Date: 20020911
Docket: IMM-310-02
Neutral citation: 2002 FCT 956
Ottawa, Ontario, Wednesday, the 11th day of September 2002
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
ELSA LIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] It is alleged that in refusing Ms. Lim's application for humanitarian and compassionate ("H & C") consideration pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") the immigration officer erred by:
1. Fettering her discretion by adopting as a rigid and inflexible rule that applicants for H & C consideration must satisfy the decision maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside Canada in the normal manner would be "(i) unusual and undeserved or (ii) disproportionate" as set out in chapter 5 of the Inland Processing Manual ("IP-5").
2. Fettering her discretion by stating that future establishment could not be considered.
3. Making an unreasonable decision.
[2] Counsel for Ms. Lim did not pursue the argument advanced in the written submissions that the immigration office also erred in law by engaging in a balancing process once H & C factors were found.
[3] I am satisfied that the officer committed no error which warrants intervention by this Court.
[4] It is well settled law that policy guidelines are appropriate so long as they do not fetter the discretion of an individual officer. This is because the exercise of discretion implies the absence of a rule dictating the result in each case. Each case must be looked at individually, on its own merits. Guidelines are not to be regarded as being exhaustive or definitive. Guidelines are to be no more than a statement of general policy or a rough rule of thumb. See: Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (T.D.).
[5] Guidelines, particularly in respect of H & C applications, were found to be highly desirable by Justice Strayer, then of this division of this Court, in Vidal v. Canada (Minister of Employment and Immigration) (1991), 41 F.T.R. 118. In so finding, Justice Strayer wrote at page 125:
I am satisfied that these guidelines adequately convey to immigration officers that, particularly in respect of humanitarian and compassionate considerations, the guidelines are not to be regarded as exhaustive and definitive. It is emphasized and reemphasized that officers are expected to use their best judgment. I believe they amount to "general policy" or "rough rules of thumb" which Jerome A.C.J. recognized as permissible in the Yhap case. I would go farther than Jerome A.C.J. and say that such guidelines are not only permissible but highly desirable in the circumstances. No doubt when Parliament conferred the power under subsection 114(2) on the Governor in Council to make exceptions to the requirements of the Act and the Regulations it expected the Governor in Council to exercise that discretion with some sort of consistency throughout the country and not purely arbitrarily or by whim. More particularly, by the principles of parliamentary government the Governor in Council must be responsible to Parliament for the exercise of his discretion. As the Governor in Council is in the vast majority of cases dependent on the recommendations of immigration officers, as approved by the Minister, for the exercise of his discretion it is highly desirable that immigration officers have some sort of guidance as to what factors the Minister thinks important in making recommendations to the Governor in Council in this respect. If the net effect of this is to give more importance to some factors, without necessarily excluding other factors, it appears to me to be a sensible way for the Minister and the Governor in Council to bring some consistency into the exercise of powers under subsection 114(2) and to discharge their political responsibilities to Parliament. [underlining added]
[6] I respectfully share that view.
[7] In arguing that IP-5 improperly fetters the discretion of officers, counsel for Ms. Lim pointed to two passages in the lengthy chapter. They were, first, section 1.2 which states:
1.2 Policy intent of subsection A9(1)
Subsection 9(1) of the Immigration Act states that except in such cases as are prescribed, every immigrant shall apply for and obtain an immigrant visa before appearing at a Canadian port of entry. Thus, it is a cornerstone of the Immigration Act that, prior to their arrival in Canada, persons who wish to live permanently in Canada must
× submit their application outside Canada
× qualify for, and
× obtain an immigrant visa
and, second, that part of section 6.1 which adds:
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. Applicants may present whatever facts they feel are relevant.
[8] In my view, IP-5 read as a whole makes it sufficiently clear to immigration officers that the chapter provides guidelines, not to be regarded as exhaustive and definitive. For example, the chapter instructs:
1.4 Why exceptions to subsection A9(1) exist
The Immigration Act and Regulations set out specific requirements for granting permanent residence. These requirements reflect the objectives of the Act but do not cover all circumstances. The purpose of H & C discretion is to allow flexibility to approve deserving cases not anticipated in the legislation. Therefore, 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.
[...]
1.6 Discretion versus consistency
We face a challenge. 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 our clients and to avoid just criticism, we need as much consistency as possible in the use of this discretion.
This chapter is structured to strike a balance between the two seemingly contradictory aspects of discretion and consistency. As much guidance as possible is given. However, in the end, the discretion of the decision-maker takes precedence.
[...]
6.1 What is meant by "humanitarian or compassionate grounds"
Applicants making an application under R2.1 are requesting processing in Canada due to compassionate or humanitarian considerations. Subsection R2.1 provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the legislation.
[...]
The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining whether sufficient H & C considerations exist to warrant the requested exemption from A9(1).
[...]
6.3 How to make a 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 are using their discretion to assess the applicant's personal circumstances. Officers are bound to ensure that their decisions are made in a procedurally fair manner (see section 14 - Administrative law principles to guide your decision-making).
Keep the following guidelines in mind when making an H & C decision:
× Carefully consider all the information you have before you.
[...]
× Use your best judgement to weigh all the facts according to their importance.
× Consider the objectives of the Act and that R2.1 exists to allow flexibility for approving deserving cases not anticipated in the legislation.
[...]
× After considering all the facts and weighing them accordingly, make your decision based on the entire set of circumstances before you.
[underlining added throughout]
[9] It can be seen that repeated emphasis is placed on the need for officers to use their best judgment. Officers are told that in the end their discretion is to take precedence and that they are to approve deserving cases the circumstances of which were not anticipated in the Act.
[10] As to the first impugned passage and its reference to the "cornerstone" that persons applying to immigrate are to apply from abroad, subsection 9(1) of the Act provided:
| Applications for visa
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
Demande de visa
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
[11] The H & C exception does not detract from the general application of the Act and its normal requirement that immigrants apply for an immigrant visa from outside of Canada. There is no improper fettering because of the reference in IP-5 to it being a cornerstone, that is a general requirement, of the Act that immigrant visas be sought and obtained from outside of Canada. The chapter makes it clear that the H & C exception exists to approve deserving cases for application for landing from within Canada.
[12] As for the language of "unusual and undeserved" or "disproportionate", section 6.1 of IP-5 makes it clear that the H & C exception is to capture deserving cases, the circumstances of which were not anticipated in the legislation. The wording used in the chapter, including the impugned wording, provides apt guidance to the exercise of discretion.
[13] This wording was contained in the guidelines which were the subject of unsuccessful challenge before Justice Strayer in Vidal, supra. The use of the words "unusual and undeserved" or "disproportionate" is not an unlawful fetter.
[14] To the extent it was argued that section 3 of the Act instructs that the Act is to be administered recognizing the need to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad, this paragraph is fairly reflected in section 8 of IP-5.
[15] It was also argued that even if IP-5 is not an unlawful fettering, the officer nonetheless fettered her own discretion. However, a careful reading of the officer's reasons satisfies me that the officer had regard to the particular circumstances of Ms. Lim and her family, and did not fetter her discretion by rigidly adhering to the guidelines at the expense of a full consideration of the evidence before her.
[16] To the extent it was argued that jurisprudence from the Immigration Appeal Division, including Chirwa v. Canada (The Minister of Manpower and Immigration) (1970), 4 IAC 338 (I.A.B.) and Jugpall v. Canada (Minister of Citizenship and Immigration Canada) [1999] IADD No. 600 (I.A.D.), provides proper guidance as to what H & C considerations are, that jurisprudence was developed in consideration of provisions other than subsection 114(2) of the Act. That jurisprudence has not been followed by this Court in connection with H & C applications under subsection 114(2). See, for example, Lee v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 139 (T.D.).
[17] Moreover, I am not sure that there is significant difference between the guidance offered in IP-5 and that offered by the jurisprudence of the Immigration Appeal Division. In cases such as Chirwa, the Appeal Division has relied on a definition of compassionate considerations as being "...those facts, established by the evidence, which would excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another - so long as these misfortunes warrant the granting of special relief from the provisions of the Immigration Act". Circumstances of unusual and undeserved or disproportionate hardship would seem to me to be generally co-extensive with those which would excite a desire to relieve misfortune within the Chirwa definition.
[18] With respect to the officer's refusal to consider's Ms. Lim's potential successful establishment in Canada, this in my view properly reflects that an H & C application is, in substance, a two-step process that requires an initial assessment as to whether the applicant should be exempted from the requirement to obtain an immigrant visa before entering Canada, and then moves to a second assessment, if the first decision is positive, of consideration of the application for permanent residence.
[19] I am satisfied that the officer did not ignore factors relevant to the H & C consideration that were also relevant also were relevant to landing. For example, the officer considered Ms. Lim's language ability which is relevant to both H & C considerations and to landing requirements.
[20] Finally, with respect to the reasonableness of the decision, the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, as explained by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, does not permit a reviewing in Court to engage in a new process to re-weigh the evidence. In my view, this is what Ms. Lim seeks. The officer's assessment of the evidence withstands a hard look and can not be said to be clearly wrong.
[21] Finally, I do not consider that the principle of family reunification is breached, as Ms. Lim argues, by refusing to waive the requirement that applicants must apply for landing from outside of Canada.
[22] For these reasons, the application for judicial review is dismissed.
[23] Counsel for Ms. Lim posed certification of a question as to whether the statement in IP-5 requiring "unusual and undeserved" or "disproportionate" hardship constitutes an illegal fettering of the discretion of immigration officers.
[24] Counsel for the Minister opposed certification of the question.
[25] I have concluded that the proposed question does not raise a serious question. The language at issue was contained in guidelines reviewed and found to be acceptable by the Court in 1991 in Vidal, supra. Such wording has been applied consistently since then by this Court. The applicant's arguments do not give rise to a serious question to challenge that jurisprudence.
ORDER
[26] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
________________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-310-02
STYLE OF CAUSE: Elsa Lim v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 27, 2002
REASONS FOR ORDER AND ORDER : DAWSON J.
DATED: September 11, 2002
APPEARANCES:
Peter Stockholder FOR APPLICANT
Peter Bell FOR RESPONDENT
SOLICITORS OF RECORD:
Larson Boulton Sohn Stockholder FOR APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada