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CHAPTER 9
9. COMPASSIONATE OR HUMANITARIAN CONSIDERATIONS
9.1. GENERALLY1
As one of the two grounds of appeal from a sponsorship refusal,2
the consideration of compassionate or humanitarian grounds permits the
sponsor to adduce evidence of a compassionate or humanitarian nature sufficient
to warrant the granting of special relief. This jurisdiction of the Appeal
Division involves the exercise of discretion. It is open to the Appeal
Division to allow an appeal on both legal grounds and on the ground that
there exist compassionate or humanitarian considerations warranting special
relief, although special relief is usually granted after a refusal is
found to be valid in law. It should be pointed out that "compassionate
or humanitarian considerations" are not "all the circumstances
of the case," the latter grounds applying in respect of an appeal
against a removal order.3
9.1.1. Definition
Historically, "compassionate or humanitarian considerations"
have been looked at compendiously rather than discretely. The following
definitions were given in Chirwa :4
[
] "compassion" [is defined] as "sorrow
or pity excited by the distress or misfortunes of another, sympathy"
[
] "compassionate considerations" must [
] be taken
to be those facts, established by the evidence, which would excite in
a reasonable man in a civilized community a desire to relieve the misfortunes
of another - so long as these misfortunes "warrant the granting of
special relief" from the effect of the provisions of the Immigration
Act.
[
]
[
] "humanitarianism" [is defined] as "regard for
the interests of mankind, benevolence."
9.1.2. Exercise Of Discretionary Jurisdiction
The jurisdiction of the Appeal Division to grant special relief is loosely
referred to as its "equitable" jurisdiction. It is not, strictly
speaking, equitable, for none of the equitable doctrines, such as the
"clean hands" doctrine or laches, apply.5
In Dimacali-Victoria the Federal Court said:
[
] the decision of the IAD
[on compassionate or humanitarian considerations] does involve what I
am satisfied is a discretionary grant of an exemption from the ordinary
requirements of the Immigration Act [
] I am satisfied that
the determination of the IAD
under paragraph 77(3)(b) is, like the decision in question in Shah,6
"[
] wholly a matter of judgment and discretion and the law
gives [
] no right to any particular outcome." [It has to exercise]
its discretion in accordance with well established legal principles, that
is to say in a bona fide manner, uninfluenced by irrelevant considerations
and not arbitrarily or illegally.7
The Supreme Court of Canada has held that discretion must be exercised
in accordance with the boundaries imposed by law, fundamental Canadian
values and the Canadian Charter of Rights and Freedoms. 8
In Lutchman, 9
the Immigration Appeal Board described its discretionary jurisdiction
in these terms:
In its wisdom, Parliament saw fit to include such provision
to mitigate the rigidity of the law by enabling the Board to dispose of
an appeal favourably when the strict application of the law would not
permit such a determination, but the circumstances demand a fair and just
solution. [
] Clearly, this jurisdiction is discretionary in nature
and, as such, it must be exercised with caution. Its application must
be based on objective elements, the evaluation of which must not be vitiated
by subjective feelings, sentimental propensities, or biased outlooks.
What are these objective elements, and what weight each carries, can only
be determined by the facts of each case. 10
According to one decision of the Federal Court, Kirpal, 11
the Appeal Division errs if it "weighs" the legal impediment
to admissibility against the strength of the humanitarian or compassionate
factors present in an appeal. However, in a subsequent case, the Federal
Court expressed its doubts regarding the validity of the Kirpal
12
decision.13
In decisions that pre-date Kirpal, 14
the Federal Court of Appeal sanctioned consideration of the legal impediment
in the exercise of the Appeal Division's discretion. The approach taken
by the Appeal Division pre-Kirpal is reflected in the following
statement:
[
] [T]his jurisdiction is exercised to overcome a legal
obstacle which originated from the fact that an applicant was found to
be inadmissible [
] [T]he question is: how compelling must the evidence
be to overcome such an obstacle and to warrant the granting of special
relief? Objectivity and fairness require that the evaluation of evidence
be carried out in some consistent fashion and, while it is not possible
to establish an absolute scale of values against which to measure the
weight of the evidence, it is clear that such scale must be commensurate
with the magnitude of the obstacle to be overcome. Therefore, in the case
where at the time of the hearing the impediment which gave rise to the
refusal no longer exists, the compelling force of the evidence need not
be great to overcome what, in effect, is only a legal technicality.15
In response to Kirpal, 16
some panels of the Appeal Division had discontinued "weighing"
the legal impediment against the compassionate or humanitarian factors
in an appeal, but they continued to factor in the legal impediment in
exercising discretion. In order for the Appeal Division to grant special
relief, it required that there be positive factors over and above the
ability to surmount the obstacle to admissibility. The Federal Court upheld
this latter approach in Dang 17.
Where panels18
have simply declined to follow Kirpal, 19,
however unless Kirpal 20
is distinguished or the panel cites a higher court decision, the Federal
Court has held that, on the basis of stare decisis, the Appeal
Division erred.21
(
)the IAD
is bound to follow Trial division decisions on point unless they are distinguished
or based on decisions of the Federal Court of Appeal or Supreme Court
of Canada
.Although Chauhan does consider Federal Court
of Appeal jurisprudence, there is no specific reference to this by this
panel in their reasons and furthermore the reference to Jugpall
is based on the facts in that case.
Jugpall 22
re-states the traditional approach:
The Appeal Division has long held that the exercise of its statutory
discretion is a function of the context created by a determination of
inadmissibility. [
] [T]he relief in question is relief from the
determination of inadmissibility [
].
[
]
The need to establish the context in which an appeal pursuant to s. 77(3)(b)
is to be considered can be understood as a practical and purposive approach
to the administration of the Act. If the purpose of the Act is to facilitate
rather than frustrate immigration, then one of the aims of the Act in
granting a right of appeal pursuant to s. 77(3)(b) is to make available
a remedy where the strict application of the law produces harsh results.
This aim can be realised by measuring the compassionate or humanitarian
aspects of an individual's case in relation to the legal obstacles to
admissibility.
[
]
The Appeal Division has consistently applied an approach which requires
the degree of compelling circumstances to be commensurate with the legal
obstacle to admissibility in order to justify granting discretionary relief.
Thus, in cases where changes in the circumstances of the case by the time
it gets to appeal are such that the original basis for a finding of inadmissibility
has been overcome, a mildly compelling case may be sufficient to warrant
granting discretionary relief. [
] [A] complete surmounting of the
substance of the original ground of inadmissibility weighs very heavily
in the Appeal Division's assessment of the compassionate or humanitarian
circumstances of the case.
[
]
In the context of cases where Parliament's concerns with admissibility
have been met, it may not be necessary to look for overwhelming circumstances
in order to grant special relief. The values of quick and fair adjudication
would not be served by forcing the appellant to start the sponsorship
process all over again [
].
Where the obstacle to admissibility has been overcome, particularly with
respect to medical and financial inadmissibility, there must be positive
factors present over and above the ability of the sponsor to surmount
the obstacle to admissibility in order for the Appeal Division to grant
special relief:
There must be positive factors independent of [the obstacle
to admissibility] which move the decision-maker to conclude that it would
be unfair to require the appellant to start the whole sponsorship process
all over again.23
As well, there should be no negative factors which would undermine any
justification for granting special relief.24
In other cases, where the panel has allegedly weighed the legal impediment
against the compassionate or humanitarian considerations, the Federal
Court has distinguished Kirpal by stating that, in the cases
before them, there has been full consideration of proper compassionate
and humanitarian factors25.
Further, in noting that the Federal Court's standard of review for conclusions
related to the Appeal Division's exercise of its discretionary jurisdiction
is "patently unreasonable" the conclusions of the Appeal Division
have been upheld, even where "at worst, one irrelevant factor, was
considered" and "where one irrelevant consideration was factored
in." In Nawaratnam26,
the Court specifically cited Chauhan27
with approval and noted that caselaw from the Federal Court of Appeal
implicitly accepts that the IAD
can weigh the legal impediment against the H&C factors.
The Chirwa 28
standard applies where the initial ground of inadmissibility has not in
substance been overcome. A different and lower threshold for granting
special relief is appropriate where current circumstances reveal that
the obstacle to admissibility has been met.29
9.1.3. Who May Benefit From Special Relief
Special relief may only be granted in respect of members of the family
class. In other words, the applicants must first be determined to come
within the definition of "member of the family class"30
or to qualify as dependants of a member of the family class. To proceed
otherwise would have the effect of expanding the family class beyond its
prescribed limits.31
In Kirpal, the Federal Court indicated that "[
] nothing
on the face of the Act and Regulations [
] requires a uniform result
from the Tribunal in the exercise of its equitable jurisdiction, in respect
of each of the [
] family members of the applicant [
]".32
The Appeal Division generally does not undertake an individual assessment
of compassionate or humanitarian factors for each applicant. Where the
Appeal Division does engage in such individual assessments,33
it usually comes to a uniform conclusion for all applicants on the question
of whether special relief is warranted.34
9.1.3.1. « Splitting and Deleting »
Where the Appeal Division finds that an individual listed on an application
does not qualify as a member of the family class or as a dependant, the
ineligible applicant is "split" or deleted from the application.
The admissibility of the remaining applicants is unaffected by the deletion.35
The appeal could also be allowed on compassionate or humanitarian grounds
for these remaining applicants, if warranted, although this would not
be necessary for the appeal to succeed.
Applications can also be "split" where they involve two or
more members of the family class who are not dependants in relation to
each other. One example is a sponsor's daughter and his spouse, where
the daughter is not related to the spouse. A ground of refusal relating
to the daughter would not affect the spouse because neither is a dependant
of the other.36
The appeal would be allowed in respect of the spouse, in effect, "splitting"
her application from the daughter's application. The appeal in respect
of the daughter would be dealt with separately, and if the ground of refusal
were valid, the appeal could only succeed if discretionary relief were
granted.
The same would not hold true if the sponsor's daughter were also the
spouse's daughter. If the daughter were inadmissible, the spouse would
also be inadmissible because the daughter is her dependant.37
There could be no "splitting" of the spouse's application and,
if the ground of refusal were valid, discretionary relief would be necessary
for the appeal in respect of both applicants to succeed.
9.1.4. Effect Of A Favourable Decision On Compassionate
Or Humanitarian Grounds
A decision in the sponsor's favour on compassionate or humanitarian grounds
blankets and thus overcomes the ground of inadmissibility.38
The blanketing effect is in relation to the particular ground that was
before the Appeal Division. This means that when the application is returned
to the visa officer to be further processed, if the officer discovers
another reason for refusing the application, there is nothing to preclude
a second refusal. The Appeal Division's earlier decision granting special
relief relates only to the matter that was before it at the time. Thus
the Appeal Division may, on a subsequent appeal, on the facts then existing,
decide that the granting of special relief is not warranted.39
The earlier decision granting special relief may be revisited and the
doctrine of res judicata does not apply.
9.2. EVIDENCE
9.2.1. Burden Of Proof
Before a decision favourable to a sponsor may be given on compassionate
or humanitarian grounds, the sponsor has the burden of adducing evidence
sufficient to attract this jurisdiction.
9.2.2. Evidence Existing At The Time Of The Appeal
An appeal on humanitarian or compassionate grounds is decided on the
facts existing at the time the Appeal Division makes its decision. In
Gill, 40
the Federal Court of Appeal stated:
It is noteworthy to observe that the jurisprudence of this Court
has established that a hearing of this nature is a hearing de novo
in a broad sense, and at such a hearing the Board is entitled to consider
contemporary matters which necessarily involve a consideration of changed
circumstances when exercising its equitable jurisdiction.
9.3. GENERAL PRINCIPLES
It has been held that the sponsor's circumstances are at least as important
as those of the applicants, if not paramount,41
on an appeal on compassionate or humanitarian grounds.
The policy objective set out in section 3(c) of the Immigration Act,
to facilitate the reunion in Canada of Canadian citizens and permanent
residents with their close relatives from abroad, informs the exercise
of discretionary relief. However, since it is the basis for all sponsorship
applications, it is not, without more, sufficient to warrant special relief.42
Marriage to a Canadian citizen does not, in itself, create any entitlement
to special relief.43
There is a distinction between achieving family unification and facilitating
the reunion of the sponsor with close relatives from abroad.44
Generally speaking, the concern is not with maintaining the unification
of all relatives abroad. As a general rule, the fact that a relative abroad
does not wish or is ineligible to come to Canada is not relevant to the
granting of relief to permit the sponsor to be reunited with other relatives.45
A sponsor may make arrangements for an inadmissible relative (member
of the family class or dependant) to be left behind in the home country
and ask the Appeal Division to allow the appeal in respect of the remaining
applicants who have applied to come to Canada. Although the relative's
inadmissibility has the effect of prohibiting the issuance of visas to
the applicants,46
the Appeal Division may grant special relief to enable the applicants
to proceed to Canada without the relative.47
However, the circumstances relating to the relative may have some bearing
on the exercise of discretion,48
and to this extent an exception to the general rule exists.
Where there is more than one ground of refusal, different considerations
go to the discretionary jurisdiction with respect to each ground.49
An argument may be presented that an applicant's opportunities in Canada
would be far more attractive than in the applicant's home country. This
has been characterized as an economic argument and is generally not accepted
as a compassionate or humanitarian factor.50
The policy objective set out in section 3(i) of the Immigration Act,
to maintain and protect the health, safety and good order of Canadian
society, can guide discretion.51
The Appeal Division has considered the exercise of special relief to
alleviate an anomaly
in the law.52
The Appeal Division has held that the doctrine of res judicata applies
to a decision regarding compassionate and humanitarian considerations.53
Evidence of country conditions and hardship to the applicant in that
country is admissible in assessing compassionate and humanitarian considerations
in section 77 appeals.54
The Supreme Court of Canada, relying on the Convention on the Rights
of the Child, has held that failure to give serious weight and consideration
to the interests of an applicant's children may constitute an unreasonable
exercise of discretion.55
The Federal Court of Appeal56
noted that the Federal Court Trial Division's interpretation of Baker
had been both a "process" approach and a "substantive"
approach. The Federal Court of Appeal clarified the law concerning the
application of Baker by answering the following three certified
questions:
- Question: Is the mere mention of the children sufficient to fulfil
the requirements of Baker ?
Answer: No. The mere mention of the children is not sufficient. The
interests of the children is a factor that must be examined with care
and weighed with other factors. To mention is not to examine and weigh.
- Did Baker create a prima facie presumption that the children's
best interests should prevail, subject only to the gravest countervailing
grounds?
Answer: No. Baker does not create a prima facie presumption
that the children's best interests should prevail, subject only to the
gravest countervailing grounds. In his question, Justice Nadon refers
to the "children's best interests". This expression is ofttimes
encountered in Baker, but to the extent that it could be understood
to mean that the interests of the children are superior to other interests,
it can cause the agent to believe that this factor is, before all others,
more important, which in light of Suresh57
and in the absence of clear legislative or regulatory limitations stating
otherwise, cannot be the case. It would be better to use the expression
"children's interests".
- Is the fact that an applicant under subsection 114(2) of the Immigration
Act faces an outstanding indictment for serious offences in a foreign
country one of those "other considerations" of "other
reasons" mentioned in paragraph 75 in Baker which might
outweigh the children's best interests?"
Answer: I would answer that the Minister can take into account the actions,
past and present, of the person that requests the exception.
In a subsequent case58,
the Federal Court found that the Immigration assessment was superficial.
It found that where important evidence is not mentioned specifically,
a negative inference from the silence may be made. In this case, the Court
held that the sole documentary evidence was not considered and little
was known about the children, their psychological make-up, their position
and needs, and the true impact of the return to Ecuador. It noted that
the Immigration Officer failed to take advantage of the opportunity presented
by the availability of the minor Applicants at the second interview. As
a result, it concluded that the "H&C decision is flawed".
Other cases, while pre-dating Legault59,
may still be instructive. In Anthony60,
the Court found that the Immigration Officer's decision was not "attentive
or sensitive" to the interests of the applicant's Canadian born child
in that the Immigration Officer did not consider the quality of life or
potential hardships the child would face in St. Lucia. In another case,
also an application for permission to apply for permanent residence from
within Canada on humanitarian and compassionate grounds, the Court held
that the failure of the Immigration Officer to take into account the children's
inability to speak the Tamil language is an error61.
In Wu62,
the Court held that while the Immigration Officer properly turned her
mind to the interests of the child, she erred by importing irrelevant
criteria into her analysis. Specifically, the Immigration Officer's extremely
high standard was unreasonable in that the suffering should not have to
be "life-threatening" in order for humanitarian and compassionate
considerations to apply. By judging the child's medical condition according
to the standard of whether it was "life threatening", she effectively
minimized the interests of the child. In other cases, the Court has held
that it is not open to the Immigration Officer to simply leave the issue
of what is in the best interests of the applicants' children to the applicants
to decide.63
9.4. CONSIDERATIONS FOR SPECIAL RELIEF
The Appeal Division has taken account of article 3(1) of the Convention
on the Rights of the Child which provides that in all actions concerning
children, the best interests of the child shall be a primary consideration.64
In addition to the general principles set out above, the following are
some considerations for the exercise of discretionary relief.
9.4.1 Generally Applicable
- the objective in section 3(c) of the Immigration Act, to
facilitate the reunion of the sponsor with close relatives from abroad
- nature and degree of legal impediment
- the relationship of the sponsor to the applicant(s)
- the reason(s) for the sponsorship
- the strength of the relationship between the applicant(s) and the
sponsor65
- the situation of the sponsor in Canada66
- the past conduct of the sponsor67
- the situation of the applicant(s) abroad, including hardship68
- the ease of travel for the sponsor/applicant(s)
- the existence of family or other support for the applicant(s) abroad69
- the existence of family or other support for the sponsor in Canada
- the existence of cultural duties to one another70
- the financial burden on the sponsor from having the applicant(s) abroad
- the financial dependency of the applicant(s) on the sponsor
- the best interests of the child71
9.4.2. Medical Inadmissibility72
- whether there is evidence of an improved medical condition at the
time of the appeal73and
current status of same if not an improvement
- whether there are likely to be inordinate demands on Canadian services
(health/social)74
- the relative availability of health services to the applicant(s),
in Canada and abroad75
- the cost of treatment of the medical condition76
- the availability of family support in Canada77
- the psychological dependencies of the applicant(s) on the sponsor78
- the objective in section 3(i) of the Act, to maintain and protect
the health, safety and good order of Canadian society
9.4.3. Criminal Inadmissibility
- whether there is evidence of rehabilitation79
- whether there is evidence of remorse80
- the seriousness of the offences81
- evidence of good character82
- the length of time since the offence(s) and absence of further trouble
with the law83
- evidence of criminal history, future prospects and risk of future
danger to the public84
9.4.4. Financial Refusals
See the discussion in chapter 1, "Financial Refusals," section
1.6., "Compassionate or Humanitarian Considerations."
- Abdul, Shaheen Hanif v. M.C.I.
(T99-05070), Hoare, September 20, 2000.
- Ahmed, Muhammad Jamail v. M.E.I.
(IAB 85-6238),
Anderson, November 18, 1986.
- Alaguthrai, Suboshini v. M.C.I.
(IAD
T97-01964), Kelley, December 8, 1999.
- Anthony, Lucretia v. M.C.I.
(F.C.T.D.,
no. IMM-1043-01), Campbell,
November 28, 2001; 2001 FCT 1310.
- Au, Chui Wan Fanny v. M.C.I.
(IAD
T94-05868), Muzzi, March 13, 1996.
- Augustine, Thankamma v. M.C.I.
(IAD
V94-00311), Verma, April 26, 1996.
- Bagri, Sharinder Singh v. M.C.I.
(IAD
V96-02022), Borst, May 9, 1999.
- Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R.
817.
- Baldwin, Ellen v. M.E.I.
(IAD
T91-01664), Chu, Arpin, Fatsis, June 30, 1992.
- Bassan, Sukdev v. M.C.I.
(F.C.T.D.,
no. IMM-3751-00), McKeown,
July 3, 2001.
- Bhargava, Usha v. M.C.I.
(IAD
T96-00335), Aterman, June 23, 1997.
- Budhu, Pooran Deonaraine v. M.C.I.
(F.C.T.D.,
no. IMM-272-97), Reed, March
20, 1998.
- Burgon: M.E.I.
v. Burgon, David Ross (F.C.A.,
no. A-17-90), MacGuigan,
Linden, Mahoney (concurring in the result), February 22, 1991. Reported:
Canada (Minister of Employment and Immigration) v. Burgon (1991),
13 Imm.
L.R. (2d) 102 (F.C.A.).
- Chauhan, Gurpreet K. v. M.C.I.
(IAD
T95-06533), Townshend, June 11, 1997.
- Che Tse, David Kwai v. S.S.C.
(F.C.T.D.,
no. IMM-2645-93), McKeown,
December 15, 1993.
- Chirwa v. Canada (Minister of Manpower and Immigration) (1970),
4 I.A.C. 338 (IAB)
- Colterjohn, David Ian v. M.C.I.
(IAD
V96-00808), Jackson, March 11, 1998.
- Dang: M.C.I.
v. Dang, Thi Kim Anh (F.C.T.D.,
no. IMM-3113-99), Dawson,
July 20, 2000.
- Deol, Daljeet Singh v. M.E.I.
(F.C.A.,
no. A-280-90), MacGuigan,
Linden, Robertson, November 27, 1992. Reported: Deol v. Canada (Minister
of Employment and Immigration) (1992), 18 Imm.
L.R. (2d) 1 (F.C.A.).
- Dimacali-Victoria, April Grace Mary v. M.C.I.
(F.C.T.D.,
no. IMM-3323-96), Gibson,
August 29, 1997.
- Doan, Hop Duc v. M.E.I.
(IAB 86-4145),
Eglington, Goodspeed, Vidal, September 15, 1986.
- Dosanjh, Balbir Kaur v. M.C.I.
(IAD
V95-00550), McIsaac, July 31, 1997.
- Dutt, John Ravindra v. M.E.I.
(IAD
V90-01637), Chu, Wlodyka, Tisshaw, July 22, 1991
- Fleurima, Marie Lourdes Margareth v. M.E.I.
(IAB 85-1358),
Tremblay, Durand, Blumer (dissenting), November 28, 1986 9-8
- Fu, Chun-Fai William v. M.C.I.
(IAD
T94-04088), Townshend, March 19, 1996.
- Gill: M.E.I.
v. Gill, Hardeep Kaur (F.C.A.,
no. A-219-90), Heald, Hugessen,
Stone, December 31, 1991.
- Gurunathan, Mutusamy v. M.C.I.
(F.C.T.D.,
no. IMM-6368-00), McKeown,
October 24, 2001; 2001 FCT 1155.
- Hu, Jenkin Ching-Kim v. M.C.I.
(IAD
V92-01452), Ho, March 30, 1995.
- Hylton, Claudine Ruth v. M.E.I.
(IAB 86-9807),
Arkin, Suppa, Ariemma, March 17, 1987.
- Jagpal, Sawandeep Kaur v. M.C.I.
(IAD
V96-00243), Singh, June 15, 1998.
- Jean, Marie Béatrice v. M.E.I.
(IAD
M93-05594), Durand, September 9, 1993.
- Johl, Baljinder Kaur v. M.E.I.
(IAB 85-4006),
Eglington, Arpin, Wright, January 26, 1987.
- Judge, Mahan Singh v. M.E.I.
(IAB 80-6239),
Campbell, Hlady, Howard, March 13, 1981.
- Jugpall, Sukhjeewan Singh v. M.C.I.
(IAD
T98-00716), Aterman, Goodman, Townshend, April 12, 1999.
- Kadri, Darwish Mohamad v. M.C.I.
(IAD
V97-02769), Boscariol, August 4, 1998.
- Khan, Roshina v. M.C.I.
(IAD
V97-03369), Carver, November 13, 1998.
- Kirpal v. Canada (Minister of Citizenship and Immigration),
[1997] 1 F.C. 352
(T.D.)
- Lai, Gia Hung v. M.E.I.
(IAD
V92-01455), Wlodyka, Singh (dissenting in part), Verma, November 12,
1993.
- Lakhdar, Ahmed v. M.C.I.
(IAD
M96-13690), Lamarche, February 13, 1998.
- Lawler, Valerie Ann v. M.C.I.
(IAD
T95-03411), Band, February 23, 1996.
- Legault, Alexander Henri v. M.C.I.
(F.C.A.,
no. A-255-01), Richard, Décary,
Noël, March 25, 2002; 2002 F.C.A.
125.
- Luong, Chinh Van v. M.E.I.
(IAD
V92-01963), Clark, July 5, 1994.
- Lutchman, Umintra v. M.E.I.
(IAB 88-35755),
Ariemma, Townshend, Bell, January 10, 1989. Reported: Lutchman v.
Canada (Minister of Employment and Immigration) (1989), 12 Imm.
L.R. (2d) 224 (IAB).
- Mangat, Parminder Singh v. M.E.I.
(F.C.T.D.,
no. T-153-85), Strayer, February
25, 1985.
- Mendere, Lemlem Tedros v. M.C.I.
(IAD
W97-00061), MacAdam, February 24, 1999.
- Mohamed v. Canada (Minister of Employment and Immigration),
[1986] 3 F.C. 90
(C.A.).
- Mtanios, Johnny Kaissar v. M.C.I.
(IAD
T95-02534), Townshend, May 8, 1996.
- Mulholland, Patricia Grace v. M.C.I.
(F.C.T.D.,
no. IMM-1439-00), Blanchard,
June 6, 2001.
- Mundi v. Canada (Minister of Employment and Immigration),
[1986] 1 F.C. 182
(C.A.)
- Nagularajah, Sathiyaseelan v. M.C.I.
(F.C.T.D.,
no. IMM-3732-98), Sharlow,
July 7, 1999
- Naredo, Fernando Arduengo v. M.C.I.
(F.C.T.D.,
no. IMM-4126-99), Gibson,
August 3, 2000.
- Nawaratnam, Karunakaran v. M.C.I.
(F.C.T.D.,
no. IMM-5686-00), Blais,
August 30, 2001.
- Nyame, Daniel v. M.C.I.
(IAD
T98-09032), Buchanan, December 31, 1999.
- Owens: M.C.I.
v. Owens, Kathleen (F.C.T.D.,
no. IMM-5658-99), Dawson,
October 11, 2000.
- Parel, Belinda v. M.C.I.
(IAD
W97-00112), Boire, June 23, 1999.
- Parmar, Hargurjodh v. M.E.I.
(IAD
T92-03914), Townshend, September 16, 1993.
- Perry, Ivelaw Barrington v. M.C.I.
(IAD
V94-01575), Ho, November 1, 1995.
- Qureshi, Mohammad v. M.C.I.
(F.C.T.D.,
no. IMM-277-00), Evans, August
25, 2000.
- Rupert, Constance Elizabeth v. M.E.I.
(IAB 85-6191),
Mawani, Singh, Ariemma, May 22, 1987.
- Sandhu, Rajwant Singh v. M.C.I.
(F.C.T.D.
no. IMM-2939-99), McKeown,
August 31, 2000.
- Sandhu, Rajwant Singh v. M.C.I.
(IAD
T95-04456), Whist, Boire, Sangmuah, May 26, 1999.
- Saskin, Atif v. M.C.I.
(IAD
T96-03348), Maziarz, January 30, 1998.
- Shah, Syed v. M.E.I.
(F.C.A.,
no. A-617-92), Hugessen,
MacGuigan, Linden, June 24, 1994.
- Singh, Donna Marie v. M.E.I.
(IAB 78-9088),
Weselak, Petrie, Tremblay, August 23, 1978.
- Singh, Nirbhe v. M.C.I.
(IAD
V96-00985), Jackson, December 15, 1997.
- Singh, Ranjit Kaur v. M.C.I.
(IAD
V96-02448), Singh, February 10, 1999.
- Singh, Rosina v. M.E.I.
(IAB 83-6483),
Anderson, Chambers, Voorhees, December 31, 1984.
- Sooknanan, Lochan v. M.C.I.
(F.C.T.D.,
no. IMM-1213-97), Gibson,
February 27, 1998.
- Sotoodeh, Isheo v. M.E.I.
(IAD
T91-00153), Fatsis, Chu (concurring), Bell (dissenting), July 22, 1991.
- Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] S.C.J. no. 3, 2002
S.C.C.
1.
- Taghizadeh-Barazande, Parviz v. M.C.I.
(IAD
T97-00073), D'Ignazio, January 20, 1998.
- Thamber, Avtar Singh v. M.C.I.
(F.C.T.D.,
no. IMM-2407-00), McKeown,
March 12, 2001.
- Tzemanakis v. M.E.I.
(1970), 8 I.A.C. 156 (IAB).
- Valdes, Juan Gonzalo Lasa v. M.E.I.
(IAD
V90-01517), Wlodyka, Chambers, Gillanders, January 21, 1992.
- Vasquez, Maria Del Carmen Mier v. M.C.I.
(F.C.T.D.,
no. IMM-2226-01), Campbell,
April 10, 2002; 2002 FCT 413.
- Warner, Newton George v. M.E.I.
(IAB 85-9421),
Eglington (dissenting), Rotman, Warrington, April 27, 1987.
- Wong, Kam v. M.E.I.
(IAB 83-6438),
Davey, Hlady, Howard, March 7, 1984.
- Wong, Philip Sai Chak v. M.E.I.
(IAD
T91-05637), Chu, Fatsis, Ahara, November 5, 1992.
- Wu, Yu Ying v. M.C.I.
(F.C.T.D.,
no. IMM-5652-00), Campbell,
November 20, 2001; 2001 FCT 1274.
- Zaraket, Zahra v. M.C.I.
(IAD
M99-06909), Fortin, October 10, 2000.
- Reference may be made to other chapters which
have a section on compassionate or humanitarian considerations for more
on the subject.
- Section 77(3)(b) of the Immigration Act
provides:
77.(3) Subject to subsections (3.01), (3.02) and (3.1),
a Canadian citizen or permanent resident who has sponsored an application
for landing that is refused pursuant to subsection (1) may appeal
to the Appeal Division on either or both of the following grounds:
[
]
(b) on the ground that there exist compassionate or humanitarian considerations
that warrant the granting of special relief.
- Warner, Newton George v. M.E.I.
(IAB 85-9421),
Eglington (dissenting), Rotman, Warrington, April 27, 1987. There is
no jurisprudence at the Federal Court level on the difference between
"all the circumstances of the case" and "humanitarian
or compassionate considerations": Nagularajah, Sathiyaseelan
v. M.C.I.
(F.C.T.D.,
no. IMM-3732-98), Sharlow,
July 7, 1999.
- Chirwa v. Canada (Minister of Manpower and
Immigration) (1970), 4 I.A.C. 338 (IAB),
at 350.
- Mundi v. Canada (Minister of Employment and
Immigration), [1986] 1 F.C.
182 (C.A.). Yet
a different view, regarding the applicability of the "clean hands"
doctrine before the Appeal Division, was expressed in Abdul, Shaheen
Hanif v. M.C.I.
(T99-05070), Hoare, September 20, 2000.
- Shah, Syed v. M.E.I.
(F.C.A.,
no. A-617-92), Hugessen,
MacGuigan, Linden, June 24, 1994.
- Dimacali-Victoria, April Grace Mary v. M.C.I.
(F.C.T.D.,
no. IMM-3323-96), Gibson,
August 29, 1997. See Budhu, Pooran Deonaraine v. M.C.I.
(F.C.T.D.,
no. IMM-272-97), Reed, March
20, 1998, where stereotyping and irrelevant considerations led the Federal
Court to set aside the Appeal Division's decision.
- Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R.
817. In the context of an immigration officer's decision involving the
exercise of discretion on compassionate or humanitarian grounds, the
Court found that the officer's comments gave rise to a reasonable apprehension
of bias as they did not disclose the existence of an open mind or the
weighing of the particular circumstances of the case free from stereotypes.
The officer's comments regarding the applicant's being a strain on the
welfare system were based on the fact that the applicant had been diagnosed
with a psychiatric illness and was a single mother with several children.
- Lutchman, Umintra v. M.E.I.
(IAB 88-35755),
Ariemma, Townshend, Bell, January 10, 1989. Reported: Lutchman v.
Canada (Minister of Employment and Immigration) (1989), 12 Imm.
L.R. (2d) 224 (IAB).
- Ibid., at 4-5.
- Kirpal v. Canada (Minister of Citizenship
and Immigration), [1997] 1 F.C.
352 (T.D.).
- Ibid.
- Sandhu, Rajwant Singh v. M.C.I.
(F.C.T.D.
no. IMM-2939-99), McKeown,
August 31, 2000. [Judicial review of T95-04456, Whist, Boire, Sangmuah,
May 26, 1999.]
- These decisions are canvassed in Chauhan,
Gurpreet K. v. M.C.I.
(IAD
T95-06533), Townshend, June 11, 1997.
- Lutchman, supra, footnote 9, at 5.
- Kirpal, supra, footnote 11
- M.C.I.
v. Dang, Thi Kim Anh (F.C.T.D.,
no. IMM-3113-99), Dawson,
July 20, 2000. [Judicial review of IAD
T98-03773, MacAdam, June 4, 1999].
- Chauhan, supra, footnote 14; Bhargava,
Usha v. M.C.I.
(IAD
T96-00335), Aterman, June 23, 1997; Sandhu, Rajwant Singh v. M.C.I.
(IAD
T95-04456), Whist, Boire, Sangmuah, May 26, 1999.
- Kirpal, supra, footnote 11.
- Kirpal, supra, footnote 11.
- Sandhu, supra, footnote 13
- Jugpall, Sukhjeewan Singh v. M.C.I.
(IAD
T98-00716), Aterman, Goodman, Townshend, April 12, 1999, at 9-11; 17-18.
See too M.C.I.
v. Dang, supra, footnote 17 where the panel adopted the reasoning
in Jugpall and the Court found that the panel IAD
did not err in law when it allowed the appeal on H&C grounds.
- Ibid., at 18.
- Ibid.
- M.C.I.
v. Owens, Kathleen (F.C.T.D.,
no. IMM-5658-99), Dawson,
October 11, 2000. [Judicial review of IAD
V98-02014, Carver, November 4, 1999]. Nawaratnam, Karunakaran v.
M.C.I.
(F.C.T.D.,
no. IMM-5686-00), Blais,
August 30, 2001. [Judicial review of IAD
T99-07274, Hoare, September 26, 2000.].
- Ibid.
- Chauhan, supra, footnote 14.
- Chirwa, supra, footnote 4.
- Jugpal l, supra, footnote 22.
- The definition appears in section 2(1) of the
Immigration Regulations, 1978.
- Singh, Donna Marie v. M.E.I.
(IAB 78-9088),
Weselak, Petrie, Tremblay, August 23, 1978.
- Kirpal, supra, footnote 11, at 365-366.
In one case, it was argued, following Kirpal, that the Appeal
Division could grant special relief with respect to some of the applicants,
thereby allowing the sponsor to fulfil her undertaking. The Appeal Division
concluded that Kirpal cannot be interpreted so as to allow
sponsors to circumvent the admissibility requirements of the Act and
Regulations: Dosanjh, Balbir Kaur v. M.C.I.
(IAD
V95-00550), McIsaac, July 31, 1997.
- See, however, Chauhan, supra, footnote
14, where the panel articulated its disagreement with Kirpa l
in this respect.
- One of the rare instances where discretionary
relief was "split" in respect of the applicants was in Jagpal,
Sawandeep Kaur v. M.C.I.
(IAD
V96-00243), Singh, June 15, 1998, where the panel, citing Kirpal
, found discretionary relief was warranted for the sponsor's parents
but not for her brother.
- Mundi, supra, footnote 5.
- Under section 6(1)(a) of the Immigration
Regulations, 1978, a visa officer may issue a visa to each member
of the family class who is admissible as long as their dependants are
also admissible.
- Due to the operation of section 6(1)(a) of the
Immigration Regulations, 1978.
- Mangat, Parminder Singh v. M.E.I.
(F.C.T.D.,
no. T-153-85), Strayer, February
25, 1985.
- Wong, Kam v. M.E.I.
(IAB 83-6438),
Davey, Hlady, Howard, March 7, 1984.
- M.E.I.
v. Gill, Hardeep Kaur (F.C.A.,
no. A-219-90), Heald, Hugessen,
Stone, December 31, 1991, at 6-7.
- Johl, Baljinder Kaur v. M.E.I.
(IAB 85-4006),
Eglington, Arpin, Wright, January 26, 1987.
- Hylton, Claudine Ruth v. M.E.I.
(IAB 86-9807),
Arkin, Suppa, Ariemma, March 17, 1987; see also Valdes, Juan Gonzalo
Lasa v. M.E.I.
(IAD
V90-01517), Wlodyka, Chambers, Gillanders, January 21, 1992. In one
case of the Federal Court of Appeal, Justice Mahoney at page 6 of his
concurring reasons stated, although in obiter : "The circumstances
in which the Board may exercise its discretion under s. 77(3)(b) need
not be extraordinary.": M.E.I.
v. Burgon, David Ross (F.C.A.,
no. A-17-90), MacGuigan,
Linden, Mahoney (concurring in the result), February 22, 1991. Reported:
Canada (Minister of Employment and Immigration) v. Burgon (1991),
13 Imm.
L.R. (2d) 102 (F.C.A.).
This case was commented on in Sotoodeh, Isheo v. M.E.I.
(IAD
T91-00153), Fatsis, Chu (concurring), Bell (dissenting), July 22, 1991.
The obiter statement in Burgon was relied on in granting
special relief in Kadri, Darwish Mohamad v. M.C.I.
(IAD
V97-02769), Boscariol, August 4, 1998, the panel stating at page 5 that
"compassionate considerations need not be extraordinary but can
be as simple as the love between a husband and wife and their desire
to be together". However, in Taghizadeh-Barazande, Parviz v.
M.C.I.
(IAD
T97-00073), D'Ignazio, January 20, 1998, although separation of a husband
and wife was causing them some distress, this alone was held insufficient
to warrant special relief.
- Singh, Rosina v. M.E.I.
(IAB 83-6483),
Anderson, Chambers, Voorhees, December 31, 1984.
- Mohamed v. Canada (Minister of Employment
and Immigration), [1986] 3 F.C.
90 (C.A.).
- Ibid. In Ahmed, Muhammad Jamail
v. M.E.I.
(IAB 85-6238),
Anderson, November 18, 1986, the panel held irrelevant the fact that
if the applicants were granted permanent residence in Canada, their
grandchildren in Pakistan would be deprived of their love and affection.
In Rupert, Constance Elizabeth v. M.E.I.
(IAB 85-6191),
Mawani, Singh, Ariemma, May 22, 1987, the sponsor's willingness to join
her husband abroad was held to be irrelevant since it is reunion in
Canada that is an express objective of the Act. In Bagri, Sharinder
Singh v. M.C.I.
(IAD
V96-02022), Borst, May 9, 1999, the fact that the applicant would be
leaving behind an adult son who was dependent on him was irrelevant
to the exercise of special relief.
- Due to the operation of section 6(1)(a) of the
Immigration Regulations, 1978.
- Fleurima, Marie Lourdes Margareth v. M.E.I.
(IAB 85-1358),
Tremblay, Durand, Blumer (dissenting), November 28, 1986. In another
case, the Appeal Division allowed an appeal for the sponsor's father,
sister and brother on compassionate or humanitarian grounds; the medically
inadmissible mother was to stay behind in India to be cared for by her
son. The mother and father had been living separate lives for 15 years
and the mother did not want to come to Canada: Augustine, Thankamma
v. M.C.I.
(IAD
V94-00311), Verma, April 26, 1996.
- Singh, Nirbhe v. M.C.I.
(IAD
V96-00985), Jackson, December 15, 1997. There was insufficient reason
to grant special relief where there was a physical and emotional dependency
on the applicants on the part of the sponsor's brother who was to be
left behind. See also Singh, Ranjit Kaur v. M.C.I.
(IAD
V96-02448), Singh, February 10, 1999, where the needs of the medically
inadmissible relative were given precedence.
- Khan, Roshina v. M.C.I.
(IAD
V97-03369), Carver, November 13, 1998. In Khan, in relation
to the criminality ground of refusal, rehabilitation and remorse together
with the sponsor's emotional attachment warranted special relief; but
in relation to the financial ground, the same considerations did not
apply and should not be transferred over to this ground. Compassionate
or humanitarian considerations regarding the financial ground were insufficient
to warrant special relief.
- Judge, Mahan Singh v. M.E.I.
(IAB 80-6239),
Campbell, Hlady, Howard, March 13, 1981. However, in Doan, Hop Duc
v. M.E.I.
(IAB 86-4145),
Eglington, Goodspeed, Vidal, September 15, 1986, the proposition that
money considerations could never be humanitarian or compassionate considerations
was rejected.
- Lai, Gia Hung v. M.E.I.
(IAD
V92-01455), Wlodyka, Singh (dissenting in part), Verma, November 12,
1993. It is especially relevant in medical inadmissibility cases such
as Lai.
- Mtanios, Johnny Kaissar v. M.C.I.
(IAD
T95-02534), Townshend, May 8, 1996. The anomaly deprived one set of
Convention refugees from sponsoring their dependants.
- Nyame, Daniel v. M.C.I.
(IAD
T98-09032), Buchanan, December 31, 1999.
- Alaguthrai, Suboshini v. M.C.I.
(IAD
T97-01964), Kelley, December 8, 1999.
- Baker, supra, footnote 8.
- Legault, Alexander Henri v. M.C.I.
(F.C.A.,
no. A-255-01), Richard, Décary,
Noël, March 25, 2002; 2002 F.C.A.
125 [Appeal from (F.C.T.D.,
no. IMM-4742-99), Nadon,
April 11, 2001].
- Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] S.C.J. no. 3,
2002 S.C.C.
1.
- Vasquez, Maria Del Carmen Mier v. M.C.I.
(F.C.T.D.,
no. IMM-2226-01), Campbell,
April 10, 2002; 2002 FCT 413.
- Legault, supra, footnote 56.
- Anthony, Lucretia v. M.C.I.
(F.C.T.D.,
no. IMM-1043-01), Campbell,
November 28, 2001; 2001 FCT 1310. This case arose as an application
for judicial review of an Immigration Officer's refusal of the application
for an exemption under s. 114(2) of the Immigration Act. See
too Bassan, Sukdev v. M.C.I.
(F.C.T.D.,
no. IMM-3751-00), McKeown,
July 3, 2001 and Qureshi, Mohammad v. M.C.I.
(F.C.T.D.,
no. IMM-277-00), Evans, August
25, 2000 wherein the Courts found the considerations to the best interests
of the Canadian born children insufficient.
- Gurunathan, Mutusamy v. M.C.I.
(F.C.T.D.,
no. IMM-6368-00), McKeown,
October 24, 2001; 2001 FCT 1155.
- Wu, Yu Ying v. M.C.I.
(F.C.T.D.,
no. IMM-5652-00), Campbell,
November 20, 2001; 2001 FCT 1274.
- Naredo, Fernando Arduengo v. M.C.I.
(F.C.T.D.,
no. IMM-4126-99), Gibson,
August 3, 2000. Followed in Mulholland, Patricia Grace v. M.C.I.
(F.C.T.D.,
no. IMM-1439-00), Blanchard,
June 6, 2001.
- Mendere, Lemlem Tedros v. M.C.I.
(IAD
W97-00061), MacAdam, February 24, 1999. In assessing compassionate or
humanitarian considerations, the panel concluded that it was not in
the best interests of the applicants to live with the sponsor in her
current circumstances.
- Wong, Philip Sai Chak v. M.E.I.
(IAD
T91-05637), Chu, Fatsis, Ahara, November 5, 1992.
- Jean, Marie Béatrice v. M.E.I.
(IAD
M93-05594), Durand, September 9, 1993. For example, whether the applicant
could help the sponsor by babysitting the children while the sponsor
goes to work.
- La i, supra, footnote 51. For example,
the fact that the sponsor has been on social assistance. In Lawler,
Valerie Ann v. M.C.I.
(IAD
T95-03411), Band, February 23, 1996, the Appeal Division distinguished
Tzemanakis v. M.E.I.
(1970), 8 I.A.C. 156 (IAB),
which the Minister relied on in support of the proposition that persons
who knowingly enter into a relationship (in this case marriage to a
person in an inadmissible class) must abide by the reasonable consequences
of their actions. The approach taken in Tzemanakis, which indicated
that "equity" is an exception to the letter of the law and
that the right to benefit from special relief is predicated on good
faith and the honest and responsible attitude of whoever seeks equity,
is irrelevant. The Appeal Division must exercise its discretionary powers,
not as an exception to some other jurisdiction it has, but as a separate
and distinct power, standing alone.
- Dutt, John Ravindra v. M.E.I.
(IAD
V90-01637), Chu, Wlodyka, Tisshaw, July 22, 1991. See also Parel,
Belinda v. M.C.I.
(IAD
W97-00112), Boire, June 23, 1999, where the sons of the applicant, the
sponsor's mother, provided her with little or no support, her life was
in some danger and there was a close bond between her and the sponsor
warranting special relief; and Saskin, Atif v. M.C.I.
(IAD
T96-03348), Maziarz, January 30, 1998, where traumatic past events and
pending deportation to Bosnia led to the granting of special relief.
- Baldwin, Ellen v. M.E.I.
(IAD
T91-01664), Chu, Arpin, Fatsis, June 30, 1992.
- Sotoodeh, supra, footnote 42.
- Zaraket, Zahra v. M.C.I.
(IAD
M99-06909), Fortin, October 10, 2000.
- See Chapter 3 for full discussion of Medical
Refusals.
- Hu, Jenkin Ching-Kim v. M.C.I.
(IAD
V92-01452), Ho, March 30, 1995.
- Sooknanan, Lochan v. M.C.I.
(F.C.T.D.,
no. IMM-1213-97), Gibson,
February 27, 1998; Dutt, supra, footnote 68.
- Dutt, ibid.
- Valdes, supra, footnote 42; Che
Tse, David Kwai v. S.S.C.
(F.C.T.D.,
no. IMM-2645-93), McKeown,
December 15, 1993.
- Luong, Chinh Van v. M.E.I.
(IAD
V92-01963), Clark, July 5, 1994; Lakhdar, Ahmed v. M.C.I.
(IAD
M96-13690), Lamarche, February 13, 1998; Colterjohn, David Ian v.
M.C.I.
(IAD
V96-00808), Jackson, March 11, 1998.
- Deol, Daljeet Singh v. M.E.I.
(F.C.A.,
no. A-280-90), MacGuigan,
Linden, Robertson, November 27, 1992. Reported: Deol v. Canada (Minister
of Employment and Immigration) (1992), 18 Imm.
L.R. (2d) 1 (F.C.A.).
In Parmar, Hargurjodh v. M.E.I.
(IAD
T92-03914), Townshend, September 16, 1993, the panel distinguished Deol
because the sponsor's conduct did not show the psychological dependency
or bonds of affection mentioned in Deol.
- 79 Perry, Ivelaw
Barrington v. M.C.I.
(IAD
V94-01575), Ho, November 1, 1995.Thamber, Avtar Singh v. M.C.I.
(F.C.T.D.,
no. IMM-2407-00), McKeown,
March 12, 2001.
- Khan, supra, footnote 49.
- Ibid.
- Ibid.
- Au, Chui Wan Fanny v. M.C.I.
(IAD
T94-05868), Muzzi, March 13, 1996; Fu, Chun-Fai William v. M.C.I.
(IAD
T94-04088), Townshend, March 19, 1996.
- Nagularajah, supra, footnote 3. This
decision arose in the context of a removal order appeal so may not exactly
fit the sponsorship context.
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