Date: 19990603
Docket: IMM-3675-98
BETWEEN:
ROWENA PARK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The applicant seeks judicial review of the decision, dated 30 June 1998, made by an immigration officer refusing the applicant"s request under s. 114(2) of the Immigration Act 1 for consideration on humanitarian and compassionate grounds.
Background
[2] The applicant, Rowena Park, is a 41 year old citizen of the Philippines. She first came to Canada on 22 February 1993, with a visitor"s visa which was valid for six months. In her affidavit, she states that in April 1993 she met Shaun Park, a Canadian citizen and aspiring singer. 2 They began dating in July 1993, and the applicant decided to stay beyond the expiration of her visitor"s visa.
[3] Mr. Park proposed to the applicant on 9 February 1994, and they married later that year on 2 October 1994. The couple shared a two bedroom apartment with a roommate in order to lessen their expenses.
[4] The applicant"s husband applied in December 1995 to sponsor the applicant for landing within Canada as the spouse of a Canadian citizen. At around this same time, the applicant"s husband was offered a three year recording contract, which would require him to move to Korea. The applicant states in her affidavit that she remained in Canada because of her pending application for permanent residence.
[5] The distance and separation eventually took their toll on the couple and their marriage broke down in March 1997. Shortly afterwards, on the advice of counsel, the applicant converted her application for landing from one of spousal sponsorship to a humanitarian and compassionate application. She requested that she be assessed under the sponsorship breakdown guidelines.
Immigration Officer"s Decision
[6] The applicant was informed by letter, dated 30 June 1998, that there were insufficient humanitarian and compassionate grounds to warrant approval. 3 Accordingly, she was told that she must submit an application for permanent residence at a Canadian visa office abroad, as required by the Immigration Act and Regulations.
Analysis
[7] The applicant submits that the relevant guidelines for her application are those set out in 9.14(3) of the Immigration Manual.4 These guidelines apply to situations where the applicant was in a bona fide marriage with a Canadian citizen which has subsequently broken down, and state in 9.14(3)(d) that "the following factors should be examined in reviewing these cases [emphasis added]". The applicant contends that the immigration officer erred when she incorrectly applied the guidelines with respect to "regular" humanitarian and compassionate applications, contained in 9.07 of the Immigration Manual.
[8] I agree with the applicant"s submission. In fairness, the word "should" denotes the clear intention that the guidelines are to be applied unless some particular reason is found for not doing so. There is no such reason in the present case.
[9] In addition, I accept the applicant"s statements in her subsequently filed affidavit that she had an expectation that she would be assessed according to the guidelines in 9.14(3) and, indeed, structured her application accordingly. I find, therefore, that as her legitimate expectation was not met, that a breach of natural justice has occurred.
[10] Accordingly, I set the immigration officer"s decision aside and refer this manner back for reconsideration before another immigration officer.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
June 3, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: ROWENA PARK |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: THURSDAY, JUNE 3, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: CAMPBELL J. |
DATED: THURSDAY, JUNE 3, 1999
APPEARANCES: Ms. Carole Simone Duhan
For the Applicant
Ms. Susan Nucci
For the Respondent
SOLICITORS OF RECORD: Guberman, Garson
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990603
Docket: IMM-3675-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
__________________
1 Immigration Act, R.S.C. 1985, c. I-2 [the "Act"].
2 Applicant"s application record ["AR"], tab 3.
3 AR, tab 2.
4 AR, tab 3-E, exhibit E to applicant"s affidavit, pp. 132-134.
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