Digests

Phuti v. Canada (Minister of Citizenship and Immigration)

IMM-3917-99, IMM-5048-99

Lemieux J.

12/7/00

19 pp.

Applications for judicial review of two decisions made by visa officers refusing application for permanent residence in Canada by applicant Phema Phuti, citizen of India who still resides there--Applicant employed by Mr., Mrs. Manucha for 30 years, accompanied them abroad when Mr. Manucha Foreign Service Officer for Government of India, later Ambassador of India--After retirement, Mr., Mrs. Manucha became permanent residents of Canada--In 1992, Mrs. Manucha, whose husband passed away, began efforts to sponsor, obtain applicant's landing in Canada based on humanitarian, compassionate grounds related to applicant, herself--First issue whether respondent breached duty of fairness in way officers handled application--Applicant arguing breach of fairness by respondent through failure of visa officer Beaupre to identify to applicant, sponsors in Canada concerns he had with application, failure to provide them with opportunity to respond--Applicant owed duty of fairness in processing of application for permanent residence in Canada--Visa officer's decision affecting applicant's rights, privileges, interests, sufficient to trigger application of duty of fairness--Duty of fairness breached herein, both in terms of obligation on visa officer to identify concerns, right of applicant to respond to concerns--Issue of applicant's financial welfare in Canada central element in Mr. Beaupre's decision not to exercise Immigration Regulations, s. 2.1 exemption--Unfair for Canadian High Commission (CHC) to refuse application for permanent residence in Canada without informing applicant, sponsor of issues of financial support, commitment, providing them with opportunity to satisfy such concerns--Inappropriate to make decision without procedural safeguards, namely expression of concern, right to respond--Second issue whether respondent's officers unlawfully reopened positive decision--Success on second ground may lead to applicant's admission to Canada--Counsel for applicant arguing once decision made, decision cannot, absent statutory authority, be reopened except to cure defect spawned by denial of natural justice--Legal foundation for argument existence in Immigration Regulations of two powers to override normal selection process based on objectively defined selection criteria--First exception contained in Immigration Regulations, s. 2.1--Second exception found in Immigration Regulations, s. 11(3)--Court could not accept Minister's characterization as purely internal certain decisions taken by visa officers about applicant before formal refusal letter in 1998 sent--Based on Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, visa officer's favourably exercising humanitarian and compassionate discretion could not be reserved except on grounds of breach of natural justice, none existing here--Applications allowed--Immigration Regulations, 1978, SOR/78-172, ss. 2.1 (as enacted by SOR/93-44, s. 2), 11(3) (as am. by SOR/81-461, s.1).