Date: 20001128
Docket: IMM-4691-99
BETWEEN:
Y LINH LY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PROCEEDINGS
[1] This is an application for judicial review, brought pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, of the decision of R.B. Thornton, visa officer and acting program manager (the "visa officer"), dated September 6, 1999, wherein he denied the applicant's permanent residence application under the assisted relative category and determined that there were insufficient humanitarian and compassionate grounds to exempt the applicant from the statutory requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The applicant seeks an Order "setting aside the decision of the Visa Officer and referring the application back to the Visa Officer for reconsideration by another officer."
BACKGROUND FACTS
[2] The applicant, Y Linh Ly (the "applicant") lives in Ho Chi Minh City, Vietnam. In September, 1979 her eldest brother arrived in Canada as a refugee. This brother sponsored the applicant's sister and two brothers in 1984 and her parents and youngest brother in 1986. The applicant, who is married and had six dependent children at these times, was not sponsored.
[3] In July, 1988, the applicant's father made an application to sponsor her and her family to Canada. In 1997, the applicant's father was advised that the file had likely been destroyed in 1992. The file was reopened. By letter dated December 30, 1997, the 1988 application was rejected. In April, 1999 the applicant submitted a new application based on the independent category with the intended occupation of "business - seamstress and tailoring shop". The applicant also requested humanitarian and compassionate ("H & C") considerations. She was not interviewed.
[4] The applicant received a letter dated September 6, 1999 signed by the visa officer, refusing her application. The letter states in part:
"Unfortunately, you failed to achieve sufficient units of assessment to qualify for immigration to Canada."
[5] The visa officer assessed her qualifications based on the requirements for the occupations of seamstress (NOC 7342.4): assessed 13 units; tailor (NOC 7342.1): assessed 13 units; and fashion designer (NOC 5243.2): assessed 30 units. At least 65 units for an occupation are required for an assisted relative in the independent category. In regards to the H & C grounds, the letter states:
"I have also assessed your application, as your lawyer has requested, on humanitarian and compassionate grounds. Considering your present situation in Vietnam, the timing of your "family separation" and the circumstances under which it took place, and the absence of any claim or evidence of a special relationship between you and your family members in Canada, I am not satisfied that these grounds are sufficiently compelling to justify special treatment in this situation.
In view of my decision to refuse your application, you will not be called for a personal interview with a visa officer."
APPLICANT'S SUBMISSIONS
[6] The applicant does not address the first ground of appeal in her submissions. The applicant submits the visa officer breached the duty of fairness by making his decision, without first providing her an opportunity to respond to any concerns he may have had. The applicant offers Baker v.Canada, [1999] 2 S.C.R. 817 [hereinafter Baker], in support of her submission that a visa officer should, as stated at paragraph 16 on page 835, "attempt to clarify possible humanitarian grounds and public policy considerations even if these are not well articulated."
[7] The applicant submits the visa officer erred by finding that the absence of phone bills, letters, or Statutory Declarations automatically translated into the absence of a special relationship between her and her Canadian family. Additionally, he erred in demanding the presence of "unusually close emotional ties" between the applicant and her Canadian family as it is not an absolute prerequisite to a positive decision. Furthermore, the visa officer erred in finding no evidence of a special relationship when her family had been divided due to the war and refugee resettlement. The applicant submits her father's attempts to sponsor her also demonstrate the requisite special relationship.
[8] The applicant argues the finding in the visa officer's notes that her family members willingly and voluntarily created their separation is erroneous. She also argues the visa officer owed a duty to clarify the circumstances, particularly given her solicitor's submissions that war and refugee resettlement had been the principal reason for separation.
RESPONDENT'S SUBMISSIONS
[9] The Minister of Citizenship and Immigration (the "respondent") frames the issues as whether the visa officer:
1. Breached his duty of fairness in not providing the applicant an opportunity to respond to his concerns.
2. Erred in basing his decision on an erroneous finding of fact made in a perverse or capricious manner and without regard to the material before him.
[10] The respondent submits Baker, supra was about a refusal to allow the appellant to
apply for permanent residence from within Canada on H & C grounds, where the primary consideration is whether the Minister should exempt a person from the regulations to facilitate admission owing to H & C grounds. In the case at bar, the respondent submits H & C considerations are clearly secondary to the primary consideration of whether or not the applicant has sufficient units of assessment to be admitted into Canada. Thus, the respondent submits that Baker, supra does not apply in this instance.
[11] The respondent argues the onus is upon the applicant to file her application
together with any supporting documentation, and the onus does not shift to the visa officer if she submits a bit of evidence on any particular point. It is the applicant's responsibility to produce sufficient evidence to support her application. With the assistance of counsel, the applicant had ample opportunity to make submissions with respect to H & C grounds and file a complete application. Furthermore, there is no duty on the visa officer to try to bolster an incomplete application. The respondent cites three cases: Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 (F.C.T.D.); Fernandez v.Canada (Minister of Citizenship and Immigration) (1999), F.C.J. No. 994, IMM-4255-98 (June 18, 1999) (F.C.T.D.); and Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109 (F.C.T.D.) in support of this argument. Even if Baker, supra applies, the respondent submits there is nothing in it to suggest these cases have been overruled and the onus remains on the applicant to provide sufficient evidence to support her claim.
[12] In response to the applicant's submission that the visa officer must try to clarify
possible H & C grounds if not well articulated, the respondent argues that the grounds were well articulated in this case and there was just insufficient evidence to support these grounds. The respondent submits the visa officer also reviewed other aspects of the applicant's claim in an attempt to find other H & C considerations.
[13] The respondent submits the visa officer's CAIPS notes show he considered the
applicant's family in Canada and her father's attempts to bring her to Canada. He also considered the 1988 sponsorship application but determined it to be immaterial. There is no indication that the presence of "unusually close emotional ties" between the applicant and her family was a prerequisite to a positive decision by the visa officer, for he also indicated there was no evidence to indicate "some particularly close or special relationship" in his notes. The respondent submits that as there was absolutely no evidence tendered to indicate the type of relationship between the applicant and her family in Canada, the visa officer made no error. Attempts by the applicant's family to reunite are clearly sporadic as indicated by the applicant's affidavit, thus, there was no error in finding no special relationship.
[14] In response to the applicant's submission that the visa officer erred in stating the
family members willingly and voluntarily created their separation, the respondent submits that aside from her eldest brother, her remaining family arrived after the Vietnam war, and chose to come to Canada and to leave the applicant and her family in Vietnam.
RELEVANT STATUTORY PROVISIONS
[15] The relevant sections of the Immigration Act, R.S.C. 1985, c. I-2 state:
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need
. . .
(c) to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad; |
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3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité_:
. . .
c) de faciliter la réunion au Canada des citoyens canadiens et résidents permanents avec leurs proches parents de l'étranger; |
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| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
. . .
(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
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(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_:
. . .
d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
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And the relevant sections of the Immigration Regulations, 1978, S.O.R./78-172:
| 2(1) "assisted relative" means a relative, other than a member of the family class, who is an immigrant and is an uncle or aunt, a brother or sister, a son or daughter, a nephew or niece or a grandson or granddaughter of a Canadian citizen or permanent resident who is at least 19 years of age and who resides in Canada; |
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2(1) « parent aidé » Immigrant, autre qu'un parent, qui est soit l'oncle ou la tante, le frère ou la soeur, le fils ou la fille, le neveu ou la nièce ou le petit-fils ou la petite-fille d'un citoyen canadien ou d'un résident permanent âgé d'au moins 19 ans qui réside au Canada. |
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| 2.1 The Minister is hereby authorized to exempt any person from any regulation made under subsection 114(1) of the Act or otherwise facilitate the admission to Canada of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
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2.1 Le ministre est autorisé à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe 114(1) de la Loi ou à faciliter l'admission au Canada de toute autre manière. |
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10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and |
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10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies:
a) le parent aidé et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement;
b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation; |
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| 11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation. |
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11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant:
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire. |
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| 11.(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation. |
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11.(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant:
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;
b) a un emploi réservé au Canada; ou
c) est disposé à exercer une profession désignée. |
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ISSUE
[16] Did the visa officer err in failing to grant the applicant's humanitarian or
compassionate application under subsection 114(2) of the Immigration Act?
ANALYSIS AND DECISION
[17] There is no doubt that events occurred in relation to this file that should not have
occurred, i.e. the destruction of the original application, but that is not the issue that is before me. The issue that is before me is whether the visa officer erred by failing to grant the applicant's humanitarian and compassionate application.
[18] The applicant has alleged that the visa officer erred in the following ways:
1. He breached the duty of fairness in making a decision without affording the applicant an opportunity to respond to his concerns including the failure to contact the applicant with respect to a special relationship to her family.
2. He erred by stating that "unusually close emotional ties" need to exist in order to succeed on a humanitarian and compassionate application.
3. He erred by failing to address the issue of relatives in Canada.
[19] Subsection 8(1) of the Act states:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
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8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
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[20] An applicant must first provide facts to support her application for humanitarian
and compassionate considerations under subsection 114(4) of the Act. There is no requirement that a visa officer must go forward and try to determine the facts that would support the application (see Lam v. Canada (Minister of Citizenship and Immigration), supra and Tahir v. Canada (Minister of Citizenship and Immigration), supra). It is up to the applicant to provide sufficient information to support and make out her case for humanitarian and compassionate consideration. This is not a situation where the visa officer has concerns about the evidence that was presented but it is a case where the visa officer found there was a lack of evidence to support the application. He did not have concerns about the presented evidence, hence, it was not necessary that he check with or give the applicant an opportunity to respond in these circumstances. The visa officer did not err in this respect as he did not have sufficient evidence with respect to the applicant's relationship with her family.
[21] It was alleged that the visa officer erred by stating that "unusually close emotional
ties" needed to exist in order for the H & C application to succeed. I have read the remarks of the visa officer and take him to be saying that on the evidence presented to him, that he could not find any close or special ties between the applicant and her Canadian family members. When the visa officer's comments are read in the context of the full paragraph, it seems to me that if he could find some type of close relationship between the applicant and her family, this would help with her H & C application. The granting of the application has to be based on some facts that tie into humanitarian and compassionate grounds. For example, in Baker, supra, it was the interests of the children of Mavis Baker that was important. It is my opinion that the visa officer was trying to locate in the evidence, facts that would support an H & C application. In my opinion, this was not a reviewable error.
[22] The applicant also stated that the visa officer erred by failing to address the issue
of relatives in Canada. A review of the CAIPS notes show that the visa officer was aware of the applicant's relatives in Canada and of her father's attempts to bring her to Canada. The visa officer committed no error in this respect.
[23] I am also of the opinion that based on a standard of review of reasonableness
simpliciter, the visa officer did not make a reviewable error in his decision. Although the applicant did not press the issue of the number of points of assessment given to her, I am of the view that the visa officer did not make an error in this respect.
[24] The application for judicial review is dismissed.
[25] Neither party wished to certify a question pursuant to subsection 83(1) of the Act.
ORDER
[26] IT IS ORDERED THAT the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Toronto, Ontario
November 28, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
COURT NO.: IMM-4691-99
STYLE OF CAUSE: Y LINH LY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: WEDNESDAY, NOVEMBER 15, 2000
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: TUESDAY, NOVEMBER 28, 2000
APPEARANCES:
Mr. Peter W. Wong
Ms. Rishma N. Shariff
For the Applicant
Ms. Tracy King
For the Respondent
SOLICITORS OF RECORD: Caron & Partners
1600-400, 3rd Avenue S.W.
Calgary, Alberta
T2P 4H1
For the Applicant
Department of Justice
Edmonton Regional Local Office
211 Bank of Montreal Building
10199 - 101 Street
Edmonton, Alberta
T5J 3Y4
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001128
Docket: IMM-4691-99
Between:
Y LINH LY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER