DATE: 20030714
Docket: IMM-2770-01
Citation: 2003 FC 874
Ottawa, Ontario, 14th day of July, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
ALLA RYZAK
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the negative decision of the Immigration Officer, Mr. John Battista, (the "officer") dated May 22, 2001, concerning the application of Mrs. Alla Ryzak (the "applicant") and her daughter, Miss Elena Ryzak, for permission to apply for permanent residence from within Canada on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("H & C application").
[2] The judicial review hearing of May 9, 2002, was adjourned sine die to allow counsel to conduct further cross-examinations of the affidavits of John Battista, the immigration officer whose decision is under review, and Darlene Phillips, an employee in the Immigration Law Section of the Department of Justice. I note, from the respondent's book of authorities, that counsel for the respondent wrote to counsel for the applicant on three occasions to inquire whether new evidence was to be produced by the applicants. No further evidence was filed and the judicial review application resumed on June 26, 2003.
Facts
[3] The applicants are citizens of Israel. The mother was born in 1957 and the daughter in 1982. Mrs. Alla Ryzak, the main applicant, will be referred to as the "applicant".
[4] On April 28, 1998, the applicants entered Canada as visitors for 6 months. A few days after her arrival, the main applicant met her husband, Mr. Zubkov, a permanent resident of Canada. In September 1998, the applicant made a Convention refugee claim. She then married Mr. Zubkov in February 1999 and filed her first H & C application on March 15, 1999. This application was sponsored by Mr. Zubkov and is the subject of the current judicial review application. The refugee claim was abandoned in May 1999.
[5] On April 6, 2000, the officer wrote to the applicant, requesting further documents in relation to the H & C application, and giving the applicant the opportunity to make further submissions.
[6] On May 4, 2000, the officer received a letter from Mr. Zubkov in which the author stated that he had separated from the applicant and wished to withdraw his sponsorship of the applicants and consequently stated that he would not be submitting the requested documents.
[7] By letter dated June 6, 2000, the officer informed the applicant that her husband had withdrawn his sponsorship. He stated: "I am sharing this information with you, in light of this change of circumstances, in order to give you the opportunity to make any submissions related to this matter." The officer requested that any information be provided in writing within 30 days from the date of the letter.
[8] The affidavit of the officer states that he received no further information in response to the June 6, 2000, letter.
[9] The applicant states that she made a subsequent H & C application on December 19, 2000. Her grounds in that application were that both she and her daughter had newly-born Canadian children, that she was a victim of spousal abuse, and that she and her daughter were both integrated into Canadian society.
Officer's Decision
[10] In his letter of May 22, 2001, the officer states that the applicant's file was reviewed on May 15, 2001, and he determined that an exemption would not be granted. In the officer's memorandum to file, he states that he considered the following grounds stated in the H & C application: that the applicant has been in Canada for three years; that she is a widow; and that she is married to a permanent resident.
[11] The officer noted that Mr. Zubkov had withdrawn his undertaking; that the applicant had not responded to an opportunity to rebut any issues regarding the withdrawal of sponsorship; that she had not worked in Canada; that the applicants have no relatives in Canada; and that the applicant has a father and sister overseas.
[12] The officer stated that he was not satisfied that the applicants had become established to the point where it would cause them undue and disproportionate hardship to leave Canada and seek an immigrant visa following the normal legislative requirements. For these reasons, he was not satisfied that there were sufficient grounds to warrant an exemption from subsection 9(1) of the Immigration Act.
Issues
[13] Is the officer's decision reviewable on the basis that: (i) he did not give the applicant an opportunity to disabuse him of his concerns regarding the withdrawal of sponsorship; (ii) he did not interview the applicants before making his decision; and (iii) he did not consider the applicant's status as a victim of domestic violence and failed to consider the applicants' Canadian-born children?
Standard of Review
[14] Pursuant to subsection 114(2) of the Immigration Act, the Minister is authorised to exempt persons from any regulations made under subsection 114(1) or to otherwise facilitate their admission into Canada where he is satisfied that such exemption or facilitation should occur owing to the existence of humanitarian or compassionate considerations. The process is highly discretionary, and as such, the onus is on the applicant to satisfy the officer that there are sufficient humanitarian and compassionate grounds to warrant a favourable recommendation. The standard of review applicable to a decision made under subsection 114(2) of the Immigration Act is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817.
Analysis
[15] It is first submitted by the applicant that the officer attached "significant weight" to the fact that the sponsor husband unilaterally withdrew his sponsorship undertaking. The applicant contends that she never consented to the withdrawal of sponsorship and should have been afforded an opportunity to disabuse the "Minister of a critical impression against her."
[16] Section 7.3 of the former IP5 Guidelines, in effect at the time the officer's May 22, 2001, decision was made, deals with the withdrawal of a sponsorship. It notes as follows:
7.3 Withdrawal of sponsorship
A sponsorship, once entered into by the sponsor and CIC (federal government), can only be set aside with the consent of both parties. Generally, requests from sponsors to withdraw an undertaking should only be accepted prior to an H & C decision. After a positive H & C decision, do not cancel the undertaking, even in the case of marriage breakdown.
If the sponsorship is withdrawn before the H & C decision is made
- inform the applicant that the sponsorship has been withdrawn
- give the applicant an opportunity to provide additional information in light of the change of circumstance
- make the H & C decision when all relevant facts are available
Note: It is important that you be sensitive to issues of family violence
[17] In the present case, the respondent submits that the June 6, 2000, letter purported to inform the applicant of the withdrawal and give her an opportunity to provide additional information, and therefore argues that the requirements of IP5 were met by the officer.
[18] Counsel for the applicant, in oral submissions, stated that the June 6, 2000, letter was never received by the applicant, alleging the letter was forwarded to her estranged husband's address. The applicant produced no evidence to support these allegations, notwithstanding the lengthy adjournment provided to the parties for this purpose. There is, therefore, no evidence to indicate that the letter was not received by the applicant nor is there evidence that the applicant advised the respondent of a change of address.
[19] I find, based on the evidence before me, that the sponsorship application was withdrawn before the H & C decision was made. Therefore, according to the requirements of IP5, noted above, an applicant must be informed that a sponsorship has been withdrawn and be given the opportunity to make further submissions. I find, based on the evidence, that the applicant was informed as a result of the June 6, 2000, letter from the officer that the sponsorship was withdrawn and that she was given the opportunity to provide additional information. In this case, it is evident from the officer's letter of June 6, 2000, that both of these requirements were met, since the officer stated:
A letter from your husband was received at this office advising that you and he, Yevgeniy Zubkov, are now separated. He advises me that he is withdrawing the sponsorship for you and your daughter.
I am sharing this information with you, in light of the change of circumstances, in order to give you the opportunity to make any submissions related to this matter.
[20] The applicant did not make any further submissions on the issue after her receipt of the June 6 letter. Consequently, I find the applicant's first argument to be without merit.
[21] Secondly, the applicant submits that the procedural fairness required that she be given an opportunity to confront the concerns of an immigration officer and to answer them, particularly where there is a "negative pre-disposition" on the part of the decision-maker.
[22] The respondent submits that Baker, supra, clearly provides that an oral hearing is not a general requirements for H & C decisions and that there was no breach of procedural fairness in the circumstances of this case.
[23] The officer based his decision on a number of factors: the fact that Mr. Zubkov had withdrawn his undertaking and the applicant had not responded to an opportunity to rebut any issues concerning this; the fact that the applicant had not worked in Canada; the fact that she had no relatives in Canada but had relatives overseas; and his finding that the applicant would not suffer disproportionate hardship should she be required to leave Canada and apply for an immigrant visa in the regular manner. It is generally recognized that an officer has discretion as to whether or not to call an interview. In Baker, supra, the Supreme Court reiterated that interviews are not an essential requirement of the principles of fairness.
[24] I am of the view, in the circumstances of this case, that it was not unreasonable for the officer, in the exercise of his discretion, not to call for an interview. The officer had before him sufficient information to make a reasoned decision and the applicant did not respond to an opportunity to address the revocation of sponsorship. I find that the applicant's right to procedural fairness was not violated.
[25] Thirdly, the applicant submits that in her second H & C application (purportedly filed December 19, 2000 - after the first H & C application but before the rendering of the officer's decision) she demonstrated that she came within the ambit of section 8.10 of the IP5 Guidelines, in force on May 22, 2001, which requires an officer to consider whether an applicant has been abused by her spouse and whether an applicant has a Canadian-born child. The applicant submits that she had to leave her marriage as a consequence of the abuse she suffered by her Canadian husband. The applicant also argues that the existence of her Canadian-born child should have also been taken into account under the above guidelines in assessing her H & C application.
[26] The respondent submits that the applicant made no allegation that both applicants had newly-born children, nor that they were victims of domestic violence. The respondent notes that the application was based on the marriage to a permanent resident and the problems she would have in applying for landing from abroad. The respondent submits that the applicants have not advanced any evidence that the issues of domestic violence and Canadian-born children were before the officer when the first H & C application was considered, but that the only specific problems referred to in the application were stated as follows: "I'm refugee. I have problems back home". Consequently, the respondent submits that the officer cannot be faulted for failing to consider information that was not before him.
[27] I find no documentation concerning the second H & C application in the certified tribunal record, nor is there any evidence before me to suggest that the officer was apprised of the applicant's allegations that she had been abused by her husband or that she and her daughter had Canadian-born children.
[28] At the hearing, counsel for the applicant argued that the Officer had a duty to further inquire with respect to her Canadian-born child and her domestic abuse allegations, even though these issues were not raise before the officer. In my view this argument is without merit. It is well- established that on an application for judicial review the Court is bound by the record that was filed before the decision maker whose decision is under review: Asafov v. Canada (Minister of Employment and Immigration) [1994] F.C.J. No. 713 (QL). Consequently, I find that the officer did not err in failing to consider these issues and facts that were not before him. In the circumstances, I find that his decision was reasonable in light of the evidence produced in the first H & C application.
Conclusion
[29] For the reasons expressed above, I find that the applicant's right to procedural fairness was not breached. I also find the officer's decision to be reasonable in light of the evidence before him. Consequently, the application for judicial review will be dismissed.
Certified question
[30] The applicant proposes the following question for certification:
What test must an immigration officer direct his mind to in order to give full and fair consideration to an Humanitarian and Compassionate application properly before him?
[31] I am in agreement with the submissions of counsel for the respondent that the proposed question is too general and cannot be determinative of the case. Consequently, the proposed question will not be certified as it does not meet the test for certification, it is not a serious question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of John Battista dated May 22, 2001, is dismissed.
2. No question of general importance is certified.
"Edmond P. Blanchard"
Judge
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2770-01
STYLE OF CAUSE: Alla Ryzak v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 26, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: July 14, 2003
APPEARANCES:
Mr. Frederick Wang FOR APPLICANT
Mr. Martin Anderson FOR RESPONDENT
SOLICITORS OF RECORD:
Frederick Wang FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario