Wednesday, May 30, 2012


Canadian consulate employees get closing notice - Buffalo - Business First

Canadian consulate employees get closing notice

Business First by Allissa Kline, Buffalo Business First Reporter

Date: Tuesday, May 29, 2012, 4:41pm EDT

Employees of the Consulate General of Canada in Buffalo today received official notice that the office will be shuttered this summer by the Canadian government.

A consulate employee who spoke on the condition on anonymity confirmed that 75 to 80 employees who provide immigration assistance and business development support will lose their jobs Aug. 27. However, immigration services will start to be handled internally or shifted to other offices “within the month,” so the Buffalo office will effectively close by the end of June, the employee said.

The closure stems from federal budget cuts and a change in the way immigration processing is handled, the employee said. Similar shutdowns are set to take place in smaller trade offices in Philadelphia, Phoenix and Raleigh-Durham.

No details about the Buffalo closure have been released by the Citizenship and Immigration Canada department. More information may be available later this week.

News of the closure of the Buffalo office was reported May 25 by the Canadian Broadcasting Corp. The consulate is a longtime tenant of One HSBC Center, the tallest building in downtown Buffalo.

The office recently completed more than $1 million in office renovations and renewed its 10-year lease with Seneca One Realty LLC in 2010. The employee did not know the terms for getting out of that lease.

The closure follows the May 24 announcement that HSBC Bank USA N.A., the anchor tenant at One HSBC Center, is eliminating its anti-money laundering monitoring unit in Buffalo between Sept. 18 and Oct. 18. The department’s 77 employees are located at the tower.

The Phillips Lytle law firm will vacate the building in 2013 when it relocates to the former Donovan State Office building, now known as One Canalside.

About half of the consulate employees in Buffalo are Americans.

Saturday, May 26, 2012


After decades in operation, the largest Canadian Consulate in the United States will be closed. Files will be transferred to other visa posts. City of Buffalo shocked.

Area leaders on every level to fight decision to close Canadian consulate - Downtown - The Buffalo News

Thursday, May 24, 2012


This is not surprising. Previous lawsuits in connection with other government immigration actions, such as changes  to immigration legislation in 2002, have failed.

Court rules against would-be immigrants | Metro

Wednesday, May 23, 2012


This is hardly a surprise. All PNPs are suspect,especially those in provinces that do not offer much business opportunities due to limited markets. Also, many immigrants just "use' the PNP to gain residency but never actually settled in the province that nominated.

P.E.I.'s PNP a "serious failure," says Kenney - Local - The Guardian

Tuesday, May 22, 2012


See report below. This is unsurprising: fraud has been rampant in Chinese immigration applications for a very long time, across all categories of immigration.

Sun News : Chinese 'rent-a-wife' refugee scam detected


Open work permits for caregivers very slow in coming. System is not set up to deal with demand.

Toronto News: Nannies waiting longer for open-work permits in Canada -

Nannies waiting longer for open-work permits in Canada

May 21, 2012
Nicholas Keung

Catalina Ferano longed for the day she would be free to go where she wants and do whatever job she chooses in Canada.
So after the Filipina nanny fulfilled her two-year obligation as a live-in caregiver last July, she immediately applied for an open-work permit while her application for permanent residency was being processed.
Now, nine months after submitting her application, Ferano’s open permit still hasn’t arrived.
“Without it, I have to continue to work as a live-in caregiver. It’s frustrating,” said Ferano, an architect from the Philippines.
Kay Manuel, of Toronto’s Caregivers Action Centre, said the advocacy group has received a growing number of calls from nannies complaining wait times for the open permit have been creeping up — after a drop at the start of 2012 when Ottawa issued 10,000 permits to desperate caregivers.
“Some of our members called the immigration phone line and they are told to get a new (live-in) employer because CIC doesn’t know how long the open-work permit will take,” said Manuel, who submitted her own application last August and is still waiting.
Citizenship and Immigration Canada said it is not known how many open permit applications are in the queue but there is currently an inventory of 2,367 permanent resident cases through the live-in caregiver program.
“The current inventory of open-work permit applications may be less than 2,367,” department spokesperson Bill Brown said in an email. “The current processing time is 71 days.”
As a result of policy changes, Brown added, live-in caregivers are now eligible for open permits immediately after they apply for permanent residence, instead of waiting until they receive “approval in principle” — a streamlining that can save applicants 18 months.
The live-in caregiver sector has been alarmed by recent comments that Immigration Minister Jason Kenney made recently to the Economic Club of Canada, that the current situation creates “a bit of a revolving door” with nannies being allowed to leave their jobs after two years. Critics worry the government is poised to do away with the option of allowing them to become permanent residents.
Manuela Gruber Hersch, of the Association of Caregiver & Nanny Agencies Canada, said there is a significant caregiver and nanny shortage across the country.
“It is difficult for caregivers to plan their lives without any consistency when to expect their open-work permits,” she said. “It is challenging for families to co-ordinate their childcare needs without any predictability when their caregiver may depart. This makes it extremely difficult and stressful.”
Ana Maria Sanchez applied for her open permit and permanent residency in May 2010. She got her permit in December, but her permanent residence still hasn’t come through.
She came to Canada in 2008 under the caregiver program after spending six years in Hong Kong as a nanny.
“I left my son when he was just 12 months old. He is now already 11,” said Sanchez, a midwife from the Philippines. “I just want to be with my son and my husband.”

Saturday, May 19, 2012


The importance of following the requirements of the Regulations and obtaining timely legal advise are highlighted in the case below, where a foreign student applying for a Post Graduate Work permit failed for fling her application out of time. the court noted that the officers have no discretion in the matter.

Adroh v. Canada (Minister of Citizenship and Immigration)

Marie Stéphanie Avi Adroh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 402
[2012] A.C.F. no 402
2012 FC 393
Docket IMM-5720-11

 Federal Court
Montréal, Quebec
Tremblay-Lamer J.
Heard: April 3, 2012.
Judgment: April 4, 2012.
(14 paras.)


1     TREMBLAY-LAMER J.:-- This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001 c 27 (Act), of a decision dated July 19, 2011, by an immigration officer at the Case Processing Centre in Vegreville, Alberta (officer) refusing the applicant's post-graduation work application.
2     The applicant is a citizen of Côte d'Ivoire. On December 27, 2007, she arrived in Canada to obtain, with a study permit, a bachelor's degree in accounting at the Université du Québec à Montréal. Her permit, which initially expired in October 2010 was extended until December 31, 2010. As of that date, the applicant no longer had temporary resident status in Canada. It was not until May 5, 2011, that the applicant applied for a post-graduation work permit: she asked for the restoration of her status and for her stay in Canada to be extended in order to gain experience working in accounting. This was the only information before the officer when he made his negative decision on July 19, 2011.
3     In his decision dated July 19, 2011, the officer indicated the following: [TRANSLATION]
• Your application, as presented, was refused.
• An application for restoration must be made within 90 days after losing temporary resident status. Your temporary resident status cannot be restored because your application was submitted after the regulated 90-day period. Since you no longer hold temporary resident status in Canada, your work permit application cannot be approved.
4     It is accepted that the applicant had to obtain the restoration of her temporary resident status and hold a valid study permit for the post-graduation work permit application to be granted. If an applicant does not have temporary resident status in Canada, the officer has no discretion: the officer must refuse the work permit application.
5     The law on the restoration of temporary resident status is clear. In accordance with paragraph 47(a) of the Act, a foreign national loses temporary resident status at the end of the period for which they are authorized to remain:
• 47.
A foreign national loses temporary resident status:
• (a) at the end of the period for which they are authorized to remain in Canada.
6     Section 182 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), specifies the following:
• 182.
On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay and has not failed to comply with any other conditions imposed. [Emphasis added.]
7     Justice Gauthier emphasized the following in Sui v Canada (Minister of Public Safety and Emergency Preparedness), 2006 FC 1314, [2006] FCJ No 1659 at paragraphs 33-34 (Sui):
• In order to apply for restoration, a visitor worker or student must not have lost his temporary resident status for longer than ninety days ... . The officer reviewing such an application has no discretion. He must restore the status of the applicant if following an examination, he is satisfied that the applicant meets the initial requirements for [her] stay ... .
8     The applicant failed to submit an application for the restoration of her temporary resident status within the specified period. I also note that, despite the fact that the applicant states that she was unable to obtain her passport in a timely fashion, having received it in March, she nevertheless could have submitted her application within the period set out in the Act.
9     The language in section 182 of the Regulations is not discretionary: if the application for restoration is brought outside of the 90-day period imposed by law, the officer must refuse the application (Novak v Canada (Minister of Citizenship and Immigration), 2004 FC 243 at paragraph 30).
10     Even though one of the objectives of the Act is "to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism ... and cultural, educational and scientific activities" (paragraph 3(1)(g) of the Act), Justice Gauthier explained the following in Sui, above: "[t]his objective must obviously be balanced with the need to maintain the integrity of CIC's programs and to promote due compliance with the various obligations set out in [Act]" (at paragraph 51).
11     In summary, the applicant breached the requirements that Canadian legislation imposed on her in view of keeping her legal status in the country; the officer had no choice but to refuse the applicant's post-graduation work permit application because she no longer held temporary resident status.
12     Consequently, the application for judicial review is dismissed.
13     The applicant proposed the following question for certification:
• Does temporary resident status rely on changing circumstances (civil war) in the applicant's country of origin? In other words, the application for restoration deadline remains the same even in situations where there is a crisis in the country of origin.
14     I find that this is not an issue raised in the circumstances of this case. Consequently, no question will be certified.

THE COURT ORDERS AND ADJUDGES that the application for judicial review be dismissed. No question is certified.


Immigration consultants charged in connection with allegedly assisting in misrepresentation of  citizenship applicants' residency requirements.

Needless to say, citizenship fraud is a very serious matter.  Applicants are sometimes tempted to hide their trips abroad, or to make it look as if they are residing in Canada when in fact they are not. That is an offence under current immigration legislation.Applicants are cautioned never to participate in misrepresentations, even where their "advisers" may suggest to them that they are common or "normal" .  That is simply not so, and consequences can be dire.

See National Post article:

Immigration fraud: Canada 2000 Immigration and Business Services CEO, employees charged | News | National Post

Halifax consulting firm members charged with aiding immigration fraud: CBSA

Stewart Bell  May 18, 2012 – 2:36 PM ET | Last Updated: May 18, 2012 6:33 PM ET
Ziad El Shurafa’s immigration consulting firm in Halifax proclaimed on its website that since 1999 it had “helped hundreds of people pursue their dreams” of coming to Canada to live, work and study.

But on Friday federal authorities alleged that what Mr. El Shurafa and his two associates, Mohammed Elhajabed and Awni Sakalla, had done was help foreigners defraud Canada’s immigration system.

The CEO of Canada 2000 Immigration and Business Services Inc., Mr. El Shurafa was charged with eight counts of counselling misrepresentation. Mr. Elhajabed also faces eight counts while Mr. Sakalla faces two.

The Canada Border Services Agency said the men had helped clients who lived abroad create the appearance they were residing in Canada, thereby enabling them to obtain Canadian citizenship without living here.

Each count relates to a single family the suspects allegedly helped commit residency fraud, but investigators examined more than 500 files. The charges stem from activities dating back as far as January 2006. Investigators raided Mr. El Shurafa’s company in May 2011 but charges were only filed last week.

“Immigration fraud is a criminal offence in Canada and damages the integrity of our immigration system,” said Andrew LeFrank, CBSA’s director for the Atlantic region. “The CBSA takes this issue very seriously and works closely with its partners to identify, investigate and prosecute those engaging in immigration fraud to the full extent of the law.”

All three accused are citizens of Canada. They face penalties of up to $100,000 in fines and five years imprisonment for each count. Only Mr. Sakalla has been arrested. The other two remain outside Canada. The Canadian Society of Immigration Consultants has revoked Mr. El Shurafa’s status.

According to the Canada 2000 website, Mr. El Shurafa runs the Dubai office. The company also says it has offices in Iran, Saudi Arabia, Beirut and Jordan. Corporations Canada lists Mr. El Shurafa as the company’s sole director.

The charges are part of a nationwide crackdown on immigration fraud. Jason Kenney, the Minister of Citizenship and Immigration has publicly declared his government would take action against thousands who have obtained Canadian citizenship by fraud.

In March, RCMP arrested an immigration lawyer and her assistant in Windsor, Ont., who had allegedly been coaching refugee claimants to give fake accounts of their pasts. Last year in Quebec, RCMP arrested an immigration consultant accused of providing citizenship and immigration papers to hundreds of Middle East residents who then collected tax benefits from Ottawa.

“It’s a national priority for Canada Border Services Agency,” said Albert Price, manager of criminal investigations at the CBSA’s Atlantic Region. Those migrants found to have obtained their status in Canada through fraud may ultimately lose their residency and citizenship, he said.

National Post

Friday, May 18, 2012


Another case dealing with criminal sentencing and immigration, bu tin this case the Court of Appeal made the sentence harder on the convicted, by changing it from a community service setting to imprisonment, even though the term was reduced from 22 to 18 months.

R. v. Shawile

Her Majesty the Queen, Appellant, and
Abite Tesfye Shawile, Respondent
[2012] S.J. No. 299
2012 SKCA 51
Docket: CACR2067
 Saskatchewan Court of Appeal
J.G. Lane, R.K. Ottenbreit and M.J. Herauf JJ.A.
Heard: May 2, 2012.
Oral judgment: May 2, 2012.
Released: May 4, 2012.
(14 paras.
The judgment of the Court was delivered by

1     M.J. HERAUF J.A. (orally):-- Abite Tesfye Shawile pled guilty to one count of trafficking in cocaine contrary to s. 5(2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Mr. Shawile was sentenced to 22 months to be served in the community, plus a 10 year firearms prohibition. Mr. Shawile was made subject to a DNA order and he consented to the forfeiture of his vehicle.
2     The Crown appealed the sentence on the grounds that the sentencing judge failed to give proper effect to the gravity of the offence and over-emphasized the personal circumstances of the offender to the exclusion of other sentencing factors such as deterrence and denunciation.
3     Based upon information received from a confidential informant, Mr. Shawile was arrested driving from Saskatoon to Prince Albert with approximately 53 grams of cocaine and $895 cash in his jacket pocket. The cocaine had a street value of anywhere from $2,400 up to $9,500 if sold in small quantities.
4     Mr. Shawile was born in Ethiopia where he was raised by his grandmother. While in Ethiopia he experienced regular violence but was not directly subjected to any violence or abuse. His mother, who had previously immigrated to Canada, managed to sponsor Mr. Shawile for immigration to Canada when he was 10 years of age. Shortly after his arrival in Canada, Mr. Shawile was placed in foster care. As a result, he does not have a relationship with his mother. Mr. Shawile was in foster care with two different families which he found to be very positive. He briefly returned to live with his mother, but left shortly after and essentially has lived on his own since he was 14 or 15.
5     Mr. Shawile is now 23 years of age; is in good physical and mental health; has a positive work history; has completed his grade 12; and was accepted for post-secondary education.
6     Mr. Shawile admits to occasional drinking and past experimentation with marijuana and ecstasy. Mr. Shawile received two previous conditional discharges for possession of cocaine and failure to comply. There are also four recent convictions for breaches of Mr. Shawile's bail conditions when released on this charge as well as one for evading police. These incidents pre-dated the sentencing on this charge but were not plead to and sentenced until recently. The sentencing judge and the person who prepared the pre-sentence report would not have been aware of these charges.
7     Mr. Shawile admits that his motivation for committing the offence was money. His friend offered him a "substantial amount of money" to deliver cocaine to Prince Albert. The pre-sentence report was fairly positive. It identified Mr. Shawile as a medium risk to re-offend given his negative attitude towards police and a belief that they are out to get him; his continued ties with some peers still involved in the criminal justice system; and his lack of any stable or close working relationship.
8     It was apparent that the sentencing judge was moved by Mr. Shawile's circumstances. The sentencing judge concluded that Mr. Shawile's personal circumstances were compelling and unique. The sentencing judge viewed Mr. Shawile's progress as "remarkable" given his background.
9     The sentencing judge acknowledged the "guidance" from this court on both the range of sentences for trafficking in hard drugs such as cocaine (18 months to four years) and, that generally, personal circumstances of an offender are secondary considerations to factors such as deterrence and denunciation.
10     The gravity of this offence is demonstrated by the maximum sentence of life imprisonment. As well, the motivation was entirely for money. There is no suggestion that Mr. Shawile is addicted to drugs; under dire financial circumstances; or committed the offence under duress. The fact that Mr. Shawile was entrusted by a friend to transport the cocaine to Prince Albert demonstrates that he was a trusted confidant to a wholesaler.
11     The personal circumstances of Mr. Shawile as outlined in paragraphs four to six are very positive. For a decade after arriving in Canada Mr. Shawile led a commendable life. There are no circumstances from his childhood in Ethiopia that would diminish his moral culpability for the offence at issue.
12     While we agree that Mr. Shawile's circumstances are mitigating and would justify a sentence at the low end of the range, it is our view that the sentencing judge gave them undue weight in comparison to the principles of denunciation and general deterrence, which must play a significant role in offences of this nature. In R. v. Aube et al., 2009 SKCA 53, 324 Sask.R. 303, Smith J.A. articulated this point as follows:
• 19 This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years, and that the personal circumstances of an accused, while not to be ignored, are secondary considerations to the issues of deterrence and denunciation. It is an error in principle to over-emphasize the personal circumstances of the offender to the exclusion of an examination of other sentencing factors. See. R. v. Patryluk, 2002 SKCA 33, and especially paragraphs 21-23. This decision, in particular, where the circumstances were much less serious, cannot be reconciled with the sentences imposed in the instant case. See also R. v. Goy (1992), 105 Sask. R. 131 (Sask. C.A.); R. v. Grewal, 2003 SKCA 56; R. v. Dubai, 2008 SKCA 49; and R. v. McCallum, 2007 SKCA 139.
13     In our view, the 22 month conditional sentence for trafficking in cocaine is demonstrably unfit given the 18 month to four year range established in other cases of trafficking offences such as Aube, R. v. Dubai, 2008 SKCA 49, 310 Sask.R. 85; R. v. Kraft, 2008 SKCA (SentDig) 36; R. v. McCallum, 2007 SKCA 139, 302 Sask.R. 298; R. v. Patryluk, 2002 SKCA 33, 217 Sask.R. 309.
14     In the result, leave to appeal is granted, the 22 month sentence to be served in the community is set aside and a sentence of 18 months' imprisonment is imposed, which, is the sentence suggested by the Crown at the sentencing hearing. Mr. Shawile is given credit for the time already served under the conditional sentence order. Therefore, Mr. Shawile is sentenced to 10 months' imprisonment for the offence from today's date. All other orders will remain in place.


See this new report. It confirms what we have long suspected: Canada needs immigration to be an economic program, not a social program. It is time for a major change and to look for the future of immigration, not the past.

Health care cost for older immigrants pegged at nearly $3 billion

Health care cost for older immigrants pegged at nearly $3 billion

By Tobi Cohen, Postmedia NewsMay 17, 2012

OTTAWA — Elderly immigrants cost the government approximately $3 billion annually in health care, while those over 50 who have worked have never reported earning more than $15,000 a year, figures obtained by Postmedia News suggest.

The figures are contained in a memo produced just three months before the government froze the parent and grandparent stream and introduced a 10-year, multiple entry supervisa that requires visiting relatives to show proof of a year's worth of health insurance as a stopgap measure while Ottawa deals with a huge backlog in applications.
It suggests the government — which isn't shy about favouring economic immigrants — wasn't just trying to be fair as it got rid of the backlog, but that it also has grave concerns about the cost of accepting elderly immigrants given their low earning potential.
Released through access to information and prepared for Immigration Minister Jason Kenney in "response to a request for information regarding the cost of health care to senior immigrants and the contribution that parents and grandparents make to household income," the memo is also raising questions about whether Canada might be moving toward a two-tier health care system for newcomers.

It suggests some 2,712 refugees over the age of 65 cost the government $7.4 million in 2000-2010.
Meanwhile, in 2010 some 5,655 parents and grandparents over the age of 65 arrived in Canada at a cost of about $10,742 per year each for health care.
Based on data collected between 1980 and 2010, Citizenship and Immigration estimates there were about 275,000 immigrant parents and grandparents over 65 living in Canada in 2010 at a cost of nearly $3 billion a year for health care.

The total cost for a newcomer senior who lives to age 85 years was cited at about $160,000.

According to data collected by Citizenship and Immigration between 1980 and 2000, none of the parents and grandparents who arrived in Canada aged 50 or older have reported annual employment earnings that exceed $15,000.

A Commons committee has called already for the controversial supervisa to be made permanent — and last month, the government announced it also was cutting certain health benefits to refugees, which touched off a wave of protest among physicians.

In an interview Thursday, Kenney rejected the notion that Canada was moving toward a two-tiered health care system for immigrants but indicated a premium aimed at defraying health care costs is something the government is considering as it consults with stakeholders in a bid to reform the parent and grandparent stream, which is on hold for two years.

"One idea has been to require families to put down some kind of a health care bond for sponsoring parents or grandparents. They would pay up front for a portion of the health care costs that their parents would use in Canada," he said.

"Family sponsorship is a privilege, not a right. We are committed to family reunification within our system but it has to be linked to our scarce public resources. It's not fair for us to raise taxes on Canadians to pay for future health care costs for folks who've never lived in the country or paid taxes in it."

Outspoken Vancouver-based immigration lawyer Richard Kurland said he thinks $150,000 up front would be reasonable and that many immigrants he's spoken with are more than willing to pay a premium.

He envisions a "hybrid" system that includes a "money" stream for those willing to pay and a "freebie" stream in which provinces — which are responsible for the delivery of health care — tell the federal government how many parents and grandparents they're willing to absorb on the public dime.

Critics, however, see it all as the erosion of family reunification as a key tenet of Canada's immigration system — which they also say is increasingly favouring the rich.

"The level of coverage we are requiring people to buy for their family member who visits and the fact that it all has to be paid for in advance to qualify for the supervisa means effectively there's a huge swath of people in Canada who will no longer be able to even have their parents at their child's bar mitzvah or wedding," Queen's University law professor Sharry Aiken said.

"I'm very concerned about this shift because what it's saying is family reunification is for those who can afford to pay."

NDP immigration critic Jinny Sims added her office gets daily calls from people who have been denied a supervisa, many of them from China, India, Pakistan and the Philippines.

She said she believes any move toward a two-tiered health care system for immigrants would be "so unCanadian" and that parent and grandparent reunification, in particular, has spinoff benefits the government must not overlook.

Parents and grandparents, she said, often assist with childcare, which allows both parents to work. For newcomers from one-child policy countries like China who come through the economic streams favoured by the Conservatives, she said, the freedom to bring parents and grandparents over is a key reason they chose Canada.

"Granting seniors a supervisa . . . is no replacement for family reunification and what every family desires, which is to have their parents or grandparents close to them," Sims said.

Postmedia News has obtained updated figures on the parent and grandparent supervisa poised for release Friday that show an approval rate of about 83 per cent.

Some 4,425 applications have been processed, on average within eight weeks of receipt, since the visa was introduced. Of them, 3,684 were approved, 20 were withdrawn and 741 were denied, mostly because the applicants did not meet the criteria, which require sponsors to have a minimum income of $22,637 if they're single or nearly $60,000 for a family of seven. They must also complete a medical exam and show proof of insurance.

Thursday, May 17, 2012


I am quoted in today's National Post story on medical inadmissibility, HIV and other immigrants with medical conditions/

Canadian immigration rules blur when illness involved | News | National Post

Canadian immigration rules blur when illness involved

Tom Blackwell May 16, 2012 – 9:41 PM ET | Last Updated: May 16, 2012 9:42 PM ET

Reviving questions about when and if a would-be immigrant’s health problems should keep him out of Canada, the Federal Court has overturned a government decision to bar a Panamanian man from the country because of the potential financial burden of his HIV infection.

Nestor Ovalle has a job offer from a Toronto accounting firm and qualified for entry under the skilled-worker category. He was denied permanent resident status, however, on the grounds that his need for $18,000 a year in anti-retroviral drugs could unduly strain Canadian health-care resources.

The court quashed that ruling this month and sent the case back for a new hearing, saying the original Immigration Canada officer ignored evidence that a U.S. charity — not Ontario taxpayers — would pay for Mr. Ovalle’s medication.

It is the latest in a string of recent decisions on whether HIV, multiple sclerosis or other illness requiring expensive treatment should be a barrier to entry, including one earlier this month that found an elderly American couple — one of whom has advanced Alzheimer’s — came here simply because they liked Canada’s health-care system better.

Some judges have concluded that promises to cover the cost of drugs and other care privately are unrealistic or would be all but impossible to enforce. Others have decided offers to pay expenses — often by well-heeled applicants — are reasonable and should be considered seriously.
Qualified immigrants are welcome to come to Canada “unless they are sick; except if they are rich — maybe,” one judge wrote in a 2010 ruling, summing up the complex legal landscape.

The law needs to be clarified, said Sergio Karas, a Toronto immigration lawyer, who argues that no matter what kind of commitment immigrants make to cover extraordinary health costs, there is basically no system in place to ensure they will.

“We have in Canada a problem with access to health care, in terms of waiting lists and all that, so it’s not just the cost, it’s also taking the place of someone else,” said Mr. Karas. “Shouldn’t this be a national debate, about whether taxpayers are willing to give access to public resources?”

The government itself is also concerned about whether seriously ill immigrants will keep their promises to pay for health services, especially when they have access to government-financed care, said Remi Lariviere, a spokesman for Citizenship and Immigration Canada.

“There are no mechanisms for CIC to enforce [cost] mitigation plans,” he said via email.

Mr. Ovalle and his lawyer, Michael Battista, could not be reached for comment.

A lawyer who advocates for immigrants in such cases, however, noted the Supreme Court has indicated that prospective immigrants must be given a chance to show they can offset the higher social service and health-care costs they might pose. Canada should generally consider the positive contributions immigrants will make to the country — through paying taxes and in other ways — and not just what they might draw from taxpayer-funded services, said John Norquay of HIV & AIDS Legal Clinic Ontario.

“The whole immigration process is premised to a certain extent on hoping for the best,” said Mr. Norquay. “We hope that people are going to give more than they take back.”

Federal legislation excludes foreigners whose medical costs are likely to top the average for a Canadian, currently pegged at about $6,100 a year. A 2005 Supreme Court ruling, though, said the government should consider an immigrant’s ability to offset such expenses themselves.

Mr. Ovalle first came to Canada several years ago, applying for refugee status based on the persecution he said he suffered in Panama as a gay man with HIV, including beatings by his own parents and firings from two jobs. The refugee claim was denied on the grounds the Panamaian government works to protect its gay citizens from discrimination.

Before being removed from Canada, he began working for Zeifmans LLP, a Toronto chartered-accounting firm. It has offered him a job if he returns, calling Mr. Ovalle a “valuable and reliable” worker with skills in U.S. tax accountancy that are difficult to find in Canada.

Back in Panama, he qualified to emigrate here under the skilled-worker class. As with most other Western countries, having HIV does not automatically exclude a would-be immigrant from being allowed to settle in Canada.

But an immigration officer rejected Mr. Ovalle’s application last year, citing the rule on excessive health-care expenses. Anti-retroviral drugs are now allowing HIV patients to live long and relatively healthy lives, but the cost for Mr. Ovalle is about $1,500 monthly.

‘The whole immigration process is premised to a certain extent on hoping for the best’

In Ontario and many other provinces, he would be eligible for funding to cover much of that drug bill, as well as other health care.

Mr. Ovalle offered up a letter from Aid for AIDS International, an American charity that has funded his medication since 2009 and promised to keep footing the bill even if he moved to Canada. He would also receive up to $1,500 a year in medical and dental benefits with his job.

Justice James O’Reilly overturned the Immigration Canada rejection, saying it was unreasonable because the officer seemed to not even consider the charity’s offer.

The Panamanian can now argue his case before another officer.

National Post

Wednesday, May 16, 2012


This Federal Court case, just reported, is amazing and sad, not only because it involves elderly applicants who are US citizens, but also because the applicants do not appear to have planned their immigration properly at the outset. Their initial conduct and declarations to CBSA laid the foundation for the chain of events that followed, and made it difficult to achieve a postive outcome. Had they proceeded correctly and deliberately, they could have succeeded. However, they seem to have improvised, and the chain of events that followed was nearly impossible to stop. This case shows the importance of seeking the appropriate legal advice before embarking upon any immigration process, and not to wait until matters spin out of control.

Rosenberry v. Canada (Minister of Citizenship and Immigration)

Gordon Rosenberry, Muriel Rosenberry, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 547
2012 FC 521
Dockets IMM-5788-11, IMM-5790-11
 Federal Court
Toronto, Ontario
Russell J.
Heard: March 29, 2012.
Judgment: May 3, 2012.
(126 paras.)
1     These reasons deal with two applications under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (Act) for judicial review of two decisions of an immigration officer (Officer), dated 6 July 2011, which refused the Applicants' request for permanent residence on humanitarian and compassionate (H&C) grounds under subsection 25(1) of the Act (H&C Decision) and refused their application for Temporary Residence Permits (TRP Decision).
2     The Applicants are both citizens of the United States of America (USA) who currently live in Edmonton without status. The Male Applicant is 85 years old and the Female Applicant is 87 years old. Before coming to Canada, the Applicants lived in Albany, California. Their daughter (Janice), a permanent resident of Canada, also lives in Edmonton, while their two sons live in the USA.
3     Janice filed a Family Class sponsorship application to bring the Applicants to Canada on 18 December 2007 (Family Class Application). Shortly after this application was received, Citizenship and Immigration Canada (CIC) advised her that the Family Class Application would likely take a long time to process. As of 23 February 2011, CIC was still processing the Family Class Application.
4     While the Family Class Application was still pending, the Applicants sold their home in California, bought a house in Edmonton, and shipped their belongings there. In May 2008, the Applicants twice attempted to enter Canada through Kingsgate, British Colombia. On their first attempt, the Male Applicant told an officer of the Canada Border Services Agency (CBSA) that he and his wife wanted to live with Janice in Edmonton and they had no intention of returning to the USA. The CBSA officer telephoned Janice, who said her parents could live with her brothers in California. The CBSA officer found the Applicants were not genuine visitors to the USA and so he denied them entry.
5     On their second attempt to enter Canada, the Male Applicant told another CBSA officer they had nothing to return to in the USA and it would be impossible for the Applicants to re-establish themselves there. The second CBSA officer also denied them entry, finding they were not genuine visitors. After they were refused entry on this occasion, the Applicants travelled to Seattle and went to the Canadian Consulate (Consulate) there. Although they sought assistance in entering Canada at the Consulate, none was forthcoming. The Applicants then went to California, stayed there for ten days, and returned to Seattle. The Applicants sold their car in Seattle because it seemed prudent at the time.
6     After selling their car, the Applicants had a friend drive them across the border into Canada sometime in June 2008. When they crossed the border, the CBSA officer present asked to see their passports, admitted them to Canada as visitors, and told them to have a nice trip. Once in Canada, the Applicants travelled to Vancouver, where they booked flights to Edmonton. The Applicants flew to Edmonton and remain there to this day.
7     The Applicants applied to extend their stay in Canada on 17 November 2008. An immigration officer in Edmonton interviewed the Applicants on 9 July 2009 (2009 Interview). The immigration officer conducting the interview (Korzenowski) noted that the Female Applicant was incoherent, smiled, and moaned. Korzenowski said in her notes it appeared the Female Applicant had major health and medical issues which the Applicants had not disclosed in their application to extend their stay. She excused the Female Applicant from the interview room when it became apparent she could not participate.
8     After the interview, Korzenowski denied the Applicants' request to extend their stay in Canada. In a refusal letter, dated 14 July 2009, she noted she had considered the reasons for their original entry and request for an extension, their financial means for return and an extended stay in Canada, their ties to the USA, and the probability they would leave Canada at the end of their authorized stay. Korzenowski found there were insufficient grounds to extend their stay. She informed the Applicants they were required to leave Canada immediately and issued them voluntary departure confirmation certificates.
9     The Applicants respondent to Korzenowski's decision by letter dated 21 July 2009. They noted they had filed an application for H&C relief prior to asking an extension of their stay, which was still outstanding (see below). They also said they could not return to Canada and that "if Canadian immigration law related to sponsoring parents worked properly, this situation would not have developed." They informed Korzenowski they would make every attempt to block their removal through the judicial process.
10     As a result of the 2009 Interview, Korzenowski issued inadmissibility reports against the Applicants under subsection 44(1) of the Act. These reports led a Minster's delegate to issue removal orders against the Applicants on 31 July 2009. They applied for judicial review of the decision to issue exclusion orders against them. Justice John O'Keefe dismissed their application for judicial review on 8 September 2010 (see Rosenberry v Canada (Minister of Citizenship and Immigration) 2010 FC 882).
11     On 8 July 2009, CIC received the Applicants' application for permanent residence on H&C grounds (H&C Application). At the same time, Janice filed an Application to Sponsor and Undertaking - form IMM 1344 - and a Sponsorship Agreement - form IMM 1344 B - to support the H&C Application. The Applicants also made written submissions in which they said they did not have a support system in place in the USA and Janice was the only one of their children who was interested in taking care of them. They also said their stay in Canada underlined the failings of the Canadian immigration system, in that the delay in processing their Family Class Application drove them to come to Canada and live here without status.
12     With their written submissions, the Applicants provided a letter from Dr. Robert Carter - the Applicants' family physician in Edmonton (Carter Letter). The Carter Letter said the Female Applicant suffers from advanced Alzheimer's disease and that, though she required care from the Male Applicant and Janice, Canada's health care system had not borne any of the costs for her care. The Carter Letter also indicated that the Female Applicant's medical needs exerted a significant burden on her family and she would eventually require institutionalized care. The Carter Letter concluded that the Female Applicant would require increased health care and could become a burden on Canada's health care system.
13     The Applicants provided additional submissions to the Officer on 2 October 2009. At this time, they submitted a report from Bonnie Patterson-Payne, a social worker practicing in Edmonton (Social Worker Report), and a letter from Jeanne Hackama, the Director of Care at Open Arms Family Care Ltd. - the private care home to which the Female Applicant had been admitted (Hackama Letter). The Hackama Letter indicated the Female Applicant is unable to speak for herself and needs total physical care.
14     The Social Worker Report indicated that Janice was concerned about the Female Applicant's condition and that the cost of the Female Applicant's care in Canada was approximately $2900 per month, where the same level of care would cost $8000 per month in the USA. The Social Worker Report also noted that in Edmonton the Male Applicant had the support of a group of Plymouth Brethren - a Christian sect of which he is a member.
15     A medical officer at CIC (Quevillon) issued a Medical Notification to the Female Applicant on 4 November 2009. The Medical Notification indicated that if she were permitted to enter Canada, the Female Applicant might reasonably be expected to cause excessive demands on Canada's health or social services. Quevillon found the Female Applicant had advanced Alzheimer's disease and her condition would deteriorate over time so that she would eventually require 24 hour care. Quevillon also found the Female Applicant's condition might reasonably be expected to require services which would cost more than the average Canadian per-capita cost over five years. Quevillon concluded the Female Applicant was inadmissible under paragraph 38(1)(c) of the Act.
16     The Applicants applied for TRPs on 22 September 2010 (TRP Application). In the Male Applicant's submissions, he noted the Female Applicant was in a nursing home under 24-hour care. He said there was no prospect for improvement, so the Applicants could not relocate. He also said they posed no danger to Canada and would not place a burden on Canada's health care system because they were paying for their own care. The Male Applicant said he had not yet received word on the Family Class Application. The Female Applicant's application form indicated the Applicants wished to stay in Canada until the Family Class Application was considered. The Applicants also made written submissions in support of their TRP Application in which they said they had little support to return to in the USA and Janice was the only child who would be able to care for them. They said a TRP was the fairest way for Canada to address their circumstances. According to the Applicants, to march the 80-year-old Male Applicant out of Canada with his wife carried on a stretcher behind him would demonstrate a complete collapse in Canadian humanity and reasonableness.
17     The Officer informed the Applicants on 27 April 2011 that the TRP Application would be processed along with the H&C Application. He also informed them he believed the Female Applicant was inadmissible to Canada under subsection 38(1) of the Act and invited them to make submissions on this issue. In submissions dated 24 May 2011, the Applicants gave the Officer financial information to show their ability to pay for the services the Female Applicant would require. They noted they were currently paying for her medical attention and said they had sufficient resources to continue to fund her care. The Applicants also provided the Officer with a Declaration of Ability and Intent, dated 15 May 2011, in which the Male Applicant declared he would not hold provincial authorities responsible for the cost of social services. He also declared he would assume responsibility for arranging the provision of the required social services. The Applicants asked the Officer to exercise discretion in their case and give significant weight to their ability to pay for the Female Applicant's continuing needs.
18     The Officer considered the Applicants' submissions on the H&C Application and made the H&C Decision on 6 July 2011. He was not satisfied unusual and undeserved or disproportionate hardship would result to the Applicants if their H&C Application were denied, so he refused their application.
19     After considering the Applicants' H&C Application, the Officer considered whether to grant them a TRP under subsection 24(1) of the Act. On 6 July 2011, he wrote a memorandum (Memorandum) to the Director of CIC (Director) in which the Officer decided against granting the Applicants TRPs. The Officer's supervisor agreed with his findings and endorsed the Memorandum on 14 July 2011. The Director concurred with the TRP Decision and endorsed the Memorandum on 21 July 2011.
20     The Officer notified the Applicants of the TRP Decision and H&C Decision by letter dated 21 July 2011. The Applicants applied for leave and judicial review of both decisions on 25 August 2011. Justice Michael Kelen granted leave on 30 December 2011 and ordered that the applications be heard together.
H&C Decision
21     The H&C Decision consists of the letter the Officer sent to the Applicants on 21 July 2011 (Refusal Letter) and his Reasons for Decision (H&C Reasons), signed 6 July 2011. The Refusal Letter indicates the Officer considered and rejected both the H&C and TRP applications.
22     The Officer began by reviewing the Applicants' biographical information and their history with CIC. He then reviewed the factors they put forward in their claim. The Officer noted the Applicants relied on their establishment in Canada related to the home they have here, the proximity to their daughter, and the Female Applicant's medical condition. They also put forward the Male Applicant's connection to the Plymouth Brethren community in Ottawa, their sons' practical inability to care for them, and their financial situation.
23     The Officer briefly reviewed the impact of his Decision on any children directly affected, finding the Applicants had not put forward any information to show how their grandchildren would be affected by the H&C decision. The Officer also reviewed concerns about the Applicants' health. He noted Quevillon's finding the Female Applicant was medically inadmissible because of her advanced Alzheimer's disease. He also noted the Applicants submissions on this issue made in response to the Fairness Letter. The Officer said the Male Applicant underwent an immigration medical examination, after which he was designated M3. An M3 designation meant the Male Applicant had a condition for which the potential demand on health or social services is not sufficient to exclude him under paragraph 38(1)(c) of the Act.
24     The Officer found he was not satisfied there were sufficient H&C grounds in the Applicants' case to grant them an exemption under section 25 of the Act.
Immigration History
25     The Officer noted the Applicants entered Canada in June 2008 after twice being refused entry because they were not genuine visitors. He noted they had disposed of their home in California and moved their assets to Canada before coming here in 2008. Further, he noted Janice was notified about the lengthy delays in processing parental sponsorship applications. The Officer said the letter CIC sent Janice after she filed her sponsorship application informed her about processing times, but did not suggest the Applicants should come to Canada before their application was processed. The Officer also referred to the 2009 Interview in which the Male Applicant described their repeated attempts to get into Canada.
26     The Officer found the Applicants' efforts to get into Canada indicated persistence and a willingness to do whatever it took to get into Canada. They continued trying to get into Canada even though they were aware, from their refusals at the border, that they were not qualified to enter. He also found that, even if they initially tried to enter Canada in ignorance of the requirements on them, their entry in June 2008 appeared to have been planned to circumvent the immigration process. The Officer found they should have known in June 2008 that they would have to clarify their intentions at the border, but they did not do so.
27     The Officer then noted that, after the 2009 Interview, CIC issued removal orders against them and they had applied for judicial review of the process for issuing the removal orders. The Officer found the Applicants chose to remain in Canada instead of making other arrangements for their care in the USA. The Officer found the Applicants were determined not to follow the standard route for immigration but had done whatever it took to stay in Canada.
28     The Officer also analysed the Applicants' motivation for coming to Canada. He found they have several family members in the USA and the Social Worker Report did not indicate any abuse at the hands of their American family. He also found there was insufficient evidence the Applicants could not move within the USA to be closer to their sons. The Officer noted the Applicants do not live with their daughter in Canada; the Male Applicant lives on his own and the Female Applicant lives in a care facility. In their submissions, the Applicants raised the Male Applicant's connection to the Plymouth Brethren community in Edmonton and the Social Worker Report said the support of this community was not available to him in the USA. However, the Officer questioned how the Male Applicant managed to get by without this support while he was in the USA and what had made it necessary to have the support of the community in Canada.
29     The Officer found there was no justifiable reason for the Applicants to have rushed their move to Canada. He also found there was no reason they could not return to the USA pending the outcome of their Family Class Application.
30     The Officer also found the motivating factor behind the Applicants move to Canada seemed to be the Female Applicant's medical condition. He said information before him clearly showed the Female Applicant was diagnosed with Alzheimer's disease as early as 2005. The Officer found that, by the time the Applicants came to Canada in 2008, the Female Applicant's condition had progressed to the point that the Officers noted her dementia when they attempted to enter Canada. Further, at the 2009 Interview, Korzenowski mentioned that the Female Applicant was incoherent, moaned, and smiled quite a bit. The Officer also referred to the Medical Notification, and noted he had sent the Applicants a fairness letter. Although the Applicants made submissions on the Female Applicant's medical inadmissibility, the Officer found the information they submitted did not modify her medical inadmissibility.
31     The Officer also noted the Applicants advised him they were paying for the Female Applicant's medical care and had sufficient funds to pay for her care. The Officer said he chose not to pursue the medical inadmissibility issue; he said his purpose in reviewing it was to show how the Female Applicant's condition was a significant, underlying motivation in the Applicants' decision to come to Canada. He questioned why, even though the Applicants were currently paying for the Female Applicant's care, they should get into Canada ahead of others by jumping the queue. The Officer also noted that, independent of the medical inadmissibility, the Applicants were subject to outstanding removal orders.
32     The Officer found the Female Applicant's family knew about her condition two to three years before the Applicants came to Canada. He found their actions prior to coming to Canada showed a willingness to bypass the rules when it was expedient and in their best interests to do so. Although it was understandable they had anticipated her condition might deteriorate to the point she would be clearly inadmissible to Canada, the Officer found that the option of coming to Canada became more attractive as the Female Applicant's condition deteriorated. Given the Applicants' financial resources, he found they had not shown they could not avail themselves of adequate medical care and housing in the USA.
33     Given the way they had pursued immigration to Canada, the Officer was not satisfied the Applicants were credible or trustworthy. The means by which they sought immigration to Canada and an extension of their visitor status appeared to be an attempt to reduce the impact of the Female Applicant's condition. Further, the plan the Applicants submitted to show how they would pay for the Female Applicant's care did not contain details of any future care. The Officer was not convinced that the Male Applicant would be both willing and able to follow through on his commitment to cover the costs of the Female Applicant's care. Although the Applicants said CIC's lengthy processing times were to blame for their circumstances, the Officer found they were advised of these processing times and their circumstances were of their own making.
TRP Application
34     The TRP Decision consists of the Refusal Letter and the Memorandum in which the Officer gave reasons for his Decision.
35     The Officer said in the Refusal Letter he had carefully and sympathetically reviewed the TRP Application, but concluded there were insufficient grounds to merit the issue of a TRP. The Officer then informed the Applicants that CBSA would contact them to make arrangements for their removal.
36     In the Memorandum, the Officer noted the Male Applicant's statement in the TRP Application that the Applicants posed no danger to Canada and would not be inadmissible.
37     The Officer also noted that he had considered and refused the H&C Application. He said the H&C Application presented no reason for the Applicants to stay in Canada. The Officer also noted their Family Class Application was still outstanding and no action had been taken on the file since 23 February 2011. He said the length of time the Family Class Application would take was not relevant because the Female Applicant's medical inadmissibility was a major factor in refusing the H&C Application.
38     As in the H&C Decision, the Officer found the information they Applicants' submitted in response to the Fairness Letter did not change the Female Applicant's medical inadmissibility. He found she is in need of 24-hour care but found no reason why a suitable means of returning her to the USA could not be arranged. The Officer also noted the Male Applicant's previous immigration medical exam had expired and said that, given the Male Applicant's age, there was a reasonable possibility he might be medically inadmissible.
39     The Officer concluded that, given the timing and means by which the Applicants came to Canada, their circumstances were of their own making. He said there was no likelihood of permanent residence any time soon and that prolonging their stay in Canada could end up making their situation even worse. The Officer recommended the Director not issue TRPs to the Applicants.
40     Beside his endorsement, the Supervisor wrote "medically inadmissible. Inadmissibility still outweighs any H&Cs that may exist. Deliberate circumvent [sic ] the law. [exclusion orders] exist."
41     The Applicants raise the following issues in this case:


Whether the Officer properly considered all the evidence;


Whether the Officer properly assessed hardship in the H&C Application;

• c. Whether the Officer's reasons are inadequate;


Whether the Officer breached their right to procedural fairness;


Whether the Officer improperly applied CIC's manual IP-5 - Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (H&C Guidelines) or IP1 - Temporary Resident Permits (TRP Guidelines);

f. Whether the Officer was biased.
42     The Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
43     In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada held that, when reviewing an H&C decision, "considerable deference should be accorded to immigration Officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language" (paragraph 62). Justice Michael Phelan followed this approach in Thandal v Canada (Minister of Citizenship and Immigration) 2008 FC 489, at paragraph 7. The Federal Court of Appeal found at paragraph 18 of Kisana v Canada (Minister of Citizenship and Immigration) 2009 FCA 189 that the standard of review on H&C determinations is reasonableness.
44     In Vidakovic v Canada (Minister of Citizenship and Immigration) 2011 FC 605, Justice Yvon Pinard held at paragraph 15 that the standard of review on the decision to issue a TRP is reasonableness. Justice Michel Shore found that a TRP decision is highly discretionary and was subject to the patent unreasonableness standard of review in Farhat v Canada (Minister of Citizenship and Immigration) 2006 FC 1275. The standard of review on the first two issues is reasonableness.
45     In Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph 14 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 outcomes." The third issue in this case, whether the Officer provided adequate reasons, is to be analyzed along with the reasonableness of the Decision as a whole.
46     The fifth issue in this case touches on the Officer's application of a legal test to the evidence in front of him. This is a question of mixed fact and law, to which the applicable standard of review is reasonableness (see Dunsmuir, above, at paragraph 51).
47     When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."
48     The Applicants raise several breaches of procedural fairness, including the Officer's decision not to interview them. The Federal Court of Appeal held in Sketchley v Canada (Attorney General) 2005 FCA 404 at paragraph 53 that the "procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty." Also, in Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29, the Supreme Court of Canada held at paragraph 100 that "It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions." The standard of review in on the fourth issue is correctness.
49     In Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369, [1976] SCJ No 118, Justice de Grandpré wrote at page 394 that the test for bias is that
• [...] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?"
50     Though Justice de Grandpré was in dissent, this formulation of the test was later approved by the Supreme Court of Canada in R v RDS, [1997] 3 SCR 484, [1997] SCJ No. 84. In that case, Justice Cory held at paragraph 114 that
• The onus of demonstrating bias lies with the person who is alleging its existence. [...] Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
51     Whether the Officer was biased is a question of fact within the jurisdiction of the reviewing court (see also Martinez v Canada (Minister of Citizenship and Immigration) 2005 FC 1065 at paragraph 5).
52     The following provisions of the Act are applicable in this proceeding:
• 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
• [...]
• 24. (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
• [...]
• (3)
In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
• [...]
• 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
• [...]
• 42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
• (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or
• (b) they are an accompanying family member of an inadmissible person.
* * *
• 11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.
• [...]
• 24. (1) Devient résident temporaire l'étranger, dont l'agent estime qu'il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s'il estime que les circonstances le justifient, un permis de séjour temporaire -- titre révocable en tout temps.
• [...]
• (3)
L'agent est tenu de se conformer aux instructions que le ministre peut donner pour l'application du paragraphe (1).
• [...]
• 25. (1) Le ministre doit, sur demande d'un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande d'un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des considérations d'ordre humanitaire relatives à l'étranger le justifient, compte tenu de l'intérêt supérieur de l'enfant directement touché.
• [...]
• 42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants:
• a) l'interdiction de territoire frappant tout membre de sa famille qui l'accompagne ou qui, dans les cas réglementaires, ne l'accompagne pas;
• b) accompagner, pour un membre de sa famille, un interdit de territoire.
53     The following provision of the Federal Courts Rules SOR/98-106 (Rules) is applicable in this case:
• 56. Non-compliance with any of these Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60.
* * *
• 56. L'inobservation d'une disposition des présentes règles n'entache pas de nullité l'instance, une mesure prise dans l'instance ou l'ordonnance en cause. Elle constitue une irrégularité régie par les règles 58 à 60.
54     The following provision of the Federal Courts Immigration and Refugee Protection Rules SOR/ 93- 22 (Immigration Rules) is also applicable in this case:
• 22. No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.
* * *
• 22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d'autorisation, la demande de contrôle judiciaire ou l'appel introduit en application des présentes règles ne donnent pas lieu à des dépens.
The Applicants
55     The Applicants note that a TRP is a means by which people who are otherwise inadmissible can enter Canada. They acknowledge that applicants bear the onus of establishing why they should be granted a TRP and point out that H&C considerations are often raised in this type of application. They also note that CIC's Manual the TRP Guidelines instruct officers on how to exercise the discretion given to them under subsection 24(1) of the Act.
Officer Ignored H&C Guidelines
56     The Applicants say the Officer ignored the H&C Guidelines when he made the H&C Decision before their Family Class Application was complete. At page 10, the H&C Guidelines say:
• If an H&C applicant also has a pending application for permanent residence in another category (e.g. live-in caregiver, spouse or common-law partner in Canada, protected person etc.), the application that was received first normally takes precedence although certain types of cases may have priority (e.g. spousal application). Multiple permanent resident applications should be consolidated. Processing of the H&C application should not begin until a decision is made on the first application.
57     This shows the Officer should not have made the H&C Decision until the Family Class Application was complete.
Officer Ignored Evidence
58     The Applicants also say the Officer did not examine evidence which was central to their claim. In the H&C Reasons, the Officer only recited facts gleaned from the documents they submitted, without appreciating how these facts were important. They say the Refusal Letter does not mention the Social Worker Report or the Family Class Application. The Officer does not say why he rejected the findings set out in the Social Worker Report, which clearly describes the ties between them and their family in Canada. The Refusal Letter also does not mention the support the Applicants have from family and their religious community in Canada, the Female Applicant's inability to leave Canada, or the fact the Applicants are paying for the Female Applicant's care in Canada. The Officer ignored this same evidence when he considered the TRP Application.
59     Following Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, the Applicants say the Court can infer that the Officer did not consider these pieces of evidence from his failure to mention them in either the H&C or TRP Decision. They also point to Kaur v Canada (Minister of Citizenship and Immigration) 2010 FC 805, where Justice Marie-Josée Bédard said the "immigration officer has discretion as to the weight to be given to the personal circumstances raised by an applicant, but he cannot fail to have regard to the applicant's personal circumstances."
Reasons Inadequate
60     The Officer's H&C Reasons do not show why the factors they put forward were not sufficient to grant an H&C exemption in their case. The Memorandum does not show why he did not grant their TRP Application.
H&C Application
61     The Applicants point to Ventura v Canada (Minister of Citizenship and Immigration) 2010 FC 871, where Justice Yves de Montigny had this to say at paragraphs 29 and 30
• I agree with the Respondent that the onus is on the Applicant to satisfy the officer that, in the Applicant's personal circumstances, the requirement to obtain a visa from outside Canada in the standard manner would cause unusual and undeserved or disproportionate hardship. That being said, once an applicant has put forward the positive factors militating in favour of granting his H&C application, the officer must explain why he does not find these factors sufficient to grant the application. An applicant is entitled to know why he failed to convince the officer of the cogency of his case, especially when there is so much at stake as his future in this country.
• In the case at bar, the officer did not meet this standard. He merely recited the allegations of the Applicant, only to dismiss them without any kind of explanation or analysis. Counsel for the Respondent countered that the Applicant, through his counsel, had not elaborated as to how and why the factors submitted would constitute undue hardship in the first place. I do not find this argument convincing. The implications of severing the Applicant's establishment in Canada, as evidenced by his family relations, his community involvement, his work and his studies are obvious without the necessity of stating how and why, from his point of view, his return to Angola would constitute undue hardship. On the basis of the record before him, the officer had more than sufficient evidence not only to determine whether unusual and undeserved or disproportionate hardship had been made out, but as importantly to give his reasons as to why he came to his conclusion.
62     The Officer in the present case did not adequately explain his conclusions and engaged in speculation.
Officer did not Consider Hardship
63     The Officer did not assess whether the hardship the Applicants would face if their H&C Application were denied was disproportionate in their circumstances. They note the H&C Guidelines set out unusual and undeserved or disproportionate hardship as an acceptable test for an H&C exemption. Hardship should be assessed globally by weighing all the H&C considerations applicants submit. The Applicants also note that, in Hinzman v Canada (Minister of Citizenship and Immigration) 2010 FCA 177, the Federal Court of Appeal held at paragraph 40 that officers assessing H&C applications have a duty to consider applicants' personal circumstances. However, the Officer did not examine the disproportionate hardship the Female Applicant would experience in her personal circumstances.
64     The Applicants note the H&C Guidelines instruct officers examining H&C applications to consider establishment in Canada as a factor in the H&C Application.
Medical Condition
65     When the Officer was assessing was assessing the H&C Application, he did not appropriately treat the information about the Female Applicant. He did not say why he rejected their submission that an individualized assessment of their case meant non-medical evidence should be accepted. The Officer did not consider the Applicants' financial resources or the plan they submitted to pay for the Female Applicant's needs. The Officer only listed the documents they submitted and said "the new information does not modify the current assessment of medical inadmissibility." Even though the Applicants provided submissions in response to the 27 April 2011 Fairness Letter, the Refusal Letter did not mention their plan to overcome the Female Applicant's medical inadmissibility. The H&C Reasons also do not show how the Officer considered the instructions on health inadmissibility in the H&C Guidelines.
Family Relationship
66     The H&C Reasons do not show that the Officer adequately considered the relationship they have with their family in Canada. They note the H&C Guidelines direct officers to consider links to family members. Although the Social Worker Report indicated strong family ties in Canada and the hardship they would face if these ties were severed, the Officer only repeated the report's analysis of their family. The Officer ignored the recommendations in the Social Worker Report that the Applicants be allowed to stay in Canada and did not say how he applied the H&C Guidelines to this aspect of their case.
67     The Applicants also say the Reasons do not adequately explain why the Officer did not grant them TRPs after denying the H&C Application. The H&C Guidelines say an officer may grant a TRP if an H&C Application is refused. However, it appears the Officer rejected their TRP Application because he also rejected the H&C Application, for which they provided strong evidence. The Applicants say the reasons for rejecting the TRP Application are identical to those for rejecting the H&C Application with the exception of the Memorandum. The Officer closed his mind to the possibility of granting a TRP, so the H&C Decision must be returned.
68     In Parmar v Canada (Minister of Citizenship and Immigration) 2010 FC 723, Justice François Lemieux held at paragraph 49 that
• Without any analysis or comment the Visa Officer simply indicated that the applicant's Fairness response did not change her previously expressed view. The reasons were seriously deficient as they did not fulfill their functions of explaining why Mr. Parmar's submissions on the lack of need for social services were not accepted, providing public accountability and permitting effective judicial review. On the basis of these inadequate reasons, this Court simply does not know if the Medical Officer took into consideration the teachings in Hilewitz particularly on the need for an individualized assessment for Inderjot.
69     The Applicants say the Reasons in this case do not meet the test Justice Lemieux articulated in Parmar, so both Decisions must be returned for reconsideration.
• Improperly Assessment of Evidence in the TRP Application
70     The Applicants also say the Officer did not assess the evidence they presented him in light of the TRP Guidelines. The TRP Guidelines tell officers they may issue a TRP if the need to enter or remain in Canada and the need to for presence in Canada outweighs the risks to Canadians or Canadian society. The Officer did not consider any of the factors listed in section 12.1 - Needs Assessment in the TRP Guidelines and also did not follow the instructions for assessing the risk to Canadian society at section 13.1 of the TRP Guidelines. Further, the Officer did not consider how the instructions to officers on medical inadmissibility cases, found at section 13.2 of the TRP Guidelines, impacted on the Female Applicant's case.
71     Although the Officer gave reasons for refusing the Applicants' TRP Application, none of the reasons he gave fall into the categories the TRP Guidelines list in section 18 - Procedure: When not to Issue a TRP. This shows the TRP Decision is capricious and does not accord with subsection 24(3) of the Act, which directs officers to exercise their discretion in accord with any instructions from the Minister.
72     Although the Female Applicant was medically inadmissible, this was not an obstacle to granting the Male Applicant a TRP. Further, the Officer's finding that the Male Applicant's medical admissibility might change for the worse was speculative, so the TRP Decision should be returned.
Other Factors and Evidence
73     The Applicants also say the Officer did not consider the additional evidence they submitted which showed they were able to overcome the Female Applicant's medical inadmissibility and should be granted a TRP. They provided the Officer with information that showed they have the resources to pay for the Female Applicant's care, but neither the Refusal Letter nor the Memorandum mention this evidence. The Officer's only statement on this aspect of their TRP Application is his conclusion that "the new information does not modify the current assessment of medical inadmissibility." The Officer does not explain why the evidence they submitted does not overcome the medical inadmissibility, which shows he did not consider it.
Officer Breached Procedural Fairness
74     The Applicants also say the Officer breached their right to procedural fairness because he was biased. They refer to the test for bias in Committee for Justice and Liberty, above, and say a reasonable and informed person would perceive bias in the Officer's conduct. The Officer made unfair statements which show he did not approach the facts, evidence, and submissions with an open mind. He wrote in a critical and harsh tone typical of matters dealing with misrepresentation or criminal convictions which was inappropriate in this case. The Applicants say the Officer committed the same error Justice L'Heureux-Dubé cautioned against in Baker, above, when the officer's "frustration with the "system" interfered with his duty to consider impartially whether the appellant's admission should be facilitated owing to humanitarian or compassionate considerations." See paragraph 48.
75     The Applicants also say the Officer engaged in speculation when he said he was not convinced the Male Applicant would remain willing and able to follow through on his commitment.
Failure to Conduct an Interview
76     The Applicants note the Officer found they were not credible or trustworthy and say he was obligated to call them for an interview to address any credibility concerns. He did not, so he breached their right to procedural fairness.
77     The Applicants ask for costs in this application, because the Officer was biased against them. They note the Respondent has not given them notice he intends to enforce the removal orders against them and point out that the TRP Guidelines say a TRP may be issued where enforcement of a removal order is not possible.
The Respondent
78     The Respondent notes that H&C Relief under subsection 25(1) of the Act provides exceptional relief from the ordinary requirement to obtain a visa before coming to Canada. TRPs are also an exceptional measure; applicants must satisfy officers reviewing their applications they will leave Canada upon the expiry of their status. The Respondent also notes that Quevillon found the Female Applicant medically inadmissible. The Applicants have a history of non-compliance with Canada's immigration laws and their actions show they are not trustworthy.
Guidelines Not Binding
79     CIC's Guidelines are not binding on Officers and are only instructions which are designed to encourage consistency in decision making. Subsection 25(1) confers a large amount of discretion on officers to grant or not grant requests for H&C relief.
H&C Process
80     The H&C Guidelines instruct officers on how to proceed in H&C applications where an applicant is found medically inadmissible, as the Female Applicant was in this case. Officers can refuse an H&C application for medical inadmissibility, but they can also grant the application. When considering an H&C exemption in the face of a medical inadmissibility, the H&C Guidelines instruct officers to consider the cost of care, alternate arrangements which have been made, the likelihood the applicant will be self-supporting, and the severity of the applicant's anticipated need for health or social services. Hilewitz v Canada (Minister of Citizenship and Immigration) 2005 SCC 57 establishes that officers must consider applicants' willingness and ability to mitigate any excessive demand on social services. The Officer considered these factors, so the H&C Decision should stand.
TRP Guidelines
81     The TRP Guidelines give direction to officers on how to exercise their discretion and to encourage consistency in decision making. Subsection 24(3) of the Act does not give the TRP Guidelines the force of law because they are not instructions within the meaning of that section. Section 1 of the TRP Guidelines provides as follows:
• This chapter provides policy and procedural guidelines to Citizenship and Immigration Canada (CIC) staff at inland offices on:
• i.
issuing temporary resident permits to allow inadmissible persons to enter or remain in Canada;
• ii.
extension, expiry and cancellation of permits;
• iii.
granting of permanent resident status to permit holders.
82     Instructions within the meaning of subsection 24(3) are appended to the TRP Guidelines and are clearly issued personally by the Minister. The TRP Guidelines, though useful to assist officers and the Court, are not binding on the Minister or his delegates.
Two Decisions Separate
83     The Respondent says the Officer made the Decision on the TRP Application independent of his determination of the H&C Application. Although the Refusal Letter addresses both decisions, they were made separately. The reasons in each decision under review are separate except to the extent the Memorandum refers to pages 8 and 9 of the H&C Decision.
No Premature H&C Decision
84     It was reasonable for the Officer to make the H&C Decision before their Family Class Application was completed. Although the H&C Guidelines say Officers should not process H&C Applications until other pending sponsorship applications are complete, the Respondent says the only outstanding application is Janice's sponsorship application; the Applicants have not actually applied for permanent residence.
85     The Respondent also notes that the H&C Guidelines are not legally binding, so it was not a reviewable error for the Officer to make the H&C Decision when he did. Leaving an H&C application to be processed until after other applications may not be practical in every case. Further, the Applicants were not prejudiced when the Officer processed their H&C Application before the Family Class Application was complete.
Factors and Evidence Weighed Appropriately
H&C Application
86     The Officer provided sufficient reasons to show he weighed all the factors and evidence the Applicants put forward to support their H&C Application. The H&C Guidelines set out factors to be considered in processing an H&C application, but these are only indicators of what constitutes a reasonable interpretation of the power conferred by subsection 25(1) (see Baker, above, at paragraphs 16 and 17). Although the Applicants have said he did not, the Officer acknowledged the pending Family Class Application, but nothing turned on this evidence.
Social Worker Report
87     The H&C Reasons show the Officer considered the Social Worker Report. He was not bound to accept its conclusions. Immigration officers have substantial leeway to decide which considerations are relevant in any given H&C application and their discretion includes the right to assign more or less weight to various factors.
Family Ties
88     In this case, the Officer considered the support available to the Applicants in Canada and in the USA. Although the Applicants said their children in the USA were unable to care for them, the Officer found they provided insufficient evidence to prove this was the case. Contrary to the Applicants' assertions, the CBSA officer's notes from their first attempt to enter Canada showed their sons in California are a banker and an electrical contractor, both of whom said the Applicants could live with them. Further, the Social Worker Report indicated the sons had loving relationships with their parents, even though they were not able to care for them daily.
89     Even though the Applicants preferred to stay close to Janice in Edmonton, they provided insufficient reasons why they could not live in the USA. Their documentation showed they were supporting themselves financially, so the sons' financial support was not important. They are also not living with Janice and have sold their home in California, so the distance from their sons was not important.
Female Applicant's Condition
90     The Officer also adequately considered the impact of the Female Applicant's medical condition on the H&C Application. The Applicants have not shown why the fact the Female Applicant was in private care should have resulted in a positive H&C determination. The Male Applicant decided to move the Female Applicant into a care home in Canada even though they did not have status here. It was clearly relevant for the Officer to consider that the Applicants' circumstances in Canada were of their own making. The Applicants have also not demonstrated that health care in the USA would be inadequate, even though it may be more expensive. Bichari v Canada (Minister of Citizenship and Immigration) 2010 FC 127 establishes that the standard for H&C relief is not whether better or more affordable treatment is available in Canada.
91     It was also reasonable for the Officer to find he was not satisfied the Applicants would follow through on their commitment to pay for the Female Applicant's care in Canada. The plan they submitted lacked detail which was a reasonable basis for the Officer's conclusion. The Applicants also did not provide sufficient medical evidence to show the Female Applicant could not be removed to the USA.
Male Applicant's Spiritual Support
92     The Officer also considered the impact of the Male Applicant's Plymouth Brethren community on the H&C Application. It was reasonable for the Officer to put little weight on this factor, as the Male Applicant had apparently been a member of the Plymouth Brethren while he was in the USA. He had not shown why it was necessary for him to be with the community in Canada.
93     The Applicants' complaints about the factors the Officer considered amounts only to a disagreement with how he weighed the evidence. The Applicants have not established the Officer did not consider any relevant factor and it is not proper for the Court on judicial review to re-examine the weight the Officer gave to those factors.
TRP Application
94     The Respondent notes that a TRP application is not a full H&C Application, which means the Officer was not obligated to deal with every submission the Applicants made. The Officer considered all the relevant evidence.
95     Although the Applicants have said otherwise, the Officer did not ignore the Female Applicant's medical condition or the plan they submitted to pay for her care when he considered the TRP Application. The Officer thoroughly addressed these matters in the H&C Decision and there was no reason to go into the same detail on the TRP Application. The Memorandum referred to the Officer's analysis of these issues in the H&C Decision, which makes it clear the Officer considered all the relevant factors and evidence. Given the way they entered Canada, the Officer was not satisfied the Applicants would remain willing or able to carry out their commitment to pay for the Female Applicant's care.
96     It makes no sense for the Applicants to now say the Officer should have granted the Male Applicant a TRP even if the Female Applicant was medically inadmissible. This was a joint application and there was no reason for the Officer to consider whether the Male Applicant would leave his wife of 60 years to stay in Canada without her. Section 42 of the Act also makes it clear that, since the Female Applicant is medically inadmissible, this makes the Male Applicant also inadmissible.
Other Factors in the H&C Application
97     The Respondent also says the Officer reasonably considered other factors in the H&C Application which the Applicants have not addressed in their submissions.
Lack of Clean Hands
98     It was reasonable for the Officer to consider the manner in which the Applicants came to Canada. In their submissions on their H&C Application, they said the delays in processing the Family Class Application put them "in a situation in which [they] had to make a decision about how [Janice] would care for her parents." It was not speculative for the Officer to conclude the Female Applicant's medical condition led them to come to Canada, given that they came to Canada without authorization and knowing the Female Applicant had Alzheimer's disease.
99     The Respondent points to Legault v Canada (Minister of Citizenship and Immigration) 2002 FCA 125 for the proposition that those who come to Canada to settle must be of good faith and comply with the requirements of the Act. The Applicants' attempts to circumvent the requirements of the Act were relevant to the H&C Decision, so it was not an error for the Officer to consider them.
Establishment in the Applicants' Control
100     The Respondent points to Tartchinska v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 373. He says where H&C applicants remain in Canada without status in the absence of circumstances beyond their control they should not be rewarded for accumulating time in Canada.
No Evidence of Hardship
101     In this case, the Officer clearly took into account the Applicants' personal circumstances and found there was no evidence of hardship. It was not an error for the Officer not to analyse hardship when they did not adduce any evidence of hardship. Because there was no evidence of hardship, it was reasonable for the Officer to conclude the H&C factors the Applicants put forward were outweighed by the Female Applicant's medical inadmissibility and the fact they were subject to removal orders.
No Breach of Procedural Fairness
102     The Respondent agrees with the Applicants that the proper test for bias is that set out in Committee for Justice and Liberty, above, but says the test for bias is not met in this case. Although the Applicants take issue with the tone of the Officer's comments, the Reasons contain fair comments and conclusions based on the evidence. The Reasons show a reasonable, dispassionate evaluation of the circumstances based on the evidence and without inflammatory language or hyperbole. The Officer's comments here are nothing like the impugned comments in Baker, above. The Applicant's disagreement with the Officer's conclusions does not show bias.
103     The Respondent relies on Ali v Canada (Minister of Citizenship and Immigration) 2008 FC 784, where Justice Michael Phelan held "A TRP is an exceptional remedy and there is nothing in the process which, of itself, would raise the issue of a right of interview to the level of procedural fairness" (see paragraph 17). There was no requirement for the Officer to hold an interview, so he did not breach the Applicants' right to procedural fairness when he did not.
No Grounds for Costs
104     An award of costs is inappropriate in this case because the Applicants did not seek costs in their application for leave or the relief portion of their Memorandum of Argument. This alone is sufficient to dismiss their request for costs in the submissions portion of their Memorandum of Argument, but there are also no special reasons for granting costs in this case. The Respondent points to section 22 of the Rules and says the Applicants have not shown special reasons in this case. Even if the Officer erred, this is not enough to justify a cost award in the face of the policy against awarding costs in immigration matters.
The Applicants' Reply
105     The Applicants say the Court has overturned H&C decision where officers failed to appropriately apply the H&C Guidelines. They point to Chen v Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 630, Beluli v Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1112, Kaur, above, and Kargbo v Canada (Minister of Citizenship and Immigration), [2011] F.C.J. No. 577. They note that, in Kaur, above, Justice Bédard held that an officer may weigh an applicant's circumstances but may not disregard them.
106     Although the Respondent has said the Applicants did not submit a permanent residence application, they say the Family Class Application included their forms. It was only a matter of time before CIC would begin processing the Family Class Application.
107     The Applicants also say the inflammatory tone of the Officer's reasons carries over into the affidavit he has submitted to the Court. His affidavit also contains argument which should be given no weight.
108     Although they did not include a request for costs in their leave application, the Applicants say this was because they had not yet received the Reasons. They were unaware of the language the Officer used in the Reasons, so they had no basis to request costs at that time. Further, they rely on section 56 of the Rules to meet the Respondent's argument they should be denied costs for not asking for costs in the 'relief sought' portion of their Memorandum of Argument.
The Respondent's Further Memorandum
109     The Respondent says the Applicants deliberately entered Canada in contravention of the Act and Regulations. Given their immigration history, it was reasonable for the Officer to conclude they had not entered Canada for a temporary purpose and to deny their TRP Application accordingly. They have not shown the H&C Decision was unreasonable, that any of the reasons the Officer gave are inadequate, or the Officer was biased, so both decisions should stand.
Reasons Sufficient
110     The Respondent says the Reasons were sufficient and, if they were not, the Applicants were obligated to request additional information and clarification. He points to Hayama v Canada (Minister of Citizenship and Immigration) 2003 FC 1305, at paragraph 15, where Justice Edmond Blanchard said
• If the applicant was unsatisfied with the decision letter and felt it did not adequately explain the decision, a request should have been made for further elucidation. There is no evidence that such a request would have been refused. I therefore conclude that, in the circumstances of this case, there is no breach of duty of fairness due to an absence of reasons, or inadequacy of reasons.
111     Although the Applicants have argued the H&C Reasons do not show how the Officer considered the H&C Guidelines related to health inadmissibility, the Respondent says Quevillon acknowledged the Applicants presently had funds to pay for the Female Applicant's care. However, the Officer found this was not sufficient; he denied the H&C Application because he was not satisfied they would continue to pay for the care the Female Applicant required. He also found their ability to pay for her care was undermined by their immigration history and lack of credibility. Further, the Female Applicant's medical inadmissibility was only relevant in that it showed the Applicants' motivation for avoiding ordinary immigration channels.
112     In addition, the Respondent notes the Officer said medical inadmissibility was not necessary to refuse the H&C Application because the Applicants were already inadmissible under subsection 44(1) of the Act. The Female Applicant's medical inadmissibility was only one of several factors the Officer considered. Parmar, above, says reasons must explain the decision to the parties, provide public accountability, and permit effective review. The H&C Reasons in this case meet this test.
113     Although the reasons the Officer gave for refusing the TRP Application are concise, they are clear. The Officer found no reason for the Applicants to remain in Canada. They are inadmissible for a previous overstay, they are subject to a removal order, and there is no likelihood they will be granted permanent residence in the near future. The Female Applicant is medically inadmissible and it is possible the Male Applicant is medically inadmissible as well. The handwritten note on the Memorandum summarizes these concerns. The Respondent notes that the TRP Decision was informed in part by the Officer's H&C Decision; his reasons for that decision were adequate, so his reasons on the TRP Application are also adequate.
114     The adequacy of reasons depends on the circumstances of each case. So long as the reasons show the decision-maker considered all the relevant factors, they will be sufficient (see Shahid v Canada (Minister of Citizenship and Immigration) 2004 FC 1607 at paragraph 15). It is clear from his reasons that the Officer considered all the relevant factors in this case.
TRP Refusal Reasonable
115     A TRP is premised on an applicant's intention to stay in Canada for a temporary purpose. The Officer was not satisfied the Applicants had such a purpose, so it was reasonable for him to deny their TRP Application. Prior non-compliance with immigration laws is a proper basis on which to conclude an applicant for a TRP will not leave on the expiration of the TRP. Although the Officer did not explicitly consider the factors set out in the TRP Guidelines, the guidelines are not binding and cannot fetter the Officer's discretion.
116     The Officer's Decision to refuse the Applicant's TRP Application was reasonable because they did not have a temporary purpose to be in Canada. Given the Officer's refusal of their H&C Application and their history of disregard for Canada's immigration laws, there was no reason for him to grant their application. Further, their prior non-compliance was an appropriate basis for him to conclude they would overstay any TRP they were granted. The Officer also considered the Applicants' ability to leave Canada and how this would be affected by a prolonged stay in Canada.
117     I heard IMM-5788-11 and IMM-5790-11 together. These Reasons and my decision should be placed on both files.
118     Gordon and Muriel Rosenberry are old and sick and, at this stage in their lives, deserve respect and sympathy. Fortunately for them, as age and illness began to darken their days, they came to Canada where, as the record shows, they have been afforded every advantage and dignity our immigration system has to offer. The officers who have dealt with them have acted with exemplary compassion and professionalism, but those same officers are charged with the duty of enforcing Canadian law and maintaining the integrity of our immigration system. Because they have done their duty, the Applicants are now accusing them of bias and are even asking that their costs be paid. This is an unfortunate approach for the Applicants to take before this Court, and it is one which reflects badly upon them.
119     The truth of the matter is that the Applicants have no right to be in Canada. They knew this before they came and they know it now. They simply decided, knowing that Muriel was very sick with Alzheimer's, that they would jump the queue and come and live in Edmonton. Muriel cannot be faulted because of her illness, but Gordon and his daughter, Janice, appear to have known exactly what the situation was and to have decided to act in disregard of Canadian law. Nor have they been entirely forthright with immigration authorities.
120     Although Gordon and Muriel are old and sick, they are far from destitute. They can both afford the medical care they need and there is nothing to suggest it would not be available to them in the USA at a price they can afford. They have simply decided that they like Canada's health care system better and that there is likely a monetary advantage to their being here.
121     The Applicants are fortunate in having a loving daughter in Janice, who lives close by in Edmonton. But they also have two loving sons in the USA. Those sons are no doubt busy people, but there is no basis for saying that they could not be close by to render the family support that Muriel and Gordon need at this stage in their lives. Muriel will be in full-time care and there is nothing to suggest that Gordon cannot live independently with his sons close by in the same way that he does with Janice in Edmonton.
122     The Applicants attack the H&C Decision for a variety of reasons. They say it is premature and was made without regard for the evidence, that there is no analysis of H&C factors, that hardship is not assessed, that establishment is not taken into account, that the medical situation is not assessed, that there is no analysis of the family situation, and that the tone the decisions reveals bias. A simple reading of the decisions reveals that these grounds are entirely spurious.
123     The same applies to the grounds raised by the Applicants with regard to the TRP Decision. The H&C reasons apply to that application, but there are additional reasons in the notes which show that the TRP was refused for a variety of reasons, including medical inadmissibility, the existence of valid exclusion orders, and the fact that the Applicants have acted, and continue to act, illegally and in breach of Canada's immigration laws. The Applicants have no intention of leaving Canada at any time and, even though these applications before me cannot succeed, the benign nature of our system has allowed them a considerable amount of additional time here.
124     I have reviewed carefully all of the grounds advanced for reviewable error on both applications. There is no sign of procedural unfairness or unreasonableness. The Officer was fully alive to the whole situation and, while recognizing the vulnerability of the Applicants, carried out his duty and applied the law accurately and fairly.
125     Of course, the Court wishes Gordon and Muriel and their family well. Dealing with aging and declining parents is always difficult, but it does not help to flaunt the immigration system and attack officers who are simply doing their job. I also have a concern about basic honesty. There is evidence in the TRP application made to the Officer that the Applicants represented that the family somehow did not know about Muriel's Alzheimer's before she came to Canada. Even before me, legal counsel was not accurate on this point. The evidence is very clear, however, that Muriel was diagnosed with the disease long before she came to Canada. At the 2009 Interview, Gordon told CIC that she had been diagnosed in 2005. It is easy to see, then, why the Officer would doubt the Applicants' honesty. I realize that the horrible illnesses of loved-ones can give rise to desperate acts, but the Rosenberry family, on the evidence before me, appears to be better positioned than many others who have to face the challenges of old age.
126     Counsel agree there is no question for certification on either application and the Court concurs.

• 1. The application is dismissed.
• 2. There is no question for certification.
• 3. These Reasons for Judgment and Judgment will be placed on files IMM-5788-11 and IMM-5790-11.