Date: 19990310
Docket: IMM-1515-98
BETWEEN:
MILKA LUKIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. I-2 [as amended] in which Milka Lukic (hereinafter "the applicant") requests the Court to review and, among other things, set aside a decision, dated December 15, 1997 and signed by immigration officer P.M. Johnson (hereinafter "the officer"), refusing her application to be granted permanent residence status on humanitarian and compassionate grounds under subsection 114(2) of the Immigration Act , R.S.C. 1985, c. I-2 [as amended].
| B. THE FACTUAL BACKGROUND |
[2] The applicant is 78 years old; she was born in Croatia, where her siblings still live. Her husband is dead. She is an ethnic Serb and was issued in Belgrade with a Yugoslav passport, although she alleges that she is not a citizen of the Yugoslavia that now comprises Serbia and Montenegro. The applicant also states that she is a citizen of Croatia but, as a member of the ethnic Serb minority, she is afraid to return there.
[3] The applicant came to Canada in 1995 to visit her daughter when she was ill. Her daughter is a Canadian citizen and has lived in Canada since 1975. The applicant made a refugee claim in 1996, but it was rejected by the Refugee Division. Immediately before coming to Canada the applicant had lived in Belgrade with her son and his wife since 1991, but is no longer welcome in their home. Her only income is a small pension.
[4] The applicant was invited to attend an interview at the Scarborough office of the Canada Immigration Centre in November 1997 in connection with her application for permanent residence status under subsection 114(2). She was accompanied by her daughter, who acted as an interpreter for her mother, who speaks no English.
[5] The interview lasted no more than 15 minutes and was conducted in a fairly public part of the office, apparently because the office was in the process of relocating. The immigration officer checked the documentation that she had requested the applicant and her daughter to bring, including the applicant"s passport and documents relating to their financial position. The daughter had been employed, but since she started to experience health problems in 1994 she has been in receipt of social assistance benefits, as has the applicant herself.
[6] The officer asked the daughter to complete a family tree and asked the applicant whether she attended church and whether there was anything else that she wished to tell the officer. As they were leaving, the officer also asked the applicant why she was not applying for permanent residence status from outside Canada.
[7] The letter of decision was in the standard form, and simply advised the applicant that her application had been rejected and that arrangements would be made for her removal. When her daughter wrote to ask for reasons, she was told that there was no legal obligation for detailed reasons to be provided but that the officer"s notes on which the decision was based were kept on file. The applicant did not ask at that time for a copy of these notes, but they were obtained under rule 318(1) of the Federal Court Rules, 1998 SOR/98-106 after she had instituted proceedings for an application for judicial review.
[8] The officer"s notes indicated that she had considered that the applicant would suffer no sanction if returned to Yugoslavia, that she had a very modest income and that she could not stay with her son in Belgrade. The notes also set out in some detail the financial circumstances of the applicant and her daughter, and in particular their receipt of social assistance benefits. The officer concluded: "it is obvious that if allowed to remain in Canada [the applicant] will be a burden to Canadian society."
| C. ISSUES AND ANALYSIS |
[9] Counsel for the applicant challenged the validity of the officer"s decision on three grounds. First, he argued, while the officer was under no legal obligation to call the applicant for an interview, once she did so she was obliged to conduct the interview in accordance with the duty of fairness: Kaur v. Minister of Employment and Immigration (1987), 5 Imm. LR. (2d) 148 (F.C.T.D.).
[10] Counsel contended that the officer had failed to act fairly because the interview lasted only 15 minutes, and most of this time was taken up with document-checking, rather than with questions posed by the officer that were designed to elicit from the applicant a full account of those aspects of her situation that might constitute compassionate and humanitarian grounds for the purpose of subsection 114(2). Moreover, the officer"s conduct of the interview, and the physical circumstances in which it took place, exuded an air of casualness and lack of seriousness.
[11] I agree with counsel"s premise that once an applicant under subsection 114(2) has been called for an interview, the duty of fairness applies to the manner in which the interview is conducted, even though fairness does not require that an interview be held. However, I do not agree that the interview in this case was procedurally unfair.
[12] There is no minimum length of time that an interview must last in order to be fair. Much will obviously depend on the nature of the particular claim being advanced, and the amount of relevant information that has already been communicated to the officer through written submissions, which had been made by counsel in this case, and other documentary material.
[13] The question is whether, in light of all the circumstances, the interview was sufficiently thorough to enable the officer to be reasonably well informed about the basis of the applicant"s claim. Counsel for the applicant was unable to identify any aspect of her claim for a favourable decision under subsection 114(2) that was neither communicated to the officer, nor referred to in her notes.
[14] Counsel did say, however, that the immigration officer might have explored further the nationality status of the applicant and the nature of her passport, which he suggested had been issued by the Yugoslav authorities simply because she was an ethnic Serb, even though she was a citizen of Croatia. However, since there was no suggestion that the Yugoslav authorities would prevent the applicant from returning or remaining there, this was not an issue of any real relevance to the applicant"s claim.
[15] In my view, in the circumstances of this case, the interview was adequate to enable the officer to inform herself about the applicant"s situation. Moreover, I am mindful of the fact that in Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82 (F.C.A.), it was said that in the context of the making of decisions under subsection 114(2) the duty of fairness has a low procedural content.
[16] No doubt it would have been preferable if the interview had been conducted in an enclosed interview room, and in more sedate conditions. However, I am not persuaded that these circumstances rendered the interview procedurally unfair. There was no evidence that the conditions either deprived the applicant of a reasonable opportunity to make her representations, or gave rise to a reasonable apprehension that the officer was biased.
[17] Second, counsel for the applicant argued that the officer was under a duty to provide the applicant with an indication of the factual basis of the decision. No doubt the fact that it was also said in Shah, supra, that reasons are not required as a matter of fairness for decisions made under this subsection explains why counsel confined himself to the relatively modest demand for an indication of the factual basis of the decision, rather than full reasons.
[18] He relied on Marques v. Canada (Minister of Citizenship and Immigration) (1995), 27 Imm. L.R. (2d) 209 (F.C.T.D.) as authority for the proposition that the Court must have before it some explanation of the officer"s exercise of discretion to enable it to review the legality of the decision in question. However, Marques is easily distinguishable, since the applicant in this case obtained a copy of the officer"s notes, and they make it quite clear why she refused the application.
[19] In the absence of a statutory duty to provide a statement of reasons for decision, I do not believe that the failure to provide an explanation of the decision prior to the request made under rule 317 constituted an error of law.
[20] Third, counsel for the applicant maintained that the officer had fettered her discretion by treating the fact that the applicant and her daughter were not financially self-sufficient as determinative of her claim to be granted permanent residence status on humanitarian and compassionate grounds. In my opinion this argument is misconceived.
[21] A decision-maker unlawfully fetters her discretion only when she treats one factor as decisive, regardless of the presence or strength of countervailing considerations. On the facts of this case, the notes clearly indicate that the officer had considered factors militating in favour of granting the application, but found them insufficiently compelling when weighed against the facts that the applicant"s daughter had insufficient financial means to sponsor her mother and that the applicant was unlikely ever to be self-supporting if permitted to remain in Canada.
[22] Counsel for the applicant"s objection could more accurately have been expressed by saying that the officer gave so much weight to the financial considerations, and so little to the other factors, that she exercised her discretion unreasonably. On the facts of this case, and in light of the narrow grounds of judicial review applicable to the broad discretionary nature of the decisions made under subsection 114(2), I am not satisfied that the applicant has discharged the heavy burden of proving an abuse of discretion.
[23] For these reasons the application for judicial review is dismissed. After hearing submissions from counsel, I have decided that there is no serious question of general importance arising from this decision or the reasons that I have given for it to justify me in certifying a question pursuant to subsection 83(1) of the Immigration Act.
"John M. Evans"
J.F.C.C.
TORONTO, ONTARIO
March 10, 1999.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1515-98
| STYLE OF CAUSE: MILKA LUKIC |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: FRIDAY, FEBRUARY 26, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: EVANS J. |
DATED: WEDNESDAY, MARCH 10, 1999
APPEARANCES: Mr. Roy Tofilovski
For the Applicant
Ms. Lori Hendricks
For the Respondent
SOLICITORS OF RECORD: Roy Tofilovski
Barrister & Solicitor
902-372 Bay Street,
Toronto, Ontario
M5H 2W9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990310
Docket: IMM-1515-98
Between:
| MILKA LUKIC |
| Applicant |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER