Date: 20000529
Docket: IMM-1931-99
BETWEEN:
DALVIR KAUR SIDHU
Harminder and Simranjit
Applicants
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2, for leave and for judicial review of a decision of Citizenship and Immigration Canada made by an immigration officer on March 22, 1999, wherein it was determined that insufficient humanitarian and compassionate grounds exist to permit inland landing for the applicant.
[2] The applicant, Dalvir Kaur Sidhu, is a citizen of India. She claims a well-founded fear of persecution based on her membership in a particular social group, namely, gender and family members of suspected militants in Punjab.
[3] In June 1994, the applicant"s husband"s friend who was very actively involved with the All India Sikh Student Federation ("AISSF"), approached her husband and her to become members. They joined the AISSF and supported its cause by giving money as well as participating in various rallies and demonstrations. In 1995, some militants came to the applicant"s home and this brought them to the attention of the police. The applicant allegedly provided food to the militants under duress.
[4] After the militants left, the police raided her home and arrested her husband. He was detained and beaten. After his release, the applicant"s husband left and went into hiding out of fear of the police. They in turn began harassing her and subsequently sexually assaulted her. She then moved to live in various places because she feared for her life and that of her children. She arrived in Canada in August, 1996. A refugee claim was denied. The section 114(2) interview took place in October, 1998.
[5] On April 6, 1999, the applicant received the decision in connection with the humanitarian and compassionate application. No reasons were given for the decision rendered March 22, 1999. As per the Federal Court registrar"s request pursuant to rule 9 of the Federal Court Immigration Rules to the Mississauga Area CIC, the Manager sent the applicant notice under paragraph 9(2)(b) stating that there were no written reasons. This was received on May 12, 1999.
[6] The applicant submits that the country conditions information which was referred to in her submission was not considered in arriving at the decision. She contends that this evidence contains references to the plight of women as well as the behaviour of police in Punjab. She argues that this information is within the ambit of the subject matter to be considered and, accordingly, the immigration officer erred in law when it was ignored; that she was not accorded a full and fair review to determine the existence of humanitarian and compassionate considerations.
[7] Counsel for the applicant further submits that there was a total lack of consideration by this officer with regards to the hardship that the applicant"s two sons, now age 8 and 12, would be subjected to if returned to India. There is no father or husband to provide for them; the officer failed to consider the extreme hardship that she and her children would experience should she be removed from Canada; that she is now established in Canada, she has found employment and her children are attending school.
[8] In her final submissions, the applicant points to the fact that during the interview the officer had to request the interpreter not to speak "for" the applicant, but to translate what she had said. Although she was given the opportunity to be heard, it was subverted by the interpreter. It is contended that the officer assessed the evidence while having lingering doubts about the source of the evidence which raises an issue of bias.
[9] The respondent argues that humanitarian and compassionate review offers an individual special and additional consideration for an exemption from Canadian immigration laws, and as such an immigration officer should be entitled to considerable deference in the exercise of his or her discretion.
[10] He further argues that there is no evidence that the applicant or her counsel objected to the quality of interpretation at the interview. He contends that it is settled law that a party alleging prejudice as a result of faulty interpretation must do so during the proceeding. He also points out that the applicant did not raise this issue in the affidavit filed in support of her application.
[11] Finally, the respondent submits that the record clearly shows that the officer reviewed all of the evidence in the case and that the lengthy notes taken during the interview are ample proof of a detailed analysis of all the facts that relate to this humanitarian and compassionate hearing.
[12] The standard of review is one of reasonableness as established in Baker1.
[13] Under subsection 114(2) of the Act, the Minister or his delegate are authorized to exempt persons from the Act and facilitate their admission into Canada where the Minister is satisfied that such exemption should occur owing to the existence of humanitarian and compassionate considerations. It is clearly established that the immigration officer"s discretion under subsection 114(2) is "wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome".2
[14] Mr. Justice Cullen, in Gomes3, wrote that the decision of an immigration officer whether or not to grant an exemption under subsection 114(2) is highly discretionary, with a duty of fairness found at the low end of the spectrum. The decision in Shah4, which predate Baker (supra), established the duty of fairness in determining humanitarian and compassionate applications. In Shah, Mr. Justice Hugessen wrote:
| It is commonplace that the content of the duty of fairness varies according to the circumstances. In the present case we are all of the view that such content was minimal. The decision in question was that of an immigration officer charged with making a recommendation to the Governor in Council as to the exercise of the latter"s discretion to grant an exemption to the applicant from the requirement of subsection 9(1) of the Immigration Act on humanitarian or compassionate grounds. The power to grant such exemption resides in subsection 114(2) of the Act. The decision itself is wholly a matter of judgment and the law gives the applicant no right to any particular outcome. [...] |
| In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of law. ...] The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. [...] |
| To succeed in his attach here the applicant must show that the decision-maker erred in law, proceeded on some wrong or improper principle or acted in bad faith. |
[15] Questions regarding the documentary evidence are a proper matter for the discretion of the immigration officials and should not be subject to review by this Court5. It is also a recognized presumption that a decision-maker takes into account all of the evidence provided, and that there is no need for this decision-maker to mention or refer to the evidence in its entirety when rendering a decision so long as the Court is satisfied that all relevant facts were before the officer and were considered6.
[16] The jurisprudence of this Court has held that immigration officers making a decision under 114(2) may rely on a risk assessment conducted by a post claim determination officer7. In this case, the Post Claim Determination Officer, in his Risk Opinion, reviewing the application, mentioned the fact that he considered all the documents before him and also concluded that there was no evidence that undue or disproportionate hardship would result if returned to India.
[17] The applicant further argues that the officer failed to inform her of all of his concerns with respect to her application. However, it has been established that there is no obligation on the visa officer to provide a running account to an applicant of his or her concerns relating to any specific answers.
[18] During the interview, it was noted that the officer had to remind the interpreter not to speak for the applicant. In his notes, he wrote "interpreter: - kept trying to answer for client, - I had to inform him on many occasions to translate word for word what I said and what pc (person concerned) said".
[19] It was submitted by counsel that the fact the officer had to, on some occasions, reprimand the interpreter, was an indication of bias and would support an argument that there was a lack of objectivity during the conduct of this interview.
[20] My review of the notes do not support such a contention and, if it were such an important aspect, as counsel for the Crown pointed out, it was not raised in the affidavit filed in support of this application as being of crucial or such importance as to set aside the decision.
[21] One of the more compelling arguments counsel for the applicant wishes to emphasize was his suggestion that the children were not properly or adequately considered before rendering the decision and that no one really considered the hardship it would impose. It is obvious throughout the interview and in the officer"s notes that references are made to the children on three or four occasions and the officer does point out that they have no relatives in Canada; that this applicant still has her family in India and they could be a source of assistance upon her return.
[22] Finally, it is submitted that this applicant is firmly established in Canada and that this aspect has not been properly canvassed. The review of the officer"s notes clearly supports the Crown"s contention that the officer was aware that this applicant had only been in the country two years, had been on welfare for a considerable period of time, was unskilled, had some difficulty with the English language and had only recently found employment as a sewing machine operator. Obviously, it was in the officer"s discretion to make a determination and this applicant"s situation did not appear to support the general guidelines when it comes to establishment. This applicant does not have a stable history of employment, nor does she have relatives in Canada.
[23] It should be remembered that these decisions rest within the discretion of immigration officers, unless the Court is satisfied there was a lack of fairness or that the decision was unreasonable based on the evidence that was before the interviewing officer. The onus rests with the applicants.
[24] I have not been convinced that the Court should intervene and accordingly the application is dismissed.
JUDGE
OTTAWA, Ontario
May 29, 2000
__________________
1Baker v. Canada (M.C.I.), [1992] 2 S.C.R. 817
2Ogunfowora v. Canada (M.C.I.), [1997] F.C.J. No. 456
3Gomes v. Canada (M.C.I.), [1999] F.C.J. No. 1362
4Shah v. Canada (M.C.I.), [1994] F.C.J. No. 1299
5 Hoang v. Canada (M.E.I.), [1990] F.C.J. No. 1096
6 Hassan v. Minister of Employment and Immigration (1992), 147 N.R. 317; Ogunfowora v. Canada (M.C.I.), [1997] F.C.J. No. 456
7 See supra Gomes
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