Date: 20040318
Docket: IMM-4328-03
Citation: 2004 FC 418
Toronto, Ontario, March 18th, 2004
Present: The Honourable Mr. Justice Phelan
BETWEEN:
JOAN MARIE GARWOOD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] The Applicant Joan Marie Garwood ("Garwood") challenges the Minister's refusal to exercise his discretion on humanitarian and compassionate grounds to allow her to apply for permanent residence status from within Canada. For the reasons given, Mrs. Garwood's challenge cannot succeed.
Background
[2] Ms. Garwood is the single mother of two boys, one of whom was born and lives in Jamaica, the other born and living in Canada. She is a citizen of Jamaica who has lived for ten years in Canada.
[3] Ms. Garwood entered Canada in 1992 as a visitor. In 1994 she was detained by immigration officer and ordered to leave Canada.
[4] She failed to leave because the father of her newborn son had expressed an interest in marriage. However he was convicted of a crime, sent to prison and she lost contact with him.
[5] In 1999 Ms. Garwood married but she is currently separated from her husband.
[6] On June 2, 2003 A. Bilich, an Immigration Officer assessed Ms. Garwood's application for permanent residence from within Canada on human and compassionate grounds and determined that the application would not be granted.
[7] As indicated in the CAIPS Notes, the Officer identified the following humanitarian and compassionate factors from the material submitted by the Applicant:
- hardship due to her establishment in Canada,
- emotional hardship for her to leave her mother and brother, both of whom live in Canada,
- emotional hardship for her Canadian born son to leave his school and his life in Canada,
- financial hardship.
[8] The Officer while recognizing her strong family ties in Canada concluded that the Applicant had not presented sufficient evidence to warrant an exemption.
[9] The Officer found that there was insufficient evidence that she had severed her connections with Jamaica. It was recognized that there would be a certain amount of emotional hardship.
[10] The Officer considered such issues of emotional and financial support, her state of integration into Canadian society and, her ability to adjust to life in Jamaica.
[11] Consideration was also given to the best interests of the Canadian child, his ability to adjust to life Jamaica, his emotional hardship arising from separation from his bonds in Canada as well as the support he would receive from family in Jamaica.
[12] In the end of the Officer was not satisfied that sufficient evidence had been presented of hardship which was undeserved, undue and disproportionate. It was noted that Ms. Garwood could apply for landing from Jamaica.
[13] Ms. Garwood's objection to the Immigration Officer's decision was that (a) if the officer required further evidence, she should have allowed Ms. Garwood to supply it, (b) that the officer had ignored or erred in assessing the evidence of hardship.
[14] Aside from the procedural issue, the Applicant's submissions amount to challenge to the weighing of evidence by the Officer.
Analysis
[15] Ms. Garwood was self-represented before the Court. While she gave an eloquent and thoughtful argument of her case, I cannot conclude that the Immigration Officer erred such that the decision should be quashed.
[16] There was no error of procedural fairness. The Immigration Officer was under no obligation to ask for further evidence (Arumugan v. Canada (MCI) 2001 FCT 985).
[17] There was no suggestion that the Officer did not have all the relevant evidence nor did the Applicant suggest what further evidence could have been tendered.
[18] On the issue of the Officer's conclusion on the merits of her application, the appropriate standard of review is reasonableness simplicitor (Baher v. Canada (MCI) [1992] 2 S.C.R. 817).
[19] The Officer did a thorough job of assessing the evidence, considered all the factors raised by the Applicant, addressed in writing (CAIPS Notes) each of the factors. She was "alive" to the issues, treated the matters in a sympathetic and respectful manner.
[20] The Applicant focused particularily on the Officer's finding that financial support would continue if she were in Jamaica. The Applicant referred in her Request to the fact that prior to coming to Canada she had been supported by her grandmother and mother. There was no evidence that such financial support, if necessary, would not be available again.
[21] It is not the function of the Court to re-weigh the evidence before the Officer to reach a different conclusion, or to effectively substitute the Court's exercise of discretion for that of the Officer.
[22] Since there had been no legal error committed, this Application for Judicial Review must be dismissed.
[23] There is no certified question arising from the Application.
ORDER
THIS COURT ORDERS that this Application for Judicial Review be dismissed.
"Michael L. Phelan"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4328-03
STYLE OF CAUSE: JOAN MARIE GARWOOD
and
MCI
DATE OF HEARING: MARCH 15, 2004
PLACE OF HEARING: TORONTO, ONTARIO
APPEARANCES BY:
Joan Marie Garwood For the Applicant, On her own behalf
Pamela Larmondin For the Respondent
SOLICITORS OF RECORD:
Joan Marie Garwood
Toronto, Ontario For the Applicant,
On her own behalf
Morris Rosenberg
Toronto, Ontario For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040318
Docket: IMM-4328-03
BETWEEN:
JOAN MARIE GARWOOD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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