Date: 20060207
Docket: IMM-4697-05
Citation: 2006 FC 116
Ottawa,
Ontario, February 7, 2006
PRESENT:
THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
ALEKSANDAR
JOVANOVIC
and
MILJANA
RISTIC
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review under section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by C. Arpin,
an immigration officer with Citizenship and Immigration Canada (CIC), dated
July 11, 2005, In this decision, CIC refused to grant a permanent resident visa
exemption to Aleksandar Jovanovic and his spouse (applicants).
[2]
The
applicants are citizens of Serbia. The male applicant arrived in Canada with
his wife, Miljana Ristic, on April 1, 2004. He claimed refugee status, but his
claim was denied on October 26, 2004. On December 15, 2004, the applicant
applied for a visa exemption, which is contemplated by subsection 11(1) of the
IRPA, which reads as follows:
|
11.
(1) A foreign national must, before entering Canada, apply to an officer for
a visa or for any other document required by the regulations. The visa or
document shall be issued if, following an examination, the officer is
satisfied that the foreign national is not inadmissible and meets the
requirements of this Act.
|
11.
(1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent
les visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
|
[3]
Subsection
25(2) of the IRPA and section 66 of the Immigration and Refugee
Protection Regulations,
SOR/2002-227 (IRPR) provide for permanent resident visa exemption requests:
|
I.R.P.A.
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
L.I.P.R.
25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
-- compte tenu de l’intérêt supérieur de l’enfant directement touché -- ou
l’intérêt public le justifient.
|
|
I.R.P.R.
66.
A request made by a foreign national under subsection 25(1) of the Act
must be made as an application in writing accompanied by an application to
remain in Canada as a permanent resident or, in the case of a foreign
national outside Canada, an application for a permanent resident visa.
|
R.I.P.R.
66. La demande faite par un étranger
en vertu du paragraphe 25(1) de la Loi doit être faite par écrit et
accompagnée d’une demande de séjour à titre de résident permanent ou, dans le
cas de l’étranger qui se trouve hors du Canada, d’une demande de visa de
résident permanent.
|
[4]
The
applicant alleges that the immigration officer erred in law in determining that
there were no humanitarian and compassionate considerations for exempting the
applicant from obtaining a permanent resident visa before coming to Canada.
Being handicapped, the applicant claims that returning him to his native
country would expose him to excessive difficulties, that he is an Olympic
hopeful for Canada in the Paralympics and that he is very close to his brother
who lives in Canada. He adds that the immigration officer’s decision was not
reasoned.
[5]
It is well
established that the standard of review for an immigration officer’s decision
on humanitarian and compassionate considerations is that of reasonableness simpliciter
(Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817, [1999] S.C.C. No. 39). In this case, the officer took into
consideration all of the relevant circumstances of the matter and determined
that the application should be denied. There was no error in fact or in law
justifying the review of the decision: indeed, the applicant does not raise any
in his memorandum, limiting himself to questioning the assessment of the
immigration officer as a whole.
[6]
Finally,
with respect to the issue of the adequacy of the reasons in support of the
decision, they are amply explained in the immigration officer’s notes, which
the applicant or his counsel were entitled to request from CIC. It was decided
in Baker v. Canada (Minister of Citizenship and Immigration), supra,
at paragraph 44, that such notes serve in lieu of reasons justifying a decision
on humanitarian and compassionate grounds.
[7]
This
matter does not raise any element that could suggest a question for
certification.
[8]
For these
reasons, the application for judicial review is dismissed and no question will
be certified.
ORDER
THE COURT ORDERS THAT:
- The application
for judicial review be dismissed and no question will be certified.
“Simon
Noël”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
FEDERAL
COURT
SOLICITORS
OF RECORD
DOCKET: IMM-4697-05
STYLE OF CAUSE: ALEKSANDAR
JOVANOVIC
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: February 1, 2006
REASONS
FOR ORDER AND ORDER:
THE
HONOURABLE MR. JUSTICE SIMON NOËL
DATE
OF REASONS: February
7, 2006
APPEARANCES:
JULIANA RODRIGUEZ FOR
THE APPLICANT
SYLVIANE
ROY FOR THE RESPONDENT
SOLICITORS
OF RECORD:
JULIANA RODRIGUEZ FOR
THE APPLICANT
CAZA-GAGNON
Montréal,
Quebec
JOHN M. SIMS FOR
THE RESPONDENT
Deputy
Attorney General of Canada
Montréal,
Quebec
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