Date: 20010606
Docket: IMM-3681-00
Neutral Citation 2001 FCT 592
BETWEEN:
TUE LAN QUAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
BACKGROUND
[1] Tue Lan Quan (the "applicant"), a citizen of Vietnam, had obtained permanent resident status in Canada in 1990 but was deported to Vietnam on May 1, 2000, following the issuance, on November 19, 1997, of a danger opinion against her after being convicted on April 21, 1997, of trafficking in heroine and cocaine and sentenced to a term of imprisonment of two and a half (2½ ) years.
[2] Prior to being deported, she married, on June 18, 1999, Van Loi Thai, a Canadian citizen, and a few months later, on November 26, 1999, she made application under subsection 114(2) of the Immigration Act (the "Act") for an exemption based on humanitarian and compassionate factors in order to permit the inland processing of her permanent resident application notwithstanding section 9(1) of the Act.
[3] In this judicial review proceeding the applicant seeks to set aside the June 28, 2000 decision of immigration officer Audrey Andruchow who turned down her application for the exemption.
THE IMMIGRATION OFFICER'S DECISION
[4] The immigration officer gave three reasons for not approving the applicant's application for exemption. The first reason was her finding that Mr. Thai's commitment to the applicant was based on a knowledge of her that was incomplete in several important areas. The second reason was Mr. Thai's failure to provide credible evidence that this was a genuine marriage and one of substance. The third reason was based on other information considered and, in particular, the immigration officer taking into consideration and weighing very heavily the fact the Minister of Citizenship and Immigration issued her opinion the applicant is a danger to the public and, as a result, any humanitarian and compassionate factors that may exist were outweighed by the seriousness of the applicant's criminality.
[5] In support of her first reason, the immigration officer stated that, at the interview, it was established Mr. Thai was unaware of the applicant's common law relationship with another man from approximately 1991 to 1993. The immigration officer noted the applicant told the intake officer at the Edmonton Institution for Women about her common law relationship but made no mention of her involvement with Mr. Thai whom she met in March 1996.
[6] Another factor which the immigration officer took into account to reach her conclusion that Mr. Thai did not know the applicant well was the fact Mr. Thai told the immigration officer the applicant was pregnant with his child and she had an abortion in September/October 1998 but he was told about the abortion only after it had taken place.
[7] To reach her conclusion on the first reason, the immigration officer also said Mr. Thai was not able to provide specific details of the applicant's criminal conviction.
[8] The immigration officer based her finding of Mr. Thai's failure to provide credible evidence the marriage was genuine and one of substance upon the following factors:
(1) Mr. Thai informed the immigration officer that his parents, siblings and close friends were unaware of the marriage;
(2) the immigration officer reviewed marriage photos and reception/dinner photos with Mr. Thai who informed the immigration officer that his family members in the dinner photos were not aware of the occasion;
(3) Mr. Thai advised the immigration officer he maintained a household with the applicant after their marriage but the immigration officer noted the applicant stated in her application that they resided together whenever possible. Mr. Thai, when confronted, explained to the immigration officer that the applicant had leased an apartment near the residence he shared with his family and that they spent every day together, at either one place or the other.
[9] As noted, in respect of the third reason, the immigration officer found the seriousness of the applicant's criminality outweighed any H & C factors that may exist. The immigration officer also took into account the fact Mr. Thai provided the Parole Board with a written statement informing them the applicant had worked for him on a part-time basis and that he was willing to employ her when she was released from detention. The immigration officer noted this employment was not listed as part of the complete work history required on her application for visa exemption.
ANALYSIS
[10] The Minister of Citizenship and Immigration has been authorized by the Governor in Council to waive Immigration Act requirements if satisfied there are humanitarian and compassionate factors for such a waiver.
[11] The Minister has issued guidelines to immigration officers who make decisions on applications for exemption on H & C grounds.
[12] The ministerial guidelines state what is meant by "humanitarian and compassionate grounds". The guidelines say this:
6.1 What is meant by "humanitarian and compassionate grounds"
. . .
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual or undeserved or (ii) disproportionate.
[13] The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, considered in depth several legal issues surrounding decisions on applications for exemption of the Immigration Act requirements based on H & C considerations.
[14] This is what Justice L'Heureux-Dubé wrote about the guidelines at paragraph 16 of Baker, supra:
The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public.
[15] Later on, in her reasons for judgment, Justice L'Heureux-Dubé said this about the guidelines at paragraph 72 when examining whether the decision before her was unreasonable. She wrote the following:
. . . immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
[16] The ministerial guidelines, at paragraph 8.1.1, deal with spouses of Canadian citizens and, in particular, spouses sponsored as members of the family class which is the case here. This is what the guidelines provide:
8.1.1 Spouses sponsored as members of the family class
Canada's long-term policy has been facilitation of admission for those spouses in Canada sponsored by their Canadian citizen or permanent resident spouses.
First of all determine
· Has a sponsorship been submitted and approved?
If so, the applicant is a potential member of the family class and this can be considered as a favourable H & C factor.
Then consider
· Is the marriage genuine? That is, a marriage with the intention of residing permanently with the other spouse and not entered into for the primary purpose of remaining in Canada or gaining admission as a member of the family class. You may wish to consider
- The legality of the marriage
- The circumstances and timing of the marriage. For example, did the marriage take place after the applicant was refused a visitor extension or when removal was imminent?
· How long has the couple been in the relationship?
· The religious, social and cultural norms of the applicant's community.
· Previous dealings with the Department that might be relevant.
For example, a previous marriage of convenience, enforcement action, refused immigration applications, or misrepresentation.
· Any other factors that you believe to be relevant to your decision.
[17] Counsel for the applicant argued three grounds in support for setting aside the immigration officer's decision:
(1) error of law, namely, in concluding the marriage was not genuine, the evidence available to the immigration officer does not support the twofold test set out in Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359, namely first, whether the marriage was entered into primarily for the purpose of obtaining admission to Canada, and secondly, whether the sponsored spouse has the intention of residing permanently with the other spouse;
(2) the fettering of her discretion when the immigration officer ruled the H & C factors were outweighed by the applicant's previous criminality coupled by the fact there was no assessment of the H & C factors put forward by the applicant; and
(3) the immigration officer made erroneous findings of fact when she found that Mr. Thai was unable to provide details of the applicant's criminal convictions and made an unreasonable finding of fact when she decided the marriage was not genuine.
[18] Apart from the issue of the fettering of discretion, as I see it, the grounds advanced by the applicant essentially attack the reasonableness of the immigration officer's decision based on a standard of review of reasonableness simpliciter as established in Baker, supra.
[19] An unreasonable decision, Justice L'Heureux-Dubé said in Baker, supra, is how Justice Iacobucci viewed it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56 in these words:
An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[20] It is useful to recall what Justice L'Heureux-Dubé said in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, about reviewing factual findings. She wrote at paragraph 85:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one ... Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable.
[21] I agree with counsel for the respondent that the nature of the decision in Horbas, supra, is quite different than the characteristics of the decision before the immigration officer which is essentially a discretionary decision.
[22] In Horbas, supra, the visa officer rejected a sponsored application for permanent residence based on a finding the spouse was not a member of the family class because of subsection 4(3) of the Immigration Regulations (the "Regulations"). According to that provision, the family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
[23] When a visa officer is deciding whether a person is a member of the family class on the basis of subsection 4(3) of the Regulations, the visa officer is applying a legally binding regulation and determining whether the facts before him/her meet the legislative standards.
[24] An immigration officer, when deciding whether an exemption from section 9 of the Immigration Act should be granted to a sponsored spouse is involved in making a discretionary decision based on ministerial guidelines. Those ministerial guidelines, while directing an immigration officer to examine the genuineness of the marriage, do so on a different basis and on a consideration of wider factors than would a visa officer interpreting subsection 4(3) of the Regulations. That said, an immigration officer must exercise his/her discretion on a sound evidentiary foundation.
[25] In this case, the immigration officer was simply not satisfied for the purposes of the decision she was making that the applicant and her sponsor had advanced sufficiently strong evidence the marriage was genuine. Based on the evidence she relied on, this conclusion was, in my view, reasonably open to her. Counsel for the applicant has not been able to identify a reviewable defect in the evidentiary foundation for the decision as expressed in Southam, supra, applying the standard in C.U.P.E., supra.
[26] Counsel for the applicant argues the immigration officer failed to take into account the H & C factors in her favour (her nine years in Canada, her rehabilitation, no immediate family in Vietnam, the difficult life in Vietnam and their marriage) as well as the fettering of her discretion by weighing in too heavily on her past criminality.
[27] I do not accept the applicant's submission that the immigration officer ignored the H & C factors advanced. The immigration officer's case summary identifies those H & C factors.
[28] Lastly, the applicant has not made out a case for fettering of discretion. As I see it, the real attack made here is that the immigration officer treated the criminality factor as decisive regardless of the presence or strength of countervailing H & C factors.
[29] I do not think such is the case. The immigration officer identified the H & C factors but found them insufficiently strong when gauged against her past criminality, a factor which cannot be said to be irrelevant when considering whether the applicant should be exempted from the application of section 9 of the Immigration Act which requires an immigrant to make an application for and obtain a visa before that person appears at a Canadian point of entry. Evans J., as he then was, reached a similar conclusion in Lukic v. Minister of Citizenship and Immigration (IMM-1515-98, March 10, 1999, F.C.T.D.).
DISPOSITION
[30] For all of these reasons, this judicial review application is dismissed. No certified question was raised.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 6, 2001