I found the smoking gun of humanitarian and compassionate decision-making in immigration law. Of all the unlikely places, I found it in Robarts Library at the University of Toronto. It is the only place that has it, I’m pretty sure.
I found it in a dust-encrusted binder that has seen better days. It is in one of the first versions of the immigration guidelines/manual, published sometime in 1986, following the 1984 Supreme Court of Canada decision in
Minister of Employment and Immigration v. Jiminez-Perez.
In those days, the manuals were detailed and highly useful in understanding immigration policy and why immigration officers do what they do. Now, the manuals are bare recitations of vague concepts, difficult to find and of little value. The minister realized, it appears, that since
Baker v. Canada (Minister of Citizenship and Immigration), the manuals were the standard of a reasonable decision and we could hold them to it, or hold it against them. So, what better way to permit unreviewable decisions than to remove a list of factors officers should be considering and replace it with white space?
So, getting back to the smoking gun . . .
In virtually each and every humanitarian and compassionate grounds case under s. 25 of the Immigration and Refugee Protection Act (formerly s. 115(2), then 114(2) of previous enactments) the decision-maker recites this mantra (in bold):
After having considered all of the evidence, submissions, facts — which arise now or at any time in the future, documents and thought patterns not yet disclosed by the applicant (sorry, can’t resist), it is determined that it would not create unusual and undeserved or disproportionate hardship for the applicant to leave Canada to
“apply for a visa from outside Canada in the normal manner.” In the hundreds of H&C applications I have been involved in, either in court processes or at first instance, I have yet to see any H&C applicant who would qualify for a permanent resident visa if they left Canada and applied from outside the country in the “normal” manner.
H&C applicants are largely made up of people who came under a visitor visa or perhaps to make a refugee claim, and then stayed — stayed for lengthy periods of time living and working in Canada’s essential underground economy. Many have children, most work and abide by the law, attend church, form relationships, go to school, and become valued, albeit illegal, members of the community.
They are in Canada attempting to regularize their immigration status precisely because there is no visa they can qualify to apply for. They may not have the education qualifications, language skills, or work experience for the skilled worker or skilled trade or work-permit programs. So, they seek an exception, and they ask to stay because they cannot come back if they leave.
But then why do immigration officers review applicants against the possibility of applying for a visa at a visa post? As one Federal Court judge defined it in
Nanataky v. The Minister of Citizenship and Immigration, the assessment becomes whether a queue jumper, a person who has “cut the line” to apply from inside Canada when they could and should have waited in line like everyone else, should benefit from Canada’s largesse.
Once the assessment begins with this assumption of jumping a queue, it creates a fiction that the applicant is a wrong doer, a cheat, and so to be approved for permanent residency inside Canada requires extraordinary factors.
This assumption is not in the law, only in the guidelines, and it is plainly wrong. Few if any applicants for s. 25 compassion have a queue to return to in their home countries. Worse, the assumption that there is such a queue stigmatizes and diminishes the values of what they have accomplished here and so makes it harder to qualify.
Where does this requirement come from? After the Supreme Court decision in
Jimenez-Perez compelled the Immigration department to consider inland applications for permanent residency under H&C grounds, immigration guidelines were written for H&C applications that drew a line between those who did qualify for permanent residency under a visa program, like family applicants, and other applicants who would not qualify under any program.
For the family class applicant, officers were instructed to ask whether they were seeking to remain in Canada because of hardship reasons or mere convenience. If the latter, they could be refused; compassion was not about convenience.
With respect to other applicants, those who had no queue to return to, the issue was simply stated to be whether forcing them to leave would be a hardship, given everything they accomplished while in Canada.
Following the
Baker decision in 1999, and the guidelines becoming a benchmark for reasonableness, the Immigration department quietly changed them, and so altered the law. Now, each and every applicant had to show why it would be a hardship to return and get into line back home, like everyone else, even if there was no line to get into.
The rigid adherence to the assumption that a queue jumper is before them, cannot but affect decision-makers and raise the bar from an assessment of a request for an exception to the law, to a consideration of whether the application is exceptional. Two very different concepts.
In applying this guideline-driven standard as if it were law in each and every case, whether relevant or not, immigration officers write into s. 25 a standard that is not there. They unlawfully fetter their discretion.
The smoking gun that revealed what they were doing was the original guideline/ manual entry in 1986 that explained why some applicants would be considered against a standard of convenience versus hardship. There was never an intention for all applicants for compassionate relief to be assessed in this manner. Immigration quietly inserted that requirement in an attempt to legislate by manual. But, we finally caught them.
So now what, where do we go with this? Not sure, it depends on what the Supreme Court of Canada decides in
Kanthasamy v. Canada (Citizenship and Immigration), argued April 16 at the Supreme Court. I made the above arguments to the court on behalf of the intervener, Parkdale Community Legal Services.
Needless to say, the court reserved its decision.
