Date: 20000815
Docket: IMM-4867-99
BETWEEN:
MARIE KETTLY ARTHUR
Plaintiff
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision by the Immigration Board on September 13, 1999 by which the Appeal Division dismissed the plaintiff's appeal to sponsor her son ("the applicant").
FACTS
[2] The plaintiff arrived in Canada in October 1988 with her daughter as visitors, for her father's funeral. In 1993 she was granted refugee status because of problems in Haiti. She obtained permanent residence in 1994. The plaintiff has two sons who are still in Haiti and whom she visits for a month each year.
[3] In 1995 she began proceedings to sponsor her two sons, then 25 and 27 years old. She subsequently withdrew her application for Ernscelyn, who has completed his studies and is practising medicine in his country. Frantz was still studying and lived by himself.
[4] The plaintiff has always sent her sons money for their support.
[5] The sponsorship application was dismissed by the Government of Quebec on the ground that the plaintiff was not financially able to perform her undertaking in respect of the applicant.
[6] The visa officer considered that the applicant was a person covered by s. 19(1)(b) of the Immigration Act, in that she was or would be unable or unwilling to support herself and persons dependent on her for care and support.
DECISION OF APPEAL DIVISION
[7] The Appeal Division noted that, as provided in s. 77(3.1) of the Act, it did not have jurisdiction in law to consider the refusal by the Government of Quebec. The plaintiff then argued that there were humanitarian considerations that warranted the granting of special relief.
[8] The Appeal Division noted that the plaintiff had transferred a lot of money to Haiti, that she kept in touch with her sons by telephone and that she went to visit them for a month every year.
[9] The Division noted that the plaintiff left her son in 1988 when he was only 16, to come and settle in Canada.
[10] The Appeal Division concluded that she had to some extent lost touch over the years. It mentioned that the plaintiff could not give particulars of what the applicant had been doing in recent years and did not know exactly what year he was in or the cost of his studies. She explained she sent the money to a woman. The Division did not find the plaintiff's testimony about the transfer of money credible, since the money was addressed to the applicant.
[11] The Appeal Division concluded that after considering all evidence presented the plaintiff had not discharged the burden of proof upon her of showing that there were humanitarian considerations warranting the granting of special relief.
[12] It accordingly dismissed the appeal.
PLAINTIFF'S ARGUMENTS
[13] The plaintiff argued that the Appeal Division minimized certain points, in particular the transfer of money, the telephone contacts and the trips to Haiti.
[14] The plaintiff alleged that the Division failed to note the details accompanying each transfer of money, in particular that the money was intended to pay for food, education or even specific products.
[15] The plaintiff alleged that the telephone calls were an essential means of maintaining the close relationship between the family.
[16] The plaintiff submitted that she had acted as mother and father to the children and that separation and distance did not weaken their attachment.
[17] The plaintiff alleged that these trips to Haiti each year showed the close relationship between herself and her children. She even went to the U.S., when her elder son was travelling in that country, as he could not obtain a visa to enter Canada.
[18] The plaintiff argued that the Appeal Division had failed to consider the fact that she was not earning the salary required by the Act. The plaintiff maintained that this point should be considered in conjunction with the following points:
(a) at the time of the rejection the plaintiff was earning $18,280, whereas she had to earn $26,422;
(b) the expenses incurred by the plaintiff were enormous and could enable her to support her son if he was admitted to Canada;
(c) the plaintiff's employer was prepared to hire the son.
[19] The plaintiff submitted that the Appeal Division failed to consider that the applicant's age, ambition and positive outlook indicated that he had the intention and ability to quickly become financially independent.
[20] The plaintiff indicated that they had lived apart since 1988 against her wishes. Her son was living by himself in Haiti, because the elder son was assigned to various provinces. She said she lived alone since her daughter had established her own family.
[21] With regard to the Appeal Division's objection about the education of her son, that he had very little, the plaintiff maintained that she could not say exactly how long he had been in school. Further, this deficiency was not of great relevance in determining the attachment and the strength of the ties between them.
DEFENDANT'S ARGUMENTS
[22] The defendant submitted that the plaintiff had not discharged her burden of proof by alleging that the Appeal Division minimized the importance of certain points in the evidence. She did not show that the Appeal Division failed to exercise its discretion in a bona fide manner, was influenced by irrelevant considerations or had acted arbitrarily or illegally.
[23] The defendant maintained that in order to reverse the decision it was not sufficient to argue, as the plaintiff did, that her trips to Haiti were not only significant (as the tribunal found) but quite exceptional. Perhaps another person making the decision would not have drawn the same conclusions from the evidence after making his or her discretionary analysis.
[24] As to the plaintiff's argument that the Division should have considered the evidence in terms of the legal obstacle, the defendant indicated that this argument disregarded s. 77(3.1) of the Act. Under that subsection, the plaintiff could not raise points of law or fact about this aspect of the refusal.
[25] The defendant submitted that there was a presumption that the Division had considered all the evidence, without it having to indicate this.
[26] In his supplementary memorandum the defendant pointed out that certain conclusions sought had been added to the plaintiff's supplementary memorandum.
[27] The defendant submitted that this Court could refer the matter back to the Appeal Division, but it could not quash the decision of the Canadian Embassy in Haiti or substitute its opinion for that of the Appeal Division.
ANALYSIS
[28] Section 77(3) and (3.1) provides:
| (3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants: 1) question de droit, de fait ou mixte; 2) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale. (3.1) Dans le cas où une province, aux termes d'un accord conclu en vertu de l'article 108, exerce seule la responsabilité de la fixation et de l'application des normes financières relatives aux demandes d'engagement, le répondant ne peut en appeler, en invoquant un des moyens prévus à l'alinéa (3)a), du refus de l'agent d'immigration ou de l'agent des visas d'octroyer le droit d'établissement à un parent en raison du rejet par le fonctionnaire provincial compétent de sa demande d'engagement, au motif soit qu'il ne satisfait pas aux normes financières de la province où il réside, soit qu'il a manqué à un engagement antérieur, si la législation de la province accorde un droit d'appel au répondant du rejet de sa demande d'engagement. |
(3) Subject to subsections (3.01) and (3.1) a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds: (1) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and (2) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief. (3.1) No appeal lies to the Appeal Division under subsection (3) on any grounds referred to in paragraph (3)(a) where the Canadian citizen or permanent resident who has sponsored the application for landing that is refused pursuant to subsection (1) resides in a province that has entered into an agreement pursuant to section 108 whereby the province has sole responsibility for establishing and applying financial criteria in relation to sponsors if (a) the refusal is based on the rejection of the person's application for sponsorship by an official of that province on the grounds that the person failed to meet those criteria or failed to comply with any prior undertaking concerning the sponsorship of any application for landing; and |
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| (b) the laws of that province provide the person with a right to appeal the rejection of the person's application for sponsorship. |
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[29] The plaintiff's argument that the Division failed to assess the evidence in terms of the refusal by the Government of Quebec cannot be accepted, since the right of appeal is expressly excluded by legislation. The Appeal Division did not have jurisdiction to assess the government's refusal, especially as the plaintiff did not have the right to appeal.
[30] As to the exercise of the discretionary power conferred on the Appeal Division under s. 77(3)(b) of the Act, this Court explained in Dimacali-Victoria v. Canada (M.C.I.) (August 29, 1997), IMM-3323-96 (F.C.T.D.):
Here, while the decision of the IAD is not a preliminary step as in a recommendation under subsection 114(2), it does involve what I am satisfied is a discretionary grant of an exemption from the ordinary requirements of the Immigration Act that an individual such as the applicant's father is not admissible to Canada. I am satisfied that the determination of the IAD under paragraph 77(3)(b) is, like the decision in question in Shah, ". . . wholly a matter of judgment and discretion and the law gives [persons such as the applicant herein who was the appellant before the IAD] no right to any particular outcome".
Against the foregoing considerations, I am satisfied that the IAD made no reviewable error. It was not alleged before me that the IAD refused to exercise its jurisdiction. I am satisfied that it exercised its discretion in accordance with well established legal principles, that is to say in a bona fide manner, uninfluenced by irrelevant considerations and not arbitrarily or illegally. The concerns that it took into consideration were clearly relevant to the determination that it was called upon to make.
[31] I cannot accept the plaintiff's argument that the Appeal Division minimized certain points. It noted that the plaintiff had sent her children a lot of money, that she often talked to them on the telephone and that she travelled to see them every year despite her fear of persecution. Additionally, the Division did not ignore the applicant's particular characteristics. It indicated that he was still a student and financially dependent on his mother.
[32] The Division did not find that humanitarian considerations existed to warrant the granting of special relief. This was a conclusion it was free to make, bearing in mind that the relief is discretionary, and based on the evidence submitted. Another tribunal might have arrived at a different conclusion, but it is entirely a matter of discretion. The plaintiff did not show that the decision was unreasonable or that the discretionary power was not exercised bona fide in accordance with the rules of natural justice, or that the Division relied on irrelevant considerations.
[33] For these reasons, this application for judicial review is dismissed.
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Pierre Blais Judge |
OTTAWA, ONTARIO
August 15, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-4867-99
STYLE OF CAUSE: MARIE KETTLY ARTHUR
v.
MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: AUGUST 4, 2000
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: AUGUST 15, 2000
APPEARANCES:
JOSEPH DULLIN JEAN FOR THE APPLICANT
ANNIE VAN DER MEERSCHEN FOR THE RESPONDENT
SOLICITORS OF RECORD:
JOSEPH DULLIN JEAN FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada