T-925-92
Edna Baluyut (Applicant)
v.
The Minister of Employment and Immigration
and The Secretary of State for External Affairs
(Respondents)
INDEXED AS: BALUYUT V. CANADA (MINISTER OF
EMPLOYMENT AND IMMIGRATION) (T.D.)
Trial Division, McGillis J.—Toronto, August 17 and
19, 1992.
Immigration — Practice — Application to quash refusal to
interview permanent residence applicant without personal
appearance of husband — Husband and children listed as
dependants on application for permanent residence — Appli
cant, citizen of Philippines, residing and working in U.S.A. —
Dependants residing in Philippines — Husband and never
married children required to appear for personal interview at
Consulate in Los Angeles — Husband unable to attend at Los
Angeles due to difficulties obtaining visa — Applicant cannot
afford to travel to Manila and unable to take time off work —
Attended interview alone — After consulting with senior per
sonnel who confirmed letters requiring husband's attendance,
immigration officer refused to interview applicant — General
policy to interview applicants and dependants together, but
guidelines provide for visa officers to use good judgment to
determine whether presence of dependants essential — Appli
cation allowed — Visa officer failed to exercise independent
judgment, thereby fettering discretion — Doing as told to do by
others rather than examining case on its merits — Decision not
undermining departmental guidelines but reinforcing necessity
for visa officers to exercise discretion independently, impar
tially and with regard to facts before them.
Judicial review — Prerogative writs — Certiorari — Visa
officer at Los Angeles refusing to interview permanent resi
dence applicant unless spouse, living in Philippines, attending
with her — Spouse unable to obtain visa to enter U.S.A. —
Visa officer taking directions from Immigration Program Man
ager that policy guidelines must be adhered to — Author cited
as to availability of judicial review where delegate required to
exercise discretion in particular way — Visa officer fettering
exercise of discretion in failing to make independent judgment
— Jurisdictional error resulting in granting of certiorari, man-
damus.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. 1-2.
Immigration Regulations, 1978, SOR/78-172, s. 9.
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Yhap v. Canada (Minister of Employment and Immigra
tion), [1990] 1 F.C. 722; (1990), 9 Imm.L.R. (2d) 243; 34
F.T.R. 26 (T.D.).
AUTHORS CITED
Jones, David Phillip and de Villars, Anne S. Principles of
Administrative Law, Toronto: Carswell Co. Ltd., 1985.
APPLICATION to quash the refusal to interview
an applicant for permanent residence without the per
sonal appearance of her husband and for mandamus
directing immigration officials to interview the appli
cant without the personal appearance of her
dependants. Application allowed.
COUNSEL:
Cecil Rotenberg, Q.C. and Gabriela Ramo for
applicant.
Leena Jaakkimainen for respondents.
SOLICITORS:
Rotenberg & Martinello, Don Mills, Ontario, for
applicant.
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for judgment deliv
ered orally in English by
McGILLIs J.: The applicant Edna Baluyut seeks to
quash a decision by immigration officials who have
refused to interview her in support of her application
for permanent residence in Canada without the per
sonal appearance of her spouse at the interview. She
also seeks an order of mandamus directing officials
of the respondent Ministers to interview her in sup
port of her application for permanent residence with
out the personal appearance of her spouse and
dependants and to process her application. The case
involves a consideration of whether the visa officer
exercised her discretion properly in refusing to con
duct an interview with Mrs. Baluyut in the absence of
her husband.
FACTS
Edna Baluyut is a citizen of the Philippines who
has been living and working as a registered nurse in
California in the United States of America since
1989. Her husband Agustin Baluyut, a civil engineer,
and their two young children continue to live in the
Philippines.
In an application received by the Canadian Consu
late General in Los Angeles, California on April 29,
1991, Mrs. Baluyut applied as principal applicant for
permanent residence in Canada with her husband and
children listed as dependants. Mrs. Baluyut signed
her own application and that of her husband.
By letter dated July 22, 1991, the Canadian Consu
late in Los Angeles notified Mrs. Baluyut that she
would be required to attend a personal interview on
January 29, 1992 at its office. The purpose of the
interview would be to determine her admissibility
under immigration regulations and to provide coun
selling regarding working and living in Canada. The
letter also required Mrs. Baluyut's spouse and any
never married children age 18 or over who would be
accompanying her to Canada to appear with her on
that date.
Shortly thereafter, Mrs. Baluyut advised the Cana-
dian Consulate through her counsel that her husband
would be unable to attend the interview in Los Ange-
les. She stated that he would have difficulty obtaining
a visa to the United States of America as her applica
tion for an H-1 visa was pending at the Immigration
Office in San Francisco. Her counsel suggested to the
Canadian Consulate in a letter dated August 30, 1991
that Mr. Baluyut be interviewed separately at the
Canadian Embassy in Manila in the Philippines.
There was no response to this suggestion. Between
that date and January 1992, counsel wrote on several
other occasions requesting a response to the earlier
letter. On January 16, 1992, the Canadian Consulate
in Los Angeles finally rejected the earlier suggestion
that Mr. Baluyut be interviewed separately in Manila
and insisted on interviewing both Mr. and Mrs.
Baluyut in Los Angeles on the scheduled date.
On January 29, 1992, Mrs. Baluyut attended at the
Canadian Consulate in Los Angeles for the interview,
unaccompanied by her husband. The visa officer
assigned to deal with the case, Irma Roa, explained to
Mrs. Baluyut that she would not be able to proceed
with the interview. Mrs. Baluyut then conveyed the
views of her counsel to Mrs. Roa and also stated that
she was to refuse to leave until she was interviewed
or her lawyer was contacted. Mrs. Roa spoke to the
Vice Consul who confirmed that the attendance of the
spouse was required. Mrs. Roa advised Mrs. Baluyut
of this and told her that the file could be transferred
to Manila or the interview could be rescheduled to
give her spouse time to travel to Los Angeles. Mrs.
Roa further stated that she would be unable to inter
view Mrs. Baluyut unless her spouse accompanied
her. Mrs. Baluyut stated that this would be a hardship
for her as she did not have the funds to travel to
Manila and her spouse could not obtain a visa for the
United States. Mrs. Roa then spoke to John Corning,
the Consul and Program Manager for Immigration
and Consular Affairs. He confirmed to Mrs. Roa that
the attendance of Mr. Baluyut was required and that
the instructions provided in the interview appoint
ment letter of July 22, 1991 and the subsequent letter
to counsel on January 16, 1992 were to be main
tained. Mrs. Roa so informed Mrs. Baluyut who then
left the Consulate.
Mrs. Baluyut has always maintained that she can
not leave the United States to join her husband for a
joint interview at the Canadian Embassy in Manila.
In support of her refusal to go back to Manila, she
has either stated that she would lose her job as a
nurse in the United States if she left for a period of
time or that she cannot afford the trip. Mr. Baluyut
has always been and continues to be prepared to
attend an interview at the Canadian Embassy in
Manila.
Under applicable policies adopted by the Depart
ment of Employment and Immigration, it is not gen-
eral practice to interview dependants of a principal
applicant for permanent residence at another mission.
Under section 1.07 of the Selection and Control Man
ual, as a general rule, non-resident applicants and
their dependants are to be dealt with in entirety by the
processing post. Any role by the post in the country
of normal residence is to be kept to a minimum.
However, section 1.57(3)(a)(i) of the Manual pro
vides that, while it is desirable that dependants also
be available for an interview, "visa officers will use
their good judgment to determine whether the pres
ence of dependants is essential to processing the
application and rendering the appropriate selection
decision."
ISSUES
i) Whether the Canadian Consulate is entitled by
law to require the personal attendance of the principal
applicant's spouse at the interview of the principal
applicant;
ii) whether the general policy of the Department of
Employment and Immigration regarding personal
attendance of the principal applicant's spouse at the
interview of the principal applicant fettered the dis
cretion of the visa officer under section 9 of the
Immigration Regulations, 1978 [SOR/78-172]; and,
iii) whether the visa officer, Irma Roa, exercised
her discretion properly in refusing to proceed with
the interview in the absence of the spouse of
Mrs. Baluyut.
POSITION OF APPLICANT MRS. BALUYUT
Counsel for Mrs. Baluyut submits that the visa
officer was required by law to interview her and had
no discretion to withhold the interview. The visa
officer is not entitled by law to require the personal
attendance of the husband of Mrs. Baluyut at her
interview in Los Angeles because the Immigration
Act [R.S.C., 1985, c. I-2] and Regulations are silent
regarding attendance of a dependant at the personal
assessment of the main applicant. Furthermore, the
personal attendance of the spouse of the principal
applicant at the interview is not part of the personal
assessment process as prescribed by immigration leg
islation. In the event that the policy in the Selection
and Control Manual applies to Mrs. Baluyut, it
unnecessarily narrows her rights and constitutes a
direction that cannot have the force and effect of law.
In any event, Mrs. Baluyut was dealt with unfairly by
the visa officer and judicial review remedies should
be granted.
POSITION OF RESPONDENT MINISTERS
Counsel for the respondent Ministers submits that
in order to determine if the principal applicant is a
member of an inadmissible class, her spouse must
attend her interview. The relationship of the principal
applicant and her dependants must be confirmed and
an assessment must be made of the admissibility of
the dependants into Canada. In order to do so, both
the principal applicant and her accompanying
dependants must be interviewed on the same date, at
the same processing mission and at the same time.
Furthermore, the Selection and Control Manual pro
vides general guidelines for processing such applica
tions. According to these guidelines, the decision of
the visa officer as to whether or not an applicant and
dependant spouse ought to be interviewed personally
for eligibility and admissibility considerations is dis
cretionary. The decision of the visa officer to issue a
visa is an administrative decision governed by policy
guidelines and is not subject to judicial review. The
test is whether the officials considered her claim and
gave her a chance to respond. In this case, the visa
officer met with Mrs. Baluyut, considered her request
and consulted with the Vice Consul. She returned and
informed Mrs. Baluyut of the position. When Mrs.
Baluyut raised other concerns, the visa officer then
consulted with the Consul Mr. Corning and made her
decision that no unusual circumstances existed to jus
tify a separate interview in Manila of the spouse. The
matter should not be subject to judicial review.
ANALYSIS
In view of the facts of this case, it is not necessary
for me to decide whether the personal attendance of
the spouse can be required at law at the interview of
the principal applicant or whether the policies of the
Department of Employment and Immigration fetter
the discretion of the visa officer. Assuming that the
personal attendance of the spouse can be required at
law at the interview of the principal applicant, the
only issue which must be decided in this case is
whether the visa officer Mrs. Roa exercised her dis
cretion properly in refusing to proceed with the inter
view in the absence of the spouse of Mrs. Baluyut.
Counsel agreed in this case that, under the statutory
scheme in the Immigration Act and Regulations, the
decision in question had to be taken by the visa
officer Irma Roa.
The importance of the manner in which officials
exercise their discretion is expressed in Principles of
Administrative Law by D. P. Jones and A. S. de Vil-
lars (Toronto: Carswell, 1985), at page 137 when
they indicate that "[e]ach case should be looked at
individually, on its own merits. Anything, therefore,
which requires a delegate to exercise his discretion in
a particular way may illegally limit the ambit of his
power. A delegate who thus fetters his discretion
commits a jurisdictional error which is capable of
judicial review." This general principle was adopted
in Yhap v. Canada (Minister of Employment and
Immigration), [1990] 1 F.C. 722 (T.D.).
A review of the facts of this case demonstrates that
Mrs. Roa failed to exercise any independent judg
ment in the matter and thereby fettered the exercise
of her discretion. When confronted with the explana
tion proffered by Mrs. Baluyut, on the date scheduled
for the interview, Mrs. Roa consulted with senior
personnel at the Consulate and did exactly what she
was told by them to do. To paraphrase the words of
Mr. Corning, Mrs. Roa was told that the attendance
of Mr. Baluyut was required and that the instructions
in the interview appointment letter and the subse
quent letter to counsel were to be maintained. Mrs.
Roa acted on these very explicit directions from
Mr. Corning and refused to interview Mrs. Baluyut.
In doing so, she did not examine the case of Mrs.
Baluyut on its own merits.
DECISION
I therefore find that Mrs. Roa failed to exercise her
own discretion, thereby committing a jurisdictional
error which is subject to judicial review. Accord
ingly, the application to quash the refusal by immi
gration officials to interview Mrs. Baluyut is granted.
An order of mandamus will issue directing officials
at the Canadian Consulate in Los Angeles to inter
view her in support of her application for permanent
residence without the personal appearance of her
spouse and dependants and to process her applica
tion. A further order of mandamus will issue
directing that her file then be transferred to the Cana-
dian Embassy in Manila and that any necessary inter
views with her spouse or dependants he conducted at
that location.
An affidavit by Brian Davis, a Foreign Service
Officer in the Department of External Affairs, states
that documents originating in the Philippines often
prove to be unreliable. I have considered this evi
dence but have attributed little, if any, weight to it in
this case in light of the consistently expressed desire
of Mr. Baluyut to be interviewed personally in
Manila in support of the application made by his
wife. Furthermore, there has been no evidence led
whatsoever to suggest even remotely that the infor
mation provided in the application of Mrs. Baluyut or
the application of her dependant husband is unrelia
ble or inaccurate. Before closing, I should note that
counsel for the respondent Ministers cautioned that a
decision favourable to Mrs. Baluyut could have the
effect of eroding the very sensible policy guidelines
of the Department of Employment and Immigration
which stress the desirability of interviewing principal
applicants and their dependants together. This deci
sion in no way undermines the existing policies, but
rather reinforces the need for visa officers to exercise
their discretion independently, impartially and with
regard to the facts that are before them. Costs are
awarded to the applicant on a party and party basis.
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.