Mohamed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 322

Date: 20020322

Docket: IMM-5821-00

Neutral citation: 2002 FCT 322

Ottawa, Ontario, this 22nd day of March, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                        FAKHR AL-DIN MOHAMED

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review under section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 of the decision of an immigration officer (the "officer") dated November 2, 2000, wherein the officer decided not to recommend a favourable decision on the basis of humanitarian and compassionate considerations under section 114(2) of the Immigration Act, supra.

[2]                 The applicant seeks an order by writ of certiorari quashing or setting aside the decision of the delegate of the Minister of Citizenship and Immigration and referring the matter back for determination in accordance with such instructions as the Court considers to be appropriate.

Background

[3]                 The applicant was born in Cairo in 1964 and is a citizen of Egypt. The applicant arrived in Canada on October 11, 1996 with a visitor's visa that was valid until April 10, 1997. The applicant has continued to remain in Canada following the expiry of his visa.

[4]                 The applicant's brother lives in Canada with his wife and three dependent children. The brother owns a mini-mart convenience store in Ontario.

[5]                 The applicant had previously applied for immigration to Canada based on a family job offer from his brother. The application was denied in part because the brother's business had only been operating for a short period of time and the business had not demonstrated sufficient profit.

[6]                 While in Canada, the applicant has been working at his brother's convenience store. The applicant's brother now hopes to expand the business with the help of the applicant.

[7]                 In July of 1999, the applicant submitted an application for exemption from the landing requirement in subsection 9(1) of the Immigration Act, supra on humanitarian and compassionate grounds.

[8]                 With his H & C application, the applicant included a financial statement indicating that his brother's mini-mart store had a net income for the year ending April 30, 1999 of $32,072.00.

[9]                 On November 6, 2000, the applicant received a letter from the officer dated November 2, 2000 informing him that his humanitarian and compassionate considerations application would not be granted and that his visitor status expired on January 30, 2001. This is the judicial review of that decision.

Applicant's Submission

[10]            The applicant submits that the officer misconstrued or misapplied the tests of guidelines for determining whether there are sufficient humanitarian and compassionate grounds to warrant a granting of the exemption sought.

[11]            The applicant submits that the immigration officer who interviewed the applicant is not the same person as the person who made the decision and this violates the principle of fairness that she who hears the case must decide. The applicant submits that the immigration officer failed to observe a principle of natural justice or procedural fairness that the officer was required to observe.

[12]            The applicant submits that the officer relied on extrinsic evidence that was not in the applicant's file without notifying the applicant about this evidence or confronting him with it and affording him an opportunity to provide an explanation that might allay her concerns. The applicant submits that the immigration officer improperly fettered her discretion by taking into account matters that should not be considered or by failing to consider matters properly before her.

[13]            The applicant submits that the interviewing officer displayed a lack of good faith indicating bias. The applicant submits that if not actual bias, there was a reasonable apprehension of bias based on the officer's line of questioning.

Respondent's Submissions

[14]            The applicant submits that a humanitarian and compassionate review offers an individual special and additional consideration for an exemption from Canadian immigration laws which are otherwise universally applied.

[15]            The respondent submits that the officer provided the applicant with a full and fair humanitarian and compassionate review pursuant to subsection 114(2) of the Immigration Act, supra.

[16]            The respondent submits that the record before the Court demonstrates that the applicant had not demonstrated sufficient H & C grounds to warrant an exemption from the usual rules for applying for permanent residence.

[17]            The respondent submits that the applicant's argument seems to be that the officer's decision to refuse the case, in and of itself, demonstrates bias against the applicant. The respondent submits that this is not a serious issue.

[18]            The respondent submits that the applicant's extrinsic argument is that the officer acted improperly by telephoning the applicant's family after the interview to ask about the applicant's employment in his brother's store. The respondent submits that there is no suggestion on the record that the officer had any concerns about the issue of the applicant's employment in his brother's store. The respondent submits that there is no basis for the applicant's suggestion that the officer relied on extrinsic evidence to the detriment of the applicant.

[19]            The respondent submits that the appropriate standard of review for H & C decisions is reasonableness, and that the Minister or her delegate should be entitled to "considerable deference" in the exercise of discretion.

[20]            The respondent submits that there is no basis for intervention in this case.

[21]            Issues

1.          Did the officer misconstrue the guidelines or misapply any tests for humanitarian and compassionate grounds exceptions?

2.          Did the officer improperly rely on extrinsic evidence in rendering the decision?

3.          Was the decision made by a different person than the officer who interviewed the applicant?

4.          Did the officer exhibit actual bias or a reasonable apprehension of bias?

Relevant Statutory Provisions and Regulations

[22]            The relevant sections of the Immigration Act, supra, state:

[23]            The relevant section of the Immigration Regulations, 1978, S.O.R./78-172:

Analysis and Decision

[24]            The standard of review to be applied in this case is reasonableness simpliciter (see Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817).

[25]            Issue 1

Did the officer misconstrue the guidelines or misapply any tests for humanitarian and compassionate grounds exceptions?

Humanitarian and compassionate grounds will exist if unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada. Following her analysis, the officer concludes that the applicant has not demonstrated undue or undeserved hardship sufficient to qualify for the exemption on humanitarian and compassionate grounds. I do not find evidence to suggest that the officer misconstrued the guidelines or the relevant tests. The applicant has failed to persuade me that the officer has erred in this regard.

[26]            Issue 2

Did the officer improperly rely on extrinsic evidence in rendering the decision?

The applicant, in his affidavit, states that after the interview he learned from his brother that the officer had telephoned to check on his whereabouts and to ask questions about the applicant's involvement in his brother's business. The applicant contends that this was improper reliance on extrinsic evidence. The officer, in her affidavit, states that she telephoned the applicant's brother to verify some information with respect to the applicant's brother's studies at York University and not to verify that the applicant worked at his brother's store. The officer stated that there is a note in her hand-written notes with respect to the studies at York University.

[27]            The officer must be free to verify the validity of the applicant's claim. There is no suggestion in the record that the officer had any concerns about the issue of the applicant's employment in his brother's store. I am not persuaded that the officer relied on extrinsic evidence to the detriment of the applicant.

[28]            Issue 3

Was the decision made by a different person than the officer who interviewed the applicant?

The officer's letter dated November 2, 2000 includes the following sentence:

On 11/2/2000, 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.

The applicant submits that this indicates that the decision was made by an unnamed third person, and not the officer who interviewed the applicant. The applicant submits that this is a violation of fairness. The same officer that interviewed the applicant wrote and signed the letter containing the decision. The letter states that the decision was made by "a delegate of the Minister" on the same date as the letter and the officer writing the letter is such a delegate. The officer stated in her affidavit that she was the officer who reviewed the applicant's H & C application. No reviewable error was made in this respect.

[29]            Issue 4

Did the officer exhibit actual bias or a reasonable apprehension of bias?

The applicant submits that the officer's questioning and resulting remarks demonstrate bias. The applicant suggests that the bias is apparent in the following remarks from the officer:

The subject has been spending his time in Canada mainly to help his brother to run the store. It is his own making for not having a job to return to in Egypt.

I am not satisfied that the above statement gives rise to actual bias or a reasonable apprehension of bias. The first sentence relates to the applicant's job in Canada. The second sentence relates to the reason why the applicant does not have a job to return to in Egypt. This second sentence could be relevant in assessing whether unusual, undeserved or disproportionate hardship exists that might prevent the applicant from securing employment in Egypt. The remainder of the same paragraph from the officer's remarks is as follows:

It is noted some dependency exist in this case. Yet they have not demonstrated that the necessary sojourn abroad would constitute unusual hardship. He has family to return to in Egypt. Family in Canada may have to make other alternatives in making decision both in child caring and business operation. They feel that they are now in a position to satisfy immigration under a family business sponsorship. Subject is prepared to invest in brother's business. Subject has not demonstrated establishment that represents undeserved hardship. In conclusion, the Taher family has not demonstrated hardship would be undue should subject apply for the immigrant visa at a visa office abroad under other provisions of the Immigration Act and Regulations.

[30]            The officer's remarks as a whole show an inquiry into the nature of the applicant's claim but, in my opinion, do not demonstrate any actual bias or give rise to a reasonable apprehension of bias.

[31]            The decision reached by the immigration officer is a reasonable decision. It must be kept in mind that the role of the Court is not to substitute its opinion for that of the officer so long as the officer's decision is a reasonable decision.

[32]            Neither party wished to certify a serious question of general importance.

ORDER

[33]            IT IS ORDERED that the application for judicial review is hereby dismissed.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 22, 2002