Pollard v. Canada (Minister of Employment and Immigration)

Indexed as: Pollard v. Canada (Minister of Employment and Immigration)

Federal Court of Canada – Trial Division Toronto, Ontario Muldoon J.

Heard: July 23, 1991

Judgment: August 22, 1991

(10 pp.)

Marjorie Hiley, for the Applicant.

Jacqueline Ott, for the Respondent.

MULDOON J. (Reasons for Order): -- The applicants, Ian Pollard and Sherry Pollard (Sookanan), have applied to the Court, pursuant to section 18 of the Federal Court Act, R. S.C. 1985, Chap. F-7, having been granted leave to do so by order of Mr. Justice Teitelbaum, dated April 3, 1991. The relief which they seek is:

1. (a)an order pursuant to section 18 *** for a writ of certiorari quashing the decision of an immigration official at the Toronto Backlog Clearance, Canada Immigration Centre, wherein that officer determined that there are insufficient humanitarian and compassionate grounds upon which to accept the applicants applicant for permanent residence; notice of such decision being communicated to the applicants on or about October 11, 1990;

(b)an order pursuant to section 18 *** for a writ of mandamus directing the respondent and her officials to review the applicants' application under (sub) section 114(2) of the Immigration Act, R. S. C. 1985 Chap. I –2 as amended, to permit landing in Canada on humanitarian and compassionate grounds in accordance with the rules of natural justice and in accordance with the law.

The applicants' stated grounds for the relief which they seek are:

1. That the respondent Minister, in the establishment of policy guidelines and directives, has unlawfully fettered the discretion of her officers to consider the applicants case pursuant to section 114 (2) of the Immigration Act.

2. The decision of the Minister and her officials to deny the applicants' request for consideration of their request made pursuant to S. 114(2) to remain in Canada on humanitarian and compassionate grounds without considering the applicants' economic establishment is an illegal fettering of discretion on the part of the immigration officer.

3. The particular immigration officer unlawfully fettered his discretion in considering and determining that there were insufficient humanitarian and compassionate grounds upon which to accept the applicants' application for permanent residence from within Canada.

In support of their application the applicants have filed three affidavits: that of Sherry Pollard, aka Sookanan sworn November 6, 1990 (hereinafter: "Sherry (1)"), and those of Ian Pollard respectively sworn November 7, 1990 (hereinafter: "Ian (2)") and sworn May 13, 1991 (hereinafter: "Ian (3)").

In response to the applicants' application, the respondent has filed the affidavit of Themis Argyrides, sworn May 17, 1990 (sic), but filed on May 23, 1991. Mr Argyrides is not clairvoyant – he and the commissioner for taking affidavits were just careless about the date upon which they did their respective deeds. Mr. Argyides was the immigration officer referred to in the applicants' notice of motion, who interviewed them concerning their humanitarian and compassionate grounds. One could hardly guess his identity from the illegible scrawled signature which appears on the copy of his rejection letter marked as exhibit 1 to Sherry (1) affidavit. One wonders what must be going through the mind of one who makes such a scrawl that he might as well have sought perfect anonymity by leaving the document untouched by his pen or pencil. Since judges must make their respective identities known, so should immigration officers. An illegible signature is not a sign of importance. A carefully applied rubber stamp of the officer's name would help.

At the hearing of this matter in Toronto, on July 23, 1991, the applicants' counsel stated that she and they do not rely upon the affidavit "IaN (3)" because these proceedings are not an appeal per se, but a matter of judicial review, and so "there is no second guessing" as she put it. That is correct, but the Court will return to that verity in commentary by the end of these reasons. One upshot of counsel's concession is that, for present purposes, the applicant's affidavits can be identified as Ian's and Sherry's, or as the husband's and the wife's affidavits.

The material filed indicates a certain degree of juvenile snappishness as between the applicant's counsel and the immigration authorities about the possibility of adjournment of the hearing into whether the applicants demonstrated sufficient humanitarian and compassionate grounds for the exercise by the Governor in Council of the discretion accorded under subsection 114(2) of the Immigration Act, R. S. C. 1985, Chap. I –2, to allow the applicants to apply from within Canada for permanent residence. It may be symptomatic of counsel's taking on too many cases for her capacity, or it may be inflexibility an ill temper on the part of the Minister's minions due to the same pressure of caseload.

In paragraph 17 of the husband's affidavit, no doubt the truth as formulated for him by his counsel, Ian Pollard swears:

17.I attended at the Toronto Refugee Backlog office… at 6:00 a.m. on August 16, 1990. I presented Mrs, Hiley's (the applicants counsel's ) letter to the lady sitting at the reception desk. I was told by her that there could be no adjournment and that they were not obliged to accommodate my counsel as this was an interview and not a hearing. I persisted in ma request for an adjournment and my request continued to be denied. The immigration officer at the reception desk became very angry and would not accept the receipt of Mrs. Hiley's letter. Indeed, this lady informed me that if I left their offices without having the interview they would be issuing a warrant for my arrest. I was very upset and did not know what to do. I tried calling the Flemington Community Legal Services but their answering machine was on and I could not speak to anyone there. I thought I was going to be detained by the Immigration authorities because I was continuing to ask for an adjournment. I was very frightened by this situation. Finally, an officer who I now know to be Mr. Themis Argyrides came into the reception area. After listening to me and reading Mrs. Hiley's letter he did finally agree to an adjournment. He said he had to speak to someone else in his Department and that he should not be doing this.

Ultimately he gave me another form to attend on October 2, 1990 at 8:00 a.m. Attached to this my affidavit as Exhibit 7 is a true copy of the document dated August 16, 1990.

(emphasis not in original text).

(Applicants' Record: pp. 12 e 13)

Now, to this peck the respondent felt obligated to respond, in the affidavit of Themis Argyrides, the immigration officer whose hearing of the applicants' case is impugned by them in these proceedings. Paragraph 3 of his affidavit runs:

3.With respect to paragraph 17 of the affidavit of Ian Pollard dated November 7, 1990, I came upon Mr. Pollard in the waiting area and sought to personally accommodate the schedule of his counsel by arranging for the adjournment. The word "finally" misrepresents the intent of my action on August 16, 1990, which was to assist the Applicant as much as I was able to do. so.

Now it is apparent that the snappishly adversarial manner evinced by the applicants' counsel wounded Mr. Argyrides' sensitivities at the time he read Ian Pollard's affidavit, and quite possibly, during the hearing at which the applicants' counsel was present. It is all very well for lawyers to make it plain that they know how to see to it that their clients' rights are not infringed, but adversarial rhetoric can reasonably be misapprehended for personal attack by State officials who are not themselves lawyers and who have no background or training in debating or adversarial litigation. No doubt, the whole overburdened immigration process could be improved by more civility on all sides. Since immigration officers are only human, counsel should avoid risking adverse decisions in matters where the clients' redress resides, not in appeals per se, but only in judicial review. This is part of the matter to which the Court will return by the end of these reasons.

The applicants are citizens of Trinidad, as is their daughter, shelly. The wife, Sherry Pollard (aka Sooknan) resided there until her arrival with Shelly in Canada on November 18, 1988. The husband, Ian Pollard, also resided in Trinidad until his arrival in Canada, which was on December 9, 1988. Sherry's affidavit reveals how these life-long citizens of Trinidad came, remarkable, to make a refugee claim.

3.Through my mother-in-law, I and (Ian) had been informed by a pastor at a local church in Port of Spain, Trinidad of how arrangements could be made for us to live, work and study in Canada

4.My husband paid this pastor for myself and our daughter, Shelly Pollard to travel to Canada. We arrived in Toronto and obtained visitor' s status. Then we were met by another pastor in Toronto and taken to a house in Scarborough. Many other people were living in this house. At that time I was advised to make a refugee claim in order to be able to remain in Canada. On the advice of this Toronto pastor I attended with him at Immigration on November 19, 1988 and made a refugee claim. I was not asked for any information by the Immigration officials except to show them my passport. At that time I was not aware of the definition of refugee as stated in the Immigration Act… .

6.I received my work permit in the mail in April, 1989 and commenced working full time as a housekeeper at the Inn on the Park. I have been supporting my family since that time. After my husband went back to school full time in September, 1989 we put our daughter in daycare. Except for a short maternity break in the summer of 1990 after the birth of our 2nd daughter Shannon Pollard, I have been able to work at this job on a full time basis.

(Applicants' record pp. 74 e 75)

Ian's affidavit adds further detail to the pastors' saga, thus:

3.Prior to travelling to Canada I had through my mother become acquainted with a pastor at a local church located in Port of Spain, which my mother attends regularly. This pastor informed me that through his connections with another pastor living in Toronto, Canada there could be arrangements made for my family to travel to Canada and obtain permission to work and study there.

4.* * * Our financial and career future looked dismal, so I decided to accept the pastor's offer and paid $1500.00 Trinidadian dollars to the pastor so we could come and live and work and study in Canada.

5.At the time of my arrival in Canada on December 9, 1990 I had requested and was granted visitor visa status. * * * I was granted visitor visa status until January 1, 1989.

6.I then rejoined my wife Sherry Pollard and my infant daughter Shelly Pollard, who had arrived in Canada on November 18, 1988. We were living with fifteen others in a house on Win Stanley Cres. Scarborough. Soon after my arrival in Canada I realized that we had been duped and I could not work or study legally in Canada. The other pastor who lived in Toronto informed me that I had to claim refugee status before the end of December, 1988 in order to be able to stay in Canada and be allowed to work or study in Canada. The term refugee had not been mentioned to me previously. He also informed me that we should apply for welfare and that he would require one half of our welfare monies as payment towards his services as an immigration consultant. I was informed by my wife that she and my daughter had already made a refugee claim on November 19, 1998 upon the advice of this pastor.

7.Faced with this situation I did go to the Toronto Central CIC at 443 University Avenue on December 15, 1988 and made a refugee claim. Attached to this my affidavit as Exhibit #1 is a true copy of the form given to me on that date.

8.As our financial resources were limited I wished to work in Canada but I discovered that I needed a work permit and a social insurance cared in order to work legally in Canada.

On January 6, 1989 I again attended at the Toronto Central CIC to ask for permission to work. I was then informed that as I had visitor status when I made my refugee claim I could not work. Attached to this my affidavit as Exhibit No. 2 is a true copy of the form given to me on that date by the immigration officer.

9.I had allowed my visitor status to expire by not renewing my visitor visa prior to its expiration on January 1, 1989. I applied for welfare and received it for January/February/March of 1989. Prior to my second visit to immigration on January 6, 1989 I had relocated my family and myself * * * as I did not want any further contact with this Toronto pastor.

These pastors who advise hopeful people to make spurious claims are of a class of crooks seen from time to time in the material filed in Court. Those self-styled "consultants" appear to be greedy, unscrupulous folk who seem quite unconcerned about the misery which they inflict on gullible would be immigrants, to whom they give false hopes and bad advice. Such purveyors of misery ought to be prosecuted and punished, as well as sued for their last pennies. They are an ugly blemish on Canada's face, if what is reported about them be true. Having been duped by such a person, the applicants willy-nilly become "queue jumpers", who now seek landed immigrant status from within Canada, instead of from abroad as subsection 9 (1) of the Act provides as the norm for all others lawfully waiting of the Act provides as the norm for all others lawfully waiting in the notional line, or queue for visas to come to Canada.

Parliament not only provided that norm, but it also provided a means to circumvent that norm. in subsection 114(2) of the Act itself. The immigration officer's decision to the effect that there were insufficient humanitarian and compassionate grounds is the basic gravamen of the applicants' complaint. Their specific grounds are recited above. Subsection 114(2) of the Immigration Act runs as follows: (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 where the Governor in Council is satisfied that the person should be exempted from that regulation or the person's admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian consideration. Now it is evident that neither of the applicants had complied with the norms of the Act before coming to Canada.

It is Parliament itself which authorizes the Governor in Council to intervene and make exceptions to the rules promulgated by the Act itself and the Regulations. This skates awfully close to infringing the "rule of law" which is a constitutional foundation of the State according to the preamble to the Canadian Charter of Rights and Freedoms Part 1 Constitution Act, 1982, enacted by Canada Act, 1982, c. 11, schedule B (U. K.), because its measure of applicability, if not "the Chancellor's foot " is by virtue of the judicial decision cited as M. E. I. v Jiminez-Perez et al. (1984) 2 S. C. R. 565 and Yhap v. M. E. I., (1990) 9 Imm. L. R. (2d) 243, the immigration officers' respective feet, being a matter of individual discretion.

Such exceptions are special benefits and could be constitutionally supported by subsection 15(2) of the Charter. In this sense those who do not obtain a favourable recommendation are in no position to complain about having missed out on a special benefit or exemption. The discretion expressed in subsection 114 (2) of the Act is conferred directly upon the Governor in Council and not on the immigration officer who conducts the compassionate or humanitarian review with the applicants. However that officer reports with favourable or unfavourable recommendations, to the Minister who would then presumably consider them, and, if agreeable to any of the positive recommendations, present those to the Cabinet for regulation-making, under subsection 114(2). Presumable, also the Minister rarely, if ever, makes a favourable recommendation to the Cabinet where no positive recommendation has been made by the immigration officer.

The big, disgraceful problem with the application of the past guidelines and the present Guidelines for Immigration Officers on the Exercise of Discretion, Prepared Pursuant to the Judgement Rendered by Justice Jerome in the case of Ken Yung Yhap (exhibit "A" to Argyrides' affidavit) is that, like the Bible, they make it possible to arrive at the conclusion which the decision-maker wished to formulate all along. A veritable lode-stone of jurisprudence demonstrating the tenability of that proposition was assembled and applied with great insight by Mr. Justice Joyal of this Court in his reasons for judgment in the case of Cabalfin v. M. E. I. (T-2081-89 December 19, 1990).

In this case the Court finds, with genuine sorrow, that there is no basis in terms of judicial review for quashing the immigration officer's decision.

This regretful finding brings up the matter of the standards to be set for determining the existence of compassionate and humanitarian consideration. Here the applicants, a married couple of disparate racial origin – his is African and hers is Asian – are the parents of two children. They not only encounter intolerance and bigotry in their own native land on that account but, if there be any meaning to Canada's immigration laws and practices over the past decades, they, and especially their children, are the prototype of the Canadian ideal which is – and must be – anti-racist. A couple such as Ian and Sherry Pollard give the lie to every sort of racist bigotry and to the all too prevalent intolerance of ancestor-worship and ancestor-advocacy which at worst generates killings and at least generates intolerant racism and infinitum and ad nauseam, forever, and ever. The applicants here would represent for Canada the hope for the survival of this country's constitutional ideals, imperatives and other values,

The uncontradicted evidence also shows that they are industrious in that Sherry has worked at no exalted wage while Ian has successfully pursued studies which qualify him to be a much needed correctional officer in Canada. Their children have naturally needed day-care, but it has not been obtained at public expense. It would be difficult to find more respectable immigrants for Canada in terms, at least, of the uncontradicted material before the Court. Indeed there is even more documentary material generated after their interview with the immigration officer in October, 1990 and therefore not before him which demonstrates how well-regarded the husband, Ian, is by the students and faculty of the Centennial College of Applied Arts and Technology where he has been enroled in the correctional worker program. His enrolment and the fact of his high esteem were presented to the immigration officer, as demonstrated in the applicants' record pp. 39 e 40, exhibit 11, and in exhibits 12 to 19 to the husband's affidavit. There was much solid material placed before the immigration officer.

It cannot be shown that the immigration officer is a racial bigot and this observation is not to suggest even remotely that he is. But, what if the immigration officer were a closet bigot? How could one prove it in order to demonstrate mis-application of the guidelines?

In this case the applicants really cannot demonstrate, for purposes of judicial review, that Mr. Argyrides did not weigh all the materials and consideration which they and their counsel put before him. His conclusion is not to be impugned on his facial expression. He found no sufficient humanitarian and compassionate grounds upon which to accept an application for permanent residence, as shown in exhibit 20 to the husband's affidavit.

Now, the Court will demonstrate the difference between strict judicial review, and an appeal per se. Although the immigration officer's decision here cannot be legitimately be quashed on certiorari, it is seen to be alarmingly obtuse. No wonder Mr. Justice Teitelbaum accorded leave to question it! One is left to wonder what the immigration officer would need to find sufficient compassionate and humanitarian grounds, or reasons of public policy, since he could not find the Pollards' grounds to be sufficient. It is heart-wrenchingly unfortunate for the applicants and their children that, in this case, there is no genuine appeal to this Court.

Hopefully, at some point, the minister will pay more attention to the students and faculty of the College than to this pathetically obtuse decision by one of the departmental officials. On the off chance of putting real meaning into the notion of public policy and compassionate and humanitarian consideration, the Court directs its officer, the respondent's counsel, to ensure that a copy of these reasons is deposited in the Minister's private office, with the hope that he will at least read them. Each case turns on its own facts and this particular case needs more consideration.

In the result, the applicants' motion is relunctantly dismissed. The respondent's counsel both graciously and sensibly declined to ask for costs against them. There are no costs awarded in these proceedings.

MULDOON J.