Date: 20000530
Docket: IMM-1776-99
BETWEEN:
PAMELA WILLIAMS
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, for judicial review of the decision of an immigration officer dated March 22, 1999 wherein it was determined that there were insufficient humanitarian and compassionate considerations to warrant an exemption from subsection 9(1) of the Act.
[2] The applicant, Pamela Williams, was born in St. Vincent in 1957. She entered Canada as a visitor in August, 1993 and has never left. Shortly after her arrival in Canada, she began living and working in Montreal as a domestic aid or care giver. In August, 1995, the applicant was arrested by Immigration authorities for being in Canada illegally and working without authorization; she was issued a Departure Order to leave Canada on or before September, 1995. In September, 1995, the applicant moved to Toronto where she took up residence with her sister who is a landed immigrant.
[3] In April, 1998, the applicant submitted an In Canada Application for Landing based on humanitarian and compassionate grounds. On or about March 24, 1999, the applicant received the decision from the immigration officer which stated "there are insufficient humanitarian and compassionate considerations to warrant an exemption from normal legislative requirements".
[4] The issue to be determined is whether the immigration officer erred in law, proceeded on some wrong or improper principle or acted in bad faith.
[5] The applicant submits that the immigration officer was arbitrary in coming to the decision that there were no humanitarian and compassionate factors to allow for the processing of her application; that the immigration officer totally ignored or de-emphasized factors such as the length of time spent in Canada, the degree to which she is established, the presence of family in Canada and the degree of hardship that would be caused if she were removed from Canada. The applicant maintains that had these factors been assessed in an objective manner, she would have met the criteria for humanitarian and compassionate considerations. Finally, the applicant argues that the Minister"s representative failed to provide support or adequate reasons for the negative decision.
[6] The respondent argues that the scope for judicial review of a humanitarian and compassionate decision is very narrow and that in the present case the applicant has failed to show that the immigration officer was arbitrary or that she ignored relevant factors. According to the respondent, the fact that the applicant disagrees with the immigration officer"s decision is insufficient to show that any error was made; the decision was wholly a matter of judgment and was within the immigration officer"s discretion. Finally, the respondent contends that the duty of fairness encompassed in making the discretionary administrative recommendation under subsection 114(2) of the Act does not include a duty to provide reasons.
[7] The decision in Baker v. Canada (M.C.I.)1 May be applicable in the case at bar. Having regard to both the potential seriousness of the decision for the applicant and the discretionary nature of the Minister"s decision, it appears the appropriate standard of review is reasonableness.
[8] In Suresh v. Canada2, a very recent decision of the Federal Court of appeal, counsel for the Minister did not dispute the proposition that written reasons are required. However, the parties disagreed on the adequacy of the reasons provided by the Minister. Addressing that very issue, the Court stated that "the adequacy of these reasons is a matter which can be properly raised on a judicial review application to the extent that those reasons do not reflect consideration of relevant factors"3.
[9] The immigration officer"s file reveals five pages of very extensive notes on aspects which were carefully considered by the officer before rendering her decision. There is no doubt there is referral to the fact that a Removal Order issued on August 30, 1995 that was not complied with; that the applicant had two sisters, one brother and cousins living in Canada; that she had no children; that her mother, three brothers and two sisters remained in St. Vincent. The notes indicate that she was not aware of who may have informed immigration authorities about her unauthorized residence in Canada. It is indicated that the applicant told immigration officers that she never had any contact with them about working in Canada nor did she seek sponsorship through an employer. It is further indicated that the applicant was almost always employed while in this country and was self-sufficient.
[10] The applicant admits coming to Canada to visit after having been involved in an unsuccessful personal relationship; she felt coming to this country would be good for her. When asked why she had not left when ordered to do so, she indicated she felt she was now established and decided to leave for Toronto where she had a sister who was a landed immigrant. She then found employment as a care giver. The officer also noted that the applicant sends money to her family in St. Vincent to assist them; that while she resided in St. Vincent she was a registered nurse but left her position upon deciding to come to Canada. She noted that she attempted to improve her skills by taking English courses and it is noted that she does volunteer work. She had approximately $4,000 in the bank but had never filed income tax returns.
[11] The immigration officer then refers to the fact that she has been established for over five years; does volunteer work; has some family ties here; has improved her education; is not dependent on anyone and supports herself; has no criminal record. It is noted that she has worked hard since she has been here and would prefer to remain in this country.
[12] The officer nevertheless concluded in the following manner: "In my opinion, there is insufficient humanitarian and compassionate criteria to justify the approval of your making an application from within Canada". She then indicates that the subject has been issued a Removal Order and had failed to report; had been employed illegally in Canada; and apparently balanced that against the applicant"s volunteer work and the fact that she has some relatives here, that she is self-sufficient, that she entertained the interview and considered the entire matter in a thorough and sympathetic manner but still refused the application under subsection 114(2) of the Act.
[13] It was suggested by counsel that I should follow the guidelines as referred to in Baker, supra, and, in so doing, I should be convinced that there were inadequate reasons given for the decision. In fact, what this applicant seeks is for the Court to substitute its decision for that rendered by the immigration officer.
[14] I have not been convinced that there is an error in the interpretation of the law or unreasonable findings based on the facts. There is no doubt this is a case that would normally attract some sympathy but, unlike in Baker, we are not considering the criteria of the best interest of children since this applicant is unmarried and childless. It was also determined in Baker that if the applicant had been returned in Jamaica she would probably become quite ill once again and she had four children depending either morally or emotionally. The Court in Baker suggested that the discretion was improperly exercised because of the approach taken with respect to canvassing the interest of children.
[15] Applications for permanent residence must, as a general rule, be made from outside Canada. Exceptions to this may be allowed where there can be determined that there are humanitarian and compassionate grounds. It is an exemption from the Regulations or the Act. There is no doubt that the officer has a duty to carefully consider all aspects of the case and he or she is called upon to use their best judgment; as was quoted in Baker, "ask themselves what a reasonable person would do in such a situation". It should also be noted that the guidelines taking into account the various factors which this officer seemed to consider also state that humanitarian and compassionate grounds will exist if "unusual, undeserved or disproportionate hardship would be cause to the person seeking consideration if he or she had to leave Canada".
[16] I am satisfied that the immigration officer in this matter did canvass and provide a full and fair consideration of the issues.
[17] As I have said earlier, if the Court is satisfied as to the reasonableness of the decision, it should not substitute its views for that of the immigration officer unless he or she unfairly assessed the facts surrounding a particular application.
[18] In the case at bar I have not been convinced; this application is dismissed.
JUDGE
OTTAWA, Ontario
May 30, 2000
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