decision was made contrary to the overwhelming weight of the evidence.
[3] I have also assessed whether the senior immigration officer considered the best interests of the child, Elia, as an important factor.
[4] Applying those principles, I am unable to conclude that the senior immigration officer's decision is unreasonable. The officer did not fail to consider the evidence before him. It is significant that in oral argument, counsel for the applicant could not point to any positive factor which the officer was said to have failed to consider. Furthermore, the officer's decision cannot be said to have been made contrary to the overwhelming weight of the evidentiary record before him. The senior immigration officer gave appropriate weight and consideration to the best interests of Elia.
[5] I have considered as well whether or not the senior immigration officer breached the duty of fairness owed to Mr. Drozdov and his family. In this case, the senior immigration officer did not rely on any extrinsic evidence in reaching his decision. The decision was based on the submissions made on behalf of Mr. Drozdov. Therefore, the senior immigration officer did not breach the duty of fairness by failing to put to Mr. Drozdov tentative conclusions the officer was drawing from the material.
[6] In the result, notwithstanding the forceful submission of Mr. Drozdov's counsel, I have concluded that the application for judicial review should be dismissed.
[7] Mr. Drozdov submitted two questions for certification. They are:
| 1. Whether the principles of procedural fairness require an immigration visa officer in dealing with a request for exemptions on humanitarian and compassionate grounds under s. 114(2) of the Immigration Act in a reasonable exercise of his discretion to pay close attention to the strong desire of the applicant and his wife to remain in Canada with their son and avoid the hardships that a return to their country of citizenship would cause, as manifest in the decision of husband and wife to divorce and remarry citizens of Canada so they could each be sponsored for permanent residence, without drawing adverse inferences from the fact that the remarriages were remarriages of convenience for immigration purposes, a finding by Canada Immigration that led to a dismissal of their application for landing as sponsored spouses. |
| 2. Whether the principles of procedural fairness require an immigration officer exercising discretion in a humanitarian and compassionate grounds request for exemption to refrain from stereotyping persons as undesirable candidates for permanent residence in Canada on the grounds that there are too many persons from the former Soviet Union using Israel as a stepping stone to immigrate to Canada in circumstances were the applicants did make an honest attempt to become citizens of Israel but suffered persecution because of harassment from private citizens of Israel trying to make them convert to Judaism. |
[8] The Minister opposed certification of either question.
[9] I have concluded that neither question should be certified. With respect to the first question, I find that it is neither of broad significance nor of general importance. As submitted on the Minister's behalf, the question seeks to mandate how an immigration officer must apply the principles of natural justice in a very unique factual situation.
[10] With respect to the second question, again I accept the Minister's submission that the question not be certified. The question is based upon facts not in evidence. The question is not one of general importance as the essence of the question is either captured by arguing that the officer was biased, which was not at issue in this case, or by arguing that the officer did not weigh the evidence in a reasonable fashion.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
September 14, 2000