IMM-2301-96
B E T W E E N:
GEETA SURESHCHANDRA GOHIL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.:
INTRODUCTION:
This is an application for judicial review of a decision of a visa officer. In a letter dated June 18, 1996, received by the applicant on June 24, 1996, the applicant was informed that her request for landing from within Canada on compassionate and humanitarian grounds under Subsection 114.(2) of the Immigration Act was rejected. No reasons were provided by K.L. McMurray, Area Manager.
FACTS:
The applicant came to Canada from India on a visitor"s visa with her two young children, now aged twelve and eight, in September 1995. The applicant first made her request for a visa under Subsection 114.(2) in December 1995. As compassionate and humanitarian grounds for making the application for permanent residence from within Canada, the applicant cited her emotional and financial dependency on her nuclear family in Canada as the result of the sudden breakdown of her marriage to her spouse. Her husband was living with another woman in the United States while the applicant"s only close relatives were Canadian citizens, her elderly parents and a brother. The applicant commenced divorce proceedings in India but her husband balked at signing an agreement (written submissions to the visa officer, dated September 19, 1995, exhibit A to the Gohil affidavit dated August 13, 1996).
During her first interview in December 1995, the applicant told the visa officer that since her family home in India was owned by her husband"s employer, a petrochemical company, she had no where to stay in India. The visa officer verified this information with the Canadian High Commission and found it to be false. The visa officer was informed that the applicant was co-owner of the family home with her husband. The employer had merely provided the financing. The applicant's husband is now returned from the United States and residing in the home. During her second interview in June 1996, the visa officer raised the issue of her previously false statement regarding the status and value of the family home. The visa officer also questioned the applicant on the original representations she made concerning her marital status to obtain a Canadian visitor visa.
GROUNDS FOR REVIEW:
I. Did the visa officer violate natural justice?
The applicant alleges that the visa officer violated natural justice because the applicant was not given an opportunity to dispel the doubts raised in the visa officer"s mind. The applicant should have been allowed to clear the air about the earlier "misrepresentation" concerning the family home. However, the applicant was refused in a letter dated June 18, 1996, the day before the applicant's counsel faxed a letter requesting that the title deed to the home be obtained to verify that the applicant's husband is the sole owner.
II. Did the visa officer commit an error of law in considering an irrelevant factor?
Applicant's Submissions
The applicant submits that the visa officer erred because the applicant's misrepresentation coloured her perception of the application under Subsection 114.(2). The misrepresentations should not detract from consideration of the humanitarian and compassionate grounds. Alternatively, the applicant alleges that the visa officer made an erroneous finding of fact because she is not the co-owner of the home in India. The actual property deeds reveal that her husband is the sole owner (exhibit D to the Gohil affidavit).
ANALYSIS:
A visa officer's decision under Subsection 114.(2) is purely a matter of discretion that takes no right away from the applicant. She is requesting special and additional consideration for an exemption from Canadian immigration laws not universally applied.: Vidal v. Canada (Minister of Employment and Immigration)(1991), 13 Imm. L.R. (2nd) 123. There is minimal procedural fairness and not even a requirement to provide written reasons to the applicant. In cases like Shah v. Canada (Minister of Employment and Immigration)(1994), 170 N.R. 238 (F.C.A.), the Court has expressed its reluctance to intervene in these types of decisions. Only in exceptional circumstances, such as when a visa officer considers extrinsic evidence not available to the applicant, or fetters her discretion, will judicial review be warranted.
The applicant in the case at bar has not alleged any substantial grounds for review. She had ample opportunity to make submissions and present her story. There was no obligation on the officer to wait for further submissions from the applicant before making a decision. It was also within the visa officer's powers to question the applicant concerning her misrepresentations. The applicant's credibility is a relevant factor to be taken into account in determining whether the applicant should be given special and additional consideration. The fact that the applicant is not the co-owner is a minor matter that does not alter the visa officer's prime finding that there were insufficient humanitarian and compassionate circumstances.
Although the facts of this case may lead one to be sympathetic to the applicant, I am satisfied the visa officer did not commit a reviewable error in denying the applicant's application pursuant to Subsection 114.(2).
The judicial review is denied.
"Max M. Teitelbaum"
Judge
Toronto, Ontario
March 12, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2301-96
STYLE OF CAUSE: GEETA SURESHCHANDRA GOHIL
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: MARCH 12, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: MARCH 12, 1997
APPEARANCES:
Mr. David A. Bruner
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD:
HOPPE BRUNER
Barristers & Solicitors
First Canadian Place
Exchange Tower - Suite 910
P.O. Box 177
Toronto, Ontario
M5X 1C7
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2301-96
Between:
GEETA SURESHCHANDRA GOHIL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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