Irimie v. Canada (Minister of Citizenship and Immigration), docket IMM-427-00

Date: 20001122

Docket: IMM-427-00

Ottawa, Ontario, this 22^nd day of November 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     MIRCEA SORIN IRIMIE and

ELISABETA IRIMIE

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      This application was heard together with the application of Ferenc Kutas and Mihaela Nicoleta Kutas (IMM-429--00). Mircea Sorin Irimie and his wife Elisabeta left Romania because of the treatment they received due to their ethnicity, he as a gypsy (Roma) and she as a member of the Hungarian minority. They applied for a visa to immigrate to Canada but were refused. They came anyway and made a refugee claim. The Convention Refugee Determination Division ("CRDD") found that they had been subject to persecution but that they had an internal flight alternative, that is they could find safety by moving to another part of Romania. Their application for refugee status was dismissed. They applied for leave to make an application for judicial review of the CRDD decision but were refused. They then made an application for an exemption from the requirement that applications for landing must be made from outside the country. Such applications, made pursuant to subsection 114(2) of the Immigration Act (the "Act"), (R.S.C. 1985 c. I - 2, which reads:

Exemption from regulations

114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

are commonly referred to as H & C applications, short form for Humanitarian and Compassionate, which are the criteria to be applied to the processing of these applications. If the Irimies' application had succeeded, they would not have to leave Canada to apply for admission as permanent residents. Their application was refused and they now bring this application for judicial review.

[2]      The material filed in support of their application leads one to believe that the applicants could well be model immigrants. They have shown themselves to be law-abiding, hard-working, thrifty, and engaged in their community. They have invested in a taxi business and in a home. The Immigration department official, who considered their application, considered these factors (and others) and concluded that there were insufficient humanitarian and compassionate grounds to justify granting the applicants an exemption from the requirement that they apply for landing from outside the country.

[3]      Their case was argued on technical grounds as these judicial review applications must be. It is said that the officer who decided the application considered irrelevant factors and failed to consider relevant factors so that the decision must be sent back to another officer for reconsideration. But the real thrust of the applicants' argument is that it is not fair to require them to leave the country now. Counsel argues that they had the right to come here to make a refugee claim, and that in fact they were found to be persecuted, though not refugees. Now that they have established themselves here while waiting for their application to be processed, they should not have to leave the country for the significant period of time that it would take to process their application.

[4]      It is not obvious that refugee claimants have a right to enter Canada. Subsection 5.(1) of the Immigration Act states:

Where privilege to come into or remain in Canada - No person, other than a person described in section 4, has a right to come into or remain in Canada.

[5]      The relevant portions of section 4 read as follows:

4. (1) Where right to come into Canada - A Canadian citizen and a permanent resident have a right to come into Canada . . .

(2.1) Right of Convention Refugees - Subject to any other Act of Parliament, a person who is determined under this Act or the regulations to be a Convention refugee has, while lawfully in Canada, a right to remain in Canada . . .

     (emphasis added)

[6]      Based on these provisions, it can be said that the applicants, as refugee claimants, had no right to enter Canada to make their claim: see Huynh v. Canada (C.A.) (F.C.A.), [1996] 2 F.C. 976 at para. 8, (1996), 197 N.R. 62; Sinnappu v. Canada (Minister of Citizenship and Immigration) (T.D.), [1997] 2 F.C. 791 at para. 23 to 25, [1997] F.C.J. No. 173 ; and Nayci v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1741 at para. 14, (1995), 105 F.T.R. 122.

[7]      The officer who interviewed the Irimies for the purposes of their H & C application took notes, charted the pros and cons of their position and then wrote them a letter, reproduced below, setting out the reasons for which their application was dismissed:

RE: HUMANITARIAN AND COMPASSIONATE APPLICATION

This refers to your request for processing from within Canada on humanitarian and compassionate grounds.

In order for your request to be approved, humanitarian and compassionate considerations are assessed to determine whether an exemption from subsection 9(1) of the Immigration Act, the requirement to apply for and obtain an immigrant visa prior to coming to Canada, will be granted.

The individual circumstances of your request for an exemption from the requirement of subsection 9(1) have been reviewed and it has been decided that an exemption will not be granted for your application for the following reasons:

The refugee board found that although there was a well founded fear of persecution in Romania, this was a localized risk and the board found it not to be unreasonable for the applicants to live in another part of Romania. The refugee board also presented evidence of improved conditions for Hungarians in Romania and that Hungarians do have access to Human Rights within the country of Romania.

The applicants were refused visas from the Canadian Embassy in 1995 but still proceeded to come to Canada.

The applicants are currently under removal orders as failed refugee claimants.

Mr. Irmie has family ties in Romania, including two daughters. Although the applicant submitted verification of ongoing financial support to his daughters, he also stated that his former wife has custody of these daughters and he does not know if their mother would let them come to Canada. Remaining in Canada may result in the continued separation of these children and their father.

I considered the letter addressed to Erzsike, Mirsea, Lehel, Mihaela, and Feri that was submitted during our interview on December 3, 1999 but it did not satisfy me that the applicants cannot return to Romania.

As indicated by the applicants and the letters of support on file, ties have been established in Canada since 1996, however, these ties were established with the knowledge that the applicants may be required to leave Canada.

I considered the recent purchase of a townhouse in Canada, however, this townhouse was also purchased with the knowledge that the applicants may be required to leave Canada.

I considered the difficulty that Lehel will have in adjusting to a new school and returning to Romania but I find the evidence to show that he is an intelligent and capable individual who has already successfully adjusted to a move to Canada. I am not satisfied that he would not adjust.

I also considered evidence that the applicant's are well-accepted members of the community, employed and that they would make good prospective immigrants but this is not sufficient grounds to exempt section 9(1) of the Immigration Act.

Therefore, after considering all the information, I am not satisfied that sufficient humanitarian and compassionate grounds exist to exempt section 9(1) of the Immigration Act.

Sincerely,

Tamara Leedahl

     Immigration Officer

[8]      However, the respondent also disclosed the officer's pros and cons chart showing various factors which were thought to impact upon the decision. That chart is set out below:

PROS

CONS

- difficulty for Lehel to adjust to a new school in Romania

- just recently purchased a condo/townhouse in Canada

- presently employed in Canada

- not receiving social services or UI

- Mr. Irmie has 2 daughters in Romania - mother has custody of them and applicant does not know if she would allow them to come to Canada

- other family ties in Romania (mothers, nepehew)

- applicants were refused visitor visas but still proceeded to come to Canada in 1996

- well accepted members of the community (letters of support)

- failed refugee claimants

- Mr. Irmie has sent support payments for his daughters

- letter from Mrs. Irmie's mother

- well founded fear of persecution

- degree of establishment

- productive members of society

- english capabilities are good

- allowing Mr. Irmie to remain may result in further separation of these two daughters and their father

- localized risk (persecution)

- evidence of improved conditions for Hungarians in Romania and that Hungarians do have access to Human Rights within the country of Romania

- the degree of establishment was made with the applicants knowledge that they may not be permitted to remain in Canada permanently

- Lehel adjusted well in moving to Canada which was a completely foreign county and language. He will be returning to a country where he has already spent the majority of his life. It may be difficult but there is not enough evidence to prove he will not eventually adjust. He appears extremely resilient and intelligent

[9]      There was some controversy as to the exact status of the "reasons" contained in the refusal letter compared to the factors which were referred to in the pros and cons chart. Were the reasons really reasons, in the sense of explaining the decision or were they simply factors which were considered but which may not have been given any weight? In the end, counsel agreed that the pros and cons chart contained the factors which the officer had considered but that those which appeared as reasons were those to whom some weight was given.

[10]      The applicants complain that the officer considered irrelevant considerations and ignored relevant considerations. This raises the question of what is relevant in these applications and what is not. The Manual which the Minister of Immigration prepares for the use of departmental staff in processing these applications says that humanitarian and compassionate considerations refers to unusual, undeserved or disproportionate hardship:

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 of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. ...

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. ...

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 theapplicant due to his or her personal circumstances.

Citizenship and Immigration Canada, Inland Processing Manual, Chapter IP5 Immigrant applications made in Canada on H & C grounds. Section 6 The H & C Decision

[11]      In Baker v. Canada, [1999] 2 S.C.R. 817, (1999), 243 N.R. 22, Madam Justice L'Heureux-Dubé pointed out that the Manual is a good indicator of how the discretion given to the Minister and exercised in her name by the H & C officer is to be exercised:

The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable.    They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members.    The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.

     Baker supra at para 72.

[12]      If one then turns to the comments about unusual or undeserved which appear in the Manual, one concludes that unusual and undeserved is in relation to others who are being asked to leave Canada. It would seem to follow that the hardship which would trigger the exercise of discretion on humanitarian and compassionate grounds should be something other than that which is inherent in being asked to leave after one has been in place for a period of time. Thus, the fact that one would be leaving behind friends, perhaps family, employment or a residence would not necessarily be enough to justify the exercise of discretion.

[13]      The applicants complain that the officer who dealt with their application considered and gave weight to irrelevant factors. Among the irrelevant factors was the fact that the applicants were failed refugee claimants. The applicants say this is irrelevant since, by definition, one must be without status to make an H & C application, so that the reason one is without status should be irrelevant. Given that one of the criteria to be considered is whether the hardship arising from having to leave the country is undeserved, the question of how one entered the country is of some relevance to that issue. It might be a positive or a negative element depending upon the circumstances. In this case, the visa officer placed this factor in the "cons" column, just as she did with the fact that the applicants had applied for a visa and been refused. These are factors which could reasonably be considered in deciding whether the hardship which the applicants might face was undeserved.

[14]      The applicants also complain that the H & C officer did not consider and gave no weight to the fact that the applicants were self-employed and had invested in a business which, according to the evidence before the visa officer, they would lose if they were required to be away for more than a few weeks. The business in question was a lease of a taxi franchise. In other words, the applicants paid a certain amount monthly for the use of a taxi licence (and presumably an associated vehicle) and retained the earnings from the operation of the taxi, after paying the running expenses. The applicants point to cases which have held that the loss of a business is a circumstance to be considered, including stay of execution applications where loss of a business has been held to constitute irreparable harm.

[15]      The respondent's position is that the fact of employment was listed in the pros and cons list even though it did not figure in the factors to which weight was given. i.e. the reasons for the decision. The weight to be assigned to particular factors is discretionary and in the context of whether such a loss is unusual, the H & C officer clearly found that it was not. The H & C officer did not distinguish between business and employment.

[16]      The evidence before the H & C officer did not permit her to assess the business aspects of the applicants' taxi operation. She was not given a copy of the lease, so she could not determine if it was for a fixed term, and if so, how much of the term remained, and whether it was renewable. She was not told whether the applicants had made a capital investment in the business and whether that capital investment would be lost if they were required to leave the country. There is no information as to the availability of other lease opportunities at any given time and whether the applicants could enter into a similar arrangement, should they be successful in their overseas application for landing. In other words, the only evidence that this was in reality a business was the assertion of that fact by the applicants and by the representative from the taxi company who accompanied them to their interview. It was not unreasonable for the H & C officer to treat this factor as she did.

[17]      Objection was also taken to the fact that the H & C officer noted that the applicants had purchased a home but commented that they had done so knowing that they were subject to a departure order. Counsel for the applicants took the position that everyone who applied for relief under subsection 114(2) of the Act knew that they could be required to leave. If this should become a ground for not allowing the application, there would be no successful applications, he argued. In fact, counsel is correct to this extent: the risk of the loss of assets acquired while in Canada is common to all who are in Canada without permanent resident status. That possibility is therefore not unusual. Whether such a loss is undeserved may well vary with the circumstances but in general, one would think that if one assumes a certain risk, the occurrence of the eventuality giving rise to the risk does not create undeserved hardship. The hardship is a function of the risk assumed.

[18]      The applicants point to the portions of the Manual which refer to the degree of establishment in Canada as one of the factors to be considered in evaluating H & C applications and argue that the H & C officer did not properly consider this factor in disposing of the application. The applicants argue that the investment in a home and a business are clearly indicators of attachment which ought to have been given more weight than they were. The proof that they were not given sufficient weight is that the application was refused.

[19]      As noted above, the Baker decision described the guidelines as useful aids in determining how the discretion granted by the Statute is to be exercised. The wording of the guidelines relating to establishment suggests that consideration of an applicant's degree of establishment, while permitted, is not mandatory:

     6.2 General establishment guidelines

The applicant's degree of establishment in Canada may be a factor to consider in certain situations, particularly, when evaluating some case types described in Section 8.

Section 8.1.2 Parents/grandparents not sponsored as members of the family class

Section 8.5 Separation of parents and children (outside the family class)

Section 8.6 De facto family members

Section 8.7 Prolonged inability to leave Canada has led to establishment

Section 8.10 Family violence

Section 8.11 Former Canadian citizens

Section 8.12 Other cases.

Establishment of the applicant up to the time of the H & C decision can be considered. However, it is inappropriate to assess the potential establishment of the applicant as this falls within the scope of admissibility criteria. [Underlining added].

[20]      The guidelines could be seen as limiting a decision-maker's discretion as to when establishment can be considered as a factor for an H & C determination. Without anything more than reference to the guidelines themselves, I cannot agree with the applicants that the H & C officer was required to give some weight to their degree of establishment in Canada. It is a factor to be considered, but it is not, nor can it be, the determining factor, outweighing all others. The degree of attachment is relevant to the issue of whether the hardship flowing from having to leave Canada is unusual or disproportionate. It does not take those issues out of contention.

[21]      There is another issue which engages the decision of the Supreme Court of Canada in Baker, supra, and that is the issue of the best interests of the children. The H & C officer considered not only the interests of the child in Canada but also the interests of Mr. Irimie's children in Romania by his first marriage. It is said that she gave inadequate consideration to the interests of the former and ought not to have troubled herself about the latter.

[22]      In Baker, Madam Justice L'Heureux-Dubé addressed the issue of the consideration to be given to the interests of the children in the following terms:

I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.    In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.

¶ 74        It follows that I disagree with the Federal Court of Appeal's holding in Shah, supra, at p. 239, that a s. 114(2) decision is "wholly a matter of judgment and discretion" (emphasis added).    The wording of s. 114(2) and of the Regulations shows that the discretion granted is confined within certain boundaries. While I agree with the Court of Appeal that the Act gives the applicant no right to a particular outcome or to the application of a particular legal test, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments, the decision must be made following an approach that respects humanitarian and compassionate values.    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. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values.    The Minister's guidelines themselves [page 864] reflect this approach. However, the decision here was inconsistent with it.

     [emphasis added]

[23]      Given that Mrs. Baker had four children in Jamaica and four children in Canada, the observation that she would "necessarily be separated from at least some of her children" if deported from Canada does not particularly reflect the fact that Mrs. Baker had been voluntarily separated from her children in Jamaica for the period of time she was in Canada, some 12 years. One might inquire if it is reasonable to believe that the Convention on the Rights of the Child was intended to be interpreted in such a way as to distinguish between the best interests of children on the basis of their citizenship, particularly upon reflection of the instrument's preamble:     

     Recognizing that the United Nations has, in the Universal Declaration of Human

Rights and in the International Covenants on Human Rights, proclaimed and

agreed that everyone is entitled to all the rights and freedoms set forth therein,

without distinction of any kind, such as race, colour, sex, language, religion,

political or other opinion, national or social origin, property, birth or other status,

Convention on the Rights of the Child, Can. T.S. 1992 No. 3.

[24]      While one can argue that domestic law like the Immigration Act is necessarily concerned with those who are subject to its application rather than with those who are not, it is a miserly view of humanitarian and compassionate considerations to limit their scope to those who are here to the exclusion of those who are not. Surely, "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" must be read to include all the children of the individuals in question, both Canadian and foreign. To hold otherwise is to say that the humanitarian and compassionate needs of Canadian children of particular parents are more worthy of consideration than those of the non-Canadian children of the same parents. It is understandable that distinctions be drawn between these children for legal purposes: it would be "inconsistent with Canada's humanitarian and compassionate tradition" to suggest that there are humanitarian distinctions to be drawn between them based upon citizenship.

[25]      I cannot see how it can be irrelevant to consider the effect of a return to Romania by Mr. Irimie on his children by his first marriage. To say that he settled that question by leaving them behind, or that a court settled it by awarding custody to their mother, is to deny that their interests deserve independent consideration, a theme which runs through the entire Convention on the Rights of the Child. The potential disadvantages to the child who came to Canada with his father of a return to Romania must be considered in the light of the potential advantages to the other children of having their father back in Romania. It is an open issue which the H & C officer was entitled to consider. I see nothing unreasonable in her assessment of the situation.

[26]      I return to my observation that the evidence suggests that the applicants would be a welcome addition to the Canadian community. Unfortunately, that is not the test. To make it the test is to make the H & C process an ex post facto screening device which supplants the screening process contained in the Immigration Act and Regulations. This would encourage gambling on refugee claims in the belief that if someone can stay in Canada long enough to demonstrate that they are the kind of persons Canada wants, they will be allowed to stay. The H & C process is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship. There is no doubt that the refusal of the applicants' H & C application will cause hardship but, given the circumstances of the applicants' presence in Canada and the state of the record, it is not unusual, undeserved or disproportionate hardship. Whatever standard of review one applies to the H & C officer's decision, it meets the standard. The application for judicial review must therefore be dismissed.

[27]      No question was suggested for certification.

ORDER

     The application for judicial review of the decision of the Immigration Officer, Tamara Leedahl, dated January 18, 2000 is hereby dismissed.

                                 "J.D. Denis Pelletier"

     Judge