Date: 20021002
Docket: IMM-5100-01
Neutral Citation: 2002 FCT 1020
Between:
Srikanthan PATHMANATHAN,
DEMANDEUR;
- and -
LE MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION,
DÉFENDEUR.
REASONS FOR ORDER
PINARD J.:
The applicant seeks judicial review of a decision by Martine Beaulac, Risks and Humanitarian Considerations Assessment Officer (the "officer"), dated October 19, 2001, refusing his application for ministerial exemption on humanitarian and compassionate (H & C) grounds pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicant is a citizen of Sri Lanka. On October 9, 1995, the applicant arrived in Canada and claimed refugee status.
On November 27, 1996, the Refugee Board dismissed the applicant's claim for refugee status. His application for judicial review of the Refugee Board's decision was dismissed on May 21, 1997.
The applicant was deemed to have submitted a Post-Determination Refugee Claimants in Canada Class application which was dismissed on August 8, 2000. This Court dismissed the application for leave and judicial review of that decision on February 2, 2001.
On December 8, 1999, the applicant filed an H & C application. This first H & C application was dismissed on August 8, 2000 and this Court dismissed the application for leave and judicial review of that decision on April 25, 2001.
On November 28, 2000, the applicant filed another inland H & C application.
This second H & C application was dismissed on October 19, 2001.
In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, L'Heureux-DubéJ. determined at pages 857 to 858 that the appropriate standard of review for decisions made under subsection 114(2) of the Act and section 2.1 of the Immigration Regulations, 1978, SOR/78-172, is reasonableness simpliciter:
. . . 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.
The applicant contends, firstly, that there is a breach of procedural fairness, because the reasons for the decision in question were not provided to him. It is my opinion that the reasons in their entirety were indeed provided to the applicant.
As it appears from the Court's file, the applicant filed his Notice of Application for Leave and for Judicial Review on November 5, 2001. In this document, counsel for the applicant requested that Citizenship and Immigration Canada forward its reasons for the October 19, 2001 decision.
Reading the file in its entirety, it is clear that the applicant filed his memorandum on January 17, 2002 at which point he had not received reasons for the decision. However, as evidenced by the file, the applicant received the reasons, which were filed with the Court on February 11, 2002, pursuant to Rule 9 of the Federal Court Immigration Rules, 1993. Based on the foregoing, I feel that the applicant suffered no prejudice and had ample time to exercise his right to judicial review by filing an amended or new memorandum following his reception of the reasons.
The applicant further submits that the impugned decision is unreasonable in light of the evidence before the officer. The latter is required to determine whether the H & C factors relevant to the applicant carry sufficient weight to warrant an exemption from subsection 9(1) of the Act. It has been confirmed that the weighing of the evidence is the responsibility of the officer; there is no basis on which the Court can properly interfere with these findings (Brar v. Minister of Employment and Immigration (May 29, 1986), A-987-84 (F.C.A.)).
In Legault v. Canada (M.C.I.), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), the Federal Court of Appeal quoted a passage from 2002 SCC 1">Suresh v. Canada (M.C.I.), 2002 SCC 1, [2002] S.C.J. No. 3 (QL), in regards to the officer's responsibility when weighing the relevant factors in an H & C application:
[37] The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).
Here, the applicant argues that the officer engaged in a selective reading of the evidence. In Vidal v. Canada (M.E.I.) (1991), 13 Imm.L.R. (2d) 123 at 130, Justice Strayer, as he then was, stated the following:
I would observe in passing that it must follow as a corollary of the reasoning of Jerome A.C.J. in Yhap that an applicant cannot complain if an immigration officer fails or refuses to follow the Minister's guidelines. Nor can he complain if an immigration officer applies any factor in lieu of those in the guidelines as long as this is done in good faith and the factor is not wholly irrelevant to any conceivable view of humanitarian and compassionate considerations. Further, it is for the officer to decide if he is convinced of the truth of an applicant's assertions, unless perhaps he makes findings of fact which are clearly without regard to any material before him. It is not for the Court to sit in appeal on his findings of fact or his weighing of the various factors.
In the case at bar, the officer was required to consider the situation in Sri Lanka, particularly that of the applicant's security in Colombo as well as the factors relating to his establishment in Canada, when weighing the H & C concerns. In my view, there is no evidence that these H & C factors were not considered by the officer. The officer's reasons refer, for example, to the fact that (1) security checks did increase after the terrorist attacks in the Colombo area, but that those terrorist attacks are sporadic and the security forces want to protect citizens; (2) arrests do occur, but these arrests are for identity purposes and for short questioning, and citizens are released upon showing their identity card with police authorization; (3) the applicant does not have the profile to attract the authorities' attention; (4) the applicant lived in his country of origin for 21 years and it can be deduced that he has family and friends to help him; (5) the applicant has the possibility of contacting his family who reside in India and, finally, (6) although the applicant has never been dependant on social services, he could not provide any evidence of his actual earnings. In fact, there was documentary evidence to support the officer's above reasons. This Court, therefore, ought not intervene with questions of fact and the weight of evidence.
In his further memorandum the applicant also argues that, although the Registration Form he submitted to immigration, stating that he wished to start a goldsmith business, was not signed or dated, this does not constitute reasonable grounds for the officer to have discounted his work as a goldsmith. In my opinion, as established in Legault, supra, the officer was entitled to give no weight to the Registration Form as it was not signed nor approved.
In my view, the officer's "Opinion" as well as her "Notes au dossier" reveal that she properly considered the H & C concerns appropriate to the applicant. Thus, the applicant has failed to demonstrate that the officer committed a reviewable error. Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
October 2, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5100
STYLE OF CAUSE: Srikanthan PATHMANATHAN v. Le ministre de la Citoyenneté et de l'Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 28, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: October 2, 2002
APPEARANCES:
Ms. Pia Zambelli FOR THE APPLICANT
Ms. Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joseph W. Allen & Associés FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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