Date: 20100607
Docket: IMM-3012-09
Citation: 2010 FC 614
Ottawa, Ontario, June 7, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
JOSE
NOLI DELOS SANTOS
Applicant
and
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Jose Noli Delos Santos (the “Applicant”) seeks judicial review of the refusal
of his application for an inland visa exemption pursuant to the provisions of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”). The decision, dated May 14, 2009, was made by Officer R. Cope (the
“Officer”).
Background
[2]
The
Applicant is a citizen of the Philippines. He was landed in Canada on May 13,
1994 pursuant to the provisions and regulations under the former Immigration
Act, R.S.C. 1985, c. I-2. He was sponsored at that time by his sister under
program J-88. That program required that the Applicant be single at the time of
becoming a permanent resident.
[3]
At
the time the sponsorship application was submitted, the Applicant was
unmarried. However, by the time he entered Canada, he had
married and fathered a child. The Applicant did not disclose the change in his
marital and parental status when questioned by an immigration officer upon
landing in Vancouver.
[4]
In
2004, the Applicant applied to sponsor his wife and children to Canada under the
provisions of the Act. His second child had been born in the Philippines in 1994. The
disclosure in 2004 that the Applicant had been married and the father of a
child when he entered Canada in 1994 was considered to be a material
misrepresentation which ultimately led to the issuance of an exclusion order on
February 27, 2006.
[5]
The
Applicant appealed the exclusion order before the Immigration Appeal Division
(the “IAD”). In its decision dated February 22, 2007, the IAD dismissed the
appeal and decided that the grounds did not exist for the positive exercise of
discretion on humanitarian and compassionate grounds pursuant to subsection
25(1) of the Act.
[6]
The
Applicant successfully obtained leave for judicial review of the IAD’s decision
and argued his judicial review application before Justice Barnes in Docket
Number IMM-1151-07.
[7]
In
a decision reported as 2007 FC 1325, Justice Barnes dismissed the Applicant’s
application for judicial review. Applying the standard of reasonableness, he
found no error in the manner in which the IAD refused to grant relief pursuant
to subsection 25(1) of the Act.
[8]
On
January 22, 2008, the Applicant submitted his “independent” H&C
application, that is an application pursuant to subsection 25(1) of the Act.
The application was refused since the Officer found that there was no new
evidence submitted that superseded the evidence that was before the IAD and
that was considered by that tribunal.
[9]
The
Officer, in assessing the Applicant’s H&C application determined that the
IAD had considered the relevant H&C factors in making its decision and that
no new evidence had been submitted. The Officer also noted that the Applicant’s
misrepresentations, as to his marital and parental status upon entering Canada were
serious.
[10]
The
Applicant argues that the Officer made an unreasonable decision and further, that
an issue of procedural fairness arises from the fact that the same officer decided
this H&C application and his application for Pre-Removal Risk Assessment
(“PRRA”).
[11]
The
decision of the Officer is subject to review, on its merits, upon the standard
of reasonableness. The question of procedural fairness is reviewable on the
standard of correctness. I will first address the issue of alleged bias arising
from the fact that the same Officer decided both the Applicant’s H&C and
PRRA applications.
[12]
There
is no inherent bias arising from the fact that one officer can deal with both a
H&C application and a PRRA application. In this regard, I refer to the
decision of the Federal Court of Appeal in Oshurova v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 301.
[13]
I
see no evidence of institutional bias, or indeed any suggestion of personal
bias, on the record relating to the decision here under review. This argument
cannot succeed.
[14]
Turning
to the merits of the decision under review, the Applicant’s arguments amount to
a disagreement with the manner in which the Officer assessed the evidence and
the submissions that were presented. I see no error in the Officer’s conclusion
that the Applicant had not submitted “new” evidence, that is evidence that was
not before the IAD.
[15]
The
IAD, in considering the exercise of its discretion pursuant to paragraph
67(1)(c) of the Act, was required to consider the best interests of a child
“directly affected by the decision”. The IAD, according to its decision, declined
to positively exercise its H&C discretion, having regard to the decision
that was the subject of the appeal by the Applicant.
[16]
The
nature of the discretion at issue in dealing with H&C considerations is the
same, whether that discretion is invoked pursuant to paragraph 67(1)(c), that
is relative to an appeal before the IAD, or “independently”, that is pursuant
to a stand-alone application pursuant to subsection 25(1). The H&C
discretion is a means by which strict compliance with the Act and the Immigration
and Refugee Protection Regulations, SOR/2002-227 (“the Regulations”)
is waived.
[17]
An
officer is required to exercise the H&C discretion reasonably, having
regard to the evidence adduced and without regard to extraneous and irrelevant
matters; see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2.
[18]
I
am not persuaded that the Officer unreasonably exercised her discretion or in
any other way, committed a reviewable error. There is no basis for judicial
intervention and this application for judicial review is dismissed.
[19]
There
is no question for certification arising.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed. There is no question for
certification arising.
“E.
Heneghan”
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