T-1924-91
Mohamed Ahmed Said (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS.' SAID Y. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (TD.)
Trial Division, Jerome A.C.J.—Toronto, January 27;
Ottawa; April 23, 1992.
Immigration — Refugee status — Application for certiorari
and mandamus to review Immigration officials' decision —
Claim for refugee status refused for lack of credible basis
Immigration officer finding insufficient humanitarian and coin-
passionate grounds to stay applicant's removal — Opportunity
of making submissions to support existence of humanitarian
and compassionate grounds denied — Immigration Act, s.
114(2) creating duty of fairness in Minister when exercising
discretionary power — Standard offairness at issue — As min
imum, applicant must have opportunity to state case and to
make written submissions as to whether humanitarian and
compassionate grounds exist — No duty for Governor in Coun
cil to provide written reasons — Minister's discretion not fet
tered — Application allowed.
Constitutional law — Charter of Rights — Life, liberty and
security — Kenyan citizen's refugee status claim denied for
lack of credible basis — "Humanitarian and Compassionate
Grounds" defined — Case law reviewed — Opportunity must
be given to applicant to state case, make submissions as to
whether humanitarian and compassionate grounds exist
"Fundamental justice" in Charter, s. 7 including procedural
fairness — Relief under Immigration Act, s. 114(2) discretion
ary, not requiring written reasons — Deportation of refugee
claimant to country of origin not cruel and unusual treatment
or punishment herein under Charter, s. 12.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, /982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 7, 12.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, s. 114(2).
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 70, 71(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Williams v. Minister of Employment and Immigration,
[1985] 2 F.C. 153 (T.D.); Re Mauger and Minister of
Employment & Immigration (1980), 119 D.L.R. (3d) 54;
36 N.R. 91 (F.C.A.); Sobrie v. Canada (Minister of
Employment & Immigration) (1987), 3 Imm. L.R. (2d) 81
(F.C.T.D.); Muliadi v. Canada (Minister of Employment
and Immigration), [1986] 2 F.C. 205; (1986), 18 Admin.
L.R. 243; 66 N.R. 8 (C.A.); Yhap v. Canada (Minister of
Employment and Immigration), [1990] 1 F.C. 722; (1990),
9 Imm. L.R. (2d) 69; 29 F.T.R. 223 (T.D.).
CONSIDERED:
Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12
Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. I.
APPLICATION for certiorari and mandamus to
review a decision of Immigration officials that there
were insufficient humanitarian and compassionate
grounds upon which to accept an application for per
manent residence in Canada. Application allowed.
COUNSEL:
Joyce T. C. P. Chan for applicant.
Donald A. Macintosh for respondent.
SOLICITORS:
Tollis, Chan, Toronto, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
JEROME A.C.J.: This application for relief in the
nature of certiorari and mandamus came on for hear
ing at Toronto, Ontario on January 27, 1992. The
applicant seeks:
1. An order in the nature of certiorari quashing the
decision of Immigration officials at the Central
Removal Unit of the Canada Employment and Immi
gration Commission that there were insufficient
humanitarian and compassionate grounds upon which
to accept an application from the applicant for perma
nent residence in Canada;
2. An order in the nature of mandamus compelling
the respondent to provide the applicant with a full
and fair review of the applicant's humanitarian and
compassionate claim;
3. An order in the nature of mandamus compelling
the respondent to consider written submissions from
the applicant on the issue of humanitarian and com
passionate grounds.
The applicant, a citizen of Kenya, arrived in
Canada on July 15, 1989. He made a claim for refu
gee status on the grounds that, if he were returned to
his country of origin, he would suffer persecution at
the hands of the government because of his political
views. On August 9, 1989, immigration officials
refused the applicant's request because it was deter
mined that there was no credible basis for his claim.
Thereafter, the applicant sought leave from the Fed
eral Court of Appeal to commence a section 28 pro
ceeding to review the decision to deny him refugee
status. Leave was denied by the Court on February
15, 1990.
Because of the volatile political situation in Kenya
during 1989 and the early part of 1990, and the
increasing incidence of demonstrations and arrests,
Amnesty International wrote to the Minister of
Employment and Immigration expressing its con
cerns about the persecution of dissidents by the
Kenyan government. It was Amnesty's view that
these events, together with the existing diplomatic
tensions between Kenya and Canada, could increase
the possibility of arrest for dissidents returned from
Canada to their country. The Minister later gave pub
lic notice that anyone whose claim for refugee status
was refused would have their case reviewed to deter
mine if they qualified for landing on compassionate
and humanitarian grounds.
Two procedures were established. If an individu
al's claim for refugee status was found to have a
credible basis, but had been rejected after a hearing
on the merits, Chapter IE 12.19 of the Immigration
Manual provided that the following procedure be fol
lowed:
12.19...
1) Refused Refugee Claimants to be Informed of Pre-
Removal Review
A letter will be included with the Board's letter inform
ing refused refugee claimants that they are eligible for a
review on discretionary criteria. If they so desire, claim
ants may submit any relevant evidence in support of their
case. However, managers are not required to initiate con
tact nor to schedule interviews with claimants or their
counsel to discuss the merits of the case. For example,
the client or counsel may give a statement over the tele
phone. A written decision or written reasons for refusal
are not required, only a notation that a file review has
been done. Removal should not be delayed in order to
receive written submissions.
If, however, an individual's claim for refugee sta
tus had been rejected as having no credible basis, so
that the refugee claimant had not been entitled to a
hearing on the merits, the procedure to be followed
was different. In those cases, the file was reviewed to
see if compassionate and humanitarian grounds
existed, but claimants were not notified beforehand
that such a review was to take place.
The Immigration Manual contains the following
definition of humanitarian and compassionate
grounds:
12.19...
2) Definition of "Humanitarian and Compassionate
Grounds"
The term "Humanitarian and Compassionate Grounds"
refers to three distinct situations. These involve:
a) persons whose government will likely impose severe
sanctions on their return home;
b) family dependency; and
c) persons whose personal circumstances, in relation to
the laws and practices of their country, are such that
they will suffer unduly on returning home.
The applicant in the present case fell into the latter
category of claimants in that his claim to refugee sta
tus had been rejected by a credible basis tribunal and
not by the Convention Refugee Determination Divi
sion of the Immigration and Refugee Board. Since he
had not qualified for a hearing on the merits of his
refugee status, he was not entitled to notice that a
review of the discretionary criteria prescribed by IE
12.19 of the Immigration Manual was to be con
ducted.
On November 23, 1989, the Immigration Counsel
lor at Mississauga Enforcement CIC, reviewed the
applicant's file and determined that there were insuf
ficient humanitarian and compassionate grounds to
stay removal. That decision is now under attack.
APPLICANT'S SUBMISSIONS
The applicant submits that since he was not
informed of his eligibility to have his case reviewed
on humanitarian and compassionate grounds, neither
was he provided with the opportunity to present rele
vant evidence in support of his case. It is conceded
by the applicant, that in order to comply with the
requirements of procedural fairness under section 7
of the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,
1985, Appendix II, No. 4411, the respondent is not
required to give the applicant an interview to deter
mine whether there are sufficient humanitarian and
compassionate grounds upon which to accept an
application for permanent residence in Canada. How
ever, it is incumbent upon the respondent to at least
provide the applicant with an opportunity to make
written submissions.
The applicant further submits that, in accordance
with section 7 of the Charter, he is entitled to know
the case he has to meet, and that fundamental justice
and procedural fairness require that the respondent
inform him of the reasons for refusing to stay
removal on humanitarian and compassionate
grounds. Without these reasons, it is argued, the
applicant may never have the opportunity to make an
effective challenge to the accuracy of undisclosed
information or policies which underlie the respon
dent's decisions.
RESPONDENT'S SUBMISSIONS
The respondent's position is that there is no evi
dence that Immigration authorities have exceeded
their jurisdiction or otherwise acted unlawfully. It is
submitted that the respondent had no duty to inform
the applicant of his eligibility for a review of the dis
cretionary criteria prescribed by chapter IE 12.19 of
the Immigration Manual as the applicant's claim to
refugee status had been rejected by a credible basis
tribunal and not by the Convention Refugee Determi
nation Division of the Immigration and Refugee
Board. The Manual itself, it is argued, makes it clear
that only persons who have been found by the Refu
gee Board not to have a well-founded fear of persecu
tion, were entitled to receive a letter from the Board
informing them that they were eligible for a review
on humanitarian and compassionate grounds.
With respect to the duty to provide reasons for the
decision, it is submitted that the validity of the Nov-
ember 23, 1989 decision, cannot be affected by fail
ure of the officer to give reasons. The Immigration
counsellor's decision states that it was made after
consideration of all the factors which officials were
instructed, at that time, to take into account in reach
ing their decisions. Fundamental justice and procedu
ral fairness do not require that the applicant receive
reasons for its decision.
ANALYSIS
While an individual claiming refugee status has a
right under the legislation to have that claim adjudi
cated, consideration on humanitarian and compas
sionate grounds is of a different nature. Exemption
from the ordinary requirements of the Immigration
Act [R.S.C., 1985, c. I-2] because of the discretionary
criteria or humanitarian and compassionate grounds
is an issue left to the discretion of the Governor in
Council. Subsection 114(2) of the Act states:
114....
(2) The Governor in Council may by regulation exempt any
person from any regulation made under subsection (I) or oth-
erwise facilitate the admission of any person where the Gover
nor in Council is satisfied that the person should be exempted
from that regulation or the person's admission should be facili
tated for reasons of public policy or due to the existence of
compassionate or humanitarian considerations.
The basis of the applicant's argument is that his
case cannot be seen to have been properly considered
because he has been denied the opportunity of mak
ing submissions to support the existence of humanita
rian and compassionate grounds. The respondent's
position is that the Minister is under no obligation to
entertain further submissions from the applicant
before making its decision as to whether such
grounds exist. The authority being exercised here, it
is argued, is a purely discretionary one and as such, it
creates no rights in the applicant.
In my view, the applicant must succeed on this
issue. Although subsection 114(2) does not vest any
rights in the applicant, it does create a duty of fair
ness in the Minister when exercising the discretion
ary power contained therein. The question to be
determined here is what standard of fairness is to be
applied in these circumstances. In Williams v. Minis
ter of Employment and Immigration, [1985] 2 F.C.
153 (T.D.), it was found that the standard of fairness
for the exercise of ministerial discretion in immigra
tion cases is minimal. However, in Re Mauger and
Minister of Employment & Immigration (1980), 119
D.L.R. (3d) 54 (F.C.A.), the duty of fairness was
determined to have been complied with, but only
where it was clear that the appellant had been given
ample opportunity to tell his side of the story. There
fore, while the requirements of the duty of fairness
may vary in accordance with individual circum
stances, it must include, as a minimum, that the
applicant have some opportunity to state his case.
The situation in the present case is strikingly simi
lar to that in Sobrie v. Canada (Minister of Employ
ment & Immigration) (1987), 3 Imm. L.R. (2d) 81
(F.C.T.D.). In that case, the applicant claimed status
as a Convention refugee. The claim was rejected by
the Immigration Commission, the Immigration
Appeal Board and the Federal Court of Appeal. Mr.
Sobrie then requested the Minister to reconsider his
case, to which the Minister replied that his case had
been reviewed, that he was not a Convention refugee
and that no humanitarian and compassionate grounds
had been identified to justify an exemption. The
applicant never provided any detailed or substantive
information concerning humanitarian or compassion
ate grounds, and sought appropriate relief under sec
tion 18. See pages 86 and 89:
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) [now s. 114(2)]. The immigration offi
cials have assumed, quite logically, that their extensive file on
Mr. Sobrie provides all the information that could possibly be
relevant to this determination. That assumption is not war
ranted and is not in accordance with the principles of fairness.
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 pro
vide a fresh view of the immigrant's situation from a new per
spective. 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 com
passionate circumstances. These may have nothing to do with
the facts contained in the file of his previous immigration pro
ceedings.
The section does not state that the Governor in Council is to
consider only what the immigration officials think are humani
tarian and compassionate grounds or only those grounds which
are already contained in the applicant's file. If Parliament had
intended to restrict the considerations under this section to
such an extent, it could easily have done so.
I am not suggesting of course, that the applicant
has a right to a full oral hearing. But the duty of fair
ness with which the respondent is charged in con
ducting its review of the discretionary criteria pre
scribed by IE 12.19 of the Immigration Manual,
requires that the applicant be allowed to make sub
missions as to whether humanitarian and compas
sionate grounds exist, before such a determination is
made by Immigration officials.
With respect to the failure to provide reasons, the
applicant relies upon the Supreme Court of Canada
decision in Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177. In that case
the Minister, acting on the advice of the Refugee Sta
tus Advisory Committee, determined that the appel
lants did not qualify as Convention refugees. The
appellants then made an application for redetermina-
tion of their claim by the Immigration Appeal Board
pursuant to section 70 of the Act [Immigration Act,
1976, S.C. 1976-77, c. 52]. In accordance with sub
section 71(1) of the Act, the Board refused to allow
the application to proceed. The appellants sought
judicial review of the Board's decision by the Federal
Court of Appeal pursuant to section 28 of the Federal
Court Act [R.S.C. 1970 (2nd Supp.), c. 10], which
applications were denied.
The Supreme Court concluded that the appellants
were entitled to the protection of section 7 of the
Charter. It was further held that, at a minimum, the
concept of "fundamental justice" referred to in sec
tion 7 included the notion of procedural fairness.
From the applicant's point of view, the decision of
the Federal Court of Appeal in Muliadi v. Canada
(Minister of Employment and Immigration), [ 1986] 2
F.C. 205, is probably more helpful. There, the Fed
eral Court of Appeal held that before a negative
assessment on an entrepreneurial application could he
acted upon, the applicant had to he given the opportu
nity to confront it.
I note that neither of these cases, however, sug
gests that the applicant's opportunity to know the
case to be met can somehow imply a duty to provide
written reasons. The decisions were made in one case
by a visa officer and in another, by a redetermination
panel of the Immigration Appeal Board. In the pre
sent case, the applicant seeks exemption from the
normal requirements of immigration law. The relief
is discretionary in nature and probably does not
require the Governor in Council to give reasons at
all, much less in writing. Therefore, absent any clear
statutory requirements supporting the applicant's
submissions in this regard, this aspect of the applica
tion must fail.
The applicant made two further submissions which
may be disposed of briefly. First, it was argued that
the Minister, by failing to give the applicant the
opportunity to submit relevant evidence in support of
his case and by neglecting to seek information that
was relevant to the exercise of her discretion, has fet
tered her discretion. I cannot agree that there has
been any fettering of discretion by the Minister in
this case. In Yhap v. Canada (Minister of Employ
ment and Immigration), [1990] 1 F.C. 722 (T.D.), I
made the following observations on the appropriate
ness of the guidelines for humanitarian and compas
sionate review as set out in chapter 9 of the Immigra
tion Manual, at pages 739-740:
Chapter 9 of the Immigration Manual assists an officer in
assessing situations, and the humanitarian and compassionate
issues raised by them, which include problems with spouses,
family dependency, difficulties with return to country of ori
gin, illegal de facto residents, and situations involving mar
riage breakdowns. The chapter advises immigration officers
that in general:
Humanitarian and compassionate grounds exist when unu
sual, undeserved or disproportionate hardship would he
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 land
ing is in process.
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, how
ever, that those guidelines appear to constitute the sort of "gen-
eral policy" or "rough rules of thumb" which are an appropri
ate and lawful structuring of the discretion conferred by
subsection 114(2).
Finally, it is submitted that the respondent, by
removing the applicant from Canada, is subjecting
him to cruel and unusual treatment or punishment
contrary to section 12 of the Charter. With respect,
this argument reflects a misperception of immigration
proceedings, which are civil in nature and bear no
relationship to criminal proceedings. The jurispru
dence has clearly established that the purpose of
deportation is not to impose penal sanctions against
an individual but rather, to remove from Canada, an
undesirable person. The deportation of a refugee
claimant to his or her country of origin, where that
individual has been determined not to be a Conven
tion refugee, cannot, in my view, be considered as
cruel or unusual punishment.
Accordingly, an order will go setting aside the
refusal to extend humanitarian and compassionate
considerations to the applicant and directing that the
matter be dealt with in accordance with the law fol
lowing receipt of at least written submissions on
behalf of the applicant. The applicant is entitled to
costs.
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.