Federal Court Decisions

     IMM-494-97

BETWEEN:

     EFRAIM V. MENDOZA,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

RICHARD J.:

     This is an application for judicial review of a decision of an Immigration Officer dated January 21, 1997, that there were insufficient humanitarian and compassionate grounds upon which to allow the adult applicant to apply for permanent residence in Canada. The applicant states that the respondent failed to take into account highly relevant considerations.

     The applicant indicates that he came to Canada to visit his gravely ill father on April 24, 1994. Three months later, Mount Pinatube volcano erupted covering his entire village with lava. The applicant indicates that his house and farm were all buried six to eight feet below the ground. Accordingly, there was no home for him to go back to. However, with the help of his brother and sisters, the applicant states that he would be able to restart his life in Canada.

     Pursuant to subsection 114(2) of the Immigration Act, the Minister is authorized to exempt persons from subsection 114(1) regulations or to otherwise facilitate their admission into Canada where the Minister is satisfied that such exemption or facilitation should occur, owing to the existence of humanitarian or compassionate considerations.

     The Immigration Officer's notes indicate that she refused the application due to the following reasons:

(a) insufficient grounds to warrant favourable consideration. Subject has close family members in Canada. However, his wife and three children are still in the Philippines; and

(b) although he claims that he would face economic hardship should he be removed or forced to return to the Philippines, it does not warrant favourable consideration. There is no evidence of undue hardship if he were to return to the Philippines to be with his wife and children.

     Essentially, the applicant argues that the Immigration Officer ignored or misinterpreted the Guidelines concerning when humanitarian and compassionate grounds exist and that the Immigration Officer failed to comply with the principles of natural justice. The applicant submits that, had the respondent applied the correct standard, the application should have been allowed. According to the applicant, the 25 minutes he was given to present his oral submissions were insufficient.

    

     The record indicates that the appellant was given a full opportunity to state his case both in writing and orally and there was no breach of natural justice.

     I am of the opinion that the applicant has failed to meet the heavy burden showing that the Immigration Officer erred in law, proceeded on some wrong or improper principle or acted in bad faith.

     In Shah v. M.E.I.,¹ Mr. Justice Hugessen wrote as follows:

It is a commonplace that the content of the duty of fairness varies according to the circumstances. In the present case we are all of the view that such content was minimal. The decision in question (the attack on which was dismissed by the judgment under appeal) was that of an immigration officer charged with making a recommendation to the Governor in Council as to the exercise of the latter's discretion to grant an exemption to the applicant from the requirements of subsection 9(1) of the Immigration Act on humanitarian or compassionate grounds. The power to grant such exemption resides in subsection 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.2

...

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. The application was properly dismissed.3

     The applicant has not succeeded in showing that the Immigration Officer erred in law, proceeded on some wrong or improper principle or acted in bad faith. The Immigration Officer had all the relevant submissions about undue hardship before her in writing and I can find no basis for concluding that she did not give them proper consideration.

     Accordingly, the application for judicial review is dismissed.

     __________________________

     Judge

Ottawa, Ontario

August 29, 1997

__________________

¹      (1994) 170, N.R. 238; (1994) 29 Imm. L.R. (2d) 82.

²      Ibid. at 239.

³      Ibid. at 240.