Date: 20000831
Docket: IMM-2939-99
BETWEEN:
RAJWANT SINGH SANDHU
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
MCKEOWN J.
[1] The applicant seeks judicial review of a decision of the Immigration Appeal Division ("IAD") dated May 26, 1999, wherein the IAD dismissed the applicant's appeal of a decision to refuse a sponsored application for landing for the applicant's mother and sister.
[2] The issues are whether the IAD erred in law in failing to follow a precedent, stare decisis, and whether the IAD erred in ignoring or misapprehending relevant evidence.
[3] In this case, the panel favoured two decisions of the IAD over a decision of the Federal Court Trial Division, Kirpal v. Canada (Minister of Citizenship and Immigration) [1997] 1 F.C. 352 (T.D.), to support its conclusion that it could be "mindful" the mother's medical condition in considering an appeal on humanitarian and compassionate grounds. In Kirpal, supra, Gibson J. stated:
| For the ease of reference, I repeat the relevant portions of subsection 77(3) conferring jurisdiction on the Tribunal in this regard: |
| "77... |
| (3)... a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds: |
| ... |
| (b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief." |
| Counsel for the applicant argued that these words should be contrasted with similar, but quite different, words in subsection 70(1) [as am. by R.S.C., 1985 (4th Supp.), c.28, s. 18; S.C. 1995, c. 15, s. 13] of the Act that confer jurisdiction on the Appeal Division where a removal order or conditional removal order is made against, among others, a permanent resident. There, the Appeal Division's equitable jurisdiction is conferred in the following terms: |
| "70.(1)... |
| (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada." |
| Counsel argued that, under the words conferring jurisdiction in subsection 70(1), it is appropriate, indeed obligatory, that the Appeal Division have regard to all of the circumstances of the case, not merely the humanitarian and compassionate considerations that may weigh in favour of the appellant, but also any and all of the countervailing circumstances. By contrast, counsel argued the words conferring jurisdiction under subsection 77(3) relate only to compassionate or humanitarian considerations that would warrant granting special relief. Countervailing factors, it is argued, have no place for consideration in the jurisdiction of the Appeal Division, that is to say the Tribunal, under paragraph 77(3)(b). |
| In this matter, the Tribunal in its decision identified a range of compassionate or humanitarian considerations tending to warrant the granting of special relief. Against those, it weighed countervailing considerations. It wrote [at paragraph 45]: |
| "On the other hand, I need to weigh the extent of the legal impediment against the strength of the humanitarian or compassionate factors which are present." |
| I am satisfied that the Tribunal erred in engaging in this weighing process. If Parliament had intended the Tribunal to do so, it could very easily have adopted identical or very similar words to those in paragraph 70(1)(b) was not intended to apply in the application of paragraph 77(3)(b). |
[emphasis mine]
[4] In this case, the IAD refused to follow Kirpal and did not attempt to distinguish the case. On that basis, the principle of stare decisis applies and the panel erred in law in for failing to follow the precedent of Gibson J. The IAD had stated the following with respect to Kirpal and its views:
| Finally, the panel does not agree with counsel's argument that the medical condition that gives rise to a refusal does not have to be considered when exercising special relief. Counsel suggested, during submissions, that the panel can consider compassionate and humanitarian grounds independent of the medical condition of the principal applicant. Presumably, this is following Kirpal and the argument that compassionate or humanitarian considerations should not be weighed against countervailing considerations. Counsel noted that there is a second choice open to the panel and that is for the panel to look at compassionate or humanitarian considerations mindful of the nature of the medical problem that gave rise to the refusal. |
| The panel ascribes to this second option and follows the reasoning outlined in Chauhan and, more recently, Jugpall. To quote Jugpall: |
| A simple example illustrates the point: if one applicant is inadmissible to Canada because he has a relatively minor, treatable medical condition and another applicant is inadmissible because he has chronic kidney disease, has experienced renal failure and requires dialysis for the rest of his life, then both applicants are equally inadmissible. However, when the potential burden on health services of allowing the first applicant into Canada is compared with the potential burden of allowing the second applicant to enter Canada, it is evident that the two applicants are not in the same position. In order to succeed on appeal, both applicants need to show that there are compassionate and humanitarian grounds that warrant the granting of special relief, but the second applicant needs to bring forward a considerably more compelling case than the first applicant, given the nature of his condition. |
[5] Although Chauhan does consider Federal Court of Appeal jurisprudence, there is no specific reference to this by this panel in their reasons and furthermore the reference to Jugpall is based on the facts in that case. It is not in accordance with the doctrine of stare decisis for the IAD to look at two other decisions of the IAD in preference to a decision of the Federal Court Trial Division. The IAD decision should have referred to the Federal Court of Appeal decisions and made it clear that it was following the Federal Court of Appeal decisions in preference to the Kirpal decision. I have grave doubts about the validity of the Kirpal decision, but the IAD is bound to follow Trial Division decisions on point unless they are distinguished or based on decisions of the Federal Court of Appeal or Supreme Court of Canada.
[6] Therefore, the panel erred in law in refusing to follow or failing to distinguish binding precedent from the Federal Court Trial Division. The rule of law must prevail.
[7] The applicant submits that the IAD failed to consider the totality of the evidence. The applicant submitted the panel made perverse findings of fact in inferring that the applicant would make alternative child care arrangements or could seek counselling in the community. There was no evidence before the panel to suggest that there were other resources available to alleviate the applicant's emotional stress. The panel did accept that the applicant was depressed, alone and unable to cope.
[8] At the time of the hearing, the applicant had custody one day a week on Sundays. He stated that he was seeking full time custody of the child. The panel cannot infer that he would not be successful. There was no evidence to support the conclusion that the applicant would be able to find alternative arrangements for day care later on. This conclusion was based on the assumption that the applicant would only have temporary custody on weekends. The panel accepted the applicant's evidence wherein he stated that he was finding it extremely difficult to cope. Notwithstanding this, the panel found that there were insufficient grounds for exercising humanitarian and compassionate relief. There was no evidence that the applicant would be able to find other forms of counselling to alleviate his emotional distress. This situation had been dragging on for two years. There was no evidence before the IAD to indicate that the divorce proceedings would soon be concluded.
[9] This case is somewhat unusual because I have to accept the affidavit evidence of the applicant in preference to the statements of the IAD, due to the fact that the transcript of the panel proceedings was lost for reasons beyond the control of any of the parties. In such a case, I must accept the applicant's sworn evidence in preference to the Board's finding. Accordingly, the Board erred in making the foregoing perverse finding of facts.
[10] For the these reasons, the application for judicial review is allowed. The decision of the IAD is dismissed and the matter is returned to be determined by a different panel of the IAD.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
August 31, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2939-99 |
| STYLE OF CAUSE: RAJWANT SINGH SANDHU |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: MONDAY, AUGUST 14, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MCKEOWN J. |
DATED: THURSDAY, AUGUST 31, 2000
| APPEARANCES BY: Mr. Lorne Waldman |
| For the Applicant |
| Ms. Mielka Visnic |
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000831
Docket: IMM-2939-99
BETWEEN:
| RAJWANT SINGH SANDHU |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |