T-2543-89
Ken Yung Yhap (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: YHAP V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, Jerome A.C.J.—Toronto, March 5;
Ottawa, March 8, 1990.
Immigration — Practice — Application for certiorari
quashing decision insufficient humanitarian and compassion
ate grounds to accept application for permanent residence, and
mandamus compelling respondent to provide full and fair
interview — Paradigm of numerous other applications —
Immigration officers applying criteria in "Refugee Claimants
Backlog Procedures" to members of refugee backlog — No
questions asked about humanitarian or compassionate aspects
of case — Criteria limited to particular classes of persons
within backlog — Immigration Act, s. 114(2) giving Governor
in Council power to exempt persons from requirements of s.
9(1) and to facilitate admission for humanitarian and compas
sionate reasons — Application allowed — Criteria unlawful
fetter on ss. 9(1) and 114(2) discretion.
Judicial review — Prerogative writs — Application for
certiorari quashing decision insufficient humanitarian and
compassionate grounds to allow application for permanent
residence and mandamus compelling respondent to provide
full and fair interview — Paradigm of numerous other cases
— Application of criteria in "Refugee Claimants Backlog
Procedures" unlawful fetter on discretion under Immigration
Act, s. 114(2) — Distinction between rigid policy and general
rule of thumb discussed — Whether breach of duty of fairness
in short notice of hearing date, proceeding in absence of
counsel or failing to use Commission interpreters.
This was an application for certiorari quashing a decision
that there were insufficient humanitarian and compassionate
grounds upon which to allow an application for permanent
residence, and mandamus compelling the respondent to provide
the applicant with a full and fair interview to determine the
applicant's humanitarian and compassionate claim. This
application was the paradigm of approximately twenty-five
other applications. The applicants were part of the refugee
Backlog Clearance Programme. They were interviewed by
immigration officers to determine whether there were sufficient
humanitarian and compassionate grounds to exempt them from
the requirements of section 9 of the Immigration Act. The
evidence suggested that the officers were not questioning appli
cants on the humanitarian and compassionate issues. Instead,
they were applying criteria set out in a document titled
"Refugee Claimants Backlog Procedures". These guidelines
applied to particular classes of persons, namely "members of
official delegations, athletic teams or cultural groups" and
persons in "family dependency situations". The applicants
argued that the policy guidelines constituted a fetter on the
power of the Governor in Council under subsection 114(2) to
both exempt persons from the requirements of subsection 9(1)
and to facilitate the admission of persons for humanitarian and
compassionate reasons. It was further argued that there had
been a breach of .the duty of fairness, based on the minimal
notice of interview dates given to many applicants, the fact that
interviews were often conducted without counsel and in some
cases, without a Commission interpreter, and the absence of
questions as to the existence of humanitarian factors. Finally,
the applicants submitted that the refusal to apply the policy
whereunder Chinese nationals with temporary status in Canada
would not be removed to China, to those who had already
applied for Convention refugee status, was unfair discrimina
tion.
Held, the application should be allowed.
An applicant is entitled, under subsection 114(2), to a full
and fair review to determine the existence of humanitarian or
compassionate considerations which might warrant exempting
him from the requirement of applying for and obtaining a visa
before appearing at a port of entry (subsection 9(1)) or other
wise facilitating his admission. This consideration is independ
ent of the consideration of the basic merits of any other
application advanced by the applicant. Even where it is evident
that all other claims are doomed to failure, the applicant's right
to consideration on humanitarian and compassionate grounds
may not be unduly restricted.
A factor that may properly be taken into account in exercis
ing a discretion may become an unlawful fetter upon discretion
if it is elevated to the status of a general rule that results in the
pursuit of consistency at the expense of the merits of individual
cases. The discretion conferred by subsection 114(2) is wide.
The officer is asked to consider with respect to the possible
admission to Canada of an applicant, "reasons of public policy"
as well as the "existence of compassionate or humanitarian
considerations". As neither the Act nor the Regulations offer
any guidance as to what interpretation the officer is to give to
such broad terms, chapter 9 of the Immigration Manual con
tains policy guidelines to assist an officer in the exercise of his
discretion. The guidelines state that they are not intended as
hard and fast rules. Officers are instructed to consider all
aspects of cases. In contrast, the policy guidelines contained in
the "Refugee Claimants Backlog Procedures" document are
rigid and inflexible. The "Humanitarian and Compassionate
Review Criteria" set out therein are limited and refer only to a
carefully selected segment of the backlog population. They are
not general policy and "rough rules of thumb", but inflexible
self-imposed limitations on discretion, which result in the pur
suit of consistency at the expense of the merits of individual
cases.
While no single case could have proved that immigration
officials had perceived and exercised a limitation on discretion,
the evidence of these twenty-five applicants established that
immigration officials have done exactly that.
As to the breach of the duty of fairness, it was unclear
whether any unfairness may have been cured by inviting some
applicants to a second interview or by the success of others at
credible basis hearings.
The policy of not returning Chinese nationals, who had not
yet applied for refugee status, to China was not intended to
replace the refugee provisions, but to protect persons who may,
due to the civil strife in China, be in danger upon their return,
notwithstanding that they are not Convention refugees. The
refusal to apply this policy to the applicant was not unfair.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 7.
Immigration Act, R.S.C., 1985, c. I-2, ss. 3 (a),(b),(g),
9(1), 114(2).
Immigration Regulations, SOR/78-172.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of Employment and Immigration et al. v.
Jiminez-Perez et al., [1984] 2 S.C.R. 565; (1984), 14
D.L.R. (4th) 609; [1985] 1 W.W.R. 577; 9 Admin. L.R.
280; 56 N.R. 215; Sobrie v. Canada (Minister of
Employment & Immigration) (1987), 3 Imm. L.R.
(2d) 81 (F.C.T.D.); Vardy v. Scott et al., [1977] 1
S.C.R. 293; (1976), 9 Nfld. & P.E.I.R. 245; 66 D.L.R.
(3d) 431; 28 C.C.C. (2d) 164; 34 C.R. (N.S.) 349; 8
N.R. 91; Minister of Manpower and Immigration v.
Tsiafakis, [1977] 2 F.C. 216; (1977), 73 D.L.R. (3d) 139
(C.A.).
AUTHORS CITED
de Smith's Judicial Review of Administrative
Action, 4th ed., by J. M. Evans, London:
Stevens & Sons Ltd., 1980.
Jones, David P. and de Villars, Anne S. Prin
ciples of Administrative Law, Toronto: Car-
swell Co. Ltd., 1985.
COUNSEL:
Cecil Rotenberg, Q.C., Barbara L. Jackman
and Diane C. Smith for applicant.
Urszula Kaczmarczyk for respondent.
SOLICITORS:
Rotenberg, Martinello, Austin, Don Mills,
Ontario, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This matter came on for hear
ing at Toronto, Ontario, on November 14, 15 and
27, 1989. In reasons dated October 12, 1989,
[(1989), 29 F.T.R. 223] Mr. Justice Muldoon has
ordered that no absolute or unconditional orders
may be made or executed against these applicants
until the Court has disposed of their claims for
relief (Court File 89-T-676, page 14). On Novem-
ber 14, 1989 I granted the applicant leave to seek
the relief set out in the notice of motion dated
September 12, 1989.
The application seeks:
1. An order in the nature of certiorari quashing
the decision of immigration officials at the
Toronto Backlog Clearance, Canada Immigra
tion Centre, the respondent, dated August 16,
1989, which decision indicated that it has been
determined that there are insufficient humani
tarian and compassionate grounds upon which
to accept an application for permanent residence
in Canada;
2. An order in the nature of mandamus com
pelling the respondent to provide the applicant
with a full and fair interview of the applicant's
humanitarian and compassionate claim in
accordance with the law and in accordance with
the duty of fairness;
3. An order for an injunction or prohibition
restraining or prohibiting the respondent from
proceeding with a final review or credible basis
hearing concerning the applicant until Regula-
tions are in place allowing the same and/or until
the validity or legality of these credible basis
hearings have been determined by the Federal
Court of Appeal in the case of Peiroo v. M.E.I.,
Court File No. 89-A-1022 or by this Court;
4. In the alternative, an order in the nature of
certiorari quashing the decision of the Minister
refusing to allow the applicant the benefit of the
Policy known as "Current Processing Proce
dures for persons from the People's Republic of
China", OM IS 399 dated June 29, 1989; and
5. An order in the nature of mandamus com
pelling the respondent to process the applicant's
application for permanent residence in Canada
in accordance with the procedures outlined in
this Policy on a fair basis.
It has been agreed by counsel for each party
that this application by Ken Yung Yhap is the
paradigm of approximately twenty-five other
applications brought on simultaneously for adjudi
cation, and that my determination of the issues
raised in Mr. Yhap's application will apply to the
others. All of the applicants indicated an intention
to claim refugee status in Canada prior to January
1, 1989, and were accordingly included in the
Backlog Clearance Programme established by the
respondent. Because of their country of national
ity, some of the applicants are holders of Minis
ters' Permits.
Several aspects of the applicant's claim for relief
may be disposed of briefly. Counsel now confirms
that the case of Peiroo v. M.E.L, 89-A-1022,
which was before the Federal Court of Appeal, has
been settled in a manner which is of no assistance
to the applicant's case. Similarly, Her Majesty the
Queen v. The Canadian Council of Churches
(A-223-89), involves issues which may not be
resolved for some time. Accordingly, the applicant
cannot succeed on the third ground.
The fourth and fifth grounds of relief involve the
applicability of Operations Memorandum IS 399:
"Current Processing Procedures for persons from
the Peoples' Republic of China". Counsel for the
applicants has requested an order in the nature of
certiorari quashing the decision of the Minister
refusing to allow the applicant the benefit of the
policy known as "Current Processing Procedures
for persons from the Peoples' Republic of China",
OM IS 399 dated June 29, 1989, and an order of
mandamus compelling the respondent to process
the applicant's application for permanent resi
dence. The applicant submits that as a citizen of
the Peoples' Republic of China, he is being unfair
ly discriminated against by not being allowed the
procedure for landing contained in the provisions
of the Policy Guideline applicable to persons in
Canada from the Peoples' Republic of China.
The Operations Memorandum in question, indi
cates that Chinese nationals with temporary status
in Canada will not be removed to the Peoples'
Republic of China. Four policy options are avail
able to visitors in Canada, including consideration
under humanitarian and compassionate guidelines
set out in OM IE 252 and IE 9 of the Immigration
Manual. The memorandum notes:
It should be borne in mind that these provisions apply to all
persons who have in some way individually embarrassed their
government and in so doing have exposed themselves to severe
sanctions should they return. Chinese authorities have publicly
indicated that students in Canada share the blame for the
turmoil in China. In view of this, all requests for permanent
residence are to be evaluated sympathetically and on an urgent
basis.
The policy specifically indicates, however, that
persons such as the applicant, who have already
registered refugee claims under the Refugee Back
log Programme and under the current legislation,
are to be dealt with under those programmes. This
has been confirmed by Brian Dougall, manager of
the Backlog Clearance Task Force, in his affidavit
of October 31, 1989:
The special programme for nationals of the Peoples' Republic
of China, attached to this my affidavit as Exhibit "B", does not
apply to persons who have already registered refugee claims
under the Refugee Backlog Clearance Programme or who have
made refugee claims in accordance with the current provisions
of the Immigration Act .. .
I am unable to conclude that the applicant is
being "unfairly discriminated against" by the
respondent's failure to process him for landing
pursuant to the provisions of the OM IS 399
Policy Guideline. This policy is clearly intended to
protect students, visitors and members of the
Family Class from the Peoples' Republic of China
who may, due to the "current civil strife" in that
country, be in some danger upon their return to
the Peoples' Republic of China, notwithstanding
that they are not Convention refugees. The policy
is not intended to replace provisions which have
been made for refugees, whether recent arrivals or
members of the backlog, from the Peoples' Repub
lic, but rather to act as a supplemental protection
for other individuals from that country.
There is no question that the applicant's rights
and privileges were affected by the decision of the
Minister refusing to allow him the benefit of the
OM IS 399 policy, but I am unable to conclude
that the refusal was unfair. The terms of the policy
leave no doubt that it was not intended to be
applied to persons who have already registered
refugee claims under the Refugee Backlog Clear
ance Programme or who have made refugee claims
in accordance with the current provisions of the
Immigration Act [R.S.C., 1985, c. I-2]. There is
no basis on which to find that the application of
the terms of the policy to the applicant's situation,
resulting in his ineligibility for consideration under
the policy, constituted a breach of the general duty
of fairness.
Similarly, I am unable to find that mandamus is
available in a situation such as this one to force the
respondent to, in effect, change the terms of the
policy and apply it to the applicant's situation. As
Mr. Justice Dickson (as he then was) for the
Supreme Court of Canada has stated in Vardy v.
Scott et al., [1977] 1 S.C.R. 293, at page 301;
(1976), 9 Nfld. & P.E.I.R. 245; 66 D.L.R. (3d)
431; 28 C.C.C. (2d) 164; 34 C.R. (N.S.) 349; 8
N.R. 91:
Before mandamus can issue there must be a duty, without
discretion, upon the person or body against whom the order is
directed to do the very thing ordered.
This has been echoed more recently by the Federal
Court of Appeal in Minister of Manpower and
Immigration v. Tsiafakis, [1977] 2 F.C. 216;
(1977), 73 D.L.R. (3d) 139 (C.A.), at page 222
F.C.:
Mandamus lies to compel the performance of a public duty
which a public authority refuses or neglects to perform
although duly called upon to do so.
In the applicant's case, there is no such specific
duty on the part of the Minister to apply the OM
IS 399 policy, accordingly, I am unable through a
writ of mandamus to order the Minister to do so.
Counsel presented two arguments relating to the
humanitarian and compassionate review which
may also be disposed of briefly. The applicants
submit that the Minister has failed to fulfil the
"legitimate expectation" or "reasonable expecta
tion" of a humanitarian and compassionate review
promised to persons in the Refugee Backlog, in the
establishment of restrictive guidelines for such
review. The applicants base this argument on their
contention that the Minister and her officials in
their public statements have indicated that persons
who claimed to be Convention refugees before
January 1, 1989 would be considered as to whether
humanitarian and compassionate grounds existed
sufficient to warrant landing in Canada. This
"legitimate expectation" has not been fulfilled, the
applicants submit, since the actual policy direc
tives issued provide only a limited review on hu
manitarian and compassionate grounds.
In light of my reasons herein on the issue of the
fettering of the discretion conferred by subsection
114(2) of the Act, I will say relatively little on this
issue. Regardless of what promises and guarantees
have been made by the Minister, the applicant is
entitled by virtue of subsection 114(2) of the Act
to a review as to whether humanitarian and com
passionate grounds exist sufficient to warrant
landing in Canada. That is the law as it currently
exists, and it must be applied evenly to all who
come before it. My reasons herein indicate that the
discretion conferred by subsection 114(2) is not to
be exercised by the respondent and her officials
subject to inflexible and self-imposed limitations,
although an expression of flexible general policy,
such as that contained in chapter 9 of the Immi
gration Manual, would be entirely lawful.
Counsel for the applicants also argued that the
exercise of the statutory power of discretion under
subsections 114(2) and 9(1) of the Immigration
Act in a distinct manner for refugee claimants as
opposed to other aliens in Canada violates section
15 of the Charter [Canadian Charter of Rights
and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)]. Similarly, in light of my reasons
herein, it is unnecessary to deal with this complex
argument in order to resolve the issues raised by
this case.
I turn now to the arguments raised by counsel
which relate to the issues of fairness and discre
tion. Persons who have claimed Convention
refugee status prior to January 1, 1989 are con
sidered part of the refugee backlog. The scheme
established by the respondent for dealing with the
claims of these individuals dictates that the claims
are to be considered under a system which is
separate from, although similar to, that which has
been created by An Act to Amend the Immigra
tion Act, R.S.C., 1985 (4th Supp.), c. 28.
Individuals in the refugee backlog, including the
applicants, are to attend a hearing before an
adjudicator and a Refugee Determination Division
member, who will determine whether they have a
credible basis for their claim.
Prior to this hearing, however, an interview with
an immigration officer is to take place, to deter
mine whether there are sufficient humanitarian
and compassionate grounds to exempt the claim
ant from the requirements of section 9 of the
Immigration Act. Brian Dougall, the Manager of
the Backlog Clearance Task Force has described
this stage as follows in his affidavit:
9. Included in the Backlog Clearance Program are two sets of
humanitarian and compassionate reviews. The reviews parallel
the reviews which are carried out for refugee claimants under
the new refugee determination system. The first review occurs
prior to the credible basis hearing and applies criteria 1 and 2.
All three criteria are set out in Appendix "A" to this my
affidavit. The first review is carried out by an immigration
officer. The purpose of this review is to deal expeditiously with
those cases which merit special consideration based on criteria
established by the Minister ...
"Criteria 1 and 2" referred to by Mr. Dougall
are set out in a document entitled "Refugee
Claimants Backlog Procedures", which was dis
tributed by him to Regional Backlog Coordinators
across the country. The criteria appear at page 42
of the document, under the heading "Humanitari-
an and Compassionate Review Criteria", and read
as follows:
INITIAL REVIEW
1. Individuals who are members of official delegations, athletic
teams or cultural groups, and other persons, who by seeking
to remain in Canada, so embarrass their government as to
leave themselves open to severe sanctions should they return
home.
2. Exceptional circumstances that could be resolved by the
exercise of compassionate judgment [sic]. This refers to
family dependency situations where close family members of
a Canadian resident would suffer hardship if forced to
return home to obtain an immigrant visa. Hardship does not
include financial penalty or inconvenience.
The applicants before me received notices to
attend at the Refugee Backlog Office of the
Canada Immigration Commission for interviews to
determine if there were sufficient humanitarian
and compassionate grounds to warrant their land
ing in Canada. It was determined in the cases of
all of the applicants that there were insufficient
humanitarian and compassionate grounds upon
which to accept an application for landing.
The applicants are critical of the conduct of
these interviews and of the adjudicators' failures
therein to address relevant considerations. This
particular concern is reflected in the affidavit of
Ken Yung Yhap:
5. On the 16th day of August, 1989, I attended with Anita
Sulley of my lawyer's office at the Refugee Backlog Office
where I was interviewed by an Immigration Officer, Mr. John
Donaldson.
6. I had been instructed to complete and bring with me to the
interview a set of forms. Attached hereto and marked as
Exhibit "B" to this my affidavit is a copy of this form as
completed and presented to Mr. Donaldson.
7. Following review of the forms, Mr. Donaldson asked me
why I did not go onto Guyana in 1986 and decided to stay in
Canada. I explained to him that during my two day transit
stopover here I heard from friends that the situation for
Chinese in Guyana was racially intolerable. In particular, I
found out that my cousin's husband had been beaten to death
there.
8. The officer focused on my cousin's husband's death in
Guyana and told me to get proof of the same.
9. The officer did not ask me any questions concerning the
humanitarian and compassionate aspects of my case. In par
ticular, the officer did not ask me about my life in Canada over
last three years, and what reasons there are for my remaining
in Canada. The officer refused to consider the present situation
in China and primarily was concerned about why I did not take
up residence in Guyana in 1986.
10. The officer asked me why I did not want to go back to the
People's Republic of China. He then advised me that I could
leave Canada voluntarily and was assured that I would be given
a letter which I could take to the nearest Consulate or Embassy
in the People's Republic of China. This letter would guarantee
me an interview, but would not guarantee that I would be
allowed to migrate to Canada.
The applicants have further concerns about the
conduct of the interviews, including that minimal
notice was given to many applicants to attend at
their interview, and that the interviews frequently
took place without counsel. Counsel for many of
the applicants at the time of their interviews,
Anita Sulley, has stated in her affidavit:
4. In late August and early September, 1989, my clients began
receiving, from the Backlog Clearance office, a letter and form
to complete, a copy of which is attached hereto and marked as
Exhibit "J" to this my affidavit. On extremely short notice, my
clients were asked to complete this form and attend for a
humanitarian and compassionate review.
5. I attended with several clients for these reviews and deter
mined that the officers were directed and would only consider
persons who fell within the Family Class criteria of the Immi
gration Regulations and persons who were athletic or cultural
stars in their own right. The officers refused to consider the fact
that there were other humanitarian and compassionate con
siderations that were applicable and were important in my
clients' cases and warranted consideration.
The applicants have now been scheduled for
hearings under the transitional provisions of An
Act to Amend the Immigration Act to determine if
a credible basis exists upon which the Refugee
Division of the Immigration and Refugee Board
might determine at a full hearing that the appli
cants are Convention refugees.
The applicant seeks certiorari quashing the deci
sion of immigration officials at the Toronto Back
log Clearance Centre to the effect that there were
insufficient humanitarian and compassionate
grounds upon which to accept an application for
permanent residence, and mandamus compelling
the respondent to provide the applicant with "a
full and fair interview of the ... humanitarian and
compassionate claim in accordance with the law
... the duty of fairness". Counsel for the applicant
has advanced four arguments in support of this
application, two of which I have already dealt
with. The remaining two are:
(A) The respondent's officials have failed to
comply with the duty of fairness imposed on
administrative decision-makers both at common
law and under the Charter where section 7
interests are affected.
(B) The Minister in the establishment of "poli-
cy" directives and guidelines has unlawfully fet
tered the discretion of her officers to consider
the applicants' cases pursuant to subsection
114(2) of the Immigration Act.
I will consider these arguments under separate
headings.
(A) Fairness
The facts contained in the affidavits submitted
in support of the applicants' motions, and the
testimony of Brian A. Dougall, Manager of the
Backlog Clearance Task Force, taken before the
Official Examiner and available to me in tran
script form, establish the following with respect to
the conduct of the pre-inquiry humanitarian and
compassionate review:
(i) Minimal notice was given to many appli
cants to attend at their interview for the pre-
inquiry humanitarian and compassionate review.
(ii) In many cases the pre-inquiry humanitarian
and compassionate review was without counsel,
where counsel was not in attendance. The inter
views, in some cases, were set up without con
sideration for when a particular lawyer would be
available to represent his or her client, and
interviews could not be adjourned to accommo
date counsel.
(iii) In some cases the interviewing officers pro
ceeded without a Commission interpreter, using
instead a family member or friend to handle the
interpretation.
(iv) In some cases the applicants were not ques
tioned as to the existence of humanitarian fac
tors at the pre-inquiry humanitarian and com
passionate interview. The humanitarian review
which was undertaken was restricted to the
guidelines published for refugee claimants in the
refugee Backlog Clearance Programme.
The applicants submit that the immigration offi
cials conducting these interviews have failed to
comply with the duty of fairness imposed on
administrative decision-makers both at common
law and under the Charter, where section 7 inter
ests are affected. Counsel for the applicant has
argued that:
... given the significance of the decision being made, and the
serious consequences of a negative decision, for a person who is
not a Convention refugee and who has violated a provision of
the Immigration Act, the administrative decision making pro
cess as to the existence of humanitarian and compassionate
considerations requires both at common law and pursuant to
section 7 of the Charter that the following minimal procedural
safeguards be provided:
(i) adequate notice; ...
(ii) right to retain and consult counsel within a reasonable
period of time; ...
(iii) right to an interpreter; ...
(iv) correct and adequate information upon which the appli
cant may make decisions as to the appropriate remedy to seek;
(v) full and adequate examination and disclosure of the case to
meet; ...
(vi) a review in accordance with the mandate of the statutory
power of discretion.
Counsel for the respondent argues that the deci
sion made by the immigration officer at the appli
cant's interview on August 16, 1989 did not
involve the applicant's interests under section 7 of
the Charter, and that the initial humanitarian and
compassionate interview did not breach the duty of
fairness. The respondent submits that where the
decision is an administrative one, with no grave
consequences for the applicant, the requirements
of the duty of fairness are minimal. This is the
case in the matter before me, the respondent sub
mits, since "the decision in question is merely an
initial humanitarian and compassionate review.
The applicant is entitled to a further humanitarian
and compassionate review prior to any removal, at
which point all. the submissions will be consid
ered". Moreover, the respondent argues that the
applicant's rights under section 7 of the Charter
are not affected, since, as there is no removal order
in existence against the applicant, there is no
threat to his life, liberty, or security of the person.
With respect to all of these submissions I must
underline that I am dealing here with a group of
cases. This has special significance with respect to
the submission on the fettering of discretion, but it
does not have the same impact on the element of
fairness. There is evidence that some applicants
who may have been treated unfairly, perhaps in
terms of notice, translation, counsel or for any
other reason, were asked to attend a second inter
view. It is unclear, therefore, whether any initial
unfairness may have been cured and if so, in what
case. Similarly, since this application was launched
some applicants have gone on to credible basis
hearings where success might equally have cured
any earlier unfairness. I note also that the credible
basis hearing is not under attack in these proceed
ings. Accordingly, I will not allow this application
on the grounds of unfairness, except as it relates to
the fettering of discretion.
(B) Discretion
The applicants argue that the Minister, in the
establishment of policy directives and guidelines
pertaining to the humanitarian and compassionate
review portion of the Backlog Clearance Pro
gramme, has unlawfully fettered the discretion of
her officers to consider the applicants' cases pursu
ant to subsection 114(2) of the Immigration Act.
The policy guidelines in question are those set
out in the document entitled "Refugee Claimants
Backlog Procedures", and reproduced earlier
herein. These guidelines appear to limit their
application to particular classes of persons, namely
"members of official delegations, athletic teams or
cultural groups", and persons in "family depen
dency situations" described more specifically in
the guideline. Counsel for the respondent has
argued that "there is nothing in the policy which
prevents the immigration officer from examining
each case on it [sic] individual merits", but the
evidence before me, and in particular the affidavits
of the applicants describing the conduct of their
interviews, suggests that officers have not been
questioning applicants on humanitarian and com
passionate issues which may fall outside the desig
nated criteria.
The affidavit of Ken Yung Yhap, the applicant
before me, includes the following description of his
interview:
The officer did not ask me any questions concerning the
humanitarian and compassionate aspects of my case. In par
ticular, the officer did not ask me about my life in Canada over
last three years, and what reasons there are for my remaining
in Canada. The officer refused to consider the present situation
in China and primarily was concerned about why I did not take
up residence in Guyana in 1986.
The applicants argue that the present policy
guidelines applied by the Immigration Commission
constitute a fetter on the statutory power of the
Governor in Council to both exempt persons from
the requirement of subsection 9(1) of the Act, and
to authorize the landing of persons for humani
tarian and compassionate reasons pursuant to sub
section 114(2) of the Act. The applicants concede
that policy guidelines may be established, but
submit that these guidelines cannot be applied in
such a manner as to fetter a statutory power of
discretion. Summarizing their position, the appli
cants maintain that:
... section 114(2) and section 9(1) of the Act being remedial in
nature are required to be interpreted broadly and liberally.
There are no statutory criteria established for section 9(1)
exemptions. The only statutory criteria established under sec
tion 114(2) are whether there exist "public policy" reasons or
"humanitarian or compassionate" considerations to warrant
facilitation of landing in Canada. As such it is submitted that
an factors which may go towards humanitarian and compas
sionate considerations must be considered by immigration offi
cers, and Isy factors relevant to exempting a person from the
requirement of obtaining an immigrant visa abroad must be
considered. On the evidence before this Court both contained in
the Respondent's policy directives and the Applicants' accounts
of how they are being considered on the pre-inquiry humani
tarian and compassionate review, the statutory power of discre
tion under section 9(1) and section 114(2) has been fettered.
[Emphasis mine.]
The respondent argues that where a broad statu
tory discretion is granted, as in subsection 114(2)
of the Immigration Act, the adoption of a policy or
guidelines for decision-making ensures that the
discretion is fairly and evenly exercised. The
respondent submits that the Minister is entitled,
pursuant to the statutory power of discretion, to
select criteria which should be taken into consider
ation for the purpose of a humanitarian and com
passionate exemption. The criteria selected for the
exercise of discretion in this instance are, the
respondent argues, within the policy mandate of
the legislation.
The relevant portions of the section of the
Immigration Act which sets out the statute's "poli-
cy mandate" are paragraphs 3(b),(c) and (g):
3. It is hereby declared that Canadian immigration policy
and the rules and regulations made under this Act shall be
designed and administered in such a manner as to promote the
domestic and international interests of Canada recognizing the
need
(b) to enrich and strengthen the cultural and social fabric of
Canada, taking into account the federal and bilingual character
of Canada;
(c) to facilitate the reunion in Canada of Canadian citizens and
permanent residents with their close relatives from abroad;
(g) to fulfil Canada's international legal obligations with
respect to refugees and to uphold its humanitarian tradition
with respect to the displaced and the persecuted;
The other statutory provisions relevant to this
issue are subsections 9(1) and 114(2) of the Immi
gration Act, R.S.C., 1985, c. I-2:
9. (1) Except in such cases as are prescribed, every immi
grant 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 exempt any
person from any regulation made under subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from that regulation or the person's admission should
be facilitated for reasons of public policy or due to the existence
of compassionate or humanitarian considerations.
The applicant is, pursuant to subsection 114(2)
of the Act, entitled to a full and fair review to
determine the existence of humanitarian or com
passionate considerations which might warrant
exempting him from the requirement set out in
subsection 9(1) of the Act, or otherwise "facilitat-
ing his admission". The right of the applicant to a
full and fair review in this regard was clearly
confirmed by the Supreme Court of Canada in
Minister of Employment and Immigration et al. v.
Jiminez-Perez et al., [1984] 2 S.C.R. 565; (1984),
14 D.L.R. (4th) 609; [1985] 1 W.W.R. 577; 9
Admin. L.R. 280; 56 N.R. 215. In the more recent
case of Sobrie v. Canada (Minister of Employ
ment & Immigration) (1987), 3 Imm. L.R. (2d)
81 (F.C.T.D.), I held, further, that this consider
ation is to take place independently of the con
sideration of the basic merits of any other applica
tion advanced by the applicant. As I stated in
Sobrie [at page 86]:
I believe the applicant must succeed ... I am not satisfied
that he has ever been given an opportunity to address the
existence of humanitarian and compassionate grounds under s.
115(2). The immigration officials have assumed, quite logical
ly, that their extensive file on Mr. Sobrie provides all the
information that could possibly be relevant to this determina
tion. That assumption is not warranted and is not in accordance
with the principles of fairness.
Even in a case, therefore, where it is evident that
all other claims and applications advanced by the
applicant are doomed to failure, the applicant's
right to consideration on humanitarian and com
passionate grounds may not be unduly restricted.
This principle was expressed in Sobrie as follows
[at page 89]:
Obviously, the purpose behind s. 115(2) of the Act is not
merely to repeat the procedure of evaluating an immigrant on
the usual grounds specified in the Act. The intention is to
provide a fresh view of the immigrant's situation from a new
perspective. It follows that for the Minister to fairly consider an
application under this section, he must be able to direct his
mind to what the applicant feels are his humanitarian and
compassionate circumstances. These may have nothing to do
with the facts contained in the file of his previous immigration
proceedings.
In the context of this case, what constitutes
lawful restrictions on the scope of the review, and
to what extent may the Minister select and impose
criteria to be applied in a review of this nature?
The general position of Canadian courts on the
structuring of discretion has been articulated in
Professor J. M. Evans' de Smith's Judicial Review
of Administrative Action, Fourth edition, where he
states, at page 312:
... a factor that may properly be taken into account in
exercising a discretion may become an unlawful fetter upon
discretion if it is elevated to the status of a general rule that
results in the pursuit of consistency at the expense of the merits
of individual cases.
The importance of flexibility in the adoption of
policy or guidelines as a means of structuring
discretion is highlighted by D. P. Jones and A. S.
de Villars in Principles of Administrative Law,
where the difference between "general" and
"inflexible" policy is described at page 137:
... the existence of discretion implies the absence of a rule
dictating the result in each case; the essence of discretion is that
it can be exercised differently in different cases. Each case
must be looked at individually, on its own merits. Anything,
therefore, which requires a delegate to exercise his discretion in
a particular way may illegally limit the ambit of his power. A
delegate who thus fetters his discretion commits a jurisdictional
error which is capable of judicial review.
On the other hand, it would be incorrect to assert that a
delegate cannot adopt a general policy. Any administrator
faced with a large volume of discretionary decisions is practi
cally bound to adopt rough rules of thumb. This practice is
legally acceptable, provided each case is individually considered
on its merits.
The discretion afforded an immigration officer
by subsection 114(2) of the Act is wide. The
officer is asked to consider, with respect to the
possible admission to Canada of a given applicant,
"reasons of public policy" as well as the "existence
of compassionate or humanitarian considerations".
Neither the section of the Immigration Act which
sets out definitions of terms contained in the Act
nor the Immigration Regulations, 1978 [SOR/78-
172] describe in any greater detail how the section
is to be applied, nor what interpretation the officer
is to give to the rather broad terms contained
therein. It is not surprising, therefore, that the
Immigration Manual contains in chapter 9 policy
guidelines which assist an officer in the exercise of
his or her discretion pursuant to, among other
sections, subsection 114(2) of the Act. Chapter 9
opens with the following passage, which appears
under the heading "Exercise of Discretionary
Powers":
It is important .. . that officers realize that these guidelines are
not intended as hard and fast rules. They will not answer all
eventualities, nor can they be framed to do so. Officers are
expected to consider carefully all aspects of cases, use their best
judgement [sic], and make the appropriate recommendations.
Chapter 9 of the Immigration Manual assists an
officer in assessing situations, and the humani
tarian and compassionate issues raised by them,
which include problems with spouses, family de
pendency, difficulties with return to country of
origin, illegal de facto residents, and situations
involving marriage breakdowns. The chapter
advises immigration officers that in general:
Humanitarian and compassionate grounds exist when unusual,
undeserved or disproportionate hardship would be caused to a
person seeking consideration, or to persons in Canada with
whom the immigrant is associated, if he were not allowed to
remain in Canada while his request for landing is in process.
By comparison, the policy guidelines contained
in "Refugee Claimants Backlog Procedures" are
rigid and inflexible. The following direction is
given at page 11 of this document:
The officer reviews the claimant's case, checks the Information
form for accuracy, considers the criteria contained in Humani
tarian and Compassionate Criteria in making a decision and
completes the Humanitarian and Compassionate Summary ..
The "Humanitarian and Compassionate Review
Criteria", reproduced at page 150 herein are lim
ited, and refer only to a carefully selected segment
of the "backlog" population. Applicants who are
not "members of official delegations, athletic
teams or cultural groups", and who are not "close
family members of a Canadian resident" would
appear to be excluded from humanitarian and
compassionate review subject to these criteria.
I am not required here to adjudicate upon the
propriety of the guidelines for humanitarian and
compassionate review set out in chapter 9 of the
Immigration Manual. I will say, however, that
those guidelines appear to constitute the sort of
"general policy" or "rough rules of thumb" which
are an appropriate and lawful structuring of the
discretion conferred by subsection 114(2). Those
guidelines might have acted as a model for the
drafting of guidelines to be used in conjunction
with the humanitarian and compassionate review
of refugee claimants in the Backlog Clearance
Programme. Unfortunately, the guidelines adopted
as "Humanitarian and Compassionate Review
Criteria" in the "Refugee Claimants Backlog
Procedures" directive do not, in the same way,
impress me as criteria expressing general policy
and "rough rules of thumb". The criteria much
more strongly resemble inflexible self-imposed
limitations on discretion, which clearly result in
the pursuit of consistency at the expense of the
merits of individual cases. I am of the opinion that
this fettering of discretion constitutes a jurisdic
tional error which can only be redressed by provid
ing the applicant with a full and fair interview of
his humanitarian and compassionate claim in
accordance with the law and the duty of fairness.
The problem in the present case is that the text
of the Minister's policy directive creates the risk
that her officials will consider it a limitation on the
category of humanitarian and compassionate fac
tors. It is here that the importance of this applica
tion from a group of twenty-five claimants
becomes apparent. No single case could prove that
immigration officials have perceived and exercised
this limitation on the category, but the evidence of
the approximately twenty-five applicants satisfies
me that immigration officials have done exactly
that. The Minister has quite properly directed that
in this process a preliminary interview on humani
tarian and compassionate grounds is to take place.
Simple consistency demands that the Minister
must direct her mind to what the applicants feel
are their humanitarian and compassionate circum
stances, and not to a set of criteria which consti
tute inflexible limitations on the discretion con
ferred by the Act.
In the result, therefore, based on the applicant's
arguments on the issue of the fettering of discre
tion only, I am granting an order in the nature of
certiorari quashing the decision of immigration
officials at the Toronto Backlog Clearance,
Canada Immigration Centre, the respondent,
dated August 16, 1989, which decision indicated
that it had been determined that there were insuf
ficient humanitarian and compassionate grounds
upon which to accept the applicant's application
for permanent residence in Canada, and an order
in the nature of mandamus compelling the
respondent to provide the applicant with a full and
fair interview of his humanitarian and compassion
ate claim in accordance with the law.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.