Reis v. Canada (Minister of Citizenship and Immigration), (2012) 405 F.T.R. 104 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: December 20, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 405 F.T.R. 104 (FC);2012 FC 179

Reis v. Can. (M.C.I.) (2012), 405 F.T.R. 104 (FC)

MLB headnote and full text

Temp. Cite: [2012] F.T.R. TBEd. FE.031

Joao Guilherme Ribeiro Gadelha Simas Reis (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3344-11; 2012 FC 179)

Indexed As: Reis v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

February 8, 2012.

Summary:

An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada. Reis applied for judicial review and sought certification of a question for review by the Court of Appeal.

The Federal Court dismissed the application and refused to certify the question.

Administrative Law - Topic 285

The hearing and decision - Denial of a right to a hearing - What constitutes - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate (H&C) grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review, asserting that the officer denied him a fair hearing by not granting him an interview - The Federal Court rejected the assertion - An interview was not generally required to ensure procedural fairness when evaluating an H&C application - What was required was "meaningful participation" in the decision making process - Reis' submissions to the officer in support of his H&C application demonstrated that he had a meaningful opportunity to participate - See paragraph 53.

Administrative Law - Topic 350

The hearing and decision - Nature or extent of the hearing - Opportunity to present evidence - [See Administrative Law - Topic 285 ].

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review, asserting that, inter alia, the officer's reasons were inadequate - The Federal Court stated that "Recently, the Supreme Court of Canada held in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) ... that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, 'the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible, acceptable outcomes.' ... The adequacy of the Officer's reasons will be evaluated along with the reasonableness of the Decision as a whole." - See paragraph 17.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review, asserting that although the officer might have addressed the issues that he raised separately, he did not consider their cumulative impact - The Federal Court dismissed the application - The officer's decision emphasized that she considered the relevant factors, both individually and cumulatively - It was not sufficient for an officer to simply say that he or she had considered all of the evidence or all of the factors cumulatively - Here, however, it was clear that the officer was not using empty words - The decision was structured in such a way that the court could see how she identified and treated individual factors and that she clearly considered their overall and cumulative impact - Having done so, she reasonably decided that Reis was similarly situated to other prospective immigrants who had to apply from abroad in the normal fashion - There was no error of law or unreasonable cumulative weighing - See paragraphs 66 and 67.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - [See Administrative Law - Topic 285 ].

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer rejected the applicant's request for an exemption on humanitarian and compassionate (H&C) grounds from the requirement to apply for permanent residence from outside Canada - The applicant applied for judicial review - In dismissing the application, the Federal Court stated that "His H&C application emphasized what the Applicant sees as his desirable qualities and abilities, as well as his contributions to Canadian society and ardent desire to remain in Canada. He regards himself as a well established 'de facto' resident. What his application fails to deal with is why, if the Applicant is required to return to Brazil and apply for permanent residence from outside of Canada he will suffer any kind of hardship. The issue is not whether the Applicant is a worthy Applicant to Canada, or whether life here for him would be better than life in Brazil. The issue is whether he would face unusual, undeserved or disproportionate hardship. The Applicant believes he ought to be an exception to the rule." - See paragraph 49.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer rejected the applicant's request for an exemption on humanitarian and compassionate (H&C) grounds from the requirement to apply for permanent residence from outside Canada - The applicant applied for judicial review - In dismissing the application, the Federal Court stated that "... the Applicant's arguments, variously stated, all essentially amount to a request for this Court to re-weigh the factors considered by the Officer and come to a different conclusion. H&C decisions are discretionary and guarantee no particular outcome. As long as an officer exercises her discretion reasonably and within the parameters of procedural fairness, this Court should not intervene." - See paragraph 50.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review, asserting that the officer ignored evidence or failed to give proper attention to certain factors - The Federal Court rejected the assertion - The assertion was merely an argument as to the weight given to various factors - It was not the court's responsibility to re-weigh the relevant factors which were duly considered by an officer making highly discretionary decisions or to substitute its own inferences or conclusions based on a re-weighing of the evidence - The officer here considered and weighed all the relevant factors and came to a conclusion which was supported by the evidence as a whole - See paragraph 51.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review, asserting that the officer violated his ss. 7 and 15 Charter rights - He asserted that when the officer denied him a fair hearing, she breached his equality rights based on his sexual orientation - The Federal Court rejected the assertion - Reis asserted that there was a Charter violation but did not explain why or how - There was no evidence to support the allegation - He simply asserted that because he was a homosexual, his s. 15 rights were violated - There was no merit to the argument - See paragraph 52.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate (H&C) grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review, asserting that the jurisprudence used to guide H&C decisions was wrong - He asserted that the officer's decision to deny the application based on the finding that he would not suffer "unusual, undeserved or disproportionate hardship" was unreasonable and was made based on the wrong test - He asserted that, given the wording of s. 25 of the Immigration and Refugee Protection Act, the test should be broader - In dismissing the application, the Federal Court stated that there was a long list of cases that had approved the test - See paragraphs 54 to 57.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigration visa - Duty of officer - Duty of fairness - [See Administrative Law - Topic 285 ].

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - [See both Administrative Law - Topic 549 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - [See third and fourth Aliens - Topic 1206 ].

Aliens - Topic 4069

Practice - Judicial review and appeals - Certification of question of general importance by Federal Court - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate (H&C) grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review and sought certification of the following question: "Is the Ministerial policy, and articulation, of the test, applied by immigration officers to determine whether humanitarian and compassionate grounds, have been established under s. 25 of the [Immigration and Refugee Protection Act (IRPA)], as decided in the within, and all other cases, namely: The applicant bears the burden of proof to demonstrate that if he were to return to Brazil to present his application, he would suffer unusual and undeserved or disproportionate hardship as per section 25 of IRPA.(a) ultra vires s. 25 in that the 'unusual, undeserved, and disproportionate hardship' test overly-restricts, and de facto amends s. 5?; and/or (b) fetters the broad discretion under s. 25(1) as long-held by this Court in [Yhap v. Minister of Employment and Immigration]?" - The Federal Court dismissed the application and refused to certify the question - In light of the well-settled nature of the jurisprudence, Reis' arguments had been clearly and consistently addressed and there was no purpose to be served by certifying the question - It was true that the jurisprudence established that, in some circumstances, application of the guidelines could be an unlawful fetter of an officer's discretion - The test which was otherwise an acceptable measure of hardship, might operate as a fetter where an officer rigidly adhered to the guidelines - The court on judicial review, then, was called to evaluate whether on the facts before it, the officer applied the test in such a way as to fetter her discretion - In that way, the second branch of Reis' proposed question would ask the Court of Appeal to answer in the abstract a question which could only be answered according to the facts of each case - A certified question had to lend itself to a generic approach leading to an answer of general application - The second branch of the proposed question failed that test and was inappropriate for certification - See paragraphs 68 to 78.

Aliens - Topic 4071

Practice - Judicial review and appeals - Fresh evidence - An immigration officer rejected Reis' request for an exemption on humanitarian and compassionate grounds from the requirement to apply for permanent residence from outside Canada - Reis applied for judicial review - In dismissing the application, the Federal Court noted that some of Reis' arguments and the evidence that he relied upon were not before the officer but were found in an affidavit sworn by Reis in support of the judicial review application - It was trite law that the court had to assess a decision based upon the record before the officer except for exceptional grounds that were not present in this case - See paragraph 58.

Aliens - Topic 4093

Practice - Hearings - Right to make representations - [See Administrative Law - Topic 285 ].

Civil Rights - Topic 907

Discrimination - General principles - Evidence and proof - [See fifth Aliens - Topic 1206 ].

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals - [See fifth Aliens - Topic 1206 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See fifth Aliens - Topic 1206 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 16].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 424 N.R. 220; 2011 SCC 62, refd to. [para. 17].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 18].

Singh Sahota v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 445; 2011 FC 739, refd to. [para. 19].

Garcia v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 449; 2010 FC 677, refd to. [para. 19].

Markis et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 325; 2008 FC 428, refd to. [para. 19].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 20].

Thandal v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 363; 2008 FC 489, refd to. [para. 20].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 22].

R. v. R.J.S., [1995] 1 S.C.R. 451; 177 N.R. 81; 78 O.A.C. 161, refd to. [para. 22].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 22].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 25].

Yhap v. Minister of Employment and Immigration (1990), 34 F.T.R. 26 (T.D.), refd to. [para. 28].

Chirwa v. Canada (Minister of Manpower and Immigration) (1970), 4 I.A.C. 338 (Imm. App. Bd.), refd to. [para. 29].

Espino v. Canada (Minister of Citizenship and Immigration) (2006), 301 F.T.R. 155; 2006 FC 1255, refd to. [para. 30].

Vaca v. Minister of Employment and Immigration (1991), 50 F.T.R. 10 (T.D.), refd to. [para. 35].

Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.), refd to. [para. 39].

Jazxhiu v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 460 (T.D.), refd to. [para. 39].

Hatami v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 254 (T.D.), refd to. [para. 39].

Horvath v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 194; 2001 FCT 398, refd to. [para. 39].

Gondi et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 258; 2006 FC 433, refd to. [para. 39].

Jones v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 289; 2006 FC 405, refd to. [para. 39].

Rudder v. Canada (Minister of Citizenship and Immigration) (2009), 346 F.T.R. 286; 2009 FC 689, refd to. [para. 40].

Stelco Inc. v. British Steel Canada Inc. et al. (2000), 252 N.R. 364 (F.C.A.), refd to. [para. 43].

Legault v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 174; 2002 FCA 125, refd to. [para. 43].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 43].

Singh et al. v. Canada (Minister of Citizenship and Immigration) (2009), 340 F.T.R. 29; 2009 FC 11, refd to. [para. 46].

Jung v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 404; 2009 FC 678, refd to. [para. 46].

Aoanan v. Canada (Minister of Citizenship and Immigration) (2009), 353 F.T.R. 283; 2009 FC 734, refd to. [para. 46].

Bavili et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 892; 2009 FC 945, refd to. [para. 53].

State Farm Mutual Automobile Insurance Co. v. Privacy Commissioner (Can.) et al. (2010), 376 F.T.R. 59; 2010 FC 736, refd to. [para. 58].

Abbott Laboratories Ltd. v. Canada (Attorney General) et al., [2009] 3 F.C.R. 547; 382 N.R. 280; 2008 FCA 354, refd to. [para. 58].

Gitxsan Treaty Society v. Hospital Employees' Union et al., [2000] 1 F.C. 135; 249 N.R. 37 (F.C.A.), refd to. [para. 58].

Rizvi v. Canada (Minister of Citizenship and Immigration) et al., [2009] F.T.R. Uned. 678; 2009 FC 463, refd to. [para. 69].

Ha v. Minister of Employment and Immigration (1992), 56 F.T.R. 1 (T.D.), refd to. [para. 70].

Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 597 (T.D.), refd to. [para. 71].

Eng et al. v. Canada (Minister of Citizenship and Immigration) et al., [2011] F.T.R. Uned. 374; 2011 FC 596, refd to. [para. 71].

Hawthorne v. Canada (Minister of Citizenship and Immigration) (2002), 297 N.R. 187; 2002 FCA 475, refd to. [para. 73].

Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195; 316 N.R. 299; 2004 FCA 49, refd to. [para. 76].

Kunkel v. Canada (Minister of Citizenship and Immigration) (2009), 398 N.R. 271; 2009 FCA 347, refd to. [para. 78].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 14].

Counsel:

Rocco Galati, for the applicant;

Suranjana Bhattacharyya, for the respondent.

Solicitors of Record:

Rocco Galati Law Firm, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on December 20, 2011, by Russell, J., of the Federal Court, who delivered the following reasons for judgment on February 8, 2012.