Date: 20061211
Docket: IMM-2250-06
Citation: 2006
FC 1474
Toronto, Ontario, December 11, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
WILLIAMS,
ELICIA NATASHA
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of a decision of an Immigration Officer
(Officer) dated April 19, 2006 denying the Applicant’s request for an exemption
on humanitarian and compassionate (H&C) grounds from the requirement under
subsection 11(1) of the Immigration and Refugee Protection Act, S.C.
2001 c. 27 (IRPA) that a foreign national must apply for permanent
resident status from outside Canada.
[2]
The
Applicant is a 27-year-old citizen of St. Vincent.
She entered Canada as a tourist on March 1, 1999.
Her tourist status expired on August 31, 1999. However, she has remained and
worked in Canada without status since that
date. On May 24, 2005 she applied for permanent resident status on H&C
grounds.
[3]
The
Applicant relied principally on her close relationship with her family to
support her H&C application. She has been an orphan since her mother died
in May 1990. She has one brother and two sisters residing in Canada as permanent residents. Her
brother has been in Canada since October 1994, and her sisters have been in Canada since August 1991 and
December 1993, respectively. Three other sisters and three other brothers
reside in St.
Vincent. Her
brother and his spouse in Canada have been like her parents. The
family she has in Canada continues to support her and wants to help her financially
to continue her studies in Canada. She lives with one of her
sisters, Judita (whom she also claims she helps financially by sharing living
expenses and rent). The Applicant insisted also on the fact that she has
become established and integrated into Canadian society and has been employed
as a babysitter and a domestic worker. In her supporting documents, she also submitted
letters of support from members of her Church congregation attesting to her
participation in that community.
[4]
In the
impugned decision, the Officer notes that the Applicant has three brothers and
three sisters in St.
Vincent. While
the applicant was between the age of 13 and 16 when her other siblings left for
Canada, she did not demonstrate
either that there was any particular attachment between herself and her
departing siblings, or that they had taken control of her life to support her
and her needs. She completed her secondary studies and finished two years of
post-secondary education. Although the Applicant has some degree of attachment
to her family, she has not demonstrated that a temporary separation would
create any prejudice for her or her family members. She is not the sole
provider for her family in Canada and has no dependents in Canada. Although she shares
expenses with her sister, the lease and household expenses are in her sister’s
name. The Officer also notes that since the Applicant has been in Canada, she has taken steps to
integrate into Canadian society. However, the reasons for her stay in Canada were not out of her control
and she never took steps to regularise her situation with Citizenship and
Immigration Canada. The Applicant has not submitted that she would be exposed
to any risk were she to be returned to St. Vincent. Finally, the Officer states that she has
reviewed the entire file to verify that there did not exist other humanitarian
grounds to support an H&C application. Accordingly, the Officer concludes
that the Applicant does not meet the requisite test that making an application
for permanent residence from outside of Canada would result in “unusual, undeserved or
disproportionate hardship” for the Applicant.
[5]
The
Applicant raises essentially two arguments in support of her application for
judicial review. First, she submits that the Officer’s conclusions regarding the
Applicant’s degree of attachment to her family members in Canada and the impact
of a separation from them is unsupported by the evidence and is arbitrary,
perverse, and capricious. In her submissions, the Applicant assesses the
Officer’s findings against the standard of whether a reasonable person would
“desire to relieve the misfortunes of another”: Garceau v. Canada (Minister of Citizenship and
Immigration) (2001), 17 Imm. L.R. (3d) 288
(Immigration Appeal Division). The Applicant argues that the evidence clearly
establishes that she is an orphan and that her brother took responsibility for
her and continued to support her even when he left for Canada. The Applicant claims she has no
parents, no home, no support and little to return to in St. Vincent. Second,
the Applicant submits that the risk of return is not a requirement to
establishing H&C grounds and it was an error for the Officer to mention it
in her decision.
[6]
The
Respondent submits that the appropriate standard of review is reasonableness
and that it is not the role of the Court to re-examine the weight given to the
various factors considered by the Officer when deciding whether or not to grant
the H&C application. The Respondent argues that the decision is
reasonable. Indeed, the Officer’s reasons clearly demonstrate she turned her
mind to all of the relevant factors and carefully considered them before
ultimately concluding that the Applicant had not satisfied the onus of
demonstrating sufficient H&C grounds. Furthermore, the Court has held that
the H&C process is designed to provide relief from “unusual, undeserved, or
disproportionate hardship” if one had to leave Canada to apply for permanent residence.
Leaving behind a job, a family, and a home does not necessarily rise to this
standard. Finally, the Respondent notes with respect to the Applicant’s
argument that the Officer erred in relying on the lack of risk facing the
Applicant upon return to St. Vincent that the Officer never suggested a risk
was required, but merely referenced the fact that this consideration did not
arise in this instance.
[7]
In Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
174 D.L.R. (4th) 193, the Supreme Court held that the standard of
review applicable to decisions rendered pursuant to subsection 25(1) of IRPA is
reasonableness simpliciter. The weight to be attached or assigned to
particular factors or indicators of attachment is discretionary. On a standard
of reasonableness, a reviewing court must examine the evidence to determine
whether any reasons support the impugned decision. Therefore, it is not our
role to re-examine the weight given to the different H&C factors by the
Immigration Officer. This Court cannot set a decision
aside even if it would have weighed the factors differently and arrived at a
different conclusion (Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125 at paras. 9-12; Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 718 at para. 7; Saliaj v. Canada (Minister of Citizenship and Immigration) (2004), 39 Imm. L.R. (3d) 249, 2004 FC 499 at paras. 6 and 7). Applying
this standard to the impugned decision, I have come to the conclusion that the
present application cannot succeed.
[8]
I will
start by stating that an applicant bears the onus of establishing that he or
she has met the standard required to succeed in an H&C application (Owusu
v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 172, 2003
FCT 94 at para. 11). A successful H&C application usually requires an
applicant to demonstrate that an “unusual, undeserved or disproportionate
hardship” would arise should he or she be required to apply for permanent
resident status from outside Canada. See in this regard Section
6.5 of the Inland Processing Manual, Chapter IP-5, “Immigrant Applications in
Canada made on Humanitarian or Compassionate Grounds” published by Citizenship
and Immigration Canada. Accordingly, the test is not, as stated by counsel for
the Applicant, whether there are factors that may raise in a reasonable person
the “desire to relieve the misfortunes of another.” Garceau, above, is
not a decision that helps the Applicant as it relates to a decision of the
Immigration Appeal Division rendered in the context of an appeal pursuant to
subsection 77(3) of the Immigration Act, R.S.C. 1985 c.I-2, now repealed.
According to that provision, an appeal lies from a failed sponsorship application
by the sponsor on the ground that there exist compassionate or humanitarian
considerations warranting the granting of special relief. Furthermore, the
test of “unusual, undeserved or disproportionate hardship” has been affirmed
and applied consistently by this Court, the Federal Court of Appeal and the
Supreme Court of Canada.
[9]
The
Officer’s evaluation of the Applicant’s relationship with her family members in
Canada should not be disturbed in
the present case. An
applicant in an H&C application is entitled to present any facts he or she
believes to be relevant. The Applicant in this matter relied heavily on her
relationship with her family members in Canada in support of her application. First,
the law is clear that some hardship accruing to a separation from family will
not necessarily satisfy the requirements of an H&C application. The fact
that one leaves behind friends or family, employment or a residence, as well as
the cost or inconvenience of having to return home to apply in the normal
manner would not generally be enough to constitute hardship and thus warrant a
positive H&C determination (Irimie v. Canada (Minister of Citizenship
and Immigration), (2000), 10 Imm. L.R. (3d) 206
(F.C.T.D.) at
para. 12). As stated by Justice Russell in Pashulya v. Canada (Minister of
Citizenship and Immigration) (2004), 257 F.T.R. 143, 2004 FC 1275 at paragraph 43, an
applicant has a high threshold to meet when requesting an exemption from the IRPA:
“That the Applicant must sell a house or car or leave a job or family is not
necessarily undue or disproportionate hardship; rather it is a consequence of
the risk the Applicant took by staying in Canada without landing […]”
[10]
The
Officer clearly considered the fact that the Applicant is employed in Canada. Moreover, the Officer was
entitled to make note of the fact that although the Applicant has become
established in Canada, her failure to regularize
her status was not related to factors beyond her control. This is an
appropriate consideration to weigh. The jurisprudence of this Court supports
this as well. See for instance Chau v. Canada (Minister of Citizenship and
Immigration) (2002), 26 Imm. L.R. (3d) 100, 2002 FCT 107 at paras. 15 and 16. In
relation to other factors of establishment raised by the Applicant, the Officer
was entitled to consider, inter alia, whether the Applicant had
employment or relatives in St. Vincent (see Kawtharani v. Canada (Minister
of Citizenship and Immigration), 2006 FC 162 at para. 17).
[11]
I have also
reviewed the evidence submitted by the Applicant to the Officer. Most of the
statements and letters are offered in support of the Applicant’s good
character, which is not in dispute. The evidence does identify that she wishes
to pursue her studies in Canada, that she has a close relationship to her
family in Canada, that she is employed and
hard-working and that she contributes to the household expenses and rent with
her sister. She has also demonstrated that she is a respected member of her
Church community. However, none of the evidence submitted by the Applicant to
the Officer allows me to find here that it was unreasonable for the Officer to
conclude that the Applicant did not meet the threshold necessary for her to be
exempted from the general requirements of IRPA that she make her application
for permanent residence from outside Canada.
On the evidence, it was reasonably open to the Officer to conclude that the
Applicant had not demonstrated the necessary degree of financial or emotional
support between the Applicant and her family members and that she would not
suffer significant prejudice if required to leave Canada to make her application.
[12]
In the
case at bar, the Applicant is essentially asking the Court to attribute more
weight to her relationship with her family in Canada than the Officer did. The reasons
clearly demonstrate that in rendering the decision, the Officer reviewed the
totality of the evidence and assessed all relevant factors relating to the
Applicant’s relationship to her family and other factors regarding her establishment
in Canada. The Officer explicitly
addressed the relationship and degree of support, both emotional and financial,
between the Applicant and her family. As mentioned above, the Officer also
factored in the fact that the Applicant has family members in St. Vincent. In reaching the decision,
the Officer simply was not convinced by the evidence provided by the Applicant
that the prejudice associated to making her application from outside of Canada met the requisite standard of
hardship.
[13]
As for the
second ground of review, the availability of risk to an Applicant upon return to
their country of origin is a factor that is often assessed in the context of
H&C applications. The way in which it is raised in the Officer’s reasons
does not suggest that the Officer considered that the absence of risk in any
way negated the Applicant’s claim. The Officer merely identified that the factor
does not arise in this case for consideration.
[14]
No
question of general importance is raised in this case.
ORDER
THIS COURT ORDERS that the application for judicial
review be dismissed. No question is certified.
“Luc Martineau”
Email this Content