A-552-80
Enrique Alberto Jiminez-Perez and Anne Irena
Reid (Applicants) (Respondents)
v.
Minister of Employment and Immigration, Jean
Boisvert, Immigration Officer, in his capacity as
Manager, Canada Immigration Centre, Winnipeg
and Susan Lawson, Immigration Officer
(Respondents) (Appellants)
Court of Appeal, Urie, Le Dain JJ. and Lalande
D.J.—Winnipeg, March 10; Ottawa, May 25,
1982.
Immigration — Appeal — Departure notice — Appeal from
order of Trial Division granting application for mandamus
and ordering Minister and immigration officials to permit
respondent's application for landing from within Canada, and
to consider and decide on landing and sponsorship applications
— Respondent advised by immigration officers that landing
and sponsorship applications delayed until he applied for
immigrant visa outside Canada — Whether appellants have
duty to allow respondent to apply for exemption from s. 9(1)
requirements, based on humanitarian grounds, without leaving
country — Appeal dismissed — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 2(1), 9, 19(2)(d), 115(1)(ii),(2) — Immigra
tion Regulations, 1978, SOR/78- 172, ss. 6, 13.
This is an appeal from an order of the Trial Division granting
an application for mandamus and ordering the appellant Minis
ter and Immigration Officers to: (1) permit the respondent
Jiminez-Perez to apply for landing, or permanent residence,
from within Canada without having first applied for and
obtained an immigration visa outside Canada, (2) consider his
application for landing including the possibility of admission by
way of special relief on compassionate and humanitarian
grounds, and to make a decision thereon, and (3) to consider
and decide on the sponsorship of his application by his fiancée,
the respondent Reid. The respondent Jiminez-Perez, a citizen
of Mexico, was the subject of a 1980 inquiry under the Immi
gration Act, 1976 resulting in a departure notice being issued
against him April 16, 1980, effective July 15, 1980. Jiminez-
Perez had lived for three years with the respondent Reid, a
Canadian citizen, who bore his child June 13, 1980. Three
letters, dated April 10, June 24 and June 30, 1980, were
written by solicitors on Jiminez-Perez' behalf explaining his
situation and Reid's sponsorship intentions, and also setting out
the humanitarian grounds. On July 2, 1980, respondents had an
interview with an Immigration Officer, the appellant Lawson,
who indicated that Jiminez-Perez' application could not be
processed until he applied for a visa from outside Canada, and,
in addition, that the sponsorship application would be held up
until he did so. The issue is whether the appellants have a duty
to permit the respondent Jiminez-Perez to make an application
for landing from within Canada when he requests an exemp-
tion, on compassionate or humanitarian grounds, from the
requirement that he must first have applied for and obtained an
immigrant visa outside Canada.
Held, appeal dismissed. Because sections 9 and 19(2)(d) of
the Immigration Flee, 1976, as supported by the statutory
definitions of "visa" and "visa officer", require that a visa be
applied for and obtained outside Canada, the appellants argue
that they are prevented from allowing Jiminez-Perez' applica
tion for landing to be made from within Canada, without
having met that requirement. Although the respondents rely on
the opening words of subsection 9(1), "Except in such cases as
are prescribed ..." as allowing an exemption for Jiminez-Perez
from the subsection 9(1) requirement, those words merely
confer authority on the Governor in Council to make exceptions
to the rule in subsection 9(1) for certain categories of immi
grants, as opposed to individuals. However, respondents' argu
ment that subsection 115(2), where it states, "or otherwise.
facilitate ..." confers jurisdiction on the Governor in Council
to allow an immigrant in a particular case to be relieved of the
section 9 requirement, is valid. Administrative fairness requires
that the request for an exemption from section 9 can be made
to local Department officials. The application for landing and
request for exemption should be dealt with together. The
application, including the request for exemption and sponsor
ship of the applicant, must be considered and disposed of by
decision.
CASES JUDICIALLY CONSIDERED
APPLIED:
Minister of Manpower and Immigration v. Tsiafakis,
[1977] 2 F.C. 216 (C.A.).
APPEAL.
COUNSEL:
Arne Peltz for respondents (applicants).
Harry Glinter for appellants (respondents).
SOLICITORS:
Ellen St. Community Legal Services,
Winnipeg, for respondents (applicants).
Deputy Attorney General of Canada for
appellants (respondents).
The following are the reasons for judgment
rendered in English by
LE DAIN J.: This is an appeal from an order of
the Trial Division [Federal Court, T-3232-80,
judgment dated July 9, 1980] granting an applica
tion for mandamus and ordering the appellant
Minister and immigration officers to permit the
respondent Jiminez-Perez to apply for landing, or
permanent residence, from within Canada without
having first applied for and obtained an immigrant
visa outside Canada; to consider his application for
landing, including the possibility of admission by
way of special relief on compassionate or humani
tarian grounds, and to make a decision thereon;
and to consider and decide upon the sponsorship of
his application by his fiancée, the respondent Reid.
The essential facts are established by the
respondents' affidavits in support of the applica
tion for mandamus. The respondent Reid is a
Canadian citizen who was separated from her
husband S. A. Reid in 1977 and divorced from
him on June 23, 1980. For about three years prior
to her affidavit on July 7, 1980 she had been living
with the respondent Jiminez-Perez, a citizen of
Mexico. In April, 1980 the respondent Jiminez-
Perez was the subject of an inquiry under the
Immigration Act, 1976, S.C. 1976-77, c. 52, which
resulted in a departure notice against him on the
grounds that he had overstayed as a visitor since
July 7, 1979, had engaged in unauthorized
employment, and was not in possession of a pass
port. The departure notice, issued on April 16,
1980, required him to leave Canada on or before
July 15, 1980. At the time of the inquiry the
respondent Reid was expecting his child, which
was born on June 13, 1980. On April 10, 1980 the
respondents' solicitor wrote a letter to the Canada
Immigration Centre in Winnipeg, where the
respondents were living, stating why the respond
ent Jiminez-Perez should not be required to leave
Canada. The letter indicated the intention of the
respondent Reid to sponsor an application for per
manent residence by the respondent Jiminez-Perez
as her fiancé as soon as her divorce was final. On
June 24, 1980, about ten days after the birth of
her daughter, and a day after her divorce became
final, the respondent Reid attended at the Canada
Immigration Centre, Winnipeg, and delivered a
letter from her solicitor to the appellant Mr. Jean
Boisvert, Manager, requesting that Mr. Boisvert
consider an application for landing by the respond
ent Jiminez-Perez and a sponsorship of his applica-
tion by the respondent Reid. The letter stated in
part:
Mr. Perez wishes to apply for landing in Canada. Ms. Reid
wishes to sponsor Mr. Perez's Application pursuant to Section 4
of the Immigration Regulations.
Kindly interview this couple and determine whether their
Application will be accepted. If you are of the view that an
exception to the existing immigration provisions is required,
this is to request that you take the usual steps to effectuate
same.
If you are of the opinion that Mr. Perez may not be granted
landing, kindly provide to him and to Ms. Reid a written notice
refusing the Applications and setting forth all of the reasons.
Mr. Perez wishes to have his Application dealt with through
your office and it is not his present intention to, apply at an
overseas office for his landed immigrant status.
Please give their Applications your consideration. Mr. Perez
has been issued with a Departure Notice effective July 15th,
1980. An interview with the couple should be sufficient to
disclose the extreme hardship, financial and emotional, should
separation of the family so soon after the birth of their child be
required.
On July 2, 1980, the respondents attended at the
Canada Immigration Centre in Winnipeg where
they were interviewed by the appellant Immigra
tion Officer Susan Lawson. On this occasion they
were represented by another solicitor who handed
the appellant Lawson a letter dated June 30, 1980,
addressed to the appellant Boisvert, concerning the
respondents' case. The appellant Lawson read the
letter and indicated that she was familiar with the
history of the case, including the earlier letter of
June 24, 1980 to the appellant Boisvert. The letter
of June 30, 1980 contained the following passage:
Once you become familiar with this case, I believe that you
will find significant humanitarian reasons for making an excep
tion to generally applicable Immigration regulations. I would
hope that your office will not insist that Mr. Jiminez-Perez
return to his home country, Mexico, in order to make applica
tion for permanent residence in Canada. This would cause a
disruption and separation of the family unit, and would be
particularly unfortunate in view of the fact that a child was
born to this couple on June 13th, 1980, only 2 weeks ago. Ms.
Reid is presently at home caring for the child and is receiving
Unemployment Insurance Maternity Benefits.
The letter of June 30 also quoted at length from
the earlier letter of April 10 which had been
written to the Department by the former solicitor
of the respondents. The affidavit of the respondent
Jiminez-Perez contains the following statement in
paragraph 7 concerning the interview of July 2,
1980:
7. On July 2nd, 1980, I attended at the Canada Immigration
Centre, Winnipeg, along with the Applicant Anne Irena Reid
and my present counsel. I was interviewed by Immigration
Officer Susan Lawson and I requested the opportunity to
submit an application for permanent residence. The Respond
ent Lawson refused to provide to me the appropriate applica
tion form, and refused to process any such application until I
presented myself at a visa office outside Canada.
Paragraph 7 of the affidavit of the respondent
Reid reads as follows concerning the same
interview:
7. THAT I requested the opportunity to sponsor my fiance's
application for permanent residence. I was permitted to sign
Immigration Form 1009, but Ms. Lawson advised me that the
application would be held until confirmation was received that
my fiance had departed from Canada. Ms. Lawson further
indicated that only after such a departure would she approve
my sponsorship application, at which time it would be forward
ed to the Foreign Visa Office chosen by my fiance. Both my
fiance and I objected to Ms. Lawson stating a Mexican address
for Mr. Jiminez-Perez on the sponsorship form, since we each
wished to have our applications processed within Canada. Ms.
Lawson refused to change the said address to our local Win-
nipeg address. As a result, I signed the form as presented to me,
with objection.
By letter dated July 3, 1980 the appellant
Lawson advised the respondent Reid of the
Department's position with respect to her sponsor
ship as follows:
This is with reference to the "Sponsorship of Application by a
Member of Family Class and Undertaking of Assistance"
(form IMM 1009) which you submitted on 02 July 1980 on
behalf of your fiance, Enrique-Alberto [sic] Jiminez-Perez.
Immigration legislation does not permit us to consider an
undertaking in isolation from an application for permanent
residence made by your fiance which, in accordance with
Section 9 of the Immigration Act, must be made at one of our
offices abroad and assessed by a visa officer.
In her affidavit the respondent Reid states that
if the respondent Jiminez-Perez was required to
leave Canada in order to make an application for
landing it would cause very severe hardship to her,
both emotionally and financially, and would have a
detrimental effect upon their child.
The issue on the appeal, as I see it, is whether
the appellants have a duty to permit the respond
ent Jiminez-Perez to make an application for land
ing from within Canada when he requests 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 immigrant visa outside
Canada.
That requirement is laid down in section 9 of the
Act, which is 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.
That a visa is to be obtained outside Canada is
further indicated by the definitions of "visa" and
"visa officer" in subsection 2(1) of the Act, which
are as follows:
2....
"visa" means a document issued or a stamp impression made
on a document by a visa officer;
"visa officer" means an immigration officer stationed outside
Canada and authorized by order of the Minister to issue
visas;
An applicant who has not complied with the
requirement of subsection 9(1) is inadmissible by
reason of paragraph 19(2)(d) of the Act, which is
as follows:
19....
(2) No immigrant and, except as provided in subsection (3),
no visitor shall be granted admission if he is a member of any of
the following classes:
(d) persons who cannot or do not fulfil or comply with any of
the conditions or requirements of this Act or the regulations
or any orders or directions lawfully made or given under this
Act or the regulations.
On the basis of the requirement in section 9 the
appellants contend that, far from having a duty to
permit an immigrant to apply for landing from
within Canada without having first obtained an
immigrant visa outside Canada, they are prevented
from doing so by the Act.
On the other hand, the respondents invoke
provisions of the Act which they contend would
permit the respondent Jiminez-Perez to be exempt
ed from the requirement of section 9. The respond
ents rely in part on the words "Except in such
cases as are prescribed" in subsection 9(1). "Pre-
scribed" is defined in subsection 2(1) to mean
"prescribed by regulations made by the Governor
in Council", and paragraph 115(1)(ii) empowers
the Governor in Council to make regulations "pre-
scribing any matter required or authorized by this
Act to be prescribed." I am of the view that these
provisions confer authority to make exceptions to
the rule in subsection 9(1) for certain categories or
classes of immigrants or visitors rather than to
grant exemptions from the rule in individual cases.
It contemplates exceptions of a general, legislative
nature to be applied to individual cases. That is
what is implied, I think, by the word "prescribed".
An example of such a provision is to be found in
section 13 of the Immigration Regulations, 1978,
SOR/78-172, as amended by SOR/80-779, which
provides that "A visitor who is a person referred to
in Schedule II is not required to make an applica
tion for and obtain a visa before he appears at a
port of entry." Schedule II sets out certain catego
ries or classes of visitors. There is no such provi
sion in the Regulations respecting immigrants. But
the respondents also invoke subsection 115(2) of
the Act, which they contend confers authority on
the Governor in Council to grant an exemption in
a particular case, on compassionate or humani
tarian grounds, from the requirement of section 9.
Subsection 115(2) is as follows:
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.
The first part of the authority conferred by this
subsection is to exempt a person from the provi
sions of a regulation and not from the provisions of
the Act. The requirement that a person who seeks
landing must have applied for and obtained an
immigrant visa outside Canada is imposed by the
Act and not by the Regulations. The only provision
in the Immigration Regulations, 1978 which
appears to bear on immigrant visas, as distinct
from visitors' visas, is section 6, which spells out
the conditions on which an immigrant visa may be
issued to a member of the family class and accom
panying dependents, but does not speak of the
place at which an immigrant must apply for and
obtain a visa. 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 departmental practice in
this regard, but in my opinion the request is prop
erly made, as a practical matter, to the local
immigration officials who may be expected to refer
it to the Minister with their recommendation.
Such a request falls within the general administra
tion of the Act and, in the absence of special
provision, administrative fairness requires that it
be capable of being made at the local departmen
tal level. The letters dated June 24 and 30, 1980
addressed to the appellant Boisvert, from which I
have quoted above, expressed a sufficiently clear
request for exemption on compassionate or hu
manitarian grounds from the requirement of
section 9.
Counsel for the Crown took the position, as I
understood his argument, that there had not been
a proper request for exemption, 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
requirement of section 9 be processed by the local
immigration officials. 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 land
ing from within Canada on the basis that he be
granted an exemption from the requirement of
section 9 on compassionate or humanitarian
grounds. Since the Act contemplates that admis
sion 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. The reason
ing of this Court in Minister of Manpower and
Immigration v. Tsiafakis, [1977] 2 F.C. 216
(C.A.) appears to me to apply equally to the
present case.
For these reasons I would dismiss the appeal but
I would vary the order of the Trial Division by
substituting for the words "that they determine
whether, in this case, the evidence discloses com
passionate and humanitarian considerations that
could possibly justify granting landing to him by
way of special relief", the words "that they take
the necessary steps to enable the Governor in
Council to determine whether special relief on
compassionate or humanitarian grounds from the
requirement of section 9 of the Act should be
granted".
URIE J.: I agree.
LALANDE D.J.: I concur.
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.