Date: 20011126
Docket: IMM-151-01
Neutral citation: 2001 FCT 1294
BETWEEN:
REBECCA YAA AMANFO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of an immigration officer dated December 20, 2000, in which the officer decided that an exemption from subsection 9(1) of the Immigration Act on humanitarian and compassionate grounds would not be granted.
[2] The issues are: 1) did the officer breach the duty of fairness by failing to consider the guidelines in assessing the H & C application? and 2) did the officer err in focussing solely on the issue of criminal inadmissibility in deciding the H & C application?
FACTS
[3] The applicant applied in February 2000, for an exemption on humanitarian and compassionate grounds based on the spousal sponsorship. The applicant arrived in Canada in 1990 and was married in 1992.
[4] In 1992 she was convicted of welfare fraud, ordered to pay restitution, do community service and three years probation. The applicant has had no problems with the authorities since that time. The applicant has applied for a pardon, and the application is currently being processed.
[5] In written submissions to the officer, the applicant noted the following:
(a) the applicant's husband had been granted landing based on his refugee claim, and could not return to Ghana and would thus be unable to visit his wife if she were deported;
(b) the marriage was a genuine marriage of eight years duration;
(c) since the last conviction the applicant had not committed any further offences; had complied with the terms of her sentence and had sought a pardon;
(d) the husband has no close relatives in Canada and would thus suffer greatly if the applicant were deported;
(e) the separation involved in this case would be extremely lengthy as a result of the processing times in Ghana and as a result of the issues of inadmissibility which would lengthen the sponsorship process.
[6] In the refusal letter dated December 20, 2000, the officer gave the following reasons for refusing the H & C application:
AFTER A CAREFUL AND THOROUGH REVIEW AND CONSIDERATION OF ALL THE INFORMATION AND SUBMISSIONS ON FILE, I AM NOT SATISFIED THAT SUFFICIENT H & C GROUNDS EXIST TO WARRANT AN EXEMPTION TO THE NORMAL LEGISLATIVE REQUIREMENTS. THE APPLICANT IS CRIMINALLY INADMISSIBLE TO CANADA FOR AN OFFENCE OF FRAUD OVER $1000 THAT SHE COMMITTED ON AUGUST 26, 1992 FOR WHICH SHE HAS NOT BEEN GRANTED A PARDON: I HAVE NOTED THAT THE APPLICANT DID NOT DECLARE THIS OFFENCE ON HER IMM 5001 - IN CANADA APPLICATION FOR PERMANENT RESIDENCE FORM; I DO NOT DOUBT THAT THE APPLICANT IS INVOLVED IN A GENUINE MARRIAGE, HOWEVER I DO NOT FEEL THAT THE H & C GROUNDS ARE SUFFICIENT TO OVERCOME THE APPLICANTS CRIMINAL INADMISSIBILITY TO CANADA IN THIS CASE. THEREFORE, AFTER CONSIDERING ALL THE INFORMATION, I AM NOT SATISFIED THAT SUFFICIENT H & C GROUNDS EXIST TO WARRANT WAIVING A9(1).
ANALYSIS:
[7] The applicant submits that the respondent breached a duty of fairness by not following the procedures set out in the guidelines. Baker v. Minister of Citizenship and Immigration, [1999] S.C.J. No. 39, confirms this position. L'Heureux-Dubé J. states at paragraph 26:
Fourth, the legitimate expectations of the person challenging the decision may also determine what procedures the duty of fairness requires in given circumstances. Our Court has held that, in Canada, this doctrine is part of the doctrine of fairness or natural justice, and that it does not create substantive rights: Old St. Boniface, supra, at p. 1204; Reference re Canada Assistance Plan, [1991] 2 S.C.R. 525, at p. 557. As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to the individual or individuals affected by the decision. If the claimant has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16 (C.A.).
[8] I must now examine the Guidelines as set out in chapter IP-5 of the Citizenship and Immigration Canada Manual, which chapter deals with "Immigrant Applications in Canada made on Humanitarian or Compassionate (H & C) Grounds".
[9] Section 7 reads as follows:
SPONSORSHIPS AND SPONSORSHIP APPEAL RIGHTS
Sponsorships must be considered properly in the H & C decision-making context. Rights and obligations of sponsors must be consistent whether applications are processed in Canada or abroad.
Generally, an H & C application based on family class relationship is supported by a sponsorship from a Canadian citizen or permanent resident. ...
The sponsorship approval decision must be made before looking at the H & C request. This is so that sponsorship existence or lack thereof and comparative importance of this fact can be considered when making the H & C decision.
Appeal rights are issued to the sponsor when the sponsored applicant receives a positive H & C decision but a negative landing decision.
The decision to exempt an applicant from A9(1) cannot be re-visited other than in cases of fraud or misrepresentation. This is why it is important to process any sponsorship before considering the H & C decision. (see section 6.8 - Re-opening of positive H & C decision).
[10] The respondent submitted that it is not clear on the facts that the application was based on sponsorship. However, the application was not included in the certified record. The applicant clearly put the question of sponsorship into issue in its reply which was filed in February of this year. Accordingly, if the respondent did not agree with the applicant's submissions that it was sponsor based, then they had several months in which to produce the application form filled out by the applicant, notwithstanding that it was not in the certified record. Furthermore, even if the application had not included the sponsorship, section 7.1 requires that the applicant be given an opportunity to have sponsorship forms completed or to have explained why there is no sponsorship since "an approved sponsorship, although not mandatory, is an important factor in an H & C application".
[11] In this case, the officer did not make a sponsorship approval decision prior to making the H & C decision. As a result of this, the sponsoring husband is deprived of his appeal rights, contrary to the Baker decision. This constitutes a reviewable error and the matter must be returned for reconsideration by a different immigration officer in accordance with the policy provisions set out in IP-5 of the Immigration Manual.
[12] In light of my finding with respect to the sponsorship provision, it is not necessary to determine whether there is a reviewable error in the officer's H & C consideration. In my view, the officer should have dealt with the fact that the reason for the lack of pardon is that the applicant was not able to apply for a pardon until five years after the expiration of the completion of her suspended sentence, since it was an indictable offence. Furthermore, there is no reference to the fact that the applicant has committed no further offences since 1992. There is also no discussion of the husband's inability to visit the applicant in Ghana as a result of his refugee status in Canada. However, it is then up to the officer to weigh the positive and negative factors of which certainly one is the criminal inadmissibility of the applicant. Then, as the Guidelines state, if there is a positive H & C decision processed, the application for landing begins to determine whether the applicant is admissible and meets all the requirements of the Act and Regulations (Section 9 of the Guidelines). Furthermore, as is stated in section 9.1 of the Guidelines, when there is a known inadmissibility at the time of the positive H & C decision, the application for permanent residence must be refused.
[13] The application for judicial review is allowed. The decision of the officer dated December 20, 2000, is quashed and the matter is returned to a different officer for redetermination.
"W.P. McKeown"
JUDGE
TORONTO, ONTARIO
November 26, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-151-01
STYLE OF CAUSE: REBECCA YAA AMANFO
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, NOVEMBER 8, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: MONDAY, NOVEMBER 26, 2001
APPEARANCES: Lorne Waldman
For the Applicant
Jamie Todd
For the Respondent
SOLICITORS OF RECORD: JACKMAN, WALDMAN & ASSOCIATES
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011126
Docket: IMM-151-01
Between:
REBECCA YAA AMANFO
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER