Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436

Date: 20030415

Docket: IMM-2330-02

Neutral citation: 2003 FCT 436

BETWEEN:

                                                   ELIZABETH ESPARRAGO AGOT,

                                                                                                                                                      Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

LAYDEN-STEVENSONJ.

[1]                 On May 2, 2002, an immigration officer determined that there were insufficient humanitarian and compassionate grounds to warrant granting the applicant an exemption pursuant to subsection 114(2) of the former Immigration Act, R.S.C. 1985, c. I-2 (the Act). The applicant seeks judicial review of that decision.

[2]                 The applicant was landed in Canada on June 12, 1993, as a member of the family class. She was sponsored by her parents who, in turn, had been sponsored by the applicant's sister. On November 14, 1996, the applicant was found by the Adjudication Division of the Immigration and Refugee Board to be a person described in paragraph 27(1)(e) of the Act by virtue of having misrepresented a material fact prior to or after landing, i.e. she failed to disclose her marriage to Manuel Acorceles on September 11, 1991. As a consequence, the applicant was ordered deported.

[3]                 The applicant appealed the deportation order to the Appeal Division of the Immigration Refugee Board (IAD). The hearing took place on November 10, 1997 and by order dated January 16, 1998, the IAD upheld the validity of the removal order and dismissed the applicant's appeal in equity. The hearing was subsequently re-opened on April 7, 1999 on the basis of new evidence. In October, 1999, the IAD again upheld the validity of the removal order and dismissed the appeal in equity. The applicant successfully applied for and was granted review of the second decision and a third hearing before the IAD took place in October, 2001. The applicant's appeal was dismissed.

[4]                 The applicant filed her application to remain in Canada on humanitarian and compassionate grounds (H & C) in 1999. In October, 2001, she converted her H & C application into a spousal H & C application, having married a Canadian citizen on August 25, 2001. The applicant and her husband were interviewed on April 30, 2002. On May 2, 2002, her application was refused. The application for leave and for judicial review of the refusal decision was filed on May 21, 2002. The applicant's removal was stayed, pending determination of this application, by order of the Federal Court of Canada, Trial Division dated June 24, 2002.

[5]                 The applicant argues two grounds of review. First, the immigration officer breached the duty of procedural fairness in failing to follow the ministerial guidelines as outlined in the Immigration Manual: Inland Processing (IP), Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate (H & C) Grounds. Second, the immigration officer fettered his discretion by attaching undue weight to the factor of the applicant's 1993 misrepresentation of her marital status while excluding consideration of other relevant factors.

[6]                 The respondent submits that the immigration officer carefully reviewed all of the applicant's submissions before rendering his decision. The fact that the decision was unfavourable does not constitute a ground upon which to set it aside. There is no evidence, argues the respondent, to support the allegation that the officer fettered his discretion in failing to apply the guidelines. The respondent contends that the applicant's position constitutes nothing more than an attempt to have the court re-weigh the evidence.

[7]                 There was some confusion during the oral arguments as to whether the sponsorship application had been approved. The applicant took the position that in contravention of the guidelines it had not, while the respondent maintained that approval had been granted. I am satisfied, having heard the parties and having examined the sponsorship application contained in the tribunal record, that the sponsorship application of David Savard (the applicant's husband) was approved on May 1, 2002.

[8]                 It is useful to review some of the established principles regarding H & C applications. The decision of the ministerial delegate with respect to an H & C application is a discretionary one: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H & C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm.L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh); Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H & C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).

[9]                 With these principles in mind, I turn to the guidelines regarding the assessment of H & C applications and refer specifically to those that are central to the arguments.

7. SPONSORSHIPS AND SPONSORSHIP APPEAL RIGHTS

Sponsorships must be considered properly in the H & C decision-making context. Rights and obligations of sponsors must be consistent whether applications are processed in Canada or abroad.

Generally, an H & C application based on family class relationship is supported by a sponsorship from a Canadian citizen or permanent resident. This is a practical way for relatives in Canada to support an application and to demonstrate their desire to have the family member remain in Canada. However, lack of a sponsorship does not mean that the H & C request should be refused; rather, it is just one of all of the other factors taken into account by the decision-maker.

The sponsorship approval decision must be made before looking at the H & C request. This is so that sponsorship existence or lack thereof and comparative importance of this fact can be considered when making the H & C decision . . .

The existence or lack of an approved sponsorship could be a significant factor when the H & C request is based on family reunification. However, there is no legal requirement that applicants be sponsored in order to be considered under R2.1. Where a family class relationship exists and the H & C application is not supported by an approved sponsorship, this is just one factor to be considered along with all of the other aspects of the application. The following sections provide further guidance for specific situations . . .

7.1 No sponsorship completed

Where an H & C application based on reunification of relatives who could be members of the family class is not supported by a sponsorship

. inform the applicant that an approved sponsorship, although not mandatory, is an important factor in an H & C application

. give the applicant an opportunity to have the sponsorship forms completed or explain why there is no sponsorship

. make the H & C decision when all the relevant facts are available.

7.2 Sponsorship submitted but refused

Where a sponsorship application was submitted but refused

. inform the applicant that the sponsorship has been refused (if this information has not already been relayed)

. check FOSS to determine why the sponsorship was refused; if it is not clear FOSS [sic], you may wish to ask the applicant for a copy of the sponsorship refusal letter

. make the H & C decision when all relevant facts are available.

8. GENERAL CASE TYPES

H & C applications must be reviewed on a case by case basis. Applicants are free to make submissions on any aspect of their personal circumstances that they feel would warrant being granted the exemption requested. Nevertheless, many cases have common elements.

The following guidelines describe some situations where positive discretion may be warranted. They may be helpful when deciding whether the circumstances presented by the applicant are sufficiently compelling to warrant an exemption from A9(1). They will not answer all eventualities nor can they be framed to do so. These guidelines are to assist you in assessing H & C situations. You cannot be restricted by guidelines; you are obliged to consider all the information you have.

8.1 Spouses of Canadian citizens or permanent residents

Regulation 2(1) defines a spouse, with respect to any person, as the party of the opposite sex to whom that person is joined in marriage. Spouses may submit an H & C application on the basis of the marriage relationship either with or without the support of a sponsorship undertaking.

8.1.1 Spouses sponsored as members of the family class

Canada's long-term policy has been facilitation of admission for those spouses in Canada sponsored by their Canadian citizen or permanent resident spouses.

SPOUSES SPONSORED AS MEMBERS OF THE FAMILY CLASS

First of all determine           

. Has a sponsorship has [sic] been submitted and approved? If so, the applicant is a potential member of the family class and this can be considered as a favourable H & C factor.

Then consider

. Is the marriage genuine? That is, a marriage with the intention of residing permanently with the other spouse and not entered into for the primary purpose of remaining in Canada or gaining admission as a member of the family class. You may wish to consider

- the legality of the marriage (see OP 2 - Processing Members of the Family Class, Section 5, Spouses).

- the circumstances and timing of the marriage. For example, did the marriage take place after the applicant was refused a visitor extension or when removal was imminent?

. How long has the couple been in the relationship?

. The religious, social and cultural norms of the applicant's community.

. Previous dealings with the Department that might be relevant. For example, a previous marriage of convenience, enforcement action, refused immigration applications, or misrepresentation.

. Any other factors that you believe to be relevant to your decision.

[10]            While the guidelines do not constitute law and are not binding on the Minister and his delegates, they are not to be regarded as insignificant. In this respect, I refer to an excerpt from Legault wherein the Federal Court of Appeal repeated the following comments of the Supreme Court in Suresh:

The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions (paras. 54 and 55). The Court also made it clear in Baker that its approach "should not be seen as reducing the level of deference given to decisions of a highly discretionary nature" (para. 56) and, moreover, that any ministerial obligation to consider certain factors "gives the applicant no right to a particular outcome or to the application of a particular legal test" (para. 74). To the extent this Court reviewed the Minister's discretion in that case, its decision was based on the ministerial delegate's failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.

The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied [page 368] limitations and/or patently relevant factors: see Anisminic Ltd. V. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); [1982] 2 S.C.R. 2=">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds). [emphasis added]

[11]            Thus, while not to be rigidly or restrictively applied, the guidelines assist and instruct the court in determining what factors the Minister considers to be of particular relevance and significance to an H & C application.

[12]            A review of the guidelines reproduced earlier reveals that an immigration officer is directed to determine whether a sponsorship application has been submitted and approved. I agree with the respondent that the directive was met in this case because the officer who conducted the interview and determined the H & C application also determined the sponsorship application. He approved the sponsorship application after the interview, but prior to determination of the H & C application.

[13]            The guidelines next state that a positive sponsorship application can be considered as a favourable H & C factor. They do not dictate imperative consideration. While the sponsorship application is obviously relevant and important, the fact remains that an officer is not obliged, by the guidelines, to refer to it as a specific consideration although it is reasonable to assume that it would militate in favour of an applicant. That being said, an allegation that an immigration officer failed to conform to the guidelines by not specifically referring to a favourable sponsorship application, without more, will not sustain an argument of breach of procedural fairness. This is particularly so where, as here, the same officer determines both applications.    Amanfo v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm.L.R. (3d) 16 (F.C.T.D.) relied upon by the applicant is distinguishable because, there, the sponsorship application had not been determined prior to the determination of the H & C application.

[14]            With respect to a bona fide marriage, the guidelines direct the officer to consider whether the marriage is genuine. It is obvious, upon review of the immigration officer's handwritten notes, that he considered this issue. Although he did not specifically so state, it is implicit in his reasons (Report to File entitled "Humanitarian and Compassionate Assessment - Notes to File", section 6) that he regarded the marriage as genuine. The applicant cannot succeed on the first argument.

[15]            Regarding the argument that the immigration officer attached undue weight to the applicant's 1993 misrepresentation of her marital status while excluding consideration of other relevant factors, a review of the record does not support such a finding. The officer considered the applicant's immigration history as a relevant factor. He also considered that the applicant's husband was aware, at the time of the marriage, that there was a deportation order against her. Additionally, he considered that the applicant had no dependants. Finally, he considered that the applicant had not always been truthful with immigration officials. Regarding the last factor, there was more than sufficient evidence, in addition to the 1993 misrepresentation, to support this conclusion. It was open to the officer to consider all of these factors. He additionally considered the applicant's marriage to a Canadian citizen, her long-term employment, the fact that most of her family members reside in Canada, her father's poor health, the community support behind her and the poor living conditions in the Philippines including the gender equality problems associated with finding employment. The weighing of these factors was within his discretion. I note the comments of Iacobbucci J. in Law Society of New 2003 SCC 20">Brunswick v. Michael A.A. Ryan and Federation of Law Societies of Canada, 2003 SCC 20 at paragraph 55, wherein the nature of the standard of reasonableness is discussed.

A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, supra, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, supra, at para. 79).

Those comments are appropriate in relation to the applicant's second argument. In my view, the immigration officer's decision is supported by a tenable explanation and is therefore reasonable.

[16]            For the reasons given, the application for judicial review is dismissed and an order will so provide. Counsel did not suggest a question for certification. This case raises no serious issue of general importance and no question is certified.

___________________________________

Judge

Ottawa, Ontario

April 15, 2003

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                                IMM-2330-02

STYLE OF CAUSE:                              ELIZABETH ESPARRAGO AGOT v. MCI

DATE OF HEARING:                         April 10, 2003

PLACE OF HEARING:                       Toronto, Ontario.

REASONS FOR ORDER BY:             LAYDEN-STEVENSON J.

DATED:                                                    April 15, 2003

APPEARANCES BY:                       Ms. Krassina Kostadinov

                                                                                                                     For the Applicant

                                                               Ms. Neeta Logsetty                                                               

                                                                                                                     For the Respondent

SOLICITORS OF RECORD:          Ms. Krassina Kostadinov

Barrister & Solicitor

Waldman & Associates

                                                                Toronto, Ontario

                                                  For the Applicant

                                                                 Ms. Neeta Logsetty

                                                                   Department of Justice

Toronto, Ontario

                                                  For the Respondent