T-1478-85
Joseph Horbas and Imelda Horbas (Applicants)
v.
Minister of Employment and Immigratioi and
Secretary of State for External Affairs (Respon-
dents)
Trial Division, Strayer J.—Toronto, September 3;
Ottawa, October 22, 1985.
Judicial review — Prerogative writs — Immigration —
Application for certiorari to quash decision rejecting applica
tion for immigrant visa, and for mandamus to require process
ing of permanent residence application — Permanent residence
denied under s. 4(3) of Regulations — No conflict with Chart
er, Bill of Rights or common law rules of fairness — No legal
basis for Court to exercise discretion to grant prerogative writs
delay due to backlog at Immigration Appeal Board notwith
standing — Board better able to resolve matter as important
question of fact i.e. test applied by immigration officer,
unclear — Immigration Regulations, 1978, SOR/78-172, s.
4(3) (as am. by SOR/84-140, s. 1).
Constitutional law — Charter of Rights — Limitation
clause — S. 4(3) of Immigration Regulations, imposing double
test when permanent residence application sponsored by
spouse, reasonable limitation justified in free and democratic
society — S. 4(3) adopted to avoid circumvention of selection
criteria imposed by s. 8 by becoming member of family class
by marriage — Re Ontario Film & Video Appreciation Society
and Ontario Board of Censors (1984), 45 O.R. (2d) 80 (C.A.),
where legislation created no standards, distinguished — S.
4(3) providing two criteria — Immigration Regulations, 1978,
SOR/78-172, ss. 4(3) (as am. by SOR/84-140, s. 1), 8 —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 1.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of association — Right of spouses to
cohabit not absolutely guaranteed under freedom of associa
tion — Public Service Alliance of Canada v. The Queen,
[1984] 2 F.C. 889; 11 D.L.R. (4th) 387 (C.A.) applied —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 2(d) — Immigration Regulations, 1978, SOR/78-
172, s. 4(3) (as am. by SOR/84-140, s. 1).
Constitutional law — Charter of Rights — Life, liberty and
security — S. 4(3) of Regulations not denying liberty to
married couple by preventing cohabitation in Canada — Lib
erty restricted to bodily freedom — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 7.
Constitutional law — Charter of Rights — Criminal process
— Cruel and unusual treatment — Cruel and unusual read
conjunctively — Applicants married knowing wife's right to
join husband depending upon securing visa — Possible to
resolve matter in reasonable time — Canadian Charter of
Rights and Freedoms, being Part I of the Constitution Act,
1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 12
— Immigration Regulations, 1978, SOR/78-172, s. 4(3) (as
am. by SOR/84-140, s. 1).
Constitutional law — Charter of Rights — Equality rights
— S. 4(3) of Regulations not discriminating against persons
whose cultures practice arranged marriages, nor in this par
ticular case — S. 4(3) stating double test: spouse disqualified
only if marriage entered into primarily for purpose of immi
gration and not with intention of residing permanently with
other spouse — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), s. 15 — Immigration
Regulations, 1978, SOR/78-172, s. 4(3) (as am. by SOR/84-
140, s. 1).
Bill of Rights — Right to fair hearing — Application for
permanent residence denied pursuant to s. 4(3) of Regulations
— S. 2(e) of Bill of Rights not applicable as rights of
non-Canadian spouse at issue — Aliens not having right to
enter Canada or to stay here: Prata v. Minister of Manpower
& Immigration, [1976] 1 S.C.R. 376 — Singh et al. v.
Minister of Employment and Immigration, [1985] 1 S.C.R.
177 distinguishing such case from situations where s. 2(e)
applying — Canadian Bill of Rights, R.S.C. 1970, Appendix
III, s. 2(e) — Immigration Regulations, 1978, SOR/78-172, s.
4(3) (as am. by SOR/84-140, s. 1).
Immigration — S. 4(3) of Regulations within regulation-
making authority of Governor in Council to prescribe classes
of persons whose applications for landing may be sponsored by
Canadian citizens under s. 115(1)(b) of Act — Immigration
Act, 1976, S.C. 1976-77, c. 52, s. 115(1)(b),(c) — Immigration
Regulations, 1978, SOR/78-172, s. 4(3) (as am. by SOR/84-
140, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Brar v. Minister of Employment and Immigration,
[1985] 1 F.C. 914 (C.A.); Prata v. Minister of Manpow
er & Immigration, [1976] 1 S.C.R. 376; Singh et al. v.
Minister of Employment and Immigration, [1985] 1
S.C.R. 177; Public Service Alliance of Canada v. The
Queen, [1984] 2 F.C. 889; 11 D.L.R. (4th) 387 (C.A.);
Miller et al. v. The Queen, [1977] 2 S.C.R. 680.
DISTINGUISHED:
Re Ontario Film & Video Appreciation Society and
Ontario Board of Censors (1984), 45 O.R. (2d) 80
(C.A.).
COUNSEL:
K. Zaifman, Barbara Jackman and M.
Schwartz for applicants.
Michael W. Duffy for respondents.
SOLICITORS:
Tadman Gut kin & Yard, Winnipeg, for
applicants.
Chiasson, Jackman, Toronto, agents for
solicitors for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is an application for certiorari
to quash a decision made by officers of the
respondents rejecting an application for an immi
grant visa for the applicant Imelda Horbas spon
sored by her husband the applicant Joseph Horbas,
together with mandamus to require the respon
dents to process said application for permanent
residence in Canada fairly and in accordance with
the law.
The applicant Joseph Horbas is a Canadian
citizen. He became acquainted with the applicant
Imelda Horbas, a resident and citizen of the Phi-
lippines, through correspondence arranged by
members of her family in Canada in early 1984.
He went to the Philippines in September, 1984 and
married Imelda Horbas on September 19, 1984.
He returned to Canada later that month. Mrs.
Horbas apparently applied in Manila in Septem-
ber for permanent residence in Canada and Mr.
Horbas provided the necessary undertaking, as
sponsor, to the Canada Employment and Immigra
tion Commission in Winnipeg in November, 1984.
By letter of December 12, 1984 the Canadian
Embassy in Manila advised Mrs. Horbas that her
application for permanent residence had been
rejected on the ground that she was a spouse as
described in subsection 4(3) of the Regulations
[Immigration Regulations, 1978, SOR/78-172 (as
am. by SOR/84-140, s. 1]. While paragraph
4(1)(a) allows a Canadian citizen to sponsor an
application for landing made by his or her spouse,
subsection 4(3) provides:
4. ...
(3) Paragraph (1)(a) does not apply to a spouse who entered
into the marriage primarily for the purpose of gaining admis
sion to Canada as a member of the family class and not with
the intention of residing permanently with the other spouse.
Various reasons were stated in the letter for the
conclusion which had been reached. On January 9,
1985 Mr. Horbas was advised in writing from the
Canada Immigration Centre in Winnipeg that his
wife's application had been refused and a copy of
the letter sent to her was provided to him. On
January 30, 1985 he filed a notice of appeal of this
decision to the Immigration Appeal Board. Pro
ceedings were commenced in this Court on July 4,
1985.
The respondents object that, as the applicant
Joseph Horbas is a Canadian citizen and has a
right of appeal to the Immigration Appeal Board
by virtue of subsection 79(2) of the Immigration
Act, 1976, S.C. 1976-77 c. 52, prerogative reme
dies ought not to be given by this Court. It is
agreed, however, that this is a matter of discretion
for the Court. The applicants contend that the
discretion should be exercised in their favour
because there is a backlog of appeals in the Immi
gration Appeal Board which may delay the hear
ing of their appeal by from one to two years from
the filing of the notice of appeal. I believe this is a
relevant consideration. If there were a clear issue
of law upon which the matter could be disposed of
by the Court, then I think this could be an appro
priate case for doing so. I have therefore examined
the legal issues raised to see whether, on the
material put before me, there is any basis for
granting either or both of the remedies sought by
the applicants. I have come to the conclusion that
there is not. As the applicants have raised a
number of issues I shall deal with them only
briefly. These issues were canvassed over the
course of some three days of argument involving
this and five other applications with respect to
decisions taken under the Immigration Act, 1976
concerning sponsored spouses.
It was contended that subsection 4(3) of the
Regulations conflicts with section 7 of the Canadi-
an Charter of Rights and Freedoms [being Part I
of the Constitution Act, 1982, Schedule B, Canada
Act, 1982, 1982, c. 11 (U.K.)] because it denies
"liberty" to the married couple by preventing them
from cohabiting in Canada. In my view the term
"liberty" in section 7 must be read in its context
and is restricted to questions of bodily freedom. I
do not think it is a constitutional guarantee of the
right of any Canadian or permanent resident of
Canada to choose anyone in the world as a marital
partner and bring such person to Canada to live
with them. Counsel did not bring to my attention
any decision binding on this Court and clearly
indicating a view to the contrary.
It was contended that there had been a denial in
this case of the right to a fair hearing guaranteed
by paragraph 2(e) of the Canadian Bill of Rights
[R.S.C. 1970, Appendix III]. First, it should be
noted that the decision in question relates to the
eligibility of the non-Canadian spouse in this case,
not that of the sponsor. Therefore it is only her
interests which are in issue. See Brar v. Minister
of Employment and Immigration, [1985] 1 F.C.
914 (C.A.). I do not believe that paragraph 2(e) of
the Canadian Bill of Rights covers her situation.
That paragraph guarantees a "fair hearing" which
is a more precise, and a more demanding, require
ment than the more general "principles of funda
mental justice" referred to in section 7 of the
Charter whose content will vary depending on the
nature of the interests involved. This is no doubt
why the more exigent term "fair hearing" is
associated in paragraph 2(e) of the Canadian Bill
of Rights with the phrase "determination of his
rights and obligations". It has been held that no
alien has a right to enter Canada or to stay here:
see, e.g., Prata v. Minister of Manpower & Immi
gration, [1976] 1 S.C.R. 376, at pages 380-381.
Such a case was distinguished recently by Beetz J.,
Estey and McIntyre JJ. concurring, in Singh et al.
v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177, at page 228, from situations
involving rights and obligations where paragraph
2(e) applies. Therefore I believe that paragraph
2(e) has no relevance to the situation of the appli
cant Imelda Horbas.
It is contended that whether or not the guaran
tees of a fair process provided by section 7 of the
Charter and paragraph 2(e) of the Canadian Bill
of Rights apply in this situation, there was a
common law obligation of fairness which was not
met. That is not apparent to me from the evidence
put before me. It may emerge on appeal to the
Immigration Appeal Board that such was the case,
but in my view the applicants have failed to dis
charge the onus on them to show that the proceed
ings lack fairness. It is obvious from the material
filed by them that Mrs. Horbas was interviewed on
December 7, 1984 and that she was asked a
number of questions concerning matters which
appear to have been important considerations in
the final decision that was taken. It is significant
that the applicants produced no direct evidence
from Mrs. Horbas herself as to what occurred at
this interview. I am therefore unable in these
proceedings to conclude that there was any denial
of fairness.
It is contended that subsection 4(3) of the Regu
lations contravenes paragraph 2(d) of the Charter
by denying "freedom of association". It is said that
freedom of association includes the freedom of a
husband and wife to cohabit. This must be taken
to mean the right to cohabit in Canada as subsec
tion 4(3) in no way precludes them from cohabit
ing abroad. I am to some degree bound in the
interpretation of this paragraph by the decision of
the Federal Court of Appeal in Public Service
Alliance of Canada v. The Queen, [1984] 2 F.C.
889; 11 D.L.R. (4th) 387 (C.A.) where at page
893 F.C.; page 390 D.L.R. Mahoney J., with
whom the other members of the Court agreed,
quoted with approval a decision of the British
Columbia Court of Appeal in which it was said
that:
The freedom to associate carries with it no constitutional
protection of the purposes of the association, or means of
achieving those purposes.
It was held by the Federal Court of Appeal that
collective bargaining is not part of the constitu
tionally guaranteed freedom of association which
does protect the establishment of unions. The right
to collective bargaining is essentially as fundamen
tal to unions as the right to cohabit is to married
couples. But in neither case, in my view, can this
important incident which normally flows from the
initial association be held to be part of that asso
ciation to the extent that it is absolutely guaran
teed by the constitution under the rubric of "free-
dom of association".
It is contended that subsection 4(3) of the Regu
lations is in conflict with section 15 of the Charter,
either on the basis that its general effect is to
discriminate against individuals on the basis of
their national and ethnic origins, or that in this
particular case there was discrimination in its
application. This discrimination flows, it is said,
from the fact that by imposing the test that the
marriage not be entered into primarily for the
purpose of immigration, persons of those cultures
which practice arranged marriages or of those
countries where the prospect of immigration to a
developed country is thought to be a legitimate
consideration in choosing a marriage partner, are
discriminated against. It should first be observed
that the test is a double test: that is, the spouse is
disqualified under subsection 4(3) only if the mar
riage is entered into primarily for the purposé of
gaining admission to Canada and not with the
intention of residing permanently with the other
spouse. There was no significant evidence that the
effect of this section has been predominantly to
discriminate against persons of any particular reli
gion or national or ethnic origin. It may well be
that it bears most heavily on persons coming from
third world countries, but that may be equally
explicable on the basis that pressures to emigrate
from those countries are much greater and the
problem to which subsection 4(3) is addressed is
more acute with respect to sponsored spouses
coming from such countries. As for discrimination
in the particular case in question here, such evi
dence as I have before me does not establish it.
The reasons given in the decision reported in the
letter of December 12, 1984 from the Canadian
Embassy in Manila on their face appear to be
pertinent to the criteria set out in the subsection
and for no improper purpose. Again it may emerge
in the appeal where further evidence may be intro
duced that there was an element of discrimination
of a kind proscribed by section 15 of the Charter,
but it is not apparent in the evidence put before
me.
There was another issue raised in connection
with section 15 of the Charter. It was said that
subsection 4(3) of the Regulations provides no
criteria or standard by which the visa officer or
immigration officer is to be guided. This leaves
him with an unfettered discretion which means
that no rational basis exists for distinguishing
spouses who are eligible for permanent residence
and those who are not. I will deal with this issue
below in relation to section 1 of the Charter.
One further argument was made to invoke the
Charter, namely that the subsection in question
violates section 12 of the Charter by imposing
cruel and unusual treatment, said to be caused by
the long or permanent separations imposed on
married couples. I understand the majority judg
ment in Miller et al. v. The Queen, [1977] 2
S.C.R. 680 to have been that the words "cruel and
unusual" are to be read conjunctively. I am unable
to say that any delay in a decision in matters such
as the present, nor that every separation, must be
viewed as "cruel and unusual". It may be that
extreme cases could arise where subsection 4(3)
would bring about this result. But I cannot say
that the present case is one. The parties married in
the Philippines with full knowledge, it would
appear, that the husband would have to return to
Canada and that whether or not the wife could
later join him would depend on her obtaining an
immigrant visa. Within three months after the
marriage she was advised that she could not. The
husband launched an appeal to the Immigration
Appeal Board on January 30, 1985 a little more
than four months after the wedding. It would
appear that the matter can be resolved within a
not unreasonable time from the date at which the
parties married each other knowing of the uncer
tainties of the situation.
Even if the subsection in question could be said
to infringe on any of the Charter rights referred to
above, I am satisfied that it is justified under
section 1. Counsel for the respondents invoked that
section and submitted argument in support to
gether with a copy of a study conducted by the
Employment and Immigration Commission prior
to the adoption of subsection 4(3) of the Regula
tions. The justification for the Regulation can
fairly readily be seen from a study of the Regula
tions themselves. Normally an immigrant who is
not a member of "the family class" (to which
spouses belong) must satisfy extensive selection
criteria as set out in section 8 of the Regulations.
Section 4 which allows a Canadian citizen or
permanent resident to sponsor a member of the
family class has the effect of relieving such spon
sored member from meeting most of the selection
criteria. It is therefore a great advantage to be
sponsored as a member of the family class. Most
persons within the family class are defined by
blood relationship to the sponsor who is the
Canadian or permanent resident of Canada. Such
blood relationships are matters of fact which
cannot be altered for purposes of immigration. But
spouses are also included within the family class,
and they are of course related to the sponsor by
affinity and not consanguinity. The way is thus left
open for parties to create this relationship through
marriage for the purpose of immigration. This
would provide a relatively simple means for a
person who wishes to circumvent the selection
criteria with which most immigrants must comply
to do so through a form of marriage with a willing
Canadian partner. It is to avoid this kind of cir
cumvention that subsection 4(3) was adopted. I
am satisfied that it is a reasonable limitation justi
fied in a free and democratic society. Nor do I
accept the contention raised by the applicants that
this is not a true limitation prescribed by law
because no standards are created. They invoked
the decision of the Ontario Court of Appeal in Re
Ontario Film & Video Appreciation Society and
Ontario Board of Censors (1984), 45 O.R. (2d)
80. But the two cases are distinguishable. In the
Ontario Film & Video Appreciation Society case
the legislation provided no criteria, simply author
izing the Board "to censor any film". In subsection
4(3) of the Immigration Regulations, 1978 the
visa officer is directed to have regard to two
criteria: first, whether the marriage was entered
into primarily for the purpose of gaining admission
to Canada, and secondly whether the sponsored
spouse has the intention of residing permanently
with the other spouse. This Regulation is legally
binding on the visa officer, unlike the guidelines
considered in the Ontario Film case. Admittedly
the application of these criteria raise difficult
questions of fact, the more so because they involve
the assessment of the intention of the sponsored
spouse. But difficulties of proof should not be
confused with absence of legislative standards, and
questions of intention are by no means rare in
official or judicial decision-making.
Another argument was made that subsection
4(3) of the Regulations was not authorized by the
regulation-making power in the Immigration Act,
1976, and therefore is ultra vires the Governor in
Council. I do not accept this contention. The
Regulation in question is purportedly made by the
Governor in Council under the authority given to
it by paragraphs (b) and (c) of subsection 115(1)
of the Immigration Act, 1976. One need go no
farther than paragraph (b) which authorizes the
Governor in Council to make regulations
115....
(b) prescribing classes of persons whose applications for
landing may be sponsored by Canadian citizens and prescrib
ing classes of persons whose applications for landing may be
sponsored by permanent residents;
I can see no reason why the Governor in Council
cannot exclude from a class of persons who may be
so sponsored those who have entered into marriage
primarily for the purposes of immigration and
without the intention of residing permanently with
the other spouse.
Finally, it was argued that even if subsection
4(3) is valid, the officer in question erroneously
applied it in this case. Particular reliance was put
on the letter to Mrs. Horbas dated December 12,
1984 advising her that her application had not
been approved. In that letter, among the facts
relied on in the making of the decision it is said
that:
... at your interview on December 7, you stated that your
husband is in good health. Yet, in a letter to this office dated
October 8, 1984, your husband advised that he is a "disabled"
person and require your "assistance". When confronted with
this discrepancy you said that you had agreed to marry Mr.
Horbas on the recommendation of your relatives in Canada,
and that you were going to Canada to look after Mr. Horbas.
When questioned about your feelings for Mr. Horbas you
stated that he was kind and helpful. I am of the opinion that
your actions, feelings and motives are more appropriate to a
relationship with a benevolent employer than to a lasting
marital union.
I find this statement somewhat ambiguous and it is
not impossible that it proceeds from a misconcep
tion of the requirements of subsection 4(3). It
must be kept in mind that in order to reject such
an application on the basis of this subsection, it
must be found that there is both a marriage
entered into by the sponsored spouse primarily for
purposes of immigration and lack of intention on
his or her part to live permanently with the other
spouse. While that which precedes the quoted
passage appears adequately directed to the first
question, it is not clear what is being said in the
part quoted. One can draw from it the inference
that the officer believed that the two applicants
herein would live together but not as husband and
wife. The subsection only requires that the spon
sored spouse have the intention of "residing per
manently" with the other spouse. I believe however
that this is the kind of matter which can best be
clarified in an appeal to the Immigration Appeal
Board. As the Federal Court of Appeal pointed out
in the Brar case supra, the appeal process gives
access to all of the evidence, the right to cross-
examine witnesses for the respondent, to put in
evidence and to make submissions. There are
important questions of fact here which fall outside
the scope of judicial review through prerogative
writs and which can be better addressed on appeal,
even though they may be mixed with questions of
law.
I am therefore dismissing the application in its
entirety. As it appears to me that this proceeding
was quite unnecessary, the respondents are entitled
to their costs if they wish to have them.
ORDER
The application is dismissed, with costs to the
respondents if so demanded.
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.