Date: 19980706
Docket: IMM-1782-97
BETWEEN:
JUAN FERNANDO VALENCIA MEDINA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario,
on Monday, July 6, 1998)
HUGESSEN J.:
[1] This is an application to review and set aside a decision of an Immigration Officer not to recommend that the applicant be granted an exemption from the provisions of the Immigration Act on humanitarian and compassionate grounds pursuant to subsection 114(2) of that Act.
[2] It is well established that the burden on any applicant who seeks to set aside such an exercise of discretion and judgment as the one here in issue is, indeed, a very heavy one. The applicant's principal submission as I understand it is that the officer here breached the duty of fairness by failing to consider all of the material which was submitted to her in support of the application. If that submission were supported by the evidence and if I were satisfied as to it, there would be no question in my mind that the Officer would have breached the duty of fairness. Applicant's counsel also suggested that such a breach somehow also gave rise to a reasonable apprehension of bias under the well known test for that ground of review but I confess that I did not then, and do not now, understand that submission. If, as I say, the ground is established, if the factual framework is established, the applicant succeeds because there has been a breach of the duty of fairness. If the framework is not established, the applicant fails and the addition of the concept of reasonable apprehension of bias does nothing to strengthen his case.
[3] On the facts of this case, the framework upon which the applicant relies is simply too feeble to support the review which is sought. The applicant points to the circumstances in which the Officer made her decision. She conducted a forty-five minute interview with the applicant at nine o'clock in the morning. She had one or more other interviews following on at 9:45 and perhaps later. She indicated at the time, at the end of the interview, that she had not at that time read all of the material which was then in the file before her and she also indicated that the applicant might not receive a decision for a period of one to four months.
[4] In fact, it is perfectly clear, that the Officer reached her decision later the same day. The applicant invites me to conclude from those bare circumstances that the Officer must have reached her conclusion without reading the material. I simply cannot draw that conclusion. First of all, the Officer, in her own personal notes, written in the file on the day in question, indicates that she has reviewed all the material. She also makes the same statement in the refusal letter, which was later sent to the applicant. Applicant's counsel invites me to dismiss these statements as being mere "boiler plate" to use her expression.
[5] They are not mere boiler plate. Especially, the statement contained in the Immigration Officer's notes. Furthermore, they are not inherently improbable. There is nothing extraordinary to me about a decision maker saying at 9:45 in the morning that she has not read all the material in the not very voluminous file before her, and, in fact, reading all that material and coming to a conclusion on it by the end of that working day. I have had some experience with decision making and I know that one can, if circumstances are right, reach a decision on material of this sort within that time frame without very much difficulty, especially if one is familiar with the matter.
[6] As a second ground of review, or perhaps as a support for the allegation that the Officer did not fully review all the material, the applicant suggests that I should conclude that the Officer failed in her duty of fairness because of the nature of the conclusion she reached. To put the matter another way, it is the applicant's position, if I understand it correctly, that no reasonable Immigration Officer who reviewed all the materials submitted could possibly have reached a decision adverse to the applicant. In response to that submission, I can only say that I disagree. While it is true that I, or another, might have reached a decision favourable to the applicant on the basis of those materials, it is absolutely impossible for me to say that the contrary decision is patently unreasonable. As I said at the outset, the decision reached by the Immigration Officer is one which relies heavily on the exercise of discretion and judgment and the burden on the applicant is a heavy one, indeed. It has not been met.
[7] There is one final and minor point which was taken by applicant's counsel which I mention only because I find it to be far-fetched. It is said that the Immigration Officer failed to consider all the evidence before her because the applicant, when speaking of his attempts to establish himself here in Canada, spoke of his having started to train in the making of costume jewellery. He then offered to show the Immigration Officer some samples of costume jewellery which he said he had made and she declined the offer. To elevate that trivial incident, as counsel appears to want to do, to the level of a refusal to receive evidence appears to me to be wildly extravagant. If the Officer had in fact refused to receive evidence there would be other issues raised, but the mere fact that she, apparently politely, declined to look at the applicant's samples of his wares is a far cry from a refusal to receive evidence.
[8] In the circumstances, therefore, the application will be dismissed. If counsel have any submissions to make as to questions of general importance, I will hear them now.
"James K. Hugessen"
Judge
Toronto, Ontario
July 6, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1782-97
| STYLE OF CAUSE: JUAN FERNANDO VALENCIA MEDINA |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 6, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HUGESSEN, J.
DATED: JULY 6, 1998
APPEARANCES:
Ms. Pamela Bhardwaj
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD:
Bhardwaj Pohani Law Office
2161 Yonge Street
Suite 806
Toronto, Ontario
M4S 3A6
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980706
Docket: IMM-1782-97
Between:
| JUAN FERNANDO VALENCIA MEDINA |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER