Date: 20000121
Docket: IMM-3071-98
Between :
YEN NGOC QUACH
APPLICANT
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
RESPONDENT
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of the May 7, 1998 decision of Visa Officer Gillian Tao-Yin Wan (the visa officer) of the Canadian High Commission in Singapore refusing the applicant's application for permanent residence. The applicant seeks to have this decision quashed and to either compel the respondent to process her application in Canada or direct it to another visa officer for reconsideration.
Facts
[2] The applicant, Mrs. Yen Ngoc Quach, and her sponsor, Mrs. Yen Chinh Quach En, are sisters. According to the applicant, they were both born in Cambodia and lived there until 1975 when they fled to Ho Chi Minh City, Vietnam. Mrs. En left Ho Chi Minh City for Indonesia in 1979, then immigrated to Canada under the Indochinese Refugee Program in 1980. She and her husband own and operate a mushroom farm in British Columbia.
[3] Mrs. En submitted an undertaking of assistance to sponsor the applicant and her family as assisted relatives in Canada, which was received by the Canadian Immigration Centre (CIC) on May 16, 1990. However, the applicant submits that she was unable to initiate the application procedure for permanent residence in Canada because of the political regime in Vietnam. The applicant returned to Cambodia in September 1990.
[4] On July 27, 1993, a letter was sent to the applicant by the Canadian Embassy in Thailand informing her that her file would be closed if she did not return her completed application within sixty days. On February 18, 1997, Mrs. En informed the Canadian Embassy of the applicant's new address in Cambodia and the applicant was sent a new application kit. She indicated on the forms that her intended occupation was "farmer" and that for the past ten years, she had been self-employed.
Issues
[5] This matter raises two issues:
| (i) Did the visa officer err in failing to provide the applicant with an opportunity to address the issue of whether she fit the immigrant criteria as a self-employed person? |
| (ii) Did the visa officer err in deciding that there were insufficient factors to recommend a humanitarian and compassionate review? |
Analysis
[6] With respect to the first issue, the applicant has failed to convince me that the visa officer committed any reviewable error. I am satisfied, upon reviewing the evidence, including Mrs. En's letters of April 10, 1990 explaining her sponsorship, of October 2, 1990 to CIC and of May 22, 1998 to the Canadian High Commission in Singapore, that the applicant did not establish that she met the definition of a self-employed person. Furthermore, because the applicant did not indicate in her application that she intended to be self-employed in Canada, the visa officer was not required to provide her with a specific opportunity to address the issue of whether she fit the immigrant criteria with respect to this alternate category of immigrants: self-employed persons. Since visa officers are generally not required to assess an applicant in alternate occupations unless the applicant has put them forward (see Hajariwala v. Minister of Employment and Immigration et al. (1988), 23 F.T.R. 241), I am of the view a fortiori that the visa officer in this case was not obliged to assess the applicant as a self-employed person when she had not indicated an intention to be self-employed in Canada on her application. I am also of the opinion that such a different category of immigrants, in the circumstances, can certainly not be said to be inherent to the occupation indicated by the applicant on her application.
[7] With respect to the second issue, the standard of review in humanitarian and compassionate grounds cases was set out by L'Heureux-Dubé J. in Baker v. The Minister of Citizenship and Immigration et al. (July 9, 1999), 25823, 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. |
[8] 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. . . . |
[9] In the case at bar, the visa officer in her CAIPS notes observed that the applicant and her family had family connections in Cambodia. She also noted that the applicant and her family were able to find work after their repatriation to Cambodia and that her children were able to attend school. She further commented that the applicant and her family "do not appear to have a std [sic] of living worse than their peers". Neither the applicant's application nor her family's mention flight from genocide in Cambodia or subsequent hardship. In my opinion, the visa officer was alert to humanitarian grounds. Based on the evidence before her, her decision was reasonable.
[10] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
January 21, 2000
Date: 20000121
Docket: IMM-3071-98
Ottawa, Ontario, this 21st day of January, 2000
Present : The Honourable Mr. Justice Pinard
Between :
YEN NGOC QUACH
APPLICANT
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
RESPONDENT
ORDER
The application for judicial review of the May 7, 1998 decision of Visa Officer Gillian Tao-Yin Wan of the Canadian High Commission in Singapore is dismissed.
JUDGE