Digests

Yun v. Canada (Minister of Citizenship and Immigration)

IMM-7024-03

2004 FC 1062, Blanchard J.

4/8/04

12 pp.

Humanitarian and Compassionate Considerations Judicial review of Immigration Counsellor's decision insufficient humanitarian and compassionate grounds to warrant exempting applicant from requirement of Immigration and Refugee Protection Act (IRPA), s. 11(1)--Applicant 34-year-old citizen of Korea who came to Canada on January 11, 1999 to study English--Work permit issued in 2000 as wife studying in Canada--Extension of work permit refused when divorced in September 2001, and wife, children returned to Korea--Applicant remarried in April 2002, applied for exemption of permanent resident visa requirements based on humanitarian and compassionate grounds (H&C) under former Immigration Act, s. 114(2)--Application refused under IRPA, s. 11(1)--Whether respondent erred in law by failing to consider applicant's application for permanent residence under Immigration Refugee Protection Regulations (IRP Regulations), ss. 123, 124--Applicant not submitting applica-tion for membership in Spouse in Canada class under IRPA-- Nor did he complete, file "In-Canada Application for Permanent Residence"--Whether Immigration Counsellor required to convert H&C application submitted under former Act into application for selection as permanent resident as member of Spouse or Common-Law Partner in Canada class under IRPA question of law--Standard of review applicable to question of law correctness--No authority under IRPA, Regulations for immigration officer to convert H&C application under former Act to application under Spouse in Canada class under IRPA--To be considered under new Spouse in Canada provision, applicant should have applied under that category, withdrawn old H&C application already made--Applicant not denied benefits of IRPA, simply failed to apply for them--Although confusing for applicants when transition from one statutory framework to another, applicant must be diligent, inquire in respect of impact of new legislation on application, if any--IRPA, s. 190 not requiring immigration officer to convert pending H&C application into application for admission as member of Spouse, Common-Law Partner in Canada class--To do so would impose impossible burden on immigration officers having to speculate as to relief sought by individual applicants in context of new legislation--In this case, no application under IRPA provisions concerning new Spouse in Canada class-- Therefore, not unreasonable for Immigration Counsellor to assess applicant's application under H&C provisions-- Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11(1), 190--Immigration Act, R.S.C., 1985, c. I-2, s. 114(2)--Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 123, 124.