Federal Court Decisions

     IMM-3599-95

BETWEEN:

     ANA MARGARITA GARCIA

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

JEROME, A.C.J.:

     This is an application for an order setting aside the decision of a Senior Immigration Officer that the applicant did not have sufficiently compelling humanitarian and compassionate considerations to warrant an exemption under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2. At the hearing of this matter in Toronto, Ontario, on October 30, 1996, I dismissed the application indicating these written reasons would follow.

     Ms. Garcia, a citizen of El Salvador, entered Canada in April of 1983 as a Convention refugee. She has continued to reside here since that time but has never obtained legal status. On July 6, 1995, she applied for a visa exemption and landing in Canada based on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Act. On November 9, 1995, the applicant was interviewed by an immigration officer. By decision dated December 1, 1995, the officer determined that there were insufficient humanitarian and compassionate grounds to warrant approval of the application. Ms. Garcia was notified of the decision by letter dated December 1, 1995.

     The applicant now seeks to have the decision set aside on the grounds that the immigration officer erred by failing to consider the severe sanctions or inhumane treatment which Ms. Garcia alleged she would face if deported to El Salvador. It is also argued that the officer failed to take into account that the applicant had an offer of employment available to her.

     As I stated at the hearing of this matter, the decision of an immigration officer to grant an exemption pursuant to subsection 114(2) of the Act is a highly discretionary one which attracts a minimal duty of fairness. In Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238, the Court of Appeal made the following comments at p. 239:

In a case such as this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions which concern her.

     In the present case, I am satisfied that Ms. Garcia received a full and fair review of her humanitarian and compassionate application. There is no indication that the immigration officer failed to consider her submissions regarding the alleged severe sanctions or inhumane treatment she would face if returned to El Salvador. The applicant informed the officer that she had previously claimed Convention refugee status due to her membership in a union and also made submissions regarding the deaths of various family members in the period following her negative Convention refugee decision. However, the officer concluded that there was no nexus between those deaths and the applicant's grounds for claiming Convention refugee status.

     In addition, the immigration officer considered the issue of employability. Although Ms. Garcia had been employed since mid-1994, her employment in the low-skilled capacity as a cleaner was insufficient to warrant a positive recommendation. The officer also noted that the applicant had not taken courses or made any other attempts to improve her occupational qualifications.

     After reviewing the material before me and having given careful consideration to the oral and written arguments of the parties, I am satisfied that the immigration officer did not err in law or in fact nor did she breach any duty of fairness.

     For these reasons on October 30, 1996, I dismissed the application.

O T T A W A

January 17, 1997                      "James A. Jerome"     

                             A.C.J.