Date: 19991105
Docket: IMM-467-99
Between:
DANIAL ARIYAN,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
REASONS FOR ORDER
PINARD J.
[1] The application for judicial review is from a decision on January 21, 1999 by Chantal Sarrazin, immigration counsellor, Citizenship and Immigration Canada ("CIC"), dismissing the landing application based on humanitarian factors submitted by the plaintiff.
[2] First, the plaintiff alleged that contrary to the procedures in effect in the Quebec region for landing applications in the family class, he and his wife had no interview and were not heard regarding the landing application. With reference to these procedures or this policy the plaintiff referred in his record, at p. 75, to the affidavit by Marie-Hélène Paquin, a social worker, a member of the board of directors of the Comité d"aide aux réfugiés and spokesperson for the Coalition pour le respect des droits humains, who stated:
| 8- It was then clearly indicated to the participants in the study committee that the CIC Montréal policy was clear on this point and in such cases there systematically had to be an interview with the couple before the decision was made by the immigration officer. |
[3] The defendant, on the other hand, referred to the affidavit of Himmat Shinhat, a regional consultant in the Programs Branch, Quebec Region, CIC, who related the following policy that does not require an officer responsible for considering such an exemption application to conduct an interview:
[TRANSLATION]
5. Policy on spouses
| a. Visa exemption applications submitted by the spouses of permanent residents should be favourably considered as the separation of spouses united in good faith creates problems which ordinarily justify the taking of special measures. When the marriage is authentic, that is, it has a good chance of lasting and was entered into in good faith, not merely for immigration purposes, it is not necessary for the persons concerned to present evidence that they would encounter additional problems in order for an application for an exemption from L9(1) to be processed. |
| b. It will be noted that the policy on spouses does not take priority over the Immigration Act . . . |
[4] Accordingly, it appears that the policy in question simply requires that spouses of permanent residents be favourably considered, which does not necessarily mean that immigration officers are bound to conduct an interview. Further, the policy is subject to the Immigration Act, and in this regard the recent judgment of the Supreme Court of Canada in Baker v. Minister of Citizenship and Immigration et al., July 9, 1999, 25823, makes the following observations, per L"Heureux-Dubé J., at paras. 32, 33 and 34:
| Balancing these factors, I disagree with the holding of the Federal Court of Appeal in Shah, supra [(1994), 170 N.R. 238 (F.C.A.)], at p. 239, that the duty of fairness owed in these circumstances is simply "minimal". Rather, the circumstances require a full and fair consideration of the issues, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered. |
| However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. The Federal Court has held that procedural fairness does not require an oral hearing in these circumstances: see, for example, Said, supra [(1992), 6 Admin. L.R. (2d) 23 (F.C.T.D.)], at p. 30. |
| I agree that an oral hearing is not a general requirement for H & C decisions. An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application from a social worker at the Children"s Aid Society and from her psychiatrist. These documents were before the decision-makers, and they contained the information relevant to making this decision. Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case. |
[5] In the case at bar the plaintiff completed a "Request for Exemption from Immigrant Visa Requirement" on July 15, 1998 and a form titled "Supplementary Information " Spouse in Canada", also dated July 15, 1998. At the top of the "Request for Exemption from Immigrant Visa Requirement", the following is printed: "If you need more space for your answers, provide details on a separate sheet". Further, question 2C of the form "Supplementary Information " Spouse in Canada" asks if it would be difficult for
the plaintiff to submit his application at a visa office outside Canada as required by the Immigration Act, a question which the plaintiff chose to answer briefly: [TRANSLATION] "Yes, because of my situation".
[6] In the circumstances, therefore, I consider that the opportunity given to the plaintiff and his wife to file complete written documentation about all aspects of the landing application meets the requirements of the duty of procedural fairness.
[7] Secondly, the plaintiff objected that the officer did not consider Exhibits B and C attached to his affidavit of February 3, 1999. As the decision of the immigration officer was rendered on January 21, 1999, he certainly cannot be blamed for not considering evidence which was itself dated January 22 and January 23, 1999 respectively.
[8] The plaintiff"s arguments are thus without merit and his application for judicial review is dismissed.
OTTAWA, ONTARIO
November 5, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: DANIAL ARIYAN |
c.
MCI
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 7, 1999 |
| REASONS FOR ORDER BY: PINARD J. |
APPEARANCES:
| NOËL SAINT-PIERRE FOR THE APPLICANT |
| MARIE-CLAUDE DEMERS FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| NOËL SAINT-PIERRE FOR THE APPLICANT |
| MARIE-CLAUDE DEMERS FOR THE RESPONDENT |
Morris Rosenberg
Deputy Attorney General of Canada
Date: 19991105
Docket: IMM-467-99
Ottawa, Ontario, November 5, 1999
Before: Pinard J.
Between:
DANIAL ARIYAN,
Plaintiff,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Defendant.
ORDER
The application for judicial review of the decision on January 21, 1999 by Chantal Sarrazin, immigration counsellor, Citizenship and Immigration Canada, dismissing the landing application based on humanitarian considerations submitted by the plaintiff, is dismissed.
Certified true translation
Bernard Olivier, LL. B.
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