Digests

Chen v. Canada (Minister of Citizenship and Immigration)

IMM-4823-01

2003 FCT 447, Blais J.

16/4/03

10 pp.

Humanitarian and Compassionate Considerations Judicial review of immigration officer's refusal of request for immigrant visa from within Canada based on humanitarian and compassionate (H&C) grounds--Applicant 76-year-old citizen of China--Arrived in Canada in 1995 with late wife to visit daughter--This is applicant's third or fourth H&C application (not clear which from facts or documentation), all of which refused as well--Daughter in care of aunt, uncle since baby--Entered Canada as their dependent daughter, not as adopted daughter--(1) Whether immigration officer applied proper test for H&C applications--Clear from decision immigration officer applied reasonableness simpliciter test to facts--After determining applicant still had brother in China, still owned apartment and would be eligible for pension, immigration officer concluded applicant would not suffer unusual or disproportionate hardship--Legal test found in Chirwa (1969), 4 I.A.C. 338 (I.A.B.), and proposed by applicant for H&C applications not "only judicial definition"--Rather, legal test should be read in conjunction with Immigration Manual--Immigration officer did not err on issue--(2) Whether immigration officer committed error of mixed fact and law in holding applicant's natural daughter ineligible to sponsor application--Applicant argued immigration officer made patently unreasonable finding of fact by asserting parent-child relationship never nurtured between applicant and daughter--Applicant and daughter had absolutely no connection until daughter 39 years old--No evidence of nurtured relationship until reunited in 1993-- However, beyond 1993, extensive evidence of nurtured parent-child relationship--Legislation provides definition of term "father" to impeach potential scams--However, in case at bar, existence of bona fide desire to reunite with biological relative and evolution of relationship since reunification sources of compassion which immigration officer should have considered more seriously--In relation to application of law, immigration officer clearly right--However, with regard to facts and material in record, immigration officer's decision made in perverse and capricious manner--Room for interpretation of law with respect to immigration objectives and new definition of "relative" so as to not preclude person from sponsoring biological parent if already has adoptive parent--Present facts call for leniency in application of immigration rules in relation to immigration objectives-- Enough evidence to show sufficient parent-child relationship to conclude immigration officer made capricious finding of fact which fettered discretion--Decision unreasonable-- Application allowed.