Date:
20090520
Docket: IMM-4016-08
Citation: 2009 FC 505
Ottawa, Ontario, this 20th
day of May 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
AGHDAS
NAJAFI ASL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of an immigration
officer’s decision, dated June 16, 2008, refusing the applicant’s application
for permanent residence on the basis of humanitarian and compassionate (“H&C”)
considerations.
[2]
The
applicant, Aghdas
Najafi Asl,
is a citizen of Iran. She is a widow and mother of six adult
children, five of whom have permanent resident status in Canada.
* * * * * * *
*
[3]
In
a brief letter, dated June 16, 2008, the visa officer points out that, in
making his decision, he took into consideration the fact that five of the
applicant’s children had permanent resident status in Canada. He
indicates, however, that he is “of the opinion that the dependency in this case
is strictly an emotional dependency” of a kind “that normally exists in the
vast majority of families”. It is therefore inadequate, on its own, to support
a successful H&C application. The officer concludes that no
disproportionate hardship would be suffered by the applicant because of
separation from her children and grandchildren.
[4]
The
visa officer’s Computer Assisted Immigration Processing System (“CAIPS”) notes
offer a more detailed picture of his reasons. Therein, he recounts the exchange
with the applicant’s counsel regarding his presence as an observer at the
interview, and obtaining access to his CAIPS notes following the interview.
After an extensive analysis of the applicant’s circumstances, the visa officer
concludes as follows:
I am of the opinion that this application
shall be refused for the following reasons:
A – A decision under section 25 of the
Act is an exceptional measure, not a routine procedure. An application for
H&C considerations should be submitted by applicants who are inadmissible
or who do not meet the requirements of the Act. Based on the evidence before
me, I am of the opinion that this is not the case with the applicant. The applicant
is a member of the family class and any of her 5 children who have permanent
resident status could be in a position to sponsor her. Applying under section
25 of the Act appears premature in the current circumstances.
B – Having considered all of the evidence
before me, having weighed the different relevant factors and taken into account
the applicant’s personal circumstances, having considered the best interest of
the children directly affected, I am not satisfied that there are sufficient
humanitarian and compassionate considerations that would, under the provisions
of section 25 of the Act, justify granting permanent resident status to the
applicant or exempting the applicant from any applicable provision of the Act.
* * * * * * *
*
[5]
The
applicant first argues that she was denied procedural fairness because the visa
officer refused to allow her counsel to be present as an observer during her
interview with the visa officer.
[6]
The
applicant relies on the Federal Court of Appeal’s decision in Ha v. Canada
(M.C.I.), [2004] 3 F.C.R. 195, to support her position. The appellants in Ha
were three Cambodian sisters whose application for permanent residence as
Convention refugees seeking settlement (“CRSRs”) under the former Immigration
Act and Immigration Regulations, 1978 had been denied. Justice
Sexton set out the Court’s task at paragraph 40 of the decision:
. . . Since the content of the duty of
fairness will always vary depending on the facts, the Court must instead answer
the question of whether the duty of fairness was breached in the particular
circumstances of this case. . . .
[My
emphasis.]
It is clear, then, that the decision in Ha
did not displace the principle repeated in Baker v. Canada (M.C.I.),
[1999] 2 S.C.R. 817, 243 N.R. 22, that “the concept of procedural fairness is
eminently variable and its content must be decided in the specific context of
each case”.
[7]
In
my view, the present case can be distinguished in a number of significant ways.
First, Ha concerned subsection 2(1) of the former Act, according to
which a person could be considered a CRSR if four legal requirements were met.
The Court in Ha concluded that an officer’s discretion under the
statutory scheme was not considerable. This is in contrast to subsection 25(1)
of the Act, which provides broad discretion in determining whether to exempt an
applicant from the requirements of the Act based on H&C considerations (Baker,
supra, at paragraph 51; Kolosovs v. Canada (M.C.I.), [2008]
F.C.J. No. 211 (QL), 2008 FC 165, at paragraph 5). In addition, in Ha
legal questions had been put to the appellants by the officer at their
interview. Here, the applicant was asked whether her children had considered
sponsorship, and towards the end of her interview, whether she had any
additional H&C grounds to add. These were not, in my view, questions of a
“legal or complex nature” which the applicant was unable to adequately engage
absent the presence of her counsel. Finally, it is clear that the importance of
the decision in the instant case is not equivalent to Ha where the
applicants were seeking permanent residence on the basis that they were
Convention refugees.
[8]
Of most significance, however, is the fact that the visa officer
in the present case – unlike Ha – did not categorically refuse to allow
counsel to attend the interview. In fact, he explained that counsel could
attend but that a written request was required, as a matter of office policy.
The applicant herself, together with her counsel, opted to proceed with the
interview without the latter’s presence, rather than accept the visa officer’s
offer to have it postponed in anticipation of a formal request. There was,
therefore, no breach of procedural fairness, under the circumstances.
[9]
The
applicant further argues that the she was denied procedural fairness because
the officer refused to allow counsel to attend the interview and, further,
refused “counsel the opportunity to obtain and review the officer’s notes in
order to make submissions”. The applicant has provided me with no jurisprudence
to support her claim that she had a right to obtain the officer’s notes prior
to the rendering of a decision. Nor did the applicant or her representative
request at any time that the visa officer postpone his decision until she had
made an Access to Information request to obtain the CAIPS notes.
[10]
The
applicant further invokes a reasonable apprehension of bias on the part of the
visa officer as a basis for quashing the decision.
[11]
At
paragraph 47 of
her written submissions, the applicant states: “the visa officer’s comments
that the applicant could and should be sponsored created a reasonable
apprehension of bias with respect to his decision on the de facto family
member considerations”. There is a presumption of impartiality (Mugesera
v. Canada (M.C.I.), [2005] 2 S.C.R. 91, at paragraph
13). The fact that the visa officer (in my view, properly) entertained the
question of the applicant’s eligibility for sponsorship in no way bears on his
impartiality or independence. Indeed, in his submissions to the officer, dated
April 1, 2008, the applicant’s representative writes:
[The applicant] is a member of each of
the children’s family class
but is a de facto dependent [sic] of Mehdi. While it is true
that in the fullness of time, Mehdi or any of her other children would be able
to sponsor her to Canada, the processing of parental
applications is a long process. . . .
[My emphasis.]
[12]
I
find no support in the record for the applicant’s allegation of bias.
[13]
The
applicant also claims that the visa officer erred in concluding that emotional
dependence was not a sufficient basis for granting permanent residence on
H&C grounds. Read in their entirety, however, the officer’s reasons are
more comprehensive in their treatment of the applicant’s circumstances than her
argument suggests.
[14]
In
his letter of June 16, 2008, the visa officer writes:
. . . In reaching my conclusion, I
weighed the different factors relevant to the assessment of de facto
dependency, took into account your personal circumstances and considered the best
interests of the children involved. On the one hand, based on the review of the
evidence, you are a member of the family class and you have five children who
have permanent resident status in Canada
and could be in a position to sponsor you. On the other hand, I am of the
opinion that the dependency in this case is strictly an emotional dependency.
The review of all the evidence and circumstances of this case has not satisfied
me that the emotional relation between you and your son Mehdi or your other children
is any different or stronger than the bond that normally exists in the vast
majority of families. Therefore, it does not suffice, by itself, to support a
successful request for humanitarian and compassionate considerations.
[My emphasis.]
[15]
In
his CAIPS notes, the officer elaborates further on his reasons:
Regarding the documentary evidence of the
relationship, I do not dispute that the family tie is genuine and that the
applicant is the mother of Mehdi and of the other children who have been granted
permanent residence status.
The dependency is this case is strictly
emotional. It has been clearly established that the applicant is financially
independent. In her application, the applicant declared assets worth 30,758
million dollars including savings, real estate properties and business shares.
She mentioned, at interview [sic], that she derives an income of 30 million
toumans per month (equivalent to 33 900$/month or 406 800$/year) from her
business shares. She confirmed that she has full authority to make any
financial decision. The applicant has no medical condition that she is aware of
and do [sic] not need any medical support or assistance. The applicant
is active, travels regularly and at the interview, she came through as a very
alert person. . . .
[16]
The
visa officer later acknowledges that there will be an emotional impact on the
applicant if her children settle in Canada and she remains in Tehran. However, he
notes that the separation need only be temporary while a sponsorship application
is processed, and in the meantime the applicant and her children have the means
to travel to see each other regularly. Moreover, the record shows that the
applicant’s daughter, Azam, has permanent resident status in the United States
but in fact spends the majority of her time in Iran.
[17]
It
is clear from the officer’s extensive notes that, in coming to his decision, he
considered the applicant’s dependency on her children, including Mehdi, among
many other factors. I can find no error in his reasoning, in this regard.
[18]
Finally,
the applicant argues that the visa officer erred by “importing the undue or
disproportionate hardship test into his consideration of this application”.
[19]
The
applicant relies on Justice Douglas R. Campbell’s decision in Gill v. Minister
of Citizenship and Immigration, 2008 FC 613, in support of her position. However,
in Yue v. Minister of Citizenship and Immigration, 2006 FC 717, Justice
Barry Strayer, as in the latter case, considered an H&C decision made by a
visa officer involving a child. In considering the best interests of the child,
Justice Strayer determined that it was correct for the officer to find that the
degree of hardship that might be involved in the applicant remaining in China
was not sufficient when balanced against the clear non-compliance with the
Regulations to warrant a favourable exercise of discretion under subsection
25(1) of the Act on H&C grounds (see also Sandhu v. Minister of
Citizenship and Immigration, 2007 FC 156).
[20]
In
any event, the situation is different in the case here. The sole applicant is
the mother of adult children whose interest was correctly considered by the
visa officer in the context of emotional hardship due to separation from the
applicant.
[21]
Subsection
8.1
of Citizenship and Immigration Canada’s manual entitled “Processing of
Applications under Section 25 of the IRPA” provides the following general
guidelines for officers assessing H&C applications for individuals applying
from outside Canada:
H&C
applications must be reviewed on a case-by-case basis. Applicants are free to
make submissions on any aspect of their personal circumstances that they feel
would warrant being granted the exemption requested.
Officers
should ensure that humanitarian and compassionate assessments clearly
demonstrate:
-
that all factors,
including the positive H&C factors and any arguments raised with respect to
the best interests of a child directly affected (BIOC), have been taken into
account;
-
that the officer has
considered and analyzed these factors, given them due weight, and explained the
weight that they have given to each of these factors and why;
-
that the officer has
conducted a balancing exercise between the positive H&C factors identified
and those facts and circumstances which would weigh against granting an
exemption under A25.
It
is important that all submissions and evidence are taken into account and that
case notes reflect that the totality of evidence has been considered and that
the balancing exercise described above has been included in the recorded decision.
[My emphasis.]
[22]
In
my view, the visa officer’s reasons amply reflect the above guidelines, taking
into consideration as they do all relevant factors, including prospective
hardship to the applicant due to separation from her family members. I find no
basis on which to interfere with the decision.
* * * * * * * *
[23]
For
all the above reasons, the application for judicial review is dismissed.
[24]
The
applicant proposes the following question for certification:
Is
the duty of fairness breached when a visa officer at a visa office located
outside Canada refuses to allow counsel to attend at the interview of an
applicant seeking admission to Canada on humanitarian and compassionate grounds
under s. 25 of the Immigration and Refugee Protection Act for the limited
purpose of observing and taking notes without first applying in writing for and
obtaining permission from the visa officer to attend the interview?
[25]
I
agree with the Minister that the question proposed by the applicant does not
accurately reflect the actual circumstances in this case and therefore, the
question is not dispositive of the case (see Liyanagamage v. Canada (Minister of
Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.)). As pointed out by
the Minister, there was no refusal by the visa officer to allow counsel
to attend at the interview without applying first in writing. The visa officer
offered to adjourn the interview to allow counsel to make an application
in writing to attend at the interview. Counsel and the applicant made the
choice to proceed with the interview without counsel present. There was no
breach of procedural fairness in view of the applicant’s waiver of her right to
have counsel attend at the interview. The applicant cannot now complain about
the choice she made.
[26]
Consequently,
this is not a matter for certification.
JUDGMENT
The application for judicial
review, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, of an immigration officer’s decision,
dated June 16, 2008, refusing the applicant’s application for permanent
residence on the basis of humanitarian and compassionate considerations, is
dismissed.
“Yvon
Pinard”
Email this Content