Federal Court Decisions

Date: 20020125

Docket: IMM-6089-99

Neutral Citation: 2002 FCT 90

Ottawa, Ontario, this 25th day of January, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                      SONIA SIMON

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") of the decision of an immigration officer to not recommend a favorable decision under subsection 114(2) of the Act.

[2]                 The applicant is a citizen of Grenada and entered Canada with a visitor's visa in 1988. The applicant remained in Canada after her visa expired and did not come to the attention of immigration authorities.

[3]                 While in Canada, the applicant has been employed as a nanny for a number of families. Additionally, she is raising her daughter, Jenelle, born in Canada on March 3, 1994 on her own and has only sporadic contact with the father of Jenelle. The applicant has a sister with permanent residence status living in Toronto. The record indicates the applicant was raised by her grandmother in Grenada, that she has three half brothers residing in Grenada with friends and relatives, that her mother has resided in Aruba since the applicant was eight years old, and that her father left for the United States when she was only two.

[4]                 In August of 1998, the applicant submitted an application for permanent residence in Canada and an exemption based on humanitarian and compassionate grounds ("H & C") from the requirement of subsection 9(1) of the Act that such an application must be made from outside Canada.    The applicant was interviewed in relation to her H & C application by an immigration officer on October 22, 1999. The applicant's counsel was present during the interview. The immigration officer's notes of the interview, found at pages 37 to 42 of the applicant's record, recount in more detail the applicant's reasons as to why an exception from the normal legislative requirements was warranted.

[5]                 Found at page 43 of the applicant's record is a document marked as "Decision and Rationale for H & C" dated November 5, 1999. In its entirety, this document reads as follows:

The applicant has been in Canada continuously since September 1988. She has never previously come to the attention of immigration. She now has Canadian born daughter.

I am not satisfied that the applicant meets the definition of illegal de facto resident. There is insufficient evidence to show that she face [sic] undue or disproportionate hardship if she were to leave Canada to apply in the normal manner. The lack of a home or job to return to in Grenada is a situation of her own making.

I am not satisfied that she is so significantly established in Canada that she would suffer undue hardship if she were to return to Grenada.

I have also very carefully considered her Canadian born daughter who is now 5 years old. She is normal healthy child. There is insufficient evidence to suggest that her best interests would not be met if she were to return to Grenada with her mother.

I have carefully considered all of the circumstances of her request and I am not satisfied that sufficient humanitarian and compassionate grounds exist to warrant waiving A9(1).

[6]                 By letter dated December 6, 1999, the applicant was informed that there were insufficient H & C considerations to warrant an exception from the normal legislative requirements. The applicant now seeks judicial review of this decision.

[7]                 Issues

1.          Was there a reasonable apprehension of bias on the part of the immigration officer and therefore a breach of the duty to act fairly?

2.          Did the immigration officer fail to properly apply procedural guidelines and thus breach the duty to act fairly?

3.          Was the immigration officer's decision unreasonable?

[8]                 Relevant Statutory Provisions

Subsection 9(1) of the Immigration Act, supra states:

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.

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.

[9]                 Subsection 114(2) of the Act states:

114.(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.

[10]            Analysis and Decision

Issue 1

Was there a reasonable apprehension of bias on the part of the immigration officer and therefore a breach of the duty to act fairly?

The applicant, at the hearing, indicated that the issue of apprehension of bias was not being raised.

[11]            Issue 2

Did the immigration officer fail to properly apply procedural guidelines and thus breach the duty to act fairly?

When the applicant filed her H & C application, clause 9.06(3) read as follows:

3) Illegal De Facto Residents Policy (see IE9.15)

Persons who meet the definition of an illegal de facto resident may be considered from within Canada. Illegal de facto residents are administratively defined as those person who have not previously come to our attention and who, although they have no legal status in Canada, have been here so long and are so established that, in fact if not in law, they have their residence in Canada and not abroad. Establishment refers to persons who are self supporting and who are unlikely to become public charges. These persons will have gone "underground" without having previously come to official immigration attention, e.g. as unsuccessful refugee claimants, members of the refugee claims backlog or persons previously ordered removed. Such persons would have severed their ties with their home country and would undergo hardship if they were required to leave Canada in order to seek a visa to return (legally) as permanent residents.

[12]            New guidelines came in force in 1999 (Chapter IP-5-Immigrant Applications in Canada made on Humanitarian or Compassionate (H & C Grounds). Section 6.1 of these guidelines read in part:

. . .

6.1 What is meant by "humanitarian and 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.

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.

. . .

Unusual and undeserved hardship

The hardship (of having to apply for an immigrant 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 an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.

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 an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.

[13]            The direction for the transition from the old guidelines to the new guidelines reads in part as follows:

Transition from old to new guidelines

1. For all applications received before March 8, 1999: When making the step one H & C assessment, decision-makers may consider, if applicable, the guidelines in Manual Chapter IE-9 "Persons Seeking Permanent Resident Status in Canada" described in part 9.06(3) [including the reference to 9.15] and part 9.06(4). Otherwise, Chapter IE-9 is effectively cancelled and IP-5 is to be followed as case types which were found in IE-9 are also part of IP-5.

[14]            The immigration officer's decision states in part as follows:

. . . There is insufficient evidence to show that she face [sic] undue or disproportionate hardship if she were to leave Canada to apply in the normal manner.

. . .

I am not satisfied that she is so significantly established in Canada that she would suffer undue hardship if she were to return to Grenada.

[15]            It would appear that the officer applied a standard of "undue hardship" or "undue or disproportionate" hardship in assessing the applicant's application. The wording of the transitional guidelines state that the applications filed before the new guidelines were in effect, could be considered under section 9.06 of the old guidelines where the standard was "hardship" as opposed to the standard of "undue hardship" or "undue and disproportionate hardship" contained in the new guidelines. I am of the opinion that it was unreasonable to not apply the test in the old guidelines. Had the immigration officer applied this test to the facts, then a different conclusion may have been reached. I do not know whether a different decision would have been reached as the old standard was not applied.

[16]            Since I have found it was unreasonable not to have applied the old standard of "hardship", the decision of the immigration officer must be set aside and the matter referred to a different officer for redetermination.

[17]            Because of my finding on Issue 2, I need not deal with Issue 3.

[18]            Neither party wished to submit a serious question of general importance for consideration.

ORDER

[19]            IT IS ORDERED that the application for judicial review be allowed and the matter be referred to a different officer for redetermination.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

January 25, 2002