A-251-85
Minister of Employment and Immigration (Appli-
cant)
v.
Roselyn Courtney (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. COURTNEY
Court of Appeal, Urie, Stone JJ. and Cowan
D.J.—Toronto, October 30; Ottawa, November
28, 1986.
Immigration — Application for permanent residence from
within Canada — Whether Immigration Appeal Board had
jurisdiction to hear appeal under s. 79(2)(b) of Act
Immigration officer's letter refusing to grant exemption from
requirement immigration visa be obtained outside Canada —
No refusal of sponsored application for landing — Board had
no jurisdiction — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 9, 79, 115(2).
This is an appeal from a decision of the Immigration Appeal
Board granting the application for landing made by the
respondent's mother (Mrs. Smith) on compassionate or hu
manitarian grounds pursuant to paragraph 79(2)(b) of the Act.
Mrs. Smith was in Canada as a visitor. Several months before
her visitor's status expired, she requested consideration as an
applicant for permanent residence from within Canada. An
immigration officer informed Mrs. Smith by letter that: "After
a careful and sympathetic review of all the circumstances
related to your case by a higher authority within the Commis
sion, it has been determined that insufficient humanitarian and
compassionate grounds exist to warrant accepting and process
ing your application from within Canada." The respondent
filed a notice of appeal to the Board pursuant to subsection
79(2) from what was alleged to be a refusal of a sponsored
application for landing. In answer to a preliminary challenge
made by counsel for the applicant, the Board held that it had
jurisdiction as the letter constituted both a refusal of an
application for landing and a refusal of an application to
process a permanent residence application from within Canada.
Counsel for the applicant argued that an application for land
ing cannot be considered until an exemption from the require
ment that an immigration visa be obtained outside Canada has
been granted. The issue is whether the Board had before it a
landing application that could be granted.
Held, the appeal should be allowed and the decision of the
Board set aside.
An examination of the letter shows that it was concerned
only with the question of exemption. While reference to "higher
authority within the Commission" is unclear, it would be wrong
for the Court to assume that the decision not to exempt was not
properly made by the Governor in Council. As there had not
been an application for landing that could be sponsored, the
Board, at that stage, had no power to grant the relief under
paragraph 79(2)(b) which it purported to give.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Minister of Employment and Immigration et al. v.
Jiminez-Perez et al., [1984] 2 S.C.R. 565.
APPLIED:
Jiminez-Perez v. Minister of Employment and Immigra
tion, [1983] 1 F.C. 163.
COUNSEL:
U. Kaczmarczyk for applicant.
Barbara Jackman for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Chiasson, Jackman, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an appeal pursuant to leave
granted by this Court from a decision of the
Immigration Appeal Board (the Board).
The facts briefly stated are these. Gwendolyn
Smith, a Jamaican citizen and mother of the
respondent, entered Canada on or about August
22, 1982 as a visitor. Her visitor's status was
extended to May 30, 1983. On January 14, 1983,
the respondent and Mrs. Smith attended at the
Toronto West Canada Immigration Centre where
Mrs. Smith requested consideration as an appli
cant for permanent residence from within Canada.
The interview was conducted by an immigration
officer on March 8, 1983 at which time both she
and the respondent were interviewed. The Immi
gration Officer received Mrs. Smith's completed
application for landing, undertaking of assistance
for a member of the family class given by the
respondent and an evaluation of guarantors finan
cial circumstances completed by the respondent.
The Immigration Officer by letter dated April 18,
1983 informed Mrs. Smith as follows:
This refers to your request to be considered an applicant for
Permanent Residence in Canada.
After a careful and sympathetic review of all the circumstances
related to your case by a higher authority within the Commis
sion, it has been determined that insufficient humanitarian and
compassionate grounds exist to warrant accepting and process
ing your application from within Canada. Such an application
for Permanent Residence must be made through a visa office
outside of Canada in accordance with Section 9 of the Immi
gration Act, 1976.
Your present visitor status has been extended for a period to
expire on 30 May 1983 and it will not be extended after that
date. You should therefore make arrangements to leave Canada
on or before 30 May 1983.
Please advise us in person of your travel arrangements at least
three days prior to your departure in order that we may arrange
to have your departure verified.
The respondent sponsor filed a notice of appeal
to the Board from the foregoing purported refusal
of a sponsored application for landing, pursuant to
subsection 79(2) of the Immigration Act, 1976
[S.C. 1976-77, c. 52] (the Act). At the hearing
before the Board, counsel for the applicant made a
preliminary challenge to the Board's jurisdiction to
hear the appeal on the ground that there had been
neither an application made pursuant to subsection
115(2) of the Act for an exemption from the
requirement that a visa be obtained before appear
ing at a port of entry nor a decision by the
Governor in Council with respect to the request for
such an exemption. Thus, he said, there could not
have been a refusal of a sponsored application in
accordance with the Act and Regulations since the
exemption had to have been obtained before an
application for landing from within the country,
which is the basis for a sponsored application,
could have been accepted. The Board held that,
the appeal was not premature because the letter
dated April 18, 1983 not only refused the applica
tion for landing but was a letter of refusal of the
application to process the permanent residence
application from within Canada. It found, thus,
that it had jurisdiction and proceeded with the
appeal.
By decision dated June 7, 1984, the Board
allowed the appeal on the ground that there had
been a refusal of the application for landing made
by Mrs. Smith but a basis had been established to
warrant the granting of relief on compassionate or
humanitarian grounds pursuant to paragraph
79(2)(b) of the Act. It is from that decision that
this appeal has been brought.
It was counsel for the applicant's contention that
the Board erred in law in holding that the letter to
Mrs. Smith dated April 18, 1983, the contents of
which the Board found must have been com
municated to the sponsor, constituted a refusal of
an application for landing made pursuant to sec
tion 79 of the Act and that as a result of so finding
the Board exceeded its jurisdiction in making a
finding under subsection 79(2) of the Act.
The relevant sections are as follows:
9. (1) Except in such cases as are prescribed, every immi
grant and visitor shall make an application for and obtain a visa
before he appears at a port of entry.
(2) Every person who makes an application for a visa shall be
assessed by a visa officer for the purpose of determining
whether the person appears to be a person who may be granted
landing or entry, as the case may be.
(3) Every person shall answer truthfully all questions put to
him by a visa officer and shall produce such documentation as
may be required by the visa officer for the purpose of establish
ing that his admission would not be contrary to this Act or the
regulations.
(4) Where a visa officer is satisfied that it would not be
contrary to this Act or the regulations to grant landing or entry,
as the case may be, to a person who has made an application
pursuant to subsection (1), he may issue a visa to that person,
for the purpose of identifying the holder thereof as an immi
grant or visitor, as the case may be, who, in the opinion of the
visa officer, meets the requirements of this Act and the
regulations.
Subsection 79(2) as it read in 1983, follows:
79....
(2) A Canadian citizen who has sponsored an application for
landing that is refused pursuant to subsection (1) may appeal
to the Board on either or both of the following grounds,
namely,
(a) on any ground of appeal that involves a question of law or
fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humani
tarian considerations that warrant the granting of special
relief.
115....
(2) The Governor in Council may by regulation exempt any
person from any regulation made under subsection (1) or
otherwise facilitate the admission of any person where the
Governor in Council is satisfied that the person should be
exempted from such regulation or his admission should be
facilitated for reasons of public policy or due to the existence of
compassionate or humanitarian considerations.
Counsel for both parties agreed that the appli
cant is under a duty imposed by subsection 115(2)
to consider and make a decision upon an applica
tion for an exemption from the provisions of sec
tion 9 on compassionate or humanitarian grounds.
However, applicant's counsel said, a clear request
for exemption is necessary before the duty is
imposed upon the applicant to process such an
application. Such a request, he argued, could not
be implied from the acts of filing an application
for landing from within the country and attending
for an interview with an Immigration Officer in
this country. In his view such an application
cannot lawfully be granted or even received unless
and until an exemption from the requirements of
the Act has been obtained.
Counsel for the respondent, on the other hand,
took the position that when a person attends at an
Immigration office to apply for landing from
within Canada, such person by that action, and by
the nature of the request, is implicitly making an
application for an exemption from the require
ments of section 9 pursuant to subsection 115(2)
of the Act and such person need not specifically
request the exemption. The Immigration Officer
thus has a correlative duty to ensure that such an
application is made to the Governor in Council. In
this case, in counsel's view, when the applicant
refused Mrs. Smith's application for landing from
within Canada, he did so, apparently, without
seeking an exemption from the Governor in Coun
cil under subsection 115(2).
Jiminez-Perez v. Minister of Employment and
Immigration, [1983] 1 F.C. 163, is a decision of
this Court where the issue was stated to be wheth
er the appellant Minister and his officers had a
duty to permit the respondent Jiminez-Perez, to
make an application for landing from within
Canada when he requested that he be exempted,
on compassionate or humanitarian grounds, from
the requirement that a person who seeks admission
to Canada must first have applied for and obtained
an immigration visa outside Canada. At page 170
of the report, Le Dain J. speaking on behalf of the
Court said:
I agree, however, with the contention that the second part of
the authority conferred by subsection 115(2), which is
expressed in the words "or otherwise facilitate the admission of
any person where the Governor in Council is satisfied that ...
his admission should be facilitated for reasons of public policy
or due to the existence of compassionate or humanitarian
considerations", is sufficient to permit an immigrant in a
particular case to be relieved of the requirement of section 9.
The Act does not indicate how the request for exemption
from the requirement of section 9 is to be applied for, nor is
there anything in the record that throws light on the depart
mental practice in this regard, but in my opinion the request is
properly made, as a practical matter, to the local immigration
officials who may be expected to refer it to the Minister with
their recommendation ....
Counsel for the Crown took the position, as I understood his
argument, that there had not been a proper request for exemp
tion, the implication being that such a request must be
addressed in some other manner directly to the Governor in
Council, and that in any event there could not be a duty to
permit an application for landing to be made from within
Canada unless and until such an exemption had been obtained.
As I have indicated, I am of the opinion that administrative
fairness requires that a request for exemption from the require
ment of section 9 be processed by the local immigration offi
cials. I am further of the view that it is not sound to separate
the application for landing from the request for exemption. The
respondent Jiminez-Perez seeks to apply for landing from
within Canada on the basis that he be granted an exemption
from the requirement of section 9 on compassionate or humani
tarian grounds. Since the Act contemplates that admission may
be granted on this basis in particular cases, a prospective
applicant is entitled to an administrative decision upon the
basis of an application, and there is, therefore, a correlative
duty to permit him to make the application. The application,
including the request for exemption and the sponsorship of the
application, must be considered and disposed of by decision,
and not by an anticipatory attempt to avoid a decision because
of its possible effect on the sponsor's right to appeal under
section 79 of the Act.
Based on those passages, therefore, it would
appear superficially that the submissions of coun
sel for the respondent are correct. However, a
perusal of the letter of April 18, 1983 clearly
indicates that the Immigration Officer attempted
to comply with the obligation which this Court in
Jiminez-Perez found to exist. The letter states:
"After a careful and sympathetic review of all the
circumstances related to your case by a higher
authority within the Commission, it has been
determined that insufficient humanitarian and
compassionate grounds exist to warrant accepting
and processing your application from within Cana-
da" (emphasis added). While reference to "higher
authority within the Commission" is puzzling, it is
clear that the question of exemption for compas
sionate and humanitarian reasons was considered
by someone. Since that someone could, under sub
section 115(2), only be the Governor in Council
who is advised by the Commission, it would be
wrong for this Court to assume that the decision
not to exempt was not properly made by the only
person authorized to make it.
This Court's decision in Jiminez-Perez was
appealed to the Supreme Court of Canada. While
the above quoted finding of this Court was not
overturned, the Supreme Court did vary the judg
ment by making the following finding at page 568
of the report which is found in [1984] 2 S.C.R.
565:
But we fail to see how the Immigration Appeal Board could
acquire jurisdiction under s. 79(2)(b) of the Act where there is
as yet no landing application that could be granted. It follows
that there is as yet no landing application to be sponsored. The
application for landing from within Canada and the sponsor
ship application should be considered and adjudicated upon if
and when the exemption sought by the first application is
granted, subject to such rights of appeal as may be given by the
Act. [Emphasis added.]
In my opinion, therefore, the Immigration
Appeal Board incorrectly found that it had juris
diction under paragraph 79(2)(b) of the Act, and
acted thereon, because there had not been a land
ing application that "could be granted" nor was
there a landing application to be sponsored. More
over, if the April 18 letter is interpreted in the only
reasonable way in which it could be interpreted, as
I see it, the request for an exemption had been
made in accordance with the dictum of Le Dain J.
to a "higher authority", which must mean the
Governor in Council who is solely entitled to grant
such an exemption, and had been refused. The
Board, thus, at that stage had no power to grant
the relief under paragraph 79(2)(b) which it pur
ported to give.
L would, therefore, allow the appeal and set
aside the decision of the Immigration Appeal
Board.
STONE J.: I agree.
COWAN D.J.: I agree.
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.