T-2081-89
Carlos Cabalfin and Cynthia Cabalfin (Plaintiffs)
v.
Minister of Employment and Immigration
(Defendant)
INDEXED AS: CABALFIN V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Joyal J.—Vancouver, May 29 and
30 and November 27; Ottawa, December 19, 1990.
Immigration — Application for permanent residency made
within Canada — Humanitarian or compassionate consider
ations — Backlog clearance program — Policy of excluding
illegal residents present through organized plan or certain
contraventions — Policy invalid as preventing consideration of
all relevant factors — Immigration officer to look at overall
picture, not just at contraventions inherent in illegal residency.
Judicial review — Equitable remedies — Declarations —
Immigration — Policy guidelines excluding those who entered
by organized plan and certain illegal means from consideration
on humanitarian grounds — Policy fettering unduly exercise
of discretion granted by statute.
This was an application for declaratory relief with respect to
the refusal of an immigration officer to deal with applications
for permanent residency made from within Canada.
Carlos Cabalfin, a citizen of the Philippines, came to Canada
in 1985 on a three—month visitor's visa. He overstayed and
obtained employment using a Canadian brother's SIN card. In
1986, his wife, Cynthia Cabalfin came to Canada, with their
children, on a visitor's visa to attend Expo 86. She told the visa
officer in Manila that her husband was working in Saudi
Arabia. Availing themselves of the strong support of relatives
already established in Vancouver, the family went under
ground. By October 1988, Mr. Cabalfin was working with his
father, the family was involved with church and community
groups, and the children were doing well in school. Cabalfin
turned himself in and, on behalf of himself and family, applied
for landed immigrant status while continuing to reside in
Canada.
At that time, there was in place a backlog clearance program
specifically aimed at illegal immigrants de facto residing in
Canada. Under the program, the requirement that immigrants
apply for admission from abroad was dispensed with. The
program was based on the power, granted to the Governor in
Council by the Immigration Act, subsection 114(2), to confer
exemptions because of compassionate or humanitarian con
siderations.
The guidelines issued to immigration officers indicated that
the program applied to persons who have no legal status in
Canada, have not yet come to the attention of the Department,
are resident in fact in Canada and not abroad, have severed
their ties with their home country, and would undergo hardship
if required to leave Canada to apply as permanent residents in
the normal course. Excluded from this quick-fix process were
those who had entered and remained in Canada illegally
through an organized plan, or to whom certain statutory pros
criptions applied, including that of being in Canada by reason
of a material misrepresentation, contrary to paragraph
27(2)(g). In 1990, subsequent to the Yhap case (which dealt
with the undue fettering of the discretion conferred by subsec
tion 114(4)) and to the decision sought to be quashed, new
guidelines were issued removing misrepresentation and an
organized plan as bars to relief on humanitarian grounds.
The immigration officer refused to process plaintiffs' applica
tion on the grounds that the family had entered and remained
in Canada through an organized plan and that Cynthia Cabal-
fin had gotten into Canada by the misrepresentation of a
material fact.
Held, the application should be allowed.
The immigration officer failed to exercise the discretion
conferred by the statute. He believed himself bound, once he
concluded that the applicants were present in Canada because
of an organized plan, to refuse to consider their application. He
failed to consider other facts relevant to the existence of
compassionate or humanitarian considerations, and thereby
made an error going to jurisdiction. The discretion granted by
subsection 114(2) is broad enough to be exercised notwith
standing the existence of an organized plan. Because it prevent
ed consideration of all relevant considerations, the policy was
invalid.
Although the phrase "organized plan" evokes an image of
third party entrepreneurs arranging, for profit, the movement
of large numbers of illegals into Canada, it was open to the
officer to interpret it as including more private arrangements
such as those made by the plaintiffs. To use that as a reason to
exclude the Cabalfins, however, conflicts with another directive
which recognizes that de facto illegals commonly utilize illegal
methods to enter Canada and encourages officers to look at the
overall picture, in reaching a "decision which is fair and
humane". Accordingly, the immigration officer's decision
should be quashed and a declaration granted that applicants
are entitled to a new hearing before a different officer.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44] .
Immigration Act, R.S.C., 1985, c. I-2, ss. 3 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 2), 27(2)(g), 38,
82.1 (as enacted idem, s. 19), 94 (as am. idem, s. 24),
114(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Hui v. Canada (Minister of Employment and Immigra
tion), [1986] 2 F.C. 96; (1986), 18 Admin. L.R. 264; 65
N.R. 69 (C.A.); Johal v. Minister of Employment and
Immigration (1987), 15 F.T.R. 164; 4 Imm. L.R. (2d)
105 (F.C.T.D.); Yhap v. Canada (Minister of Employ
ment and Immigration), [1990] 1 F.C. 722; (1990), 9
Imm. L.R. (2d) 69; 29 F.T.R. 223 (T.D.).
CONSIDERED:
Associated Provincial Picture Houses, Ld. v. Wednes-
bury Corporations, [1948] 1 K.B. 233 (C.A.); Gaffney v.
Minister of Employment and Immigration (1989), 27
F.T.R. 234; 8 Imm. L.R. (2d) 273 (F.C.T.D.); Hajariwa-
la v. Canada (Minister of Employment and Immigra
tion), [1989] 2 F.C. 79; (1988), 34 Admin. L.R. 206; 23
F.T.R. 241; 6 Imm. L.R. (2d) 222 (T.D.); Padfield v.
Minister of Agriculture, Fisheries and Food, [1968] A.C.
997 (H.L.); Robins v. Minister of Employment and
Immigration et al. (1987), 15 F.T.R. 97; 8 Imm. L.R.
(2d) 8 (F.C.T.D.).
REFERRED TO: °
Minister of Employment and Immigration et al. v.
Jiminez-Perez et al., [1984] 2 S.C.R. 565; (1984), 14
D.L.R. (4th) 609; [1985] 1 W.W.R. 577; 9 Admin. L.R.
280; 56 N.R. 215; Singh et al. v. Minister of Employ
ment and Immigration, [1985] 1 S.C.R. 177; (1985), 17
D.L.R. (4th) 422; 12 Admin. L.R. 137; 14 C.R.R. 13; 58
N.R. 1; Sobrie v. Canada (Minister of Employment and
Immigration) (1987), 3 Imm. L.R. (2d) 81 (F.C.T.D.).
AUTHORS CITED
Black's Law Dictionary, 6th ed., St. Paul, Minn.: West
Publishing Co., 1979, "organization".
COUNSEL:
R. Glen Sherman for plaintiffs.
Mitchell Taylor for defendant.
SOLICITORS:
Macintosh, Mair, Riecken & Sherman, Van-
couver, for plaintiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
JoYAL J.: The Court is seized of an action for
declaratory relief to have a ministerial decision
quashed. This is a decision in which the defendant
Minister refused to process the plaintiffs' applica
tions for permanent landing while they continue to
reside in Canada.
The action was instituted shortly after leave to
file an application for prerogative relief was grant
ed by my colleague, Teitelbaum J., pursuant to
section 82.1 of the Immigration Act [R.S.C., 1985,
c. I-2 (as enacted by R.S.C., 1985, (4th Supp.), c.
28, s. 19)].
The plaintiffs' applications were founded on
subsection 114(2) of the Act. This is the section
which deals with compassionate or humanitarian
considerations as grounds to depart from the usual
immigration rules and procedures. Subsection
114(2) is an exceptional remedy which authorizes
the Governor in Council to process permanent visa
applications made by illegal de facto residents,
such as the applicants, without requiring them to
return to their country of origin to obtain immi
grant status in the normal way.
Although provisions involving humanitarian or
compassionate considerations have been historical
ly recognized in our immigration laws, residual or
executive discretion exercisable thereunder has
become much more a current practice in recent
years. This is by reason of specific administrative
programs undertaken by the defendant Minister to
clear the ever-accumulating backlog of illegal de
facto residents in Canada whose status has
remained uncertain over a number of years.
During this time, these illegal residents have often
become established in Canada, have married
Canadian citizens, or have had Canadian children
born to them. Administrative expediency as well as
plainly humane considerations created a need to
set up what has often been called a "quick-fix"
program. That is, if an applicant satisfies an immi
gration officer that he has become well established
in Canada, that in fact if not in law, his residence
is no longer abroad and that he would suffer
hardship if he were required to leave Canada in
order to seek a visa to return to Canada as a legal
permanent resident, his application for permanent
landing while in Canada may be authorized. Such
was the claim of the plaintiffs before an immigra
tion officer appointed for that purpose.
THE FACTS
The applicants, who are husband and wife, are
both citizens of the Philippines. Carlos Cabalfin is
now 40 years old and his wife is 34 years old. They
have two children, a son of 14 years and a daugh
ter of 12 years.
The applicant Carlos Cabalfin came to Canada
in October 1985 on a three-month visitor's visa.
The stated purpose of his visit was to accompany
his ailing father who was returning to Vancouver
after a visit to his homeland. The husband over
stayed his leave, did not report to the authorities
and, in the context of immigration rules and proce
dures, went underground. In so doing, he availed
himself of strong family support. Many members
of his family were already established in Vancou-
ver and enjoyed Canadian citizenship. These
included his father and mother, two brothers, two
sisters, a sister-in-law and a brother-in-law. He
duly obtained employment and, in the absence of a
ministerial work permit, saw fit to use his brother's
SIN card. His earlier jobs were pretty menial but
by sharing expenses with his family, he was well
able to look after himself and his family. He has
continued to do so to this date.
His wife Cynthia and their two children joined
him in Vancouver in June of 1986. The wife had
applied for a visitor's visa for the stated purpose of
visiting Expo 86. In her visa application, she stated
that her husband was residing and employed in
Saudi Arabia. A few weeks after her arrival in
Vancouver and with the assistance of her sister-in-
law, she caused her children to be enrolled in
school for the fall term. And so it happened that
thereafter, the family of four lived together with
the husband's father and mother in the Tatters'
home. The fathers worked, the children attended
school and the wife stayed at home looking after
her mother-in-law who suffers from a diabetic
condition and poor eyesight.
It was early in October 1988, after Carlos
Cabalfin had been a de facto resident in Canada
for some three years, that he reported to the
Vancouver Immigration Centre. He turned himself
in, as it were. His applications, on behalf of him
self and his family, were to be granted landed
immigrant status while continuing to reside in
Canada. He had reason to believe that he came
within the ministerial guidelines set up under the
program and that the record of his residency in
Canada indicated that he and his family had
become firmly established here and that compas
sionate and humanitarian grounds should apply.
The particular facts in this respect, which are
not disputed, were that all but two of Carlos
Cabalfin's family were permanently established in
Vancouver. Of the two remaining brothers, one
was in the United States and the other in the
Philippines. The children were enrolled and doing
well in school. The family had participated in
church and community groups. The applicants
enjoyed the strong support of other family mem
bers. Mr. Cabalfin was working with his father
and doing well. The family had few, if any, re
maining roots left in the Philippines. In fact, their
roots were now firmly planted in Canadian soil.
It therefore appeared to the applicants that not
withstanding their illegal status in Canada, they
could subscribe to the Minister's "quick-fix" pro
gram and remain in Canada pending the process
ing of their immigration applications.
The immigration officer, Mr. Paul Banns,
before whom the original disclosure of the plain
tiffs' status was made on October 4, 1988, took
note of the representation of facts submitted by
Mr. Cabalfin in an affidavit dated that same day.
The immigration officer requested additional
documents relating to passports, report cards on
the children's schooling, tax returns, the family
tree and submissions in support of the applications.
These were filed by the applicants' counsel on
October 14, 1988 and listed some nine salient
points to warrant a favourable consideration of the
applications on humanitarian and compassionate
grounds.
The applications were left in abeyance for many
months to enable the immigration officer to
request from his colleagues in Manila all the infor
mation pertaining to the plaintiffs' original
applications for visitors' visas. When this informa
tion was received, Mr. Banns reconvened the
enquiry for June 8, 1989 and interviewed both Mr.
and Mrs. Cabalfin. Mrs. Cabalfin was faced with
the misrepresentation made in her Manila applica
tion to the effect that her husband at that time was
employed in Saudi Arabia. She admitted to this
misrepresentation. She explained that she acted
out of fear. She felt that disclosure of her hus
band's presence in Vancouver would have seriously
prejudiced her visa application.
At that enquiry, Mr. Banns apparently indicated
to the plaintiffs' counsel that he regarded the
Cabalfins as persons "who entered Canada and
remained in Canada illegally through an organized
plan" and purportedly stated that they were there
by excluded from consideration under the illegal
resident policy.
The whole matter came to a head on July 12,
1989, when Mr. Banns, in deciding not to process
the applications, wrote to the plaintiffs as follows:
July 12, 1989
Mr. & Mrs. Carlos Cabalfin
2376 E. 49th Avenue
Vancouver, B.C.
V5X 1JL
Dear Mr. & Mrs. Cabalfin:
Re: Your Request for Permanent Residence in Canada
This letter refers to your request to have your application for
permanent residence processed from within Canada.
After a careful and sympathetic review of all the circumstances
in your case, a decision has been made not to process your
request. It is felt that insufficient compassionate and humani
tarian grounds exist to warrant special consideration under
illegal defacto resident criteria. The reason for this is that we
are of the opinion that you, your wife and children entered and
remained in Canada illegally through an organized plan and in
addition to your and your children's violations of the Immigra-
tion Act your wife is reportable under Subsection 27(2)(g),
which states: "a person who came into Canada or remains
therein with a false or improperly obtained passport, visa or
other document pertaining to his/her admission or by reason of
any fraudulent or improper means or misrepresentation of any
material fact, whether exercised or made by that person or by
any other person". [Underlining mine.]
Because of this opinion I am required by law to forthwith
submit a report to the Deputy Minister of Immigration or his
delegated representative. This could result in your arrest, an
immigration inquiry and your deportation from Canada.
Should you and your family decide to depart Canada voluntari
ly on or before 12 August 1989, it will be in your best interest
to confirm departure by giving this letter to the Canadian
Immigration Authorities at the port of departure who will
inform me that you and your family have departed Canada.
Immigration Legislation requires that an application for per
manent residence be submitted by the prospective immigrant at
a post abroad. Our refusal to process your application from
within Canada does not affect your right to apply abroad.
It is essential that you submit an application for permanent
residence to a post abroad, failing which we must consider the
matter closed.
Yours truly,
For Area Manager
Metro Vancouver
Counsel for the plaintiffs later applied for
administrative review of the immigration officer's
decision but was unsuccessful. Hence the issue
before me.
THE ISSUE
The basic issue as alleged by plaintiffs' counsel
is that the immigration officer failed to exercise
his discretion in a proper manner and, in particu
lar, that the immigration officer:
(1) concluded that the plaintiffs entered and
remained in Canada pursuant to an organized plan
in the complete absence of evidence which directly
or inferentially supported the said conclusion;
(2) unreasonably interpreted the defendant's
policy governing illegal de facto immigrants con
trary to the plain meaning of the words of the
policy;
(3) improperly applied the policy by considering
irrelevant factors in priority to the compassionate
and humanitarian circumstances of the plaintiffs'
case;
(4) fettered his discretion by rigidly adopting a
narrow aspect of the said policy to the exclusion of
other relevant factors.
THE PLAINTIFFS' CASE
On the basis of the facts before the Court, none
of which are in dispute, plaintiffs' counsel reviewed
at length the judicial principles applicable to the
exercise of statutory discretion.
The first test, counsel submitted, is one of rea
sonableness and he quoted in support the decision
in Associated Provincial Picture Houses, Ld. v.
Wednesbury Corporations, [1948] 1 K.B. 223
(CA.).
Counsel for the plaintiffs further submitted that
the lawful exercise of statutory discretion must be
determined by reference to the enabling statute
and its object and scope in conferring discretionary
authority. Counsel referred in this respect to the
celebrated case of Padfield v. Minister of Agricul
ture, Fisheries and Food, [1968] A.C. 997 (H.L.).
The third argument was that the defendant
Minister's guidelines, referred to in the Immigra
tion Manual as IE 9 (Ex. D-7), have created an
arbitrary and unreasonable distinction between
excluded persons who are in Canada pursuant to
an organized plan and all other kinds of illegal de
facto residents.
As a corollary to the foregoing, counsel argued
that the discretion may be exercised on the basis of
the sufficiency of compassionate or humanitarian
factors but must not be exercised on the basis of
other considerations which have nothing to do with
compassion or humanity.
Other variations of the main theme were argued
by plaintiffs' counsel dealing with the vague and
uncertain expression of "organized plan"; with the
obligation on a decision maker to exclude all
irrelevant considerations in his decision-making
process; and with the immigration officer's adop
tion of a particularly narrow interpretation of the
Minister's guidelines, thereby excluding a more
generic approach to the humanitarian and compas
sionate principles expressed in subsection 114(2)
of the Immigration Act.
THE DEFENDANT'S CASE
The basic position taken by defendant's counsel
was that the impugned decision contains no juris
dictional errors, that the immigration officer con
sidered all relevant facts, that he discounted irrele
vant ones and that his decision was made in
accordance with the facts and the law.
Counsel for the defendant suggested that the
decision is one with which the plaintiffs simply
disagree. This is of course no ground to quash it
and indeed the immigration officer had ample
evidence before him to conclude that there were
insufficient compassionate or humanitarian
grounds to warrant exemption from the usual
immigration process. In arriving at this conclusion,
said counsel, there is no doubt that the immigra
tion officer considered all material facts, including
the plaintiffs' social and economic ties in Canada,
the presence in Canada of family members, the
children's enrolment in a Canadian school and
similar factors.
Furthermore, the immigration officer had a per
fect right to consider the element of deception
which surrounded the plaintiffs' entry into Canada
and their presence here and to conclude that this
was accomplished through an "organized plan", as
that term is used in the guidelines. He was en
titled, according to counsel, to treat the plaintiffs'
obvious intent to circumvent the law and normal
immigration procedure as material to the compas
sionate or humanitarian issue before him.
Finally, argued defendant's counsel, the exercise
of a statutory discretion which is vested in the
immigration officer should not be subject to judi
cial intervention except in the clearest of cases.
Counsel cited in support the decision of this Court
in Robins v. Minister of Employment and Immi
gration et al. (1987), 15 F.T.R. 97 (F.C.T.D.);
Hajariwala v. Canada (Minister of Employment
and Immigration), [1989] 2 F.C. 79 (T.D.); and in
particular, the following comments of the Associ
ate Chief Justice in Gaffney v. Minister of
Employment and Immigration (1989), 27 F.T.R.
234 (F.C.T.D.), at page 240:
Whether I would have reached the same result or not is
irrelevant. Section 18 application are not an appellate review
and in the absence of a denial of natural justice or an error of
law, I cannot interfere with the visa officer's decision.
There was evidence to support the visa officer's assessment,
and I am not satisfied that there was an error of law, of
jurisdiction or a denial of natural justice.
THE GUIDELINES
The guidelines at issue are contained in a docu
ment of some 25 closely typed pages. Until recent
ly, they formed part of the Standard Immigration
Manual and were commonly known as IE 9. I
think it can safely be said from the outset that no
reasonable person would cast a critical eye on the
basic need for guidelines of this nature, which are
meant to assist immigration staff in the exercise of
their discretion. These guidelines help to ensure
some semblance of uniformity and conformity in
the way with which thousands of cases are dealt
and to provide ostensible evidence that a particu
larly harsh or a particularly generous exercise of
discretion in any given case is avoided. They are
intended, as in the application of equitable princi
ples, to fix to some extent "the length of the
Chancellor's foot".
The guidance this document provides to immi
gration officers, however, is not without its risks.
There is always the possibility that the wording or
the sense which may be given to any particular
guideline will be of a nature to fetter one's discre
tion or to invite one to consider extraneous ele
ments or to discard more material ones or to be
misdirected by a particular provision of the guide
lines. In such a case, the application of the guide
lines may be successfully challenged, as we shall
see.
The provisions of the guidelines pertinent to this
case are those dealing with so-called illegal de
facto residents. Article 9.26 1)a) of the guidelines
defines the term as follows:
9.26 1)a) Illegal de facto residents are administratively defined
as those persons who have not previously come to our
attention and who, although they have no legal status
in Canada, have been here so long and are so estab
lished that, in fact if not in law, they have their
residence in Canada and not abroad. Such persons
would have severed their ties with their home coun
try and would undergo hardship if they were
required to leave Canada in order to seek a visa to
return (legally) as permanent residents;
The guidelines then set out three eligibility cri
teria: such persons must be "underground", there
must be a degree of social, financial and cultural
establishment in Canada to the point that Canada
is now their real home, and finally, undue hardship
would be imposed on them or on their families if
they were compelled to leave Canada and to seek
permanent landing in the normal manner.
However, the guidelines then proceed to exclude
certain classes of persons from the benefit of the
quick-fix process. In coming to terms with the
plaintiffs' applications in the present case, the
immigration officer had to contend with article
9.26 3)a) which states that:
9.26 3)a) Persons who entered and remained in Canada illegal
ly through an organized plan and/or who are report-
able under A27(2)(f), (g)(h)(i) or (k) will be exclud
ed from consideration under these guidelines.
Officers should, however, consider whether the
person is described in other parts of IE 9, e.g. is the
person married to a Canadian resident or is he/she a
last remaining family member, before recommending
a direction for inquiry; [Underlining mine.]
This exclusion provision forms the crux of the
present application for prerogative relief and,
according to plaintiffs' counsel, warrants judicial
intervention. To determine whether this is indeed
the case, it is appropriate to first examine current
case law on the subject.
THE CASE LAW
In the case of Hui v. Canada (Minister of
Employment and Immigration), [1986] 2 F.C. 96,
the Federal Court of Appeal had to deal with a
refusal by a visa officer to allow the plaintiff's
application for permanent residence under the
"entrepreneur" category. The visa officer, in his
decision, had stated at page 101 that:
Your background and employment history have been evaluated
and unfortunately you do not meet immigration selection cri
teria as an entrepreneur. This determination is based in part by
[sic] the fact that you have always been an employee and have
never owned, established or operated your own business. The
Minister responsible for Immigration has stated that only
applicants with a proven track record in business are eligible
for selection in this category.
After reviewing the Regulations pertaining to
the entrepreneurial class of immigrants, Stone
J.A., on behalf of the Court, quashed the visa
officer's decision. Relying on the cases of Baldwin
& Francis Ltd. v. Patents Appeal Tribunal,
[1959] A.C. 663 (H.L.) and of Anisminic Ltd. v.
Foreign Compensation Commission, [1969] 2
A.C. 147 (H.L.), His Lordship found that "a
proven track record" expressed as ministerial
policy was not a criterion established under the
pertinent Regulations. In subscribing to that
policy, the visa officer exceeded his jurisdiction.
He was not entitled to introduce into his decision a
requirement not authorized by the language of the
Regulations.
Similarly in Johal v. Minister of Employment
and Immigration (1987), 15 F.T.R. 164
(F.C.T.D.), my colleague Cullen J. also found
grounds to intervene and to quash a decision refus
ing to process a permanent landing application
under the De Facto Illegal Residents Program. His
Lordship found in that case that ministerial guide
lines must be read liberally and generously in the
recognition that applicants have been on the run
for some time and live in constant fear of being
apprehended.
Cullen J. found support for his approach in a
ministerial directive identified as NHQ HULL
CONCEM, dated January 31, 1986 which, on the
subject of misrepresentations, reads as follows [at
page 166]:
«It is also recognized that most persons who are in Canada
illegally have come to this country with the intention of remain
ing permanently, whether they admit it or not. In addition, a
certain amount of illegal activity, such as obtaining a SIN card,
almost always accompanies the attempts of illegals to establish
themselves in Canada. Officers are therefore encouraged to
look at the overall picture when assessing evidence of misrepre-
sentations in order to reach a decision that is fair and humane."
[Cullen J.'s emphasis.]
Another relevant and well-known case is that of
Yhap v. Canada (Minister of Employment and
Immigration), [1990] 1 F.C. 722 (T.D.), which
dealt with the undue fettering of administrative
discretion accorded by subsection 114(2) of the
Immigration Act. It appeared to Associate Chief
Justice Jerome that, notwithstanding any policy
directives or guidelines with respect to any kind of
exemption under section 114 [as am. by R.S.C.,
1985 (4th Supp.), c. 28, s. 29; idem, c. 29, s. 14] of
the Act, the applicant, one of several Chinese
citizens, was entitled to a full and fair review to
determine the existence of humanitarian or com
passionate considerations. After citing the
Supreme Court of Canada decision in Minister of
Employment and Immigration et al. v. Jiminez-
Perez et al., [1984] 2 S.C.R. 565 and after refer
ring to his own decision in Sobrie v. Canada
(Minister of Employment and Immigration)
(1987), 3 Imm. L.R. (2d) 81 (F.C.T.D.), the
Associate Chief Justice concluded at page 738:
Even in a case, therefore, where it is evident that all other
claims and applications advanced by the applicant are doomed
to failure, the applicant's right to consideration on humani
tarian and compassionate grounds may not be unduly
restricted.
Quoting from the Sobrie case, the Associate
Chief Justice added [at page 738]:
Obviously, the purpose behind s. 115(2)['] of the Act is not
merely to repeat the procedure of evaluating an immigrant on
the usual grounds specified in the Act. The intention is to
provide a fresh view of the immigrant's situation from a new
perspective. It follows that for the Minister to fairly consider an
application under this section, he must be able to direct his
mind to what the applicant feels are his humanitarian and
compassionate circumstances. These may have nothing to do
with the facts contained in the file of his previous immigration
proceedings.
As a result of the Yhap judgment, supra, the
defendant Minister immediately brought forward
new guidelines, which were issued on March 20,
1990. They are found in a communiqué from the
' New s. 114(2).
Minister and were filed in evidence under Ex.
D-15. The category of persons called illegal de
facto residents is covered under that document and
the definition of the term is substantially the one
found in the former guidelines. It should be noted,
however, that applicants who have entered and
remained in Canada through an organized plan
are no longer singled out for exclusion. At least the
new guidelines no longer make any specific refer
ence to this particular class of people. It would
therefore appear that the existence of an element
of misrepresentation or of an organized plan is no
longer a bar to a determination of the existence of
humanitarian and compassionate grounds under
section 114 of the Act.
THE FINDINGS
The whole field of judicial review of the exercise
of administrative discretion is itself a matter of
constant judicial review. Although the basic princi
ples set out in decisions such as Padfield, supra,
have now been clearly established, the particular
combination of legal and factual issues before a
court may force it to carefully scrutinize the wider
or narrower limits of judicial intervention. That is,
a wider field of judicial intervention can frustrate
the intention of Parliament which has provided for
administrative discretion and without which the
complex and myriad sectors of public administra
tion would grind to a halt. On the other hand, a
narrower field can lead to an acknowledgment that
the rule of law does not apply to administrative
discretion and that such discretion may more often
be wrongly exercised with impunity.
With respect to the issues before me, which are
admittedly vexing, there is a need, in my view, to
go back to the fundamental principles outlined in
Padfield, supra, and to analyze the whole scope
and purpose of the defendant's program in provid
ing for a subsection 114(2) review of illegal de
facto residents in Canada.
It is acknowledged by the parties that it is a
matter of general principle, as set out in section 9
of the Act, that persons wishing to come to
Canada permanently must make their applications
abroad. As IE 9 succinctly put it, "This require
ment can be considered to be the cornerstone of
Canada's immigration policy".
It is also acknowledged that the impact of that
rule is tempered by other provisions of the statute,
such as section 3, which recognizes the need, inter
alia, "to facilitate the reunion in Canada of
Canadian citizens and permanent residents with
their close relatives from abroad". It is further
tempered by the decision in Singh et al. v. Minis
ter of Employment and Immigration, [1985] 1
S.C.R. 177, in which the Supreme Court of
Canada held that every person physically present
in Canada is entitled to Charter [Canadian Chart
er of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.)] protection. It is again
tempered by executive discretion as in section 38,
and more particularly by a recognition, as in sec
tion 114, that public policy or humanitarian and
compassionate considerations may be considered
by the Governor in Council to facilitate a person's
landing while resident in Canada. Finally, this rule
is tempered by what has been admittedly a liberal
approach to immigration policy in general and by
an equally liberal approach to refugees in
particular:
As I have previously noted in these reasons, the
downside effect of all these constituent elements
has been the accumulation of thousands of persons
in Canada whose status has long remained in
suspense. Administratively, it became impossible
to deal expeditiously with refugee claimants who
were arriving in Canada by the boatload and to
monitor the presence in Canada of thousands of
visitors who had overstayed their leave.
To clear this backlog, the defendant Minister
entered into a series of programs. Refugee claim
ants were offered an opportunity to become per
manently landed in Canada if they could show
that they had become, or had the potential to
become, successfully established in Canada. Illegal
residents of Canada were offered an opportunity to
obtain landing in Canada if they could show suffi
cient humanitarian and compassionate grounds. In
particular, the Minister set out provisions in IE 9
for the processing in Canada of immigration visa
applications for persons categorized as illegal de
facto residents.
These guidelines requested officers to "make a
distinction between persons who are simply long-
term illegals and those who are genuinely de facto
residents" based upon specified eligibility criteria,
which have already been cited above. Finally,
these guidelines excluded from the benefit of the
program, applicants who entered into or remained
in Canada illegally through "an organized plan".
It is this last provision which causes me great
concern because, at first blush, it appears to
unduly fetter an immigration officer's discretion.
That is, an illegal de facto resident who is here in
Canada through an organized plan is apparently
excluded from any further consideration on hu
manitarian and compassionate grounds, a term of
seemingly wide and generic scope.
Furthermore, this provision appears to conflict
with the NHQ HULL CONCEM ministerial directive
dated January 31, 1986, which also dealt with the
de facto illegal residents program and to which my
colleague, Cullen J., made reference in Johal v.
Minister of Employment and Immigration, supra.
There is an express recognition in that directive
that illegal residents are by simple definition, in an
illegal position and that their arrival in Canada
was with the intention of remaining here perma
nently, such that they have almost invariably com
mitted breaches of the Immigration Act from the
beginning of their stay. This recognition, in my
view, prompted Cullen J. in the Johal case to
state, at page 166:
The De Facto Illegal Residents Program provides an oppor
tunity for illegals to come forward to make their case and
probably to gain permanent residence status. I say probably
rather than possibly because Parliament recognized an obvious
problem, the growing number of illegals and an intention to do
something about it — to grant permanent residence status to
the vast majority of illegals. Also, Parliament must have been
aware that the people who chose to come forward sincerely
believed they qualified under the program and most if not all
probably had legal advice before taking this monumental (for
them) step. Naturally, if they didn't qualify action of one kind
or another could be expected to be taken against them leading
to eventual deportation.
To a jaundiced eye, the whole "quick-fix" pro
cess might well be interpreted as the classic invita
tion by the spider to the fly to "come into my
parlour". As was succinctly put by Cullen J. in the
Johal case, supra, an illegal de facto resident who
decides to come out of the cold and report to the
immigration authorities runs the risk of eventual
deportation. While it could be said that such is the
risk which an applicant assumes, it could also be
said that the program constitutes a trap for the
unwary when illegal measures taken to come to
Canada are found by immigration officers to con
stitute an "organized plan".
THE CONCLUSIONS
In light of the foregoing observations, the Court
must come to terms with the main issue, namely, is
there cause for this Court to intervene in the
immigration officer's decision of July 12, 1989?
The key finding in the officer's decision is that
the plaintiffs and their children entered and
remained in Canada through an "organized plan",
an expression not yet judicially defined. While the
term might conjure up images of mass movements
of illegals into Canada through the organized
efforts of entrepreneurial third parties, it could
also include a more private plan where the organi
zation is restricted to that of "two or more persons
having a joint or common interest" (see Black's
Law Dictionary, sixth edition, page 1099).
Therefore, on the evidence before him, I have no
doubt that the immigration officer could have
concluded that the plaintiffs had entered into
Canada "through an organized plan" for the pur
pose of staying here permanently. It is not neces
sary in this regard to recite every particular piece
of evidence upon which the immigration officer
based his conclusion. It is sufficient to say that his
conclusion was one which the evidence could rea
sonably justify, at least in terms of the guidelines
themselves.
It is true that one could reach a different con
clusion as regards the husband's visit to Canada to
accompany his ailing father; or the accommoda
tion provided to the husband by his brother
through the use of the latter's SIN card; or the
fearful state of the wife in representing to Canadi-
an authorities that her husband was in Saudi
Arabia; or the early enrolment of the children in a
Vancouver school through the intervention of the
husband's sister. The point might be made that
this sequence of events does not disclose an
"organized plan" which had its beginnings in the
Philippines when the husband applied for a visi
tor's visa. The evidence might be interpreted to
mean that, if there were an intention to come to
Canada and to go underground, that intention
crystallized into an "organized plan" only after the
wife and children had joined the husband in Van-
couver in June of 1986 when the decision was
taken to enroll the children in school.
In any event, as I have noted earlier, it appears
evident that illegal de facto residents covered by
the Minister's program are statutorily criminalized
under the provisions of section 94 of the Immigra
tion Act [as am. by R.S.C., 1985 (4th Supp.), c.
28, s. 24], which sets out a long list of offences
leading to conviction by indictment or summarily.
As well, in any event, I can imagine only a very
few cases where illegal de facto residents have not
participated to some degree in some kind of organ
ized plan.
The problem in the present case, however, does
not arise from the immigration officer's conclusion
that the plaintiffs came to Canada by way of an
organized plan, but arises from his decision that
there were insufficient humanitarian or compas
sionate grounds to grant the plaintiffs landing
because they had entered Canada through an
organized plan and because the wife had made a
misrepresentation when applying for her visitor's
visa. In my view, the immigration officer con
sidered that participation in an "organized plan"
or the making of a misrepresentation bars con
sideration of the compassionate and humanitarian
elements of a case. The immigration officer felt
bound by the exclusion provision found in the
guidelines with respect to illegal residents coming
to Canada through an organized plan. The officer
was obviously concerned with the possibility that
these applicants fell within the scope of the exclu
sion provision from the outset. This was evidenced
by his determination to obtain information from
authorities in Manila regarding statements made
by the plaintiffs in their applications for visitors'
visas and by his willingness to wait several months
for the results before deciding whether or not he
would permit the plaintiffs to apply for their immi
gration visas from within Canada. Thus, notwith
standing a presumably wide area of enquiry to
determine if sufficient compassionate or humani
tarian grounds existed to grant landing to the
plaintiffs, the immigration officer failed to consid
er these grounds because he concluded that there
was an "organized plan".
There is, of course, no such restriction under
subsection 114(2) of the Act nor, as I view the
total program which speaks of "de facto illegal
residents", can it be said that such a restriction is
warranted. The post- Yhap guidelines do not con
tain this particular exclusion and indeed, as was
found by the Federal Court of Appeal in the Hui
case, supra, respect for or adherence to ministerial
policy which is not founded in a statute or regula
tion constitutes an excess of jurisdiction.
Furthermore, the policy itself, if it could be
found to have legitimacy, conflicts with the NHQ
HULL CONCEM directive which recognized that
illegal activities often accompany the coming to
Canada of de facto illegals but that immigration
officers must nevertheless be encouraged "to look
at the overall picture when assessing evidence of
misrepresentations in order to reach a decision
which is fair and humane". I think that the terms
of this directive apply to the wife's misrepresenta
tion when she applied for her visitor's visa in the
present case, so that neither this misrepresentation
alone nor the finding of an organized plan by the
officer would justify the latter's failure to look at
the overall picture when attempting to reach a fair
and humane decision.
Finally, such an exclusion, in my respectful
opinion, cannot be justified when we remember
that the whole purpose of the programs under
section 114 of the Act is to accord humanitarian
and compassionate considerations to applicants
whose continuing presence in Canada itself is but a
perpetuation or continuation of illegal activity and
who may be said to have repeatedly breached the
various bona fide requirements of the Immigration
Act.
Viewed in that light, there would be room to
fear that the defendant's policy in applying hu
manitarian and compassionate considerations to
illegal de facto residents is a message to the world
that the circumvention of Canada's immigration
laws carries no sanction or that Canada's humane
approach is an attack on the credibility of the
established system. Nevertheless, in my respectful
view, the program must rightfully cope with a
problem the solution to which might often tran
scend the impact of statutory offences which might
otherwise stigmatize the applicants in perpetuity.
It could also be argued that in excluding this
category of applicants, the defendant is lawfully
establishing narrower limits within which discre
tion is to be exercised. I would disagree. As I
earlier stated, it is well for the defendant to issue
guidelines, but these guidelines cannot impose a
policy exclusion on a statutory provision which the
language of that provision will not bear.
These observations are not meant to suggest that
evidence of an organized plan or of questionable
activity on the part of applicants to avoid the rules
are excluded from an immigration officer's con
siderations as to whether sufficient humanitarian
or compassionate grounds exist. In all such cases,
it might be said that the darker side of human
conduct is as material as the more commendable
side. My finding is simply that such evidence
should not and cannot be determinative of the
issue.
In the result, I must conclude that the immigra
tion officer in the present case committed a juris
dictional error. His decision must be quashed.
There shall be judgment to that effect and a
declaration that the applicants are entitled to a
new hcaring of their applications for an exemption
on compassionate or humanitarian considerations.
This hearing will be before a different immigration
officer who is to consider the applications in
accordance with these reasons.
The plaintiffs are entitled to their costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.