Date:
20080227
Docket: A-102-07
Citation: 2008 FCA 77
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
SHARLOW J.A.
BETWEEN:
CARLOS AUGUSTO AGUILAR ESPINO
ANA AGUILAR GONZALEZ
CARLOS ALEXANDER AGUILAR GONZALEZ
JESSE ANTONIO AGUILAR GONZALEZ
Appellants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Winnipeg,
Manitoba, on February 27,
2008.
Judgment delivered from the Bench at Winnipeg, Manitoba, on February 27, 2008.
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW
J.A.
Date:
20080227
Docket:
A-102-07
Citation: 2008 FCA 77
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
SHARLOW J.A.
BETWEEN:
CARLOS AUGUSTO AGUILAR ESPINO
ANA AGUILAR GONZALEZ
CARLOS ALEXANDER AGUILAR GONZALEZ
JESSE ANTONIO AGUILAR GONZALEZ
Appellants
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Winnipeg, Manitoba, on February 27,
2008)
SHARLOW J.A.
[1]
This
is an appeal of the decision of Justice Dawson (2007 FC 74) dismissing the
appellants’ application for judicial review of the decision of an immigration
officer who rejected their application under section 25 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, for relief on humanitarian
and compassionate grounds from the requirement to apply for permanent residence
from outside Canada.
[2]
The
appeal challenges the provisions of a policy manual which, among other things,
sets out a two-step process to be followed by immigration officers in assessing
applications such as the one in issue in this case. Justice Dawson rejected
those challenges, giving detailed and well stated reasons. We agree with her
conclusions, substantially for the reasons she gave.
[3]
The
certified questions are as follows:
1.
Is the Minister legally entitled to fragment an
application under section 25 of the Immigration and Refugee Protection Act
into a two-step assessment, the first step being an assessment whether
individual humanitarian and compassionate circumstances are sufficient to
warrant an exemption from subsections 11(1) and 20(1) of the Act and the second
step being a determination whether the person is inadmissible?
Answer: The two-step
process set out in the policy manual, which was followed by the immigration
officer in this case, is lawful and consistent with the provisions of the Immigration
and Refugee Protection Act.
2.
Is the Minister obliged, when considering an
application under section 25 of the Act, to weigh or balance the degree of
compelling humanitarian and compassionate circumstances on which the individual
relies against the nature and extent of the legal obstacle to admissibility?
Answer: We
are not persuaded that this issue arises in this case, because as we read the
decision of the immigration officer, consideration was given to this point. On
the facts of this case, the only legal obstacle was the absence of a visa. The
existence of that obstacle is common to all applications under section 25.
[4]
The
appellant also argues that the immigration officer erred in failing to take
into account “public policy considerations”. Justice Dawson said, and we
agree, that this issue does not arise on the record in this case.
[5]
This
appeal will be dismissed.
“K.
Sharlow”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-102-07
(APPEAL FROM A JUDGMENT OF THE FEDERAL
COURT DATED JANUARY 25, 2007, DOCKET NO. IMM-7202-05)
STYLE OF CAUSE: CARLOS
AUGUSTO AGUILAR ESPINO ET AL v. MCI
PLACE OF HEARING: Winnipeg, MB
DATE OF HEARING: February 27, 2008
REASONS FOR JUDGMENT OF THE COURT BY: Décary, Létourneau, Sharlow JJ.A.
DELIVERED FROM THE BENCH BY: Sharlow, J.A.
APPEARANCES:
|
Mr. David Matas
|
FOR THE APPELLANT
|
|
Ms. Aliyah
Rahaman
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
David Matas,
Barrister & Solicitor
Winnipeg, MB
|
FOR THE APPELLANT
|
|
John H. Sims,
Q.C.,
Deputy Attorney General of Canada – Ottawa, ON
|
FOR THE
RESPONDENT
|
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