Kessler v. Canada (Minister of Citizenship and Immigration), docket IMM-1272-98

Date: 19980731

Docket: IMM-1272-98

BETWEEN:

     JEAN-PIERRE KESSLER and

     MARION GONNEVILLE,

     Applicants,

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

REED, J.

[1]      This is a very legally confused application. It seeks to set aside a decision of an immigration officer who refused to grant the applicant permission to make an application for landing from within Canada, on humanitarian and compassionate grounds pursuant to subsection 114(2) of the Immigration Act.

[2]      The application seeks mandamus requiring the officer to grant such permission, a remedy not available to the applicant since there is no duty on the immigration officer to grant permission " the decision is an entirely discretionary one.

[3]      The application seeks a declaration that the applicant is not criminally inadmissible, a remedy not open to the applicant in these proceedings since the question of admissibility was not before the immigration officer, an application for landing not yet having been made.

[4]      The applicant challenges the decision on the ground that the immigration officer gave no reasons for his decision despite the fact that there is copious jurisprudence stating that reasons are not necessary. One need read no further than the Federal Court of Appeal decision in Shah v. Minister of Employment and Immigration (1994), 29 Imm. L.R. (2d) 82 at 83:

[5]      The applicant has been living in Canada since December 1991. He has a wife who is a Canadian citizen and two Canadian born children to whom he is clearly devoted. There is no doubt about the bona fides of his marriage.

[6]      He came to Canada from the United States in December 1991. Shortly after his arrival he was informed that charges had been laid against him in the United States (sixteen charges of indictment with respect to fraud and the evasion of taxes). He did not return to the United States to deal with those charges even though he asserts he is innocent. From May 26, 1992 to September 13, 1997, he was in Canada without status. It was only after his arrest on August 7, 1997, pursuant to a warrant issued as a result of immigration becoming aware of his presence here and his lack of status, that he returned to the United States on September 13, 1997. He returned the same day and has remained here since on a visitor's visa. On September 3, 1997, his wife filed as his sponsor and he subsequently filed for permission under subsection 114(2) to make an application for landing from within Canada.

[7]      Counsel's argument is that great weight should have been given to the bona fides of the marriage and the applicant should have been allowed to make an application for landing from within Canada, the question of his criminal inadmissibility being left to be decided at a later date in the context of making a decision on that application.

[8]      Counsel argues that it was improper for the immigration officer to take the circumstances of the outstanding criminal charges into account, particularly, when the file discloses that at the time immigration officers were of the view that they could not proceed to have him excluded from Canada on the ground of criminal inadmissibility because, although charged, he had not been convicted of any offence. The decision in Legault v. Canada (Secretary of State) (1995), 90 F.T.R. 145, has been rendered but that in Legault v. Canada (Secretary of State) (1997), 219 N.R. 376 (F.C.A.), had not. Counsel therefore characterizes the decision not to grant permission to the applicant to apply for landing from within Canada as unfair and as an instance of immigration officers doing indirectly what could not be done directly.

[9]      I have not found this argument convincing. While humanitarian and compassionate grounds may exist, from the applicant's point of view, because of the genuine family relationship, permission to apply for landing from within Canada pursuant to section 114(2) is a discretionary matter: "the Minister may facilitate admission". I cannot characterize a decision to refuse to grant permission because the individual is reluctant to return to the country from which he came on the ground that outstanding criminal charges await him there as an improper exercise of discretion, or one that is based on a wrong principle of law. The immigration officer focused particularly on the fact that the applicant had been in Canada for many years without making any attempt to regularize his immigration status here or to deal with the outstanding criminal charges in the United States. The courts routinely refuse discretionary remedies on the basis of a lack of clean hands, I do not see why immigration officers, when deciding subsection 114(2) applications, are not entitled to do likewise.

[10]      In addition, apart from the outstanding criminal charges, there is no particular hardship in returning to the United States, to make an application for landing from that country. The border is a few miles away. There is a visa office in Seattle, Washington.

[11]      There is no ground upon which the decision under review could be set aside.

                             (Sgd.) "B. Reed"

                                 Judge

Vancouver, British Columbia

31 July, 1998

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.:          IMM-1272-98

STYLE OF CAUSE:      Jean-Pierre Kessler and Marion Gonneville

PLACE OF HEARING:      Vancouver, BC

DATE OF HEARING:      July 30, 1998

REASONS FOR ORDER OF THE COURT BY: REED, J.

DATED:              July 31, 1998

APPEARANCES:

SOLICITORS OF RECORD:

Clark, Wilson

Deputy Attorney General of Canada