Quiroa et al. v. Canada (Minister of Citizenship and Immigration), (2007) 312 F.T.R. 262 (FC)

• Judge: Shore, J.
• Court: Federal Court (Canada)
• Case Date: April 19, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 312 F.T.R. 262 (FC);2007 FC 495

Quiroa v. Can. (M.C.I.) (2007), 312 F.T.R. 262 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. MY.024

Jose Julian Rodriguez Quiroa and Miriam Del Rosario Portillo Fajardo (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-2210-06; 2007 FC 495)

Indexed As: Quiroa et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Shore, J.

May 7, 2007.

Summary:

An immigration officer refused the applicants' application for permanent residence in Canada based on humanitarian and compassionate considerations. The applicants applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - The applicants (Quiroa and his wife) applied for permanent residence in Canada based on humanitarian and compassionate considerations - An immigration officer refused the application - The applicants applied for judicial review - The applicants argued, inter alia, that the officer breached the duty of fairness by failing to consider the evidence of emotional hardship that the applicants would face should they return to Guatemala in order to apply for permanent residence - The Federal Court dismissed the application - It was not a requirement that the officer specifically reference that the emotional hardship of the applicants was considered - The court stated that "The question of emotional attachment, just like the question of financial attachment, is one to be considered in the assessment of the overall establishment and the hardship faced on return. These issues do not have to be specifically labelled in any certain way so long as there is evidence that they were weighed and considered. They clearly have been in the present case; therefore the conclusions reached are not unreasonable in the circumstances" - See paragraphs 36 to 41.

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - The applicants (Quiroa and his wife) applied for permanent residence in Canada based on humanitarian and compassionate considerations - An immigration officer refused the application - The applicants applied for judicial review - The applicants argued that the officer did not consider the applicants' establishment in Canada - The applicants referred to the specific ground set out in the Immigration Manual on Humanitarian and Compassionate Grounds (Inland Processing Manual) ("IP5") of a long term stay in Canada due to circumstances beyond the applicants' control - The applicants asserted that their stay in Canada was long-term, because it had continued since September 2000, and was due to circumstances beyond the applicants' control as they were waiting for their various immigration procedures and their refugee claim, judicial review, and pre-removal risk assessment application to conclude - The Federal Court dismissed the application - The applicants' level of establishment was clearly considered and balanced against other existing factors and the officer's decision in that regard was not unreasonable - Further, the exception noted in IP5 did not apply to the applicants' case - If that were the case, the exception would apply to almost every applicant who had taken advantage of the multiple mechanisms available to them in the Canadian immigration system - See paragraphs 42 to 47.

Aliens - Topic 1206

Admission - Immigrants - Upon compassionate or humanitarian grounds - The applicants (Quiroa and his wife) applied for permanent residence in Canada based on humanitarian and compassionate considerations - An immigration officer refused the application - The applicants applied for judicial review - The applicants argued that the officer erred in not giving any weight to the hardship that would be caused to Quiroa's employer, Domino's Pizza - Quiroa was a manager for that company - The Federal Court dismissed the application - It was clear that the degree of the applicants' establishment was considered - The letters of Quiroa's fellow employees and employers were specifically noted, as were his work history and work ethic - When the reasons were taken as a whole, it was clear that the major points raised by the applicants had been addressed and that the principal findings of fact were clear - The officer did not breach her duty of procedural fairness by failing to specifically reference the hardship the business would suffer should the applicant be removed - See paragraphs 48 to 54.

Aliens - Topic 1230

Admission - Immigrants - Immigrant visa - Duty of officer (incl. duty of fairness) - [See first and third Aliens - Topic 1206 ].

Aliens - Topic 1230

Admission - Immigrants - Immigrant visa - Duty of officer (incl. duty of fairness) - The applicants (Quiroa and his wife) applied for permanent residence in Canada based on humanitarian and compassionate considerations - An immigration officer refused the application - The applicants applied for judicial review - The applicants argued, inter alia, that in using a current telephone book to verify the address of the business owned by Quiroa's family in Guatemala, the officer breached the duty of fairness by considering extrinsic evidence without giving the applicants an opportunity to respond - The Federal Court dismissed the application - The court stated that "When dealing with matters of procedural fairness, the overriding concern with respect to the disclosure of evidence is whether the document, opinion, or report is one of which the individual is aware or deemed to be aware ... there is no obligation on the part of the officer to disclose information that is available from a public source prior to the date of any submission by the applicant. The officer relied on a publicly available source to determine the address of the Mr. Quiroa's family's business in Guatemala. Furthermore, the address of the company was not an issue on which the case turned" - See paragraphs 29 to 34.

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - [See first and third Aliens - Topic 1206 ].

Aliens - Topic 1305

Admission - Immigrants - Judicial review - Evidence - The applicants (Quiroa and his wife) applied for permanent residence in Canada based on humanitarian and compassionate considerations - An immigration officer refused the application - The applicants applied for judicial review - Quiroa submitted a letter by way of further affidavit which confirmed that he had not had any "labor relationship" with his family's company in Guatemala since March 2000 - The document was not before the immigration officer - The Federal Court stated that it intended to give no weight to the document - While an application for judicial review was normally conducted on the basis of the material before the administrative decision-maker, affidavit evidence could be admitted on issues of procedural fairness and jurisdiction - However, in such cases, the material would only be accepted if it was necessary - In this case, the evidence presented in the affidavit went to a finding of fact - It was not information that was before the officer at the time of her decision, and it was not information necessary to complete the judicial review - See paragraphs 25 to 28.

Aliens - Topic 4502

Evidence - Duty to disclose - [See second Aliens - Topic 1230 ].

Cases Noticed:

Agot v. Canada (Minister of Citizenship and Immigration) (2003), 232 F.T.R. 101; 2003 FCT 436, refd to. [para. 1].

Jasim v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 583; 2003 FC 1017, refd to. [para. 19].

Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 597 (T.D.), refd to. [para. 20].

Legault v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 174; 2002 FCA 125, refd to. [para. 21].

Pasteanu v. Canada (Minister of Citizenship and Immigration) (2001), 206 F.T.R. 85; 2001 FCT 608, refd to. [para. 21].

Chau v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 55; 2002 FCT 107, refd to. [para. 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 23].

Jeon et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 31; 2006 FC 87, refd to. [para. 23].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 2003 SCC 29, refd to. [para. 24].

Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49 (T.D.), refd to. [para. 26].

Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331; 291 N.R. 61; 2002 FCA 218, leave to appeal refused (2003), 313 N.R. 195; 23 C.P.R.(4th) vii (S.C.C.), refd to. [para. 26].

Ecology Action Centre Society v. Canada (Attorney General) (2002), 227 F.T.R. 10; 2002 FCT 1309, refd to. [para. 27].

Smith v. Minister of National Revenue (2001), 272 N.R. 174; 2001 FCA 86, refd to. [para. 28].

Muliadi v. Minister of Employment and Immigration, [1986] 2 F.C. 205; 66 N.R. 8 (F.C.A.), refd to. [para. 29].

Chen v. Minister of Employment and Immigration et al. (1993), 65 F.T.R. 73; 20 Imm. L.R.(2d) 290 (T.D.), refd to. [para. 29].

Yang v. Minister of Employment and Immigration et al. (1992), 56 F.T.R. 155 (T.D.), refd to. [para. 29].

Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238 (F.C.A.), refd to. [para. 29].

Asmelash v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. B58; 2005 FC 1732, refd to. [para. 32].

Chen v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 12; 2002 FCT 266, refd to. [para. 32].

Mancia v. Canada (Minister of Citizenship and Immigration), (1997) 125 F.T.R. 297 (T.D.), refd to. [para. 33].

Sidhu (D.) v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 241 (T.D.), refd to. [para. 37].

Raudales v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 228; 2003 FCT 385, dist. [para. 46].

Pramauntanyath v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 393; 2005 FC 604, refd to. [para. 48].

Counsel:

Michael F. Loebach, for the applicants;

David Joseph, for the respondent.

Solicitors of Record:

Michael Loebach, London, Ontario, for the applicants;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on April 19, 2007, before Shore, J., of the Federal Court, who delivered the following decision on May 7, 2007.