T-2866-90
Pamela Dawkins (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: DAWKINS V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (TD.)
Trial Division, Cullen J.—Toronto, April 5; Ottawa,
June 4, 1991.
Immigration — Practice — Permanent residence applicant
having been refused under illegal de facto residents policy
— Claiming refugee status — Considered under refugee claim
ants backlog program — Whether immigration officer properly
reconsidered eligibility for illegal de facto residents program
— "Humanitarian and compassionate" grounds objective mat
ters to be interpreted by immigration officer — "Public pol
icy" based on Minister's recommendations to Governor in
Council — Officer not unduly fettering discretion in applying
post-Yhap guidelines — Policy valid — Officer's reviewing file
before hearing not contrary to natural justice — Requirement
of hearing satisfied where submissions received and consid
ered.
This was an application for certiorari to quash the finding
by an immigration officer that there were insufficient grounds
to recommend invoking, under subsection 114(2) of the Immi
gration Act, the humanitarian and compassionate exception to
the requirement under subsection 9(1) that an application for
permanent residence be made from abroad, not from within
Canada.
The applicant entered Canada on a visitor's visa in 1981. On
June 22, 1987, not having previously come to the attention of
the immigration authorities, she reported herself to the Canada
Immigration Centre at Toronto. A report was made to the Dep
uty Minister, pursuant to paragraphs 27(2)(b) and (e), that the
applicant had overstayed her visitor visa and had worked con
trary to the Act. On August 12, 1987, the applicant was inter
viewed and the interviewing officer decided inter alia, not to
recommend her exemption under the illegal de facto residents
policy. Dawkins subsequently applied for refugee status. Pur
suant to the Refugee Claimants Backlog Procedures, she was
interviewed by an immigration officer, who determined that
there were insufficient humanitarian or compassionate grounds
or reasons of public policy to allow her to apply for permanent
residency from within Canada.
Then, in Yhap v. Canada (Minister of Employment and
Immigration), the Court held the guidelines used by immigra
tion officers in determining the existence of humanitarian and
compassionate grounds to be invalid as an undue fetter on the
officers' discretion. The applicant—like others in her posi-
tion—was interviewed anew as to the existence of humanita
rian or compassionate grounds, and again rejected. In prepar
ing for the interview, the officer reviewed her file and decided
not to consider her further under the illegal resident policy at
the interview. The immigration officer took the position that,
while there were situations in which a member of the refugee
backlog could also qualify as an illegal de facto resident, such
a person would not normally so qualify, having in mind the
general criterion that such residents not have come previously
to the attention of immigration authorities. The officer con
cluded that there were no grounds, under either the refugee
claimants backlog program or the illegal de facto residents pro
gram, to recommend exempting the applicant from the require
ments of subsection 9(1).
Held, the application should be dismissed.
It is legitimate for the Minister to indicate through guide
lines what she will recommend to the Governor in Council.
General standards are valuable and necessary for the effective
and consistent exercise of discretion, provided they do not
crystallize into binding and conclusive rules. In the Vidal case,
Strayer J. held that the post- Yhap guidelines do not improperly
fetter the discretion of immigration officers. His Lordship
explained the fundamental difference between the humanita
rian ground and the public policy ground, both of which are
referred to in subsection 114(2). The rationale of Yhap was
based on the proposition that the words "humanitarian and
compassionate" have some objective meaning which each
immigration officer is entitled to interpret. But the term "public
policy" is devoid of objective content. It is not open to an
immigration officer to define "public policy". That is a matter
for the Governor in Council acting upon the recommendations
of the Minister. Here the officer did not mechanically refuse to
consider the applicant, but considered that the applicant did not
meet the requirements of the public policy exemption.
The requirements of procedural fairness may be satisfied by
either an oral hearing or written submissions if the decision-
maker does in substance "hear" the applicant. In this case,
while the immigration officer did consult the file prior to the
hearing, she accepted and considered written submissions from
the applicant's counsel.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 18.
Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1),
27(2)(6),(e), 114(2).
CASES JUDICIALLY CONSIDERED
APPLIED:
Vidal v. Canada (Minister of Employment & Immigration)
(1991), 13 Imm. L.R. (2d) 123 (F.C.T.D.).
CONSIDERED:
Minister of Employment and Immigration et al. v. Jimi-
nez-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.
REFERRED TO:
Yhap v. Canada (Minister of Employment and Immigra
tion), [1990] 1 F.C. 722; (1990), 9 Imm. L.R. (2d) 69; 29
F.T.R. 223 (T.D.); Boulis v. Minister of Manpower and
Immigration, [1974] S.C.R. 875; (1972), 26 D.L.R. (3d)
216; Slaight Communications Inc. v. Davidson, [1989] 1
S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85;
89 CLLC 14,031; 93 N.R. 183; Knight v. Indian Head
School Division No. 19, [1990] 1 S.C.R. 653; (1990), 69
D.L.R. (4th) 489; [1990] 3 W.W.R. 289; 83 Sask. R. 81;
43 Admin. L.R. 157; 30 C.C.E.L. 237; 90 CLLC 14,010;
106 N.R. 17.
COUNSEL:
I. F. Petricone for applicant.
Claire A. le Riche for respondent.
SOLICITORS:
Rexdale Community Information & Legal Ser
vices, Rexdale, Ontario, for applicant.
Deputy Attorney General of Canada, for respon
dent.
The following are the reasons for order rendered in
English by
CULLEN J.: This is an application pursuant to sec
tion 18 of the Federal Court Act [R.S.C., 1985, c. F
7] for an order in the nature of certiorari. The appli
cant seeks an order quashing the decision of an immi
gration officer that there were insufficient humanita
rian and compassionate grounds for the exercise of
the discretion under subsection 114(2) of the Immi
gration Act, R.S.C., 1985, c. I-2, ("the Act"), exempt
ing the applicant from the operation of subsection
9(1) of the Act and allowing her to apply for perma
nent residence from within Canada. The applicant
also seeks an order in the nature of mandamus com
pelling the respondent to grant the applicant another
hearing in which the applicant's claim of humanita
rian and compassionate grounds may be reconsidered
in accordance with the law and the duty of fairness.
FACTS
The applicant entered Canada on a visitor's visa on
June 2, 1981. She remained in Canada after her visa
expired, and has resided in Canada continuously
since her arrival. On June 22, 1987, the applicant vol
untarily reported herself to the Canada Immigration
Centre in Toronto. She had not previously come to
the attention of the immigration authorities. A report
was made on the applicant pursuant to paragraphs
27(2)(b) and (e) of the Act on the grounds that she
had engaged or continued in employment contrary to
the Act, and had remained in Canada after her visitor
status had expired.
On August 12, 1987, the applicant was interviewed
by an immigration officer in order to determine if she
could be exempted from the visa requirements of
subsection 9(1) of the Act, either for reasons of pub
lic policy or for humanitarian and compassionate
grounds. The immigration officer determined that
there were insufficient grounds to warrant a recom
mendation that the applicant be exempted.
The applicant applied for Convention refugee sta
tus on September 15, 1988. As the applicant was in
Canada on January 1, 1989, and had applied for con
sideration as a Convention refugee prior to that date,
she was subject to the refugee claimants backlog pro
cedures. In accordance with these procedures, the
applicant was interviewed a second time on February
2, 1990, to determine if there were sufficient humani
tarian and compassionate grounds or reasons of pub
lic policy to allow the applicant to apply for perma
nent residence status from within Canada. It was
again determined that the applicant did not warrant
exemption from the visa requirements of the Act.
However, as a result of the decision of this Court
in Yhap v. Canada (Minister of Employment and
Immigration), [1990] 1 F.C. 722 (T.D.), in which it
was held that the guidelines existing at the time of the
applicant's second interview for determining the
existence of humanitarian and compassionate
grounds for backlog refugees were an invalid fetter
ing of the discretion of immigration officers under
subsection 114(2) of the Act, the respondent prepared
new guidelines on the exercise of discretion by immi
gration officers. All refugee claimants whose inter
views prior to the Yhap decision resulted in no rec
ommendation for exemption, such as the applicant in
this case, were granted a new interview in accordance
with the new guidelines. On May 2, 1990, the appli
cant was interviewed a third time to determine if suf
ficient humanitarian and compassionate grounds
existed to warrant an exemption from the visa
requirements of the Act.
The applicant's third interview was conducted by
Cathy Ralph, an immigration officer and a unit super
visor with the Toronto refugee backlog. Prior to the
interview, Ms. Ralph reviewed the applicant's file
and noted that at her first interview in August 1987,
the applicant had already been considered under the
illegal de facto resident policy, one of the headings of
the public policy grounds under which an exemption
to visa requirements may be made. As the applicant
had already been reviewed under this branch of the
public policy grounds, she determined that she would
not consider the applicant any further under this pol
icy at the May 2 interview. (Ms. Ralph indicates in
her affidavit, however, that in reaching her final deci
sion, she did not rely merely on the information con
tained in the file, but considered all the relevant con
siderations). The applicant was interviewed for over
an hour by Ms. Ralph, who took notes and accepted
documentary evidence presented by the applicant set
ting out the circumstances which she felt constituted
humanitarian and compassionate grounds.
At the interview, the applicant also presented Ms.
Ralph with a letter from her lawyer, Ian Stewart, in
which he stated that he was unable to attend the inter
view with the applicant, and wished to make written
representations with respect to the applicant's request
for exemption based on humanitarian and compas
sionate grounds. Ms. Ralph telephoned Mr. Stewart
to discuss a date for receipt of the written submis
sions. In the course of their conversation, Mr. Stewart
indicated that he would be making written submis
sions on behalf of the applicant based on the illegal
de facto residents policy contained in the new, post-
Yhap policy guidelines.
The applicant and the respondent dispute the
nature of Ms. Ralph's response to Mr. Stewart's posi
tion. The applicant states that Ms. Ralph said that the
applicant was not eligible to apply under the illegal
de facto residents policy as she had previously come
to the attention of the respondent, pursuant to the eli
gibility requirements in the guidelines. Mr. Stewart in
his affidavit states that he told Ms. Ralph that as the
new guidelines were intended to apply to those per
sons in the refugee backlog, and as these persons in
all likelihood had previously come to the attention of
the respondent, the respondent could not have
intended the eligibility requirements to apply to those
in the backlog. If this were so, the guidelines with
respect to illegal de facto residents would be rendered
superfluous in the context of the backlog. Mr. Stew-
art states in his affidavit that Ms. Ralph responded by
stating that the guidelines were meant to apply to all
applications for humanitarian and compassionate
consideration, not just members of the backlog, and
that persons in the backlog could not be considered
under the illegal de facto resident heading of the ,pub-
lic policy guidelines.
The respondent denies that Ms. Ralph stated flatly
and categorically that the applicant was not eligible
to apply as an illegal de facto resident as she had pre
viously come to the attention of the Minister. Rather,
the respondent's position is that Ms. Ralph's affidavit
evidence is that she said that normally a person in the
backlog would not be eligible to apply as an illegal
de facto resident as that person would have come to
the respondent's attention. The respondent also
denies that Ms. Ralph said that persons in the backlog
could not be considered under the illegal de facto res
ident policy, but rather provided Mr. Stewart with
examples of individuals in the backlog who would be
eligible under the policy. According to Ms. Ralph, if
a member of the backlog had been "underground" for
more than five years, and had come to the attention of
the respondent by claiming refugee status before Jan-
uary 1, 1989, and that person had not been inter
viewed until his/her hearing under the refugee back
log program, that person would be considered under
the illegal de facto resident policy. The respondent
states that Ms. Ralph also advised Mr. Stewart that
she had in the past accepted members of the backlog
under humanitarian and compassionate grounds that
were eligible under the illegal de facto resident pol
icy, and that if someone in the backlog met the public
policy grounds, but not humanitarian and compas
sionate grounds, that person could still be successful
in an interview.
On May 22, 1990, Mr. Stewart delivered his writ
ten submissions with respect to the illegal de facto
resident policy and humanitarian and compassionate
grounds. He also made submissions based on the
long-term commitment to Canada policy. The written
submissions were considered by Ms. Ralph, along
with the results of the applicant's interview. She
decided to refuse the applicant's request for exemp
tion from visa requirements on both humanitarian and
compassionate grounds and for reasons of public pol
icy. She did not consider the applicant under the
long-term commitment to Canada policy, as she con
sidered the applicant to be ineligible because she did
not have valid immigration status. On October 11,
1990, the applicant was given leave to commence this
proceeding challenging the decision of Ms. Ralph
under section 18 of the Federal Court Act.
ISSUES
The parties are essentially in agreement as to the
issues raised in this application. They may be stated
as follows:
1. Whether the respondent fettered its discretion with
respect to members of the refugee claims backlog
pursuant to the post-Yhap policy guidelines, by pre
cluding consideration of the applicant's claim based
on illegal de facto residency, for the reason that the
members of the backlog have previously come to
official immigration attention;
2. Whether the respondent fettered its discretion with
respect to the applicant by not considering the appli
cant's claim based on the illegal de facto residency
policy, for the reason that the applicant had already
been reviewed under that policy;
3. Whether the immigration officer acted unfairly or
unreasonably in her interpretation of the illegal de
facto residents policy and the long-term commitment
to Canada policy.
ANALYSIS
The subject of this application is the lawfulness of
the decision of the immigration officer Cathy Ralph,
acting under subsection 114(2) of the Act and in
accordance with departmental guidelines as she
understood them, refusing to recommend to the Min
ister that the applicant be exempted from the visa
requirements of the Act. The applicant submits that
the discretion of the immigration officer to make this
recommendation was improperly fettered by the pol
icy guidelines of the respondent. Before embarking
on an analysis of the applicant's submissions, how
ever, I first propose to examine the statutory and
administrative framework governing the proceeding
that is the subject of this application.
First, it should be noted that subsection 9(1) of the
Act provides that, except as otherwise prescribed, all
persons seeking admission to Canada must obtain a
visa. Subsection 9(1) reads:
9.(1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a
visa before that person appears at a port of entry.
It is not disputed that the applicant had not complied
with the proper visa requirements in this case. How
ever, subsection 114(2) of the Act provides that the
Governor in Council may, by regulation, exempt any
person from the application of the requirements of
the Act or otherwise facilitate a person's admission to
Canada for either reasons of public policy, or human
itarian and compassionate considerations:
114....
(2) The Governor in Council may by regulation exempt any
person from any regulation made under subsection (1) or oth
erwise facilitate the admission of any person where the Gover
nor in Council is satisfied that the person should be exempted
from that regulation or the person's admission should be facili
tated for reasons of public policy or due to the existence of
compassionate or humanitarian considerations.
While the discretion under subsection 114(2) is
vested in the Governor in Council, in practice the
volume of applications for exemption is such that it is
the immigration officer conducting the interview who
determines whether the requisite humanitarian and
compassionate grounds or public policy reasons exist
that would warrant an exemption. The immigration
officer makes a recommendation to the Minister, who
in turn makes a recommendation to the Governor in
Council. This procedure, a delegation by necessary
implication, was approved in Minister of Employment
and Immigration et al. v. Jiminez-Perez et al., [1984]
2 S.C.R. 565. It was also held in Jiminez-Perez that
an applicant for exemption under subsection 114(2) is
entitled to a full and fair review to determine the
existence of humanitarian and compassionate consid
erations in his/her particular situation.
The discretion of immigration officers to make rec
ommendations for exemptions under this regime is
guided by standards provided by the respondent in
the form of policy guidelines. The guidelines in ques
tion in the case at hand were formulated after the
decision of Jerome A.C.J. in Yhap, supra, that the
previous guidelines concerning humanitarian and
compassionate grounds unduly fettered the discretion
delegated to immigration officers under subsection
114(2). These new guidelines deal with the exercise
of discretion under both humanitarian and compas
sionate grounds, and reasons of public policy. One of
the categories of public policy which may be consid
ered by immigration officers in the exercise of their
discretion is the illegal de facto residents policy out
lined below:
Illegal de facto Residents Policy
Persons who meet the definition of an illegal de facto resident
may be considered from within Canada. 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 established that, in fact if not in law, they have their
residence in Canada and not abroad. These persons will have
gone "underground" and will not have previously come to offi
cial immigration attention, e.g., as refugee claimants, members
of the refugee claims backlog, or persons previously ordered
removed. Such persons would have severed their ties with their
home country and would undergo undue hardship if they were
required to leave Canada in order to seek a visa to return
(legally) as permanent residents. [Emphasis added.]
It is undisputed that the applicant had previously
come to the attention of the respondent, and therefore
did not come within the definition. As noted above,
the position of the applicant is that this definition of
eligibility for the illegal de facto residency exemption
could not have been intended to apply to those in the
backlog.
I would observe in passing at this point that it is
not appropriate for a reviewing court to interfere with
the exercise of a statutorily-granted discretion, such
as the discretion granted to the immigration officer
under subsection 114(2), unless it is clear that the dis
cretion was exercised unreasonably, in bad faith, or
was based on irrelevant considerations. A court
should not in effect substitute its own conclusion on
an issue for that of the administrator vested with the
discretion: Boulis v. Minister of Manpower and
Immigration, [1974] S.C.R. 875, at page 877; Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R.
1038, at page 1076.
Fettering of Respondent's Discretion: Public Policy:
The applicant submits that the respondent has fet
tered the discretion of immigration officers by
preventing them from considering those in the refu
gee backlog as eligible for the same treatment as
those in the illegal de facto resident policy, on the
ground that they had previously come to the attention
of the respondent. In my opinion, however, there has
been no fettering of discretion by the respondent in
the context of this branch of the public policy exemp
tion.
With respect to the guidelines generally, I do not
think it can be seriously disputed that general stan
dards are necessary for the effective exercise of dis
cretion in the circumstances, in order to ensure a cer
tain level of consistency from one decision to
another, and to avoid a patchwork of arbitrary and
haphazard decisions being made across the country.
Uniformity in decision-making, however, must be
balanced against the need to consider individual
cases on their own merits and particular circum
stances. '-Carë must be taken so that any guidelines
formulatéd to structure the use of discretion do not
crystallize into binding and conclusive rules. If the
discretion of the administrator becomes too tightly
circumscribed by guidelines, the flexibility and judg
ment that are an integral part of discretion may be
lost. ;The balance to be struck between the two con
siderations depends, however, on the circumstances
and considerations of a particular decision-making
situation.
Recently, in Vidal v. Canada (Minister of Employ
ment & Immigration) (1991), 13 Imm. L.R. (2d) 123
(F.C.T.D.), Mr. Justice Strayer addressed the above
concerns, and held that post- Yhap policy guidelines
do not improperly fetter the discretion of immigration
officers. He stated (at pages 134-135):
I am satisfied that these guidelines adequately convey to immi
gration officers that, particularly in respect of humanitarian
and compassionate considerations, the guidelines are not to be
regarded as exhaustive and definitive. It is emphasized and re
emphasized that officers are expected to use their best judg
ment. I believe they amount to "general policy" or "rough rules
of thumb", which Jerome A.C.J. recognized as permissible in
the Yhap case. I would go farther than Jerome A.C.J. and say
that such guidelines are not only permissible but highly desira
ble in the circumstances. No doubt when Parliament conferred
the power under subs. 114(2) on the Governor in Council to
make exceptions to the requirements in the Act and the Regu
lations it expected the Governor in Council to exercise that dis
cretion with some sort of consistency throughout the country
and not purely arbitrarily or by whim. More particularly, by
the principles of parliamentary government the Governor in
Council must be responsible to Parliament for the exercise of
his discretion. As the Governor in Council is in the vast major
ity of cases dependent on the recommendations of immigration
officers, as approved by the Minister, for the exercise of his
discretion, it is highly desirable that immigration officers have
some sort of guidance as to what factors the Minister thinks
important in making recommendations to the Governor in
Council in this respect. If the net effect of this is to give more
importance to some factors, without necessarily excluding
other factors, it appears to me to be a sensible way for the Min
ister and the Governor in Council to bring some consistency
into the exercise of powers under subs. 114(2) and to discharge
their political responsibilities to Parliament.
In Vidal, Mr. Justice Strayer was presented with
the same argument advanced by the applicant in this
case, i.e. that the illegal de facto resident policy fet
tered the discretion of immigration officers with
respect to those in the refugee backlog program. Mr.
Justice Strayer stated, at pages 140-141:
Counsel took issue in argument with one of the policies
listed under the heading of "Public Policy Situations" in the
guidelines, namely, the "Illegal De Facto Residents Policy",
which is quoted above. The basis of the argument appeared to
be that it was unreasonable or illegal to prevent immigration
officers from considering those in the Refugee Backlog Pro
gramme as eligible for the same treatment as "Illegal De Facto
Residents".
To the extent that this is an argument that immigration
officers should have the discretion, on public policy grounds,
to treat those who do not come within the administrative defi
nition of "Illegal De Facto Residents" as if they do, I think it is
untenable. In my view, there is a fundamental difference
between humanitarian and compassionate grounds referred to
in subs. 114(2), where Jerome A.C.J has held in the Yhap case
that there can be no fettering of discretion of immigration
officers, and the public policy ground also referred to in subs.
114(2). As I have suggested earlier, the rationale of Yhap is
based on the proposition that the words "humanitarian and
compassionate" have some objective meaning which each
immigration officer is entitled to interpret. But the term "public
policy" has no objective content and must be defined by those
having authority to define public policy. I cannot accept that
every immigration officer has the right and the obligation to
define his own "public policy". That is surely a matter for the
Governor in Council to determine in the exercise of his author
ity under subs. 114(2), and it is perfectly legitimate for the
Minister to indicate through guidelines what she will recom
mend to the Governor in Council as "public policy" (based,
presumably, on what the Governor in Council is likely to
accept). The guidelines may therefore prescribe the situations
in which, for reasons of public policy, the Governor in Council
will by regulation exempt an individual from other regulations
or otherwise facilitate his admission.
By making special arrangements for illegal de facto
residents, the Minister and the Governor in Council are not
taking any rights away from anyone. They are simply identify
ing a certain category of person whose admission may be facil
itated without the necessity of considering whether there exist
humanitarian and compassionate grounds. This in no way fet
ters the discretion of the immigration officers in respect of
determining whether humanitarian and compassionate grounds
exist in respect of those who do not specially qualify as illegal
de facto residents.
I accept the distinction drawn by Strayer J.
between considerations of public policy and humani
tarian and compassionate concerns. In my opinion, he
is correct in stating that concerns of public policy
should not be modified or extended by immigration
officers. As public policy is the province of those
constitutionally entrusted with the power to set pol
icy, allowing immigration officers to make excep
tions to definitions adopted in the formulation of
public policy would amount in effect to the immigra
tion officer usurping the legislative role. Therefore, I
would conclude that the respondent has not fettered
the discretion of immigration officers in the context
of the public policy guidelines.
Fettering of Discretion: The Immigration Officer:
The applicant also submits that the immigration
officer fettered her discretion by refusing to consider
the applicant's claim under the illegal de facto resi
dent policy on the ground that the applicant had been
reviewed under that policy almost three years earlier,
and therefore had previously come to the attention of
the respondent. In my opinion, this position can be
disposed of by referring to the conclusion in Vidal
(supra), that immigration officers do not have the dis
cretion to ignore administrative definitions reached
under public policy grounds. But even if I were to
accept the position of the applicant that immigration
officers do possess such discretion, I find it difficult
to accept their characterization of the actions of the
immigration officer Cathy Ralph. Her affidavit and
the cross-examination thereof indicate that she did
not mechanically refuse to consider the applicant.
The cross-examination evidence reveals that she
advised the applicant through her counsel of situa
tions when a member of the refugee backlog could be
considered under the illegal de facto resident policy,
and that persons in the backlog normally would not
be eligible. In my opinion, the immigration officer
did not fetter her discretion, but rather considered that
the applicant did not meet the requirements that
would qualify her as a member of the backlog to be
eligible as an illegal de facto resident.
Duty to Act Fairly and Reasonably:
The applicant submits that the immigration officer
breached the duty of fairness in determining prior to
the interview that the applicant would not be
reviewed under the illegal de facto resident policy. It
is also submitted that the immigration officer's inter-
pretation of the illegal de facto residency policy was
unreasonable, in that as all members of the backlog
had previously come to the attention of the respon
dent and are therefore excluded from the policy, the
policy is meaningless in the context of the backlog.
The applicant also questions the reasonableness of
the immigration officer's interpretation of the long-
term commitment to Canada policy.
With respect to the duty of fairness, it was held in
Jiminez-Perez, supra, that the respondent is required
to act fairly in considering an application under sub
section 114(2). The content of this duty of fairness,
however, varies and its content must be decided in
the specific context of each case: Knight v. Indian
Head School Division No. 19, [1990] 1 S.C.R. 653, at
page 682. In my opinion, the respondent fulfilled its
duty to act fairly in the circumstances. While the
immigration officer consulted the file prior to the
hearing and noted that the applicant had previously
been reviewed under the illegal de facto resident pol
icy, it is also true that before the final decision was
made, the immigration officer accepted and consid
ered written submissions from the applicant's counsel
with respect to both humanitarian and compassionate
grounds and the illegal de facto residents policy. The
requirements of procedural fairness may be satisfied
by either an oral hearing or written submissions if the
decision-maker does in substance "hear" the appli
cant: Knight, supra, at page 685. The immigration
officer also considered oral submissions from the
applicant and documentary evidence.
With respect to the issue of reasonableness, the
reasonableness of the immigration officer's interpre
tation of the illegal de facto residency guidelines has
been upheld in Vidal, supra. As for the interpretation
of the long-term commitment to Canada policy, the
policy provides that:
Officers may consider sympathetically the situation of long-
term employment authorization holders in valid status who
request processing of their application for permanent resident
status in Canada.
The immigration officer did not consider the appli
cant under this policy, as she did not have valid
immigration status, on the grounds that she remained
in Canada after her visa had expired, and had
engaged in employment in Canada. The applicant
submits that the words "valid status" in the policy
should be read as modifying the expression "long-
term employment authorization", and not as meaning
valid immigration status. In my opinion, the appli
cant's interpretation is not in accordance with the
normal meaning one would give to the word "valid
status" in the context of an immigration policy, and
therefore I prefer the interpretation of the respondent,
and consider it reasonable.
DISPOSITION
In my opinion, the applicant has not established
any grounds for an order in the nature of certiorari,
and accordingly I will dismiss this application with
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.