Date: 20020925
Docket: IMM-5112-01
Neutral Citation: 2002 FCT 1003
BETWEEN:
KOOI WAN CHIN
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Kooi Wan Chin ("Applicant") seeks judicial review of a decision of Mr. Howard Spunt, the Program Manager at the Canadian Consulate General in Detroit, Michigan. In his decision, made on August 14, 2001, Mr. Spunt, as representative of the Minister of Citizenship and Immigration ("Respondent"), declined the Applicant's request for permanent residence in Canada, pursuant to section 2.1 of the Immigration Regulations, 1978 (the "Regulations").
FACTS
[2] The Applicant is a citizen of Malaysia. She is the common law spouse of Daniel Ting Wai Shum. Mr. Shum, a Canadian citizen, sponsored the Applicant's application for permanent residence. The Applicant and Mr. Shum have maintained a conjugal relationship for more than three years and are the parents of three children. The children of their union are Canadian citizens.
[3] The Applicant attended an interview with Halina Roznawski, a visa officer, at the Canadian Consulate General in Detroit, Michigan on May 2, 2001. During the interview, the Applicant stated that she and Mr. Shum did not yet have a residence in Canada and Mr. Shum continued to be employed in New York. He had not yet secured employment in Canada but the Applicant said that in light of his employment history and qualifications, he would easily obtain employment in this country.
[4] The Applicant said that Mr. Shum intended to join her with their children, in Canada but she did not provide any evidence to corroborate this statement.
[5] Her application for permanent residence was denied by letter dated May 2, 2001 on the basis that the family class, as defined by the Regulations, did not include common law spouses.
As well, the visa officer expressed concern in her letter that Mr. Shum was not planning to reside in Canada with the Applicant and their children.
[6] By letter dated May 16, 2001, the Applicant sought consideration under section 2.1 of the Regulations for admission to Canada under humanitarian and compassionate grounds. Mr. Spunt, the Program Manager at Consulate General of Canada in Detroit, agreed to consider the Applicant's request under section 2.1 of the Regulations.
[7] Mr. Spunt did consider the humanitarian and compassionate factors pertaining to the Applicant and decided that, while such factors existed, Mr. Shum lacked the intention of residing in Canada. He rejected the application by letter dated August 14, 2001. That decision gives rise to the present application for judicial review.
APPLICANT'S SUBMISSIONS
[8] First, the Applicant argues that since Mr. Spunt was the only immigration official to consider the application of section 2.1 of the Regulations, he was under a duty to conduct his own investigation, including an interview, before reaching a conclusion. The Applicant relies on Pangli v. Canada (Minister of Employment and Immigration) (1987), 84 N.R. 216, (1987), 4 Imm. L.R. (2d) 266 (F.C.A.) to support her argument that only those who hear a case must decide it.
[9] She submits that since Mr. Spunt relied on information gathered by the visa officer for a different purpose, that is admission into Canada as a member of a family class, he was obliged to independently investigate and examine the Applicant's claim. His failure to do so amounts to a fettering of his discretion.
[10] The Applicant argues that Mr. Spunt was obliged to seek clarification of the apparent inconsistencies in the case notes that led to his decision. She further argues that he misapprehended the facts when he concluded that the Applicant was living in New York with Mr. Shum and their children when her application for permanent residence indicates that she has been living in Malaysia.
[11] The Applicant submits that Mr. Spunt erred in concluding that the Applicant intended to reside in New York when the case notes indicate that she and Mr. Shum were "tired of not being together".
[12] The Applicant argues that it was perverse for the Program Manager to conclude from this statement in the case notes that she intended to reside in New York with Mr. Shum because the logical inference to be drawn from this remark is that the Applicant wanted to reside with Mr. Shum and their children, in Canada.
RESPONDENT'S SUBMISSIONS
[13] The Respondent submits that the decision in issue is to be assessed from the perspectives of the applicable duty of procedural fairness and the applicable standard of review.
[14] The Respondent relies on Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193 (S.C.C.) for the position that procedural fairness does not require an oral hearing in deciding a humanitarian and compassionate application. He further relies on Rajadurai v. Canada (Minister of Citizenship and Immigration) (2000), 266 N.R. 199, (2000) 11 IMM. L.R. (3d) 1 (F.C.A.) and Silion v. Canada (Minister of Citizenship and Immigration) (1999), 173 F.T.R. 302 (F.C.T.D) as giving approval to the process by which a Program Manager collects information, in the context of a humanitarian and compassionate application. According to the Respondent, these cases show that the principle of he who hears must decide does not apply.
[15] The Respondent further submits that the Applicant cannot now complain of a process that she previously sanctioned. The Applicant did not request an oral hearing when she was informed that a humanitarian and compassionate assessment would take place.
[16] The Respondent further submits that the evidence before the Program Manager was clear and there was no need for him to seek clarification of the evidence or give the Applicant a further opportunity to respond. The Respondent also argues that there was no obligation on the decision maker to keep an applicant informed of all the concerns that he may have and in this regard, relies on Ahmed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J 940 (F.C.T.D.).
ISSUES
[17] The present application raises the following issues:
1. Did the Program Manager fail to observe a principle of natural justice or procedural fairness that he was legally required to observe?
2. Did the Program Manager make an erroneous finding of fact(s), ignore facts or fail to properly consider the evidence when he refused the Applicant's application?
ANALYSIS
[18] The first issue raised by the Applicant is that the Program Manager failed to provide her with procedural fairness. She raises the question whether Mr. Spunt breached the principle of "he who hears must decide".
[19] This principle was considered in the context of immigration law in Silion, supra. In that case, Justice MacKay reviewed a decision of a visa officer in which the Applicant's application for a temporary employment visa was refused. The visa officer had relied on a report written by an immigration program officer who had interviewed the Applicant. The Court concluded that the decision under review was essentially an administrative decision, involving the exercise of discretion by the visa officer and stated at paragraph 11:
The decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here that [sic] followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or reverse that he who decides must hear the applicant.
This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the Applicant.
[20] As well, Baker, supra, at paragraph 34 decided that an oral hearing was not required in a humanitarian and compassionate application.
[21] On the basis of these authorities, I am of the opinion that the decision here under review does not attract the principle that he who hears must decide. This is an administrative decision
involving the exercise of considerable discretion, similar to the circumstances in Silion, supra. In my opinion, the procedure followed in this case was procedurally fair.
[22] The next question is whether the Program Manager was obliged to advise the Applicant of his concern about the intention of her common law spouse to reside in Canada.
[23] In Ahmed, supra, the Court considered the question of the duty of a visa officer to notify an Applicant of concerns raised during the application process. In that case, the Court concluded, at paragraph 8, as follows:
Nor do I accept counsel's submissions that a visa officer has an obligation to notify an applicant of her concerns that he might not attain 70 units of assessment and allow him an opportunity to satisfy those concerns. Such submission is tantamount to saying that any time a visa officer thinks an applicant for permanent residence might be refused, he or she must disclose the expected decision in advance and give the applicant a second chance to meet requirements. While nothing prevent [sic] a visa officer for doing so, there is no such obligation on the officer (see for example Prasad v. M.C.I., IMM-3373-94, April 2, 1996 (F.C.T.D.)).
[24] In the present case, there is evidence in the CAIPS notes to suggest that the visa officer was concerned with the intention of Mr. Shum to relocate to Canada.
[25] I agree with the submissions of the Respondent that there was no need to seek clarification because the evidence is unambiguous on this issue. I further agree that there was no duty on Mr. Spunt to inform the Applicant of concern on this point. It was well within the capacity of the Applicant to clarify the situation regarding Mr. Shum's intention to move to Canada. She was in a position to produce the evidence to support that intention. She failed to do so.
[26] Consequently, the Applicant's arguments in this regard must fail.
[27] I turn now to the Applicant's submissions concerning alleged erroneous findings of facts made by the Program Manager. This argument falls when assessed against the applicable standard of review.
[28] According to Baker, supra, the standard of review relative to humanitarian and compassionate decisions is reasonableness. The question, then, for consideration is whether it was reasonably open to the decision-maker to conclude that the Applicant's common law spouse lacked the intention to reside with her in Canada, on the basis of the evidence before him.
[29] In my opinion, the evidence quoted above makes it clear that the factual finding made by Mr. Spunt is logically supported by the evidence before him. In these circumstances, his conclusion was reasonable that Mr. Shum lacked the intention to come to Canada.
[30] Furthermore, it is well established that the decision maker is presumed to have considered all the evidence before him unless the contrary is shown. In this regard, I refer to Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.).This Court should not disturb the findings of facts made by Mr. Spunt.
[31] For these reasons, I conclude that there is no basis for judicial intervention in the decision under review.
[32] The application for judicial review is dismissed.
[33] No question for certification arises from this application.
ORDER
The application for judicial review is dismissed. There will be no question certified.
____________________________ "E. Heneghan"________
J.F.C.C.
OTTAWA, ONTARIO
September 25, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5112-01
STYLE OF CAUSE: KOOI WAN CHIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, SEPTEMBER 19, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
APPEARANCES BY: Mr. Ravi Jain
For the Applicant
Mr.Greg G.George
For the Respondent
SOLICITORS OF RECORD: Mr. Ravi Jain
121 Queen Street West
Suite 22200
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020925
Docket: IMM-5112-01
BETWEEN:
KOOI WAN CHIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER