Date: 20020925
Docket: IMM-4774-01
Neutral citation: 2002 FCT 1005
Toronto, Ontario, Wednesday, the 25th day of September, 2002
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
SHARULATHA VIJAYARATNARASA
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Despite the articulate submissions of counsel for the applicant, I have not been persuaded
that the immigration program manager committed any error in refusing the applicant's request to waive the selection criteria for permanent residence in Canada on the basis of humanitarian and compassionate grounds.
[2] The applicant argued that the bifurcation of the process resulted in a breach of procedural
fairness. The applicant was interviewed by a visa officer regarding her application for permanent residence as an independent. After determining that the applicant did not have sufficient units of assessment to qualify for immigration as an independent, the visa officer conducted an interview with respect to the request for landing on humanitarian and compassionate grounds. The visa officer informed the applicant that she would not be recommending approval but that she would not be making the decision. The officer advised the applicant of the reasons why she would not be recommending approval. The immigration program manager indicated that he carefully reviewed the information in the file as well as the visa officer's CAIPS notes of the interview and was not satisfied that there were sufficient humanitarian and compassionate grounds to waive the selection critera. It is not a breach of procedural fairness for the immigration program manager to make the decision, without meeting the applicant, where the decision maker has before him and considers all the facts and circumstances relative to the claim: Burgin v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. 34 (T.D.); Ho v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1303 (T.D.) The applicant cannot succeed on this ground of review.
[3] The applicant also argues that the decision maker ignored relevant factors. A review of the
record demonstrates that all factors referred to by applicant's counsel were referred to in the CAIPS notes, which the immigration program officer carefully considered. This ground of review must fail.
[4] The applicant argues that insufficient consideration was given to subsection 3(c) of the
Immigration Act, R.S.C. 1985, c. I-2. Again, the record discloses that this factor was considered. The words of Rothstein, J., as he then was, in Khairoodin v. Canada (Minister of Citizenship and Immigration) (1999), 2 Imm. L.R. (3d) 275 are applicable:
Finally, while paragraph 3(c) of the Immigration Act sets forth an objective of the Act which is to facilitate the reunion in Canada of Canadian citizens and permanent
residents with their close relatives from abroad, decisions under subsection 114(2) of the Act are still discretionary.
I do not find, in these circumstances, that any reviewable error was made. Thus, this ground of review fails.
[5] Lastly, the applicant submits that any concerns that the immigration program manager had,
upon reviewing the visa officer's notes, should have been put to the applicant so that she could have been afforded the opportunity to respond. This argument is without merit. All information before the visa officer emanated from the applicant. A further analysis on this ground is provided by O'Keefe, J. in Ly v. Canada (Minister of Citizenship and Immigration) (2000) 194 F.T.R. 123 at 130. Although I am sympathetic to the applicant's situation, my intervention is not warranted. The application for judicial review is dismissed. Counsel did not suggest a question for certification. No question is certified.
ORDER
This application for judicial review is dismissed. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.C
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4774-01
STYLE OF CAUSE: SHARULATHA VIJAYARATNARASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, SEPTEMBER 25, 2002
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: WEDNESDAY, SEPTEMBER 25, 2002
APPEARANCES BY: Mr. Jegan N. Mohan
For the Applicant
Ms. Pamela Larmondin
For the Respondent
SOLICITORS OF RECORD: Jegan N. Mohan
Mohan & Mohan
225-3300 McNicholl Ave.
Scarborough, Ontario
M1V 5J6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020925
Docket: IMM-4774-01
BETWEEN:
SHARULATHA VIJAYARATNARASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER