Date: 20050503
Docket: IMM-3232-04
Citation: 2005 FC 604
BETWEEN:
TEERADECH PRAMAUNTANYATH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] Mr. Teeradech Pramauntanyath (Applicant) had his application, for permanent residence based on humanitarian and compassionate grounds (H & C), rejected. This is the second rejection - the first decision rejecting his application was quashed by this Court due to a procedural issue, which is of no relevance to the merits of the H & C application.
[2] The matter of the Applicant's request to apply for permanent residence from within Canada was ordered by Justice Mactavish to be decided by a different immigration officer.
[3] The critical portion of the second immigration officer's decision (from the Applicant's perspective) is found in the body of the Decisions and Reasons section of the H & C Application - Notes to File:
Although his establishment in Canada is well documented and given significant consideration, I am not satisfied that his business venture and integration is compelling, whereby having to apply from outside Canada through the normal procedure would constitute as [sic] excessive, undue and undeserved hardship.
[4] The remainder of the officer's analysis dealt with the Applicant's ability to deal, within Thailand, with the impact of his return to that country. There is passing reference to separation from Canadian friends but nothing about the impact on the Applicant, his partners, employees or on his restaurant business and investment.
BACKGROUND
[5] The Applicant came to Canada from Thailand in February 1999 on a student visa. He overstayed his visa and began working in the restaurant industry.
[6] In April 2000, the Applicant and two partners opened the "Real Thailand" restaurant of which the Applicant is a one-third owner and main chef.
[7] Apparently the restaurant is reasonably successful, with over a million dollars in revenue, 15-20 employees (the breakdown between full and part-time is not established). There is evidence of favourable newspaper/magazine reviews of the restaurant suggesting that the quality of the food is a major attraction.
[8] The restaurant's operations are divided between the partners, one is responsible for the service and wait staff, the second deals with financial matters, while the Applicant is responsible for controlling and maintaining the quality and standard of food, training kitchen staff, setting up menus and creating new dishes.
[9] It was a central plank of the Applicant's H & C submissions and evidence that his presence was critical to the ongoing success of the restaurant and that his removal from Canada (even temporarily) would adversely affect him, his business, his partners, and the employees.
ISSUES
[10] The Applicant says the issues are:
a) Whether the Officer failed to consider the adverse impact, of the Applicant's removal, upon the business;
b) or if the Officer did consider the adverse impact, whether the decision is unreasonable in all the circumstances.
REASONS
[11] The Respondent, quite properly, raised the issue of the deference which a reviewing court must accord the highly discretionary decision of the officer in a H & C application. An applicant for a H & C is effectively seeking special consideration and an exemption from an important provision of Canada's immigration regime requiring applications for permanent residence to be made from outside Canada.
[12] There are several cases in this Court dealing with review of H & C decisions. Most recently Justice Blais in Lee v. Canada (Minister of Citizenship and Immigration) 2005 F.C. 413 and Justice Rouleau in Nazim v. Canada (Minister of Citizenship and Immigration) 2005 F.C. 125 emphasized the limitations which they see in regard to Court review of H & C decisions.
[13] Despite this caveat, the parties agree, as does the Court, that the standard of review is reasonableness simpliciter.
[14] The analysis of the "reasonableness" standard was referred to in Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 at paragraph 63:
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 I the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[15] Applying that standard, the Officer's decision took into account "the degree of establishment" as it is referred to in the Guidelines. While this is not the controlling factor in a H & C decision it is important. This Applicant would score positively on all five (5) questions to be probed on the criteria established in the Guidelines.
[16] The Officer appears to have given favourable consideration to the establishment of the restaurant business, his social and economic integration, his Canadian experience, his volunteer work, letters of recommendation and his establishment in Canada. Despite all this, the Officer finds: "I am not satisfied that his business venture and integration is compelling".
[17] Given the "reasonableness" analysis quoted earlier, the Court cannot find the evidentiary foundation or the logical process which supports the Officer's conclusion. The decision does not stand up to a "probing examination".
[18] The decision does not address the most fundamental aspect of the Applicant's argument - that his removal would adversely affect himself, his business and his partners and employees. As a matter of fairness the Applicant is entitled to "real" reasons which address his principal argument and evidence.
[19] It may well be that the Officer did not accept the central thesis of the Applicant's case but it is impossible for the Court to discern if it was considered or, if considered, the Officer's reasons for rejecting it. There may be good reasons - it is just impossible to understand what they are, particularly where the facts are so in favour of the Applicant.
[20] As a result, the Court finds that this decision must be quashed and the matter remitted to a different immigration officer for determination.
[21] There is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3232-04
STYLE OF CAUSE: TEERADECH PRAMAUNTANYATH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 19, 2005
REASONS FOR ORDER: Phelan J.
DATED: May 3, 2005
APPEARANCES:
Mr. Lorne Waldman FOR THE APPLICANT
Ms. Allison Phillips FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Waldman & Associates
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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