Date: 19990907
Docket: IMM-5512-98
BETWEEN:
GOMES ANNESLEY BERTRAM
GOMES ROSMARY ALOMA
GOMES MITCHELL BERTRAM
GOMES ROZELLE NATASHA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN, J.:
[1] The applicants challenge by way of judicial review the decision, dated 20 October 1998, made by citizenship and immigration counsellor P.M. Johnson, in which it was determined that there were insufficient humanitarian and compassionate grounds for the applicants to be exempted under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") from the statutory requirements with which applicants for permanent residence status in Canada must normally comply. Leave to commence this application for judicial review was granted on 4 June 1999 by Mr. Justice McKeown.
Background
[2] The applicants are a family from Sri Lanka. Rosmary Aloma Gomes (the "principal applicant") arrived in Vancouver on 3 May 1995. Her husband Annesley Bertram Gomes arrived in June 1995. It is not clear from the materials when their two children, Mitchell Bertram Gomes and Rozelle Natasha Gomes arrived in Canada but a comment by one of the counsel indicated that the they arrived with their mother.
[3] The entire family made a claim for Convention refugee status, on 14 July 1995. Their claim, however, was rejected, and they subsequently failed in their application for judicial review. As a result, they applied for consideration under subsection 114(2). The family left their home because they feared the general situation in Sri Lanka, as well as their personal situation due to their mixed ethnicity: Mrs. Gomes is Tamil and her husband is Sinhalese.
[4] The Gomes children, Mitchell and Rozelle, are both enrolled in studies at the University of Toronto. Mitchell is studying for a Bachelor of Commerce degree, and Rozelle is working toward a Bachelor of Science degree in civil engineering.
[5] The principal applicant has been employed as a customer service representative with Windemere International since August 1996, and as a Tele-marketer with Contact Solutions since September 1997. Mr. Gomes has been employed with The Rug Company since 1997, and worked earlier for Windemere , between August 1996 and July 1997. The family have also started their own business in January 1998, A & A Maintenance.
Immigration Officer"s Decision
[6] The applicants received a letter, dated 20 October 1998, which informed them that their application for consideration on humanitarian and compassionate grounds had failed (applicants" application record ["AR"], tab 2, p. 6). No reasons were given as none are required.
[7] In the immigration officer"s interview notes (AR, tab 3, p. 10), dated 16 October 1998, with regard to the heading, "Is the person likely to suffer any hardship or the imposition of sanctions if returned to the country of origin?", the officer noted the following:
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No sanction however subject claims that because of their mixed marriage they are suspected by both rival groups in Sri Lanka. She is a Tamil and her spouse is Sinhalese. She further claims that she was taken into custody and questioned and that her husband was once pushed and had fallen and hurt his neck as a result. Consequently, they fear returning to Sri Lanka as they do not want to have to go through the same thing again. |
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[8] The immigration officer summarized the applicants" position in this manner:
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Subjects claims [sic] they will face psychological hardship going back to Sri Lanka empty handed. They feel the children are doing well in school here and that they would lose all the money they have invested in their education. They are concerned that an independent application from Sri Lanka would take approximately two years and this would cause some inconvenience. |
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[9] Finally, the immigration officer made the following recommendation:
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The Gomes Family has been in Canada for three years. The parents have been employed for two years and the children are in school. They are involved in their community and have substantial savings, however they have not established themselves to the point where leaving would disrupt their life. They have lived almost all their lives in their homeland and was able to uproot to come to Canada. It should not be too difficult to leave Canada after only three years of living here. This is the risk they knew they would be taking. Mrs. Gomes has her parents and one sibling lives in Sri Lanka while her husband has 6 siblings in Sri Lanka. These family member [sic] should be able to help them re-adjust. |
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Subjects claim to have had some problem [sic] in Sri Lanka due to their ethnicity. They have had a chance to put forward a refugee claim which was rejected. No evidence have [sic] adduced to establish that there would be undue hardship should they return home. Inconvenience or the fact that they have invested in a Canadian education for their children is not sufficient ground for a positive decision. |
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Applicants"Position
[10] The applicants submit that the immigration officer erred in depending on the opinion of the post claim determination officer ("PCDO") regarding the issue of the risk faced by the applicants should they be returned to Sri Lanka. The applicants contend that the immigration officer ignored their counsel"s oral and written submissions on country conditions and the hardship faced by the applicants.
[11] The applicants contend that the immigration officer informed them that the risk factor would be assessed by the PCDO. The applicants submit that they were not given the opportunity to respond to the evidence relied on by the PCDO, and thus a violation of the rules of procedural fairness occurred.
[12] The applicants further argue that the immigration officer improperly relied on the PCDO"s opinion, instead of conducting her own independent assessment.
[13] With regard to the risk factor and the test to be applied, the applicants submit that the post determination refugee claimants in Canada class is subject to a different risk test than those submitting applications under subsection 114(2). The applicants contend that subsection 114(2) encompasses a broader range of situations than that which the PCDO must consider.
[14] Finally, the applicants submit that the immigration officer ignored the evidence put forth by their counsel at the interview, evidence which they claim contradicts the immigration officer"s conclusions as to the risk and hardship they face should they be returned to Sri Lanka.
Respondent"s Position
[15] Thanks to the courtesy of Mr. Francis Xavier, counsel for the Respondent was permitted a late filing the Respondent"s record.
Analysis
[16] In the usual course of events, prospective immigrants apply for and obtain immigrant visas from outside Canada, pursuant to subsection 9(1) of the Act. However, in some instances, the requirement to apply for a visa outside of Canada may entail having the applicant leave Canada, which may, in turn, create undue hardship. Consequently, subsection 114(2) of the Act allows the Governor-in-Council to exempt applicants from subsection 9(1) for reasons of public policy or on compassionate and humanitarian grounds.
[17] The decision of an immigration officer whether or not to grant an exemption under subsection 114(2) is a highly discretionary one, with a duty of fairness found at the low end of the spectrum; applicants seeking such an exemption must discharge a heavy burden in order to satisfy the reviewing Court that a rejection of their application was unlawful and warrants judicial intervention.
[18] The applicants" argument is centred mainly around the immigration officer"s manner of determining the risk and hardship issues. Despite the submission of the applicants" counsel that the immigration officer simply concurred in the PCDO"s opinion, no evidence was adduced by way of affidavit to support this contention. Indeed, no mention is made in the principal applicant"s affidavit of what transpired at the interview (when the immigration officer is supposed to have informed the applicants that the risk factor would be assessed by the PCDO).
[19] Notwithstanding this shortcoming, jurisprudence of this court has held that an immigration officer making a decision under subsection 114(2) may rely on a risk assessment conducted by a PCDO.
[20] In Cojocar v. Canada (MCI) (IMM-2499-98, 21 January 1999), Mr. Justice Evans considered a case where an immigration officer had requested a risk opinion from a PCDO. The opinion was requested after an interview had been conducted, and the report was not disclosed to the applicant in that case. The applicant in that case relied on Al-Joubeh v. Canada (MCI) (1996), 33 Imm. L.R. (2d) 77 (F.C.T.D.), which held that it was a denial of the duty of fairness for the immigration officer to rely on a PCDO"s report, which in turn was based partly on a conversation with another officer, as well as a book and an article, without disclosing it to the applicant for comment. In considering this case, Mr. Justice Evans held,
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More recently, however, it has been held that fairness does not require an officer to disclose for comment information that the PCDO has obtained about general country conditions from the Documentation Centre of the Immigration and Refugee Board, on the ground that this information is publicly available, and anyone familiar with the process would anticipate that the PCDO was likely to consult it: Mancia v. Canada (MCI), [1998] 3 F.C. 461 (F.C.A.). In the absence of any finding in Al-Joubeh about whether it was reasonable to have expected the applicant or his counsel to have anticipated the use that would be made of the materials relied on, the authoritativeness of this decision must now be regarded as suspect, at least as regards the book and the article. |
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The Court concluded that since the report was based on information readily available at the Documentation Centre, it would be reasonable for them to anticipate that the PCDO would consult it, and it did not amount to extrinsic evidence that would warrant disclosure.
[21] In the case at bar, the applicants" submissions regarding the degree of risk they face should they be returned to Sri Lanka do not appear to be significantly different from the basis of their claims for Convention refugee status and PDRCC consideration. The additional evidence adduced amounted to more recent documentary evidence detailing the ongoing conflict in Sri Lanka.
[22] The handwritten notes accompanying the immigration officer"s computer notes indicate that she did hear and consider counsel"s submissions (AR, tab 3, pp. 12B-C). The computer notes also make mention of the applicants" stated fears. The officer"s comment under the recommendation section of the notes, that no evidence had been adduced to establish that there would be undue hardship should they return home, can be taken as meaning that the evidence put forth by the applicants simply did not satisfy their burden. It does not mean, as the applicants" counsel suggests, that the immigration officer ignored or failed to consider his submissions.
[23] Finally, I note that there is nothing contained in the record pertaining to the PCDO"s report. Therefore, it is difficult to consider, in depth, the applicants" argument that the immigration officer relied on such a report.
[24] As for the applicants" contention that the potential loss of education faced by the applicant children is an irreparable loss which cannot be compensated, the applicants rely on Khan v. Canada (MEI), (1993) 62 F.T.R. 311 (F.C.T.D.). That case, however, dealt with a motion for a stay of a deportation order. In a more recent case, Mahadeo v. Canada (MCI) (IMM-889-99, 5 March 1999), also a motion for a stay of execution of a removal order, Mr. Justice Nadon considered the disruption of the school year faced by the two teenaged applicants:
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The second ground argued by counsel for the applicant is that his clients will suffer irreparable harm by reason of the disruption of their education since the execution of the removal order will take place before the end of their school year. Personal difficulties of this nature, although inconvenient, do not, in my view, constitute irreparable harm. In Chatterjee v. Canada (MCI) (16 August 1996), [(F.C.T.D.) (Ottawa: IMM-2454-96)], Mr. Justice Richard (as he then was) states that personal difficulties do not constitute irreparable harm... . |
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[25] In the case at bar, the applicants have invested a considerable amount of money in furtherance of their children"s university studies. The children have also earned scholarships towards their tuition. While this is certainly commendable, the applicants have known all along that their immigration status was uncertain and that they faced potential removal from the country at some point.
[26] In the result, the applicants" application for judicial review is dismissed.
Ottawa, Ontario
September 7, 1999.
B. Cullen J.F.C.C.
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