Date: 20031031
Docket: IMM-5117-02
Citation: 2003 FC 1272
Ottawa, Ontario, this 31st day of October, 2003
Present: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
MARTIN CORONADO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Martin Coronado is 26 years old and a citizen of Mexico. His father, mother and only brother immigrated to Canada as permanent residents in September 2001. He seeks judicial review of the decision rejecting his application for an exemption from the need to obtain an immigrant visa on the basis of humanitarian and compassionate considerations [ss. 25(1)] of the Immigration and Refugee Protection Act, S.C. 2001, c.27 ("the Act").
Facts
[2] Mr. Coronado did not obtain a permanent resident status like the other members of his family because when his application was processed with the application of his father, it was found that he did not meet the definition of "dependent", having interrupted his studies a few months before his interview with the immigration officer dealing with his family's application.
[3] At this interview, held in June 2001, his father was advised by the said officer that there was a possibility that his son Martin could follow the family in Canada with a student visa, explaining however, that in such a case, he would be obliged to return to Mexico after his studies.
[4] Following up on this suggestion, Mr. Coronado filed an application for a student visa with the Canadian Embassy in Mexico. Although he was accepted as a full-time history student at the Carleton University in Ottawa, his application was refused on November 21, 2001 because it was found that he had insufficient links to Mexico to ensure his return there after the completion of his degree. He was advised of his refusal about two months after his family had departed for Canada.
[5] The decisions with respect to his application for permanent resident and for a student visa were not challenged.
[6] On November 22, 2001, Martin Coronado came to Canada as a visitor. This status allowed him to stay until May 22, 2002. On February 18, 2002, he applied for an exemption under ss. 25(1) of the Act. His application was rejected after an interview on September 9, 2002.
[7] In the reasons attached to his letter dated September 17, 2002, the immigration officer recognizes that, except for a period of about three months during which he studied in Germany, Mr. Coronado spent his entire life living with his family and that he is, to a large extent, financially dependent upon his father. He also acknowledges that the main reason for making this application for an exemption was that Mr. Coronado wanted to fulfill his family's life dream of living together outside of Mexico.
[8] In evaluating Mr. Coronado's application, the immigration officer clearly focusses on whether he would suffer unusual and undeserved hardship if he had to continue his life as an adult in a country other than the one in which his family lives. In doing so, he considers the same criteria, one would use, to assess the best interest of a child, (even though such criteria did not strictly speaking apply to this applicant).
[9] Among other things, the immigration officer reviews the age of Mr. Coronado, how he financially supported himself in the past, the nature of his previous employments, his ability to speak several languages, his ability to return to Mexico because of his Mexican citizenship, his connection to the community in Canada and in Mexico, the country conditions in Mexico, his access to education there and the fact that given his age and his good health, he does not require a caregiver.
[10] In discussing his family's life dream of living together in Canada, the immigration officer notes that when his family moved to Canada, they knew that their son Martin would not be allowed to enter Canada otherwise than as a student.
[11] He also considers that, as of November 21, 2001, Mr. Coronado and his family knew that it would not be possible for him to study in Canada and that there was no evidence that the family explored the option of settling in another country or of going back to Mexico to be with their son. He then looks at the financial hardship on Mr. Coronado's father (now a Canadian permanent resident), if he had to fund Mr. Coronado's study in Mexico as opposed to Canada. Using the documentation produced by Mr. Coronado at the interview, which included his father's bank and asset statements as of August 31, 2002, he declares himself satisfied that the family has sufficient financial resources and would not suffer undue financial hardship.
[12] The immigration officer also states:
I agree that he is attached to his family as he has always lived with them, and that it would be easier for him to continue his life as an adult with their assistance. I have considered the level of Mr. Coronado's dependency on his parents, Francisco Javier Coronado and Concepcion Vargas.
Issues
[13] Mr. Coronado argues that the immigration officer breached his duty of natural justice and procedural fairness i) by not giving Mr. Coronado's father an opportunity to be heard, and ii) by failing to update the financial information on file and to investigate directly with his parents, the real financial impact of his eventual return to Mexico.
[14] Mr. Coronado also submits that the immigration officer ignored and misconstrued the evidence in front of him and failed to consider that the Act expressly mentions reunification of families as one of its main objectives. Additionally, the officer failed to consider the important emotional and psychological hardship his family would suffer if he were to return to Mexico.
Analysis
Standard of Review
[15] It is settled law that the standard of review applicable to H & C decisions made by an immigration officer is reasonableness simpliciter (Kim v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 43 online: QL, at para. 11-12, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 online: QL, at para. 62-63, Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125 online: QL, and Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17 online: QL, at para. 47 and 55).
[16] The Court will also review the decision to ensure that it is not based on an error of law or that the officer did not breach rules of natural justice or procedural fairness. On these grounds, the standard of review will be correctness.
[17] The duty of fairness requires that those who's interests are significantly affected by a decision be given a meaningful opportunity to present their views.
[18] Does this mean, as argued forth by Mr. Coronado, that the officer had to give his parents an opportunity to be heard in an interview? I do not think so.
[19] It is clear that Mr. Coronado's father and mother knew that they could present their views in writing. This right is explained in the section of the Immigration Manual entitled "Immigrant Applications in Canada Made on Humanitarian or Compassionate Grounds" (IP-5), a document expressly referred to in the applicant's memorandum:
Adult applicants may present submissions from, or on behalf, of members of their families, setting out the family members' views...
[20] Mr. Coronado and his family were represented by counsel and, as a matter of fact, Mr. Coronado's father exercised that right when he wrote a letter supporting his son's application on January 27, 2002. In this letter, no emphasis is put on the emotional or psychological hardship that would result from a refusal nor is there any indication that it would be impossible for Mr. Coronado's father to support his son if he were to return to Mexico.
[21] The Court also notes that the applicant presented his father's financial statement for the period up to August 31, 2002 (that is just a few days before his interview on September 9, 2002) and that he did not apprise the immigration officer that his father's financial position would change significantly in the coming months. In his January letter, Mr. Coronado's father had mentioned that his house was rented but that it was to be sold shortly. At the interview, Mr. Coronado confirmed to the immigration officer that the house in Mexico was rented.
[22] Finally, Mr. Coronado's parents did accompany him on September 9, 2002 and when asked to wait in the hallway, they never requested a personal interview.
[23] In Baker v. Canada (Minister of Citizenship and Immigration), _1999_ 2 S.C.R. 817, [1999] S.C.J. No. 39 online: QL, Justice L'Heureux-Dubé said at para. 34:
...In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application... Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or [page 844] notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of the participatory rights required by the duty of fairness in this case.
[24] Our Court reiterated that there is no duty to even interview the applicant on an H & C application in Carreiro v. Canada (Minister of Citizenship and Immigration), [2002] FCT 342, [2002] F.C.J. No. 449 online: QL.
[25] As in Carreiro, above, the immigration officer did not rely on any extrinsic evidence to come to his decision, rather he relied on the evidence provided by the applicant and by his father.
[26] In the circumstances, I cannot see any reason justifying the imposition of a duty that would be more stringent than the one found satisfactory in Baker and Carreiro, above. It may have been more considerate for the immigration officer to meet with the parents who were so evidently available on September 9, 2002 but his failure to do so does not amount to a reviewable error.
[27] I am satisfied that there was no need to update the financial information provided by Mr. Coronado at the interview. The documentation was not dated and the officer was not alerted to the fact that it might change dramatically in the coming months.
[28] I am not satisfied that the immigration officer misconstrued the evidence or unduly relied on Mr. Coronado's age to conclude that he would not suffer unusual hardship. The officer clearly considered numerous factors other than his age (see para. 9 above). He also considered the emotional attachment of Mr. Coronado to his family.
[29] I agree that the officer needed to also be alert and alive to the interest of Mr. Coronado's parents. In my view, he was.
[30] The officer considered the financial impact of his decision on the family and the only other issue raised by Mr. Coronado, the impact of his return to Mexico on the family's dream of living together in Canada. He weighted these factors in light of other information at hand, including the fact that this family had only recently immigrated to Canada and when it did, it knew that Mr. Coronado may not be able to follow them. The immigration officer's decision does not mean that Mr. Coronado will not be able to ever join his family in Canada.
[31] There was no obligation on the officer to expressly refer to the concept of family reunification in his decision. I am not satisfied that he failed to consider it.
[32] The Court cannot reweigh these factors and substitute its own view to that of the officer for he made no reviewable error.
[33] Mr. Coronado proposed the following question for certification:
When an immigration officer determines that a particular factor or issue (for example, the financial situation of Mr. Coronado's father) will weigh heavily on his decision, does he or she have the obligation to ensure that the information on file is up-to-date in that respect?
[34] As indicated above, this question would not be determinative of an appeal in the present case. In any event, such an issue is very much fact-based and would not be of general interest.
[35] The Court finds that there are no question of general interest to be certified in this case.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
2. No question of general interest is certified.
"Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5117-02
STYLE OF CAUSE: Martin Coronado v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 14, 2003
REASONS FOR ORDER AND ORDER: Gauthier, J.
DATED: October 31, 2003
APPEARANCES:
Me Pierre Bourget FOR APPLICANT
Me Catherine Lawrence FOR RESPONDENT
SOLICITORS OF RECORD:
Me Pierre Bourget FOR APPLICANT
Bourget & Bourget
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The Department of Justice - Civil Litigation Section FOR RESPONDENT
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