Date: 20060927
Docket: IMM-7201-05
Citation: 2006 FC 1151
Toronto, Ontario, September 27,
2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SUE-ANN
AILEEN WILLIAMS
Applicant
and
THE
M INISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of an Immigration Officer,
dated November 16, 2005, which refused Ms. Sue-Ann Williams’ application for an
exemption from visa requirements on humanitarian and compassionate grounds.
The case turns on whether the officer's reasons for decision are adequate. As
I am satisfied that they are and that there are no grounds to interfere with
the decision, the application must be dismissed.
[2]
Ms.
Williams is a citizen of St. Vincent. She arrived in Canada on August
19, 1998 with visitor status, which remained valid until February 18, 1999.
Ms. Williams stayed in Canada thereafter without status and filed a
claim for refugee protection on February 5, 2001. The basis for that claim was
abuse at the hands of her former common-law spouse and a risk to her life from
the same man if she was to return to St. Vincent. The claim was rejected on
June 2, 2003 on the grounds that the applicant's delay in making her claim did
not support a finding of subjective fear and that state protection was
available to her in St. Vincent.
[3]
On
December 20, 2003 Ms. Williams made an application for permanent residence from
within Canada on
humanitarian and compassionate (“H&C”) grounds based on the same underlying
facts as her refugee claim. By letter dated January 13, 2005 an immigration
officer (the officer) requested additional information from her. Among other
things, the letter asked the applicant to explain why there might be special
reasons to exempt her from the requirement to apply for permanent residence at
a visa office outside of Canada and to explain what excessive hardship she
would suffer if not permitted to apply from within Canada. The
applicant was advised to provide evidence or documents in support of her
statements.
[4]
In
response to this request, the applicant's immigration consultant submitted a
letter dated February 7, 2005 which simply reiterated the facts alleged in the
refugee claim and the December 20, 2003 application. Attached were letters of
support from the applicant's friends, her Pastor, employer, and documents
describing her education and bank savings.
DECISION
[5]
On
the information submitted, the officer identified the basis of the application
for humanitarian and compassionate consideration as being "past abuse at
the hands of her former common-law partner in St. Vincent" and
noted that no new information had been submitted beyond that considered by the Refugee
Protection Division. The officer stated that as the elements of risk put
forward in the H&C application were the same as those in the applicant's
refugee claim, the file would not be sent to a pre-removable risk assessment
officer for a risk opinion.
[6]
The
officer noted that the applicant had an aunt and two cousins in Canada, had had a
series of jobs here, had approximately $600 in savings and had volunteered with
her church. The officer then stated that the applicant is however "not...
so established in Canada that to require her to leave to make her
application for permanent residence would constitute unusual and undeserved or
disproportionate hardship". The officer further noted that the applicant
had a mother and two sisters in St. Vincent and while it was recognized that
there had been some difficulty in the relationship with the mother, they
continued to have contact. Taking into account the applicant's age of 29,
college education from St. Vincent and prior work record there, the officer
concluded that he or she was "not satisfied that [the applicant] would be
unable to return to St. Vincent, find employment and accommodation, and make
her application for permanent residence".
ISSUES
[7]
The
issues in this application are whether the officer breached principles of
fairness in failing to provide adequate reasons and, overall, whether the immigration
officer made an unreasonable decision.
ANALYSIS
[8]
It
is settled that the standard of review for decisions of immigration officers in
relation to H&C applications is, in general, reasonableness: Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. As discussed by Justice
Iacobucci in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision will
be unreasonable only if there is no line of analysis within the given reasons
that could reasonably lead the tribunal from the evidence before it to the
conclusion at which it arrived. If the reasons are tenable in the sense that
they can stand up to a somewhat probing examination, then the decision will not
be unreasonable and a reviewing court must not interfere.
[9]
With respect to
the adequacy of the officer’s reasons, this involves a determination of
the content of the duty of fairness that the officer owed the applicant to
explain the decision. A pragmatic and functional analysis is not required. The
standard of review is correctness: Ha v. Canada (Minister of Citizenship and
Immigration), [2004] 3 F.C.R. 195, 2004 FCA 49.
[10]
The
applicant submits that the reasons given in the present case for the officer’s
conclusions are insufficient. It is not clear from the reasons, she asserts,
why her eight years of residence in Canada, educational upgrading and
established work history did not constitute sufficient establishment and
demonstrate that she would suffer undue hardship if required to make her
application from St. Vincent.
[11]
As
stated by the Federal Court of Appeal in Via Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25, (2000), 193 D.L.R. (4th) 357
the
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather the
decision maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address
the major points in issue and must reflect consideration of the main relevant
factors. However, this assumes that the decision maker has been provided with
the information necessary to conduct such an analysis.
[12]
The
difficulty for the applicant in this case is that no submissions were made to
the officer on her behalf, despite the request made in the January 2005 letter,
to support a finding of establishment or to explain why it would constitute
undue hardship for the applicant to apply for permanent residence from St.
Vincent. What was tendered was a recital of the risk factors that had been
addressed in the decision of the Refugee Protection Division in 2003. The
applicant submits that the officer should have revisited those elements and
provide reasons for why they did not support a finding of undue hardship.
[13]
I
don’t agree. In my view, it was open to the officer to conclude that a further
risk analysis was not required as no new risk information had been provided.
Further, it was open to the officer to rely on the finding of the Refugee
Protection Division that state protection was available to the applicant in St. Vincent. In those
circumstances, there was little remaining before the officer to analyse. No
case was made in the representations submitted on her behalf that the
applicant's establishment in Canada was such that it would constitute undue
hardship for her to make an application outside of the country or that she
would be unable to do so from St. Vincent. The scant information tendered did
not call for an explanation from the officer as to why it was not sufficient
beyond that which was provided.
[14]
In
determining whether the applicant would suffer undue hardship if she was
required to make her application for permanent residence from outside the
country, the officer assessed and explored her connection to Canada and other
relevant factors. In the result, the officer's reasons reflect an analysis of the
information provided and can withstand a somewhat probing examination.
[15]
I
find, therefore, that there has been no breach of fairness and that the
decision, as a whole, is reasonable. The application is dismissed. No serious
questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS HEREBY ADJUDGED that this
application is dismissed. No questions are certified.
“Richard
G. Mosley”
Email this Content