Date: 20011106
Docket: IMM-58-01
Neutral Citation: 2001 FCT 1215
BETWEEN:
MEI YI CHEN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Mei Yi Chen (the "Applicant") seeks judicial review pursuant to the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") as amended, section 82.1. The application relates to a decision of P.M. Johnson (the "Immigration Officer") dated December 18, 2000. In her decision, the Immigration Officer determined that the Applicant had failed to present sufficient humanitarian and compassionate grounds to obtain approval for landing in Canada pursuant to section 114(2) of the Act.
[2] The Applicant is a citizen of China. She married in Fiji on September 20, 1994 and her daughter was born on May 29, 1995. In 1998, the Applicant came to Canada, together with her husband and child, to visit her parents, brother and sisters, all of whom are permanent residents of Canada.
[3] The Applicant entered Canada on February 16, 1998 with a Visitor's Visa. That Visitor's Visa was validated until August 15, 1998.
[4] The Applicant, her husband and daughter initially lived with her parents until November 19, 1998. At that time, the Applicant and her children continued to live with her parents in a home which they had recently purchased. On November 13, 1998, the Applicant gave birth to a son.
[5] On November 21, 1998, the Applicant was divorced from her husband. Pursuant to a separation agreement executed in May 1999, the Applicant is to receive annual support payments of $6,700.00 from her former husband. While both parents are to enjoy joint custody of their daughter, that child is to live with the Applicant and the Applicant has the right to determine any plans for the immigration of the daughter to Canada.
[6] On June 8, 1999, the Applicant submitted an inland application for landing based on humanitarian and compassionate grounds. The application was filed also on behalf of her daughter. While the application for landing within Canada remained outstanding, the Applicant sought and received extensions to her Visitor's Visa, the most recent extension being until March 1, 2001.
[7] On September 21, 2000, the Applicant attended for an interview with the Immigration Officer, accompanied by her lawyer and an interpreter. Her parents and younger brother also accompanied the Applicant but were not interviewed by the Immigration Officer.
[8] The documentary evidence submitted by the Applicant with her application for landing, as well as the documents submitted at the interview, included the following:
- the deed to the house purchased by her parents;
- a letter verifying her monthly earnings as a child minder;
- her Hong Kong bank account book showing a balance of $2,332.00;
- a letter from the Hong Kong bank verifying savings and investment funds in the amount of $18,807.07;
- a letter from South Riverdale Community Health Centre verifying her involvement with the Chinese Woman's Support Group for Mothers;
- letters of support from parents, siblings and friends;
- letter from the Toronto Chinese Evangelical Church verifying attendance of the Applicant at that church and her baptism in August 1999.
[9] In her affidavit filed in support of this application for judicial review, the Applicant describes in part her reasons for wanting to stay in Canada, as follows:
Ms. Johnson started the interview by confirming my date of arrival, who I came to Canada with, my reasons for coming to Canada and why I decided to remain in Canada. I replied through my interpreter that I arrived on February 16, 1998 with my husband and daughter and that I had come to Canada to visit my parents and that I decided to stay because I wanted to remain with my parents who were getting along in years, that I was very happy being with them and my siblings and especially needed their love and support after my husband and I divorced in Canada and needed their support in raising my two children who were still very young. Ms. Johnson then asked me when I was divorced and I told her on November, 21, 1998.
Applicant's Application Record, page 19
[10] The refusal letter from the Immigration Officer provides, in part, as follows:
This refers to your request for processing from within Canada on humanitarian and compassionate grounds.
In order for your request to be approved, humanitarian and compassionate considerations are assessed to determine whether an exemption from subsection 9(1) of the Immigration Act, the requirement to apply for and obtain an immigrant visa prior to coming to Canada, will be granted.
On 12/18/2000, a delegate of the Minister of Citizenship and Immigration reviewed the individual circumstances of your request for an exemption from the requirement of subsection 9(1) and decided that an exemption will not be granted for your application.
Applicant's Application Record, page 5
ISSUES
[11] The Applicant raises three substantive issues in this application, as follows:
1. Has the Respondent erred by ignoring relevant evidence, misconstruing the evidence before it and as a result, making findings of fact that were unreasonable?
2. Has the Respondent erred by making findings of facts which were not supported by the evidence or which were made in a capricious manner?
3. Has the Respondent breached the duty of procedural fairness by relying on materials which adversely affected the applicant without providing the applicant an opportunity to respond to the materials?
APPLICANT'S SUBMISSIONS
[12] The Applicant argues that the Immigration Officer ignored or misconstrued the evidence that all of the Applicant's family are now permanent residents of Canada, with the exception of one sister who lives in the United States, and that she has no other family members in China or Fiji.
[13] The Applicant also submits that the Immigration Officer ignored the evidence that the Applicant relies upon and needs the support of her family in Canada to assist her in raising her children, one of whom is a Canadian born child. She says that the Immigration Officer ignored the best interests of her children, including the negative impact upon the education of her children should they be forced to leave Canada.
[14] The Applicant also says that the Immigration Officer misconstrued the evidence concerning the liquid assets held by her by concluding that all of the money now in her possession was brought from Fiji.
[15] The Applicant argues that the Immigration Officer breached the duty of procedural fairness by relying on materials, specifically her application for landing, which adversely affected her without providing her an opportunity to respond to that material. In this regard, the Applicant challenges the conclusion made by the Immigration Officer that she had lived with her husband until at least October 1998 but then divorced in November of that year.
[16] The Applicant says that the Immigration Officer never inquired about the Applicant's living arrangements with her husband and instead made an incorrect assumption about their living arrangements without providing the Applicant with an opportunity to respond.
RESPONDENT'S SUBMISSIONS
[17] The Respondent argues that the notes maintained by the Immigration Officer, both the handwritten notes maintained at the interview and the computerized notes which were prepared subsequently, demonstrate that the Immigration Officer had indeed taken all relevant matters into account in reaching her decision.
[18] These notes, which are attached to the affidavit of the Immigration Officer filed in this proceeding, reflect that the Immigration Officer had considered all relevant factors, including the interests of the Applicant's children and the fact that her parents and siblings are now settled in Canada, with the exception of one sister who lives in the United States. The notes show that the Immigration Officer addressed her mind to the ability of the Applicant to support herself if she left Canada and took into account the fact that the Applicant holds a Chinese passport which is valid until 2002 and has an unlimited entry visa for Fiji.
[19] The Respondent further submits that the test for a successful application for waiver, pursuant to section 114(2) of the Act, is that an applicant show undue, unusual or disproportionate hardship would result if she was obliged to pursue her application for landing outside Canada.
[20] The Respondent argues that the record shows that the Immigration Officer considered all relevant factors and the evidence before her, and reached a reasonable conclusion on the basis of that evidence. The Immigration Officer balanced all factors, including the best interests of the children, and concluded that they did not demonstrate that the Applicant would suffer undue, unusual or disproportionate hardship if she left Canada and pursued her application for landing outside the country.
ANALYSIS
[21] In my opinion, the disposition of this application for judicial review depends upon the appropriate standard of review. The Immigration Officer is a statutory decision maker who is authorized to make a discretionary decision concerning the manner in which the Applicant could pursue her application for landing. Section 114(2) of the Act provides as follows:
| 114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
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[22] There is nothing on the record to show that the Immigration Officer considered extraneous matters or ignored relevant factors. The test applicable to judicial review of a discretionary decision of a statutory decision maker is set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at paragraph 62:
I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[23] I am not persuaded that the Immigration Officer committed any reviewable error. The application for judicial review is dismissed.
[24] There is no question for certification.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
Ottawa, Ontario
November 6, 2001