Date: 20000203
Docket: IMM-828-99
Ottawa, Ontario, this 3rd day of February 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
AMARO DA SILVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] At the conclusion of the hearing of this motion seeking a stay of a deportation order, I dismissed the motion and indicated that reasons would be provided later. These are the reasons.
[2] Mr. Amaro da Silva sought a stay of a deportation order against him on the ground that the visa officer who decided his application for a visa did not consider, or did not properly consider, the fact of his same sex relationship. The deportation order pursuant to which Mr. da Silva was being deported was unrelated to his visa application. It arose from the fact that Mr. da Silva had been in Canada illegally since 1993 and was ordered to leave Canada when he abandoned his refugee claim in 1995. The visa application was made in March 1997. Mr. da Silva was interviewed by the visa officer on August 6, 1998 and his application was refused in a letter dated August 18, 1998.
[3] Mr. da Silva applied for landing on two grounds; as an independent applicant whose intended occupation was a cook, and on the basis of sponsorship by his same sex partner. The application on the basis of employment as a cook failed because he had no experience in that occupation. Section 11(1) of the Immigration Regulations 1978 (the "Regulations") provides that no visa will be issued to a candidate who scores zero on the experience factor, which is one of the factors to be assessed in the rating scheme found at Schedule I of the Regulations .
[4] The second basis of the application was a form of sponsorship application based upon his same sex relationship with another man. The provisions dealing with sponsorship refer to spouses, which precludes members of a same sex common law relationship being able to access those provisions. It appears that the Immigration service has developed an alternative process for same sex common law relationships which is intended to provide an opportunity for those couples to be treated on the same footing as married heterosexual couples on the issue of sponsorship. The policy is set out in a telex sent to all visa posts which spells out the procedure to be followed in the case of same sex and common law couples. That telex reads as follows:1
| Ref ord 0149 03 jun 94" |
| Processing of same sex and common law cases / traitement des cas concernant des conjoints de même sexe et de fait recent telex (ord0149) reminded missions of background to humanitarian and compassionate (handc) authority provided under new r 2.1. This telex will discuss options around how to process same sex and common law couples as there appears to be some confusion and inconsistency in application of regulations. |
| 2. New federal government has undertaken to conduct review of issue of recognition of same sex relationships across range of government programs and legislations. In the context of wider governmental review the treatment of same sex relationships under the immigration regulations is coming under increasing scrutiny by public, media, courts and interest groups. Likewise failure of immigration to recognize common law relationships is increasingly being questioned. |
| 3. The immigration regulations define spouse as someone of the opposite sex to whom an individual is joined in marriage. Due to this definition, fc sponsorship of same sex or common law spouse or conclusion of same sex or common law spouse on independent, refugee or other application is conventionally precluded. These regulations remain law of the land unless they are changed by government or struck down by courts. |
| Nevertheless in spite of definition of spouse, other provisions of regulations including r. 11(3) and r 2.1 may apply to applications involving same sex or common law couples. |
| 4. In processing applications involving same sex or common law relationship missions should consider each application on its individual merits. Following points are intended to provide guidance to missions to assist them in processing of such cases. If mission receives application that has been initiated via an ... sponsorship which involves same sex or common law spouse, mission should review the application and process it under independent regulations as processing under fc not possible. If application has been opened as family class missions should change category to independent (nd2) at selection stage. |
| 5. It is not necessary to refuse as fc prior to changing category. Missions should accept those same sex or common law spouses that qualify under normal selection system or where r 11(3) is warranted if selection points do not reflect applicants ability to successfully establish. In these cases the bona fides of the relationship are probably not relevant to the assessment of the application. |
| 6. If options in para 5 are not viable missions should review same sex or common law applications for handc grounds. Where handc grounds are compelling it is appropriate for program managers to use their r 2.1 authority to waive r 8 and authorize the issuance of an immigration visa. Handc grounds in such cases include the existence of a stable relationship with a Canadian citizen or permanent resident. Missions should recognize that undue hardship would often result from separating or continuing the separation of a bona fide same sex or common law couple. |
| 7. When assessing whether handc factors are present missions may, of course, look behind same sex or common law relationship (as is done with marriages of convenience). Missions should assess relationships to determine that they are bona fide (in terms of duration and stability of relationship) and not entered into primarily for the purpose of gaining admission to Canada of one of the parties. Where handc factors are present and applicant is otherwise admissible missions should issue immigrant visa. Where no grounds exist to accept applications, including those that were initiated by a fc sponsorship (even though sponsorship precluded by regulations), mission should refuse applicant as independent under a 19 (2) (d), r4 etc. independent refusal letter should make clear that fc sponsorship was reviewed but found to be outside of regulations. |
| 8. Missions may also use r. 11(3) or r. 2.1 to facilitate the admission of an otherwise unqualified applicant who is involved in a same sex or common law relationship with an individual who, in their own right, qualifies for immigration under any category. For example, missions could use r 2.1 to issue an immigrant visa to the same sex spouse of a qualified independent applicant. |
| 9. Vancouver based organization quote legit unquote (lesbian and gay immigration taskforce) which is active in promoting changes to immigration spousal regulations have advised us that they intend on sending questionnaire to program managers overseas. Purpose of questionnaire is to elicit information on the manner in which offices might process qualified same sex clients. While legit is free to send questionnaire we have informed them that missions do not normally answer hypothetical questions. We have also shared this telex with legit and have informed them that missions may choose not to answer questionnaire. |
| 10. This telex should be shared with all staff. Any questions on this telex should be addressed to orci with copy to yr geographic division. |
| 11. Un télex récent (ord 0149) rappelait aux bureaux certains... |
[5] The overall intent of the scheme is to first assess applicants as independent applicants. If they qualify for a visa on that basis, nothing further is required. If they do not, there is a discretion pursuant to s. 11(3) of the Regulations to grant a visa if the point assessment does not adequately reflect the chances of the immigrant becoming established in Canada. If the candidate does not succeed on that basis, then the visa officer must consider the hardship which would result from the separation of the couple and exercise the discretion conferred by s. 2.1 of the Regulations which deals with humanitarian and compassionate considerations. At this stage, undue hardship is essentially presumed2 and the only issue is the genuineness of the relationship. This is the same concern which leads to inquiries about marriages of convenience on the part of heterosexual married couples.
[6] In this case, the affidavit of the applicant sets out that the visa officer showed little or no interest in the authenticity of the relationship. She made few inquiries about it and cut the applicant off when he tried to speak of it. The visa officer"s computer notes record a somewhat different story but even they do not show an attentive inquiry into the issue. The relevant paragraphs of the computer notes are as follows3:
| Subj claims he met his current partner, a Cdn citizen at a gym in November 95. This appears to be at the same time subj was deemed deport. He claims he met partner and has been living with him for approx 1 " yrs. Although he moved in with partner he continued to work illegally in Cda. Subj presented letters from friends attesting to character, honesty integrity. Very little in letters that focus on subj"s relationship with partner and any emotional hardship that would exist if subj left Cda. Subj was asked about relationship with partner and application for landing. Subj stated he would like to return to brazil to be able to visit family. He would like to remain in Cda and go to school and work. Subj made no comment regarding emotional dependency on partner. Stated he worked illegally because partner is unable to support him and subj has own life and feels it is important to work. |
| It is my opinion that subj is inadmissible to Cda. Subj has no qualifications or exp that qualify him to immigrate. Subj has shown a blatant disregard for the laws of Cda. When asked why he did not leave Cda when ordered to do so subj stated he was afraid he would not be able to return to Cda if he left. No mention made of not wishing to leave partner. I am unable to conclude there are h & c grounds in this case. It appears subj entered into relationship and used it to aid in his remaining in Cda. Subj has no training or exp as cook. Has done some volunteer work. Has done nothing to improve language ability or further educate himself. Considering factors that reflect pers. Suitability it is my opinion that points accurately reflect subj"s changes of successfully est in Cda. Subj has not given me impression that hardship would exist for him or partner if he left Cda. |
[7] The letter by which the applicant was advised of the refusal of his application reads as follows:
| UNCLASSIFIED |
B0357 90786
18 August 1998
Mr. Amaro Da Silva
c/o Constance Nakatsu
45 St. Nicholas St.
Toronto, Ontario
M4Y 1W6
Dear Mr. Da Silva:
| This refers to your application for permanent residence in Canada. |
| I have now completed the assessment of your application and regret to inform you that it has been determined that you do not meet the requirements for immigration to Canada. |
| Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants, in the class in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and personal suitability. You were assessed under the occupation of cook. |
You were awarded the following units of assessment.
| Age 10 |
| Occupational Factor 10 |
| Special vocational Preparation 15 |
| Experience 00 |
| Demographic Factor 08 |
| Education 15 |
| English 06 |
| Bonus 00 |
| Personal Suitability 02 |
| Total 66 |
| A total of seventy units of assessment is required to qualify for immigration to Canada. You have obtained insufficient units of assessment. You therefore, come within the inadmissable (sic) class of persons described in paragraph 19(2)(d) of the Immigration Act and your application has been refused. The fact that I was unable to award you units of assessment for the factor of experience also renders you insadmissable (sic). You are also inadmissable (sic) to Canada due to a deportation order issued to you. |
| From information on file and obtained at interview, I was unable to conclude you have performed the functions of a cook as per the CCDO and NOC definitions. You were also unable to satisfy me that you have the train8ing that is required in this occupation. |
| You have been in Canada since 1993. You were ordered to depart Canada and failed to do so which resulted in a deportation order being issued against you. You failed to leave Canada and a warrant was issued to effect your departure from Canada. You chose to disregard the orders against you. While you were in Canada you obtained employment and worked without authorization to do so. You have displayed a blatant disregard for the laws of Canada. |
| Taking into consideration factors such as motivation, initiative, resourcefulness and adaptability, I was unable to conclude you would establish successfully in Canada. |
| I am of the opinion that the points awarded to you, accurately reflect your chances for successful settlement in Canada. |
| I have considered possible humanitarian and compassionate factors but have determined that there are insufficient grounds to warrant special consideration. |
| I regret my response could not have been favourable. A refund of right of landing fees will be forthcoming. |
Yours truly,
Moira Escott
Immigration Officer
[8] The applicant"s position, based upon the refusal letter is that no consideration was given to the sponsorship aspect of the application. There is no reference at all to it in the refusal letter. After being advised of the contents of the computer notes quoted above, counsel indicated that his position was essentially unchanged in that the attention apparently paid to the issue was so cursory as to amount to no attention at all. Counsel argued that this constituted an infringement of the applicant"s equality rights under the Charter which, in and of itself would justify a stay of the deportation order.
[9] Counsel for the respondent argued that the visa officer did consider the sponsorship aspect of the application and concluded that the relationship was not a genuine relationship. Consequently, there was no reason which would justify the exercise of discretion to issue the applicant a visa.
[10] Both of these submissions are directed to the first leg of the three part test for the granting of a stay which is set out in Toth v. M.C.I. [1988] F.C.J. No. 587. The first leg of the test is that there must be a serious issue to be tried. The applicant says that the serious issue raised by its application for judicial review is the infringement of the applicant"s equality rights due to the visa officer"s failure to consider, or to consider properly, the sponsorship aspect of Mr. da Silva"s application. In the case of a heterosexual couple, the only issue is the genuineness of the marriage. If the visa officer is satisfied on that score, the visa is issued if the candidate is not otherwise a member of a prohibited class (e.g. a criminal). In this case, the issue was not considered which resulted in the applicant being treated differently than if he had been involved in a conventional marriage. Assuming for the sake of argument that the application was not properly considered, counsel qualified the failure to do so as a charter violation rather than an administrative law problem. Counsel was not prepared to concede that the equality issue had been dealt with when the alternate procedure was established and that the failure to properly apply the procedure was simply an administrative failure.
[11] Counsel for the respondent took the position that the sponsorship aspect of the application had been considered and it had simply been decided that it was not a genuine relationship. Even there was a failure to treat the issue adequately, this was simply an administrative law issue. While I have considerable misgivings about the treatment which the application received, it is not necessary to decide this issue because the application fails on the ground of irreparable harm which is the second leg of the test.
[12] Counsel for the applicant relied upon two recent decisions for the proposition that the test of irreparable harm "not compensable in damages" had no application to human rights cases and that if it could be shown that the harm complained of was a violation of a charter right, irreparable harm shown at the same time. In other words, any violation of a charter right was by definition irreparable harm.
[13] This line of argument was touched upon by Robertson J.A. in Suresh v. M.C.I. [1999] 4 F.C. 206, [1999] F.C.J. No. 1180 where a stay of a deportation order was in issue as well. On the issue of irreparable harm, Mr. Justice Robertson articulated his discomfort with the definition of irreparable harm by reference to damages:
| I have always found it difficult to accept that when the House of Lords formulated the tripartite test in its seminal decision of American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396, consideration was ever given to its applicability in the human rights context. It is only in a commercial context such as that which presented itself in American Cynamid that any court would characterize irreparable harm in terms of that which cannot be compensated in monetary terms. No transgression of a basic human right can be accurately measured or compensated by money. This is particularly true in immigration cases involving deportation to a country which fails to abide by international norms respecting human rights. |
[14] The Supreme Court of Canada broached the same topic in Canada v. Liberty Net (1998), 1 S.C.R. 626 in the context of an injunction prohibiting certain speech:
| In my view, the Cyanamid test, even with these slight modifications, is inappropriate to the circumstances presented here. The main reason for this is that Cyanamid, as well as the two other cases mentioned above, involved the commercial context in which the criteria of "balance of convenience" and "irreparable harm" had some measurable meaning and which varied from case to case. Moreover, where expression is unmixed with some other commercial purpose or activity, it is virtually impossible to use the second and third criteria without grievously undermining the right to freedom of expression contained in s. 2(b) of the Charter. The reason for this is that the speaker usually has no tangible or measurable interest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest. This test developed in the commercial context stacks the cards against the non-commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself. |
[15] Counsel for the applicant seeks to derive from these cases the principle that since violations of fundamental human and Charter rights cannot be compensated adequately by damages, the requirement of irreparable harm is either inappropriate or is satisfied upon the proof of the violation itself. In this case, the effect of the argument would be that since the failure to properly consider the sponsorship aspect of the case properly or at all was a violation of the applicant"s Charter right to equality, irreparable harm was proven by the mere fact of the violation.
[16] I do not wish to venture any further into the Charter issue than is necessary to show that this conclusion cannot stand, at least not in the context of this case. If one assumes a married couple whose marriage has been mistakenly found to be a sham, thus exposing one of the parties to deportation, an application for a stay of that deportation pending judicial review of the decision must satisfy the irreparable harm criterion. There is significant authority in this court that "mere" family separation does not qualify as irreparable harm. Yet, in the case of a same sex couple, where the only difference is the nature of the relationship, the irreparable harm criterion would, on the argument advanced, be assumed to be satisfied. The result would be inequality, not equality, of treatment, since members of a heterosexual marriage would be exposed to deportation while similarly circumstanced homosexual couples would not be. This cannot have been the intended result.
[17] In my view, the error arises from the characterization of every impingement on a Charter right as a charter violation. In this case, the visa officer, for the sake of argument, did not properly apply the policy intended to give same sex couples the same benefit available to married couples. The visa officer could equally have misconstrued the genuineness of a traditional marriage. So long as there is no evidence that the error is part of a colourable attempt to deprive same sex couples of the benefit intended to conferred on them by the policy, both errors should give rise to similar remedies and to similar consequences. For both reasons, this argument fails.
[18] The presence of irreparable harm must therefore be shown as it will not be assumed. Documentary evidence was submitted that homophobic violence occurs in Brazil, to which the applicant is scheduled to be deported. On the other hand, the applicant"s affidavit recounts one incident of an assault against him, following which he continued to live and work in Sao Paolo for another four and one half years. Homophobic violence continues to occur in Canada and the United States. If absolute safety were required, no illegal claimant could ever be returned to his place of origin.
[19] The applicant also claims that in the context of his relationship with his partner, enforced separation would amount to undue hardship. This can only be as true for same sex relationships as it is for conventional relationships but, as stated above, the weight of authority in this court is that family separation is not, of itself, undue hardship. In this case, the parties lived apart for two years before resuming life together in November 1999. Their voluntary separation colours the hardship associated an involuntary separation.
[20] Irreparable harm has not been shown and the application for a stay is therefore dismissed.
ORDER
For the reasons stated above, the application is dismissed.
"J.D. Denis Pelletier"
Judge
__________________
1 The original text is entirely in capital letters as is the custom with telexes. It has been changed in the conventional format to improve readability.
2 Missions should recognize that undue hardship would often result from separating or continuing the separation of a bona fide same sex or common law couple.
3 This passage is subject to the same comment as in Footnote 1.