Date: 19990622
Docket: IMM-3533-98
BETWEEN:
MARKO MOUDRAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant, a citizen of the Ukraine, seeks judicial review of the decision of Mr. Grupp, the Immigration officer, dated June 22, 1998, determining that insufficient humanitarian and compassionate ("H & C") grounds exist to warrant a recommendation pursuant to section 114(2) of the Immigration Act to authorize the Minister to exempt Mr. Moudrak (the "applicant") from the requirements in section 9(1) of the Act.
[2] The issues are:
1) Did the Immigration officer commit a reviewable error of fact?
2) Was there a reasonable apprehension of bias?
[3] The applicant applied pursuant to section 114(2) of the Immigration Act for an H & C review of his case on October 8, 1997. In a second letter from his counsel also dated October 8, 1997, the counsel asked for the two applications of his mother and the applicant to be considered together, notwithstanding they were two separate applications. His counsel stated the reason for Marko's separate application is due to his age. He is no longer, under Immigration Regulations, considered to be a dependant of his mother.
[4] Originally, the applicant had applied for landing on January 10, 1994, through the Buffalo, New York visa office. At that time he was a dependant of his mother. The Immigration Officer whose H & C decision is the subject of this review, thought that the landing application was not processed until September 1994, when the applicant was no longer a dependant, and therefore mischaracterized the 1994 landing application, stating the applicant had not been a dependent at that time. The Immigration Officer made an error, but was it a reviewable error?
[5] Shaw v. Canada (Minister of Employment and Immigration) [1994] 81 F.T.R. 320 (F.C.A.) stands for proposition that the duty of fairness in the case of an immigration officer making a decision pursuant to section 114(2) is minimal.
[6] The Immigration Officer has not acted in bad faith, nor has he made a perverse or capricious finding of fact. If I was reviewing the decision based on the application for landing, it would have been a reviewable error, but even his own counsel admitted in his letter that the applicant was not a dependant for the purposes of the H & C application. The Immigration Officer reviewed the evidence relating to the applicant, such as his remaining in Canada illegally for two years, and his failed Convention refugee application, his work record, and other matters. The Immigration Officer then concluded, however, that "Marko's story does not in the end offer sufficient compelling H & C elements to persuade me that he ought to be exempt from either the Immigration Act or the normal prescribed CIC policies that deal with H & C requests." There is no reviewable error.
[7] The applicant also submits that there was reasonable apprehension of bias. The officer and his supervisor used politically incorrect terms such as "sonny", "the boy", and other terms which are inappropriate, but do not give rise to bias. These are not sexist remarks such as made against the applicant in Yusuf v. MEI [1992] 1 F.C. 629 (F.C.A.). These are unwarranted and irrelevant observations but do not reach the level of giving the impression that the originator was biased. The remarks were made in the context of frustration of the members of the Kitchener Immigration Office over the fact that nearly three years after the removal order in November 1994, the applicant was still in Canada. As I have stated, the remarks were not appropriate, but do not give rise to reasonable apprehension of bias. The references to "scuppered" again must be taken in the context of frustration. It may indicate a tentative point of view on the case, but it does not reach the level of bias. (See Walsh J. in Takamo v. Canada (Minister of Manpower and Immigration) [1977] 2 F.C. 438 (F.C.T.D.) at page 4):
| Nor would the mere possession of a tentative point of view on the case when he was on the threshold of the inquiry disqualify Mr. Brooks. Many a judge from having read the pleadings and related material in the case find themselves in precisely that position, but he recognizes that to perform his task properly he must remain constantly in the grip of his judicial function and not yield to his preconceptions or become captive to unexamined and untested preliminary impressions. |
[8] The application for judicial review is dismissed.
"W.P. McKeown"
Judge
TORONTO, ONTARIO
June 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3533-98
| STYLE OF CAUSE: MARKO MOUDRAK |
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, JUNE 22, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: TUESDAY, JUNE 22, 1999
APPEARANCES: Mr. Hart Kaminker
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: Kranc & Associates Barristers & Solicitors
410-212 King St.,
Toronto, Ontario
M5H 1K5
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990622
Docket: IMM-3533-98
Between:
MARKO MOUDRAK
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER