Date: 20040520
Docket: IMM-3403-03
Citation: 2004 FC 737
Toronto, Ontario, May 20th, 2004
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
MICHAEL OSADOLOR
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of Immigration Officer B. Lloyd's decision dated April 10, 2003, which rejected the applicant's humanitarian and compassionate ("H & C") application pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
FACTS
[2] The applicant is a 38 year old Nigerian citizen who arrived in Canada in January 1998, as a refugee claimant. In 1999, he submitted an H & C application pursuant to the former Immigration Act and the then existing H & C guidelines.
[3] The applicant based his request for H & C consideration on his relationship, and then 2001 marriage, to a Canadian citizen, his establishment in Canada, the hardship of separation from his wife, and his fear of persecution in Nigeria.
[4] After considering the applicant's establishment in Canada, marriage and fear of returning to Nigeria, the officer concluded that the applicant would not suffer unusual, undeserved or disproportionate hardship if he were compelled to apply for permanent residence in the normal manner. The officer noted that the applicant had lived his formative years in Nigeria, was educated in Nigeria, had resided with both his parents before leaving Nigeria, and had been employed in Nigeria prior to his departure. The officer was not satisfied that the applicant would not be able to obtain employment, rent a place to live, or reside with his parents, if he returned to Nigeria.
[5] The officer concluded that since the applicant had been under a removal order from the time he began a relationship with his girlfriend (now his wife), they must have anticipated the possibility and consequences of a separation. The officer noted that the applicant's wife was employed and there was no evidence that she would suffer excessive financial hardship upon her husband's removal. The officer was not satisfied that either the cost of the applicant's wife travelling to Nigeria, or the separation of spouses was sufficient grounds to grant an exemption.
[6] The officer reviewed the submissions and documentary evidence with respect to the applicant's fear of persecution in Nigeria, and concurred that the applicant was not a person in need of protection. Finally, the officer considered the psychological assessment of Dr. J. Pilowsky dated July 6, 2000 ("psychological assessment") and concluded that there was insufficient evidence to support its assertions.
ISSUES
[7] The applicant raises the following issues:
1) did the officer err by retroactively applying the new H & C guidelines dated November 2002, which were not in effect when the H & C application was filed; and,
2) did the officer err by ignoring or misconstruing the evidence in making his decision.
ANALYSIS
Applicant's Position
[8] The applicant submits that the stated policy of the respondent when he married was to allow applications to be processed from within Canada in circumstances where there was a genuine marriage. He contends that because he made his application pursuant to the former Immigration Act, there is a presumption that he will have the benefit of the former guidelines unless there is an express indication to the contrary. The applicant also submits that the officer's rejection of the psychological assessment is unreasonable, given that his torture in Nigeria has never been in doubt.
Respondent's Position
[9] The respondent submits that the applicant failed to establish an entitlement to assessment under the old guidelines because section 190 of IRPA and the respondent's Operations Memorandum IP-02-09 make clear that the new guidelines were to apply upon IPRA coming into force. The respondent submits that the officer exercised her discretion in a reasonable manner.
H & C Law
[10] H & C applications are governed by 25(1) of IRPA which provides:
| Humanitarian and compassionate considerations
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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Séjour pour motif d'ordre humanitaire 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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Issue No. 1: Did the officer apply the correct H & C immigration guidelines?
[11] IRPA expressly states that pending immigration applications shall be governed by IRPA. Section 190 is the transitional provision of IRPA, and it provides:
| Application of this Act
190. Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force.
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Application de la nouvelle loi
190. La présente loi s'applique, dès l'entrée en vigueur du présent article, aux demandes et procédures présentées ou instruites, ainsi qu'aux autres questions soulevées, dans le cadre de l'ancienne loi avant son entrée en vigueur et pour lesquelles aucune décision n'a été prise. |
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[12] In Dragan v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 189, at paragraph 35, I held that section 190 clearly expresses the legislative intent to apply IPRA retrospectively and to authorize Regulations with a retrospective effect. This clear expression overrides the ordinary presumption against retroactivity or retrospectivity.
[13] The applicant's H & C application was pending in June 2002 when IRPA came into force, and in November 2002 when the new H & C guidelines were issued. His application was not decided until April 10, 2003. The new guidelines do not have the force of law, but reflect how the respondent applies the relevant immigration legislation. Operations Memorandum IP 02-09 issued on June 26, 2002 states at paragraph G:
[...]
For applications pending on June 28, it should be noted that all such applications should be treated as H & C applications based on IRPA and there are no provisions to convert H & C applications into Family Class applications. [emphasis in original]
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[14] Both section 190 of IRPA and the new Operations Memoradum make clear that the officer was to process pending H & C applications under IRPA.
[15] The new H & C guidelines under IRPA were not issued until November 2002. The applicant submits that the five month gap between the Operations Memorandum issued on June 26, 2002, and the new H & C guidelines issued in November 2002, mean that the Operations Memorandum did not clearly and expressly state that pending H & C applications should be processed differently because the respondent did not have any new H & C guidelines under IRPA until five months after the Operations Memorandum was issued. This is not true. The old H & C guidelines had no force after IRPA because they reflected the repealed law.
[16] IRPA changed the law and policy for immigrants married to Canadians. What is different after June 26, 2002 is that IRPA created a new class of persons who may apply for permanent residence within Canada, which is the "Spouse or Common-Law Partner in Canada Class". To qualify as a member of this class, an applicant is required by section 124 of the Immigration and Refugee Protection Regulations, SOR/2002-227 ("Regulations") to have legal status in Canada. Section 124(b) of the Regulations provides:
| 124. A foreign national is a member of the spouse or common-law partner in Canada class if they [...] (b) have temporary resident status in Canada; and [...]
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124. Fait partie de la catégorie des époux ou conjoints de fait au Canada l'étranger qui remplit les conditions suivantes: [...] b) il détient le statut de résident temporaire au Canada; [...] |
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The new law meant that legal immigrants did not need an H & C application if they were married to, or a common-law spouse of, a Canadian citizen. While the applicant is still entitled to H & C consideration, his application cannot be considered under the new "Spouse or Common-Law Partner in Canada Class" because he was under a deportation order when he married. The new H & C guidelines provide that "marriage ... is not automatically considered sufficient grounds for a positive H & C decision". Previously marriage was a positive factor in H & C decisions regardless of the applicant's status as an immigrant. This new law meant that marrying a Canadian did not automatically entitle an illegal immigrant to permanent resident status in Canada.
[17] The fact that the respondent did not issue new H & C guidelines under IPRA until November 2002 does not mean that the new guidelines have no force or effect. In any event, the gap between the Operations Memorandum and the H & C guidelines is not relevant to the applicant, whose application was decided in April 2003, after the new H & C guidelines were issued.
[18] The applicant does not have a vested right to the continuance of the law as it stood in the past. In Gustavson Drilling v. M.N.R., [1977] 1 S.C.R. 271 at 282, the Supreme Court of Canada examined this issue in the context of a change in tax law and stated:
[...] No one has a vested right to continuance of the law as it stood in the past; in tax law it is imperative that legislation conform to changing social needs and governmental policy. A taxpayer may plan his financial affairs in reliance on the tax laws remaining the same; he takes the risk that the legislation may be changed.
[19] The above dicta was applied by Rothstein J. (as he then was) in Say v. Canada (MCI) (1997), 139 F.T.R. 165 (T.D.) in reviewing a Post-Determination Refugee Claimant in Canada Class ("PDRCC") decision. At paragraph 4 he states:
The applicant's argument is that he had a vested right to have his PDRCC application considered on the wording of the Immigration Regulations in force on July 4, 1996 (when he was deemed to have made his PDRCC application) which did not exclude persons referred to in section F of Article 1 of the Convention. The applicant had no such vested right. The right conferred on him by the Regulations was that he was to have been deemed to have submitted an application for landing as a member of the PDRCC Class as of that date. But he had no vested right to continuation of the law as it existed when he was deemed to have made his application. (See Gustavson Drilling v. M.N.R. [1977] 1 S.C.R. 271 at 282.)
[20] For these reasons, the immigration officer correctly applied the new IRPA H & C guidelines, which reflected IRPA. IRPA has a retrospective effect, i.e. it is intended to change the law and policy with respect to applications pending on June 26, 2002.
Issue No. 2: Did the officer ignore or misconstruing the evidence, and make unreasonable findings?
[21] With respect to the psychological assessment, I reject the applicant's assertion that all parties, and previous decision makers are in agreement that he had been tortured in Nigeria. What was accepted in the PRRA decision, and in the decision of the H & C officer, was that the applicant sustained physical injury to his knee when he was forcibly removed from the premises of his previous employer in Nigeria. This does not amount to an acknowledgement that the applicant was the victim of torture at the hands of security forces in Nigeria.
[22] The H & C officer noted that the information on which the 3 year old psychological assessment had been based differed from what the applicant described as his current experience. For instance, the applicant described himself in his H & C application as a person actively involved with the Church and various community involvements. But in the psychological assessment, he was described as a person who preferred to be alone and whose only social interaction was going to the gym and being with his girlfriend. Furthermore, the officer noted that since the original diagnosis in 2000, the applicant had not sought and obtained treatment for post-traumatic anxiety and symptoms of depression. Therefore, I find that the officer did not ignore or misconstrue the evidence, and has a reasonable basis for giving little weight to the psychological assessment.
PROPOSED CERTIFIED QUESTION
[23] The applicant proposed the following question for certification:
· Does the presumption against retroactivity apply to the new H & C guidelines in the same way it does to statutes and regulations? If yes, were there express provisions that rebutted the presumption against retroactivity?
The guidelines under IRPA do not have the force of law, and only express administrative advice for immigration officers on how to administer or apply IPRA. In this case the new H & C guidelines were clearly and expressly applicable to the H & C decision in this case when it was made in April 2003. Since IPRA is expressly intended to have a retrospective or retroactive effect, the guidelines have the same effect. Since I have found that the presumption against retroactivity is expressly rebutted both in IRPA and the Operations Memorandum, there is no question to be certified which would be dispositive of this case.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Michael A. Kelen"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3403-03
STYLE OF CAUSE: MICHAEL OSADOLOR
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 18, 2004
REASONS FOR ORDER
AND ORDER BY: KELEN J.
APPEARANCES BY:
Mr. Lorne Waldman
FOR THE APPLICANT
Mr. Martin Anderson
FOR THE RESPONDENT
SOLICITORS OF RECORD:
WALDMAN & ASSOCIATES
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040520
Docket: IMM-3403-03
BETWEEN:
MICHAEL OSADOLOR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER FOR ORDER