Ken Yung Yhap v. Minister of Employment and Immigration

REASONS FOR JUDGMENT

This matter came on for hearing at Toronto, Ontario, on November 14, 15 and 27, 1989. In reasons dated October 12, 1989, Mr. Justice Muldoon has ordered that no absolute or unconditional orders may be made or executed against these applicants until the Court has disposed of their claims for relief (Court File 89-T-676, p, 14). On November 14, 1989 I granted the applicant leave to seek the relief set out in the notice of motion dated September 12, 1989.

The application seeks:

1.         An order in the nature of certiorari quashing tile decision of immigration officials at the Toronto Backlog Clearance, Canada Immigration Centre, the respondent, dated August 16, 1989, which decision indicated that it has been determined that there are insufficient humanitarian and compassionate grounds upon which to accept an application for permanent residence in Canada;

2.         An order in the nature of mandamus compelling the respondent to provide the applicant with a full and fair interview of the applicant's humanitarian and compassionate claim in accordance with the law and in accordance with the duty of fairness;

3.         An order for an injunction or prohibition restraining or prohibiting the respondent from proceeding with a final review or credible basis hearing concerning the applicant until Regulations are in place allowing the same and/or until the validity or legality of these credible basis hearings have been determined by the Federal Court of Appeal in the case of Peiroo v. M.E.I., Court File No. 89-A-1022 or by this Court;

4.         In the alternative, an order in the nature of certiorari quashing the decision of the Minister refusing to allow the applicant the benefit of the Policy known as "Current Processing Procedures for persons from the People's Republic of China", OM IS 399 dated June 29, 1989; and

5.         An order in the nature of mandamus compelling the respondent to process the applicant's application for permanent residence in Canada in accordance with the procedures outlined in this Policy on it fair basis.

It has been agreed by counsel for each party that this application by Ken Yung Yhap is the paradigm of approximately twenty-five other applications brought or simultaneously for adjudication, and that my determination of the issues raised in Mr. Yhap's application will apply to the others. All of the applicants indicated an intention to claim refugee status in Canada prior to January 1, 1989, and were accordingly included in the Backlog Clearance Programme established by the respondent. Because of their country of nationality, some of the applicants are holders of Ministers' Permits.

Several aspects of the applicant's claim for relief may be disposed of briefly, Counsel now confirms that the case of Peiroo v. M.E.I., 89-A-1022, which was before the Federal Court of Appeal, has been settled in a manner which is of no assistance to the applicant's case. Similarly, Her Majesty the Queen v. The Canadian Council of Churches (A-223-89), involves issues which may not be resolved for some time. Accordingly, the applicant cannot succeed on the third ground.

The fourth and fifth grounds of relief involve the applicability of Operations Memorandum IS 399: "Current Processing Procedures for persons train the Peoples' Republic of China". Counsel for the applicants has requested an order in the nature of certiorari quashing the decision of the Minister refusing to allow the applicant the benefit of the policy known as "Current Processing Procedures for persons from the Peoples' Republic of China", OM IS 3999 dated June 29, 1989, and an order of mandamus compelling the respondent to process the applicant's application for permanent residence. The applicant submits that as a citizen of the Peoples' Republic of China, he is being unfairly discriminated against by not being allowed the procedure for landing contained in the provisions of the Policy Guideline applicable to persons in Canada from the Peoples' Republic of China.

The Operations Memorandum in question, indicates that Chinese nationals with temporary status in Canada will not be removed to the Peoples' Republic of China. Four policy options are available to visitors in Canada, including consideration under humanitarian and compassionate guidelines set out in OM IE 252 and IE 9 of the Immigration Manual. The memorandum notes:

… It should be borne in mind that these provisions apply to all persons who have in some way individually embarrassed their government and in so doing have exposed themselves to severe sanctions should they return. Chinese authorities have publicly indicated that students in Canada share the blame for the turmoil in China. In view of this, all requests for permanent residence are to be evaluated sympathetically and on an urgent basis.

The policy specifically indicates, however, that persons such as the applicant, who have already registered refugee claims under the Refugee Backlog Programme and under the current legislation, are to be dealt with under those programmes. This has been confirmed by Brian Dougall, manager of the Backlog Clearance Task Force, in his affidavit of October 31, 1989:

The special programme for nationals of the Peoples' Republic of China, attached to this my affidavit as Exhibit "B", does not apply to persons who have already registered refugee claims under the Refugee Backlog Clearance Programme or who have made refugee claims in accordance with the current provisions of the Immigration Act …

I am unable to conclude that the applicant is being "unfairly discriminated against" by the respondent's failure to process him for landing pursuant to the provisions of the OM IS 3999 Policy Guideline. This policy is clearly intended to protect students, visitors and members of the Family Class from the Peoples' Republic of China who may, due to the "current civil strife" in that country, be in some danger upon their return to the Peoples' Republic of China, notwithstanding that they are not Convention refugees.

The policy is not intended to replace provisions which have been made for refugees, whether recent arrivals or members of the backlog, from the Peoples' Republic, but rather to act as a supplemental protection for other individuals from that country.

There is no question that the applicant's rights and privileges were affected by the decision of the Minister refusing to allow him the benefit of the OM IS 3999 policy, but I am unable to conclude that the refusal was unfair. The terms of the policy leave no doubt that it was not intended to be applied to persons who have already registered refugee claims under the Refugee Backlog Clearance Programme or who have made refugee claims in accordance with the current provisions of the Immigration Act. There is no basis on which to find that the application of the terms of the policy to the applicant's situation, resulting in his ineligibility for consideration under the policy, constituted a breach of the general duty of fairness.

Similarly, I am unable to find that mandamus is available in a situation such as this one to force the respondent to, in effect, change the terms of the policy and apply it to the applicant's situation. As Mr. Justice Dickson (as he then was) for the Supreme Court of Canada has stated in Vardy v. Scott [1976] 66 D.L.R. (3d) 431, at p. 437:

Before mandamus can issue there must be a duty, without discretion, upon the person or body against whom the order is directed to do the very thing ordered.

This has been echoed more recently by the Federal Court of Appeal in Re Minister of Manpower and Immigration and Tsiafakls (1977) 73 D.L.R. (3d) 139 (Fed. C.A.):

Mandamus lies to compel the performance of a public duty which a public authority refuses or neglects to perform although duly called upon to do so …

In the applicant's case, there is no such specific duty on the part of the Minister to apply the OM IS 3999 policy, accordingly, I am unable through a writ of mandamus to order the Minister to do so.

Counsel presented two arguments relating to the humanitarian and compassionate review which may also be disposed of briefly. The applicants submit that the Minister has failed to fulfil the "legitimate expectation" or "reasonable expectation" of a humanitarian and compassionate review promised to persons in the Refugee Backlog, in the establishment of restrictive guidelines for such review. The applicants base this argument on their contention that the Minister and her officials in their public statements have indicated that persons who claimed to be Convention refugees before January 1, 1989 would be considered as to whether humanitarian and compassionate grounds existed sufficient to warrant landing in Canada. This "legitimate expectation" has not been fulfilled, the applicants submit since the actual policy directives issued provide only a limited review on humanitarian and compassionate grounds.

In light of my reasons herein on the issue of the fettering of the discretion conferred by s. 114(2) of the Act, I will say relatively little on this issue. Regardless of what promises and guarantees have been made by the Minister, the applicant is entitled by virtue of s. 114(2) of the Act to a review as to whether humanitarian and compassionate grounds exist sufficient to warrant landing in Canada. That is the law as it currently exists, and it must be applied evenly to all who come before it. My reasons herein indicate that the discretion conferred by s. 114(2) is not to be exercised by the respondent and her officials subject to inflexible and self-imposed limitations, although an expression of flexible general policy, such as that contained in Chapter 9 of the Immigration Manual, would be entirely lawful.

Counsel for the applicants also argued that the exercise of the statutory power of discretion under ss. 114(2) and 9(1) of the Immigration Act in a distinct manner for refugee claimants as opposed to other aliens in Canada violates s. 15 of the Charter. Similarly, in light of my reasons herein, it is unnecessary to deal with this complex argument in order to resolve the issues raised by this case.

I turn now to the arguments raised by counsel which relate to the issues of fairness and discretion. Persons who have claimed Convention refugee status prior to January 1, 1989 are considered part of the Refugee Backlog. The scheme established by the respondent for dealing with the claims of these individuals dictates that the claims are to be considered under a system which is separate from, although similar to, that which has been created by An Act to Amend the Immigration Act, S.C. 1988, c. 35. Individuals in the Refugee Backlog, including the applicants, are to attend a hearing before an adjudicator and a Refugee Determination Division member, who will determine whether they have a credible basis for their claim.

Prior to this hearing, however, an interview with an immigration officer is to take place, to determine whether there are sufficient humanitarian and compassionate grounds to exempt the claimant from the requirements of s. 9 of the Immigration Act. Brian Dougall, the Manager of the Backlog Clearance Task Force has described this stage as follows in his affidavit:

9. Included in the Backlog Clearance Program are two sets of humanitarian and compassionate reviews. The reviews parallel the reviews which are carried out for refugee claimants under the new refugee determination system. The first review occurs prior to the credible basis hearing and applies criteria 1 and 2. All three criteria are set out in Appendix "A" to this my affidavit. The first review is carried out by an immigration officer. The purpose of this review is to deal expeditiously with those cases which merit special consideration based on criteria established by the Minister …

"Criteria 1 and 2" referred to by Mr. Dougall are set out in a document entitled "Refugee Claimants Backlog Procedures", which was distributed by him to Regional Backlog Coordinators across the country. The criteria appear at p. 42 of the document, under the heading "Humanitarian and Compassionate Review Criteria", and read as follows:

1.         Individuals who are members of official delegations, athletic teams or cultural groups, and other persons, who by seeking to remain in Canada, so embarrass their government as to leave themselves open to severe sanctions should they return home.

2.         Exceptional circumstances that could be resolved by the exercise of compassionate judgement. This refers to family dependency situations where close family members of a Canadian resident would suffer hardship if forced to return home to obtain an immigrant visa. Hardship does not include financial penalty or inconvenience.

The applicants before me received notices to attend at the Refugee Backlog Office of the Canada Immigration Commission for interviews to determine if there were sufficient humanitarian and compassionate grounds to warrant their landing in Canada. It was determined in the cases of all of the applicants that there were insufficient humanitarian and compassionate grounds upon which to accept an application for landing.

The applicants are critical of the conduct of these interviews and of the adjudicators' failures therein to address relevant considerations. This particular concern is reflected in the Affidavit of Ken Yung Yhap:

5.         On the 16th day of August, 1989, I attended with Anita Sulley of my lawyer's office at the Refugee Backlog Office where I was interviewed by an Immigration Officer, Mr. John Donaldson.

6.         I had been instructed to complete and bring with me to the interview a set of forms. Attached hereto and marked as Exhibit "B" to this my affidavit is a copy of this form as completed and presented to Mr. Donaldson.

7.         Following review of the forms, Mr. Donaldson asked me why I did not go onto Guyana in 1986 and decided to stay in Canada. I explained to him that during my two day transit stopover here I heard from friends that the situation for Chinese in Guyana was racially intolerable. In particular, I found out that my cousin's husband had been beaten to death there.

8.         The officer focused on my cousin's husband's death in Guyana and told me to get proof of the same.

9.         The officer did not ask me any questions concerning the humanitarian and compassionate aspects of my case. In particular, the officer did not ask me about my life in Canada over last three years, and what reasons there are for my remaining in Canada. The officer refused to consider the present situation in China and primarily was concerned about why I did not take up residence in Guyana in 1986.

10.        The officer asked me why I did not want to go back to the People's Republic of China. He then advised me that I could leave Canada voluntarily and was assured that I would be given a letter which I could take to the nearest Consulate of Embassy in the People's Republic of China. This letter would guarantee me an interview, but would not guarantee that I would be allowed to migrate to Canada.

The applicants have further concerns about the conduct of the interviews, including that minimal notice was given to many applicants to attend at their interview, and that the interviews frequently took place without counsel. Counsel for many of the applicants at the time of their interviews, Anita Sulley, has stated in her affidavit:

In late August and early September, 1989, my clients began receiving from the Backlog Clearance office, a letter and form to complete, a copy of which is attached hereto and marked as Exhibit "J" to this my affidavit. On extremely short notice, my clients were asked to complete this form and attend for a humanitarian and compassionate review.

I attended with several clients for these reviews and determined that the officers were directed and would only consider persons who fell within the Family Class criteria of the Immigration Regulations and persons who were athletic or cultural stars in their own right. The officers refused to consider the fact that there were other humanitarian and compassionate considerations that were applicable and were important in my clients' cases and warranted consideration.

The applicants have now been scheduled for hearings under the transitional provisions of An Act to Amend the Immigration Act to determine if a credible basis exists upon which the Refugee Division of the Immigration and Refugee Board might determine at a full hearing that the applicants are Convention refugees.

The applicant seeks certiorari quashing the decision of immigration officials at the Toronto Backlog Clearance Centre to the effect that there were insufficient humanitarian and compassionate grounds upon which to accept an application for permanent residence, and mandamus compelling the respondent to provide the applicant with "a full and fair interview of the … humanitarian and compassionate claim in accordance with the law … the duty of fairness". Counsel for the applicant has advanced four arguments in support of this application, two of which I have already dealt with. The remaining two are:

A)         The respondent's officials have failed to comply with the duty of fairness imposed on administrative decision makers both at common law and under the Charter where section 7 interests are affected.

B)         The Minister in the establishment of "policy" directives and guidelines has unlawfully fettered the discretion of her officers to consider the applicants' cases pursuant to section 114(2) of the Immigration Act, 1985.

I will consider these arguments under separate headings.

A) Fairness

The facts contained in the affidavits submitted in support of the applicants' motions, and the testimony of Brian A. Dougall, manager of the Backlog Clearance Task Force, taken before the Official Examiner and available to me in transcript form, establish the following with respect to the conduct of the pre-inquiry humanitarian and compassionate review:

i)          Minimal notice was given to many applicants to attend at their interview for the pre-inquiry humanitarian and compassionate review.

ii)          In many cases the pre-inquiry humanitarian and compassionate review was without counsel, where counsel was not in attendance. The interviews, in some cases, were set up without consideration for when a particular lawyer would be available to represent his or her client, and interviews could not be adjourned to accommodate counsel.

iii)         In some cases the interviewing officers proceeded without a Commission interpreter, using instead a family member or friend to handle the interpretation.

iv)         In some cases the applicants were not questioned as to the existence of humanitarian factors at the pre-inquiry humanitarian and compassionate interview. The humanitarian review which was undertaken was restricted to the guidelines published for refugee claimants in the refugee Backlog Clearance Programme.

The applicants submit that the Immigration Officials conducting these interviews have failed to comply with the duty of fairness imposed on administrative decision makers both at common law and under the Charter, where s. 7 interests are affected. Counsel for the applicant has argued that:

… given the significance of the decision being made, and the serious consequences of a negative decision, for a person who is not a Convention refugee and who has violated a provision of the Immigration Act, the administrative decision making process as to the existence of humanitarian and compassionate considerations requires both at common law and pursuant to section 7 of the Charter that the following minimal procedural safeguards be provided:

(i)         adequate notice; …

(ii)         right to retain and consult counsel within a reasonable period of time; …

(iii)        right to an interpreter; …

(iv)        correct and adequate information upon which the applicant may make decisions as to the appropriate remedy to seek;

(v)         full and adequate examination and disclosure of the case to meet; …

(vi)        a review in accordance with the mandate of the statutory power of discretion.

Counsel for the respondent argues that the decision made by the immigration officer at the applicant's interview on August 16, 1989 did not involve the applicant's interests under s. 7 of the Charter, and that the initial humanitarian and compassionate interview did not breach the duty of fairness. The respondent submits that where the decision is an administrative one, with no grave consequences for the applicant, the requirements of the duty of fairness are minimal. This is the case in the matter before me, the respondent submits, since "… the decision in question is merely an initial humanitarian and compassionate review. The applicant is entitled to a further humanitarian and compassionate review prior to any removal, at which point all the submissions will be considered". Moreover, the respondent argues that the applicant's rights under s. 7 of the Charter are not affected, since, as there is no removal order in existence against the applicant, there is no threat to his life, liberty, or security of the person.

With respect to all of these submissions I must underline that I am dealing here with a group of cases. This has special significance with respect to the submission on the fettering of discretion, but it does not have the same impact on the element of fairness. There is evidence that some applicants who may have been treated unfairly, perhaps in terms of notice, translation, counsel or for any other reason, were asked to attend a second interview. It is unclear, therefore, whether any initial unfairness may have been cured and if so, in what case. Similarly, since this application was launched some applicants have gone on to credible basis hearings where success might equally have cured any earlier unfairness. I note also that the credible basis hearing is not under attack in these proceedings. Accordingly, I will not allow this application on the grounds of unfairness, except as it relates to the fettering of discretion.

B) Discretion

The applicants argue that the Minister, in the establishment of policy directives and guidelines pertaining to the humanitarian and compassionate review portion of the Backlog Clearance Programme, has unlawfully fettered the discretion of her officers to consider the applicants' cases pursuant to s. 114(2) of the Immigration Act, 1985.

The policy guidelines in question are those set out in the document entitled "Refugee Claimants Backlog Procedures", and reproduced earlier herein. These guidelines appear to limit their application to particular classes of persons, namely "members of official delegations, athletic teams or cultural groups", and persons in "family dependency situations" described more specifically in the guideline. Counsel for the respondent has argued that "there is nothing in the policy which prevents the immigration officer from examining each case on it [sic] individual merits", but the evidence before me, and in particular the affidavits of the applicants describing the conduct of their interviews, suggests that officers have not been questioning applicants on humanitarian and compassionate issues which may fall outside the designated criteria.

The affidavit of Ken Yung Yhap, the applicant before me, includes the following description of his interview:

… The officer did not ask me any questions concerning the humanitarian and compassionate aspects of my case. In particular, the officer did not ask me about my life in Canada over last three years, and what reasons there are for my remaining in Canada. The officer refused to consider the present situation in China and primarily was concerned about why I did not take up residence in Guyana in 1986.

The applicants argue that the present policy guidelines applied by the Immigration Commission constitute a fetter on the statutory power of the Governor in Council to both exempt persons from the requirement of s. 9(1) of the Act, and to authorize the landing of persons for humanitarian and compassionate reasons pursuant to s. 114(2) of the Act. The applicants concede that policy guidelines may be established, but submit that these guidelines cannot be applied in such a manner as to fetter a statutory power of discretion. Summarizing their position, the applicants maintain that:

… section 114(2) and section 9(1) of the Act being remedial in nature are required to be interpreted broadly and liberally. There are no statutory criteria established for section 9(1) exemptions. The only statutory criteria established under section 114(2) are whether there exist "public policy" reasons or "humanitarian or compassionate" considerations to warrant facilitation of landing in Canada. As such it is submitted that any factors which may go towards humanitarian and compassionate considerations must be considered by immigration officers, and any factors relevant to exempting a person from the requirement of obtaining an immigrant visa abroad must be considered. On the evidence before this Court both contained in the Respondent's policy directives and the Applicants' accounts of how they are being considered on the pre-inquiry humanitarian and compassionate review, the statutory power of discretion under section 9(1) and section 114(2) has been fettered [emphasis mine].

The respondent argues that where a broad statutory discretion is granted, as in s. 114(2) of the Immigration Act, the adoption of a policy or guidelines for decision making ensures that the discretion is fairly and evenly exercised. The respondent submits that the Minister is entitled, pursuant to the statutory power of discretion, to select criteria which should be taken into consideration for the purpose of a humanitarian and compassionate exemption. The criteria selected for the exercise of discretion in this instance are, the respondent argues, within the policy mandate of the legislation.

The relevant portions of the section of the Immigration Act which sets out the statute's "policy mandate" are s. 3(b), (c) and (g):

3.         It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need

...

(b)        to enrich and strengthen the cultural and social fabric of Canada, taking into account the federal and bilingual character of Canada;

(c)        to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;

...

(g)        to fulfil Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;

The other statutory provisions relevant to this issue are ss. 9(1) and 114(2) of the Immigration Act, R.S.C. 1985, C. I-2:

9.(1)      Except in such cases as are prescribed, every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.

114.(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 that regulation or the person's admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.

The applicant is, pursuant to s. 114(2) of the Act, entitled to a full and fair review to determine the existence of humanitarian or compassionate considerations which might warrant exempting him from the requirement set out in s. 9(1) of the Act, or otherwise "facilitating his admission". The right of the applicant to a full and fair review in this regard was clearly confirmed by the Supreme Court of Canada in Min. of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565. In the more recent case of Sobrie v. Minister of Employment and Immigration (Fed. T.D., Court No. T-2596-86, July 30, 1987), I held, further, that this consideration is to take place independently of the consideration of the basic merits of any other application advanced by the applicant. As I stated in Sobrie:

I believe the applicant must succeed … I am not satisfied that he has ever been given an opportunity to address the existence of humanitarian and compassionate grounds under S. 115(2). The immigration officials have assumed, quite logically, that their extensive file on Mr. Sobrie provides all the information that could possibly be relevant to this determination. That assumption is not warranted and is not in accordance with the principles of fairness.

Even in a case, therefore, where it is evident that all other claims and applications advanced by the applicant are doomed to failure, the applicant's right to consideration on humanitarian and compassionate grounds may not be unduly restricted. This principle was expressed in Sobrie us follows:

Obviously, the purpose behind s. 115(2) of the Act is not merely to repeat the procedure of evaluating an immigrant on the usual grounds specified in the Act. The intention is to provide a fresh view of the immigrant's situation from a new perspective. It follows that for the Minister to fairly consider an application under this section, he must be able to direct his mind to what the applicant feels are his humanitarian and compassionate circumstances. These may have noting to do with the facts contained in the file of his previous immigration proceedings.

In the context of this case, what constitute lawful restrictions on the scope of the review, and to what extent may the Minister select and impose criteria to be applied in a review of this nature? The general position of Canadian courts on the structuring of discretion has been articulated in Professor J.M. Evans' Judicial Review of Administrative Action, Fourth edition, where he states at p. 312:

… a factor that may properly be taken into account in exercising a discretion may become an unlawful letter upon discretion if it is elevated to the status of a general rule that results in the pursuit of consistency at the expense of the merits of individual cases.

The importance of flexibility in the adoption of policy or guidelines as a means of structuring discretion is highlighted by D.P. Jones and A.S. de Villars in Principles of Administrative Law, where the difference between "general" and "Inflexible" policy is described at p. 137:

... the existence of discretion implies the absence of a rule dictating the result in each case; the essence of discretion is that it can be exercised differently in different cases. Each case must 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.

On the other hand, it would be incorrect to assert that a delegate cannot adopt a general policy. Any administrator faced with a large volume of discretionary decisions is practically bound to adopt rough rules of thumb. This practice is legally acceptable, provided each case is individually considered on its merits.

The discretion afforded an immigration officer by s. 114(2) of the Act is wide. The officer is asked to consider, with respect to the possible admission to Canada of a given applicant, "reasons of public policy" as well as the "existence of compassionate or humanitarian considerations". Neither the section of the Immigration Act which sets out definitions of terms contained in the Act nor the Immigration Regulations describe in any greater detail how the section is to be applied, nor what interpretation the officer is to give to the rather broad terms contained therein. It is not surprising, therefore, that the Immigration Manual contains in Chapter 9 policy guidelines which assist an officer in the exercise of his or her discretion pursuant to, among other sections, s. 114(2) of the Act. Chapter 9 opens with the following passage, which appears under the heading "Exercise of Discretionary Powers":

It is important … that officers realize that these guidelines are not intended as hard and fast rules. They will not answer all eventualities, nor can they be framed to do so. Officers are expected to consider carefully all aspects of cases, use their best judgement, and make the appropriate recommendations.

Chapter 9 of the Immigration Manual assists an officer in assessing situations, and the humanitarian and compassionate issues raised by them, which include problems with spouses, family dependency, difficulties with return to country of origin, illegal de facto residents, and situations involving marriage breakdowns. The Chapter advises immigration officers that in general,

Humanitarian and compassionate grounds exist when unusual, undeserved or disproportionate hardship would be caused to a person seeking consideration, or to persons in Canada with whom the immigrant is associated, if he were not allowed to remain in Canada while his request for landing is in process.

By comparison, the policy guidelines contained in "Refugee Claimants Backlog Procedures" are rigid and inflexible. The following direction is given at p. 11 of this document;

… The officer reviews the claimant's case, checks the information form for accuracy, considers the criteria contained in Humanitarian and Compassionate Criteria in making a decision and completes the Humanitarian and Compassionate Summary …

The "Humanitarian and Compassionate Review Criteria", reproduced at p. 8 herein are limited, and refer only to a carefully selected segment of the "backing" population. Applicants who are not "members of official delegations, athletic teams or cultural groups …", and who are not "close family members of a Canadian resident" would appear to be excluded from humanitarian and compassionate review subject to these criteria.

I am not required here to adjudicate upon the propriety of the guidelines for humanitarian and compassionate review set out in Chapter 9 of the immigration Manual. I will say, however, that those guidelines appear to constitute the sort of "general policy" or "rough rules of thumb" which are an appropriate and lawful structuring of the discretion conferred by s. 114(2). Those guidelines might have acted as a model for the drafting of guidelines to be used in conjunction with the humanitarian and compassionate review of refugee claimants in the Backlog Clearance Programme. Unfortunately, the guidelines adopted as "Humanitarian and Compassionate Review Criteria" in the "Refugee Claimants Backlog Procedures" directive do not, in the same way, impress me as criteria expressing general policy and "rough rules of thumb". The criteria much more strongly resemble inflexible self-imposed limitations on discretion, which clearly result in the pursuit of consistency at the expense of the merits of individual cases. I am of the opinion that this fettering of discretion constitutes a jurisdictional error which can only be redressed by providing the applicant with a full and fair interview of his humanitarian and compassionate claim in accordance with the law and the duty of fairness.

The problem in the present case is that the text of the Minister's policy directive creates the risk that her officials will consider it a limitation on the category of humanitarian and compassionate factors. It is here that the importance of this application from a group of twenty-five claimants becomes apparent. No single case could prove that immigration officials have perceived and exercised this limitation on the category, but the evidence of the approximately twenty-five applicants satisfies me that immigration officials have done exactly the. The Minister has quite properly directed that in this process a preliminary interview on humanitarian and compassionate grounds is to take place. Simple consistency demands that the Minister must direct her mind to what the applicants feel are their humanitarian and compassionate circumstances, and not to a set of criteria which constitute inflexible limitations on the discretion conferred by the Act.

In the result, therefore, based on the applicant's arguments on the issue of the fettering of discretion only, I am granting an order in the nature of certiorari quashing the decision of immigration officials at the Toronto Backlog Clearance, Canada Immigration Centre, the respondent, dated August 16, 1989, which decision indicated that it had been determined that there were insufficient humanitarian and compassionate grounds upon which to accept the applicant's application for permanent residence in Canada, and an order in the nature of mandamus compelling the respondent to provide the applicant with a full and fair interview of his humanitarian and compassionate claim in accordance with the law.

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