 
 IMMIGRATION AND REFUGEE BOARD (IMMIGRATION APPEAL DIVISION) 
 COMMISSION DE L’IMMIGRATION ET DU STATUT DE RÉFUGIÉ (SECTION D’APPEL DE L’IMMIGRATION)
 
 IAD File No./Dossier: 
TA6-10110   
Reasons and Decision − Motifs et décision 
 
SPONSORSHIP 
   Appellant(s) Appelant(s) 
XXXXXXXXXXXXX  
   Respondent Intimé 
The Minister of Citizenship and Immigration Le Ministre de la Citoyenneté et de l’Immigration 
  Date(s) and Place Date(s) et Lieu de of Hearing l’audience 
October 5, 2007 Toronto, Ontario
 
 Date of Decision Date de la Décision 
May 28, 2008  
 Panel Tribunal 
XXXXXXXXXXXXXXXXXX  
  Appellant’s Counsel Conseil de l’appelant(s) 
LorXXXXXXXXXXXXXXXXXXXX and Solliciter  
 Minister’s Counsel XXXXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXX  
  
  
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 Reasons for Decision 
 [1] These are my reasons in the sponsorship appeal  of XXXXXXXXXXXXX (the appellant) from the refusal to approve the permanent resident  visa application made by his wife JasXXXXXXXXXXXXXXXXXXXX (the applicant), from Bosn ia-Herzegovina.  The appellant sponsored his wife to Canada as a member of the family cl ass.  On August 1, 2006 the applicant’s application for a permanent resident visa was refused by a visa officer from the Embassy of Canada in Vienna, Austria who determined that the application could not be approved because, pursuant to section 133(1)(g)(i) of the Immigration and Refugee Protection Regulations  (Regulations) made under the Immigration and Refugee Protection Act, 2002 (IRPA) the sponsor (appellant) was in default of an Undertaking, to wit, he had failed  to meet his obligation to support his ex-fiancée who he had previously sponsored to Canada.  [2] The appellant was represented by counsel , XXXXXXXXXXXXX and the Minister was represented by XXXXXXXXXXXXX.  The hearing was conducted in English.  [3] The appellant is a 38-year-old citizen of Canada who was born in Bosnia-Herzegovina and came to Canada in October 1999 from German y as a Government-sponsored refugee.  He was granted citizenship in April 2004.    [4] Subsequent to his arrival in Canada, the a ppellant met and developed a relationship with XXXXXXXXXXX, a citizen of the former Yugoslavia.  The relationship developed to the point where the appellant and Ms. XXXXX agreed to marry a nd consequently the appellant sponsored her to Canada as a fiancée in February 2002 under provi sions for such sponsorships then available under the former Immigration Act.   [5] Just over one year later, in late Februa ry 2003, Ms. XXXXX arrived in Canada, her application for permanent residence having been approved.  However, after her arrival, despite the declaration of a stated intention to wed, the marriage did not take place and the appellant and Ms. XXXXX became estranged.   
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 [6] Because the immigration of Ms. XXXXX was c onditional on her marrying the appellant, he contacted the Citizen and Immigration Centre (CIC) in Kitchener, Ontario and reported the breakdown in his relationship with his now ex-fiancée.  Subsequently, on May 19, 2003, the appellant sent a letter to Case Processing Centre (CPC) - Mississa uga detailing the events that had transpired subsequent to the arrival of Ms. XXXXX to Canada.  Following an admissibility hearing on January 7, 2004, Ms. XXXXX was ordered removed from Canada for failure to comply with the IRPA.  Ms. XXXXX appealed the removal order and in April 2006 the Immigration Appeal Division (IAD) allowed her to remain in Cana da on humanitarian and compassionate grounds.
1    [7] While the events involving Ms. XXXXX were pl aying out and, in particular, in February 2006 the appellant met and married XXXXXXXXXXXXXXXXX.  He subsequently sponsored her to Canada as his spouse.  Her application for a perm anent resident visa was received in April 2006 and proceeded without complication to the point of a visa being issued on July 13, 2006.    [8] Twelve days later, on July 25, 2006, the visa  post in Vienna received notification from CPC-Mississauga that the appellant’s former fiancée was in receipt of social benefits in Ontario and that the appellant was therefore in default of his Undertaking in respect to Ms. XXXXX and, as such, was ineligible to sponsor his spouse pursuant to section 133(1)(g) of the Regulations.
2    [9] The applicant was subsequently contacted by telephone on July 25, 2006 and advised that the visa had been issued in error and she was requested to attend the Canadian Embassy in Sarajevo, which she did on July 27, at which time the visa was cancelled.  The visa post in Vienna subsequently sent the applicant a refusal letter on August 1, 2006.   [10] The appellant appeals the refusal.  
                                                           
1 See XXXXX, XXXXX v. M.C.I. (IAD TA4-00664),Whist, April 18, 2006. 
2 133(1) Requirements for sponsor — A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor  (g) … is not in default of (i) any Undertaking…  
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 [11] The panel has reviewed the Record and can  see clear and cogent reason for why the application was refused.  [12] In addition to the Record of the appeal disclosed by the Minister, the panel considered the appellant’s Exhibit A-1 and the respondent’s Exhibit R-1, in addition to the evidence adduced from the testimony of the appellant.  Subseque nt to the hearing the panel requested written submissions on the subject of the legal validity of the refusal, which were subsequently received and considered in their entirety.    [13] The panel heard testimony from the appe llant which it found to be reliable and trustworthy.     Substantive Issues  [14] The panel considered two substantive issues.  1. Is the refusal valid in law? 2. Is there sufficient humanitarian and co mpassionate grounds, including the best interests of a child affected by the decision, to warrant special relief?   Decision  [15] The appeal is allowed.
  Notwithstanding that the refusal is valid in law, there exist sufficient humanitarian and compassionate considerati ons to warrant special relief in light of all the circumstances of the case.   
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 Analysis  Legal Validity of the Refusal   
  [16] The legal validity of the refusal turns on the question of whether or not the appellant continues to be bound by the Undert aking he entered into in respect to his sponsorship of Ms. XXXXX in 2002.  [17] The appellant made a number of submissions in  respect to the Undertaking which can be grouped in respect to the validity of the contract between the appellant and the Government of Canada, estoppel, the section 7 of the Canadian Charter of Rights and Freedoms  (the Charter).  [18] When the appellant sponsored Ms. XXXXX the legislative scheme of the former Immigration Act allowed for the sponsoring of fiancées as  members of the family class; this provision has subsequently been removed under IRPA.
3  [19] As with other family class sponsorships, as a condition precedent, the appellant was required to enter into an Undertaking where by he promised, amongst other things, that the sponsored relatives will not need to apply for social assistance/welfare.  The term of this Undertaking was 10 years and it took effect on the day of Ms. XXXXX’s landing on February 25, 2003.  [20] Unlike other family class sponsorships however  Ms. XXXXX’s landing in Canada was not unconditional.  Section 23.1(2) of the former Immigration Regulations stipulated that their landing was granted subject to conditions. 
 
23.1(2)  Fiancées of sponsors… are prescribed as a class of immigrants i n  r e s p e c t  o f  w h i c h  landing shall be granted subject to the condition that   (a) within a period of 90 days after the date of a fiancée’s landing, the fiancée marries the sponsor; and                                                           
 
3 With the coming into force of IRPA, fiancées were removed from membership in the family class; however, section 356 of the Immigration and Refugee Protection Regulations  allowed applications made prior to June 28, 2002 to proceed under the former Immigration Act.  
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 (b) the fiancée furnishes, at the times and places specified by an immigration officer, evidence of compliance with the terms and conditions imposed.    
Validity of Contract   [21] The appellant submitted that the nature of the contract between the appellant and the Government of Canada was such that when Ms. XXXXX failed to marry the appellant his Undertaking ceased to exist.  The detailed argument is set out in paragraphs 25 through 28 of the appellant’s submissions.  At its essence, the appellant argues that the contract between the appellant and Government of Canada was cond itional upon fulfillment of the requirement that the appellant and Ms. XXXXX marry as stipulated.    [22] The panel is of the view that the appellant’s  position conflates two separable aspects of the sponsorship.  The panel does not agree that the Undertaking is conditional.  On plain reading the Undertaking is unconditional.  The panel can find no proposition in law or the Act which ties the operation of the Undertaking to any conditi on subsequent to its being entered into.  [23] That Ms. XXXXX’s landing in Canada was conditional upon her marrying the appellant within 90 days is irrelevant to the operation of the Undertaking.  If Parliament had intended to make Undertaking in respect to sponsored fiancé es conditional, it would had keyed the beginning of the term of the Undertaking to compliance with  the conditions of landing rather than with the mere fact of landing its self.  This however, as pointed out by the respondent, would have created a potentially large loophole that would be ripe for abuse by sponsors desirous of getting out from underneath their obligations, which was not the case in this matter, but rather an obvious consequence of making Undertakings conditional on compliance with other requirements subsequent to landing.       [24] The consequences anticipated by the Act for breeches of either the Undertaking or the conditions of landing are different.  In the case of the former, the sponsor is found to be in default and prohibited from further sponsorship as was the case.  In the case of the latter, the applicant (Ms. XXXXX) is subject to a report and, as was the case, a finding that she was 
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 inadmissible for failing to comply with the Act a nd as such removable from Canada.  However, the applicant had a right of appeal and, as was the case, she exercised this right to her benefit.     [25] The mere fact of non-compliance with the c onditions of landing therefore does not vitiate the Undertaking.  Parliament did not provide for a mechanism to terminate Undertakings.  Once they are entered into they remain valid for the te rm of the Undertaking, in this case 10 years, commencing on the date of landing.    Terms of the Contract
  [26] The appellant further submitted that even if the Undertaking constitutes a valid contract, the wording of the contract provides for it being voided.  In particular, the appellant points to the statement in the Undertaking that “it continue s for 10 years no matter what may change in my life.  For example, if I am divorced, change j obs, become unemployed, and/or go back to school I will still be responsible to the relatives I am sponsoring ….”
4  [27] The appellant submits that “the scope of the examples given illustrates that the changes envisioned by the Undertaking are events within the control of the sponsor and are due to his conscious and deliberate actions.”
5  The appellant’s counsel referred to the testimony that the decision not to marry was not the result of a delib erate act made by the appellant, but rather the result of Ms. XXXXX’s conscious decision not to marry him.  [28] The panel accepts the appellant’s version of th e events.  However, the fact that Ms. XXXXX chose not to marry him is irrelevant to the operation of the Undertaking.  First, the possibility of Ms. XXXXX not marrying the appellant was an  unknown knowable even before the appellant signed the Undertaking.  Had he married Ms. XXXXXX or sponsored her later as a conjugal or common-law partner, it was knowable that she c ould come to Canada and then divorce/leave him.  Such events would be outside the direct co ntrol of the appellant but they would not change the nature of the Undertaking.  Similarly Ms. XXXXX could have come to Canada and then 
                                                           
4 Documentary evidence, p. 157. 
5 Appellant's submissions received November 9, 2009, para. 29. 
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 decided not to marry the appellant in favour of living common-law or in a conjugal relationship, which the IRPA, having come into force in the period between the time of the sponsorship allocation and her landing, provided for.  Again, this would have been in non-compliance with the strict terms of the sponsorship/landing conditi ons, but it would not alter the nature of the Undertaking which would remain in force regard less of the conditions subsequent.  In other words, this condition subsequent to the signi ng of the Undertaking would not frustrate the contract.        [29] The appellant further submitted that Ms. XXXXXXXX conduct was outside his control such that he cannot be held responsible for them.  In deed, he suggests that he was used by Ms. XXXXX simply to allow her to immigrate to Canada, the implication being that he was the subject of fraud on the part of Ms. XXXXX.  The appellant act ed in good faith in sponsoring his fiancée to Canada.  Upon her arrival she decided not to ma rry him and then threw herself on the mercy of the system to allow her to stay in Canada when she is otherwise inadmissible.  There but for the intervention of the IAD Ms. XXXXX would have  likely been removed from Canada and the appellant would not have gone into default and w ould not now be faced with the troubles he is facing in respect to his inability to sponsor and the need to repay the debt created as the result of his promise that his sponsored relative would not go on social assistance.  [30] The panel also considered the submission that in failing to marry the appellant Ms. XXXXX never became the relative of the appellant and that not being his relative he is absolved of responsibility for her.  This proposition is unten able.  Certainly, at no point was Ms. XXXXX the appellant’s relative; however, for the purposes of the former Immigration Act, she was deemed to be a relative by virtue of the fact that she was de emed a member of the family class.  Similarly, under the new Act (IRPA), conjugal partners are not relatives of sponsors; however, Parliament has deemed that for the purposes of immigration, they are considered mutatis mutandis to be member of the family class.          [31] There certainly appears to be a large elemen t of unfairness in respect to this matter; however, Parliament did not provide a mechanis m by which Undertakings could be voided once entered into.  The wording of the Undertaking creates a strict liability and it does not provide for 
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 the consideration of changes in circumstance except in respect to  the exercise of discretion as to whether of not the Government of Canada will pursue the debt created by the default.  [32] The issue before the panel is not the exercise  of discretion or the collection of the debt. The debt was assigned by Canada to the provin ce of Ontario which it is pursuing against the appellant.  The appellant, in turn, is seeking re medial action before the Ontario courts which in the panel’s opinion, barring the voiding of the cont ract, is the appropriate venue for that issue.     Estoppel
  [33] The appellant has acted in good faith througho ut his sponsorship.  His application was made in good faith and his actions after the collaps e of his relationship with Ms. XXXXX were in good faith.  The appellant testified that within 90 days he informed CIC about his change in circumstances by way of a face-to-face mee ting with an immigration officer and via a letter in which he detailed his problem.  The appellant testified that he was told by the immigration officer that immigration would take action to s eek to remove Ms. XXXXX for failure to comply with the conditions of her landing, that he would be able to sponsor a person in the future and that he would not be financially responsible fo r Ms. XXXXX as the sponsorship obligation between him and Ms. XXXXX was terminated.    [34] The appellant submitted that the immigration officer exercised her discretion on behalf of the Minister to waive the default and that the Minister is now estopped from seeking to enforce it.  The appellant further submitted that the Minist er failed to take appropriate action against Ms. XXXXX and, as such, she is estopped from enforci ng her legal rights under the contract.  It was further submitted that by failing to advise the a ppellant of the proceedings taken against Ms. XXXXX the appellant was denied the opportunity to have his side of the matter heard.  [35] The panel does give credence to the testimony th at he was told that the Minister would be seeking to remove Ms. XXXXX as that is just wh at happened.  Furthermore, the panel believes that he was told he could sponsor in the future.  Nothing was preventing the appellant from filing a 
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 new sponsorship save the his meeting the require ments of a sponsor which would include his not being in default of an Undertaking  [36] The problem that the panel has with the appell ant’s version of events is that while there was no evidence refuting it, it is improbable that  the immigration officer would have informed the appellant that he was absolved of any debt incurred on behalf of Ms. XXXXX as she did not go on social assistance until June 2006, long after the removal order had been made against her and two months following the IAD hearing of the matte r on April 3, 2006.  That is, at the time that he made his report there was no default to waive a nd thus the immigration officer could not have made a concrete and informed decision such that the Minister could reasonably be said to have waived anything from which she is now estopped from enforcing.  [37] Regardless, the issue of the enforcement is not properly before the panel.  That matter, as noted above, is properly before the Ontario Cour ts and the Minister may very well be estopped from enforcement despite the fact that the contr act remains valid.  Furthermore, the Courts may have remedies that go beyond the limited jurisdiction of the panel.  What is before the panel is the default.  Procedural Fairness 
  [38] The appellant submitted that he was denied procedural fairness in respect to how Ms. XXXXX came to begin collecting Ontario Social Disa bility Pension (OSDP) and in respect to the assignment of the debt to the Overpayment a nd Recovery Unit of the Ontario Ministry of Community and Social Services.  This may be correct; however, the panel does not see how the failure of Ontario to accord the appellant procedural fairness in respect to Ms. XXXXX’s entitlement to OSDP or in respect to how it dealt with him once the payments became the subject of recovery efforts, has any bearing on the Undert aking or, for that matter, how this in anyway changes the fact of the default.  Even if Onta rio had decided to take no action to collect the default, the debt would still remain and according to the strict requirements of the Regulations the appellant remains in default until th e debt is repaid in its entirety.   
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 [39] The fact that the Minister assigned the debt to  the province of Ontario is irrelevant to the fact of the default.  The appellant could or should have known that this was a possibility as it is specifically proved for in the Undertaking and a logi cal and necessary step to the recovery of the debt which was paid on behalf of Ms. XXXXX by th e Province of Ontario.  In the panel's view any obligation to procedural fairness in respect to the debt attaches to the province and not the Minister in this case.  Failure to Exercise Discretion
  [40] The appellant submitted the Undertaking gave the Minister the discretion not to collect the debt in other circumstances, and that she did not.  The appellant submitted that “the failure of the respondent to acknowledge and exercise discretion, or in the alternative, their failure to provide reasons as to why the discretion was not  exercised constitutes a breach of their powers.”
6    [41] Again, the appellant is conflating the default with the debt.  The default is a condition created by the sponsored person receiving social a ssistance/welfare.  The debt is the obstacle to overcome in order to address the default.  The refusal arose from the fact of the default not the debt.  The Undertaking provided for the assignme nt of the debt to a province and the province has taken action to recover the debt.  Any exercise of discretion in respect to a decision not to collect the debt would appear to lie with the province as the Minister is not the creditor.  However, a decision not to collect the debt doe s not change the fact of the default.  The Undertaking is very specific in regards to this fo r, as indicated, “the decision of the Minister not to act at a particular time does not cancel the debt.”    [42] The Regulations at section 135 are very specific in this respect,  
135. Default — For the purpose of subparagraph 133(1)( g)(i), the default of a sponsorship Undertaking  (a) begins when  (i) a government makes a payment that the sponsor has in the Undertaking promised to repay, or  (ii) an obligation set out in the Undertaking is breached; and                                                            
 
6 Appellant’s submissions received November 8, 2007, page 13, para. 47. 
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 (b) ends, as the case may be, when  (i) the sponsor reimburses the government concerned, in full or in accordance with an agreement with that government, for amounts paid by it, or  (ii) the sponsor ceases to be in breach of the obligation set out in the Undertaking.  
 [43] A discretionary decision in favour of the a ppellant would have not effect on the legal validity of the refusal made on the basis of his being in default of the Undertaking.    Violation of Section 7 of the Charter
  [44] The appellant submits that “as the result of  the respondent’s breach of contract, the representations made to the appellant, their failure to notify him of the appeal hearing and give him an opportunity to respond, the appellant has not  only suffered grave procedural injustice but he has ultimately been denied the ri ght to be reunited with his wife.”
7  Consequently, the appellant's “liberty interests” have been enga ged and the respondent’s conduct breaches of his section 7 of the Charter.  [45] The panel is guided the Federal Court of Appeal’s reasoning in XXXXXX where it adopted Justice XXXXX’s reasoning in XXXXXXXXX wherein he commented:   
 
I am of the view that to trigger section 7 of the Charter, the Court must first find that there has been a deprivation of the right to life and security of the person, and second, that the deprivation is contrary to the principles of fundamental justice. See XXXXXXX v. British Columbia (Human Rights Commission), [2000] 2 SCR 307 at paragraph 47. It is established that the liberty interest protected by section 7 of the Charter is not restricted to mere freedom from physical restraint.  Liberty can be engaged where the state compels or prohibits important and fundamental life choices.
8 
 [46] The panel will not engage in a full charter analysis of this alleged breach because it is sufficient to point out that the actions of the respondent have not denied him the right to be reunited with his wife.  The applicant’s inadmissibi lity is not absolute because two remedies are available to the appellant.  Pursuant to section 135 of the Regulations he can himself remedy the default by repaying the debt and second, the panel can allow the appeal on humanitarian and compassionate grounds.  
                                                           
7 Appellant’s submissions receied Novemer 9, 2007, page 14, para. 49. 
8 XXXXXX v. Canada (Minister of Citizenship and Immigration)  2005 FC 854   
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 [47] Second, the appellant’s argument that he was de nied procedural fairness when he was not notified of Ms. XXXXX’s appeal of her removal or der before the IAD is not sustainable.  The appellant argues that “he was not given notification of his ex-fiancée’s appeal and as a result he was given no opportunity to explain the fact th at his [ex-fiancée] clearly had no intention of marrying him, that he was taken advantage of to obtain immigration status and that she broke off the engagement.”
9    [48] The appellant was not a party to the appeal.  The issue before the IAD did not involve his rights, but rather those of Ms. XXXXX.  While clearly the IAD’s decision which allowed Ms. XXXXX to remain in Canada on humanitarian a nd compassionate grounds was a factor in his future misfortune, it cannot be said that this misf ortune arose as a direct consequence of an act of omission on the part of the IAD that amounted to a breach of a principle of fundamental justice such as to engage section 7 of the Charter.    [49] For the reasons stated above the panel finds that  the refusal is valid in law.  The appellant is bound by the Undertaking.  He is in default of the Undertaking by virtue of the fact that the person he sponsored to Canada in 2003 started to  receive social assistance contrary to the promise that he made that the sponsored person would not need to apply for social assistance.  [50] While the appellant took all reasonable steps to inform the Minister of his change in circumstances, this ultimately is irrelevant to  the Undertaking and the fact that the sponsored person failed to meet the conditions of her landing did not frustrate the contract between the appellant and the Minister.  [51] The Minister is not estopped from taking action to enforce the contract nor did Immigration officer waive the appellant’s responsibi lity in respect to the Undertaking as at the time of the appellant’s report in 2003 there was no default to waive, it arising only in June of 2006.    
                                                           
9 Appellant’s submissions received November 9, 2007, page 15, para. 51. 
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 Humanitarian and Compassionate Considerations   [52] While the panel takes no pleasure in finding that the appellant under these circumstances is bound by his Undertaking, the same circumstances ca ll out for the exercise of special relief.    [53] In assessing whether to exercise its disc retionary jurisdiction on humanitarian and compassionate grounds, the panel considers a nu mber of factors including, but not limited to, nature and degree of the legal impediment; the objectives of the IRPA, in particular section 3(1)(d);
10 the nature and degree of the relationship  of the appellant and the applicant; the hardship to the appellant should the appeal be dismissed; the hardship to and impact on the applicant; and the best interests of any children affected by the decision.  [54] Notwithstanding that the legal impediment is absolute, the appellant has suffered considerable hardship as a consequence of th e refusal.  He has gone into default of his Undertaking essentially for reasons that are entire ly out of his control.  He did not choose to break off his engagement.  He reasonably believe d that he had done the right thing in reporting the breakdown of his relationship and in the ensuing silence he went about his life.  He formed a new relationship and married and was in blissful ignorance of the fact that in the interim his ex- fiancée had both received special relief from the IAD and was allowed to remain in Canada.  He could not have reasonably anticipated that his ex-fiancée would develop end-stage renal failure that required dialysis.  He could not anticipate that she would have to turn to social assistance as a consequence two months after the IAD's decision. [55] The appellant has a modest income and has suff ered or will suffer a significant financial lose as the result of his having to repay the debt  incurred by Ms. XXXXX.  He is a refugee from his homeland which has continues to be torn by strife.  He can not return there and be safe.  He is a Muslim who would face difficulty in finding work there if he returned.  He has worked to establish himself in Canada and would have to give up what he has accomplished if he cannot be 
                                                           
10 Section 3(1)(d) of the Act states:  Objectives — immigration — The objectives of this Act with respect to immigration are  (d) to see that families are reunited in Canada;  
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 reunited with his wife from whom he has been sepa rated for two years.  His wife is not free to travel to other European countries as she faces  or at least faced visa restrictions.    [56] Ironically, Ms. XXXXX’s first OSDP paymen t was made on June 26, 2006, one month almost to the day before his wife’s visa was re voked by immigration officers in Vienna.  The fact is that the appellant was not in default of the Undertaking when he made the sponsorship application for his wife on February 8, 2006.  The application proceeded unimpeded to the point where the visa was issued on July 13, 2006.  Sa ve but for her not travelling to Canada immediately thereafter she would have been landed in Canada before the default was discovered on July 25, 2006. [57] However, the appellant's wife did not and the wording of section 133 of the Regulations is quite specific that “a sponsorship applicatio n shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is no evidence that the sponsor … subject to paragraph 137(c), is not in default of … any Undertaking.”  Thus, th e immigration officer was not acting capriciously or with out justification when she/he called th e application and asked her to attend the embassy to return the visa. [58] This however combines to add a degree of trag edy to the situation as having been denied the companionship he so desired when he sponsored his fiancée Ms. XXXXX, the appellant was again denied the companionship, this time of his wi fe, for reasons completely outside his control. [59] The disposition of the appellant’s action concerning the repayment of his debt will necessarily play out in another venue.  The panel is without jurisdiction to address that issue.  Regardless, the unfairness of the situation is no t lost on the panel.  However, the panel is satisfied that there are sufficient humanitarian  and compassionate considerations, taking into consideration the best interests of any child a ffect by the decision, to warrant the exercise of special relief. 
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 [60] The facts of this matter clearly would excite in a reasonable man in a civilized community a desire to relive the misfortunes of another.
11  The appellant is clearly a person whose misfortune is deserving of the exercise of discretion in the form of special relief.    [61] The appeal is allowed
. 
  NOTICE OF DECISION  
The appeal is allowed .        "XXXXXXXXXXXXXXXXXX"  
    XXXXXXXXXXXXXXXXXX   
   May 28, 2008   
   Date  
 
 
Judicial Review – Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this decision, with leave of that Court.  You may wish to get advice from counsel as soon as possible, since there are time limits for this application Contrôle judiciaire – Aux termes de l’article 72 de la  Loi sur l’immigration et la protection des réfugiés, vous pouvez, avec l’autorisation de la Cour fédérale, présenter une demande de contrôle judiciaire de la décision rendue.  XXXXXXXX consulter un conseil sans tarder car cette demande doit êt re faite dans un délai précis. 
 
                                                          
 
11 Chirwa v. Canada (Minister of Manpower and Immigration ) (1970), 4 I.A.C. 338 (I.A.B.). 
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