Dilmohamed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 9

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                                                                                                              Date: 20020104

                                                                                                    Docket: IMM-1130-01

                                                                                         Neutral citation: 2002 FCT 9

Ottawa, Ontario, this 4^th day of January, 2002

PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                       FIAZA BEGUM DILMOHAMED

                                                                                                                        Applicant

                                                              - and -

                       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                    Respondent

                                     REASONS FOR ORDER AND ORDER

(1)                 The applicant, a 39-year old citizen of Mauritius seeks judicial review of a decision of Amy Kawamoto, Immigration Counsellor, made on February 19, 2001, that there were insufficient humanitarian and compassionate grounds to warrant processing of the applicant's application for permanent residence within Canada.

(2)                 The applicant came to Canada on December 29, 1986 as a visitor. She applied for one extension of her visa which expired in June 1987. She has remained in Canada since that time without status.

(3)                 The applicant has been residing with her mother and sister Leila for about 14 years in New Westminster, British Columbia. Her mother is a Canadian citizen and her sister, Leila, is a permanent resident of Canada. The applicant's step-sister Ferial is a permanent resident of Canada and she also resides in New Westminster. The applicant's brother, Mansour, resides in France and her other step-sister, Fawzia, also a Canadian citizen, resides in the United States.

(4)                 The applicant is supported by her mother's pension income and her own work, however, she has been unemployed since 1996. The applicant assists in the care of her 75 years old ailing mother who suffers from breast cancer, diabetes and Parkinson's disease. The applicant also helps her sister, Leila, who suffers from clinical depression. The applicant does not wish to return to Mauritius because she states that the only relative she has left there is her estranged father whom she has not seen for over twenty years. In addition, the applicant claims that she continues to fear persecution in Mauritius.

(5)                 The applicant made an initial humanitarian and compassionate application on November 5,1988, which was refused on April 19, 1999. Her second application was received on April 19, 1999, and was refused by the Immigration Counsellor on February 19, 2001. This latter decision forms the basis for the within application for judicial review.

(6)                 When the matter came on for hearing at Vancouver, counsel for the applicant argued that the decision should be set aside on the following grounds:

           (a)       that the respondent erred in basing the decision on the following erroneous findings of fact, that the positive factors outweigh the negative factors in the case and that there are insufficient grounds to believe that the applicant would suffer undue, disproportionate or undeserved hardship should she return to Mauritius;

(b)        that the respondent erred in law in arriving at a different determination than in the case of the applicant's sister who had filed a similar application previously and had been accepted;

           (c)         that the respondent erred in concluding that there were insufficient humanitarian and compassionate reasons.

[7]                  In my view the principal issue raised is that the Immigration Counsellor did not give appropriate weight to the hardship which the applicant perceived she would have to endure if she were required to return to Mauritius to apply for landing. It is submitted that hardship for the applicant would be: the separation from her mother and sister at a time they required her assistance; the necessity to return to a country in which she had no remaining relatives and in which she feared persecution; to leave a country (Canada) in which she had settled and had lived for 14 out of 36 years of her life.

[8]                  The applicant argues that these "positive" factors should be assessed and weighed against other "negative" factors identified, in accordance with the Ministerial guidelines with regards to this class of application. The applicant points to the Supreme Court decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 at 862 (paragraph 72), to support the contention that the guidelines are a useful indicator of what constitutes a reasonable interpretation of the discretionary power conferred by s. 114(2) of the Immigration Act on immigration officers. The applicant contends that in this case the Immigration Counsellor's decision was contrary to the guidelines and, therefore, an unreasonable exercise of the H & C power. The applicant further contends that the application of the Ministerial guidelines to the applicant's circumstances could only lead one to reasonably conclude that the applicant would suffer undue, disproportionate and undeserved hardship in Mauritius. In the applicant's view, the Immigration Counsellor therefore erred in concluding otherwise.

[9]                  With respect, I cannot accept the applicant's contention. Ministerial guidelines are important, but they are intended to be of assistance to decision makers. The following passage can be found at bullet 6.1 of Minister's Guidelines (Applicant's Record, page 96 of Tab 8) which deals with the definitions of "unusual, undeserved and disproportionate hardship":

                                 The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining wether sufficient H & C considerations exist to warrant the requested exemption from A9(1).

[10]            The applicant also submits that the Immigration Counsellor erred by drawing a negative inference from the fact she remained in Canada without status, knowingly worked in Canada without authorization and made no attempt to apply for landing during the past 14 years. In my view, it was open to the Immigration Counsellor to draw a negative inference from these facts.

[11]            It is apparent from her reasons that the Immigration Counsellor considered not only the negative factors but also the positive factors in the case, including the applicant's attachment to her family and community. She properly weighed all of the evidence before her and concluded, in her discretion that the factors militating against granting the humanitarian and compassionate application outweighed those in her favour. The exercise of this discretion will not be interfered with by the Court, if all of the evidence has been fairly assessed. In Vidal v. Canada (M.E.I.) (1999), 13 Imm.L.R. (2d) 123 at 130 (F.C.T.D.), Mr. Justice Strayer, with reference to the exercise of an immigration officer's discretion and the Minister's guidelines states:

I would observe in passing that it must follow as a corollary of the reasoning of Jerome A.C.J. in Yhap that an applicant cannot complain if an immigration officer fails or refuses to follow the Minister's guidelines._ Nor can he complain if an immigration officer applies any factor in lieu of those in the guidelines as long as this is done in good faith and the factor is not wholly irrelevant to any conceivable view of humanitarian and compassionate considerations. _Further, it is for the officer to decide if he is convinced of the truth of an applicant's assertions, unless perhaps he makes findings of fact which are clearly without regard to any material before him._ It is not for the Court to sit in appeal on his findings of fact or his weighing of the various factors.

[12]            In reaching her decision, the immigration officer considered the Minister's guidelines, considered the evidence and the applicant's circumstances against the meaning of undue hardship, and concluded that the applicant does not face a situation that would constitute undue hardship. This is an issue of weight to be given to the facts and circumstances of the case. I am satisfied that the Immigration Counsellor considered all of the pertinent evidence presented to her and that she exercised her discretion in good faith. Her conclusion was reasonably open to her.

[13]            Her decision not to recommend that the applicant be permitted to apply for landing from within Canada, as an exception to the normal requirement set out in the Act does not constitute an error in law. In Baker v. Canada (M.C.I.), supra, at paragraph 62, Madam Justice L'Heureux-Dubé addressed the standard of review to be applied by a Court reviewing a challenge to a humanitarian and compassionate decision such as this one. She concluded that considerable difference should be accorded to immigration officers in the exercise of their discretion and concluded that the appropriate standard is reasonableness simpliciter. Applying this standard to the circumstances of this case, I determine that the Counsellor has exercised her discretion reasonably and I see no grounds upon which this Court could overturn the decision.

[14]            There is no merit to the applicant's argument that since her sister's application was accepted, therefore, hers should be as well. Each application must be assessed on its own merits. To do otherwise would be a fettering of an officer's discretion.

[15]            Both parties, having been given the opportunity, have not proposed a question for certification. There is no question of general importance for certification.

ORDER

1.                    This application for judicial review is dismissed.

                                                                                                                              "Edmond P. Blanchard"                 

                                                                                                                                                               Judge