Date: 20040928
Docket: IMM-1253-04
Citation: 2004 FC 1330
OTTAWA, ONTARIO, THIS 28TH DAY OF SEPTEMBER, 2004
PRESENT: THE CHIEF JUSTICE
BETWEEN:
GUO XIN HUANG
Applicant
- and -
SOLICITOR GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
LUTFY C.J.
[1] The applicant challenges an immigration officer's refusal to allow him to apply for permanent residence from within Canada, under the humanitarian and compassionate exemption in section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In dismissing this application for judicial review, I have been guided by two fundamental principles enunciated in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125.
[2] First, it was appropriate for the immigration officer to consider the circumstances surrounding the applicant's entry into Canada, in addition to the other factors raised in his favor. This is made clear in Legault:
¶ 19 ... The Minister, who is responsible for the application of the policy and the Act, is definitely authorized to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.
It was not an error for the immigration officer to note that the applicant would have had an excellent chance to succeed under the point system if he had applied for permanent residence from overseas. In the words of the immigration officer, the applicant, a failed refugee claimant, _... chose not to apply legally, instead bribing officials in China to issue him permission to travel abroad._
[3] Again, as stated in Legault, weighing the evidence in a section 25 application is the domain of the immigration officer and not the courts:
¶ 11 .... the weighing of relevant factors is the responsiblity of the Minister or his delegate. ... [I]t is up to the immigration officer to determine the appropriate weight to be accorded ... in the circumstances of the case. It is not the role of the courts to re-examine the weight given to the different factors by the officers.
[4] Here, the immigration officer understood that the applicant practiced traditional Chinese medicine and taught at the Canadian College of Oriental Medicine in Vancouver. This is clear from his notes. It is incorrect to assert that these factors were not considered by the immigration officer.
[5] Also, the immigration officer found there was insufficient evidence to estabish that the applicant's return to China would cause injury to any Canadian patients or to the functioning of the College. This finding is not inconsistent with his note that there were few practioners in Canada in the applicant's field of expertise. It was open to the immigration officer to draw this factual conclusion from the contents of the letters from three of the applicant's patients and one from a clinic where he worked . The letters describe problems the applicant had already solved for them and make no comment concerning potential harm that might be suffered by the patients of the clinic from his departure. The reference to _injury_ instead of _unusual and undeserved or disproportionate hardship_, in the circumstances of this case, constitutes neither a wrong test nor a reviewable error.
[6] According to paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7, the Federal Court may intervene when a tribunal "...based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it." This standard of review is equivalent to the patent unreasonableness test: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39 at paragraph 14.
[7] This is a purely factual case. The attack on the immigration officer's decision is based solely or substantially on the immigration officer's findings of fact. Patent unreasonableness, therefore, may be the more appropriate standard to apply this proceeding.
[8] Both counsel relied on the more conventional interpretation of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and urged the reasonableness simpliciter standard should apply in reviewing a negative humanitarian and compassionate decision. The issue of standard of review was not fully argued. In any event, I have concluded, after a "somewhat probing examination", that the decision of the immigration officer was not unreasonable, let alone patently unreasonable.
[9] Neither party suggested the certification of a serious question and none will be certified.
ORDER
This application for judicial review is dismissed.
"Allan Lutfy"
C.J.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1253-04
STYLE OF CAUSE: GUO XIN HUANG v. SOLICITOR GENERAL
OF CANADA
PLACE OF HEARING: Vancouver, Ontario
DATE OF HEARING: September 16, 2004
REASONS FOR Order : The Chief Justice
APPEARANCES:
Shane Molyneaux FOR APPLICANT
Rebecca Winesanker Hunter FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon and Associates FOR APPLICANT
Barristers and Solicitors
Vancouver, British Columbia
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Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Vancouver, British Columbia
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