Date: 20000706
Docket: IMM-3549-99
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J.:
[1] The applicant, Blossom Wynter, seeks judicial review of the decision of immigration manager Gord Eckertt, dated June 25, 1999, in which it was determined that the applicant was inadmissible pursuant to paragraph 12(2)(a) of the Immigration Act, R.S.C. 1985, c. I-2 ( the "Act"). The decision also held that there were insufficient humanitarian and compassionate grounds to warrant issuing a Minister"s Permit to allow the applicant to remain in Canada.
[2] By order dated October 1, 1999, Evans J. stayed the execution of the applicant"s removal order. Leave to commence this application for judicial review was also granted by order of Evans J., dated March 1, 2000.
I. Background
[3] The applicant is a citizen of Jamaica. She arrived in Canada in 1984 as a visitor. In 1986, she married Delroy Wynter, and submitted an application for permanent residence in the family class with an undertaking of assistance provided by her husband. The applicant was granted a Minister"s Permit which allowed her to remain in Canada while her application was being processed. This permit was renewed annually until 1989.
[4] The applicant has two children who were born in Canada and thus are Canadian citizens, Bass Wynter, born on September 9, 1987, and Esau Wynter, born on September 5, 1989.
[5] The Department of Citizenship and Immigration exempted the applicant from the visa requirements under subsection 9(1) of the Act on January 14, 1988. However, despite this exemption, the processing of the applicant"s application for permanent residence was delayed several times. The first delay occurred sometime before 1990, when a criminal check revealed that the applicant faced criminal charges relating to narcotics. These charges did not result in any convictions. The immigration officer"s notes reveal that the applicant"s application for landing was delayed a second time after another criminal check, conducted sometime in 1992, revealed another narcotics charge.
[6] In January 1993, the applicant signed a statutory declaration indicating that she had separated from her husband; he subsequently withdrew his undertaking of assistance. The applicant is now divorced from Mr. Wynter, and he has been deported.
[7] On May 5, 1998, immigration authorities arrested and detained the applicant, as well as a man named Esau Basaragh. The applicant"s immigration file was reactivated, and another criminal check revealed that she had been convicted of three offenses between 1992 and 1995. On October 1, 1992, the applicant was convicted of failing to comply with a recognizance and jailed for one day. On October 14, 1994, the applicant was convicted of fraud over $1000, and received a suspended sentence and 12 months" probation. On June 30, 1995, the applicant was convicted of theft under $1000; she received a suspended sentence and 12 months" probation.
[8] After an inquiry on May 27, 1998, the applicant was found to be a person described in paragraphs 27(2)(a) and 19(2)(a) of the Act. Immigration authorities served the applicant with a deportation order, and on July 9, 1998, the applicant was given a travel itinerary for deportation to Jamaica on July 14, 1998.
[9] The applicant"s counsel submitted an application for landing in Canada on humanitarian and compassionate ("H & C") grounds on July 10, 1998. The applicant also filed an application for leave and for judicial review in the Federal Court.
[10] The applicant"s removal order was rescheduled to August 10, 1998. By letter dated August 13, 1998, counsel for the Minister communicated an offer to settle the application before the Federal Court on the following terms: the applicant discontinue her application in the Federal Court; the applicant"s file would be returned to the appropriate immigration authorities for continued processing of the application for landing; if the applicant was found to be inadmissible she would be notified accordingly and provided with an opportunity to make submissions regarding the issuance of a Minister"s Permit; and if the applicant was denied landing and not issued a Minister"s Permit, the deportation order dated May 27, 1998 would be carried out. After agreeing to these terms, the applicant was released from detention.
[11] By letter dated May 3, 1999, immigration officer V. Huang informed the applicant that while she had been exempted from the visa requirements under the Act in 1988, the Department was of the opinion that the applicant was a person described in subsection 19(2)(a) of the Immigration Act due to her criminal convictions. The applicant was invited to make written submissions in regard to both this matter and the consideration of a Minister"s Permit.
[12] On July 14, 1999, the applicant and her counsel attended an interview with Officer Huang.
[13] The applicant indicated at the interview that her two Canadian children were attending school, she had recently obtained a part-time job as a cleaner, and that she was studying to become a Personal Care Worker. She also told the immigration officer that she suffers from schizophrenia, but that her condition was under control and she was on a lower dose of medication. The applicant also described her family"s poor and cramped living conditions in Jamaica, and stated that she would have no means to support her children if she was deported to that country.
[14] With regard to her convictions, the applicant stated that she was remorseful. She told the immigration officer that she had recently submitted an application for
pardon to the National Parole Board. She requested a Minister"s Permit be issued for a short period to cover the time during which her application for a criminal pardon was being processed.
[15] The immigration officer determined that there were insufficient grounds to warrant a recommendation of a Minister"s Permit to overcome the applicant"s criminal inadmissibility. Mr. Eckertt, the immigration officer"s supervisor, concurred. The applicant now challenges that decision.
II. Issues
| What is the appropriate standard of review? |
| Was the applicant denied procedural fairness? |
| Was the grant of an exemption under subsection 9(1) of the Act relevant? |
| Was the immigration officer"s decision reasonable? |
III. Relevant Statutory Provisions
[16] Under paragraph 19(2)(a) of the Immigration Act, a person can be deemed inadmissible if convicted of a criminal offense in Canada:
19. (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:
| (a) persons who have been convicted in Canada of an indictable offence, or of an offence for which the offender may be prosecuted by indictment or for which the offender is punishable on summary conviction, that may be punishable under any Act of Parliament by a maximum term of imprisonment of less than ten years, other than an offence designated as a contravention under the Contraventions Act. |
19. (2) Appartiennent à une categorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui:
| (a) ont été déclarés coupables au Canada d"un acte criminel ou d"une infraction d"ont l"auteur peut être punissable, aux termes d"une loi fédérale, par mise en accusation, d"un emprisonnement maximal de moins de dix ans, à l"exception d"une infraction désignée à titre de contravention sous le régime de la Loi sur les contraventions; |
[17] The Minister may issue a Minister"s Permit, under paragraph 37(1)(a) of the Act, to allow a person, who might otherwise fall within the class of inadmissible persons, to come to or remain in Canada:
37. (1) The Minister may issue a written permit authorizing any person to come into or remain in Canada if that person is
| (a) in the case of a person seeking to come into Canada, a member of an inadmissible class; or |
| (b) in the case of a person in Canada, a person with respect to whom a report has been or may be made under subsection 27(2). |
37. (1) Le ministre peut délivrer un permis autorisant:
| (a) à entrer au Canada, les personnes faisant partie d"une catégorie non admissible; |
| (b) à y demeurer, les personnes se trouvant au Canada qui font l"objet ou sont susceptibles de faire l"objet du rapport prévu au paragraphe 27(2). |
[18] The following sections from Department of Citizenship and Immigration Manual, Chapter IP 12: Minister"s Permits, are also pertinent:
| 1.2 What is a Minister"s permit? |
| A Minister"s permit is a document which allows inadmissible persons (A19), or persons reported or who may be reported under subsection 27(2) of the Act, to come into or remain in Canada. [A37(1)] |
| The Immigration Act requires that immigrants and visitors not be members of an inadmissible class. Therefore, persons who are inadmissible for medical or criminal reasons would normally be refused abroad or refused processing from within Canada, even if they do meet other immigration requirements, unless the risk is minimal and the need for them to enter or remain in Canada is compelling. In these cases, before refusing the case outright, the officer should form an opinion as to whether the client merits favourable discretionary consideration and the issuance of a Minister"s permit. |
| 6. CRIMINAL INADMISSIBILITY |
| Parliament has given officers enhanced powers to exclude or remove criminal elements from Canada. The government is committed to protecting Canadians from persons who are likely to engage in criminal activity; therefore decisions to allow criminally inadmissible persons to come into Canada should not be made lightly. |
[19] Humanitarian and compassionate guidelines are found in Chapter IP 5: Immigration Applications in Canada Made on Humanitarian or Compassionate (H & C) Grounds:
| 6.1 What is meant by "humanitarian and compassionate grounds" |
| Applicants making an application under R2.1 are requesting processing in Canada due to compassionate or humanitarian considerations. Subsection R2.1 provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the legislation. |
| Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant. |
| The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining whether sufficient H & C considerations exist to warrant the requested exemption from A9(1). |
| Unusual and undeserved hardship |
| The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act or Regulations, and |
| The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person"s control. |
| Disproportionate hardship |
| Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances. |
| 6.2 General establishment guidelines |
| Consider the following factors to assess establishment in Canada: |
| ["] Does the applicant have a history of stable employment? |
| ["] Is there a pattern of sound financial management? |
["] Has the applicant integrated into the community through
| involvement in community organizations, volunteer or other activities? |
| ["] Has the applicant undertaken any professional, linguistic or other study that show integration into Canadian society? |
| ["] Do the applicant and family members have a good |
| civil record in Canada? (e.g. no interventions by police |
| or other authorities for child or spouse abuse, criminal charges) |
[20] The appropriate standard of review is that of reasonableness simpliciter. In Baker v. Canada (Minister of Citizenship and Immigration) L"Heureux-Dubé J. articulated this less deferential standard:
| These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court"Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.1 |
| [21] Reasonableness simpliciter, or a standard of reasonableness, was defined by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc.: |
| An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.2 |
| [22] Lemieux J. recently described the approach to be taken following the decision in Baker: |
| Not only does Baker require a more focussed approach by immigration officers, it places a new and more "hands-on" responsibility by a reviewing judge. A reviewing judge must take a "hard look" at the H & C decision, must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination in the evidentiary foundation.3 |
a. Reasons
[23] The applicant contends that the respondent erred in failing to provide reasons for the negative decision. The respondent submits that the Narrative Report of the immigration officer constitutes sufficient reasons.4
[24] In Baker, L"Heureux-Dubé J. commented with regard to the provision of reasons,
| In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached. |
| In my view, however, the reasons requirement was fulfilled in this case since the appellant was provided with the notes of Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for reasons. Because of this, and because there is no other record of the reasons for making the decision, the notes of the subordinate reviewing officer should be taken, by inference, to be the reasons for the decision. Accepting documents such as these notes as sufficient reasons is part of the flexibility that is necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate the requirements of the duty of fairness with recognition of the day-to-day realities of administrative agencies and the many ways in which the values underlying the principles of procedural fairness can be assured. It upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that in the administrative context, this transparency may take place in various ways. I conclude that the notes of Officer Lorenz satisfy the requirement for reasons under the duty of procedural fairness in this case, and they will be taken to be the reasons for the decision.5 |
[25] In the case at bar, the notes, or Narrative Report, of Officer Huang satisfy the requirement for reasons articulated in Baker.
b. Notice to the applicant"s children
[26] The applicant contends that the respondent erred by failing to conduct a proper assessment of the impact of the applicant"s removal on her two Canadian born children. The applicant argues that there was no process in place that provided for the interests and wishes of the children to be considered by the respondent prior to ordering a deportation. In support of this assertion that the respondent has a duty to consult Canadian born children, the applicant relies on Baker and Francis (Litigation guardian of) v. Canada (Minister of Citizenship and Immigration).6
[27] In Baker, L"Heureux-Dubé J. discussed the issue of participatory rights in the context of an application for permanent residence under subsection 114(2) of the Immigration Act :
| In this case, the appellant had the opportunity to put forward, in written form through her lawyer, information about her situation, her children and their emotional dependence on her, and documentation in support of her application from a social worker at the Children"s Aid Society and from her psychiatrist. These documents were before the decision-makers, and they contained the information relevant to making this decision. Taking all the factors relevant to determining the content of the duty of fairness into account, the lack of an oral hearing or notice of such a hearing did not, in my opinion, constitute a violation of the requirements of procedural fairness to which Ms. Baker was entitled in the circumstances, particularly given the fact that several of the factors point toward a more relaxed standard. The opportunity, which was accorded, for the appellant or her children to produce full and complete written documentation in relation to all aspects of her application satisfied the requirements of participatory rights required by the duty of fairness in this case.7 |
[28] With regard to the decision in Francis, it should be noted that the Ontario Court of Appeal recently overturned it, rendering the decision of little use in the instant case.8 Doherty J.A., of the Ontario Court of Appeal, noted,
| those potentially affected by the exercise of the discretion under s. 114(2), including children, must have an opportunity to have their position put before the official considering the application. In most cases involving young children, I would think that this would be done through the parent.9 |
[29] The decision in Baker does not support the proposition that immigration officials are required to give separate notice to, or require separate consultation with, an applicant"s child or children.
[30] Accordingly, the applicant"s argument that the respondent erred by failing to provide her children with separate notice, or failing to consult separately with the children, cannot stand.
3. Subsection 9(1) exemption
[31] The applicant submits that since an exemption was granted from subsection 9(1) of the Act in 1988, the Minister"s representative had indicated that the applicant had met all other necessary requirements of the Act, including the obtaining of a security clearance. The applicant relies on Dawson v. Canada (Minister of Citizenship and Immigration)10 and Dass v. Canada (Minister of Citizenship and Immigration).11
[32] In Dawson, the applicant was granted an exemption from subsection 9(1). Subsequently, his wife withdrew her sponsorship of his application. The Court found that this withdrawal had no effect as the applicant had acquired the right to be granted permanent residency status in Canada as a landed immigrant when the Governor in Council"s decree was published.
[33] In Dass, the applicant sought, inter alia, an order for a writ of mandamus requiring the Minister to issue the necessary documents showing that the applicant had permanent residence in Canada. In that case, the Department refused to process the applicant"s application for permanent residence due to his criminal convictions, even after the applicant had been issued an exemption from subsection 9(1).
[34] From the reasons below, it will not be necessary to consider this particular issue any further.
4. Reasonableness of the Decision
[35] The applicant contends that the decision is perverse as the decision-maker failed to consider the totality of the evidence.
[36] The evidence presented by the applicant included the following: the applicant"s testimony at the interview about her life in Canada and conditions in Jamaica; the applicant"s receipt of social benefits; a letter indicating that the applicant worked part-time for two months before the interview; a grade report dated April 1999 for a full-time program of study for Personal Support Worker; a family tree chart and birth certificates of the applicant"s two Canadian born sons; an application for a pardon under the Criminal Records Act , dated June 4, 1999; a letter from the applicant"s children"s physician which indicates that separating the applicant from her children will "precipitate stress induced asthma as well as other medical problems in her children";12 twelve character reference letters from friends and family; and letters from the applicant"s sons.
[37] In Officer Huang"s Narrative Report, the officer indicates that in reaching the decision, the following was considered:
| Subject"s landing was held in abeyance because of the strings of criminal charges she was facing and because of the fact of marriage breakdown. Under the current H & C guideline (IP5), subject is criminally inadmissible to Canada and therefore her application for landing must be refused. It is noted that she has been in Canada for 15 years. She has not demonstrated her ability to acquire steady employment. She is not capable to support self and dependants without recourse to public assistance. In fact, our records show that she has been in receipt of family benefit [sic ] from 18/06/89 to 25/01/90, 01/06/90 to 31/01/97, 01/12/97 to 31/07/98, 01/09/98 until the present time as a sole support parent. She currently receives $1,500 monthly and has received $160,000 in total benefits to date. She has also period [sic] on general welfare assistance, which shows that she was on welfare for one month in 1998 when she was in need of a drug card, welfare terminated 15/10/98. She does not have a good civil record. She has family in home country to return to, though accommodation may have to be arranged, I am not satisfied that it represents undue hardship. It is noted that she has relatives in Canada, she has not demonstrated that dependency exists to the extent that separation would cause hardship. Subject"s 2 cc [Canadian citizen] children are being considered. They may need little time to adjust to a new country, yet it would be subject"s decision if she was to leave the children in Canada with whatever arrangement she may make, she would be free to decide what would be in the best interests of the children.13 |
[38] While it is beyond dispute that the decision-maker has no obligation to list each and every piece of evidence brought before him or her, the decision-making process must encompass a fair and full review of all relevant considerations"and the reasons must reflect this. It is certainly within the purview of the officer to accept or reject information, but he or she cannot ignore information. If a particular document or piece of information is rejected, the applicant should be advised of the reasons why, especially when the document or information supports the applicant"s position. In such an instance, the officer must, at the very least, comment on the document or information.
[39] In the case at bar, there is no indication of how certain factors supporting the applicant"s position were taken into account, but rejected (one assumes they were rejected as the decision itself is negative). Indeed, a review of the immigration officer"s notes does not shed any light on how the decision is rational or reasonable. No mention is made of the letter written by the children"s physician, nor is there anything said about the letters written by the applicant"s children. Moreover, the notes, or reasons, are especially deficient with regard to consideration of the applicant"s children"s best interests. While Baker makes it quite clear that such considerations are by no means determinative of the decision, it also makes it clear that such interests are an important factor:
| for the exercise of discretion to fall within the standard of reasonableness, the decision-maker should consider the children"s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children"s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when the children"s best interests are given this consideration. However, where the interests of the children are minimized, in a manner inconsistent with Canada"s humanitarian and compassionate tradition and the Minister"s guidelines, the decision will be unreasonable.14 |
[40] Quite simply, this was not done in this case. The immigration officer"s reasons deal with the applicant"s children in two sentences; one states that they are being considered and the other states that it is up to their mother to decide what is in their best interests. It is impossible to determine if and how their interests were taken into consideration. It cannot be said that the immigration officer"s decision was made in accordance with the principles enunciated in Baker :
| Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner.15 |
[41] Accordingly, this application for judicial review is allowed. The decision is set aside and the matter is referred back for reconsideration in accordance with these reasons.
[42] Neither counsel recommended for certification a question in this matter, and therefore, no question will be certified.
"Max M. Teitelbaum"
JUDGE
CALGARY, Alberta
July 06, 2000
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3549-99
| STYLE OF CAUSE: BLOSSOM WYNTER v. MCI |
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: May 30, 2000
REASONS FOR ORDER OF TEITELBAUM, J.
DATED: July 6, 2000
APPEARANCES:
Mr. Harvey Savage FOR APPLICANT
Ms. Cheryl Mitchell FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Harvey Savage
Toronto, Ontario FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General
of Canada
Ottawa, Ontario FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20000706
Docket: IMM-3549-99
BETWEEN:
BLOSSOM WYNTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1[1999] 2 S.C.R. 817 at 857-858 [hereinafter Baker ].
2[1997] 1 S.C.R. 748 at 776-777.
3I.G. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1704 at para. 39 (Q.L.), IMM-2674-98 (November 2, 1999) (F.C.T.D.).
4Tribunal Record, pp. 3-8.
5Supra, note 1 at 848.
6(1998), 40 O.R. (3d) 74 (Ont. Ct. Gen. Div.) [hereinafter Francis ].
7Supra, note 1 at 842-843.
8[1999] O.J. No. 3853 (Q.L.); leave to appeal to the Supreme Court of Canada filed.
9Ibid. at para. 17.
10(1988), 21 F.T.R. 212 (T.D.)[hereinafter Dawson ].
11[1993] 2 F.C. 337 (T.D.) [hereinafter Dass ].
12Tribunal Record, p. 8.
13Ibid.
14Supra note 1 at 864.
15Supra, note 1 at 863.
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