Date: 20030602
Docket: IMM-2596-01
Citation: 2003 FCT 696
Ottawa, Ontario, this 2nd day of June, 2003
Present: The Honourable Madam Justice Sandra J. Simpson
BETWEEN:
SHARULATHA VIJAYARATNARASA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] UPON the applicant's application for judicial review of a decision of a Visa Officer (the "Officer") dated March 21, 2001 in which she refused to grant the applicant's application for permanent residence.
[2] AND UPON reviewing the file material and hearing the submissions of counsel for both parties in Toronto on May 22, 2003.
[3] AND UPON determining that the sole issue in this application is whether the Officer, who was asked to have the matter considered as a Humanitarian and Compassionate ("H & C") case, was obliged, without a further specific request, to consider the exercise of positive discretion under subsection 11(3) of the Immigration Act, R.S.C. 1985, c-I-2 (the "Act") in the case of a 27 year old Tamil woman student who lives in Colombo, Sri Lanka and who, as the last member of her family, was sponsored by her family as an assisted relative and was awarded only 48 of the 70 points required for a successful application.
[4] AND UPON accepting the Respondent's submission that, absent extraordinary circumstances, an applicant must specifically request the exercise of positive discretion under subsection 11(3) of the Act. See Liu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 216 (F.C.T.D.).
[5] AND UPON concluding, therefore, that a request for positive discretion under subsection 11(3) is not implicitly included in a request for H & C consideration.
[6] AND UPON noting that H & C discretion is exercised by a Minister's delegate and focusses on the applicant's hardship and subsection 11(3) positive discretion is exercised by a visa officer for reasons approved by a senior officer and focusses on the fact that the units of assessment awarded to an applicant do not accurately reflect the likelihood of the applicant's successful establishment in Canada.
[7] AND UPON noting that the applicant's H & C application in this case was denied by a Program Manager and that the denial was upheld on judicial review. See Layden-Stevenson J. in Vijayaratnarasa v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1005, [2002] F.C.J. No. 1298.
[8] AND UPON noting that, even if a specific request had been made, the applicant's units of assessment were not in the "close to 70" range in which positive discretion can be exercised. See McKeown J. in Gao v. Canada (Minister of Citizenship and Immigration), 2002 FCT 43, [2002] F.C.J. No. 48 at paragraph 9.
[9] AND UPON declining to certify the question proposed by applicant's counsel on the basis that the law is clear that, unless there are special circumstances, a specific request must be made for the exercise of positive discretion. The question was "Does a request for H & C consideration implicitly include a request for the exercise of positive discretion under subsection 11(3) of the Act?
ORDER
NOW THEREFORE THIS COURT ORDERS that, for the reasons given above, this application for judicial review is hereby dismissed.
"Sandra J. Simpson"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2596-01
STYLE OF CAUSE: SHARULATHA VIJAYARATNARASA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 22, 2003
REASONS FOR ORDER: SIMPSON J.
DATED: MONDAY, JUNE 2, 2003
APPEARANCES:
Mr. Jegan Mohan
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD:
Mr. Jegan Mohan
Barrister and Solicitor
Scarborough, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030602
Docket: IMM-2596-01
BETWEEN:
SHARULATHA VIJAYARATNARASA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
Email this Content