Date: 20010927
Docket: IMM-6054-99
Neutral Citation: 2001 FCT 1063
BETWEEN:
PETER REID, GWENDOLYN REID
and KENROY REID
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of the decision of an immigration officer dated December 9, 1999. The immigration officer decided not to recommend an exemption pursuant to subsection 114(2) of the Act.
[2] The applicant seeks an order quashing the above decision and an order that the application be processed by another immigration officer.
FACTS
[3] The applicants, Peter Reid, his wife Gwendolyn Reid, and their child Kenroy Reid, came to Canada in June 1994 to visit family. They later made a refugee claim for which a decision of abandon/withdrawn was made on January 20, 1999. The applicants then applied under subsection 114(2) of the Act for humanitarian and compassionate (H & C) considerations in order to be able to file their permanent residence application from within Canada. On December 9, 1999, the applicants attended an interview in relation to their H & C application. By letter of the same day, the applicants' H & C application was denied. The applicants brought an application for leave and judicial review of this decision on December 14, 1999.
STANDARD OF REVIEW
[4] As this application involves an inland exemption based on H & C considerations, in my view, the appropriate standard of review is that of reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
ANALYSIS
[5] In my opinion, the applicants have failed to show how the immigration officer erred in refusing their H & C application. Although the applicants state that Peter Reid was to be sent to England while his wife and son were to be sent to Jamaica, there is no evidence on the record to support this contention. Furthermore, a perusal of the materials in the applicants' record indicates that the effect of sending the husband to England while sending the wife and child to Jamaica was not raised in the H & C application.
[6] Counsel for the applicant suggests that the applicants are well established in Canada and that the immigration officer's decision is unreasonable as the hardship caused to the remaining family and the best interest of their child were not taken into consideration.
[7] In Irimie v.Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906 (F.C.T.D.), Justice Pelletier held at paragraphs 12 and 26:
[para 12] If one then turns to the comments about unusual or undeserved which appear in the Manual, one concludes that unusual and undeserved is in relation to others who are being asked to leave Canada. It would seem to follow that the hardship which would trigger the exercise of discretion on humanitarian and compassionate grounds should be something other than that which is inherent in being asked to leave after one has been in place for a period of time. Thus, the fact that one would be leaving behind friends, perhaps family, employment or a residence would not necessarily be enough to justify the exercise of discretion.
[...]
[para26] I return to my observation that the evidence suggests that the applicants would be a welcome addition to the Canadian community. Unfortunately, that is not the test. To make it the test is to make the H & C process an ex post facto screening device which supplants the screening process contained in the Immigration Act and Regulations. This would encourage gambling on refugee claims in the belief that if someone can stay in Canada long enough to demonstrate that they are the kind of persons Canada wants, they will be allowed to say. The H & C process is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship.
[8] I have carefully reviewed the H & C application and the immigration officer's notes. In my view, the applicants have failed to show how the respondent breached a duty of procedural fairness owed to them. It is apparent that the immigration officer fully considered the applicants' application. Furthermore, the immigration officer reached a decision that was reasonably open to her based on the information properly before her.
CONCLUSION
[9] This application for judicial review is dismissed.
[10] Counsel for the applicant suggested a question for certification:
Would a decision to deny an application based on minimal establishment escape the standard of review of reasonableness decided by the Supreme Court of Canada?
[11] Counsel for the respondent suggests that this question has already been answered and that it is not a serious question of general importance (reference Irimie, supra, paragraph 20).
[12] I agree with counsel for the respondent that this question has been already answered and that it is not a question of general importance.
[13] Therefore, no question will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 27, 2001