Ottawa, Ontario, February 7, 2006
PRESENT: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
and
MILJANA RISTIC
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision by C. Arpin, an immigration officer with Citizenship and Immigration Canada (CIC), dated July 11, 2005, In this decision, CIC refused to grant a permanent resident visa exemption to Aleksandar Jovanovic and his spouse (applicants).
[2] The applicants are citizens of Serbia. The male applicant arrived in Canada with his wife, Miljana Ristic, on April 1, 2004. He claimed refugee status, but his claim was denied on October 26, 2004. On December 15, 2004, the applicant applied for a visa exemption, which is contemplated by subsection 11(1) of the IRPA, which reads as follows:
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. |
11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi. |
[3] Subsection 25(2) of the IRPA and section 66 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) provide for permanent resident visa exemption requests:
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I.R.P.A.
25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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L.I.P.R.
25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger -- compte tenu de l’intérêt supérieur de l’enfant directement touché -- ou l’intérêt public le justifient.
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I.R.P.R.
66. A request made by a foreign national under subsection 25(1) of the Act must be made as an application in writing accompanied by an application to remain in Canada as a permanent resident or, in the case of a foreign national outside Canada, an application for a permanent resident visa.
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R.I.P.R.
66. La demande faite par un étranger en vertu du paragraphe 25(1) de la Loi doit être faite par écrit et accompagnée d’une demande de séjour à titre de résident permanent ou, dans le cas de l’étranger qui se trouve hors du Canada, d’une demande de visa de résident permanent.
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[4] The applicant alleges that the immigration officer erred in law in determining that there were no humanitarian and compassionate considerations for exempting the applicant from obtaining a permanent resident visa before coming to Canada. Being handicapped, the applicant claims that returning him to his native country would expose him to excessive difficulties, that he is an Olympic hopeful for Canada in the Paralympics and that he is very close to his brother who lives in Canada. He adds that the immigration officer’s decision was not reasoned.
[5] It is well established that the standard of review for an immigration officer’s decision on humanitarian and compassionate considerations is that of reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.C. No. 39). In this case, the officer took into consideration all of the relevant circumstances of the matter and determined that the application should be denied. There was no error in fact or in law justifying the review of the decision: indeed, the applicant does not raise any in his memorandum, limiting himself to questioning the assessment of the immigration officer as a whole.
[6] Finally, with respect to the issue of the adequacy of the reasons in support of the decision, they are amply explained in the immigration officer’s notes, which the applicant or his counsel were entitled to request from CIC. It was decided in Baker v. Canada (Minister of Citizenship and Immigration), supra, at paragraph 44, that such notes serve in lieu of reasons justifying a decision on humanitarian and compassionate grounds.
[7] This matter does not raise any element that could suggest a question for certification.
[8] For these reasons, the application for judicial review is dismissed and no question will be certified.
ORDER
THE COURT ORDERS THAT:
- The application for judicial review be dismissed and no question will be certified.
Certified true translation
Kelley A. Harvey, BCL, LLB
SOLICITORS OF RECORD
DOCKET: IMM-4697-05
STYLE OF CAUSE: ALEKSANDAR JOVANOVIC
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 1, 2006
THE HONOURABLE MR. JUSTICE SIMON NOËL
DATE OF REASONS: February 7, 2006
APPEARANCES:
JULIANA RODRIGUEZ FOR THE APPLICANT
SYLVIANE ROY FOR THE RESPONDENT
SOLICITORS OF RECORD:
JULIANA RODRIGUEZ FOR THE APPLICANT
CAZA-GAGNON
Montréal, Quebec
JOHN M. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec