Date: 20061019
Docket: IMM-6669-05
Citation: 2006
FC 1255
Toronto, Ontario, October 19, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
MARIA
LOUISA ESPINO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
“Can you
heare a good man grone And not relent, or not compassion him?” so it was said
in Shakespeare’s Titus Andronicus, Act IV, Scene I. Compassion has been
defined as including suffering together with another, participation in suffering;
fellow-feeling, sympathy, the feeling or emotion when a person is moved by the
suffering or distress of another and by the desire to relieve it.
[2]
The
Ministry showed little compassion in its decision to deny Ms. Espino the
opportunity of applying for permanent residence status from within Canada. The normal rule is one must
apply from one’s home country, in this case the Philippines. However, under section 25 of our Immigration
and Refugee Protection Act, upon request the Minister shall examine circumstances
concerning a foreign national and may grant him or her permanent residence
status from within Canada or an exemption from any
applicable criteria if “...of the opinion that it is justified by humanitarian
and compassionate considerations...”.
[3]
Ms. Espino
came to Canada in 1991 under a valid
employment authorization as a live-in caregiver. When she completed the first
phase of that program in 1993, she was entitled to and did submit an inland
application for permanent residence. That application took nine, yes
nine, years to process before it was refused in January 2003. In the interim
she was given unrestricted work permits. She has bettered herself and has built
a career with a prominent Canadian bank.
[4]
She has
not been in the Philippines for over fifteen years. She
is currently 51 years of age. She has six children in the Philippines, five of whom are now adults.
The sixth, who is still young enough to be sponsored, is mentally handicapped
and would normally not be accepted here as being a drain on the public purse.
Ms. Espino, who once tried to sponsor him, now must accept that decision.
[5]
However, a
good part of her earnings go back to the Philippines, particularly to help her handicapped
child. The officer handling the application was of the view that there would be
only minimal adjustments to allow her to resettle, to find a job and to be
self-supporting in the Philippines. The officer made no analysis
as to why it took the Minister nine years to come to a final decision with
respect to her initial application for permanent residence filed pursuant to
the live-in caregiver program.
[6]
The
officer made no analysis to contradict Ms. Espino’s assertion that a 51-year-old
single woman who has not been in the Philippines
for fifteen years would have difficulty finding a suitable job. How easy is it
for a 51-year-old who relocates in Canada
to find a suitable job?
[7]
It should
also be noted that Ms. Espino never claimed to be a refugee, and never sought a
pre-removal risk assessment.
[8]
The standard of review
in matters such as this one is reasonableness simpliciter (Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[9]
In
reality, the officer did not give reasons for his decision. He set out the
facts and concluded: “I am satisfied that applicant has new skills now, it’s
reasonable to expect that minimal adjustment is required to resettle and find a
job and be self-supporting should she return to the Philippines.” Although it
is true she has new skills, the rest is surmise and conjecture, not an
inference from facts in the record. The same holds true with his conclusion: “I
am satisfied that applicant will not face any hardship or sanctions upon
returning to her home country.”
[10]
Although
the rules of evidence are more relaxed before administrative tribunals, there
must be findings of fact to justify conclusions. There are none in this case.
As to the difference between inference and conjecture, this is what Mr. Justice
MacGuigan, speaking for the Federal Court of Appeal, had to say in Canada
(Minister of Employment and Immigration) v. Satiacum 99 N.R. 171, [1989]
F.C.J. No. 505 (QL) (F.C.A.):
The common law has long recognized the difference between
reasonable inference and pure conjecture. Lord Macmillan put the distinction
this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R.
39, at 45, 144 L.T. 194, at 202 (H.L.):
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“The dividing line
between conjecture and inference is often a very difficult one to draw. A
conjecture may be plausible but it is of no legal value, for its essence is
that it is a mere guess. An inference in the legal sense, on the other hand,
is a deduction from the evidence, and if it is a reasonable deduction it may
have the validity of legal proof. The attribution of an occurrence to a cause
is, I take it, always a matter of inference”.
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In R. v. Fuller (1971), 1
N.R. 112 at 114, Hall J.A. held for the Manitoba Court of Appeal that "[t]he
tribunal of fact cannot resort to speculative and conjectural conclusions".
Subsequently a unanimous Supreme Court of Canada expressed itself as in
complete agreement with his reasons: [1975]
2 S.C.R. 121 at 123; 1
N.R. 110 at 112.
[11]
A recital
of facts with the conclusion not based on any analysis does not constitute a
reasoned decision. Although decided in a criminal context, R. v. Sheppard,
[2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL), is à propos. Mr.
Justice Binnie said at paragraphs 15 and 18:
[15] Reasons for judgment
are the primary mechanism by which judges account to the parties and to the
public for the decisions they render. The courts frequently say that
justice must not only be done but must be seen to be done, but critics respond
that it is difficult to see how justice can be seen to be done if judges fail
to articulate the reasons for their actions. Trial courts, where the
essential findings of facts and drawing of inferences are done, can only be
held properly to account if the reasons for their adjudication are transparent
and accessible to the public and to the appellate courts.
[…]
[18] In Canadian administrative law, this
Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, that:
... it is now appropriate to
recognize that, in certain circumstances, the duty of procedural fairness will
require the provision of a written explanation for a decision. The
strong arguments demonstrating the advantages of written reasons suggest that,
in cases such as this where the decision has important significance for the
individual, when there is a statutory right of appeal, or in other
circumstances, some form of reasons should be required.
[12]
The
decision was unreasonable and so judicial review will be allowed.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed. The matter is to be referred to a different officer for a
fresh determination.
“Sean
Harrington”
FEDERAL COURT
NAMES OF SOLICITORS AND
SOLICITORS ON THE RECORD
DOCKET NO.: IMM‑6669-05
STYLE OF CAUSE: MARIA LOUISA ESPINO v. THE MINISTER
OF
CITIZENSHIP
AND IMMIGRATION
PLACE
OF HEARING: Toronto,
Ontario
DATE
OF HEARING: October
17, 2006
REASONS
FOR ORDER
AND
ORDER BY: Harrington
J.
DATED: October 19, 2006
APPEARANCES:
Mrs. Mary Lam FOR
THE APPLICANT
Mr. Jamie Todd FOR
THE RESPONDENT
SOLICITORS
ON THE RECORD:
Mrs. Mary Lam
Barrister & Solicitor
Toronto, Ontario FOR
THE APPLICANT
John H. Sims, Q.C.
Deputy
Attorney General of Canada FOR
THE RESPONDENT
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