Date: 20070125
Docket: IMM-7202-05
Citation: 2007 FC 74
Ottawa, Ontario, January 25, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
CARLOS AUGUSTO AGUILAR ESPINO
ANA AGUILAR GONZALEZ
CARLOS ALEXANDER AGUILAR GONZALEZ
JESSE ANTONIO AGUILAR GONZALEZ
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Carlos Augusto
Aguilar Espino, his wife Ana Aguilar Espino, and their two children Carlos
Alexander Aguilar Gonzalez and Jesse Antonio Aguilar Gonzalez applied for
permanent residence from within Canada on humanitarian and compassionate
grounds. Their application was rejected by an officer. On this application
for judicial review of that decision they raise the following two issues:
1. Was the officer’s use of the two-step assessment process
described in chapter 5 of the Inland Processing manual (IP 5) unsupported by
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), and
contrary to its intent?
2. Did the officer err by failing to consider whether public
policy considerations justified an exemption from the usual requirement that
foreign nationals must apply for a permanent resident visa from outside Canada?
[2] In
these reasons, I conclude that the two-step assessment process is not contrary
to the intent of the legislation but is supportable within the terms of the Act,
and that on the facts before the officer she did not err by failing to consider
public policy considerations.
[3] The
issues arise in the following factual context.
BACKGROUND FACTS
[4] Mr.
and Mrs. Aguilar are citizens of Guatemala who arrived in Canada in February of
1998. They brought with them their sons Carlos, born in Guatemala, and Jesse,
born in the United States. Two more children have been born in Canada since
the family arrived. As the two youngest children are Canadian citizens they
were not included in the application for permanent residence.
[5] Upon entering Canada, Mr. Aguilar
and his family made a claim for refugee protection. They were found not to be
Convention refugees by the Refugee Protection Division of the Immigration and
Refugee Board in September of 2000. They then made an application for
permanent residence based on humanitarian and compassionate grounds. That
application was refused on December 2, 2002. A pre-removal risk assessment
(PRRA) application was made on February 3, 2003 and a negative decision was
reached on January 27, 2004. A second PRRA decision, also negative, was made
on July 14, 2005.
[6] Mr.
Aguilar and his family then brought a second humanitarian and compassionate
application for permanent residence, asking that the officer consider their
high degree of establishment in Canada, the best interests of their children
and the disproportionate hardship the applicants would face if they were
required to return to Guatemala.
THE OFFICER’S DECISION
[7] The
officer found that the applicants had achieved a "fair degree of
establishment in Canada". Mr. Aguilar was self-employed in the towing
business, in addition to being employed as an automobile mechanic. The family
had become involved in a church group and the officer noted numerous letters of
support provided by members of the congregation. The two school-aged children
had attended school in Canada for several years. The parents had both upgraded
their education since their arrival in Canada. They bought a home in Winnipeg,
on which they have a mortgage. The applicants were found by the officer to
have made efforts to become established in Canada.
[8] The
officer noted that the applicants had become similarly established during a
six-year stay in the United States, prior to entering Canada, but that they had
chosen to come to Canada to pursue a refugee claim here. The officer,
therefore, found that the applicants had proven themselves to be resilient and
resourceful, able to re-establish themselves at different locations. Mr.
Aguilar had shown that he could find employment in each country to which they
moved. Moreover, two of the children had not yet attended a Canadian school,
so there would be less upheaval if they were moved before they became
accustomed to Canadian schools.
[9] The
officer then went on to consider the best interests of the children. She noted
that the eldest child was a citizen of Guatemala and had lived his first years
there. The children had extended family members in Guatemala, as well as in
the United States, but they had none in Canada.
[10] The
officer observed that the Canadian-born children would not be required to leave
Canada because the parents retained the option of leaving them in Canada.
While the applicants had stated that it would not be feasible to split a family
up in this way, the officer noted that the parents were free to change their
minds in order to provide what they think is in the best interests of their
children. The officer concluded that the applicants would suffer no
disproportionate hardship if forced to return to Guatemala. Though the
applicants complained that the school system in Guatemala is inadequate, the
difference in educational systems was found not to be unique to this family.
Moreover, two of the children have had the advantage of several years of
Canadian education, which in the officer’s view would make them more
educationally advantaged than other Guatemalan children with no Canadian
education.
[11] The
officer went on to consider the risk to the applicants. The officer adopted
the PRRA officer's assessment. The applicants had argued two new sources of
risk: risk by virtue of being female (for Mr. Aguilar's wife) and risk from
being foreign-born or returning children. In particular, the applicants stated
that they feared that their children would be recruited into a gang. The
officer found any risk to Mr. Aguilar's wife would not be unusual and
underserved or disproportionate, as all Guatemalan women would face the same
risk. Regarding the foreign-born or returning children, the officer found that
gang activity also occurs in Canada. Remaining in Canada would not, therefore,
guarantee that this risk would not materialize. The officer concluded that
there was no risk that was unusual and underserved, or disproportionate. The humanitarian
and compassionate application was therefore refused.
APPLICABLE LEGISLATION
[12] It
is a fundamental principle of the Act that those who wish to obtain status as a
permanent resident in Canada must apply for such status from outside of Canada.
This is made clear in subsections 11(1) and 20(1) of the Act, and section 6 of
the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations). These provisions are contained in the appendix to these
reasons.
[13] However,
in order to provide flexibility, and to recognize that there may be cases where
an exemption to that requirement is appropriate, the Minister is given
discretion to exempt a foreign national from that requirement. That discretion
is found in subsection 25(1) of the Act, which provides:
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25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
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25. (1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
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THE MINISTERIAL GUIDELINES
[14] Neither
the Act nor the Regulations specify what constitutes humanitarian and
compassionate grounds. In order to promote fairness and consistency in the
exercise of the discretion conferred by subsection 25(1) of the Act, administrative
guidelines are provided to the officers designated to exercise this
discretion. For applications made from within Canada the applicable guidelines
are found in IP 5.
[15] The
guidelines applicable under the predecessor legislation to subsection 25(1) of
the Act were referred to and relied upon by the Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 at paragraphs 16 and 17. There, the Court wrote:
16 Immigration
officers who make H & C decisions are provided with a set of guidelines,
contained in chapter 9 of the Immigration Manual: Examination and Enforcement.
The guidelines constitute instructions to immigration officers about how to
exercise the discretion delegated to them. These guidelines are
also available to the public.
[…]
17 The
guidelines also set out the bases upon which the discretion conferred by s.
114(2) and the Regulations should be exercised. Two different types of
criteria that may lead to a positive s. 114(2) decision are outlined -- public
policy considerations and humanitarian and compassionate grounds. Immigration
officers are instructed, under guideline 9.07, to assure themselves, first,
whether a public policy consideration is present, and if there is none, whether
humanitarian and compassionate circumstances exist. Public policy reasons
include marriage to a Canadian resident, the fact that the person has lived in Canada, has become
established, and has become an "illegal de facto resident", and the
fact that the person may be a long-term holder of employment authorization or
has worked as a foreign domestic. Guideline 9.07 states that humanitarian and
compassionate grounds will exist if "unusual, undeserved or
disproportionate hardship would be caused to the person seeking consideration
if he or she had to leave Canada". [underlining
added]
[16] Subsequently,
in Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3 the Supreme Court explained its intervention in Baker
in the following terms:
36 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. 54-55). 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. [underlining added]
[17] The
guidelines now in IP 5 explain the objective served by subsection 25(1) of the
Act in the following terms:
The purpose of H&C discretion
is to allow flexibility to approve deserving cases not anticipated in the
legislation. Use of this discretion should not be seen as conflicting with
other parts of the Act or Regulations but rather as a complementary provision
enhancing the attainment of the objectives of the Act. It is not an appeal
mechanism.
[18] As
to the balance to be struck between discretion and consistency, section 2.1 of
IP 5 instructs:
The legislation does not provide
any explanation or guidance about what constitutes humanitarian and
compassionate grounds. Delegated persons have full authority to make this
decision. At the same time, to be fair to clients and to avoid just criticism,
there must be as much consistency as possible in the use of this discretion.
As much guidance as possible is
given to assist officers in striking a balance between the two seemingly
contradictory aspects of discretion and consistency. However, the discretion
of the decision-maker takes precedence over guidance when decisions are made.
[19] The
manual directs that an application to remain in Canada on humanitarian and
compassionate grounds be assessed in two steps (see section 5.5 of IP 5). The
two-step process is explained in sections 5.6, 5.7 and 5.9, which are as
follows:
5.6. First-step assessment:
Toward the H&C decision
The decision-maker assesses
H&C grounds and determines whether:
• the
foreign national should be exempted from the selection criteria related to
becoming a permanent resident from within Canada.
The applicant bears the onus of
satisfying the decision-maker, at the time the application is made, that the
H&C factors present in their individual circumstances are sufficient to
warrant an exemption. The decision-maker considers the applicant’s submissions
in light of all the information known to the officer.
[…]
5.7. A positive H&C
decision
When a decision has been made to
allow a foreign national to apply from within Canada on H&C grounds, for
purposes of the current application only this one-time decision:
• exempts
the applicant from the in-Canada selection criteria based on humanitarian and
compassionate or public policy considerations to facilitate processing of the
application for permanent residence from within Canada; and
• allows
the foreign national to become a permanent resident in Canada subject to
certain requirements [R72(b) and (e)].
[…]
5.9. Second-step
assessment: Toward the decision to confirm permanent residence
Processing of the application
for permanent residence follows a positive H&C decision.
In order to become a permanent
resident, the applicant must meet the requirements for permanent residence in
R68, including that the applicant and their family members, whether
accompanying or not, are not inadmissible and otherwise meet the requirements
of the Act and Regulations.
[emphasis
in original deleted]
[20] Other
relevant guidance is provided in sections 5.12, 5.22, 6.5 through 6.8, and 11.3.
They are as follows:
5.12. Inadmissible applicants
Although foreign nationals who
are inadmissible may submit an H&C application, a positive H&C decision
to waive certain selection criteria does not overcome admissibility
requirements. If after the H&C decision is made, it is determined that the
foreign national is inadmissible, the application for permanent residence must
be refused.
[…]
5.22. Public policy
The Minister may, from time to
time, establish categories of persons whose applications for permanent
residence may be considered for processing as “public policy” cases. A public
policy under A25(1) in relation to resumption of citizenship can be found in
Appendix F.
[…]
6.5. Humanitarian and
compassionate decision
A positive H&C decision is
an exceptional response to a particular set of circumstances. An H&C
decision is more complex and more subjective than most other immigration
decisions because officers use their discretion to assess the applicant’s
personal circumstances.
Applicants must satisfy the
decision-maker that their personal circumstances are such that they would face
unusual, undeserved, or disproportionate hardship if required to apply for a
permanent resident visa from outside Canada.
6.6. Humanitarian and
compassionate grounds
Applicants making an application
under A25(1) are requesting processing in Canada due to compassionate or
humanitarian considerations. Section A25(1) provides the flexibility to
approve deserving cases for processing within Canada, the circumstances of
which were not anticipated in the legislation.
6.7. Unusual and undeserved
hardship
Unusual and
undeserved hardship is:
• the
hardship (of having to apply for a permanent resident 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 a permanent resident visa from outside Canada)
that the applicant would face should be, in most cases, the result of
circumstances beyond the person’s control.
6.8. 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 a permanent resident
visa from outside of Canada) would have a disproportionate impact on the
applicant due to their personal circumstances.
[…]
11.3.
Process for known or suspected inadmissibility of applicant (or
family members)
Decision-making can become
complicated when, prior to or during the consideration of H&C factors, a
known or suspected inadmissibility is identified.
This can occur at the outset
when reviewing the FOSS client history or information provided by the applicant
on the IMM 5001E.
Some examples of known or
suspected inadmissibility are when the applicant (or an accompanying family
member in Canada) is:
[…]
• the
subject of a removal order for criminality or other serious inadmissibility
such as security, organized criminality, or human or international rights
violations;
• the
subject of outstanding criminal charges in Canada or elsewhere;
• suspected
of having committed criminal acts or omissions outside of Canada;
[…]
The relationship between such
facts and the H&C decision is important since officers are not making a
determination of admissibility or inadmissibility at this point. They are
looking at all the applicant’s personal circumstances, as provided by the
applicant and as known to the Department, to determine if there are sufficient
reasons for making a positive H&C decision.
The fact relating to the known of
suspected inadmissibility may be relevant to the H&C decision (for example,
the applicant has a criminal conviction). When considering the H&C
decision, officers must not be concerned with whether or not the conviction
makes the applicant inadmissible. However, they may consider factors such as
the applicant’s actions, including those that led to and followed the
conviction.
Officers should consider:
• the type of criminal
conviction;
• whether
the conviction is an isolated incident or part of a pattern of recidivist
criminality;
• length of time since
the conviction;
• what sentence was
received; and
• any information about
circumstances of the crime.
[emphasis
in original deleted]
[21] IP
5 clarifies that an applicant must file a form IMM 5001E which is entitled
"Request for Exemption from Permanent Resident Visa Requirement". Section 3.1
of IP 5 instructs that:
Note: The IMM 5001E is
considered an “Application to Remain in Canada as a Permanent Resident” only
after a positive H&C decision is rendered.
[22] Having
described the statutory provisions and the Ministerial Guidelines, I now turn
to the two issues raised by the applicants.
Is adherence to the two-step
process an error in law, unsupported by the legislation and contrary to its
intent?
[23] The
applicants begin their submissions by noting that it is not possible for a
foreign national to apply directly to remain in Canada as a permanent resident
on discretionary grounds. A person must first apply to be exempt from the
permanent resident visa requirement. Only when a person is granted an
exemption from that requirement can a person in Canada apply to remain in Canada
as a permanent resident. However, the applicants argue, the Act does not
provide for this sequencing. The applicants say that section 25 of the Act
provides that the Minister "may grant a foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act". Permanent resident status and an exemption from any applicable
criteria or obligation under the Act are said to be placed on an equal footing
in the Act. However, the Minister has given one obligation “pride of place”,
the obligation to have a permanent visa.
[24] The
applicants also argue that the two-step process is perverse and contrary to the
intent of Parliament because it treats all forms and degrees of inadmissibility
alike. They assert that a person who seeks discretionary relief but is inadmissible
because the person has committed a series of violent crimes should be treated
differently from persons who are inadmissible because they do not have a
permanent resident visa. However, they argue, the manner in which the Minister
treats applications for discretionary relief is such that at the first stage
all persons are treated alike. The applicants argue that, presently, only at
the second stage is there a weighing of considerations in favour of the
applicant against grounds of inadmissibility. This is said to severely
prejudice applicants whose grounds of inadmissibility are minor and technical.
[25] Finally,
the applicants note that paragraph 67(1)(c) of the Act confers
jurisdiction on the Immigration Appeal Division of the Immigration and Refugee
Board (IAD) to allow an appeal where, "taking into account the best
interests of a child directly affected by the decision, sufficient humanitarian
and compassionate considerations warrant special relief in light of all the
circumstances of the case". In cases such as Jugpall v. Canada
(Minister of Citizenship and Immigration), [1999] I.A.D.D. No. 600,
the IAD has held that this provision exists for the purpose of making available
a remedy where the “strict application of the law produces harsh results”.
Reliance is placed by the applicants upon the following dicta from Jugpall,
found at paragraphs 22 and 24.
22 The need to
establish the context in which an appeal pursuant to s.77(3)(b) is to be
considered can be understood as a practical and purposive approach to the
administration of the Act. If the purpose of the Act is to
facilitate rather than frustrate immigration, then one of the aims of the Act
in granting a right of appeal pursuant to s.77(3)(b) is to make available a
remedy where the strict application of the law produces harsh
results. This aim can be realised by measuring the compassionate
or humanitarian aspects of an individual's case in relation to the legal
obstacles to admissibility.
[…]
24 The
Appeal Division has consistently applied an approach which requires the degree
of compelling circumstances to be commensurate with the legal obstacle to
admissibility in order to justify granting discretionary relief. […]
Thus in a medical inadmissibility case where, by the date of the appeal, the
applicant has undergone successful treatment and cured the condition which gave
rise to inadmissibility, the initial refusal is nonetheless valid in
law. However, a complete surmounting of the substance of the
original ground of inadmissibility weighs very heavily in the Appeal Division's
assessment of the compassionate or humanitarian circumstances of the case.
[underlining added]
[26] By
analogy, it is urged that where the only ground of inadmissibility is
the absence of an immigrant visa, the Minister errs by interpreting subsection
25(1) so that a positive humanitarian and compassionate decision requires
"an exceptional response to a particular set of circumstances" and by
requiring applicants to satisfy the Minister’s delegate that "their personal
circumstances are such that they would face unusual, undeserved, or
disproportionate hardship if required to apply for permanent resident visa from
outside Canada" as required by section 6.5 of IP 5. Instead, the
applicants assert, the Minister's discretion under subsection 25(1) of the Act should
allow for the balancing of the extent of the legal obstacle to admission
against the degree of compelling circumstances in favour of admission. Where
the only ground of inadmissibility is the absence of a visa, a mildly
compelling case should overcome that ground of inadmissibility.
[27] As
this ground of review goes to whether the Minister has incorrectly interpreted
and applied subsection 25(1) of the Act, the standard of review to be applied
is correctness.
[28] I
have noted, as the applicants argue, that the Act does not provide guidance
concerning what constitutes humanitarian and compassionate grounds, or how
claims for relief are to be considered. Parliament has thus conferred
considerable discretion upon the Minister and in each case a variety of factors
must be considered. With this discretion must come, in my view, what the
Supreme Court described to be "considerable flexibility to the Minister to
decide on the proper procedure" to be followed when processing
humanitarian and compassionate applications. Deference is to be accorded to
the "institutional practices and choices made by the Minister".
See: Baker, cited above, at paragraph 31. In Baker, the
Minister's guidelines were described, at paragraph 72, as a "useful
indicator of what constitutes a reasonable interpretation of the power
conferred [by the legislation]".
[29] From
this, I conclude that the process set out by the Minister in IP 5 for
considering humanitarian and compassionate claims should only be interfered
with if the process is unreasonable in the sense that it is contrary to the
intent of the Act.
[30] For
the reasons that follow, I respectfully reject the submission that the two-step
process prescribed by the Minister is contrary to the intent of the Act.
[31] I
begin by repeating that it is a fundamental principle underpinning the Act that
persons who wish to live permanently in Canada must submit an application for
permanent resident status from outside of Canada and qualify for, and obtain, a
permanent resident visa prior to arriving in Canada. The predecessor to
subsection 25(1) of the Act was recognized by the Federal Court of Appeal in Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4
F.C. 358 to be an exceptional measure. In Chieu v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at
paragraph 64, Mr. Justice Iacobucci, writing for the Court, described a
humanitarian and compassionate application to be "essentially a plea to
the executive branch for special consideration which is not even explicitly
envisioned by the Act".
[32] It
is consistent with the legislative scheme and the exceptional nature of the
relief sought that the starting point for consideration of a humanitarian and
compassionate application should be an examination of all of the circumstances
concerning the foreign national applying for relief in order to see whether
sufficient humanitarian and compassionate considerations exist to warrant exempting
the foreign national from the usual requirement that he or she obtain their
permanent resident visa before entering Canada. This is what the manual
instructs and it is consistent with the below underlined portions of subsection
25(1):
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25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and
may, on the Minister’s own initiative, examine the circumstances
concerning the foreign national and may grant the foreign national
permanent resident status or an exemption from any applicable criteria or
obligation of this Act if the Minister is of the opinion that it is justified
by humanitarian and compassionate considerations relating to them, taking
into account the best interests of a child directly affected, or by public
policy considerations. [underlining added]
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25. (1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou
qui ne se conforme pas à la présente loi, et peut, de sa propre
initiative, étudier le cas de cet étranger et peut lui octroyer le statut
de résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient. [Le souligné est de moi.]
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[33] The
first step of the two-step process thus allows the decision-maker to
concentrate on the most relevant factor: the circumstances of the applicant and
whether they are such as to deserve exemption from the usual requirements of
the Act. If an applicant satisfies the officer that he or she should be
exempted from the requirements, the officer approves the application for
exemption. At that point, the applicant is formally considered to be an
applicant for permanent residence and the applicant must then satisfy the
officer that he or she meets all of the other requirements of the Act,
including those relating to admissibility.
[34] To
instead move, as the applicants argue, to balance the extent of the obstacle to
admission against the circumstances in favour of admission would, in my view,
create a new admission stream that would by-pass the legislated requirement
that permanent resident applications are to be made from abroad.
[35] I
do not accept that the existing process is perverse, or contrary to the intent
of Parliament because it treats all forms of inadmissibility in the same
fashion. To use the example cited by the applicants, I do not agree that at
the first step of the assessment "[t]he worst criminals are put at the
same level […] as the most technical offenders of the [Act]". While it is
true that no decision as to inadmissibility is made at the first step, as
section 11.3 of IP 5 (set out above) makes clear, facts relating to
inadmissibility may be relevant to the humanitarian and compassionate decision.
[36] I
have also not been persuaded that the two-step process prejudices applicants
whose grounds of inadmissibility are "minor and technical". Without
accepting that the lack of a permanent resident visa is a minor or technical
matter, it is clear that the Minister has instructed his staff at the first
step to balance the existing humanitarian and compassionate considerations
against the hardship that would be caused if an applicant was required to apply
for a permanent resident visa from outside of Canada. This takes into account
the basis of an applicant's inadmissibility where such inadmissibility flows
from the failure to have acquired a permanent resident visa before entering Canada.
[37] Subsection
25(1) of the Act gives the Minister two powers (the power to grant
permanent resident status and the power to grant an exemption). The power to
grant permanent resident status is a separate power.
[38] In
supplementary submissions, counsel for the Minister advised that the Minister
has granted permanent residence to foreign nationals under the following public
policies that have been established under the Act:
• to facilitate
the immigration of dependents of Canadian citizens evacuated from Lebanon (fee waiver) (2006);
• to aid victims
of trafficking who are eligible for a short-term temporary resident permit
(provide fee exemptions for the short-term TRP) (2006);
• to unite certain
members of the Vietnamese community in the Philippines without permanent
residence who have close family members in Canada (facilitate their immigration
to Canada) (2005);
• to aid foreign
national seriously and personally affected by the tsunami in Asia and
earthquake in Pakistan (provide fee exemptions) (2004/2005);
• relating to
spouses and common-law partners in Canada who are without status, allowing them to process their
cases in Canada. (2005);
• to facilitate
the reintegration into Canadian society of people who ceased to be citizens as
minors as a result of actions taken by their responsible parents (2003); and
• to ensure
facilitative measures for Algerian foreign nationals affected by the lifting of
the temporary suspension of removals (2002).
[39] In such cases, public policy considerations
facilitated the processing of individuals who met specific eligibility
criteria.
[40] In the case of a person in Canada who
wishes to apply for permanent residence, but who does not meet the limited
criteria that permit such an application (see: section 72 of the Regulations),
what is required is the exercise of the power to grant an exemption from the
obligation to apply from abroad. As noted above, to instead allow such a
person to request exercise of the power to grant permanent residence would
create an alternate immigration scheme.
[41] I
now turn to the applicants' argument that, where the only ground of
inadmissibility is the absence of an immigrant visa, the Minister errs by
interpreting subsection 25(1) to require an applicant to satisfy the Minister
that he or she would face unusual, underserved or disproportionate hardship if
required to apply for a visa from abroad. Relying upon jurisprudence such as Jugpall
from the IAD, the applicants argue that humanitarian and compassionate factors
are to be measured against the legal obstacle to disability.
[42] I
reject this argument, respectfully, for two reasons. First, as discussed
above, this interpretation, which could significantly reduce what an applicant
must establish in order to obtain a positive decision, is not consistent with
the principle underpinning the Act that applications for permanent residence
must be made, and a permanent resident visa must be obtained, before a foreign
national arrives in Canada.
[43] Second,
to urge reliance upon authorities such as Jugpall ignores the very
different fact situations to which that jurisprudence generally applies. The
IAD is given jurisdiction by section 63 of the Act to deal with appeals
brought by:
(1) Canadian citizens and permanent residents whose applications
to sponsor close family members to Canada have been refused (subsection 63(1));
(2) permanent residents or protected persons who have been ordered
removed from Canada (subsection 63(3));
(3) permanent residents determined outside of Canada not to have
fulfilled their residency obligations (subsection 63(4)); and
(4) foreign nationals who hold a permanent resident visa who have
been ordered removed from Canada (that is, an unlanded permanent resident)
(subsection 63(2)).
[44] Thus,
a foreign national does not have access to the IAD (except in the limited
situation where he or she has a permanent resident visa, but has not yet been
landed, and in such a case there are limitations found in section 65 of the Act
that limit the IAD’s right to consider humanitarian and compassionate
considerations). The jurisdiction of the IAD attaches to Canadian citizens and
to persons who have, at least initially, been determined to meet the selection
criteria for admission and who have received a permanent resident visa. Citizens
and permanent residents are entitled to appeal to the IAD to seek special
relief from matters affecting their inadmissibility, or the inadmissibility of
sponsored family members.
[45] By
comparison, as noted by the Supreme Court of Canada in Chieu at
paragraphs 60 and 61, subsection 25(1) of the Act is most commonly used to
exempt persons already in Canada from the normal requirement to obtain a
permanent resident visa while outside Canada. Illegal residents who wish to
remain in Canada when a removal order has been made against them must rely on
subsection 25(1) because they have no right to appeal to the IAD. There is,
however, no obligation on the Minister to treat such illegal residents or
persons without durable status in the same fashion that citizens, permanent
residents, or permanent residents facing removal are treated (see, for example,
Chieu at paragraph 59). Thus, different tests may exist as to what
constitutes humanitarian and compassionate considerations, depending on an
applicant’s status under the Act.
[46] In
my opinion, the two-step assessment process for considering humanitarian
and compassionate applications set out in the guidelines applicable to
subsection 25(1) of the Act is not contrary to the Act. I now turn to the
second issue raised by the applicants.
Did the officer err by
failing to consider whether public policy considerations justified an exemption
from the requirement to obtain a permanent resident visa before entering Canada?
[47] Subsection
25(1) also allows the Minister to grant an exemption or permanent resident
status if of the view that such step is justified by public policy
considerations. The applicants submit that in their case the officer made no
attempt to take into account public policy considerations. They further argue
that the "loss to Canada of someone who has successfully established
himself in Canada is a public policy consideration which deserves attention.
Yet, the deciding officer nowhere mentions it. The officer considers degree of
establishment in Canada solely from the perspective of humanitarian [and
compassionate] considerations and no other".
[48] In
response, the Minister argues that the applicants did not specifically request
consideration of their application on public policy grounds and that it is not
necessary for public policy matters to be considered on every application. The
Minister also argues that it is not for officers to create public policy.
Public policy considerations are established by the Minister and, as noted at
section 5.22 of IP 5, the Minister has established a policy in relation to the
resumption of citizenship. The applicants do not fit within that policy.
[49] The
applicants respond that "[f]or the deciding officer to understand that the
officer had no authority to take into account public policy considerations
unless and until the Minister established categories of persons whose
applications for permanent residence may be considered for processing as ‘public
policy’ cases would amount to unlawful fettering of discretion".
[50] Neither
the applicants, nor the Minister, expanded upon these submissions in oral
argument.
[51] In
my view, it is important not to divorce the parties’ submissions from the
content of the application that was before the officer. Whatever the basis of
an application under subsection 25(1) of the Act, public policy or
otherwise, I am satisfied that the burden of producing proof of the claim is at
all times upon the applicant. See: Owusu v. Canada (Minister
of Citizenship and Immigration), 2004 FCA 38 at paragraphs 5 and 7.
[52] The
applicants’ submissions to the officer stated that the applicants relied
upon three factors to support their application for inland processing. Those
factors were: their degree of establishment in Canada, the best interests of
the children and the disproportionate hardship they would face if they were
required to return to Guatemala in order to await processing. Only the first
factor, establishment, is argued by the applicants to support public policy
considerations favourable to their application.
[53] With
respect to establishment, the applicants’ submissions to the officer were as
follows:
A. Degree of
establishment in Canada
This family comprises the parents
and four children. The two youngest children were born in Canada. The second
oldest in the USA but has lived in Canada since age 3. The eldest was born in Guatemala
but left there at the age of 2. All of the children have been educated in
English and speak little Spanish. They are fully integrated into the school
system here.
Both parents have also educated
themselves in Canada. Ana Aguilar obtained her grade 12 education in Winnipeg
and Carlos Aguilar upgraded his English and technical skills.
There is a history of stable
employment and sound financial management in the family. Since leaving Guatemala
in 1991, Mr. Aguilar has successfully supported his family, largely
through self-employment as a qualified auto mechanic and tow-truck operator.
He has twenty years of experience as a mechanic and car painter and even if his
professional qualifications are not understood by a particular employer, a
two-day trial period in any establishment secures him full-time employment.
That is what happened in Winnipeg. When he went to work at Tony’s Academy Auto
Service – still his current employer – on a work program, he was quickly hired
on as a permanent employee. His profession is recognized under NOC#73211.
In 2001, Mr. Aguilar was offered
parental leave by his boss who did not have enough work for everyone and when
he finished that, Mr. Aguilar started his own business again. He can show
that he is capable of earning $300 per day on his own. To this day, he
operates his own tow-truck recovery business in addition to his work at
Tony’s. He also buys, repairs and sells old cars. His industriousness is
well-known in Winnipeg.
Mrs. Aguilar is also a
professional seamstress who can, if necessary, supplement the family income.
At the moment, she stays at home with the younger children, the youngest being
only eighteen months old.
As a result of hard work, the
family actually owns their own house in the North End of Winnipeg, a low-income
neighbourhood with a tough reputation which can only benefit from the presence
of families such as the Aguilars and which loses out when it loses good
inhabitants. In other words, they are contributing to the social capital of
the city by locating there. As Bishop Northcott said in his letter of June 2,
2005 “Would that more families like this would move into our North End!”
However, this family is
exceptional in that it can also access financial help in hard times from the
Mormon Church. Mr. Aguilar was converted to the Church in 1994 by
missionaries in Houston, Texas. He is a devoted and valued member of his
community in Winnipeg as can be seen from the approximately 50 individually
produced letters of support included with this application. The Church, as
well as various individuals within it, has effectively undertaken to support
this family if they have financial difficulties so that they do not need to
resort to social assistance.
Bishop Robert Northcott of Winnipeg
has provided assurance in a letter dated June 5, 2005, just as he did in
January, 2003, that the Church will assist this family if necessary. I submit
that this now long-standing commitment puts them in a position equivalent to
privately-sponsored refugees. However, judging from the quality of the letters
provided by fellow church members, it is obvious that there is tremendous
support from other individuals for this family and that it is highly unlikely
that they would ever have to seek help from outside the Church.
Mr Aguilar is in fact, now one of
the leaders in the Church, occupying the post of second counselor to the
Bishop. This often requires him to take a leadership role in Sunday service at
the Church in English. The two boys, Carlos Alexander and Jesse Antonio, are
members of the scout troupe and are already making their own way in that community.
Indeed, there is a peculiar irony
in this situation. Mr. Aguilar would possibly qualify as an independent
applicant under the points system. His profession is recognised under
NOC#73211. But for his ability to pass a language test, he would receive
points for education, experience (including Canadian work experience), possible
arranged employment and age. In fact, he is precisely the kind of skilled
worker Canada seeks. The principal barrier is that he could not accumulate the
capital back in Guatemala to show that he could support himself once he got
here and he would lose two or three years time which he has now to establish
his business here. Nor would he be able to upgrade his English to a point of
passing the strict requirements of language testing, yet he is fully functional
in Canada. Returning to Guatemala would set this family back for an indefinite
period, not only in terms of their earning potential (which is what Canada
looks for) but in terms of their children’s education (see below). It is
extremely unlikely that they would be able to return to Canada, despite their
qualifications.
Finally, the links to Guatemala
have seriously diminished in the last year. Mr. Aguilar’s father tragically
committed suicide by shooting himself in the head on April 6, 2004, when it
became impossible for him to afford to continue paying for life-preserving
medication for his wife. His wife, Mr. Aguilar’s mother, died of her illness
(actual cause of death was kidney failure) on September 27, 2004. (Certificates
of death for both are included but not translated).
[54] The
situation of Mr. and Mrs. Aguilar and their children is one deserving of
sympathy. They are to be commended for their hard work and their integration
into their community and Church. Similarly, the Church is to be commended for
its undertaking to support this family. However, as a matter of law, the
humanitarian and compassionate submissions put before the officer were not
capable of attracting a positive decision on the ground of public policy. I
reach this conclusion because:
(1) It is not suggested that the circumstances of this case bring
it within the scope of any public policy adopted by Parliament or the Minister.
(2) For an officer to be able to determine, without guidance, what
constitutes sufficient public policy considerations would lead to inconsistency
in decision-making.
(3) A positive decision on these or similar facts would encourage
illegal immigration and subsequent establishment, contrary to the Act and to
public policy.
(4) A positive decision on these or similar facts would render
meaningless the Minister’s instruction that humanitarian and compassionate
applicants must satisfy the officer that they would face unusual, undeserved or
disproportionate hardship if required to apply for a visa from abroad. All
applicants would instead opt for consideration on public policy grounds.
[55] I
leave for another day determination of whether public policy considerations
within the contemplation of subsection 25(1) of the Act are limited to those
specified by the Minister, and whether the Minister need only have regard to
public policy considerations if raised by an applicant. These issues need not
be decided on the basis of the application submitted by the applicants in this
case.
[56] For
these reasons, the application for judicial review will be dismissed.
[57] The
applicants seek certification of four questions:
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?
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?
3.
Is the Minister obliged, when considering an application under
section 25 of the Act, to consider all evidence submitted from a public policy
perspective, or is the Minister entitled to consider all evidence submitted
only from a humanitarian and compassionate perspective unless the applicant
specifically asks that the application be considered from the perspective of
public policy?
4. Are
the grounds of public policy limited to those established by the Minister as
contemplated in section 5.22 of IP 5?
[58] The
Minister opposes certification of any question.
[59] In
my view the last two questions do not properly arise on the record before the
Court. However, the first two do transcend the interests of the parties and
raise issues of general application. They will therefore be certified.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is
dismissed.
2. The following questions
are certified:
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?
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?
“Eleanor R. Dawson”
APPENDIX
Subsections 11(1) and 20(1) of the Act, and
section 6 of the Regulations:
|
The Act:
11. (1) A foreign national must, before entering
Canada, apply to an officer for a visa or for any other document required by
the regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
[…]
20. (1) Every foreign national, other than a
foreign national referred to in section 19, who seeks to enter or remain
in Canada must establish,
(a) to become a permanent resident,
that they hold the visa or other document required under the regulations and
have come to Canada in order to establish permanent residence; and
(b) to become a temporary resident,
that they hold the visa or other document required under the regulations and
will leave Canada by the end of the period authorized for
their stay.
The
Regulations:
6. A
foreign national may not enter Canada to remain on a permanent basis without
first obtaining a permanent resident visa.
|
La
Loi :
11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à
l’agent les visa et autres documents requis par règlement, lesquels sont
délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de
territoire et se conforme à la présente loi.
[…]
20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada
ou à y séjourner est tenu de prouver :
a) pour
devenir un résident permanent, qu’il détient les visa ou autres documents
réglementaires et vient s’y établir en permanence;
b) pour
devenir un résident temporaire, qu’il détient les visa ou autres documents
requis par règlement et aura quitté le Canada à la fin de la période de
séjour autorisée.
Le
Règlement :
6. L’étranger ne peut entrer au Canada pour s’y établir
en permanence que s’il a préalablement obtenu un visa de résident permanent.
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