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Facts[]

Mavis Baker, a Jamaican national, entered Canada on a visitor visa in August 1981. She stayed in Canada for 11 years, supporting herself illegally as a live-in domestic worker. She had four Canadian-born children (who were therefore citizens of Canada) and four children who remained in Jamaica. After the birth of her fourth Canadian child in 1992, Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. Two of her children were placed in the care of their father. The other two were placed into foster care, and later returned to her care when her condition improved. During this time, she applied for welfare. Her application was rejected.

Baker was ordered deported from Canada in December 1992 for working illegally and overstaying her visitor visa. In 1993, she applied for an exemption from the requirement to apply for permanent residence from outside of Canada, based on humanitarian and compassionate grounds, pursuant to s 114(2) of the Immigration Act (now the Immigration and Refugee Protection Act). In this application, Baker cited concerns about the availability of mental health care in her home country; and that deporting her would separate her from her two children in her care, which was against the best interests of the child. Baker's application was supported by submissions from her lawyer, a letter from her doctor, and a letter from a social worker at the Children's Aid Society.

Baker's application was denied for insufficient humanitarian and compassionate grounds In a letter dated April 18, 1994 and signed by Immigration Officer M Caen. The letter contained no reasons. She requested and was provided with the notes made by Immigration Officer G Lorenz, which were used by Officer Caden in making his decision. Officer Lorenz noted, among other things, that this case was a "catastrophe" and that, "she will, of course, be a tremendous strain on our social welfare system for (probably) (sic) the rest of her life... I am of the opinion that Canada can no longer afford this type of generosity.."

Baker appealed the decision.

Courts Below[]

Federal Court - Trial Division(1995), 101 FTR 110[]

Simpson, J. found that since there were no reasons required or given, she would assume in the absence of evidence to the contrary, that Officer Caden acted in good faith and made a decision based on correct principles. She did not find that Officer Lorenz' notes did not raise a reasonable apprehension of bias. The Convention on the Rights of the Child does not apply in this case and is not a part of domestic law. The Convention did not give rise to a legitimate expectation that the children's interests would be a primary consideration. Simpson J certified a question for appeal regarding only the Convention.

Federal Court of Appeal (1997) 2 FC 127[]

Strayer, JA. held that as the Convention had not been implemented through domestic legisaltion, it did not have legal effect in Canada. The doctrine of Legitimate Expectations does not create substantive rights, and so it did not apply here. Strayer JA did not address the constituional validity of s 83(1) of the Immigration Act regarding certified questions.

Issues[]

  1. What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?
  2. Were the principles of procedural fairness violated in this case?
    1. Were the participatory rights accorded consistent with the duty of procedural fairness?
    2. Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?
    3. Was there a reasonable apprehension of bias in the making of this decision?

3. Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker’s children?

Decision[]

Appeal Allowed

Reasons[]

  1. What is the legal effect of a stated question under s. 83(1) of the Immigration Act on the scope of appellate review?

Section 83(1) of the Immigration Act does not require the Court of Appeal to address only the certified question.  Once a question has been certified, the Court of Appeal may consider all aspects of the appeal lying within its jurisdiction

2. Were the principles of procedural fairness violated in this case?

(i) Were the participatory rights accorded consistent with the duty of procedural fairness?

The duty of procedural fairness is flexible and variable and depends on an appreciation of the context of the particular statute and the rights affected.  The purpose of the participatory rights contained within it is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional and social context, with an opportunity for those affected to put forward their views and evidence fully and have them considered by the decision-maker.  Several factors are relevant to determining the content of the duty of fairness:  (1) the nature of the decision being made and process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3)  the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself.  This list is not exhaustive.

A duty of procedural fairness applies to humanitarian and compassionate decisions.  In this case, there was no legitimate expectation affecting the content of the duty of procedural fairness.  Taking into account the other factors, although some suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.  The duty of fairness owed in these circumstances is more than minimal, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.   Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness.  The opportunity to produce full and complete written documentation was sufficient.A duty of procedural fairness applies to humanitarian and compassionate decisions.  In this case, there was no legitimate expectation affecting the content of the duty of procedural fairness.  Taking into account the other factors, although some suggest stricter requirements under the duty of fairness, others suggest more relaxed requirements further from the judicial model.  The duty of fairness owed in these circumstances is more than minimal, and the claimant and others whose important interests are affected by the decision in a fundamental way must have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.   Nevertheless, taking all the factors into account, the lack of an oral hearing or notice of such a hearing did not constitute a violation of the requirement of procedural fairness.  The opportunity to produce full and complete written documentation was sufficient.

(ii) Did the failure of Officer Caden to provide his own reasons violate the principles of procedural fairness?

It is now appropriate to recognize that, in certain circumstances, including when the decision has important significance for the individual, or when there is a statutory right of appeal, the duty of procedural fairness will require a written explanation for a decision.  Reasons are required here given the profound importance of this decision to those affected.  This requirement was fulfilled by the provision of the junior immigration officer’s notes, which are to be taken to be the reasons for decision.  Accepting such documentation as sufficient reasons upholds the principle that individuals are entitled to fair procedures and open decision-making, but recognizes that, in the administrative context, this transparency may take place in various ways.

(iii) Was there a reasonable apprehension of bias in the making of this decision?

Procedural fairness also requires that decisions be made free from a reasonable apprehension of bias, by an impartial decision-maker.  This duty applies to all immigration officers who play a role in the making of decisions.  Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them.  They require a recognition of diversity, an understanding of others, and an openness to difference.  Statements in the immigration officer’s notes gave the impression that he may have been drawing conclusions based not on the evidence before him, but on the fact that the appellant was a single mother with several children and had been diagnosed with a psychiatric illness.  Here, a reasonable and well-informed member of the community would conclude that the reviewing officer had not approached this case with the impartiality appropriate to a decision made by an immigration officer.  The notes therefore give rise to a reasonable apprehension of bias

3. Was this discretion improperly exercised because of the approach taken to the interests of Ms. Baker’s children?

The concept of discretion refers to decisions where the law does not dictate a specific outcome, or where the decision-maker is given a choice of options within a statutorily imposed set of boundaries.  Administrative law has traditionally approached the review of decisions classified as discretionary separately from those seen as involving the interpretation of rules of law.  Review of the substantive aspects of discretionary decisions is best approached within the pragmatic and functional framework defined by this Court’s decisions, especially given the difficulty in making rigid classifications between discretionary and non-discretionary decisions.  Though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.

In applying the applicable factors to determining the standard of review, 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, and the considerable discretion evidenced by the statutory language.  Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division, and the individual rather than polycentric nature of the decision also suggest that the standard should not be as deferential as “patent unreasonableness”.  The appropriate standard of review is, therefore, reasonableness simpliciter.

The wording of the legislation shows Parliament’s intention that the decision be made in a humanitarian and compassionate manner.  A reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children since children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society.  Indications of these values may be found in the purposes of the Act, in international instruments, and in the Minister’s guidelines for making humanitarian and compassionate decisions.  Because the reasons for this decision did not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of the appellant’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation.  In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to the appellant’s country of origin might cause her.

Ratio[]

  • There are five considerations when determining the level of procedure required in a particular decision:
    1. Nature of the decision
      1. Function of the decision maker
      2. Nature of the decision maker
      3. Matters to be determined
      4. Process used
      • The more judicial the decision, the more procedure required, and the more legislative the decision, the less procedure required.
    2. Statutory scheme
      • Greater procedure is required if there is no administrative appeal available, or if the decision is determination of the issue (i.e. a final decision).
      • Statutory exceptions do not require a great deal of fairness.
    3. Importance of the interest to the affected party
      • The more important the decision, the more procedure required.
    4. Legitimate expectations
      • A decision maker cannot vary from their usual practice without good reason.
    5. Procedural choices
      • The more statutory discretion the decision maker has to create its own procedure, the more weight that will be given to this factor.
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