Sellakkandu v. Canada ( Minister of Employment and Immigration )
92-T-2029
Denault J.
13/10/93
8 pp.
Application for judicial review of immigration officer's decision insufficient humanitarian and compassionate grounds to warrant processing applicant's request for landing pursuant to Immigration Act, s. 114(2)-Applicant Sri Lankan Tamil from Jaffna district-Arriving in Canada via U.S.A.-Denied refugee status in March, 1992-In May, 1992 gave birth to son-Father of child unable to sponsor her because still married-Divorce proceedings commenced-Applicant alleging (1) immigration officer's conclusion unreasonable, discretion fettered based on statement in immigration officer's note considered whether applicant would face greater risk than general population and whether would be individually targeted; (2) immigration officer failed to comply with duty of fairness as no interview, oral hearing; (3) decision violated Charter, ss. 7, 12 rights-Application dismissed-(1) Immigration officer's decision reasonable-Vidal v. M.E.I. (1991), 49 Admin. L.R. 118 (F.C.T.D.) holding Immigration Manual guidelines as to assessment of humanitarian, compassionate grounds adequately general and not inhibiting consideration of any factors contributing to "undue hardship"-Muse v. Canada (Solicitor General), 93-T-52, Pinard J., judgment dated 17/8/93, F.C.T.D., holding requirement applicant be at greater risk than anyone else in Somali population fettering immigration officers' discretion by imposing rigid requirement, distinguished-Decision not fettered-Applicant returning to U.S.A., not Sri Lanka-(2) Provided applicant given ample opportunity to set out humanitarian grounds for request, no necessity for interview-Applicant's counsel given opportunity to make written submissions and immigration officer considering submissions-(3) S. 7 engaged when person claiming Canada's protection as Convention refugee or where person facing removal to country where might be threat to security of person-S. 7 protection afforded to applicant as subject of removal order not extended to protection of "family interests" or "family unit", including protection of child-Child benefitting in own right from Charter protection as Canadian citizen-No breach of fundamental justice for same reasons decision reasonable, not fettered-Fact immigration officer considered applicant facing removal to U.S.A. or failed to obtain assurance would not be deported to Sri Lanka not constituting breach of fundamental justice as considered many relevant factors and applicant given ample opportunity to respond-Provided rules of procedural fairness and natural justice adhered to, deportation of refugee claimant to country of origin when determined not to be refugee not cruel or unusual punishement within Charter, s. 12-No evidence of unfairness or unreasonableness on part of immigration officer-Removal of applicant not cruel or unusual punishment or treatment of her or child since decision for child to accompany mother that of parents-Canadian Charter of Rights and Freedoms, being Part I of Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (R.S.C., 1985, Appendix II, No. 44), s. 7-Immigration Act, R.S.C., 1985, c. I-2, s. 114(2).