Date: 19990813
Docket: IMM-131-99
BETWEEN:
AMEER KHAIROODIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario on
Tuesday, August 10, 1999, as edited)
ROTHSTEIN J.:
| [1] This is a judicial review of a decision of a visa officer denying the applicant"s application for permanent residence in Canada on humanitarian and compassionate grounds. The applicant says the visa officer erred by ignoring evidence of financial, physical and emotional dependence by the applicant on his family in Canada, and by concluding that when the applicant"s family immigrated to Canada from Guyana they left him in Guyana voluntarily. |
| [2] A preliminary matter is the standard of review. The respondent argued that the standard should be patent unreasonableness in this case because this is not an inland application for permanent residence, the consequence of which, if the application fails, is removal from Canada, a consequence more serious than merely denying entry to an applicant. In Baker v. Minister of Citizenship and Immigration 1 L"Heureux-Dubé J. determined that the standard of review with respect to decisions under subsection 114(2) of the Immigration Act ,2 and Regulation 2.1,3 is reasonableness simpliciter. At paragraph 57 she commences: |
| |
I turn now to an application of the pragmatic and functional approach to determine the appropriate standard of review for decisions made under s. 114(2) and Regulation 2.1 and the factors affecting the determination of that standard outlined in Pushpanathan, supra. |
|
| [3] The factors she considered in arriving at the reasonableness simpliciter standard of review were: absence of a privative clause; expertise of the decision maker; the purpose of subsection 114(2) and of the Immigration Act as a whole, that subsection 114(2) is an exempting provision and that the decision affected the rights and interests of an individual; and the highly discretionary nature of a humanitarian and compassionate decision. These are factors common to all such decisions. These considerations would suggest that humanitarian and compassionate applications under subsection 114(2) are subject to the reasonableness simpliciter standard of review in all cases. |
| [4] On the other hand, a pragmatic and functional approach having regard to context would suggest that the seriousness of the matters at issue might have a bearing on the standard of review. The rejection of an inland humanitarian and compassionate application is more likely to be disruptive than the rejection of a humanitarian and compassionate application made from outside Canada is taken into account, there is some reason to think that the standard of review in such cases might be higher than reasonableness simpliciter namely patent unreasonableness. |
| [5] In view of the conclusion I reach in this case, that the visa officer"s decision meets the reasonableness test, I am able to proceed on the basis that the standard of review is reasonableness simpliciter . I leave for determination in a future case whether a higher standard of review in humanitarian and compassionate applications made from outside Canada might be appropriate. |
| [6] Proceeding on the basis that the standard of review is reasonableness simpliciter, the Court will look for reasons supporting the decision under review, whether there is an evidentiary foundation for the decision, and the logic of the process by which the conclusions are sought to be drawn from the evidence, see Baker, supra.4 |
| [7] In this case the applicant"s family applied for permanent residence in Canada. Under the law in force at the time, in May 1995, visas were granted for the applicant"s parents and siblings but not to the applicant on the grounds of medical inadmissibility. The applicant"s parents signed a declaration opting the applicant out of the application for permanent residence. The applicant"s humanitarian and compassionate application was made in May 1998. |
| [8] The visa officer"s decision acknowledged that the applicant"s parents and siblings were in Canada and that they had a strong desire to reunite with him. However, the visa officer noted that the family had left the applicant in Guyana "voluntarily and conscientiously". The applicant had remaining relatives in Guyana, and the visa officer found that he was able to lead a normal life there, that he was gainfully employed, and that he was able to care for himself. The visa officer noted that there was no evidence submitted to demonstrate the applicant"s financial, physical or emotional dependency on his family members in Canada. The humanitarian and compassionate application was refused. |
| [9] The applicant says his family did not leave him in Guyana voluntarily. However, his parents signed an opting out declaration and chose to come to Canada with their other children without him. The applicant says his parents did not really understand the nature of the opting out declaration and that inquiries were made as to why the applicant was not being granted a visa. Be that as it may, the facts are that the applicant"s family came to Canada without him. While they obviously would have preferred that he accompany them to Canada, when it was determined he was inadmissible, they chose to leave him behind. I am unable to conclude that the visa officer erred in finding that the applicant"s family voluntarily left the applicant in Guyana. |
| [10] The applicant has not pointed out any evidence ignored by the visa officer pertaining to the applicant"s financial, physical or emotional dependency on his family members in Canada. |
| [11] There are reasons to support the visa officer"s conclusions. There is an evidentiary foundation for the decision. The conclusions the visa officer drew from the evidence are not illogical. For these reasons it cannot be said the decision of the visa officer is unreasonable. |
| [12] Further, the visa officer was not dismissive of the interests of the applicant"s family, but weighed that factor against the family"s decision to leave the applicant in Guyana and seek permanent residence in Canada without him. I cannot see that the visa officer did not apply humanitarian and compassionate values in making his decision, or that he minimized such factors. As L"Heureux-Dubé J. pointed out in Baker,5 supra, the decision is a discretionary one for the visa officer and provided relevant factors are considered and weighed, a humanitarian and compassionate claim may still be dismissed. |
| [13] Finally, while paragraph 3(c) of the Immigration Act sets forth an objective of the Act which is to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad, decisions under subsection 114(2) of the Act are still discretionary. In this case, I can find no reviewable error in the discretion exercised by the visa officer. |
| [14] The judicial review will be dismissed. Security for costs of $1,000.00 was paid into Court on behalf of the applicant. Costs are awarded to the respondent and an order for payment out of the sum of $1,000.00 plus any accrued interest to the respondent will be made. |
"Marshall Rothstein"
JUDGE
TORONTO, ONTARIO
August 13, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: AMEER KHAIROODIN |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, AUGUST 9, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: ROTHSTEIN J. |
| DATED: FRIDAY, AUGUST 13, 1999 |
| APPEARANCES: Mr. Hart A. Kaminker |
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Mamann & Associates
Barristers & Solicitors
212 King Street West
Suite 410
Toronto, Ontario
M5H 1K5
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990813
Docket: IMM-131-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 [1999] S.C.J. No 39. See paragraph 62 per L'Heureux-Dubé J.
2 R.S.C., 1985, c. I-2.
3 Immigration Regulations, 1978, SOR/78-172 as amended by SOR/93-94.
4 At paragraph 63, quoting Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc. , [1997] 1 S.C.R. 748.
5 See paragraph 75.
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