Nawaratnam v. Canada (Minister of Citizenship and Immigration), 2001 FCT 976

Date: 20010830

Docket: IMM-5686-00

Neutral Citation: 2001 FCT 976

BETWEEN:

                                                   KARUNAKARAN NAWARATNAM

                                                                                                                                                    Applicant

                                                                            - and -

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                  REASONS FOR ORDER AND ORDER

BLAIS J.

[1]                 This is an application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board [the "IAD"] dated September 26, 2000, wherein the IAD determined that the refusal to approve the sponsored application for permanent residence of the applicant's spouse, Meenambal Karunakaran, was in accordance with the law and there did not exist humanitarian and compassionate considerations that warranted the granting of special relief.

FACTS

[2]                 The applicant divorced his first wife in 1994. In December 1995, his ex-fiancée, Mohaneswary Mohanasundararajah, arrived in Canada under the applicant's sponsorship. The applicant testified that his parents had arranged the match. The applicant met Ms. Mohanasundararajah for the first time at the airport in Toronto. The applicant brought his ex-fiancée to his apartment in Toronto, which he shared with a male roommate, the roommate's wife and child.

[3]                 The applicant testified at the hearing that it became apparent within about three weeks of the ex-fiancée's arrival that they were not compatible as a couple. The applicant testified that he thought the relationship might work if they gave it more time. The applicant described his ex-fiancée as expecting too much of him. It appeared to the applicant that he was not the type of person the ex-fiancée had expected to be matched with. The ex-fiancée told him she was leaving.

[4]                 Shortly thereafter, her family members came to his apartment and helped the ex-fiancée move. The applicant testified that he advised the respondent that they would not be marrying within the 90-day requirement set out in the ex-fiancée's landing documents.

[5]                 The applicant testified that he was not sure upon which criteria his parents decided his ex-fiancée was a suitable match for him. He testified that her family was from a different village in Sri Lanka than his. He later discovered from inquiries that he made in the Tamil community in Toronto that his ex-fiancée's family allegedly had a reputation for dishonesty. The applicant stated that he broke his leg shortly before his ex-fiancée's arrival in Canada so this prevented him from travelling to meet her before she came to Canada.

[6]                 The applicant's ex-fiancée remained resident in Toronto after their relationship broke up. The applicant testified that he was aware of the fact that his ex-fiancée claimed and received social assistance benefits after the couple ended its relationship. The ex-fiancée claimed and eventually received Convention refugee status which has allowed her to be landed in Canada as of March 5, 1998.

[7]                 The applicant acknowledged the responsibility he assumed in signing an Undertaking of Assistance for his ex-fiancée. He acknowledged that he knew she had claimed social assistance benefits. He testified before the IAD that once he became aware of this, he did not take any steps to repay the relevant government agency a sum of money equal to the amount of social assistance benefits the ex-fiancée claimed. This option was one the applicant was aware of. He stated in his testimony that no government authority had specifically requested that he make a payment.

[8]                 The applicant testified that his spouse is the niece of his current roommate. She was suggested as a possible match in 1995 but the match did not come about then. She was suggested again as a spouse in June 1998 and all parties agreed. He married the applicant in August 1998 in Colombo, Sri Lanka.

[9]                 The applicant testified before the IAD that he has purchased a house in Toronto which he co-owns with his wife's uncle, his roommate. His wife would live there if she was allowed to come to Canada.

[10]            The applicant testified that he was employed and earned $16.66 an hour. He has a registered retirement savings plan with his employer in the amount of $1,000 to $1,500. He does not have a second job currently. In 1999, he earned approximately $33,000. He bought a house for approximately $180,000. He does not have any financial support obligations to his first wife, whom he divorced in 1994.

[11]            The applicant testified that he considers the situation in Sri Lanka to be very bad and unsettled. He does not think he could go there to live with his wife. He testified that he lived with his spouse for about 10 days after their August 20, 1998 wedding. He also met her again briefly in April 2000 in the Colombo airport while the applicant was on an airport stopover on his way to India for his brother's funeral.

[12]            The applicant sends his spouse financial support every other month. He last sent $300 the month before the hearing. The applicant's spouse has worked in the past as a secretary but has not worked since her marriage. The applicant telephones his wife approximately once every two weeks. They exchange greeting cards on birthdays but do not write letters. The applicant testified that his spouse is a good wife. He is happy with her personality and their marriage.

[13]            The applicant testified that he was found to be a Convention refugee and is now a Canadian citizen. He has returned to Sri Lanka in 1998 and 2000. He has no close family members in Canada. He lives with members of his wife's family and has for several years. His own parents reside in Madras, India. His closest relatives in Canada are first cousins on his father's side of the family. He sees them regularly.

ANALYSIS

Did the IAD engage in a balancing of humanitarian and compassionate considerations against the applicant's legal impediment and if so, was the IAD in error?

[14]            The applicant submits that the IAD misapplied the test for an appeal under subsection 77(3) of the Act since paragraph 77(3)(b) makes it clear that the only consideration for the IAD on the appeal was whether humanitarian and compassionate considerations exist.

[15]            The applicant contrast the paragraph 77(3)(b) with paragraph 70(1)(b) in which the IAD must have regard to "all of the circumstances of the case", not only humanitarian and compassionate considerations. The applicant relies on Tran v. M.C.I. (1996), 36 Imm. L.R. (2d) 275, for the proposition that an appeal based on "all of the circumstances of the case" is different and broader than an appeal based on "humanitarian and compassionate considerations".

[16]            The respondent submits that the IAD did not err by engaging in the type of balancing of humanitarian and compassionate considerations against the legal impediment for which the applicant is seeking special relief from.

[17]            The respondent submits that the IAD did not embark on the form of balancing prohibited in the decision of Kirpal v. Canada(M.C.O.) (1996), 35 Imm. L.R. (2d) 229 (F.C.T.D.). The IAD's reasons indicate that the IAD separately examined the humanitarian and compassionate considerations and found that there was nothing compelling in the evidence regarding the situation of the applicant or his spouse to persuade the IAD to exercise its discretionary jurisdiction.

[18]            In my view, the IAD did embark on a balancing of humanitarian and compassionate considerations against the applicant's legal impediment. At page 5 of its decision, it stated:

The panel is left to consider the appeal under section 77(3)(b), whether sufficient compassionate or humanitarian considerations exist that would warrant the granting of special relief to overcome the refusal under section 5(2)(g) of the Regulations.

[19]            And at page 6 of its decision, after having examined the applicant's legal impediment, the IAD stated:

Therefore, the panel does not think this is a situation where it should grant discretionary relief so the appellant can overcome his clear responsibility under one sponsorship in order to have the benefit of a second sponsorship with the same set of responsibilities.

[20]            The question is therefore whether in engaging in a balancing of the humanitarian and compassionate considerations against the applicant's legal impediment, the IAD erred.

[21]            Paragraph 77(3)(b) of the Immigration Act provides:

[22]            In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada held :

The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations" (emphasis added). These words and their meaning must be central in determining whether an individual H & C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person's admission should be facilitated owing to the existence of such considerations. They show Parliament's intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider an H & C request when an application is made: Jiminez-Perez, supra. Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.

[23]            The applicant relies on the decisions in Tran v. M.C.I., [1996] F.C.J. No. 1662(F.C.T.D.) ("Tran") and Kirpal v. Canada(M.C.I.), [1997] 1 F.C. 352 (F.C.T.D.) ("Kirpal") in support of his contention that the IAD erred.

[24]            In Tran, McKeown J. heard an application for judicial review of a decision of the Immigration and Refugee Board dismissing an appeal under section 70 of theImmigration Act. McKeown J. stated:

As I have noted, the rights of permanent residents appealing a deportation order issued against them are different and broader than the appeal rights available to persons in possession of valid visas or the sponsors seeking to appeal the refusal of an immigrant visa to a sponsoree. In the case of a permanent resident who has been ordered deported the equitable jurisdiction of the Appeal Division directs the tribunal to have regard to "all the circumstances of the case" whereas in the more limited rights of appeal by persons with valid visas or by sponsors the equitable jurisdiction of the Appeal Division is limited to having regard to the "existence of compassionate or humanitarian considerations".

[25]            In Kirpal, the applicant sought judicial review of a decision of the IAD under subsection 77(3) of the Immigration Act wherein the IAD refused to approve the sponsored in-land application for landing of the applicant's father, mother and brother and considered the medical inadmissibility of the applicant's father. Gibson J. held:

Counsel for the applicant argued that these words should be contrasted with similar, but quite different, words in subsection 70(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13] of the Act that confer jurisdiction on the Appeal Division where a removal order or conditional removal order is made against, among others, a permanent resident. There, the Appeal Division's equitable jurisdiction is conferred in the following terms:

70. (1) . . .

(b)          on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada.

Counsel argued that, under the words conferring jurisdiction in subsection 70(1), it is appropriate, indeed obligatory, that the Appeal Division have regard to all of the circumstances of the case, not merely the humanitarian and compassionate considerations that may weigh in favour of the appellant, but also any and all of the countervailing circumstances. By contrast, counsel argued the words conferring jurisdiction under subsection 77(3) relate only to compassionate or humanitarian considerations that would warrant granting special relief. Countervailing factors, it is argued, have no place for consideration in the jurisdiction of the Appeal Division, that is to say the Tribunal, under paragraph 77(3)(b).

In this matter, the Tribunal in its decision identified a range of compassionate or humanitarian considerations tending to warrant the granting of special relief. Against those, it weighed countervailing considerations. It wrote [at paragraph 45]:

On the other hand, I need to weigh the extent of the legal impediment against the strength of the humanitarian or compassionate factors which are present.

I am satisfied that the Tribunal erred in engaging in this weighing process. If Parliament had intended the Tribunal to do so, it could very easily have adopted identical or very similar words to those in paragraph 70(1)(b) of the Act. It did not do so. In failing to do so, it must be presumed to have intended a different result. The only different result that I can conceive of is that the weighing process patently contemplated by the words of paragraph 70(1)(b) was not intended to apply in the application of paragraph 77(3)(b).

[26]            The respondent however, relies on the decisions in Sandhu v. Canada (M.C.I.), [2000] F.C.J. No. 1398 (F.C.T.D.), Mohamed v. M.E.I., [1986] 3 F.C. 90 (F.C.A.), Canada (Secretary of State) v. Dee, [1995] F.C.J. No. 45 (F.C.T.D.), Canada (Solicitor General v. Kainth (1994), 26 Imm. L.R. (2d) 226 (F.C.A.) and Deol v. M.E.I. [1992] F.C.J. No. 1072 (F.C.A.)

[27]            In Sandhu, supra, McKeown J. had to decide whether the IAD erred in law in failing to follow a precedent. In that case, the panel favored two decisions of the IAD over the decision Kirpal to support its conclusion that it could be "mindful" the mother's medical condition in considering an appeal on humanitarian and compassionate grounds. McKeown J. expressed doubts about the validity of the Kirpal decision but nevertheless concluded as follows:

Although Chauhan does consider Federal Court of Appeal jurisprudence, there is no specific reference to this by this panel in their reasons and furthermore the reference to Jugpall is based on the facts in that case. _It is not in accordance with the doctrine of stare decisis for the IAD to look at two other decisions of the IAD in preference to a decision of the Federal Court Trial Division. The IAD decision should have referred to the Federal Court of Appeal decisions and made it clear that it was following the Federal Court of Appeal decisions in preference to the Kirpal decision. I have grave doubts about the validity of the Kirpal decision, but the IAD is bound to follow Trial Division decisions on point unless they are distinguished or based on decisions of the Federal Court of Appeal or Supreme Court of Canada.

[28]            In Mohamed,supra, the Federal Court of Appeal stated:

Since the appellant relied on both paragraph (a) and paragraph (b) it was the Board's duty, after finding that the sponsored application had been properly refused, to consider the granting of relief on compassionate or humanitarian grounds. Although the Board did not specifically say so, it is clear that the medical evidence was of some relevance to this question since it tended to show that the appellant's mother's condition was not now as serious as it was originally thought it might be.

[29]            In Deol, supra, the Federal Court of Appeal held:

The Board here considered only the humanly understandable reluctance of the family to confront the fact of Ranjit Kaur Deol's retardation and the successful functioning of the two households. In so doing, in our view it fettered its discretion.

It failed to take into account, in particular, the nature of Ranjit Kaur Deol's condition, the psychological dependencies it engenders and the close bonds of affection that may arise in such a family, all in the light of the objective proclaimed in s. 3(c) of the Immigration Act of facilitating the reunion of close relatives in Canada. In the event of Ranjit Kaur Deol's admission, the whole immediate Deol family would be reunited in Canada except for a married sister remaining in India: the grandmother, mother, son and wife (who was a friend of Ranjit's), and two daughters would all be united in a Canadian family circle.

[30]            In Dee, supra, the applicant alleged that he was deprived of a full and fair opportunity to adduce evidence with respect to "the respondent's criminal activities in the Philippines," and that he was deprived of a full and fair opportunity to test the credibility of the respondent. Pinard J. concluded:

It is clear from this citation that the majority of the Appeal Division considered the outstanding charges against the respondent when balancing those factors which led them to find in his favour. The decision under review does not refer to the Kumar case. Thus, it also appears that the majority decision not to admit evidence respecting the outstanding criminal charges was a decision that such evidence was unnecessary for dealing with the subject matter before the Appeal Division. The fact that this evidence was unnecessary is confirmed both by the majority and the minority decision. As correctly submitted by counsel for the respondent, the majority decision relied on the conclusions that the respondent should not be separated from his family; that he has lived in Canada for more than ten years and is fully settled; that during these ten years the respondent has not been in trouble with the Canadian law and has contributed to Canadian society in a very positive manner; and that there was no criminal conviction and no extradition request. Evidence about alleged wrongdoing in the Philippines prior to January 1981 where there was no criminal conviction is not relevant to any of these conclusions. For the minority, it is also true that the evidence that the applicant wished to lead was unnecessary for dealing with the subject matter before the Appeal Division. The dissent found that the respondent was engaged in immoral and unethical business practices, and was undeserving of the Appeal Division's equitable jurisdiction.

For the minority, evidence about the criminality of the respondent's business practices, as opposed to their morality, would have been superfluous.

In my view, even if the applicant had been allowed every opportunity to lead evidence on the outstanding criminal charges, as the applicant claims he had a right to do, the decision of the Appeal Division would have been the same because of the passage I have underlined in the above citation from the majority decision.

Under such circumstances, because the applicant has failed to satisfy me that the majority of the Appeal Division could not reasonably refuse to deal otherwise with the outstanding criminal charges against the respondent and that it could not reasonably give the evidence of mere criminal allegation little or no weight, the question of whether the Kumar case was properly applied need not be decided. Indeed, an improper application of that case "could not and did not have any effect upon the outcome" of the respondent's appeal and could therefore not constitute a reviewable error under the Federal Court Act (see Schaaf v. M.E.I., [1984] 2 F.C. 334 (F.C.A.) at 341).

[31]            Only the decision Kirpal, supra, submitted by the applicant deal specifically with the issue of whether the IAD can weigh the legal impediment against the humanitarian and compassionate grounds alleged by an applicant. The caselaw submitted by the respondent implicitly support the assertion that a weighing of the legal impediment against the H & C grounds can be made by the IAD.

[32]            The respondent also relies on the decision of the IAD in Chauhan v. Canada (M.C.I.), [1997] I.A.D.D. No. 2052, where the IAD considered the decision in Kirpal, but relied on the decisions submitted by the respondent in the case at bar to determine that it could consider the legal impediment against the humanitarian and compassionate ("H & C") grounds to determine whether to grant special relief or not. The IAD held:

One might well ask: relief from what? What else could it be, but the weight of the legal impediment which caused the visa officer to refuse the application in the first place and thereby precipitate the appeal?

How then could a quasi-judicial tribunal, exercising its discretion in this context, do anything else but weigh both the factors which led to the appeal being launched in the first place ("the grounds for refusal") and the compassionate or humanitarian factors now advanced by the appellant?

It is doubtful whether such quasi-judicial discretion can, as Kirpal seems to suggest, be exercised properly in a vacuum.

Clearly an applicant refused a visa for some minor transgression of the laws of his country (e.g. killing a cow and selling its carcass without authority) is quite a different kettle of fish from another applicant refused because of an armed robbery or murder conviction.

An applicant refused a visa on health grounds for an illness or disability which might barely meet the test for "excessive demands" pursuant to section 19(1)(a) is in quite different position from an applicant on a dialysis machine requiring triple by-pass surgery and who is clearly going to make major demands on health or social services. The factors, situations and permutations on this theme are endless, as thousand of IAD decisions down the years indicate. However, the central thread of them all is the weighing of often competing interests of the individual versus society, compassion versus the letter of the law.

The second aspect of Kirpal is no less problematic, as both counsel very strongly urged. It appears to turn the Immigration Act on its head. Although several members of a family are being sponsored and there is therefore more than one application for permanent residence, there is only one Undertaking of Assistance (sponsorship) covering them all. There is only one appeal. That is the scheme of the Act. Section 3 of the Act refers to family reunion in Canada as one of the cornerstones of Canada's immigration policy. Kirpal appear to give short shrift to all this.

While the Appeal Division, necessarily, makes no observation on the scathing characterization of Kirpal by both counsel, it certainly understands their angst. From the appellant's perspective, the effect of Kirpal is that discretion is exercised not with respect to the family being sponsored but to each individual member of it; some members may get to join the sponsor in Canada as a result of this unwieldy method of exercising discretion and some others may not. The parent may be allowed to come but a child of that parent gets left behind. This is precisely the utter confusion presaged by Mahoney J. (dissenting) in Mundi.

"The objective to facilitate the reunion of families in Canada will not be achieved by affording, for example, a parent the right to be reunited with an adult Canadian child while leaving behind a chronically ill spouse or infant child - yet that is the result proposed; the option to come to Canada as an immigrant is to be that of the sponsored applicant alone if he is himself admissible. It can lead only to further fragmentation of families, not reunion".

From the respondent's perspective the results are equally unhappy. Rather than having the appeal allowed or dismissed with respect to all the applicants, as is the case now, the appeal would be allowed or dismissed with respect to each applicant. So the successfully sponsored father is allowed to come to Canada while the unsuccessful mother remains behind. The logical consequence of such an highly unsatisfactory result is yet another round of applications, refusals and appeals. Such a scheme hardly accords with section 3 policy considerations to "facilitate the reunion in Canada" of close family members from abroad. Rather, it unnecessarily frustrates it and creates a bureaucratic nightmare.

Besides, the differing results contemplated by Kirpal ignore one fundamental fact of section 77. Appeal rights belong solely to the appellant in Canada, not to individual applicants abroad. It is true that the compassionate or humanitarian considerations of the case may relate to either the appellant, or any particular applicant, or all of them. However, the litigant who seeks the special relief within the tribunal's discretion is the appellant. It is one appeal, by one appellant. It is a cold wintry comfort to a 'successful' appellant to say, as the court did in Kirpal:

Assuming different results, it would have been for the sponsored members of the family class and, perhaps, for other members of their family, to determine whether the sponsored family members would all return to Fiji or choose to separate between Fiji and Canada.

The Appeal Division fully agrees with both counsel for the appellant and respondent that from, every perspective, the results of Kirpal are highly unsatisfactory. They are the very antithesis of compassion. Because it appears to fly in the face of previous jurisprudence of the Federal Court of Appeal and the Federal Court Trial Division this panel, respectfully, declines to follow it. It will apply the law in the manner in which litigants on both sides have come to expect for as long as the legislation has been on the books.

[33]            The Supreme Court of Canada in Baker, supra explained that H & C considerations had to be central in determining whether an individual H & C decision was a reasonable exercise of the power conferred by Parliament. However, the Supreme Court did not deal with the question submitted by the applicant in the case at bar.

[34]            The decision in Kirpal, is to the effect that the IAD should not weigh the extent of the legal impediment against the strength of the H & C factors on a H & C application.

[35]            It seems to me that the interpretation of paragraph 77(3)(b) of the Act in Kirpal is reasonable, especially when considering it in regard to paragraph 70(1)(b). Furthermore, the applicant submission that the plain meaning of "humanitarian" and "compassionate" cannot encompass considerations related to a sponsor's failure to repay the debt of another person, is a valid point. The fact that paragraph 77(3)(b) uses the words "humanitarian" and "compassionate" grounds seems to indicate that other grounds should not be considered.

[36]            However, I also agree with the IAD in Chauhan, that this interpretation has the effect that the decisions on H & C applications will be made in a vacuum without regard to the reason why special relief is sought.    Furthermore, as was noted in Chauhan, paragraph 77(3)(b) of the Act refers to the "granting of special relief", which is special relief from the Act. Paragraph 77(3)(b) itself refers to the legal impediment which caused an immigration officer to refuse an application in the first place since it considers that special relief from the Act (which could read as special relief from the legal impediment imposed by the Act) can be given.

[37]            The caselaw from the Federal Court of Appeal submitted by the respondent also implicitly accept that the IAD can weigh the legal impediment against the H & C factors.

[38]            In Canada (M.C.I.) v. Owens, [2000] F.C.J. No. 1644 (F.C.T.D.), Dawson J. held, regarding the issue whether the IAD erred in balancing the legal impediment against the H & C considerations under paragraph 77(3)(b) of the Immigration Act:

In Kirpal, supra the Court set aside a decision of the Appeal Division where in exercising its jurisdiction under subsection 77(3)(b) of the Act, the Appeal Division has weighed the extent of the legal impediment against the strength of the humanitarian or compassionate factors which were present.

I find the Kirpal decision distinguishable from the case before me. In the present case, there was full consideration of proper compassionate and humanitarian factors with one allegedly irrelevant consideration that of the effect of the prior wrongful refusal, being factored in.

A patently unreasonable decision is one which is evidently unreasonable. As the Supreme Court of Canada noted in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at page 777, the difference between an unreasonable and a patent unreasonable decision lies in the "immediacy or obviousness of the defect".

I conclude that the decision of the Appeal Division on the existence of humanitarian or compassionate factors in the present case was not patently unreasonable. I do not find the reasons of the Appeal Division with respect to the issue of its humanitarian and compassionate jurisdiction to be obviously defective. At worst, one irrelevant factor was considered. Even if the Appeal Division ought to have ignored the matter set out in the second and third paragraphs of its analysis, there were sufficient other humanitarian and compassionate factors, not tainted by any irrelevant considerations, to justify its decision. Further, in the circumstances of this case, the disruptive effect of the refusal on Mr. Fawaz's life who is established in Canada where he has lived for the past ten years and the stigma attached to him were, in my view, factors that could be properly considered and weighed with other factors by the Appeal Division.

[39]            To paraphrase Dawson J., even if the IAD ought to have ignored the matter of the social assistance benefits claimed by his ex-fiancée, in the case at bar, I find that there was full consideration of proper H & C factor. The IAD's conclusion that there were insufficient H & C factors that warranted the granting of special relief is reasonable.

[40]            Therefore, this application for judicial review is dismissed.

[41]            Counsel for the applicant suggested a question for certification:

In an appeal based on humanitarian and compassionate grounds under paragraph 77(3)(b) of the Act, does the IAD err if it focusses on the legal impediment which gives rise to the appeal?

[42]            Counsel for the respondent opposed certification of that question and suggested another question:

Is it wrong for the IAD to consider the nature or circumstances regarding legal impediment when determining on a balance of probabilities whether sufficient humanitarian and compassionate considerations exist to warrant granting special relief pursuant to paragraph 77(3)(b) of the Act?

[43]            In my view, the second question raises a question of general importance. Therefore, the second question will be certified.

Pierre Blais                                          

Judge

OTTAWA, ONTARIO

August 30, 2001