Digests

Lim v. Canada (Minister of Citizenship and Immigration)

IMM-310-02

2002 FCT 956, Dawson J.

11/9/02

10 pp.

Judicial review of immigration officer's refusal of application for immigrant visa from inside Canada on humanitarian and compassionate (H&C) grounds pursuant to Immigration Act, s. 114(2)--Applicant arguing immi-gration officer fettered discretion by rigidly applying Immigration Manual: Inland Processing (IP5), s. 6.1, providing applicants for H&C consideration must satisfy decision-maker personal circumstances such that hardship of having to obtain immigrant visa from outside Canada in normal manner would be "(i) unusual and undeserved or (ii) disproportionate"-- Applicant also arguing immigration officer fettered discretion by stating future establishment could not be considered and decision unreasonable--Application dismissed--Court satisfied officer not committing error--Policy guidelines appropriate so long as not fettering discretion of individual officer: Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (T.D.)--Guidelines highly desirable as bringing some consistency to officer's discretion: Vidal v. Canada (Minister of Employ-ment and Immigration) (1991), 41 F.T.R. 118--When read as whole, IP5 clear guidelines should not be regarded as definitive or exhaustive--H & C exception exists to approve deserving cases for landing from within Canada--Wording in IP5 providing guidance to exercise of discretion--Court satisfied officer not fettering own discretion by rigidly adhering to guidelines--Court satisfied officer not ignoring factors relevant to H&C consideration also relevant to landing-- Officer's decision not clearly wrong--Principle of family reunification not breached by refusing to waive re-quirement applicants must apply for landing from outside Canada-- Immigration Act, R.S.C., 1985, c. I-2, s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).