Date: 19990608
Docket: IMM-3234-98
BETWEEN:
SANDRA LOGAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] Leave having been granted, Sandra Logan ("the applicant") seeks, by way of judicial review under subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, ("the Act"), to set aside the decision of L.M. Lee, Manager, Canada Immigration Centre in Toronto, Citizenship and Immigration Canada ("CIC"), dated June 15, 1998, refusing the applicant's request, based on humanitarian and compassionate grounds, for an exemption to the normal requirements that all applications for permanent residence be made from outside Canada. As a result of this refusal, it is necessary for the applicant to submit her application for Canadian residence abroad.
[2] Mr. Lee's letter to the applicant, dated June 15, 1998, attaches a departure order on the ground the applicant overstayed her visitor's visa. Although the judicial review application before me seeks to set aside that departure order, counsel for the applicant did not address the issue of the invalidity of that order. I do not propose to deal with that issue either on procedural or substantive grounds because, as I see it, the applicant views the setting aside of the departure notice as ancillary relief to her principal attack which is on the CIC's decision to refuse her request for exemption.
B. THE FACTS
[3] The applicant is a citizen of Jamaica. She has two daughters, ages 18 and 10, born and living in Jamaica with their father.
[4] The applicant's mother came to Canada in 1979, resided here during the 80s on Minister's permits, and became a permanent resident in Canada in 1990.
[5] The applicant, in her affidavit in support of this judicial review proceeding, says after her mother became a permanent resident of Canada, her mother sponsored all of her children, then ages 23 to 35, except her because the applicant had volunteered to stay in Jamaica to take care of her father who was ill. He died in January 1996.
[6] The applicant's brothers and sisters are either permanent residents in Canada or are Canadian citizens. In 1995 and 1996 the applicant visited her family in Canada. On May 30, 1997, she came to Canada again on a visitor's visa which provided for multiple entries and expired on August 31, 1997. She made an application for permanent residence in Canada on February 2, 1998, filed it in Canada and sought the appropriate exemption.
[7] On March 10, 1998, the applicant wrote a letter to CIC setting out her humanitarian and compassionate reasons for the exemption. She said this:
| In 1990 I was included in my mother's immigrant VISA document when she applied to obtain her landed immigrant status. My sisters and brothers were included in the application and since then they have obtained their permanent status in Canada. |
| Due to the fact that my father took very ill and became blind because of his diabetes, I had no choice but to stay back in Jamaica to care after him. He passed away in January 19, 1996. |
| My mother, sisters, brothers' families are all here, I will never be a charge to the system. They all are well established, have jobs, homes and will be supporting me in all ways possible to make my stay comfortable without any problems i.e. help me find a job, upgrade my skills etc. They are all willing and able to sponsor me. Please refer to the attached forms to confirm these information. |
| For all the above, I strongly feel that my application should be processed from within Canada as an exception. |
[8] The applicant was asked by CIC to fill a questionnaire which she completed and signed on May 23, 1998. She said she intended to have her children join her in Canada, if possible. In answer to a question what hardship would she experience if she was asked to return to Jamaica and apply in the normal manner, the applicant said "I would have no job to go back to at this time". The applicant also answered "no" to a question which asked whether she had ever taken employment since being in Canada.
[9] On June 3, 1998, J. Knight of CIC prepared a recommendation on the applicant's exemption request under section 114 of the Act. The relevant parts of his recommendation are as follows:
| Despite the presence of her mother and siblings in Canada, the subject has two daughters of her own back in Jamaica whom she intends to bring to Canada. In my opinion she should return to Jamaica and apply for permanent residence through the Canadian Consulate in Kingston with her children. |
| She has been gainfully employed in Jamaica as a waitress from July 1989 to May 1997 for the Intercontinental Hotel.... |
| . . . |
| Her mother entered Canada in August 1979 and obtained permanent resident status in January 1990. She states she was included on her mother's application for permanent residence however I note that her mother's record of landing indicates no dependants. |
| . . . |
| She would suffer no hardship if returned to Jamaica, as she has two young children there and would no doubt find employment as a waitress given the number of hotels, restaurants, etc. |
| Given that she is currently out of status, I would recommend that the departure notice be issued. |
[10] On June 4, 1998, CIC sent the applicant a one page document entitled "CALL IN NOTICE". The subject of the Call In Notice is described in handwriting as "APPLICATION FOR PERMANENT RESIDENCE". Point number 1 of the Call In Notice states:
| Please come to an interview. Bring this letter with you and those items with an x. |
The items with an "x" speak to the following documents: "valid passport, travel documents or national identify card".
[11] In her affidavit in support of these proceedings, the applicant states:
| 12. I received a "Call In Notice" dated June 4, 1998, requesting that I attend an interview on June 15th, 1998 at the immigration office in Oshawa. The Notice stated that the purpose of my interview was my Application for Permanent Residence. Attached as Exhibit "A" is a copy of that Notice. |
| 13. I went to the scheduled interview but was not interviewed with respect to my application. Rather I was just given a departure order. |
| 14. I later learned that the Section 27 report had been prepared on May 5, 1998. I also learned that the Immigration Officer had refused my application on June 3, 1998; even before I was sent the "Call-In Notice". |
| 15. I do not believe that I have been treated fairly. I was requested to attend an interview and not only was I not interviewed, but the Immigration Officer had already decided my case. |
| 16. The Immigration Officer in her notes states that I said that I had been included as a dependent in my mother's application for landing in 1990; but my mother's Record of Landing does not disclose any dependents. |
| 17. The Officer had in her notes that my mother had come to Canada in 1979 but was not granted permanent residency status until 1990. It was after that that my mother sponsored my siblings; not at the time that she was applying. |
| 18. I believe that the mistaken assumption that the Officer was under might have led her to believe that I was not truthful with her when in fact I was. |
C. THE ISSUES
[12] The applicant raises two issues:
| (a) did the immigration officer breach the rules of natural justice; and |
| (b) did the immigration officer reach her decision based on an erroneous principle. |
D. ANALYSIS
(a) Breach of duty of fairness
[13] The Federal Court of Appeal in Shah v. Canada (1994), 29 Imm.L.R. (2d) 82, (F.C.A.), dealt with the duty of fairness where the section 114 exemption was being sought on humanitarian and compassionate grounds.
[14] In Shah, (supra), the Federal Court of Appeal acknowledged that the content of the duty of fairness varies according to the circumstances and said, in the present circumstances, such content was minimal. Hugessen J.A. said:
| The power to grant such exemption resides in subs. 114(2) of the Act. The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. In this respect, it differs from many other decisions, e.g. by a visa officer dealing with a sponsored application for landing, where the law establishes criteria which, if met, give rise to certain rights. |
| In a case such as this one, the applicant does not have a "case to meet" of which he must be given notice; rather, it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence not brought forward by the applicant, she must give him a chance to respond to such evidence. In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision. Any dicta arguably to the contrary in Re H.K. (Infant), [[1967] 2 Q.B. 617] Kaur v. Canada (Minister of Employment and Immigration) [(1987), 5 Imm.L.R. (2d) 148, (Fed. T.D.)], and Ramoutar v. Canada (Minister of Employment and Immigration), [[1993] 3 F.C. 370 (T.D.)]should be read in this light. |
| To succeed in his attack here, the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. It is a heavy burden and the applicant has not met it. |
[15] The applicant argues that a breach of natural justice occurred when CIC, having decided to interview the applicant and requesting her to attend for that purpose, did not interview her for permanent residence status or on her humanitarian and compassionate application when she appeared at the scheduled time and place. The applicant conceded the immigration officer was not under a legal duty to interview her but asserted once CIC sent the notice an interview was scheduled, CIC was under a duty to conduct an interview. The applicant submitted it was especially unfair in that, not only did she appear for the interview and then was not interviewed, but she was told that a negative decision had already been made and was issued a departure order. The applicant relies upon this Court's judgment in Kaur, (supra), where Cullen J. at page 149 said as follows:
| Once the department agreed to the interview of October 22, 1986, they then had an obligation to act fairly. The interview could not be conducted in a perfunctory way, and indeed it was not. |
[16] Counsel for CIC says there was no breach of the rules of natural justice in making a negative humanitarian and compassionate decision, argues the immigration officer did not and never decided to interview the applicant in respect of her H & C application and says the applicant mistakenly assumed when she received the Call In Notice that it was for that purpose. Counsel for CIC says the Call in Notice is standard departmental practice for the purpose of explaining the decisions which had been made and her further rights under the Act.
[17] I accept the arguments put forward by counsel for the respondent. Clearly, there was no breach of a duty of fairness in CIC making, without interviewing the applicant, a negative decision on her H & C exemption application (as contrasted with a decision on her application for permanent residence itself which has not yet been made). Shah, (supra), governs.
[18] I can understand the applicant's hopes were raised when she received the Call In Notice and how she must have felt when she was informed, at the interview, her exemption application had been turned down and she must leave Canada and make her application for permanent residence abroad. Her hopes were dashed. However, as counsel for the respondent argues, the Call In Notice issued to her said, in general terms, come for an interview in respect of your application for permanent residence. The Call In Notice did not say it was for any specific purpose such as interviewing her either about her H & C exemption application or for the purpose of dealing with the merits of her application for permanent residence. In my view, when the applicant received the Call In Notice, she mistakenly assumed that it was for either of those two specific purposes.
[19] The applicant cited Kaur, (supra). The circumstances in Kaur are completely different. There, interviews were specifically agreed to and granted to determine whether the people involved were truly married. Interviews were conducted. Applicants were given documents to complete before the interview and they were afforded the courtesy/necessity of an interpreter. Here, as acknowledged by the applicant, no interview took place, i.e. was conducted. It was an information meeting.
(b) Misapprehension of the facts
[20] Applicant's counsel says the immigration officer made an erroneous and material finding of fact about the applicant being included in her mother's application for permanent residence when her mother's landing entry indicates no dependent. This finding, applicant argues, conveyed the impression to CIC that the applicant, in her H & C application, was not being truthful and this would, naturally, negatively impact upon the immigration officer's exercise of discretion. Respondent argues there was no error of fact because it was the applicant herself who said in her March 10, 1998 letter "[I]n 1990 I was included in my mother's immigrant visa document when she applied to obtain her landed immigrant status".
[21] For purposes of argument, even assuming the applicant is correct on this point, I do not draw the same consequences because the applicant, in my view, puts the finding out of context and gives it an importance which is inappropriate.
[22] First, the immigration officer's finding is in the context of the applicant's submission that she should be given sympathetic humanitarian consideration because of the 1990 events surrounding her mother's application for permanent residence and landing and that by being included in her mother's immigration visa document then she should now be allowed to make her application in Canada. She argued she became grandfathered so to speak. The immigration officer's comment of "no dependant" in her mother's landing documents is in the context of the assessment of that element in the applicant's submission and was not a determination of her credibility.
[23] More importantly, when the immigration officer's briefing note is examined in its entirety, I am completely satisfied the decision not to exempt the applicant had nothing to do with the applicant's credibility but was solely based on the objective view taken by CIC that the applicant simply did not satisfy CIC she would suffer any hardship if she made her application for permanent residence from Jamaica.
E. CONCLUSION
[24] For all these reasons, the judicial review application is dismissed. There is no question of general importance to be certified and neither counsel proposed any.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 8, 1999