Date: 20010724
Docket: IMM-4555-00
Neutral citation: 2001 FCT 826
BETWEEN:
JOSE EPIFANIO RENEDO PEREZ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
Heneghan, J.
INTRODUCTION
[1] Mr. Jose Epifanio Renedo Perez (the "Applicant") seeks judicial review of the decision of Immigration Counsellor Brenda Heal (the "Immigration Counsellor"). In her decision dated August 10, 2000, the Immigration Counsellor determined that there were insufficient humanitarian and compassionate grounds upon which to grant the Applicant's application for an exemption of the requirement of section 9(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act").
THE FACTS
[2] The Applicant is a citizen of Mexico. He entered Canada on March 22, 1991 and made a claim for Convention refugee status on March 24, 1991. While attending a festival in Vancouver on October 26, 1991, the Applicant fatally stabbed a man to death. The Applicant was subsequently tried and convicted of first degree murder but was found to be non-criminally responsible on January 15, 1993 and committed to the Riverview Hospital, Forensic Psychiatric Institution ("Riverview Hospital") at Coquitlam, British Columbia for a period of indefinite detention.
[3] The Applicant's claim for Convention refugee status was heard by a panel of the Immigration and Refugee Board, Convention Refugee Determination Division, and he was determined not to be a Convention refugee in a decision made on July 15, 1996. An application for consideration as a member of the Post Determination Refugees in Canada class was denied on June 3, 1998.
[4] In January 1996 the Applicant met Kasandra DeBanou. They married on September 9, 1996. At the time, the Applicant was a patient at Riverview Hospital. His wife was also an intermittent patient of the same hospital.
[5] The Applicant submitted an application for landing from within Canada on October 8, 1999. One basis for this application was his status as the spouse of a Canadian citizen. At the same time, his wife submitted an application to sponsor the Applicant from within Canada, as her spouse. Both applications involved the exercise of the discretion conferred on the Minister of Citizenship and Immigration by section 114(2) of the Act.
[6] In a letter dated August 10, 2000, signed by T. Cochlan in his capacity of Supervisor of Inland Application at Citizenship and Immigration in Vancouver, the Applicant was informed that his request for an exemption from the requirements of section 9(1) of the Act was denied, on the basis that there were insufficient grounds to justify exempting him from the requirements of section 9(1) of the Act, in other words, to relieve him of the usual requirement that he apply for landing in Canada from outside the country.
[7] The refusal letter of August 10, 2000 provides, in part, as follows:
On 10 August 2000, an immigration offficer [sic] acting as a delegate of the Minister of Citizenship and Immigration review the individual circumstances of your request for an exemption from the requirement of subsection 9(1) and decided that an exemption will not be granted for your application.
Your application is therefore refused.
In making the decision the officer has considered the written material included in your application, your file history of dealings with Canada Immigration, telephone discussions with your previous case manager, Ms Richardson and present case manager, Mr. Shieh and additional submissions from your counsel, Ms. O'Connor Coulter. Unfortunately there was [sic] not enough Humanitarian and Compassionate grounds to justify a positive decision. [emphasis in original]
[8] The Tribunal Record contains a "Report to File" prepared by the Immigration Counsellor in which she records some of the factors which she took into account in reaching her decision. She identified the Applicant's marriage to a Canadian citizen, the duration of their relationship and the fact that the spouses visit when the Applicant is permitted community access visits, as positive factors that would support granting the waiver.
[9] The Immigration Counsellor noted many more factors as negating the exercise of Ministerial discretion. These negative factors included the Applicant's conviction of first degree murder and the later determination that due to a mental illness, he should be found not criminally responsible for that offence and his committal to Riverview Hospital. Furthermore, the Immigration Counsellor referred to the various decisions of the Review Board which have concluded the Applicant to be a threat to public safety if released and the consistent recommendation that he be detained in the Riverview facility. The Immigration Counsellor also referred to the illness of the Applicant's wife, who suffers from the same type of mental illness as the Applicant. However, the wife periodically does not follow the prescribed regime of medication and consequently, experiences a deterioration of her mental health. Such occurrences contribute to the mental stress and regression of the Applicant's own mental health.
[10] The Immigration Counsellor also noted that the Applicant is medically inadmissible and subject to a deportation order.
ISSUES
[11] The Applicant raises the following issues in this application:
(a) Did the Tribunal apply an incorrect test in determining whether there were sufficient humanitarian and compassionate grounds to grant an exemption to the provisions of section 9(1) of the Act?
(b) Did the Tribunal consider irrelevant considerations in arriving at its decision?
(c) Did the Tribunal breach the duty of fairness by not affording the Applicant an opportunity to respond to the material before it, and by having the application investigated by one officer, the decision rendered by another and the reasons for the decision apparently written by a third?
(d) Did the Tribunal violate section 15 of the Canadian Charter of Rights and Freedoms and section 3 of the Canadian Human Rights Act in denying the Applicant the full benefit of the law on the basis of the mental disability from which both he and his spouse suffer?
Applicant's Submissions
[12] The Applicant's first submission is that the Immigration Counsellor addressed irrelevant considerations in making her decision. Specifically, the Applicant argues that the Immigration Counsellor focused on the mental disabilities of the Applicant and his wife and concluded, as a result, they could not be expected to have a stable or durable relationship. The Applicant says that his illness, not the genuineness of his marriage, was the focus of the decision-maker.
[13] Second, the Applicant submits that the Immigration Counsellor applied an incorrect test in deciding whether there were sufficient humanitarian and compassionate grounds for granting an exemption to the operation of section 9(1) of the Act. The Applicant says that the Immigration Counsellor addressed herself to the question of the durability of the marriage, even though the directives in section 8 of the Guidelines for Inland Processing (1P-5) do not require immigration officers to make such determinations. The Applicant says that the decision-maker was only required to address the following questions about his marriage:
Is the marriage genuine?
Was it entered into with the intention of permanently residing with the other spouse?
Was it entered into for the purpose of remaining in Canada.
[14] The Applicant argues that there is no evidence that the Immigration Counsellor addressed herself to any of the elements of this test.
[15] Third, the Applicant claim that the Immigration Counsellor breached the duty of fairness and failed to give him a full and fair hearing in accordance with the rules of natural justice. The Applicant argues that he was not given the opportunity to respond to the material before the Immigration Counsellor. Here he refers specifically to his medical profile which the Immigration Counsellor relied on but failed to provide to his counsel.
[16] Next, the Applicant submits that the decision of the Immigration Counsellor implies bias against those persons who are mentally ill. He classifies this as a form of discrimination which offends the quality provisions of the Charter of Rights.
Respondent's Submissions
[17] The Respondent argues that the correct approach to this application lies in assessing the decision in question against the standard of reasonableness and says that, in light of the evidence before the Immigration Counsellor concerning the unique circumstances of the Applicant, the decision is reasonably supported by that evidence.
[18] Second, the Respondent submits that the Applicant is complaining about the weight given to that evidence, rather than about the process followed by the decision-maker.
[19] Next, the Respondent denies that there is any basis for the Applicant's argument about bias. The Respondent says that the decision does not demonstrate a policy of denying a positive exercise of Ministerial discretion to person suffering from mental illness. It is a specific decision based on the particular circumstances of the Applicant.
[20] Finally, the Respondent denies that there has been any breach of procedural fairness. The Respondent says that the Applicant, through his counsel, was aware of discussions by the Immigration Counsellors with persons involved in his care and treatment, including the disclosure of information that he suffered from a serious medical condition.
ANALYSIS
[21] The decision here in question is a discretionary one made pursuant to section 114(2) of the Act. That section provides as follows:
|
114. (1) ... (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. (1) ... (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. |
[22] The operation of this section allows a person to seek entry to Canada from within the country, as opposed to the general process prescribed by section 9(1), as follows:
[23] The exercise of discretion pursuant to section 114(2) of the Act is familiarly known as a "humanitarian and compassionate application", and is subject to review against the standard of reasonableness simpliciter; see Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.).
[24] In Baker, supra, the Supreme Court of Canada discussed the statutory scheme underlying all humanitarian and compassionate decisions. At paragraph 15, the Court said as follows:
[25] Guidelines are published by the Respondent to assist the decision-maker in the exercise of the discretion conferred by section 114(2). The Guidelines specifically state that they are not binding but rather are to be used to inform the exercise of discretion by the decision-maker:
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).
[26] Section 8.1 of the Guidelines identifies factors to be considered in assessing a humanitarian and compassionate application based on membership in the family class:
81.1 Spouses sponsored as members of the family class
Canada's long term policy has been facilitation of admission for those spouses in Canada sponsored by their Canadian citizen or permanent resident spouses
First of all determine
· Has a sponsorship been submitted and approved?
If so, the applicant is a potential member of the family class and this can be considered as a favourable H & C factor. [Emphasis Added]
[27] Having regard to these directives, I am not persuaded that the Immigration Counsellor erred in her assessment of the Applicant's application. There is no argument about the genuineness of the Applicant's marriage; that is clear from the record. No issue was taken by the Respondent upon the hearing of the application about the genuineness of the marriage. However, in my opinion, the Immigration Counsellor properly exercised her discretion in considering the Applicant's application when she looked beyond the fact of the marriage itself and considered the other facts which specifically relate to the Applicant, including his illness, the illness of his wife and the requirements for long-term care for management of his illness.
[28] In my opinion, the Immigration Counsellor did not take irrelevant or extraneous matters into consideration when exercising her discretion. Her decision is reasonably supported by the evidence and there is no basis for judicial intervention.
[29] It is not necessary to address the Charter arguments raised by the Applicant in light of my finding that the Immigration Counsellor reached her decision on the basis of the specific facts pertaining to the Applicant.
[30] Counsel shall have five days from receipt of these reasons to submit a proposed question for certification.
(Sgd.) "Elizabeth Heneghan"
Judge
Vancouver, British Columbia
July 24, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4555-00
STYLE OF CAUSE: Jose Epifanio Renedo Perez v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 17, 2001
REASONS FOR ORDER OF THE COURT BY: Heneghan J.
DATED: July 24, 2001
APPEARANCES:
Karen O'Connor Coulter FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Karen O'Connor Coulter FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Vancouver, British Columbia