Nueda v. Canada ( Minister of Employment and Immigration )
92-T-1401
Cullen J.
11/6/93
13 pp.
Application to review decision insufficient humanitarian and compassionate grounds to exempt applicant from regulations or facilitate admission -- Applicant coming from Philippines as nanny under domestic workers program -- After two negative assessments required to leave Canada in October 1985 -- Arrest warrant issued in 1986, executed in 1987 when applicant voluntarily called at immigration office -- Detained for several weeks, released -- Unemployed from 1986 until arrest -- On welfare until 1988 -- Employed since birth of daughter in 1988 by L'Hotel in Toronto -- Detailed assessment of case in 1991 to determine whether complied with guidelines for humanitarian and compassionate consideration -- Negative assessment resulting in issue of departure notice -- After further submissions, still negative decision -- Applicant here for 11 to 12 years, gainfully employed at beginning, following birth of child -- Work highly praised -- Victimized by first employers -- Learned English -- Application dismissed -- Everything in file, available to officers -- Officers considering everything -- Neither drawing conclusions based on improper considerations nor fettering discretion, failing to apply post-Yhap [Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (T.D.)] guidelines -- Decision not so patently unreasonable no reasonable person could have made it -- Birth of child one factor to be considered when looking at all of circumstances -- Charter, s. 7 guaranteeing right to life, liberty, security of person and right not to be deprived thereof except in accordance with principles of fundamental justice -- Applicant given ample opportunity to make submissions with respect to humanitarian and compassionate review -- No infringement of Charter, s. 15 guarantee of equality before and under law -- While Court having duty to review common law rules to ensure consistency with Charter, no substantive review of merits of case -- Even where substantive review of decision, Federal Court Act, s. 18.1(3) governing Trial Division's powers on judicial review -- Not for Court to conduct review, but to indicate what is required to make proper decision -- When examining discretionary power of immigration officer on humanitarian and compassionate review, Court under duty to review decision with respect to possible breach of Charter, but redress must come within Court's jurisdiction set out in s. 18.1(3) -- Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(3) (as am. by S.C. 1990, c. 8, s. 5) -- Immigration Act, R.S.C., 1985, c. I-2, s. 114 -- 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], ss. 7, 15.