Federal Court Decisions

 

 

 

Date: 20070125

Docket: IMM-7202-05

Citation: 2007 FC 74

Ottawa, Ontario, January 25, 2007

PRESENT:     The Honourable Madam Justice Dawson

 

BETWEEN:

 

CARLOS AUGUSTO AGUILAR ESPINO

ANA AGUILAR GONZALEZ

CARLOS ALEXANDER AGUILAR GONZALEZ

JESSE ANTONIO AGUILAR GONZALEZ

 

Applicants

 

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]        Carlos Augusto Aguilar Espino, his wife Ana Aguilar Espino, and their two children Carlos Alexander Aguilar Gonzalez and Jesse Antonio Aguilar Gonzalez applied for permanent residence from within Canada on humanitarian and compassionate grounds.  Their application was rejected by an officer.  On this application for judicial review of that decision they raise the following two issues:

 

1.         Was the officer’s use of the two-step assessment process described in chapter 5 of the Inland Processing manual (IP 5) unsupported by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), and contrary to its intent?

 

2.         Did the officer err by failing to consider whether public policy considerations justified an exemption from the usual requirement that foreign nationals must apply for a permanent resident visa from outside Canada?

 

[2]        In these reasons, I conclude that the two-step assessment process is not contrary to the intent of the legislation but is supportable within the terms of the Act, and that on the facts before the officer she did not err by failing to consider public policy considerations.

 

[3]        The issues arise in the following factual context.

 

BACKGROUND FACTS

[4]        Mr. and Mrs. Aguilar are citizens of Guatemala who arrived in Canada in February of 1998.  They brought with them their sons Carlos, born in Guatemala, and Jesse, born in the United States.  Two more children have been born in Canada since the family arrived.  As the two youngest children are Canadian citizens they were not included in the application for permanent residence.

 

[5]        Upon entering Canada, Mr. Aguilar and his family made a claim for refugee protection.  They were found not to be Convention refugees by the Refugee Protection Division of the Immigration and Refugee Board in September of 2000.  They then made an application for permanent residence based on humanitarian and compassionate grounds.  That application was refused on December 2, 2002.  A pre-removal risk assessment (PRRA) application was made on February 3, 2003 and a negative decision was reached on January 27, 2004.  A second PRRA decision, also negative, was made on July 14, 2005.

 

[6]        Mr. Aguilar and his family then brought a second humanitarian and compassionate application for permanent residence, asking that the officer consider their high degree of establishment in Canada, the best interests of their children and the disproportionate hardship the applicants would face if they were required to return to Guatemala.

 

THE OFFICER’S DECISION

[7]        The officer found that the applicants had achieved a "fair degree of establishment in Canada".  Mr. Aguilar was self-employed in the towing business, in addition to being employed as an automobile mechanic.  The family had become involved in a church group and the officer noted numerous letters of support provided by members of the congregation.  The two school-aged children had attended school in Canada for several years.  The parents had both upgraded their education since their arrival in Canada.  They bought a home in Winnipeg, on which they have a mortgage.  The applicants were found by the officer to have made efforts to become established in Canada.

[8]        The officer noted that the applicants had become similarly established during a six-year stay in the United States, prior to entering Canada, but that they had chosen to come to Canada to pursue a refugee claim here.  The officer, therefore, found that the applicants had proven themselves to be resilient and resourceful, able to re-establish themselves at different locations.  Mr. Aguilar had shown that he could find employment in each country to which they moved.  Moreover, two of the children had not yet attended a Canadian school, so there would be less upheaval if they were moved before they became accustomed to Canadian schools.

 

[9]        The officer then went on to consider the best interests of the children.  She noted that the eldest child was a citizen of Guatemala and had lived his first years there.  The children had extended family members in Guatemala, as well as in the United States, but they had none in Canada.

 

[10]      The officer observed that the Canadian-born children would not be required to leave Canada because the parents retained the option of leaving them in Canada.  While the applicants had stated that it would not be feasible to split a family up in this way, the officer noted that the parents were free to change their minds in order to provide what they think is in the best interests of their children.  The officer concluded that the applicants would suffer no disproportionate hardship if forced to return to Guatemala.  Though the applicants complained that the school system in Guatemala is inadequate, the difference in educational systems was found not to be unique to this family.  Moreover, two of the children have had the advantage of several years of Canadian education, which in the officer’s view would make them more educationally advantaged than other Guatemalan children with no Canadian education.

 

[11]      The officer went on to consider the risk to the applicants.  The officer adopted the PRRA officer's assessment.  The applicants had argued two new sources of risk: risk by virtue of being female (for Mr. Aguilar's wife) and risk from being foreign-born or returning children.  In particular, the applicants stated that they feared that their children would be recruited into a gang.  The officer found any risk to Mr. Aguilar's wife would not be unusual and underserved or disproportionate, as all Guatemalan women would face the same risk.  Regarding the foreign-born or returning children, the officer found that gang activity also occurs in Canada.  Remaining in Canada would not, therefore, guarantee that this risk would not materialize.  The officer concluded that there was no risk that was unusual and underserved, or disproportionate.  The humanitarian and compassionate application was therefore refused.

 

APPLICABLE LEGISLATION

[12]      It is a fundamental principle of the Act that those who wish to obtain status as a permanent resident in Canada must apply for such status from outside of Canada.  This is made clear in subsections 11(1) and 20(1) of the Act, and section 6 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).  These provisions are contained in the appendix to these reasons.

 

[13]      However, in order to provide flexibility, and to recognize that there may be cases where an exemption to that requirement is appropriate, the Minister is given discretion to exempt a foreign national from that requirement.  That discretion is found in subsection 25(1) of the Act, which provides:

 

THE MINISTERIAL GUIDELINES

[14]      Neither the Act nor the Regulations specify what constitutes humanitarian and compassionate grounds.  In order to promote fairness and consistency in the exercise of the discretion conferred by subsection 25(1) of the Act, administrative guidelines are provided to the officers designated to exercise this discretion.  For applications made from within Canada the applicable guidelines are found in IP 5.

 

[15]      The guidelines applicable under the predecessor legislation to subsection 25(1) of the Act were referred to and relied upon by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 16 and 17.  There, the Court wrote:

16        Immigration officers who make H & C decisions are provided with a set of guidelines, contained in chapter 9 of the Immigration Manual: Examination and Enforcement.  The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them.  These guidelines are also available to the public.

 

[…]

 

17        The guidelines also set out the bases upon which the discretion conferred by s. 114(2) and the Regulations should be exercised.  Two different types of criteria that may lead to a positive s. 114(2) decision are outlined -- public policy considerations and humanitarian and compassionate grounds.  Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist.  Public policy reasons include marriage to a Canadian resident, the fact that the person has lived in Canada, has become established, and has become an "illegal de facto resident", and the fact that the person may be a long-term holder of employment authorization or has worked as a foreign domestic. Guideline 9.07 states that humanitarian and compassionate grounds will exist if "unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada".                                    [underlining added]

 

[16]      Subsequently, in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 the Supreme Court explained its intervention in Baker in the following terms:

36        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. 54-55).  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. [underlining added]

 

[17]      The guidelines now in IP 5 explain the objective served by subsection 25(1) of the Act in the following terms:

The purpose of H&C discretion is to allow flexibility to approve deserving cases not anticipated in the legislation.  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.  It is not an appeal mechanism.

 

[18]      As to the balance to be struck between discretion and consistency, section 2.1 of IP 5 instructs:

The legislation does not provide any explanation or guidance about what constitutes humanitarian and compassionate grounds.  Delegated persons have full authority to make this decision.  At the same time, to be fair to clients and to avoid just criticism, there must be as much consistency as possible in the use of this discretion.

 

As much guidance as possible is given to assist officers in striking a balance between the two seemingly contradictory aspects of discretion and consistency.  However, the discretion of the decision-maker takes precedence over guidance when decisions are made.

 

[19]      The manual directs that an application to remain in Canada on humanitarian and compassionate grounds be assessed in two steps (see section 5.5 of IP 5).  The two-step process is explained in sections 5.6, 5.7 and 5.9, which are as follows:

5.6.      First-step assessment: Toward the H&C decision

 

The decision-maker assesses H&C grounds and determines whether:

 

•           the foreign national should be exempted from the selection criteria related to becoming a permanent resident from within Canada.

 

The applicant bears the onus of satisfying the decision-maker, at the time the application is made, that the H&C factors present in their individual circumstances are sufficient to warrant an exemption.  The decision-maker considers the applicant’s submissions in light of all the information known to the officer.

 

[…]

 

5.7.      A positive H&C decision

 

When a decision has been made to allow a foreign national to apply from within Canada on H&C grounds, for purposes of the current application only this one-time decision:

 

•           exempts the applicant from the in-Canada selection criteria based on humanitarian and compassionate or public policy considerations to facilitate processing of the application for permanent residence from within Canada; and

 

•           allows the foreign national to become a permanent resident in Canada subject to certain requirements [R72(b) and (e)].

 

[…]

 

5.9.      Second-step assessment: Toward the decision to confirm permanent residence

 

Processing of the application for permanent residence follows a positive H&C decision.

 

In order to become a permanent resident, the applicant must meet the requirements for permanent residence in R68, including that the applicant and their family members, whether accompanying or not, are not inadmissible and otherwise meet the requirements of the Act and Regulations.

                                                [emphasis in original deleted]

 

[20]      Other relevant guidance is provided in sections 5.12, 5.22, 6.5 through 6.8, and 11.3.  They are as follows:

5.12.    Inadmissible applicants

 

Although foreign nationals who are inadmissible may submit an H&C application, a positive H&C decision to waive certain selection criteria does not overcome admissibility requirements.  If after the H&C decision is made, it is determined that the foreign national is inadmissible, the application for permanent residence must be refused.

 

[…]

 

5.22.    Public policy

 

The Minister may, from time to time, establish categories of persons whose applications for permanent residence may be considered for processing as “public policy” cases.  A public policy under A25(1) in relation to resumption of citizenship can be found in Appendix F.

 

[…]

 

 

6.5.      Humanitarian and compassionate decision

 

A positive H&C decision is an exceptional response to a particular set of circumstances.  An H&C decision is more complex and more subjective than most other immigration decisions because officers use their discretion to assess the applicant’s personal circumstances.

 

Applicants must satisfy the decision-maker that their personal circumstances are such that they would face unusual, undeserved, or disproportionate hardship if required to apply for a permanent resident visa from outside Canada.

 

6.6.      Humanitarian and compassionate grounds

 

Applicants making an application under A25(1) are requesting processing in Canada due to compassionate or humanitarian considerations.  Section A25(1) provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the legislation.

 

6.7.      Unusual and undeserved hardship

 

Unusual and undeserved hardship is:

 

•           the hardship (of having to apply for a permanent resident 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 a permanent resident visa from outside Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person’s control.

 

6.8.      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 a permanent resident visa from outside of Canada) would have a disproportionate impact on the applicant due to their personal circumstances.

 

[…]

 

11.3.        Process for known or suspected inadmissibility of applicant (or family members)

 

Decision-making can become complicated when, prior to or during the consideration of H&C factors, a known or suspected inadmissibility is identified.

 

This can occur at the outset when reviewing the FOSS client history or information provided by the applicant on the IMM 5001E.

 

Some examples of known or suspected inadmissibility are when the applicant (or an accompanying family member in Canada) is:

 

[…]

 

•           the subject of a removal order for criminality or other serious inadmissibility such as security, organized criminality, or human or international rights violations;

•           the subject of outstanding criminal charges in Canada or elsewhere;

•           suspected of having committed criminal acts or omissions outside of Canada;

 

[…]

 

The relationship between such facts and the H&C decision is important since officers are not making a determination of admissibility or inadmissibility at this point.  They are looking at all the applicant’s personal circumstances, 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 fact relating to the known of suspected inadmissibility may be relevant to the H&C decision (for example, the applicant has a criminal conviction).  When considering the H&C decision, officers must not be concerned with whether or not the conviction makes the applicant inadmissible.  However, they may consider factors such as the applicant’s actions, including those that led to and followed the conviction.

 

Officers should 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; and

•           any information about circumstances of the crime.

                                                            [emphasis in original deleted]

 

[21]      IP 5 clarifies that an applicant must file a form IMM 5001E which is entitled "Request for Exemption from Permanent Resident Visa Requirement".  Section 3.1 of IP 5 instructs that:

Note:  The IMM 5001E is considered an “Application to Remain in Canada as a Permanent Resident” only after a positive H&C decision is rendered.

 

[22]      Having described the statutory provisions and the Ministerial Guidelines, I now turn to the two issues raised by the applicants.

 

Is adherence to the two-step process an error in law, unsupported by the legislation and contrary to its intent?

[23]      The applicants begin their submissions by noting that it is not possible for a foreign national to apply directly to remain in Canada as a permanent resident on discretionary grounds.  A person must first apply to be exempt from the permanent resident visa requirement.  Only when a person is granted an exemption from that requirement can a person in Canada apply to remain in Canada as a permanent resident.  However, the applicants argue, the Act does not provide for this sequencing.  The applicants say that section 25 of the Act provides that the Minister "may grant a foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act".  Permanent resident status and an exemption from any applicable criteria or obligation under the Act are said to be placed on an equal footing in the Act.  However, the Minister has given one obligation “pride of place”, the obligation to have a permanent visa.

 

[24]      The applicants also argue that the two-step process is perverse and contrary to the intent of Parliament because it treats all forms and degrees of inadmissibility alike.  They assert that a person who seeks discretionary relief but is inadmissible because the person has committed a series of violent crimes should be treated differently from persons who are inadmissible because they do not have a permanent resident visa.  However, they argue, the manner in which the Minister treats applications for discretionary relief is such that at the first stage all persons are treated alike.  The applicants argue that, presently, only at the second stage is there a weighing of considerations in favour of the applicant against grounds of inadmissibility.  This is said to severely prejudice applicants whose grounds of inadmissibility are minor and technical.

 

[25]      Finally, the applicants note that paragraph 67(1)(c) of the Act confers jurisdiction on the Immigration Appeal Division of the Immigration and Refugee Board (IAD) to allow an appeal where, "taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case".  In cases such as Jugpall v. Canada (Minister of Citizenship and Immigration), [1999] I.A.D.D. No. 600, the IAD has held that this provision exists for the purpose of making available a remedy where the “strict application of the law produces harsh results”.  Reliance is placed by the applicants upon the following dicta from Jugpall, found at paragraphs 22 and 24.

22        The need to establish the context in which an appeal pursuant to s.77(3)(b) is to be considered can be understood as a practical and purposive approach to the administration of the Act.  If the purpose of the Act is to facilitate rather than frustrate immigration, then one of the aims of the Act in granting a right of appeal pursuant to s.77(3)(b) is to make available a remedy where the strict application of the law produces harsh results.  This aim can be realised by measuring the compassionate or humanitarian aspects of an individual's case in relation to the legal obstacles to admissibility.

[…]

24        The Appeal Division has consistently applied an approach which requires the degree of compelling circumstances to be commensurate with the legal obstacle to admissibility in order to justify granting discretionary relief.  […] Thus in a medical inadmissibility case where, by the date of the appeal, the applicant has undergone successful treatment and cured the condition which gave rise to inadmissibility, the initial refusal is nonetheless valid in law.  However, a complete surmounting of the substance of the original ground of inadmissibility weighs very heavily in the Appeal Division's assessment of the compassionate or humanitarian circumstances of the case. [underlining added]

 

[26]      By analogy, it is urged that where the only ground of inadmissibility is the absence of an immigrant visa, the Minister errs by interpreting subsection 25(1) so that a positive humanitarian and compassionate decision requires "an exceptional response to a particular set of circumstances" and by requiring applicants to satisfy the Minister’s delegate that "their personal circumstances are such that they would face unusual, undeserved, or disproportionate hardship if required to apply for permanent resident visa from outside Canada" as required by section 6.5 of IP 5.  Instead, the applicants assert, the Minister's discretion under subsection 25(1) of the Act should allow for the balancing of the extent of the legal obstacle to admission against the degree of compelling circumstances in favour of admission.  Where the only ground of inadmissibility is the absence of a visa, a mildly compelling case should overcome that ground of inadmissibility.

 

[27]      As this ground of review goes to whether the Minister has incorrectly interpreted and applied subsection 25(1) of the Act, the standard of review to be applied is correctness.

 

[28]      I have noted, as the applicants argue, that the Act does not provide guidance concerning what constitutes humanitarian and compassionate grounds, or how claims for relief are to be considered.  Parliament has thus conferred considerable discretion upon the Minister and in each case a variety of factors must be considered.  With this discretion must come, in my view, what the Supreme Court described to be "considerable flexibility to the Minister to decide on the proper procedure" to be followed when processing humanitarian and compassionate applications.  Deference is to be accorded to the "institutional practices and choices made by the Minister".  See:  Baker, cited above, at paragraph 31.  In Baker, the Minister's guidelines were described, at paragraph 72, as a "useful indicator of what constitutes a reasonable interpretation of the power conferred [by the legislation]".

 

[29]      From this, I conclude that the process set out by the Minister in IP 5 for considering humanitarian and compassionate claims should only be interfered with if the process is unreasonable in the sense that it is contrary to the intent of the Act.

 

[30]      For the reasons that follow, I respectfully reject the submission that the two-step process prescribed by the Minister is contrary to the intent of the Act.

 

[31]      I begin by repeating that it is a fundamental principle underpinning the Act that persons who wish to live permanently in Canada must submit an application for permanent resident status from outside of Canada and qualify for, and obtain, a permanent resident visa prior to arriving in Canada.  The predecessor to subsection 25(1) of the Act was recognized by the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 to be an exceptional measure.  In Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 at paragraph 64, Mr. Justice Iacobucci, writing for the Court, described a humanitarian and compassionate application to be "essentially a plea to the executive branch for special consideration which is not even explicitly envisioned by the Act".

 

[32]      It is consistent with the legislative scheme and the exceptional nature of the relief sought that the starting point for consideration of a humanitarian and compassionate application should be an examination of all of the circumstances concerning the foreign national applying for relief in order to see whether sufficient humanitarian and compassionate considerations exist to warrant exempting the foreign national from the usual requirement that he or she obtain their permanent resident visa before entering Canada.  This is what the manual instructs and it is consistent with the below underlined portions of subsection 25(1):

 

[33]      The first step of the two-step process thus allows the decision-maker to concentrate on the most relevant factor: the circumstances of the applicant and whether they are such as to deserve exemption from the usual requirements of the Act.  If an applicant satisfies the officer that he or she should be exempted from the requirements, the officer approves the application for exemption.  At that point, the applicant is formally considered to be an applicant for permanent residence and the applicant must then satisfy the officer that he or she meets all of the other requirements of the Act, including those relating to admissibility.

 

[34]      To instead move, as the applicants argue, to balance the extent of the obstacle to admission against the circumstances in favour of admission would, in my view, create a new admission stream that would by-pass the legislated requirement that permanent resident applications are to be made from abroad.

[35]      I do not accept that the existing process is perverse, or contrary to the intent of Parliament because it treats all forms of inadmissibility in the same fashion.  To use the example cited by the applicants, I do not agree that at the first step of the assessment "[t]he worst criminals are put at the same level […] as the most technical offenders of the [Act]".  While it is true that no decision as to inadmissibility is made at the first step, as section 11.3 of IP 5 (set out above) makes clear, facts relating to inadmissibility may be relevant to the humanitarian and compassionate decision.

 

[36]      I have also not been persuaded that the two-step process prejudices applicants whose grounds of inadmissibility are "minor and technical".  Without accepting that the lack of a permanent resident visa is a minor or technical matter, it is clear that the Minister has instructed his staff at the first step to balance the existing humanitarian and compassionate considerations against the hardship that would be caused if an applicant was required to apply for a permanent resident visa from outside of Canada.  This takes into account the basis of an applicant's inadmissibility where such inadmissibility flows from the failure to have acquired a permanent resident visa before entering Canada.

 

[37]      Subsection 25(1) of the Act gives the Minister two powers (the power to grant permanent resident status and the power to grant an exemption).  The power to grant permanent resident status is a separate power.

 

[38]      In supplementary submissions, counsel for the Minister advised that the Minister has granted permanent residence to foreign nationals under the following public policies that have been established under the Act:

•     to facilitate the immigration of dependents of Canadian citizens evacuated from Lebanon (fee waiver) (2006);

 

•     to aid victims of trafficking who are eligible for a short-term temporary resident permit (provide fee exemptions for the short-term TRP) (2006);

 

•     to unite certain members of the Vietnamese community in the Philippines without permanent residence who have close family members in Canada (facilitate their immigration to Canada) (2005);

 

•     to aid foreign national seriously and personally affected by the tsunami in Asia and earthquake in Pakistan (provide fee exemptions) (2004/2005);

 

•     relating to spouses and common-law partners in Canada who are without status, allowing them to process their cases in Canada. (2005);

 

•     to facilitate the reintegration into Canadian society of people who ceased to be citizens as minors as a result of actions taken by their responsible parents (2003); and

 

•     to ensure facilitative measures for Algerian foreign nationals affected by the lifting of the temporary suspension of removals (2002).

 

[39]      In such cases, public policy considerations facilitated the processing of individuals who met specific eligibility criteria.

 

[40]      In the case of a person in Canada who wishes to apply for permanent residence, but who does not meet the limited criteria that permit such an application (see: section 72 of the Regulations), what is required is the exercise of the power to grant an exemption from the obligation to apply from abroad.  As noted above, to instead allow such a person to request exercise of the power to grant permanent residence would create an alternate immigration scheme.

 

[41]      I now turn to the applicants' argument that, where the only ground of inadmissibility is the absence of an immigrant visa, the Minister errs by interpreting subsection 25(1) to require an applicant to satisfy the Minister that he or she would face unusual, underserved or disproportionate hardship if required to apply for a visa from abroad.  Relying upon jurisprudence such as Jugpall from the IAD, the applicants argue that humanitarian and compassionate factors are to be measured against the legal obstacle to disability.

 

[42]      I reject this argument, respectfully, for two reasons.  First, as discussed above, this interpretation, which could significantly reduce what an applicant must establish in order to obtain a positive decision, is not consistent with the principle underpinning the Act that applications for permanent residence must be made, and a permanent resident visa must be obtained, before a foreign national arrives in Canada.

 

[43]      Second, to urge reliance upon authorities such as Jugpall ignores the very different fact situations to which that jurisprudence generally applies.  The IAD is given jurisdiction by section 63 of the Act to deal with appeals brought by:

 

(1)        Canadian citizens and permanent residents whose applications to sponsor close family members to Canada have been refused (subsection 63(1));

 

(2)        permanent residents or protected persons who have been ordered removed from Canada (subsection 63(3));

 

(3)        permanent residents determined outside of Canada not to have fulfilled their residency obligations (subsection 63(4)); and

 

(4)        foreign nationals who hold a permanent resident visa who have been ordered removed from Canada (that is, an unlanded permanent resident) (subsection 63(2)).

 

[44]      Thus, a foreign national does not have access to the IAD (except in the limited situation where he or she has a permanent resident visa, but has not yet been landed, and in such a case there are limitations found in section 65 of the Act that limit the IAD’s right to consider humanitarian and compassionate considerations).  The jurisdiction of the IAD attaches to Canadian citizens and to persons who have, at least initially, been determined to meet the selection criteria for admission and who have received a permanent resident visa.  Citizens and permanent residents are entitled to appeal to the IAD to seek special relief from matters affecting their inadmissibility, or the inadmissibility of sponsored family members.

 

[45]      By comparison, as noted by the Supreme Court of Canada in Chieu at paragraphs 60 and 61, subsection 25(1) of the Act is most commonly used to exempt persons already in Canada from the normal requirement to obtain a permanent resident visa while outside Canada.  Illegal residents who wish to remain in Canada when a removal order has been made against them must rely on subsection 25(1) because they have no right to appeal to the IAD.  There is, however, no obligation on the Minister to treat such illegal residents or persons without durable status in the same fashion that citizens, permanent residents, or permanent residents facing removal are treated (see, for example, Chieu at paragraph 59).  Thus, different tests may exist as to what constitutes humanitarian and compassionate considerations, depending on an applicant’s status under the Act.

 

[46]      In my opinion, the two-step assessment process for considering humanitarian and compassionate applications set out in the guidelines applicable to subsection 25(1) of the Act is not contrary to the Act.  I now turn to the second issue raised by the applicants.

 

Did the officer err by failing to consider whether public policy considerations justified an exemption from the requirement to obtain a permanent resident visa before entering Canada?

[47]      Subsection 25(1) also allows the Minister to grant an exemption or permanent resident status if of the view that such step is justified by public policy considerations.  The applicants submit that in their case the officer made no attempt to take into account public policy considerations.  They further argue that the "loss to Canada of someone who has successfully established himself in Canada is a public policy consideration which deserves attention.  Yet, the deciding officer nowhere mentions it.  The officer considers degree of establishment in Canada solely from the perspective of humanitarian [and compassionate] considerations and no other".

 

[48]      In response, the Minister argues that the applicants did not specifically request consideration of their application on public policy grounds and that it is not necessary for public policy matters to be considered on every application.  The Minister also argues that it is not for officers to create public policy.  Public policy considerations are established by the Minister and, as noted at section 5.22 of IP 5, the Minister has established a policy in relation to the resumption of citizenship.  The applicants do not fit within that policy.

 

[49]      The applicants respond that "[f]or the deciding officer to understand that the officer had no authority to take into account public policy considerations unless and until the Minister established categories of persons whose applications for permanent residence may be considered for processing as ‘public policy’ cases would amount to unlawful fettering of discretion".

 

[50]      Neither the applicants, nor the Minister, expanded upon these submissions in oral argument.

 

[51]      In my view, it is important not to divorce the parties’ submissions from the content of the application that was before the officer.  Whatever the basis of an application under subsection 25(1) of the Act, public policy or otherwise, I am satisfied that the burden of producing proof of the claim is at all times upon the applicant.  See:  Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at paragraphs 5 and 7.

 

[52]      The applicants’ submissions to the officer stated that the applicants relied upon three factors to support their application for inland processing.  Those factors were: their degree of establishment in Canada, the best interests of the children and the disproportionate hardship they would face if they were required to return to Guatemala in order to await processing.  Only the first factor, establishment, is argued by the applicants to support public policy considerations favourable to their application.

 

[53]      With respect to establishment, the applicants’ submissions to the officer were as follows:

A.        Degree of establishment in Canada

 

This family comprises the parents and four children.  The two youngest children were born in Canada.  The second oldest in the USA but has lived in Canada since age 3.  The eldest was born in Guatemala but left there at the age of 2.  All of the children have been educated in English and speak little Spanish.  They are fully integrated into the school system here.

 

Both parents have also educated themselves in Canada.  Ana Aguilar obtained her grade 12 education in Winnipeg and Carlos Aguilar upgraded his English and technical skills.

 

There is a history of stable employment and sound financial management in the family.  Since leaving Guatemala in 1991, Mr. Aguilar has successfully supported his family, largely through self-employment as a qualified auto mechanic and tow-truck operator.  He has twenty years of experience as a mechanic and car painter and even if his professional qualifications are not understood by a particular employer, a two-day trial period in any establishment secures him full-time employment.  That is what happened in Winnipeg.  When he went to work at Tony’s Academy Auto Service – still his current employer – on a work program, he was quickly hired on as a permanent employee.  His profession is recognized under NOC#73211.

 

In 2001, Mr. Aguilar was offered parental leave by his boss who did not have enough work for everyone and when he finished that, Mr. Aguilar started his own business again.  He can show that he is capable of earning $300 per day on his own.  To this day, he operates his own tow-truck recovery business in addition to his work at Tony’s.  He also buys, repairs and sells old cars.  His industriousness is well-known in Winnipeg.

 

Mrs. Aguilar is also a professional seamstress who can, if necessary, supplement the family income.  At the moment, she stays at home with the younger children, the youngest being only eighteen months old.

 

As a result of hard work, the family actually owns their own house in the North End of Winnipeg, a low-income neighbourhood with a tough reputation which can only benefit from the presence of families such as the Aguilars and which loses out when it loses good inhabitants.  In other words, they are contributing to the social capital of the city by locating there.  As Bishop Northcott said in his letter of June 2, 2005 “Would that more families like this would move into our North End!”

 

However, this family is exceptional in that it can also access financial help in hard times from the Mormon Church.  Mr. Aguilar was converted to the Church in 1994 by missionaries in Houston, Texas.  He is a devoted and valued member of his community in Winnipeg as can be seen from the approximately 50 individually produced letters of support included with this application.  The Church, as well as various individuals within it, has effectively undertaken to support this family if they have financial difficulties so that they do not need to resort to social assistance.

 

Bishop Robert Northcott of Winnipeg has provided assurance in a letter dated June 5, 2005, just as he did in January, 2003, that the Church will assist this family if necessary.  I submit that this now long-standing commitment puts them in a position equivalent to privately-sponsored refugees.  However, judging from the quality of the letters provided by fellow church members, it is obvious that there is tremendous support from other individuals for this family and that it is highly unlikely that they would ever have to seek help from outside the Church.

 

Mr Aguilar is in fact, now one of the leaders in the Church, occupying the post of second counselor to the Bishop.  This often requires him to take a leadership role in Sunday service at the Church in English.  The two boys, Carlos Alexander and Jesse Antonio, are members of the scout troupe and are already making their own way in that community.

 

Indeed, there is a peculiar irony in this situation.  Mr. Aguilar would possibly qualify as an independent applicant under the points system.  His profession is recognised under NOC#73211.  But for his ability to pass a language test, he would receive points for education, experience (including Canadian work experience), possible arranged employment and age.  In fact, he is precisely the kind of skilled worker Canada seeks.  The principal barrier is that he could not accumulate the capital back in Guatemala to show that he could support himself once he got here and he would lose two or three years time which he has now to establish his business here.  Nor would he be able to upgrade his English to a point of passing the strict requirements of language testing, yet he is fully functional in Canada.  Returning to Guatemala would set this family back for an indefinite period, not only in terms of their earning potential (which is what Canada looks for) but in terms of their children’s education (see below).  It is extremely unlikely that they would be able to return to Canada, despite their qualifications.

 

Finally, the links to Guatemala have seriously diminished in the last year.  Mr. Aguilar’s father tragically committed suicide by shooting himself in the head on April 6, 2004, when it became impossible for him to afford to continue paying for life-preserving medication for his wife.  His wife, Mr. Aguilar’s mother, died of her illness (actual cause of death was kidney failure) on September 27, 2004.  (Certificates of death for both are included but not translated).

 

[54]      The situation of Mr. and Mrs. Aguilar and their children is one deserving of sympathy.  They are to be commended for their hard work and their integration into their community and Church.  Similarly, the Church is to be commended for its undertaking to support this family.  However, as a matter of law, the humanitarian and compassionate submissions put before the officer were not capable of attracting a positive decision on the ground of public policy.  I reach this conclusion because:

 

(1)        It is not suggested that the circumstances of this case bring it within the scope of any public policy adopted by Parliament or the Minister.

 

(2)        For an officer to be able to determine, without guidance, what constitutes sufficient public policy considerations would lead to inconsistency in decision-making.

 

(3)        A positive decision on these or similar facts would encourage illegal immigration and subsequent establishment, contrary to the Act and to public policy.

 

(4)        A positive decision on these or similar facts would render meaningless the Minister’s instruction that humanitarian and compassionate applicants must satisfy the officer that they would face unusual, undeserved or disproportionate hardship if required to apply for a visa from abroad.  All applicants would instead opt for consideration on public policy grounds.

 

[55]      I leave for another day determination of whether public policy considerations within the contemplation of subsection 25(1) of the Act are limited to those specified by the Minister, and whether the Minister need only have regard to public policy considerations if raised by an applicant.  These issues need not be decided on the basis of the application submitted by the applicants in this case.

[56]      For these reasons, the application for judicial review will be dismissed.

 

[57]      The applicants seek certification of four questions:

 

1.                  Is the Minister legally entitled to fragment an application under section 25 of the Immigration and Refugee Protection Act into a two- step assessment, the first step being an assessment whether individual humanitarian and compassionate circumstances are sufficient to warrant an exemption from subsections 11(1) and 20(1) of the Act and the second step being a determination whether the person is inadmissible?

 

2.                  Is the Minister obliged, when considering an application under section 25 of the Act, to weigh or balance the degree of compelling humanitarian and compassionate circumstances on which the individual relies against the nature and extent of the legal obstacle to admissibility?

 

3.                  Is the Minister obliged, when considering an application under section 25 of the Act, to consider all evidence submitted from a public policy perspective, or is the Minister entitled to consider all evidence submitted only from a humanitarian and compassionate perspective unless the applicant specifically asks that the application be considered from the perspective of public policy?

 

4.         Are the grounds of public policy limited to those established by the Minister as contemplated in section 5.22 of IP 5?

[58]      The Minister opposes certification of any question.

 

[59]      In my view the last two questions do not properly arise on the record before the Court.  However, the first two do transcend the interests of the parties and raise issues of general application.  They will therefore be certified.

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that:

 

 

1.         The application for judicial review is dismissed.

 

2.         The following questions are certified:

 

1.  Is the Minister legally entitled to fragment an application under section 25 of the Immigration and Refugee Protection Act into a two- step assessment, the first step being an assessment whether individual humanitarian and compassionate circumstances are sufficient to warrant an exemption from subsections 11(1) and 20(1) of the Act and the second step being a determination whether the person is inadmissible?

 

 

 

 

 

2.  Is the Minister obliged, when considering an application under section 25 of the Act, to weigh or balance the degree of compelling humanitarian and compassionate circumstances on which the individual relies against the nature and extent of the legal obstacle to admissibility?

 

 

 

 

“Eleanor R. Dawson”

 

 

 

 

 

 

 

 

 

 

 

 

APPENDIX

 

Subsections 11(1) and 20(1) of the Act, and section 6 of the Regulations:

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-7202-05

 

STYLE OF CAUSE:                          CARLOS AUGUSTO AGUILAR ESPINO

ANA AGUILAR GONZALEZ

CARLOS ALEXANDER AGUILAR GONZALEZ

JESSE ANTONIO AGUILAR GONZALEZ

 

Applicants

 

                                                            and

 

                                                            THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

Respondent

 

PLACE OF HEARING:                    WINNIPEG, MANITOBA

 

 

DATE OF HEARING:                      AUGUST 23, 2006

 

REASONS FOR JUDGMENT

  AND JUDGMENT:                        DAWSON, J.

 

DATED:                                             JANUARY 25, 2007

 

APPEARANCES:

 

DAVID MATAS                                                                     FOR THE APPLICANTS

 

NALINI REDDY                                                                     FOR THE RESPONDENT

OMAR SIDDIQUI

 

SOLICITORS OF RECORD:

 

BARRISTER & SOLICITOR                                                  FOR THE APPLICANTS

WINNIPEG, MANITOBA

 

JOHN H. SIMS, Q.C.                                                             FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA