Date: 20011115
Court File No.: IMM-5953-00
Neutral Citation: 2001 FCT 1253
Ottawa, Ontario, this 15th day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
LAU TING MING STEPHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review to set aside the decision of R. Albert Nauman, Immigration Programme Manager, dated November 8, 2000, who refused the applicant's request for a waiver of the requirement to apply for landing outside of Canada based on humanitarian or compassionate considerations (H & C), as provided for in s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is 57 years old, a resident of the United States and retired. The applicant's wife is 58 years old and was a teacher before losing her eyesight in 1976. The applicant and his wife applied to be exempt from the requirement to apply for landing outside Canada based on H & C grounds, in particular, arguing that most of their family (mother, brother and two sisters) live in Canada. The applicant argued that he would suffer disproportionate hardship if not re-united with his family in Canada. The Immigration Programme Manager refused the applicant's H & C application based on the following reasoning (tribunal record, page 4):
Humanitarian compassionate grounds exist when an applicant would suffer unusual, undeserve or disproportionate hardship if required to meet normal immigration requirements for obtaining a visa. Although your client has a close personal relationship with relatives in Canada and wishes to join them, I do not think that this is sufficient to invoke the humanitarian compassionate provisions of the Canadian Immigration Act. Even when using the criteria outlined in your letter, ie factors which would "excite a reasonable man in a civilized community a desire to relieve the misfortunes of another so long as these misfortunes warrant the granting of special relief," I fail to see the misfortune that would qualify your client for special relief. He is a comparatively wealthy man with legal status in the Unites States. He is not restricted from visiting his relatives in Canada as often as he chooses. Canadian immigration status is not necessary for him to maintain his relationship with his family. His entry to Canada pursuant to Section 114(2) of the Act must be refused.
[3] Prior to the H & C application which is the subject of this judicial review, the applicant had applied for permanent residence in Canada and was assessed by a visa officer, Cyril Joseph, as a retired person (NOC 9992.0). The applicant did not receive the required 70 units of assessment and was therefore refused. This decision is not under review in the current application.
[4] Although the decision of visa officer Cyril Joseph is not under review, the applicant, in his record, raises the argument in the current application that the visa officer committed a reviewable error by not exercising his positive discretion pursuant to s.11(3) of the Immigration Regulations, SOR/78-72 ("Regulations"). The application for judicial review before this Court is in relation to the H & C decision, not the decision of visa officer Cyril Joseph. Section 11(3) of the Regulations states that a visa officer may issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required under the Immigration Act. Section 11(3) has no applicability to an H & C decision and therefore the applicant's arguments concerning the exercise of positive discretion will not be considered in the current application for judicial review.
[5] The solicitor for the applicant argues that one of the cited objectives in s. 3 of the Immigration Act is to facilitate the reunion in Canada of permanent residents with their close relatives from abroad. The Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 decision is cited for the proposition that the interest of the applicant must be treated in a manner which is consistent with Canada's humanitarian and compassionate tradition. Baker, supra, addressed a situation where the interest of children were minimized in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's Guidelines. (Emphasis added).
[6] It is useful to reproduce subsection 6(3) of the Immigration Act:
6(3) Displaced and persecuted- Any Convention refugee and any person who is a member of a class designated by the Governor in Council as a class, the admission of members of which would be in accordance with Canada's humanitarian tradition with respect to the displaced and the persecuted, may be granted admission, subject to such regulations as may be established with respect thereto and to the immigration plan currently in force and notwithstanding any other regulations made under this Act. (Emphasis added)
6(3) Personnes déplacées ou persécutées - Les réfugiés au sens de la Convention et les personnes appartenant à une catégorie déclarée admissible par le gouverneur en conseil conformément à la tradition humanitaire suivie par le Canada à l'égard des personnes déplacées ou persécutées peuvent être admis, sous réserve des règlements pris à cette fin et du plan d'immigration et par dérogation aux règlements d'application générale. (Je souligne)
[7] A person, therefore, may be admitted in accordance with Canada's humanitarian tradition if that person is a member of a designated class and subject also to regulations and the immigration plan currently in force.
[8] Prior to 1992 a regulation under the Immigration Act extended eligibility under immigration selection criteria to certain retired persons. The regulation was revoked on June 21, 1991, in keeping with the Immigration Plan for 1991-1995. The analysis statement found with the amendment explained that, to maintain adequate members of younger skilled immigrants in the plan without sacrificing other objectives, the decision was taken to eliminate the retiree program. The statement further stated that the "retiree" class was originally introduced to accommodate those who were born in Canada, had given up their citizenship and wished to return in later years. In 1989 this was no longer the case when only 4% of the 3500 landed retirees were born in Canada.
[9] The Minister's Guidelines and the Immigration Plan are provided for in the Immigration Act. It is to be noted that the applicant is not questioning the Minister's right to regulate access by regulation or implement an immigration plan.
[10] In relation to the H & C application, the applicant argues that the Immigration Programme Manager did not adequately weigh the applicant's desire to re-unite with his family and did not give enough weight to the fact that the applicant has significant economic resources. The applicant argues that family reunification would ensure that he is taken care of in his old age and that he is emotionally dependant on his family. These facts, according to the applicant, warrant the granting of special relief. The applicant further submits that the Immigration Programme Manager's written reasons were inadequate in that they did not demonstrate that the officer considered that the applicant could successfully establish himself in Canada. The applicant further submits that the Immigration Programme Manager breached the duty of procedural fairness by not giving the applicant an interview. Finally, the applicant argues that the Immigration Programme Manager based his decision on erroneous considerations such as the applicant's ability to visit his family rather than obtaining permanent residency in Canada.
[11] The respondent submits that there are no reviewable errors in the Immigration Programme Manager's negative H & C decision. The respondent points out that one of the H & C factors cited by the applicant is that he is wealthy. The respondent argues that subsection114(2) of the Immigration Act should not be used as a way for wealthy people to retire in Canada, rather, the applicant could retire in Canada as an investor pursuant to s. 6.11 of the Regulations. Further, the respondent submits that the Immigration Programme Manager did consider that most of the applicant's family lives in Canada but did not find that this warranted special relief. Finally, the respondent submits that there was no breach of procedural fairness since the Immigration Programme Manager was not required to give the applicant an interview.
[12] The Supreme Court of Canada in Baker, supra, set the standard of review of a Canadian immigration officer's decision in an H & C application pursuant to subsection 114(2) of the Immigration Act to be reasonablenesssimpliciter. In determining whether a decision is unreasonable, the Supreme Court of Canada in Baker, supra, stated at page 857:
I will next examine whether the decision in this case, and the immigration officer's interpretation of the scope of the discretion conferred upon him, was unreasonable in the sense contemplated in the judgment of Iacobucci J. in Southam, supra, at para. 56:
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 defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[13] The question is, therefore, did the Immigration Programme Manager reasonably consider the applicant's H & C application?
[14] The applicant's first argument is that the Immigration Programme Manager did not adequately consider the fact that most of the applicant's family lives in Canada and that the applicant would suffer emotional hardship if not re-united with his family. This argument, in my opinion, is without foundation. The Immigration Programme Manager's refusal letter dated November 8, 2000, clearly states that the applicant is close to his family and wishes to be re-united with them (tribunal record, page 4 ):
Although your client has a close personal relationship with his relatives in Canada and wishes to join them, I do not think that this is sufficient to invoke the humanitarian compassionate provisions of the Canadian Immigration Act.
[15] In the Immigration Programme Manager's CAIPS notes he indicates the following concerning the separation of the applicant and his family (tribunal record, page 93):
The act of immigrating by its very essence involves separation from family friends and customary surroundings. It frequently involves the splitting of families. The applicant's situation in this regard is not unusual. Nor are the hardships disproportionate or the "misfortunes" caused by this so serious that they warrant granting of special relief.
[16] Guideline 9.07 of the Immigration Manual provides guidance for visa officers to determine whether humanitarian and compassionate grounds exist by stating that such grounds exist if "unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada." The Immigration Programme Manager in the case at bar considered how close the applicant is to his mother, sisters and brother, and considered that the applicant would endure some hardship by leaving Canada. However, the Immigration Programme Manager also considered the fact that the applicant has significant financial resources and is a permanent resident of the United States with no restriction on visiting Canada. Based on these facts, I am of the view that the Immigration Programme Manager's conclusion that the applicant would not suffer unusual, undeserved or disproportionate hardship if he had to leave Canada is a reasonable conclusion.
[17] The same analysis is applicable to the Immigration Programme Manager's consideration of the applicant's ability to establish himself economically. According to the applicant, the Immigration Programme Manager did not adequately consider the applicant's financial wealth and his ability to establish himself in Canada. The Immigration Programme Manager did consider the fact that the applicant is wealthy but did not consider this fact added to the applicant's humanitarian and compassionate plea. As the Immigration Programme Manager explains in his refusal letter (tribunal record, page 4):
I fail to see the misfortune that would qualify your client for special relief. He is a comparatively wealthy man with legal status in the United States.
Further, in the Immigration Programme Manager's CAIPS notes, he states the following (tribunal record, page 93):
The applicant is a permanent resident of the USA. He is comparatively wealthy having fixed assets of over one million dollars.
The Immigration Programme Manager considered the applicant's financial assets, but did not find that this fact added to the applicant's H & C application. This assessment is reasonable and need not be interfered with.
[18] Finally, the applicant argues that he was denied procedural fairness by not having an interview. As the Supreme Court held in Baker, supra, at page 842, an interview 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 the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her...
Similarly, the applicant, in the case at bar, submitted written arguments explaining the applicant's humanitarian and compassionate grounds which were fully considered by the Immigration Programme Manager. In my opinion, there was no breach of procedural fairness by not giving the applicant an interview.
[19] For the foregoing reasons, the application for judicial review will be dismissed.
[20] The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge