IMM-1386-96
B E T W E E N:
TERESA ESPENA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY, J.:
The applicant seeks judicial review of a decision made on behalf of the respondent Minister, dated April 2, 1996, that there were insufficient humanitarian and compassionate grounds to warrant processing of the applicant's application, for permanent residence, from within Canada.
The applicant arrived in Canada on September 12th, 1995 from the Philippines of which country she is a citizen. She came to Canada to be with and to assist her daughter, a Canadian citizen, who was about to undergo brain surgery for a tumour. The applicant's daughter lives with her husband and a baby daughter born about June 1995, in the greater Toronto area. The applicant was able to assist her daughter through the period of her post-operative recovery and look after her granddaughter at that time. The applicant's daughter returned to work in December 1995 and the applicant continued to look after her grandchild in the daughter's house. In December 1995, the applicant made application for landing, while she was in Canada, seeking an exemption from normal requirements, to apply abroad, on humanitarian and compassionate grounds.
Later the applicant's daughter was scheduled for further surgery, in May 1996. The applicant, who had been in Canada with a visitor's visa, was granted an extension of the time to remain in Canada until September 1996, and thereafter that was extended further to March of 1997.
The applicant was interviewed by an immigration officer on April 2, 1996. On that occasion she was accompanied by her daughter and son-in-law. At that time it was noted that her husband, three daughters and two sons remained in the Philippines. Her principal interest in remaining in Canada at that time was to be with her daughter through the period of her second surgery and recovery and to care for her granddaughter, who at that time was less than one year old. Further she sought to avoid the expenses, inconvenience and hardship she would experience if she were required to return to the Philippines to make application for permanent residence in Canada.
When the matter came on for hearing in Toronto, counsel for the applicant urged that the decision in question be set aside principally on the ground that the officer making the decision had not properly assessed the undue hardship for the applicant and her family if she were required to apply for landing from the Philippines rather than from within Canada. Hardship for the applicant was essentially the necessity to return to the Philippines to make application there and to await for perhaps up to two years, said to be the normal time, before a decision on an application is made. From the perspective of the family it was said that the hardship foreseen would be the applicant's separation from the daughter and her family in Canada at a crucial time in the daughter's life, while her medical treatment was continuing and her infant child was of such tender years.
The applicant had filed a further affidavit on December 10th, 1996 following the decision in question, which included a letter from her daughter's physician indicating the daughter required continuing radiotherapy, that she was extremely depressed and required moral support of her mother during continuing treatment. Counsel for the respondent Minister urged that the further affidavit not be considered since it and the exhibited letter from the physician were not matters that had been before the decision maker in April 1996. In my view, the subsequent affidavit neither helps nor hinders the applicant's case. It does not present additional evidence to be taken into consideration in assessing the decision in question for it appears to relate to the importance of the applicant being able to assist her daughter during the latter's treatment and recovery period. Presumably that period will not last indefinitely. The physician's letter may be relevant if application were made for a further extension of the visitor visa granted to the applicant.
In written submissions on behalf of the applicant it was urged that the duty of fairness requires that at the minimum the applicant have some opportunity to state her case. That is, of course, an important and respected principle. In my view, it was met in the circumstances here since the applicant made written application for landing from within Canada on humanitarian and compassionate grounds, and she was subsequently interviewed in relation to that application. She had full opportunity to present her case, before the decision was made in relation to her application.
Written submissions also suggested that the applicant is entitled to have all of the relevant circumstances considered by the decision maker. I agree with that, but I find no evidence here and no basis for argument that the relevant circumstances were not taken into consideration by the decision maker. From the notes of the officer concerned the relevant factors advanced by the applicant and those included within departmental guidelines for consideration of H & C applications were taken into account.
The principal issue here raised is that the officer did not give appropriate weight to the hardship which the applicant perceived would have to be endured if she were required to return to the Philippines to apply for landing from within Canada. That is an issue of weight to be given to that consideration. It is not a matter that the decision maker here overlooked in concluding, that "no undue hardship" would be created if the applicant were required to leave Canada to apply for landing. In my opinion, that conclusion was open to the officer on the basis of the evidence presented to her. A decision not to recommend that the applicant be permitted to apply for landing from within Canada, as an exception to the normal requirements set out in the Immigration Act, in this case, does not constitute an error in law or a failure to observe natural justice.
The application is dismissed.
"W. Andrew MacKay"
Judge
Toronto, Ontario
February 19, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1386-96
STYLE OF CAUSE: TERESA ESPENA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: FEBRUARY 18, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MACKAY, J.
DATED: FEBRUARY 19, 1997
APPEARANCES:
Mr. Roop N. Sharma
For the Applicant
Ms. Bridget O'Leary
For the Respondent
SOLICITORS OF RECORD:
Roop N. Sharma
1-942 Gerrard St. East
Toronto, Ontario
M4M 1Z2
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1386-96
Between:
TERESA ESPENA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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