Date: 20001027
Docket: IMM-5900-99
BETWEEN:
AMAN KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
[1] These reasons arise out of an application for judicial review of a decision of a Senior Immigration Officer made at Calgary, Alberta on the 18th of November, 1999 wherein the Senior Immigration Officer denied the applicant's request to be exempted from the requirement that he apply for and obtain an immigrant visa prior to coming to Canada.
[2] The applicant is a citizen of Pakistan, born the 6th of January, 1966. He arrived in Canada on the 23rd of May, 1996 when he "jumped ship" in Vancouver. He made a claim to Convention refugee status. That claim was denied on the 20th of November, 1997. An application for judicial review of that decision was successful. The applicant's claim to Convention refugee status was reheard and again denied by decision dated the 5th of July, 1999.
[3] The applicant married a Canadian citizen in late July of 1998 after she had converted to Islam. The applicant and his wife also went through a civil ceremony of marriage in early August of 1998.
[4] In September of 1998, the applicant's wife sponsored him for landing from within Canada. In his "request for exemption from immigrant visa requirement", form IMM 5001, the applicant indicated that he spoke English, that his mother tongue was Urdu and that his preferred language, if an interview were to be conducted, was Urdu. In a supplementary form, IMM 5285, in response to a request for an explanation as to why he was applying for landing from within Canada, he wrote:
| I have fear of persecution in the country of Pakistan. Cannot go back to Pakistan and now am married. Do not want to stay away from my wife. |
[5] The applicant and his wife were interviewed separately by the Senior Immigration Officer who took the decision here under review. Both interviews were conducted in English. No objection was recorded by the applicant with regard to the fact that an interpreter fluent in Urdu and English was not present at his interview.
[6] In "notes to file" constituting the reasons for the decision under review, supported by extensive handwritten notes, the Senior Immigration Officer indicated that the answers of the applicant and his spouse to questions surrounding their engagement were "totally contradictory with the exception of where it took place." The officer noted that the applicant and his spouse gave different answers as to where the applicant's mother was presently living. She noted that they "...gave very different stories regarding visits of [the spouse's] mother..." With regard to discrepancies, the officer concluded:
| During the interview there were a few major discrepancies and many small ones. Some alone were not significant. However, together they gave the definite impression that this is a marriage of convenience. Aman has not convinced me that his marriage to [his spouse] is genuinely one of substance and not merely for immigration purposes. |
[7] Finally, the officer went on to note that all aspects of the case had been considered and "...I do not feel that he [the applicant] would suffer any unusual, undeserved or disproportionate hardship, by being required to submit an application at a visa office outside Canada as required by the Immigration Act."
[8] Before me, counsel for the applicant urged that the applicant had not been afforded the requisite degree of fairness through the conduct of the applicant's interview in English when he had requested that any interview be conducted in Urdu. Counsel urged that, in the result, any discrepancies between the answers of the applicant and his spouse to questions at interview, to the extent that they were of any substance at all, were the result of the applicant's limited ability in English and that the Senior Immigration Officer erred in attributing them to any other cause.
[9] Further, counsel for the applicant urged that the Senior Immigration Officer erred in a reviewable manner in failing to consider and to fully assess the risk to the applicant of unusual, undeserved or disproportionate hardship if he were required to return to Pakistan to apply for an immigrant visa.
[10] At the close of the hearing of this matter, I indicated to counsel that this application for judicial review would be dismissed. The short answer to the concern expressed on behalf of the applicant regarding the fairness of the hearing, without an Urdu interpreter, is that, prior to the interview and throughout the interview, the applicant expressed no concern whatsoever that the interview was being conducted in English. In the absence of the expression of such a concern, I am satisfied that the duty of fairness appropriate in the circumstances1 did not require the officer to ensure that an interpreter was present or to inquire as to the comfort level of the applicant in responding to questions in English. Further, on the basis of the very limited evidence provided by the applicant regarding his fear of return to Pakistan, as cited earlier, and having regard to decisions from the Immigration and Refugee Board to the effect that the applicant was not a Convention refugee, no further analysis of risk other than the brief statement provided by the officer in her reasons was required.
[11] Against a standard of review of reasonableness, which I consider to be the appropriate standard of review of a decision such as that here under consideration, particularly in the light of Baker, supra, I am satisfied that this Senior Immigration Officer made no reviewable error. In the result, this application for judicial review will be dismissed.
[12] Counsel for the applicant recommended certification of the following questions:
1. Where an applicant seeking an exemption from the requirement of
| Section 9 (1)of the Immigration Act raises personalized risk as one of the humanitarian and compassionate grounds warranting an exemption pursuant to Section 114 (2) of the Act, is it incumbent upon the Immigration Officials to review, consider and assess this issue? |
2. Where an applicant in a humanitarian and compassionate case
| seeks to challenge the adequacy of interpretation, is it fatal to any such challenge if the applicant fails to raise this issue at the time of the interview? |
[13] Counsel for the respondent urged against certification of either of the foregoing questions as, in her submission, "...neither is a serious question of general importance."
[14] While I am satisfied that each of the questions proposed is a serious question, I am not satisfied, in the context of the decision here under review, that either question can be considered to be of general importance. The answers to the questions proposed would undoubtedly be restricted to the facts that would be before the Court of Appeal on any appeal of my decision herein. In such circumstances, unless the questions were treated as general reference questions, any responses by the Court of Appeal would not be of general application. No question will be certified.
"Frederick E. Gibson"
JUDGE
Calgary, Alberta
October 27, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20001027
Docket: IMM-5900-99
BETWEEN:
AMAN KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5900-99
| STYLE OF CAUSE: Aman Khan v. MCI |
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: October 23, 2000
REASONS FOR ORDER OF GIBSON, J.
DATED: October 27, 2000
APPEARANCES:
Mr. Michael Sherritt FOR APPLICANT
Ms. Tracy King FOR RESPONDENT
SOLICITORS OF RECORD:
Sherritt Greene
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General
Of Canada
Ottawa, Ontario FOR RESPONDENT
__________________1 See Baker vs. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 837.