Date: 20010223
Docket: IMM-3291-00
Neutral Citation: 2001 FCT 113
BETWEEN:
PERMAL BONGMAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the immigration officer, who on June 9, 2000, denied the application of Permal Bongman (the applicant) for humanitarian and compassionate consideration pursuant to subsection 114(2) of the Immigration Act1 (Act).
[2] On August 16, 1999, the applicant filed an application for humanitarian and compassionate consideration.
[3] On January 21, 2000, the applicant attended an interview with the immigration officer. The immigration officer informed the applicant and his counsel that he required additional information, and the same day, a letter to that effect was sent stating that the applicant had 30 days to provide the requested information.
[4] On February 21, March 1, and March 20, 2000, counsel for the applicant sent additional documentation to the immigration officer.
[5] On June 9, 2000, the applicant was advised by the immigration officer that his application for humanitarian and compassionate consideration had been refused.
[6] On June 12, 2000, counsel for the applicant requested the reasons for the refusal of his application. On June 14, 2000, the reasons for the refusal were provided to counsel for the applicant.
[7] The applicant first submits that the immigration officer fettered his discretion by relying upon section 8.7 of the Guidelines2 and not considering whether other humanitarian factors relevant to the applicant existed.
[8] I am satisfied that it is not the case. The evidence demonstrates that the immigration officer considered the humanitarian factors advanced by the applicant, namely his establishment in Canada, his family abroad, his business activities in Canada and his fear of returning to Malaysia.
[9] The applicant then submits that the immigration officer ignored evidence which clearly demonstrates that over the past 10 years, the applicant has successfully established himself in Canada.
[10] The immigration officer, in his notes, stated:
| I believe his [the Applicant's] establishment has not been significant. In essence, he is a cook. With the funds he has saved over the years, he was able to partner with two persons and open a restaurant.3 |
[11] For the applicant, by using the word "significant" the officer has effectively elevated the test for acceptance. After consideration, although the use of the word "significant" establishment could indicate that the applicant was discounted because he did not have any formal training, I am satisfied that the immigration officer's finding of fact is based on the evidence and that, as such, enjoys deference by the Court.
[12] The same can be said about the immigration officer's finding respecting the adverse effect on the restaurant if the applicant is returned to Malaysia. Again, I could have concluded differently but I recognize that this finding is based on the evidence and that the Court should therefore not intervene.
[13] Concerning the immigration officer's conclusion that the restaurant does not employ Canadian citizens or permanent residents, I am satisfied that there was no breach of the duty of fairness. The applicant was informed by letter that he should provide proof that the restaurant employed Canadian citizens or permanent residents within 30 days. The applicant was clearly given an opportunity to address the immigration officer's concerns.
[14] Finally, regarding the assessment of risk, I am satisfied that it was open to the immigration officer to conclude that there was no need for a risk opinion from a post determination claim officer in the present case.
[15] For all the reasons above, the application for judicial review is dismissed.
O R D E R
[16] The application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
February 23, 2001.
__________________
1 R.S.C. 1985, c. I-2.
2 Immigration Applications in Canada Made on Humanitarian and Compassionate Grounds, Chapter IP-5.
3 Applicant's Application Record at 230.
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