Date: 19991116
Docket: IMM-321-99
Ottawa, Ontario, this 16th day of November, 1999
Present : The Honourable Mr. Justice Pinard
Between :
Yuk Sheung Cheng
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the May 26, 1998 decision of R. Albert Nauman, Programme Manager in the Canadian Consulate General in Buffalo, New York, determining that there were insufficient humanitarian and compassionate grounds for the continued processing of the applicant's application for permanent residence, is dismissed.
JUDGE
Date: 19991116
Docket: IMM-321-99
Between :
Yuk Sheung Cheng
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the May 26, 1998 decision of R. Albert Nauman, Programme Manager at the Canadian Consulate General in Buffalo, New York, determining that there were insufficient humanitarian and compassionate grounds for the continued processing of her application for permanent residence.
[2] The only issues raised before me by the applicant are:
| (i) whether the Programme Manager erred in law by misinterpreting the words "humanitarian and compassionate" or by fettering his discretion by adhering to the guidelines issued by the Minister to assist officers in making determinations under subsection 114(2) of the Immigration Act or section 2.1 of the Immigration Regulations, 1978; and |
| (ii) whether adequate reasons were given in support of the Programme Manager's decision. |
[3] The standard of review in humanitarian and compassionate grounds cases is fairly high. In Baker v. Minister of Citizenship and Immigration et al. (July 9, 1999), 25823, L'Heureux-Dubé J., for the Supreme Court of Canada, stated at paragraph 62:
| . . . I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. |
[4] At paragraph 72, L'Heureux-Dubé J. went on to discuss how a decision based on humanitarian and compassionate grounds should be made:
| . . . As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. . . . |
[5] In the case at bar, the Programme Manager stated in his cross-examination that "the guidelines in the exercise of humanitarian/compassionate entry call for unusual hardships, disproportionate hardships - you know, hardships not of the applicant's making. I did not consider that your client fell into that policy guideline". Furthermore, the CAIPS notes indicate that he reviewed the applicant's file. The Programme Manager also stated in his affidavit that he reviewed the application, the CAIPS notes and the letters written by the applicant's counsel and that he took the applicant's family situation into account. During his cross-examination, the Programme Manager stated more specifically that he took into account that the applicant might be alone in Hong Kong in the future. Based on this evidence, he concluded that there were insufficient humanitarian and compassionate grounds to merit continued processing of the application.
[6] In my opinion, the Programme Manager was alert to humanitarian grounds and considered the hardship that a negative decision would impose on the applicant and her family. Based on the evidence before him, his decision was reasonable.
[7] As for the duty to provide the applicant adequate reasons in support of the decision in question, L'Heureux-Dubé J. says in Baker, supra, at paragraph 43:
| . . . The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, where there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. . . . |
[8] In the present case, as in Baker, the notes of a subordinate reviewing officer, which were provided to counsel for the applicant, were taken as the reasons. Combined with the decision of the Programme Manager as stated and paragraphs 7 to 9 of the latter's affidavit, I am satisfied that adequate reasons were given to the applicant in support of the Programme Manager's decision.
[9] For all the above reasons, the application for judicial review is dismissed.
[10] I agree with the respondent that this is not a matter for certification for the following reasons:
| - the applicant has failed to demonstrate why the test contained in the policy of the Department as approved by the Supreme Court of Canada in Baker, supra, is inapplicable to the case at bar; |
| - the applicant had in his possession, prior to the making of his written submissions on the leave application, the CAIPS notes, which contain the notes of the various immigration personnel involved in this matter and which were analogous to the notes in Baker, supra. |
JUDGE
OTTAWA, ONTARIO
November 16, 1999