A-255-01
2002 FCA 125
The Minister of Citizenship and Immigration (Appellant)
v.
Alexander Henri Legault (Respondent)
Indexed as: Legault v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Richard C.J., Décary and Noël JJ.A. --Montréal, March 18; Ottawa, March 28, 2002.
Citizenship and Immigration -- Status in Canada -- Permanent Residents -- Humanitarian and Compassionate Considerations -- Consideration of interests of children in H&C application in light of S.C.C. decisions in Baker v. Canada (MCI), Suresh v. Canada (MCI), Chieu v. Canada (MCI) -- Mere mention of children not sufficient to fulfil requirements of Baker -- Interests of children factor to be examined with care, weighed with other factors -- Baker not creating prima facie presumption children's best interests should prevail, subject only to gravest countervailing grounds -- Would be better to use expression "children's interests" -- Minister can take into account actions, past and present, of person requesting exception.
The respondent, a citizen of the United States of America, has been living in Canada since 1982. He has two families in Canada (seven children, six of whom were born in Canada, with two Canadian wives), of which he is the sole supporter (he is divorced from his first wife and is separated from the second one). In 1986, he was indicted on a number of fraud-related offences and a warrant was issued for his arrest. His applications for permanent residence and refugee status having been refused, he filed an In-Canada Application for Permanent Residence based on humanitarian and compassionate considerations (H&C application). The immigration officer concluded that there were insufficient humanitarian and compassionate grounds to justify an exemption from the requirements of subsection 9(1) of the Immigration Act. The Motions Judge would have rejected the application for judicial review, were it not for the fact that he felt bound by the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), which he understood to mean that, save in exceptional circumstances, the children's best interests must prevail.
This was an appeal from the Motions Judge's decision allowing the application for judicial review of the immigration officer's decision dismissing the H&C application. Three of the certified questions were considered: (1) Is the mere mention of children sufficient to fulfil the requirements of Baker? (2) Did Baker create a prima facie presumption that the children's best interests should prevail, subject only to the gravest countervailing grounds? (3) Is the fact that an applicant under subsection 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those "other considerations" or "other reasons" mentioned in paragraph 75 in Baker, which might outweigh the children's best interests?
Held, the appeal should be allowed. The first two questions should be answered in the negative, and the third in the affirmative.
The Motions Judge's reading of Baker was excessive, since the Supreme Court did not expressly state in its decision that the immigration officer's decision must be dictated by the interests of the children. In Suresh v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that the weighing of relevant factors was not the function of a court reviewing the exercise of ministerial discretion and added "[i]t is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors". Moreover, in Chieu v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada seems to accurately identify what Baker stands for when it described it as "an example of an instance where the Minister's decision was procedurally deficient". While Baker established that the interests of children are one factor that an immigration officer must examine with a great deal of attention, Suresh made clear that it was up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. The presence of children does not call for a certain result.
The mere mention of children is therefore not sufficient. The interests of the children is a factor that must be examined with care and weighed with other factors. Baker does not create a prima facie presumption that the children's best interests should prevail, subject only to the gravest countervailing grounds. Since the reference to "children's best interests" may lead agents to believe that the interests of children are superior to other interests, which, in light of Suresh and in the absence of clear legislative or regulatory limitations stating otherwise, cannot be the case, it would be better to use the expression "children's interests".
Under subsection 114(2), the Minister may exercise his discretion in favour of an applicant where there are humanitarian and compassionate considerations, but he can refuse to allow the exception when he is of the view that public interest reasons supersede humanitarian and compassionate ones. That discretion must be exercised within the general context of Canadian law and policies on immigration, which are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and strictly comply with the requirements, both in form and substance, of the Act. Therefore, the Minister can take into account the actions, past and present, of the person who requests the exception.
The immigration officer herein examined the interests of the children with a great deal of attention, weighed that factor in the light of other factors related, inter alia, to the past conduct of Mr. Legault and made a decision that was reasonable in the circumstances.
statutes and regulations judicially
considered
Federal Court Act, R.S.C., 1985, c. F-7, s. 52(b)(i) (as am. by S.C. 1990, c. 8, s. 17).
| Immigration Act, R.S.C., 1985, c. I-2, ss. 3(a),(b), 5(2), 6(1) (as am. by S.C. 1992, c. 49, s. 3), 7(1) (as am. idem), 8(1), 9(1) (as am. idem, s. 4), (3), 83 (as am. idem, s. 73), 114(2) (as am. idem, s. 102). |
cases judicially considered
applied:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22; Sadeghi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 337; (2000), 254 N.R. 337 (C.A.); Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1; 37 Admin. L.R. (3d) 159; 18 Imm. L.R. (3d) 1; 281 N.R. 1 (S.C.C.); Chieu v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 107; 37 Admin. L.R. (3d) 252; 18 Imm. L.R. (3d) 93; 280 N.R. 268 (S.C.C.).
referred to:
Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.); Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; (2000), 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.); Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184; 184 N.R. 230 (F.C.A.); leave to appeal to S.C.C. refused, [1995] 3 S.C.R. vii; Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Zand-Vakili v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 222 (F.C.T.D.); Kessler v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 222 (F.C.T.D.); Agbonkpolor v. Canada (Minister of Employment and Immigration) (1994), 29 Admin. L.R. (2d) 138; 85 F.T.R. 39; 25 Imm. L.R. (2d) 280 (F.C.T.D.); Wekpe v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 274 (F.C.T.D.); Martin v. Canada (Minister of Citizenship and Immigration) (1999), 177 F.T.R. 313 (F.C.T.D.); Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107; [2002] F.C.J. No. 119 (T.D.) (QL); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.); Mayburov v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 280; 6 Imm. L.R. (3d) 246 (F.C.T.D.); Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161 (F.C.T.D.); Quan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 114 (F.C.T.D.); Russell v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 97; 7 Imm. L.R. (3d) 173 (F.C.T.D.); Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62 (F.C.T.D.); Drame v. Minister of Employment and Immigration (1994), 82 F.T.R. 177 (F.C.T.D.).
authors cited
Citizenship and Immigration Canada. Immigration Manual: Inland Processing (IP). Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) Grounds. Ottawa: Citizenship and Immigration, loose-leaf.
APPEAL from a Trial Division decision (Legault v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 277; (2001), 203 D.L.R. (4th) 450; 203 F.T.R. 47 (T.D.)) allowing, based on the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration), an application for judicial review of an immigration officer's refusal of a request, made under subsection 114(2) of the Immigration Act, to be excused, based on humanitarian and compassionate considerations, from the application of the rule (at subsection 9(1) of the Act) requiring an applicant for permanent resident status to make his application from outside of Canada. Appeal allowed.
appearances:
Normand Lemyre and Daniel Latulippe for appellant.
Julius H. Grey for respondent.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Grey, Casgrain, Montréal, for respondent.
The following is the English version of the reasons for judgment rendered by
[1]Décary J.A.: Nadon J., then a member of the Trial Division, certified the following seven questions, in accordance with section 83 of the Immigration Act [R.S.C., 1985, c. I-2 (as am. by S.C. 1992, c. 49, s. 73)] ([2001] 3 F.C. 277, at paragraph 72):
1. Were the findings of officer Nappi manifestly unreasonable and incompatible with Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and in particular:
i. did Ms. Nappi minimize the interests of the children and fail to apply the liberal standard required by the Supreme Court?
ii. was she entitled to doubt the good faith of the marriage which had produced the children?
iii. was she entitled to conclude that a commercial partner could ensure the continuation of the company and of the applicant's family income without any evidence to this effect or discussion of this?
iv. was she entitled to rely on the fact that the applicant knew about his accusation when he engendered the children?
2. Is the mere mention of the children sufficient to fulfil the requirements of Baker, supra?
3. Did Baker, supra, create a prima facie presumption that the children's best interests should prevail, subject only to the gravest countervailing grounds?
4. Is the failure to deal with two of the children's emotional illness consistent with the serious and respectful treatment of the children's interests required by Baker, supra?
5. When the Court sits in judicial review of a decision under subsection 114(2) of the Immigration Act, should it not only verify whether the decision maker considered the effects of a refusal on the applicant's children, but go further and assess whether the consideration is adequate?
6. In light of the Supreme Court's decision in Baker, supra, what does proper consideration of the children's interests mean? What does it mean, in fact, to be alert, alive and sensitive to the children's interests?
7. Is the fact that an applicant under subsection 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those "other considerations" or "other reasons" mentioned in paragraph 75 in Baker, supra, which might outweigh the children's best interests?
[2]He was of the view that only questions 2 and 3 fulfill the certification requirements set out in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.). I believe he could have also included question 7. I will therefore answer questions 2, 3 and 7 (see Sadeghi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 337 (C.A.)).
[3]These questions were certified in the context of the judicial review of a refusal by an immigration officer of a request made under subsection 114(2) [as am. idem, s. 102] of the Act. By this request, the respondent Legault wished to be excused, for compassionate and humanitarian considerations, from the application of the rule at subsection 9(1) [as am. idem, s. 4] of the Act requiring the applicant for permanent resident status to make his or her application outside of Canada. Subsections 9(1) and 114(2) read as follows:
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.
. . .
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.
[4]Justice Nadon would have rejected the application for judicial review, were it not for the fact that he felt bound by the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. I quote below paragraphs 67 and 68 of his reasons, which explain his conclusion based on his reading of the Baker decision:
In conclusion, it is my view that the Supreme Court's decision in Baker, supra, calls for a certain result, and that result is that, save in exceptional cases, the children's best interests must prevail. On my reading and understanding of Baker, supra, if the decision maker is of the view that the children's best interests are for them to remain in Canada with their parent or parents, then that decision maker should exercise his discretion in favour of the parents applying for the exemption. In my view, there will be few cases where the immigration officer will be able to conclude that the children's best interests do not require that their parents' application for an exemption be granted.
As I have made it clear, I do not share the view expressed by the Supreme Court in Baker, supra. However, I am bound to apply its pronouncements and consequently, I have come to the conclusion that the decision rendered by officer Nappi on September 16, 1999, must be set aside. In the light of the Supreme Court's decision in Baker, supra, I can only conclude that officer Nappi's decision is unreasonable. Although she considered the children's best interests in coming to a decision, it cannot be said that she gave those interests the "substantial weight" that Baker, supra, directs that those interests be given.
[5]By certifying these questions, Justice Nadon invites this Court to rule on the controversy created by Baker, controversy which he describes as follows, at paragraph 55:
What these decisions reveal are contradictory approaches to the meaning and significance of the Supreme Court's decision in Baker, supra. There appear to be two approaches taken by judges of this Court. The first one, which I would characterize as the process approach, is the one taken in the Young, Mayburov and Russell decisions. The other approach, which I would characterize as the substantive approach, is the one taken in the other cases. Under the process approach, the Court will examine whether the immigration officer has taken into consideration the effects which the parents' departure from Canada might have upon the children. If the immigration officer has taken into consideration these effects, the Court will not intervene, even though the decision made is not a favourable one to the applicant. On the other hand, under the substantive approach, the Court will not only verify whether the officer has considered the effects of a refusal of the parents' application under subsection 114(2), but will go further and assess whether the ultimate decision is the correct one.
[6]He also explained as follows the difficulty which he thought immigration agents would be facing from now on, at paragraphs 62-64:
In my respectful view, the difficulty which immigration officers are now confronted with stems in part from the Supreme Court's failure -- by reason of its conclusions that there was a reasonable apprehension of bias and that the officer had not considered the children's best interests -- to address the real issue in Baker, supra. That issue was whether the fact that Ms. Baker would be a burden on taxpayers was a consideration which could outweigh the children's best interests. Could the officer in Baker, supra, give importance to, inter alia, the fact that Ms. Baker had remained illegally in this country for over ten years?
Subsection 114(2) of the Act leaves no doubt that the humanitarian and compassionate grounds which are to be considered by an immigration officer are those pertaining to the person applying under that subsection. In my view, the best interests of children, whether they be Canadian or foreign, is only one of the considerations which an immigration officer should take into account. There are obviously many other factors which can be taken into account, including the objectives of Canadian immigration policy set out at section 3 [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 2] of the Act. It is also my view that the manner in which an applicant has entered and remained in Canada is a relevant factor. The objectives of Canadian immigration policy cannot be viewed as an encouragement to foreigners that they should enter this country illegally and remain therein illegally so as to increase their chances of obtaining permanent residence.
However, Baker, supra, dictates that the immigration officer not only consider the children, but that he give considerable weight to them. [Note omitted.]
[7]This reading of Baker may seem excessive, since the Supreme Court does not expressly state in its decision that the immigration officer's decision must be dictated by the interests of the children. However, this reading relies on some of the statements of Justice L'Heureux-Dubé that many, including Justice Nadon, understood as being an invitation to ensure that the children's interests would prevail except in exceptional circumstances.
[8]As soon as Baker was released, Robertson J.A., for the Court, expressed some concerns with respect to its scope (Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.), at paragraph 141):
What Baker, supra, establishes is that if "insufficient" weight is given to a relevant consideration then the decision cannot stand. As the interests of the children had been "minimized", the Minister's exercise of her discretion was deemed "unreasonable". Quaere: How does a tribunal or administrative official respond to a direction to give more weight to one consideration? How does one determine whether sufficient weight is given to a factor without prejudging or directing the outcome of a decision? Does the expanded understanding of the "reasonableness" standard of review conflict with the standard imposed by Parliament under subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] which outlines the statutory grounds for setting aside an administrative decision? Does the reasonableness standard applied in Baker conflict with that set out in Southam, supra?
[9]The Supreme Court dissipated the ambiguity created by Baker in its recent decision in Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1. That is how at least, I understand the following passages, at paragraphs 34-38:
It follows that the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion (see, for instance, Pezim v. British Columbia (Superintendant of Brokers), [1994] 2 S.C.R. 577, at p. 607, where Iacobucci J. explained that a reviewing court should not disturb a decision based on a "broad discretion" unless the tribunal has "made some error in principle in exercising its discretion or has exercised its discretion in a capricious or vexatious manner").
The Court's recent decision in Baker, supra, did not depart from this view. Rather, it confirmed that the pragmatic and functional approach should be applied to all types of administrative decisions in recognition of the fact that a uniform approach to the determination of the proper standard of review is preferable, and that there may be special situations where even traditionally discretionary decisions will best be reviewed according to a standard other than the deferential standard which was universally applied in the past to ministerial decisions (see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403).
The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions (paras. 54 and 55). The Court also made it clear in Baker that its approach "should not be seen as reducing the level of deference given to decisions of a highly discretionary nature" (para. 56) and, moreover, that any ministerial obligation to consider certain factors "gives the applicant no right to a particular outcome or to the application of a particular legal test" (para. 74). To the extent this Court reviewed the Minister's discretion in that case, its decision was based on the ministerial delegate's failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.
The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).
This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament's task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister's task is to make a decision that conforms to Parliament's criteria and procedures as well as the Constitution. The court's task, if called upon to review the Minister's decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament's legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold her decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion. [Underlining in original.]
[10]Moreover, in Chieu v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 107, the Supreme Court seems to accurately identify what Baker really stands for when it described it as an "example of an instance where the Minister's decision was procedurally deficient" (paragraph 70). Iacobucci J., for the Court, added that
It fell to this Court to clarify that the principles of natural justice guarantee certain rights to individuals who make a s. 114(2) application, including a right to make written submissions to the Minister's delegate who actually makes the decision, a right to receive brief reasons for the decision, and a right to an unbiased decision maker.
[11]In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to re-examine the weight given to the different factors by the officers.
[12]In short, the immigration officer must be "alert, alive and sensitive" (Baker, supra, at paragraph 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3 S.C.R. vii).
[13]Therefore, it is easy to answer questions 2 and 3:
Question 2
2. Is the mere mention of the children sufficient to fulfil the requirements of Baker, supra?
Answer: No. The mere mention of the children is not sufficient. The interests of the children is a factor that must be examined with care and weighed with other factors. To mention is not to examine and weigh.
Question 3
3. Did Baker, supra, create a prima facie presumption that the children's best interests should prevail, subject only to the gravest countervailing grounds?
Answer: No. Baker does not create a prima facie presumption that the children's best interests should prevail, subject only to the gravest countervailing grounds. In his question, Justice Nadon refers to the "children's best interests". This expression is ofttimes encountered in Baker, but to the extent that it could be understood to mean that the interests of the children are superior to other interests, it can cause the agent to believe that this factor is, before all others, more important, which in light of Suresh and in the absence of clear legislative or regulatory limitations stating otherwise, cannot be the case. It would be better to use the expression "children's interests".
[14]All that remains is question 7.
[15]Subsection 114(2) is an exceptional measure and, what's more, a discretionary one. As noted by Justice Iacobucci in Chieu, supra, at paragraph 64:
. . . an application to the Minister under s. 114(2) is essentially a plea to the executive branch for special consideration which is not even explicitly envisioned by the Act.
[16]This exceptional measure is a part of a legislative framework where "[n]on-citizens do not have a right to enter or remain in Canada", where "[i]n general, immigration is a privilege not a right" (Chieu, supra, at paragraph 57) and where "the Act treats citizens differently from permanent residents, who in turn are treated differently from Convention refugees, who are treated differently from individuals holding visas and from illegal residents. It is an important aspect of the statutory scheme that these different categories of individuals are treated differently, with appropriate adjustments to the varying rights and contexts of individuals in these groups" (Chieu, paragraph 59).
[17]Parliament chose, at subsection 114(2), to restrain the discretionary exercise to cases where there are compassionate and humanitarian considerations. Once these grounds are established, the Minister may allow the exception, but he may also choose not to allow it. That is the essence of the discretion, which must be exercised within the general context of Canadian laws and policies on immigration. The Minister can refuse to allow the exception when he is of the view that public interest reasons supersede humanitarian and compassionate ones.
[18]The Canadian government encourages immigration, as stated in the objectives of the Act at paragraphs 3(a) (attainment of demographic goals) and 3(b) (enrichment and strengthening of the cultural and social fabric of Canada). Subsection 5(2) of the Act foresees that "[a]n immigrant shall be granted landing if he . . . meets the requirements of this Act and the regulations". According to subsection 6(1) [as am. by S.C. 1992, c. 49, s. 3], an immigrant may obtain the right of landing in Canada "if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulation". Every year, the Minister, upon consulting with the provinces, must table in Parliament "the immigration plan for the next calendar year" (subsection 7(1) [as am. idem]). It is the responsibility of the immigrant to prove that he "has a right to come into Canada or that his admission would not be contrary to this Act or the regulations" (subsection 8(1)). Finally, an immigrant must, in principle, "make an application for and obtain a visa before that person appears at a port of entry" (subsection 9(1)) and "answer truthfully all questions put . . . by a visa officer" (subsection 9(3)).
[19]In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorized to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.
[20]These public interest considerations need not have been, I believe, put on paper since they are necessarily associated with the role and responsibilities of the Minister of Immigration. They have, however, been outlined in the Immigration Manual: Inland Processing (IP), published in 1993 by the Minister, containing Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) Grounds, which was updated in October of 2001. Of course, the Minister and his agents are not bound by these guidelines (see Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2), but the guidelines are accessible to the public and the Supreme Court, in Baker, supra, at paragraph 72, qualified them as being "of great assistance" to the Court.
[21]Paragraph 1.4 of the ministerial guidelines explain in the following terms why the exceptions exist:
The Immigration Act and Regulations set out specific requirements for granting permanent residence. These requirements reflect the objectives of the Act but do not cover all circumstances. The purpose of H&C discretion is to allow flexibility to approve deserving cases not anticipated in the legislation. Therefore, use of this discretion should not be seen as conflicting with other parts of the Act or Regulations but rather as a complementary provision enhancing the attainment of the objectives of the Act.
[22]Paragraph 1.7.1 explains that "[t]he decision-maker considers the applicant's submissions in light of all the information known to the Department".
[23]Paragraph 6.1 defines 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.
The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining whether sufficient H&C considerations exist to warrant the requested exemption from A9(1).
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. [Highlighted in text.]
[24]Paragraph 6.5 reminds us that the immigration officer is not making a determination of admissibility or inadmissibility at this point, but underlines nonetheless that:
| · You are looking at all the applicant's personal circumstan-ces, as provided by the applicant and as known to the Department, to determine if there are sufficient reasons for making a positive H&C decision. The facts relating to the known or suspected inadmissibility may be relevant to the H&C decision. |
For example, you know that the applicant has a criminal conviction. When considering the H&C decision, you are not concerned with whether or not the conviction makes the applicant inadmissible. However, you may consider the applicant's actions, including those that led to and followed the conviction, when you make your H&C decision. You may wish to consider
| · the type of criminal conviction |
| · whether the conviction is an isolated incident or part of a pattern of recidivist criminality |
| · length of time since the conviction |
| · what sentence was received |
| · any information about circumstances of the crime. [Highlighted in text.] |
[25]Section 8 specifies that the guidelines are "to assist [the immigration officer] in assessing H&C situations" and the officer "cannot be restricted by guidelines".
[26]At section 8.5, dealing with the separation of parents and dependant children, the guidelines state that an officer should "balance the different and important interests at stake".
| - Canada's interest (in light of the legislative objective to maintain and protect the health, safety and good order of Canadian society) |
| - family interests (in light of the legislative objective to facilitate family reunification) |
| - the circumstances of all the family members, with particular attention given to the interests and situation of the status-less individual's children. |
[27]Paragraph 8.7 deals with the "prolonged inability to leave Canada [having] led to establishment". It states that:
Positive consideration may be warranted when the applicant has been in Canada for a significant period of time due to circumstances beyond his or her control. [Highlighted in text.]
[28]My colleagues in the Trial Division have never hesitated in taking into account public interest considerations when examining the decisions made by immigration officers. See, for example, the following decisions quoted by the parties' counsel before us: Zand-Vakili v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 222 (F.C.T.D.) (Reed J.); Kessler v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 240 (F.C.T.D.) (Reed J.); Agbonkpolor v. Canada (Minister of Employment and Immigration) (1994), 29 Admin. L.R. (2d) 138 (F.C.T.D.) (McKeown J.); Wekpe v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 274 (F.C.T.D.) (McKeown J.); Martin v. Canada (Minister of Citizenship and Immigration) (1999), 177 F.T.R. 313 (F.C.T.D.) (Blais J.); Chau v. Canada (Minister of Citizenship and Immigration), 2002 FCT 107; [2002] F.C.J. No. 119 (T.D.) (QL) (Rouleau J.); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.) (Pelletier J.); Mayburov v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 280 (F.C.T.D.) (Lemieux J.); Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161 (F.C.T.D.) (Nadon J.); Quan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 114 (F.C.T.D.) (Lemieux J.); Russell v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 97 (F.C.T.D.) (Tremblay-Lamer J.); Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62 (F.C.T.D.) (Reed J.); Drame v. Minister of Employment and Immigration (1994), 82 F.T.R. 177 (F.C.T.D.) (Nadon J.).
[29]As to question 7,
7. Is the fact that an applicant under subsection 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those "other considerations" or "other reasons" mentioned in paragraph 75 in Baker, supra, which might outweigh the children's best interests?
I would answer that the Minister can take into account the actions, past and present, of the person who requests the exception.
[30]What, therefore, is to be done with the immigration officer's decision in this case? Justice Nadon, had he interpreted Baker the way I just did, would have concluded that the immigration officer's decision was reasonable and he would have dismissed the application for judicial review.
[31]Being authorized, under subparagraph 52(b)(i) of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 17)], to give the judgment that the Trial Division should have given, I have come to the conclusion that the immigration officer has examined the interests of the children with a great deal of attention, that she weighed that factor in the light of other factors related, inter alia, to the past conduct of Mr. Legault and that she made a decision which is reasonable in the circumstances.
[32]The appeal should therefore be allowed, the order of the judge of the Trial Division should be set aside, the application for judicial review should be dismissed and the decision of the immigration officer should be restored.
Richard C.J.: I agree.
Noël J.A.: I agree.