Date: 20031107
Docket: IMM-6714-02
Citation: 2003 FC 1314
Between:
GEORGES ÉTIENNE
and
NATHALIE VAN DE PUTTE
and
XAVIER ÉTIENNE
and
GENEVIÈVE ÉTIENNE
Applicants
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision by immigration officer Nicole Nappi (the officer), dated December 17, 2002, denying the applicants' application for a visa exemption based on humanitarian grounds pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[2] Georges Étienne, the principal applicant (the applicant) is 39 years old. He is the husband of Nathalie Van De Putte and the father of Xavier, 11 years old, and of Geneviève, 8 years old. They are all citizens of Belgium. The application of the mother and two children is based on the principal applicant's.
[3] The immigration officer denied the applicants a ministerial exemption for a visa because she was not convinced that there were humanitarian grounds warranting the exemption. The officer gave the following reasons in support of her decision:
- the applicants' story following September 6, 1999, casts doubt on the matter of the date of their last entry into Canada;
- even though Mr. Étienne's companies are operating well and generating profits, this factor is not, under these particular circumstances, a factor significant enough in itself to allow a visa exemption;
- Canada cannot allow the applicant to remain in Canada so that he can run away from his problems with the law in Belgium;
- the children will not suffer irreparable harm if the visa exemption is not granted to them;
- the principal applicant's spouse does not have any family in Canada, she does not work in Canada and she does not raise grounds in support of her application other than the grounds raised by her husband;
- the applicant did not establish that he would encounter specific difficulties if he were to apply for a visa exemption from outside Canada.
[4] The applicants submit that the officer should have granted them an interview because their counsel was expecting to be able to present additional information at that time.
[5] It is important to note, first, that when the applicants' counsel telephoned the officer, she confirmed that all the information in support of the application had been sent (see the officer's notes at page 29 of the record of Citizenship and Immigration Canada).
[6] According to Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, at pages 843 and 844, an interview is not a general requirement for decisions made on applications based on humanitarian grounds:
. . . An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. . . . The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
[7] Further, the Immigration Manual, chapter IP 5, states:
One of the fundamental components of natural justice or fairness is the right to be heard. This means that applicants have a fair opportunity to present their case. For the purpose of assessing an H & C application, the applicant's written submissions may contain the information an officer needs to make a decision.
The right to be heard does not require an absolute right to a personal interview or hearing and, if an interview is held, there is no right for counsel to attend the H & C interview. . . .
[8] The applicants submit that they had a "legitimate expectation" that an interview would take place. According to Baker, supra, at page 840, the doctrine of "legitimate expectation"
. . . is based on the principle that the "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers, and that it will generally be unfair for them to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights.
[9] There is nothing in the record that suggests that the officer had affirmed, implicitly or explicitly, that the applicants would have an interview. Nothing in the evidence establishes the existence of a systematic practice of granting an interview. It is perhaps true that, in the past, an interview had always been granted to the applicants' former counsel in other cases. However, this does not establish a "legitimate expectation" of an interview. The caselaw of this Court is consistent that an interview is not required to ensure procedural fairness in processing applications for visa exemptions for humanitarian considerations (see, for example Cheema (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration), (June 4, 2002), IMM-2187-01, 2002 FCT 638, Ming v. Minister of Citizenship and Immigration (November 15, 2001), IMM-5953-00, 2001 FCT 1253, and Sellakkandu v. Minister of Employment and Immigration (October 13, 1993), 92-T-2029).
[10] Otherwise, it appears to me that the officer reasonably considered all of the elements presented by the applicants - including the applicant's contribution to Canada's economy. The intervention of this Court is therefore not warranted.
[11] Consequently, the application for judicial review is dismissed.
[12] As for the three questions proposed by the applicants' counsel for certification, I share the opinion of respondent's counsel that these questions are fundamentally founded in fact. They therefore do not satisfy the criteria of paragraph 74(d) of the Immigration and Refugee Protection Act nor the certification requirements set out by the Federal Court of Appeal in Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4. Therefore no question is certified.
"Yvon Pinard"
JUDGE
OTTAWA, ONTARIO
November 7, 2003
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6714-02
STYLE OF CAUSE: GEORGES ÉTIENNE, NATHALIE VAN DE PUTTE, XAVIER ÉTIENNE, GENEVIÈVE ÉTIENNE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 9, 2003
REASONS FOR ORDER BY: The Honourable Mr. Justice Pinard
DATED: November 7, 2003
APPEARANCES:
Jean El Masri FOR THE APPLICANTS
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jean El Masri FOR THE APPLICANTS
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General
of Canada
Ottawa, Ontario
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