Date: 20060809
Docket: IMM-5042-05
Citation: 2006 FC 956
Ottawa, Ontario, August 9, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
TINA
ONG YU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
The
anatomy of humanitarian and compassionate grounds is based on exceptional criteria
in a differently constituted framework. That framework is established to
examine extenuating circumstances. It is Canada’s unique
response to the fragility of the human condition.
JUDICIAL PROCEDURE
[2]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of the
Immigration Program Manager at the Canadian Embassy in the Philippines, dated
June 15, 2005, wherein the Applicant’s application for humanitarian and
compassionate (H&C) consideration pursuant to subsection 25(1) of IRPA was
refused.
BACKGROUND
[3]
The
Applicant, Ms. Tina Ong Yu, is 61 years old and a citizen of the Philippines. She is
single and does not have any children. She and her twin sister Nita are the
youngest of nine siblings, only four of which are still alive, she and her twin
sister and two older sisters.
[4]
Ms.
Yu and Nita were less than a year old when their father was killed during the
Japanese occupation of San Pablo City. They were only 12
years old when their mother died of kidney failure. At that time, Ms. Yu and
Nita moved in with their oldest brother who raised them and financed their
education.
[5]
When
they graduated from high school, they moved into a dormitory together for their
college education in Manila. After graduating from college, they both
moved back to San
Pablo City to work at
their oldest brother’s auto supply business. After about a year, they both
moved to Naga City to work
at another auto supply business until 1969. Ms. Yu and Nita then worked at
Immaculate Conception Academy in Davao for 18 months before
moving to Manila to open a branch office in Manila where they worked
and lived together for over two years.
[6]
In
1974, Nita married Henry Cua. Ms. Yu and Nita lived separately for one year but
they could not stand being away from each other. In 1975, Nita and Henry
invited Ms. Yu to live with them. In 1977, Henry asked Ms. Yu to work at his
company which she did, first as a bookkeeper, then as a cashier and finally as
a financial officer. Ms. Yu lived with them until they immigrated to Canada in 1993; she
witnessed the birth of their two daughters, Deborah in August 1975 and Cherry
in January 1977. She helped raise her nieces.
[7]
Shortly
after Nita and her family came to Canada, Ms. Yu applied for
permanent residence to Canada as a bookkeeper; her application was
refused in a letter dated October 10, 1996.
[8]
Ms.
Yu applied again in July 2000 for permanent residence to join her twin sister
in Canada. Her
application was submitted to the Canadian Consulate General in Buffalo which
transferred her file to the Canadian Consulate General in Los Angeles on January
16, 2001.
[9]
The
next correspondence she received regarding her application was a letter dated
March 7, 2002 from the Canadian Embassy in Manila, Philippines telling her
that she would be called in for an interview and that the waiting period for
her interview might be up to 36 months.
[10]
In
April 2002, Nita was diagnosed with oesophageal cancer. A laparoscopic oesophagectomy
was performed on June 13, 2002 and Nita was discharged after ten days but was
readmitted when she developed bilious vomiting. She was released from the
hospital on July 9, 2002 and all this time, Ms. Yu was by her side. Nita is in
essence Ms. Yu’s family. Nita and Henry have the financial ability and the
willingness to support Ms. Yu.
[11]
In
2004, Ms. Yu retained Ong & Associates to represent her with respect to her
application for permanent residence. She explained her situation and
desperation to be with her twin sister and a letter dated April 26, 2004,
setting out her circumstances and requesting that her application be considered
on H&C grounds, was sent to the Canadian Embassy in Manila with updated
forms and supporting documents.
[12]
Ms.
Yu was interviewed at the Canadian Embassy in Manila on February
8, 2005 by a visa officer. The officer asked her about Nita’s health and their other
siblings as well as her own financial situation. They discussed her bond she
shares with Nita. The visa officer went through the units of assessment with
her and told her that she would not be accepted as a skilled worker but that
his manager would consider her application on H&C grounds.
DECISION UNDER REVIEW
[13]
Ms.
Yu received a letter dated June 15, 2005 from the Canadian Embassy in Manila
stating that she did not meet the minimum number of points required for a
permanent resident visa and therefore did not satisfy the officer that she
would be able to become established in Canada. The letter
also stated that her request for consideration of possible H&C grounds was
referred to the Immigration Program Manager for review and that she would be
notified of the outcome of his determination in a separate letter from him.
[14]
She
received a second letter, also dated June 15, 2005, from the Canadian Embassy
in Manila signed by
the Immigration Program Manager. The Immigration Program Manager refused her
request for H&C consideration under subsection 25(1) of IRPA because there
were insufficient humanitarian and compassionate considerations. The reasons
which were specifically mentioned were the facts that Nita immigrated to Canada 11 years ago
and that another sister immigrated the previous year while the fourth sister
remained in the Philippines.
[15]
This
second decision, regarding the H&C considerations of her application, is
the decision under review in the present application. Ms. Yu is not asking for
review of the decision regarding her assessment as a bookkeeper.
ISSUES
[16]
There
is only one issue in this case: whether the Immigration Program Manager erred
in finding that there were not sufficient humanitarian and compassionate
considerations to grant Ms. Yu’s request, specifically that she is not a de
facto family member.
ANALYSIS
Statutory scheme
[17]
Subsection
25(1) of IRPA states:
|
25. (1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet
the requirements of this Act, and may, on the Minister’s own initiative,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25.
(1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des circonstances d’ordre humanitaire relatives à l’étranger – compte tenu de
l’intérêt supérieur de l’enfant directement touché – ou l’intérêt public le
justifient.
|
[18]
The
Immigration Manual Overseas Processing 4 (OP4), prepared by Citizenship and
Immigration Canada, deals with “Processing of Applications under Section 25 of
the IRPA”. De facto family members are discussed at page 9 in the
following terms:
De facto family
members
De facto
family members are persons who do not meet the definition of a family class
member. They are, however, in a situation of dependence that makes them a de
facto member of a nuclear family that is either in Canada or that is applying to immigrate. Some examples: a son,
daughter, brother or sister left alone in the country of origin without family
of their own; an elderly relative such as an aunt or uncle or an unrelated
person who has resided with the family for a long time. Also included may be
children in a guardianship relationship where adoption as described in R3(2) is
not an accepted concept. Officers should examine these situations on a case-by-case
basis and determine whether humanitarian and compassionate reasons exist to
allow these children into Canada. (Emphasis that of the Court)
Consider:
•
whether dependency is bona fide and not created for immigration
purposes;
•
the level of dependency;
•
the stability of the relationship;
•
the length of the relationship;
•
the impact of a separation;
•
the financial and emotional needs of the applicant in relation to the family
unit;
•
ability and willingness of the family in Canada to provide support;
•
applicant’s other alternatives, such as family (spouse, children, parents,
siblings,
etc.)
outside Canada able and willing to provide support;
•
documentary evidence about the relationship (e.g., joint bank account or real
estate
holdings,
other joint property ownership, wills, insurance policies, letters from friends
and family);
•
any other factors that are believed to be relevant to the H&C decision
[19]
Guidelines
and policy directives do not constitute law and, as such, immigration agents
and the Minister himself or herself are not bound by them. They are, however,
important and useful to decision-makers and the courts, in this case in order
to determine the factors to consider in an H&C application. (Agot v.
Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003]
F.C.J. No. 607 (QL), at paragraphs 8, 11; Dilmohamed v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 9, [2002] F.C.J. No. 22, at
paragraph 9)
Standard of review
[20]
The
appropriate standard of review for humanitarian and compassionate cases is
reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL), at paragraphs
57-62).
[21]
As
to what constitutes an unreasonable decision, Mr. Justice Frank Iacobucci in Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1
S.C.R. 748, [1996] S.C.J. No. 116 (QL), stated, at paragraph 56:
…An unreasonable decision is one
that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion on
the reasonableness standard must look to see whether any reasons support it.
The defect, if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be drawn
from it. An example of the former kind of defect would be an assumption that
had no basis in the evidence, or that was contrary to the overwhelming weight
of the evidence. An example of the latter kind of defect would be a
contradiction in the premises or an invalid inference.
[22]
Furthermore,
as stated by Mr. Justice François Lemieux in I.G. v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1704 (T.D.) (QL), at
paragraph 39:
Not only does Baker require a
more focussed approach by immigration officers, it places a new and more
"hands-on" responsibility by a reviewing judge. A reviewing judge
must take a "hard look" at the H & C decision, must assess
whether it is reasonable by examining the reasons to see if they can stand up
to a somewhat probing examination in the evidentiary foundation..
Humanitarian and
compassionate considerations
[23]
In
Radix v. Canada (Minister of Citizenship and Immigration), 2004 FC 1253,
[2004] F.C.J. No. 1512 (QL), Ms. Radix was applying to immigrate to Canada on H&C
grounds from within Canada as a de facto family member of the
family for whom she had worked as a caregiver. She had worked for a Canadian
family for five years helping the family raise the children, returned to
Grenada for three years then came back to Canada and resumed living with her
former employer, although working outside of the home. At the time her
application was assessed, she had been living with the family close to ten
years. The immigration officer found the dependency of the children on Ms.
Radix to be minimal for their physical and emotional care since the children
were now teenagers and had supportive parents. Ms. Radix also had her own
children and grandchildren in Grenada.
[24]
At
paragraph 8 of the Radix decision, above, Mr. Justice Douglas Campbell
set aside the immigration officer’s decision that Ms. Radix was not a de facto
family member and stated the following:
In my opinion, in the present
case, not only does the H&C Officer apply unwarranted criteria to the
determination of de facto family membership, but the H&C Officer's decision
does not accord with the evidence. It is hard to imagine how much more of a
dependant connection a person must have with a family such as the one under
consideration in the present case in order to be an actual genuine dependant
member of the family. Indeed, in my opinion, the conclusion reached by the
H&C Officer is so much in discord with the evidence that I have no
hesitation is saying that it is patently unreasonable in the extreme.
[25]
In
the case at bar, much more exists, there is not only a blood relationship but
the sisters are twins. Ms. Yu is the twin sister of Nita, who is a Canadian
citizen. They lost their father when they were less than one year old and they
lost their mother when they were twelve years old. Except for one year after
Nita got married, they lived together their entire lives until Nita immigrated
to Canada with her
family. During the year after Nita got married, even though they lived in the
same city, they found the separation of not living together very difficult.
Therefore, Ms. Yu moved in with Nita and her husband. Ms. Yu has been living in
Nita’s house in the Philippines since 1975 and has worked for Nita’s husband
since 1977. Nita and her husband are willing and able to support Ms. Yu and
provided an Undertaking to demonstrate their willingness and ability to do so.
Since Nita immigrated to Canada, Ms. Yu has been trying to join her.
[26]
In
April 2002, Nita was diagnosed with cancer. During her treatment, surgery and
recovery, Ms. Yu was by her side. Nita’s remission is largely due to Ms. Yu’s
care and presence. They are genuinely dependent on each other and Ms. Yu is a de
facto family member of Nita’s family.
[27]
The
Immigration Program Manager noted that Ms. Yu still has a sister who resides in
the Philippines. He failed
to consider, however, whether that sister helps Ms. Yu meet her emotional
needs.
[28]
In
Sitarul v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 1067 (T.D.) (QL), at
paragraph 17, Mr. Justice Max Teitelbaum reviewed the “Last Remaining Family
Member” policy (Immigration Policy IS 1.17) which states:
…
2) Last Remaining Family Members
a) The Intent
of this policy is to provide a procedure whereby deserving individuals who, in
practice, are dependent members of the family, may benefit from the treatment
accorded "accompanying family members" even though they may not
satisfy the strict definition of family set out in the Family Class
Regulations. Cases may be considered at the time of, or subsequent to, the
migration of the family unit.
b) Immigration
officers in Canada and visa officers abroad will, on occasion, have family
situations brought to their attention which will indicate by their nature, on
the basis of the facts presented, and in the context of the social and economic
environment of the persons concerned, that the admission of the relative should
be facilitated. They may include persons who have never come within the legal
definition of the family class but who, nevertheless, have established a
long-term dependence which would make them a de facto member of the nuclear family,
such as an elderly aunt or a long standing aged family servant who had resided
with the family prior to its departure for Canada. The primary consideration
is, and continues to be, that the Immigrant has considerable difficulty in
meeting his/her financial or emotional needs without the support and assistance
of the family unit who is migrating to, or is already in, Canada.
The Immigration Policy IS 1.17 is similar
to the “De Facto Family Member” policy set out in OP4.
[29]
In
Sitarul, above, the applicant was a Fijian woman who lived with her
parents who were immigrating to Canada. The applicant was
divorced and had four children who were not in her custody as well as a brother
and a sister remaining in Fiji. At paragraph 32, Mr. Justice Teitelbaum
found that the Last Remaining Family Member policy could still apply even
though she had family in her home country:
In reading this policy as a
whole, I am satisfied that the policy was not meant to say that if other family
members remained in the country one cannot be considered as a Last Remaining
Family Member but that the policy was meant to say that if a person has
considerable difficulty in meeting her financial or emotional needs without the
assistance and support of the family unit who is migrating or already in Canada
and that those family members remaining in the country from which the person
wishes to emigrate cannot provide the necessary financial or emotional support
needed, then that person who wishes to emigrate can be considered as the Lat Remaining
Family Member
[30]
Even
though Ms. Yu has a sister in the Philippines, this does not exclude her as a de
facto family member of her twin sister’s family in Canada. The visa
officer ignored the evidence of emotional dependency, both for Ms. Yu and her
twin sister in Canada. There is a significant factual difference
between living together and sharing day-to-day life and an occasional visit.
The visa officer also failed to take into account that Ms. Yu has been
trying to reunite with her twin sister since she immigrated to Canada.
[31]
The
purpose of the Immigration legislation is to assist immigration, not hinder it
by setting obstacles (Hajariwala v. Canada (Minister of Employment and
Immigration), [1989] 2 F.C. 79, [1988] F.C.J. No. 1021 (QL)). Furthermore, paragraph
3(1)(d) of IRPA, recognizing the fragility of the human condition in the
separation of family members, clearly states that one of the objectives of the
Act is to see that families are reunited in Canada.
[32]
The
Immigration Program Manager erred in finding that Ms. Yu was not a de facto
member of Nita’s family such that this case did not fall in the legislator’s
definition of family reunification.
CONCLUSION
[33]
The
decision-maker did not consider the relevant H&C factors and in finding
that Ms. Yu was not a de facto family member, this application for
judicial review is allowed. This case is returned to the H&C decision-maker
for redetermination.
OBITER
[34]
The
Court is not here to substitute itself for the H&C decision-maker.
Exceptional cases require exceptional consideration. This decision is not for
the Court to make; it is for the authoritative decision-maker to reach. This is
a case of an individual in Canada whose continuing wish, since separation
from her twin sister and now in a most difficult illness, is to have her twin
sister by her side – a sister with whom she has a life-long-bond since the
tragic death of both of her parents at a young age.
[35]
From
a legal perspective, the matter is in the bailiwick of the authority in
question; the parameters of the authority are the authority’s to make. The
criteria of an H&C include, in essence, a “cri de coeur”, whether it is
admitted or not; it is a deference to that “lèse-majesté” whether it allows
itself to consider the “cri de coeur” when it is exceptional. That which is
exceptional, no matter how much articulation is given, cannot be clearly articulated
– it belongs in the realm of the ineffable – that is the essence of
humanitarian and compassionate discretion which can be said to be in a
non-technical category. Humanitarian and compassionate grounds are those
grounds that do not fit conveniently into set parameters but rather look further
to extenuating circumstances in order to address the fragility of the human
condition while it can still be addressed.
JUDGMENT
THIS COURT ORDERS that the
application for judicial review be allowed and the matter be remitted to the
H&C decision-maker for redetermination by a differently constituted panel.
“Michel M.J. Shore”
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