Date: 19980818
Docket: IMM-3731-97
Between:
CARMEN BARCELONA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of Chantal Sarrazin, a delegate of the Minister of Citizenship and Immigration, dated August 18, 1997, denying the applicant a ministerial exemption on humanitarian and compassionate considerations from the requirement that she make her application for permanent residence from outside Canada. The Minister's delegate explained that her review of the circumstances of the applicant's case showed that there were insufficient humanitarian or compassionate considerations to warrant the granting of the ministerial exemption requested. She said that as a result, the applicant should make her application for permanent residence at an office outside Canada, as required by subsection 9(1) of the Immigration Act .
[2] In a case like this, the applicant has a heavy burden of proof to discharge. In Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238, at pages 239 and 240, the Federal Court of Appeal dealt with the duty of an immigration officer to act fairly in the exercise of discretion pursuant to subsection 114(2) of the Immigration Act:
| In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence [See Muliadi v. Minister of Employment and Immigration (1986), 66 N.R. 8; 18 Admin.L.R. 243 (F.C.A.)]. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. Any dicta arguably to the contrary in H.K. (An Infant), Re, [1967] 2 Q.B. 617; Kaur v. Minister of Employment and Immigration (1987), 5 Imm.L.R. (2d) 148 (F.C.T.D.), and Ramoutar v. Minister of Employment and Immigration, [1993] 3 F.C. 370; 65 F.T.R. 32 (T.D.), should be read in this light. |
| To succeed in his attack here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith [See Vidal and Dadwah v. Minister of Employment and Immigration (1991), 41 F.T.R. 118; 13 Imm.L.R. (2d) 123 (T.D.). And generally as to the standard of review of statutory discretions see Fraser (D.R.) & Co. v. Minister of National Revenue, [1949] A.C. 24 (P.C.)]. It is a heavy burden and the applicant has not met it. . . . |
[3] Furthermore, the Federal Court of Appeal in that case adopted the strict standard recommended by Mr. Justice Strayer in Vidal and Dadwah (supra), where, in particular, he expressed the view that the Court must not intervene unless it is clear that an officer acted in bad faith.
[4] In the case at bar, after granting lengthy interviews to the applicant and her son, the Minister's delegate considered several factors before refusing the application for a ministerial exemption:
| - the applicant went to France and back in 1996 despite claiming that she is unable to travel; |
| - the applicant did not sell her house in France, contrary to a prior statement, but rented it and is waiting to see whether her application for permanent residence is approved before giving it up; |
| - the applicant's son stated that she did not live with him, thereby contradicting his mother; |
| - when the applicant arrived in Canada in 1995, it had been three years since she and her son had seen each other; |
| - the applicant had suffered a stroke, and her son knew very little about her situation; |
| - the applicant and her son failed to show any ties of emotional or economic dependency. |
[5] In the circumstances, after hearing counsel for the parties and reviewing the evidence, I must find that the applicant has not discharged the heavy burden which was on her, of showing that the Minister's delegate erred in law, proceeded on some wrong or improper principle or acted in bad faith.
[6] In the result, the application for judicial review is dismissed. Having regard to the nature of the instant decision and to the decision in Shah (supra), I am of the view that there is no question to be certified.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
August 18, 1998
Certified true translation
Peter Douglas
Date: 19980818
Docket: IMM-3731-97
Ottawa, Ontario, the 18th day of August 1998
Present: The Honourable Mr. Justice Pinard
Between:
CARMEN BARCELONA
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of Chantal Sarrazin, a delegate of the Minister of Citizenship and Immigration, dated August 18, 1997, denying the applicant a ministerial exemption on humanitarian and compassionate considerations from the requirement that she make her application for permanent residence from outside Canada, is dismissed.
YVON PINARD
JUDGE
Certified true translation
Peter Douglas
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3731-97
STYLE OF CAUSE: CARMEN BARCELONA v. MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 22, 1998
REASONS FOR ORDER BY PINARD J.
DATED August 18, 1998
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Claude Provencher FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenburg FOR THE RESPONDENT
Deputy Attorney General of Canada