Date: 20010601
Docket: IMM-4490-00
Neutral Citation 2001 FCT 570
BETWEEN:
ARTURO MATIAS, JOAN MATIAS,
LOUISE MATIAS, MARINELLA MATIAS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND
[1] Arturo Matias, his wife Joan and their two daughters Louise and Marinella, all citizens of the Phillippines, challenge a July 18, 2000 decision of Immigration Officer B. Lloyd (the "immigration officer"), who refused their subsection 114(2) of the Immigration Act (the "Act") application for a section 9 exemption in order to enable the inland processing of their application for permanent residence in Canada based on humanitarian and compassionate considerations.
[2] The Matias family originally came to Canada in May 1995 on visitors' visas in order to obtain medical help at the Sick Children's Hospital in Toronto for their daughter Louise. Medical intervention was completed in 1995.
[3] The applicants also came at the request of Joan Matias' sister, Mrs. Norma Gelua, a Canadian citizen, who suffers from acute Osteoarthritis and experienced difficulty in operating a restaurant and a Dollar store located in Downsview, Ontario.
[4] In 1996, Mrs. Gelua sponsored the Matias family's application for permanent residence which was refused by the Canadian Consulate General in Detroit, Michigan, in September 1998 and reconfirmed in March 1999.
[5] The Matias family, in April 1999, applied for the exemption which is the subject matter of this proceeding.
[6] Their request for exemption was supported by written submissions from their solicitor who invoked several humanitarian and compassionate factors including: length of stay and establishment in Canada, the necessity to assist Mrs. Gelua in the operation of the family business and their lack of ties and difficulty of re-establishment in the Phillippines.
[7] Prior to coming to Canada, Arturo Matias was a permanent employee until 1987 with the Phillippine National Bank where he held the position of Senior Credit Investigator and Analyst.
[8] In 1987, Mr. & Mrs. Matias formed a company which, until 1990, operated an import/export trading business.
[9] Prior to coming to Canada in 1995, Mr. Matias was connected as a Project Development Manager.
[10] Mrs. Matias has a degree from East Manilla University and worked in various businesses in the Phillippines. Mrs. Matias assists her sister in the operation of the restaurant/store. Mrs. Gelua's health is failing and it is expected that Mrs. Matias will replace her in the daily management and duties entailed in running the business.
THE IMMIGRATION OFFICER'S DECISION
[11] The immigration officer did not interview the Matias family.
[12] Rather, the immigration officer reviewed the written submissions from counsel for the applicant and those contained in the application for exemption itself, particularly the points related to their establishment in Canada, their relinquishment of "all ties with our home country and have nothing to return to in the Phillippines" and "my wife and I and our children will suffer extreme hardship to return to our home country and submit our application where we have relinquished all ties in the Phillippines. We would have to start our lives over from scratch".
[13] The immigration officer's decision is expressed in the following terms:
The subject and family are requesting waiver of subsection 9(1) of Canada's Immigration Act based on the following grounds, length of time in Canada, ties to Canada, establishment in Canada and family business.
I have carefully reviewed all the information on file and forwarded by counsel, while I am satisfied that the subject and family originally entered Canada May 10, 1995. The purpose of their trip seems to have been met. The subject has indicated that she and her family came to Canada to seek medical treatment for the younger daughter, which has been complete. They then submitted application for Permanent Residence to the Canadian visa office in Buffalo, New York. They were granted visitor extensions until the decision of that application. Their application was refused. I am satisfied that their original purpose in entering Canada has been met.
I have considered the subjects' ties to Canada and their establishment in Canada. While the subjects stated they have not worked, I am satisfied that they have not relied on social assistance and have been supported by Joan's sister. I am satisfied that they have done volunteering since entering Canada. The subjects were employed prior to their entry and though it may be expected to cause some hardship in trying to re-establish themselves upon their return to the Phillippines, I am not satisfied that this is sufficient grounds to warrant exception of Canada's Immigration laws.
I have considered the subjects' ties to Canada, Norma Gelua, and I have considered the letter from Ms. Gelua's physician however, there is insufficient evidence to support that Ms. Gelua cannot employ a person other than sister/brother-in-law to run either her store or cook at her restaurant.
I have considered Ms. Matias' statement of "relinquishing all ties" to the Phillippines and having to start over. While I can understand Ms. Matias' desire to remain in Canada, it was her and her spouse's decision to remain in Canada after her daughter's surgery. The subjects have established that they are extremely skilled workers, that if returned to the Phillippines they would have little difficulty in locating employment and re-establishing themselves.
I am not satisfied that if the subjects were compelled to apply in the normal manner it would result in unusual, undeserved or disproportionate hardship.
ANALYSIS
[14] The essential ground advanced by the applicants as warranting the setting aside of the immigration officer's decision is that the immigration officer failed in her duty of fairness by not according the applicant an interview. According to the applicants, fairness, in the particular circumstances, warranted an interview in order to provide the applicants an opportunity to address any concerns which the immigration officer might have or, alternatively, an opportunity to clarify or emphasize certain aspects of their application. The examples given for such need were:
(1) the immigration officer's need to know the extent of Mrs. Gelua's illness, the fact she was a widow, and her plans to transfer the day-to-day operations to Mrs. Matias;
(2) the difficulties which the applicants would face in attempting to re-establish themselves in the Phillippines;
(3) their financial circumstances and their establishment in Canada, present and future; and
(4) the unique circumstances of their being no close relatives in the Phillippines.
[15] The Supreme Court of Canada in Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R. 817 at 842, considered the content of the participatory rights required by the duty of fairness in cases of subsection 114(2) Act applications.
[16] Justice L'Heureux-Dubé, on behalf of the Court, wrote at pages 843-44:
I agree that an oral hearing is not a general requirement for H & C decisions. An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. In this case, the appellant had an opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application from a social worker at the Children's Aid Society and from her psychiatrist. These documents were before the decision-makers, and they contained the information relevant to the making of this decision. Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
[17] A review of the record indicates counsel for the applicants made extensive submissions in which he addressed the circumstances of the family business in Toronto, the difficulties of the Matias family's readaptation in the Phillippines, and their establishment in Canada. Counsel for the applicants also filed in support of the exemption application voluminous documentation from third parties.
[18] Moreover, a letter dated January 13, 2000 by the immigration officer addressed to the Matias family invited the applicants to provide any further information they wished to have considered.
[19] I am satisfied the applicants had a full and fair opportunity to put forward their case and they did so in a clear and forthright manner; in the circumstances, there was no need for the immigration officer to conduct an interview as the record was clear on its face and without need of clarification. The immigration officer's decision discloses no misapprehension of any factual element nor of the nature and scope of applicants' submissions to her.
DISPOSITION
[20] For all of these reasons, this judicial review application is dismissed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 1, 2001