Federal Court Decisions

Date: 20020516

Docket: IMM-1739-01

Neutral citation: 2002 FCT 567

BETWEEN:

                                                             KIRPAL SINGH MANN

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

[1]                 These reasons arise out of an application for judicial review of a decision of an Immigration Officer rejecting the applicant's application pursuant to subsection 114(2) of the Immigration Act^[1] for landing from within Canada on humanitarian and compassionate grounds. The Immigration Officer's decision was conveyed to the applicant by letter dated the 22^nd of March, 2001.

[2]                 The applicant is a 43 year old citizen of India who arrived in Canada on the 10^th of July, 1993. He made a claim to Convention refugee status which was denied. He sought leave from this Court for judicial review of the rejection of his Convention refugee claim but leave was denied.

[3]                 Sometime after his arrival in Canada, the applicant obtained a work permit. He obtained employment in June of 1994 but unfortunately suffered severe injuries in an automobile accident some two weeks later. The applicant was unable to work for a considerable period of time and required extensive physiotherapy. While his condition is now much improved, he still suffers from some disability. The applicant no longer has a work permit but he has extensive experience in construction work in India and has evidence of employment opportunities available to him in Canada.

[4]                 By reason of his injuries, the applicant received a substantial insurance settlement. In the result, by the time he applied for landing from within Canada on the 15^th of July, 1999, he owned a condominium apartment in Canada, had a substantial bank balance in Canada and also owned his own vehicle.

[5]                 While the applicant was married in India and he and his wife have five (5) children, it has obviously been some years since he has seen either his wife or his children. In October of 1998, he met a woman here in Canada with whom he entered into a relationship. Like the applicant, she is from India and is without status in Canada. The applicant and his companion have one child born on the 5^th of February, 2000, who is a Canadian citizen. Before making his application for landing from within Canada, the applicant had commenced divorce proceedings against his wife in India.

[6]                 The applicant is unemployed outside his home. He is the primary caregiver to his young Canadian child. His companion is employed outside the home. In addition to his homemaker role, the applicant is active in work at his temple. He has acquired a working knowledge of English and has encountered no difficulties with the police in the time that he has been in Canada.

[7]                 The Immigration Officer's notes in support of her decision to deny the applicant the opportunity to apply for landing from within Canada on humanitarian and compassionate grounds are to the following effect:

The information, sumbissions and cicrumstances in this case, I am not satisfied that sufficient H & C grounds exist to warrant an exemption to the normal legislative requirements. Applicant's refugee claim was denied and appeal of the negative decision denied in 1994. He is now under an effective deportation order. Applicant wishes to apply for permanent residence from within Canada as he states he is currently involved in a common law relationship with Ms. Kuldip Kaur and they have a 1 year old Canadian child together. I have noted that Ms. Kaur does not have any status in Canada. She is also a refused refugee claimant who is under an effective deportation order. I do not see any extenuating reasons why the applicant along with his common law spouse cannot return to India with their daughter to live; their daugther is young enough that she would adapt to any country [where] her parents decided to live and would not suffer any hardship if she returned to India with her parents to live. Applicant states he has close family ties to Canada since his brother, sister and other more distant relatives reside in Canada. Applicant however has closer family ties with his home country since he has 5 dependant children from his marriage as well as his parents and 5 other siblings residing in India. Applicant is not currently working in Canada; he is insufficiently established in Canada; no disproportionate or undue hardship should applicant be required to return to India to submit an application for permanent residence in the normal way as required by the Immigration Act. Applicants common law spouse could return to India with him in view of the fact she is under a removal order also. Therefore, after considering all the information, I am not satisfied that sufficient H & C grounds exist to warrant waiving A9 (1).^[2]                                                                                                               [errors appearing in this quotation are carried forward from the original]

[8]                 Counsel for the applicant submitted that the Immigration Officer erred in a reviewable manner in four respects: first, by erring in law and ignoring and misinterpreting the evidence before her; second, by taking into account irrelevant matters in reaching her decision to refuse the applicant's application; third, in arriving at an unreasonable decision by effectively failing to consider the best interests of the applicant's Canadian born child; and finally, by erring in law in breaching the duty of fairness because the officer did not give the applicant an opportunity to respond to the concerns that she had, based upon submissions made by and on behalf of the applicant.

[9]                 It is now well established that the standard of review of decisions such as that here at issue is reasonableness simpliciter^[3]. In Canada (Director of Investigation and Research) v. Southam Inc.^[4] Mr. Justice Iacobucci wrote at paragraph 56:

I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that , in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it.    

The standard to which Mr. Justice Iacobucci refers as one of unreasonableness or, conversely, reasonableness, is, I am satisfied, the same standard that is referred to in the Baker decision as reasonableness simpliciter.

[10]            In Legault v. Canada (Minister of Citizenship and Immigration)^[5], Mr. Justice Décary, for the Court, wrote at paragraph [11]:

In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to reexamine the weight given to the different factors by the officers.                                                        [emphasis added]

The references in the foregoing quotation to "Suresh" are to Suresh v. Canada (Minister of Citizenship and Immigration)^[6].

[11]            I wish to note the able submissions of counsel for the applicant and the sympathy that, in my view, the applicant's case attracts. The sympathy evoked flows particularly from the length of time that the applicant has been in Canada, the difficulties that he has encountered and, it would appear, overcome while in Canada, his new relationship in Canada and the Canadian born child of that relationship, and, what I conclude must be an obvious reality, that the applicant is now closer to his relatives and friends in Canada than he is likely to be to his family members in India, particularly having regard to the length of time he has been absent from India and the divorce proceedings that he has instituted in India. That being said, I cannot conclude that the Immigration Officer ignored or misinterpreted evidence before her, took into account irrelevant matters or failed to consider the best interests of the applicant's Canadian born child. I am satisfied that the Immigration Officer's notes, quoted earlier in these reasons, reflect consideration of all of the factors placed before her by the applicant and that she was bound to consider. That I might have weighed those factors differently is not a basis on which I might grant this application for judicial review.

[12]            There remains the issue of whether or not the Immigration Officer erred in a reviewable manner by breaching the duty of fairness owed by her to the applicant when he was not given an opportunity to respond to the Immigration Officer's concerns.

[13]            In submissions regarding the applicant's application for landing from within Canada on humanitarian and compassionate grounds submitted to the respondent under cover of a letter dated the 15^th of July, 1999, the following paragraph appears:

Should you have any concerns with regard to the above mentioned [the submissions], we would request that those concerns be stated to us, so that we can have an opportunity to respond to them. Should you required any further information or documentation, please do not hesitate to contact the undersigned.^[7]

[14]            A substantial period of time elapsed following transmission of the applicant's submissions to the respondent. In the result, on the 17^th of January, 2001, the Immigration Officer whose decision is here under review wrote to the applicant in care of her counsel and provided him with an opportunity to make supplementary submissions. No concerns on the part of the Immigration Officer were identified in her communication.

[15]            In Sadeghi v. Canada (Minister of Citizenship and Immigration)^[8], Mr. Justice Evans, in the context of a similar issue raised in respect of the rejection of an application for a visa, wrote at paragraph 14 and following:

It is important to emphasize the particular context in which this question of procedural fairness arises. Paragraph 11(3)(b) [of The Immigration Regulations, 1978] is an extraordinary power intended for exceptional cases, and does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria or to support a view that the applicant does not in some way quite "measure up": ....

Hence, in exercising the power conferred, by paragraph 11(3)(b) the visa officer made a discretionary decision depriving the appellant of his legitimate expectation that, having satisfied the specific statutory selection criteria, most of which are geared towards assessing an applicant's prospects for becoming economically established in Canada, he would be issued with a visa, unless he was found inadmissible under subsection 19(1)... of the Immigration Act. Decisions removing a person's legitimate expectation of receiving a benefit typically attract greater procedural protection than those where the discretion is at large.

...

The burden normally borne by visa applicants to put their "best foot forward" by placing before the visa officer all the information necessary to demonstrate that they satisfy the selection criteria reduces the obligation of visa officers to advise applicants, as a matter of procedural fairness, of whatever concerns they may have about the adequacy of the application.                     [citations and some text omitted]

[16]            While the circumstances at issue in Sadeghi were substantially different than those now before me, I find the foregoing analysis to be useful. The decision here under review is, like the decision in Sadeghi, a discretionary decision. Once again as in Sadeghi, in light of the request contained in the applicant's submissions, it could be said that the applicant could reasonably hold a legitimate expectation that concerns of the Immigration Officer would be brought to his attention. But, once again as in Sadeghi, I am satisfied that the burden borne by an applicant for permission to seek landing from within Canada on humanitarian and compassionate grounds is to put his or her "best foot forward" by placing before the Immigration Officer all information available to support the application. In such circumstances, I am satisfied that the obligation on an Immigration Officer to advise such an applicant, as a matter of procedural fairness, of whatever concerns the visa officer may have about the merits of the application is reduced. On the facts of this matter, I am satisfied that the Immigration Officer, having taken the initiative to provide the applicant with an opportunity to up-date his submissions, met her obligations in terms of procedural fairness to the applicant.

[17]            In the result, I determine that this application for judicial review must be dismissed. An Order will go accordingly. Neither counsel recommended certification of a serious question of general importance arising on the facts of this matter. No question will be certified.

____________________________

                 J. F.C.C.

Ottawa, Ontario

May 16, 2002