Date: 20010905
Docket: IMM-4182-00
Neutral Citation: 2001 FCT 993
Between:
(Designated Representative, Bernadette Charlery)
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
Muldoon, J.
1. Introduction
[1] This is an application under the Federal Court Act, R.S.C. 1985, Chap. F-7, for judicial review of the decision by an immigration officer, rendered on July 18, 2000, to refuse a humanitarian and compassionate application made under subsection 114(2) of the Immigration Act, R.S.C. 1985, Chap.I-2 as am. (the Act").
[2] The applicant, Melanie Charlery, a male person despite the given name, was born in Soufrière, St. Lucia, on March 19, 1986. The applicant's mother and litigation guardian, Bernadette Charlery, was born in Choiseul, St. Lucia, on November 1, 1966. The applicant's older sister, Diana Charlery, was born on February 21, 1983, and his younger sister, Mandisa Charlery, was born on March 23, 1989.
[3] The applicant lived with his mother until he was nine months old. She had very little money, and his father refused to pay child support. She lived with her brother who refused to allow her children to live in his home. Therefore, she sent the applicant to live with his paternal grandmother where she visited him several times a week, and provided him with food and clothing if and when she could.
[4] The applicant's mother came to Canada on August 10, 1991. Her daughters remained in St. Lucia with their maternal grandmother, and her son remained with his paternal grandmother. After she emigrated in 1991, the applicant's mother maintained contact with the applicant through letters, cards and telephone calls.
[5] In October, 1993, the applicant's mother married a Canadian resident who sponsored her application for landing on March 26, 1996. The applicant's mother brought her daughter Mandisa to Canada in 1991, and her daughter Diana in 1996. The applicant's mother says that she was physically and emotionally abused by her husband. The abuse intensified after Mandisa arrived. Eventually, she left her husband. Despite their sponsorship agreement stating that he was responsible to support her, he refused to do so.
[6] The applicant's father lives in Micoud, St. Lucia with his wife and the children of their union. In 1996, he took in the applicant when the applicant's grandmother became too elderly to care for him. The applicant was ten years old.
[7] In January, 1999, the applicant's mother returned to St. Lucia to attend her father's funeral. The applicant was upset and asked if he could live with her. He disclosed that his stepmother was abusive and neglectful. The applicant's mother discussed this with his father, who confirmed that the applicant's stepmother did not like him, nor did she want him living in her home. Although she was still struggling, his mother decided to bring the applicant to Canada. The applicant arrived in Toronto on February 8, 1999, and has lived with his mother and sisters since then.
[8] When the applicant arrived in Canada, he disclosed to his mother that his stepmother frequently screamed at him, and that he was afraid to tell his father for fear of retaliation by his stepmother. The applicant was made to sleep on the floor, and was not fed until his stepmother's children had eaten enough.
[9] On February 16, 1999, the applicant's mother submitted an application for landing on behalf of the applicant based on humanitarian and compassionate grounds. She also submitted an application for a student authorization, and he started school in Canada. On February 16, 2000, one year later, the applicant and his mother attended an interview with an immigration officer at the Canada Immigration Centre in Etobicoke, Ontario, with an immigration officer.
[10] The immigration officer asked the applicant's mother questions about being in receipt of social assistance after she sponsored her daughter Diana. The applicant's mother explained that she had lost her job as a nanny when the child under her care enrolled in school. The applicant's mother collected employment insurance benefits until they expired, and collected welfare because her husband would not support her. The applicant's mother had been employed on a full-time basis as a nanny since March 23, 1999, and is trying to support herself. The applicant's mother was too ashamed to volunteer to the immigration officer that her marriage ended because of abuse. That was not intelligent of her to suppress such information.
[11] The interview lasted approximately 37 minutes. The applicant says that immigration officer asked many questions about Diana Charlery's sponsorship, and explained that the applicant's mother was prohibited from sponsoring another child because she had resorted to social assistance in the past. The immigration officer told the applicant's mother that she would have to pay back all of the money which she had received before being eligible to sponsor the applicant, according to Bernadette Charlery.
[12] On May 30, 2000, the immigration officer noted the following as the rationale for refusing the application:
The subject and his mother (sponsor) attended an interview at this office on Feb.16.2000. They are requesting waiver of subsection 9(1) of Canada's Immigration Act based on his stepmother's abuse of him. The subject's mother has submitted an Undertaking of Assistance.
At the interview the subjects's mother stated that she had sponsored one child and that she is in receipt of social assistance. I confirmed this information with social services. As such, Ms. Charlery is in default of the previous sponsorship and as such she cannot sponsor her son.
I have considered the mother's statement that his stepmother abused her son; however, I am not satisfied that this is the situation, the subject stated that his stepmother yelled at him there was no mention of physical abuse. Also the subject has lived with his father from age 9 months old, there is insufficient evidence to support that his father would not offer him assistance.
It should be noted that the sponsor has been landed in Canada from March 1996 - she could have sponsored him in the normal manner prior to this date and prior to going on assistance.
The subject has been in Canada from February 8, 1999 - although the sponsor stated that she lost her son's passport there is evidence on F.O.S.S. of his entry date.
Based on the information on file and gathered at the interview I am not satisfied that if the subject had to apply in the normal manner it would result in unusual, undeserved or disproportionate hardship. I am not satisfied that there exist sufficient humanitarian or compassionate grounds to warrant exception of Canada's Immigration laws. As such Mr. Charlery's request for waiver of subsection 9(1) of Canada's Immigration Act is refused.
[13] On July 18, 2000, the application was refused. The applicant and his mother sought assistance from Parkdale Community Legal Services to file an application for leave and for judicial review. The matter was heard in this Court, in Toronto, on June 6, 2001.
3. Issues
a. Did the applicant introduce new facts which were not before the immigration officer?
b. Did the immigration officer err by basing her decision partly on an error of fact regarding the applicant's circumstances in St. Lucia?
c. Did the immigration officer fetter her discretion by refusing to consider whether there were humanitarian and compassionate grounds to admit the applicant despite his mother's ineligibility to sponsor him? and
d. Did the immigration officer consider irrelevant matters, or fail to consider relevant ones, in making the decision?
4. New Facts
Minister's Submissions
[14] The Minister submits that Bernadette Charlery's affidavit introduces new evidence which was not before the immigration officer. Specifically, details regarding the applicant's situation of abuse in St. Lucia were not disclosed. The reasonableness of the decision can be measured only against the evidence with which the immigration officer was provided, and this Court should not attach any weight to this evidence. The applicant has the onus to satisfy the immigration officer that humanitarian and compassionate grounds exist; the applicant cannot be permitted to withhold information, and then attack the reasonableness of the decision.
Applicant's Submissions
[15] The applicant submits that the new facts were introduced to demonstrate that the immigration officer breached her duty of fairness during the interview. Moreover, counsel became aware of these facts only while preparing for this judicial review. So, there is good reason for the law requiring a party before the administrative tribunal, who alleges unfairness, to do so on the spot, while the administrative tribunal still has the parties before it and can still effect remedial action, if it retain the equanimity to do so. But not all parties know the law, and they are not presumed to know it in non-criminal-law matters such as this.
Analysis
[16] Judicial review of a decision of a federal board, commission or other tribunal must proceed using the evidence which was before the decision-maker. So, a complaint of unfair proceeding must be raised before the decision maker in person. In filing an application for judicial review, the applicant cannot introduce fresh or new evidence which was not before the decision-maker. In Walker v. Randall (1999), 173 F.T.R. 161 (T.D.), Mr. Justice Teitelbaum stated at page 171:
[32] In the case of Naredo and Arduengo v. Canada,..., Mr. Justice Cullen states at page 286:
[21] Regarding the remaining affidavits at issue, the case law is clear that the court is bound to the record filed before a federal board, commission, or other tribunal [...]. In Rahi v. Minister of Employment and Immigration,..., MacGuigan, J.A., dismissed an application for an extension of time to file a supplementary affidavit. Li v. Minister of Citizenship and Immigration,..., is a similar case. In Owusu v. Minister of Citizenship and Immigration,..., Reed, J., refused to consider new evidence that was not before the Immigration and Refugee Board (hereinafter, the "IRB"). Most significantly, Reed, J., stated at p. 2:
With respect to the new evidence, I do not think it is open to me to consider it, nor do I think it is open to me to refer the application back for a rehearing so that the Board can consider it. The appropriate avenue is for it to be considered in the back-end humanitarian and compassionate review process. That is the safety valve for dealing with evidence of the type in issue.
In Asafov v. Minister of Employment and Immigration,..., Nadon, J. comments that the application to introduce into the record new evidence which was not before the Immigration and Refugee Board when it rendered its decision would have the effect of transforming the judicial review process into that of an appeal.
[33] I agree with the statement made by Mr. Justice Gibson in Lemiecha et al. v. Minister of Employment and Immigration...:
[4] It is trite law that judicial review of a decision of a federal board, commission or other tribunal should proceed on the basis of the evidence that was before the decision-maker. It is obvious that Dr. Newhouse's report post-dated the decision in question and thus constituted evidence not before the decision-maker. I sustained the objection. The judicial review thus proceeded on the basis only of evidence that was before the decision-maker.
[34] This being the case, the applicant, in filing an application for judicial review cannot, by means of filing affidavits introduce "fresh" or "new" evidence that was not before the CHRC. This, I am satisfied, the applicant is attempting to do.
[17] Therefore, the Court will not accord weight to the evidence which was not before the immigration officer.
5. Error of Fact
Applicant's Submissions
[18] The applicant submits that the immigration officer's rationale discloses an error of fact which may have affected her decision. In assessing the applicant's family circumstances, the officer incorrectly stated that his mother gave him to his father at the age of nine months, and she stated that there was insufficient evidence that his father would not offer him assistance.
[19] The applicant lived with his mother until he was nine months old, and then lived with his paternal grandmother. He moved in with his father when he was ten years old because his grandmother was too elderly to care for him. The applicant says that this information was given to the immigration officer. The applicant submits that this error of fact on the face of the record had a serious impact on the decision.
Minister's Submissions
[20] The Minister submits that the immigration officer relied upon the information which was given to her by the applicant and his mother. The immigration officer was correctly told that the applicant had not lived with his mother since he was nine months old.
[21] The Minister submits that even if there was a factual error, it did not disturb the ultimate finding regarding the applicant's ties to Canada. The Minister submits that his circumstances in St. Lucia were relevant in evaluating the applicant's ties to St. Lucia versus his ties to Canada. Although the applicant's mother and two sisters live in Canada, he has not lived with them since he was nine months old. That he lived with his paternal grandmother instead of his father until he was 10 years old does not change the fact that he did not live with his mother or siblings during that period. The misinformation is attributable to the applicant's mother, Bernadette.
Analysis
[22] A communication error occurred during the interview. The applicant's mother says that she indicated to the immigration officer that the applicant had lived with his grandmother for almost ten years. The Minister says that this is not what the immigration officer was told. Because of this contradiction, the Minister invites the Court to prefer the immigration officer's contemporaneous notes over the applicant's affidavit evidence. The Court is inclined to do so. It seems correct to find that the applicant's mother was mistaken or prevaricating in relating information with which she was embarrassed, as she was about her failed marriage. The Court prefers to examine the impact of the "mistake", which resulted in a reasonable conclusion, on the part of the immigration officer.
[23] The Minister submits that the placement of the child for almost ten years is relevant only in evaluating his ties to St. Lucia versus his ties to Canada. The Court is unable to disagree that this is what transpired. In her rationale, the immigration officer stated:
I have considered the mother's statement that his stepmother abused her son; however, I am not satisfied that this is the situation, the subject stated that his stepmother yelled at him there was no mention of physical abuse. Also the subject has lived with his father from age 9 months old, there is insufficient evidence to support that his father would not offer him assistance.
(Emphasis added)
[24] This comment was made in the context of the potential abuse of the child. It is not clear to this Court to what type of assistance the immigration officer is referring, and the record is not helpful in deciphering what was meant. However, it is clear that the comment is not an evaluation of the child's ties to Canada, but rather relates to the ability or inclination of the child's father to intervene on behalf of the child. Because the comment appears to confuse an important factual matter, the Court cannot conclude that it was irrelevant to the final decision to refuse the application. What Melanie's mother lacked in forthrightness, the visa officer also seemed to lack in terms of punctuation and sequence of thoughts. The Court is left in doubt.
6. Fettering Discretion
Applicant's Submissions
[25] The applicant submits that the immigration officer focused mainly on the sponsorship default, and asked very few questions about the applicant's humanitarian and compassionate circumstances in St. Lucia. The applicant's mother says that she attempted to discuss her son's circumstances with the immigration officer, but that she was reminded that she was ineligible to sponsor the applicant, and that the immigration officer could not bend the law for her family. The applicant says that the immigration officer stated that she had no option in the matter because the applicant's mother was in default of a previous sponsorship agreement. By concentrating on the default, the applicant submits that the immigration officer fettered her discretion
[26] The immigration officer had the authority to exempt the applicant from subsection 9(1) of the Act, but she failed to exercise that discretion because she concluded that the applicant's mother was ineligible to sponsor him. However, section 7 of Chapter IP-5 of the Immigration Manual states that the lack of sponsorship is but one of many factors to consider. The guidelines emphasize the need to deal with subsection 114(2) of the Immigration Act on a case by case basis.
[27] The applicant submits that the immigration officer did not exercise her discretion to make a humanitarian and compassionate decision in accordance with the objectives of the Immigration Act. The immigration officer's notes do not discuss the importance of family reunification, and the immigration officer should have exercised her discretion to recommend a Minister's permit to allow the applicant to remain with his mother and sisters in Canada.
Minister's Submissions
[28] The Minister submits that the immigration officer considered the applicant's mother's inability to sponsor her child only as one factor among others in making her decision. As evinced by the immigration officer's notes, the lack of sponsorship ability was not the sole basis for the decision. Specifically, the immigration officer also considered the applicant's ties to St. Lucia, and his degree of establishment in Canada in determining if he would face unusual or disproportionate hardship if he applied from St. Lucia for his immigrant visa.
Analysis
[29] Section 7 of Chapter IP-5 of the Immigration Manual states:
7. SPONSORSHIPS AND SPONSORSHIP APPEAL RIGHTS
Sponsorships must be considered properly in the H & C decision-making context. Rights and obligations of sponsors must be consistent whether applications are processed in Canada or abroad.
Generally, an H & C application based on family class relationship is supported by a sponsorship from a Canadian citizen or permanent resident. This is a practical way for relatives in Canada to support an application and to demonstrate their desire to have the family member remain in Canada. However, lack of a sponsorship does not mean that the H & C request should be refused; rather, it is just one of all of the other factors taken into account by the decision-maker.
The sponsorship approval decision must be made before looking at the H & C request. This is so that sponsorship existence or lack thereof and comparative importance of this fact can be considered when making the H & C decision.
Appeal rights are issued to the sponsor when the sponsored applicant receives a positive H & C decision but a negative landing decision.
The decision to exempt an applicant from A9(1) cannot be re-visited other than in cases of fraud or misrepresentation. This is why it is important to process any sponsorship before considering the H & C decision (see Section 6.8 - Re-opening of positive H & C decision).
The existence or lack of an approved sponsorship could be a significant factor when the H & C request is based on family reunification. However, there is no legal requirement that applicants be sponsored in order to be considered under R2.1. Where a family class relationship exists and the H & C application is not supported by an approved sponsorship, this is just one factor to be considered along with all of the other aspects of the application. The following sections provide further guidance for specific situations.
...
(Emphasis added)
[30] The immigration officer stated in the rationale for the decision:
At the interview the subjects's mother stated that she had sponsored one child and that she is in receipt of social assistance. I confirmed this information with social services. As such, Ms. Charlery is in default of the previous sponsorship and as such she cannot sponsor her son.
[31] The immigration officer is alleged to have fettered her discretion by failing to consider other factors in her decision. The Minister invites to Court to consider the interviewer's contemporaneous notes as constituting the reasons for the decision, and the Court is inclined to do so. Firstly, the notes are recordings of what was discussed, but, as stated, they contain one material error of fact. Secondly, there is good evidence that the visa officer relied on these notes, even although she composed a separate rationale to verify the decision. Melanie's mother seems not to have acted in his best interest in prevaricating as she did.
7. Denial of Procedural Fairness
Applicant's Submissions
[32] The applicant says that the immigration officer did not inquire into the applicant's living situation in St. Lucia, and exhibited little concern about the particulars of the abuse which he suffered. The officer's notes indicate that she was unsatisfied that the applicant was in an abusive situation in his stepmother's home. She notes that he accused his stepmother of "yelling, ...no mention of physical abuse." The applicant was nervous and anxious about being returned to his stepmother's house. He did not volunteer details, but rather answered the questions concisely.
[33] The applicant submits that the immigration officer's statement that the applicant's mother had an opportunity to sponsor the applicant at an earlier date before she had been in receipt of social assistance was also based on a lack of information. The immigration officer is alleged to have assumed that the applicant's mother was in a position to sponsor him before he applied for humanitarian and compassionate consideration, and this assumption influenced her decision to deny his application. She may also have assumed that the applicant's mother simply separated from her sponsor, without determining why. The guidelines warn immigration officers that their decisions should not be based on information which they presume to be apparent, and require them to explain their ratiocinations.
[34] Baker v. M.C.I., [1999] 2 S.C.R. 817 states that the standard for judicial review of a humanitarian and compassionate application is reasonableness simpliciter. (Oh, how the judiciary and the profession have so recently become enamoured of a simple Latin adverb meaning "simply"!) The reasonableness of the decision should be assessed in light of its consistency with the purpose of the legislation, the Minister's guidelines, and Canada's humanitarian and compassionate tradition as set out in the Immigration Act and as recognized in the international human rights covenants and treaties which Canada has ratified. Subsection 3(c) of the Act states that the Act seeks to "facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad." Subsection 114(2) of the Act and section 2.1 of the Regulations provide for the facilitation of admission to Canada of any person "owing to the existence of compassionate or humanitarian considerations." The Minister has provided immigration officers with guidelines to ensure that the delegated authority pursuant to subsection 114(2) is administered consistently. It is the statute which expresses the law.
[35] Regarding the separation of parents and dependent children, the guidelines state at page 27:
8.5 Separation of parents and dependent children (outside of the family class)
(Special Category Code - SOF)
The removal of a status-less individual from Canada may have an impact in relation to family members who do have the legal right to remain (i.e., permanent residents or Canadian citizens). The geographic separation of family members could create a hardship that may warrant a positive H & C decision. Other than his or her spouse or partner...the status-less individual's family members with legal status may include children, parents and siblings, among others.
In evaluating such cases, you should balance the different and important interests at stake:
- Canada's interest (in light of the legislative objective to maintain and protect the health, safety and good order of Canadian society)
- family interests (in light of the legislative objective to facilitate family reunification)
- the circumstances of all the family members, with particular attention given to the interests and situation of the status-less individual's children.
The applicant's submissions may be considered in light of international human rights standards such as the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. International case law suggests that the State's interests in protecting society and regulating immigration are to be weighed or balanced in relation to the interests of the individual facing removal and the impact of this removal on his/her family members.
Adult applicants may present submissions from, or on behalf of, members of their family, setting out the family members' views. For children, such submissions should be considered in accordance with the children's age and maturity, recognizing the increasing capacity of a child as he/she matures, to present his/her own views.
As in all H & C cases, consider the degree of hardship in relation to the applicant's personal circumstances...
Consider
· The links with the applicant's country of origin.
(e.g., amount of time resident in his/her country of origin, ability to speak language, return visits since arrival in Canada, family members remaining in the country of origin)
· The links of family members to the applicant's country of origin, if applicable.
(e.g., amount of time spent in applicant's country of origin, ability to speak language of applicant's country of origin, other family members in applicant's country of origin)
· The degree of establishment in Canada
(see Section 6.2 - General establishment guidelines).
· Current immigration or citizenship status of each member of the family.
· The applicant's immigration status at the time the family links were formed.
(i.e. status at time of marriage, of having children)
· If the applicant's immigration status was lost after the family links were formed, what was the original status (e.g., visitor, permanent resident) and under what circumstances was status lost.
· What are the effective links with family members (children, spouse, parents, siblings, etc.) in terms of ongoing relationship as opposed to simple biological fact of relationship
- Where the applicant is residing in relation to the family members, particularly his/her children.
- If there has been any previous period of separation, for how long and why.
- If the applicant and his/her spouse are separated or divorced, has there been a court order in relation to custody arrangements? If the applicant is the non- custodial parent, has s/he been exercising any visitation rights? What do the materials filed with the family court indicate about the family's circumstances?
- Degree of psychological / emotional support in relation to other family members.
· Options for the family to be together in another country or possibility to maintain contact.
· Impact on family members, especially children, if the applicant is deported.
- Particular circumstances of the applicant's child (age, needs, health, emotional development).
- Financial dependence involved in the family ties.
· Any other factors that you believe to be relevant to your H & C decision.
...
(Emphasis added)
[36] The applicant submits that there was no evidence in the material before the immigration officer that the applicant's admission to Canada would have a negative impact on the health, safety and good order of Canadian society. On the other hand, there was some evidence that his removal would have a negative impact on him.
[37] The immigration officer's decision was based in part on incorrect factual information and on speculation. The applicant submits that the decision is not reasonable in light of the policy guidelines to give particular consideration to the interests of children. The applicant submits that the immigration officer's conclusion that his removal to St. Lucia would not cause any undue hardship to him or to his family in Canada is unreasonable.
Minister's Submissions
[38] The existence of a humanitarian and compassionate review offers an individual special and additional consideration for an exemption from Canadian immigration laws. The decision of an immigration officer not to recommend an exemption under subsection 114(2) takes no right away from an individual. The applicant has the onus to satisfy the immigration officer that humanitarian and compassionate grounds exist. It is for the applicant to show that an exception to the normal immigration rules is required. It is not immigration officials who assume the responsibility to obtain the evidence. The applicant, although a minor, attended the interview with his mother who had the opportunity to provide the immigration officer with relevant information.
[39] The applicant has described the factors which immigration officials should consider when dealing with applications involving families. The Minister submits that the immigration officer considered those factors when she took notice of the applicant's ties to his mother, to his father, and to his family in St. Lucia. The immigration officer concluded that the applicant had much more significant ties to St. Lucia. Furthermore, the immigration officer was not satisfied, based on the information before her, that the applicant's stepmother abused him.
[40] The record indicates that besides the financial information of the applicant's mother, the only information which was provided to the immigration officer was the following:
a. The applicant was born in 1986 in St. Lucia, and lived there until he came to Canada in 1999;
b. The applicant had not lived with his mother and sisters since he was nine months old;
c. The applicant's mother came to Canada from St. Lucia in 1991;
d. From 1991 until 1998, the applicant's sisters were sponsored and landed in Canada. The applicant was not one of them because the applicant's mother was not ready to bring him to Canada;
e. In 1999, the applicant's mother went to St. Lucia and found that her son did not want to live with his father anymore;
f. The applicant claims that his stepmother abused him, that she yelled at him and that his father did not believe him; and
g. Since his arrival in Canada, the applicant has not made any friends and is not involved in any activities or groups; he watches TV most of the day.
[41] Given the evidence which was provided by the applicant to the immigration officer, the Minister submits that the immigration officer's decision was reasonable. The officer's conduct in this matter is certainly not to be criticized.
Analysis
[42] In the rationale dated May 30, 2000, the immigration officer stated:
It should be noted that the sponsor has been landed in Canada from March 1996 - she could have sponsored him in the normal manner prior to this date and prior to going on assistance.
[43] The immigration officer does not explain how the applicant's mother's failure to sponsor him in the past affects the humanitarian and compassionate circumstances which exist presently. This comment is alleged to be irrelevant to determining the bona fides of the applicant's humanitarian and compassionate application..
[44] The immigration officer also states in her report that "there was no mention of physical abuse." However, in box 9 the Application to Change Terms and Conditions or Extension of a Stay in Canada, dated February 19, 1999, it is stated:
My father's wife is physically and verbally abusing me so I told my mom about it and I wanted to be with my mom and my two sisters.
(emphasis added)
[45] Although it was not discussed during the interview, it was clearly before the immigration officer that there might have been physical abuse. Although there is no duty upon an immigration officer to make the applicant's case, it was not entirely accurate for her to say that there was no mention of physical abuse in the record before her. The guidelines provide a long list of factors to evaluate. The immigration officer's notes do not indicate which factors she considered on this list. It must be remembered: guidelines do not express Parliament's will; they are not law.
8. Conclusion
[46] The decision of the immigration officer is set aside, and the matter is referred to a different immigration officer for redetermination. The newly designated immigration officer will do well to attempt to bring out the real truth of the case, knowing from these reasons where the pitfalls are herein, but listening carefully in the spirit of the law and of unbiased fairness to the parties.
9. Question for Certification
[47] The applicant submits the following question for certification:
In dealing with an immigration application on "humanitarian and compassionate" grounds made by a minor applicant, unrepresented by counsel, who alleges having experienced domestic abuse, does the duty of administrative fairness require an immigration officer to actively investigate the humanitarian concerns, seeking information from third parties and/or professionals if indicated, in order to ensure that the humanitarian and compassionate issues are fully and fairly addressed?
[48] The Court does not consider the question to be one of general importance and, in Parliament's word, refuses to certify it.
F.C. Muldoon
Judge
OTTAWA, Ontario
September 5, 2001