Minister of Employment and Immigration et al. v. Jiminez-Perez et al., [1984] 2 SCR 565

Supreme Court of Canada

Minister of Employment and Immigration et al. v. Jiminez-Perez et al., [1984] 2 S.C.R. 565

Date: 1984-12-13

The Minister of Employment and Immigration, Jean Boisvert, Immigration Officer, in his capacity as Manager, Canada Immigration Centre Winnipeg, and Susan Lawson, Immigration Officer Appellants;

and

Enrique Alberto Jiminez-Perez and Anne Irena Reid Respondents.

File No.: 17246.

1984: November 21, 22; 1984: December 13.

Present: Dickson C.J. and Beetz, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration—Admission—Landing application—Person seeking admission to Canada without having first obtained immigrant visa outside Canada—Exemption requested on compassionate or humanitarian considerations—Immigration officers under duty to consider application for exemption—Immigration Act, 1976, 1976-77 (Can.), c. 52, ss. 9, 79(2)(b), 115(2).

The Federal Court Trial Division granted respondents’ application for mandamus and ordered the appellants (1) to consider respondent Jiminez-Perez’ application for permanent residence in Canada; (2) to determine whether the evidence of the case discloses compassionate or humanitarian considerations that could justify granting him landing by way of special relief—namely without having first to apply and obtain an immigrant visa outside Canada—and (3) to consider respondent Reid’s sponsorship application respecting Jiminez‑Perez’ application for landing. The Federal Court of Appeal affirmed the order save for one variation. In this Court, appellants conceded that the immigration officers were under a duty, pursuant to s. 115(2) of the Immigration Act, 1976, to consider and deal with respondents’ application for an exemption, on compassionate or humanitarian grounds, from the requirement of s. 9 of the Act but alleged that such a duty could not be enforced by way of mandamus.

Held: The appeal should be allowed in part.

Without expressing any view as to whether mandamus lies to enforce such a duty, the same result can be

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reached by way of a declaration. Accordingly, this Court declared that the immigration officers were under a duty to consider respondents’ application for an exemption, on compassionate or humanitarian grounds, from the requirement of s. 9 of the Immigration Act, 1976, to deal with it in the name of the Minister of Employment and Immigration and to advise respondents of the result. The application for landing from within Canada and the sponsorship application should be considered and adjudicated upon if and when the exemption sought by the first application is granted, subject to such rights of appeal as may be given by the Act.

APPEAL from a judgment of the Federal Court of Appeal, [1983] 1 F.C. 163, 45 N.R. 149, affirming the judgment of the Trial Division but varying the wording of the order of mandamus. Appeal allowed in part.

Arnold S. Fradkin and Yvonne Beaupré, for the appellants.

Arne Peltz, for the respondents.

The following judgment was delivered by

THE COURT—The circumstances which have given rise to this case are set out in the judgment appealed from, a judgment of the Federal Court of Appeal reported sub nom. Jiminez-Perez v. Minister of Employment and Immigration, [1983] 1 F.C. 163.

The Trial Division of the Federal Court granted to respondents an order in the nature of a writ of mandamus which reads as follows:

It is hereby ordered and adjudged that the Respondents permit the Applicant, Enrique Alberto Jimenez-Perez [sic] to file an application for permanent residence in Canada, that they consider the application, that they determine whether or not it would be contrary to the Immigration Act and Regulations to grant landing to him, that they determine whether, in this case, the evidence discloses compassionate and humanitarian considerations that could possibly justify granting landing to him by way of special relief, that they advise the Applicants of their decision, and that they also permit the Applicant, Anne Irena Reid, to file an application to sponsor the application of Enrique Alberto Jimenez-Perez [sic] for permanent residence in Canada, that

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they make a decision upon her application and advise her of their decision.

This order was affirmed by the Federal Court of Appeal save for one variation:

The appeal is allowed only to the extent that the order of the Trial Division is varied by deleting the words:

“that they determine whether, in this case, the evidence discloses compassionate and humanitarian considerations that could possibly justify granting landing to him by way of special relief”

and substituting therefor the following:

“that they take the necessary steps to enable the Governor in Council to determine whether special relief on compassionate or humanitarian grounds from the requirement of section 9 of the Act should be granted.”

In all other respects the order of the Trial Division is affirmed and the appeal is dismissed.

In this Court, counsel for appellants conceded that appellants Jean Boisvert and Susan Lawson are under a duty to consider and deal with respondents’ application for an exemption, on compassionate or humanitarian grounds, of the requirement of s. 9 of the Immigration Act, 1976, 1976-77 (Can.), c. 52, under s. 115(2) of the Act. Counsel for appellants took the position that such a duty could not be enforced by way of mandamus but he did not really dispute that it could be enforced by way of declaration.

Without expressing any view as to whether mandamus lies, we think that the same practical result can be reached by way of a declaration, and that we should grant such a declaration to respondents in lieu of the order varied by the Federal Court of Appeal.

As for respondents’ two other applications, one for landing from within Canada by respondent Jiminez-Perez, and the other for the landing application sponsorship by respondent Reid, counsel for respondents conceded that they cannot lawfully be granted until and unless an exemption has been obtained further to the first application. His point, as we understand it, was that respondent

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Reid was being deprived of a right of appeal since if the sponsorship application was refused, the sponsor might appeal to the Immigration Appeal Board under s. 79(2)(b) of the Act:

79. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or visa officer, as the case may be, may refuse to approve the application on the grounds that

(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing or,

(b) the member of the family class does not meet the requirements of this Act or the regulations,

and the person who sponsored the application shall be informed of the reasons for the refusal.

(2) A Canadian citizen who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Board on either or both of the following grounds, namely,

(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and

(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.

. . .

But we fail to see how the Immigration Appeal Board could acquire jurisdiction under s. 79(2)(b) of the Act where there is as yet no landing application that could be granted. It follows that there is as yet no landing application to be sponsored. The application for landing from within Canada and the sponsorship application should be considered and adjudicated upon if and when the exemption sought by the first application is granted, subject to such rights of appeal as may be given by the Act.

The appeal is allowed in part, the judgments of the Federal Court of Appeal and of the Trial Division are set aside and the following declaration is substituted for the orders therein:

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It is declared that appellants Jean Boisvert and Susan Lawson are under a duty to consider respondents’ application for an exemption on compassionate and humanitarian grounds of the requirement of s. 9 of the Immigration Act, 1976, to deal with it in the name of the Minister of Employment and Immigration and to advise respondents of the result.

There will be no order as to costs.

Appeal allowed in part.

Solicitor for the appellants: R. Tassé, Ottawa.

Solicitor for the respondents: Arne Peltz, Winnipeg.