Grant v. Canada (Minister of Citizenship and Immigration), 2005 FC 955

Date: 20050707

Docket: IMM-6841-04

Citation: 2005 FC 955

BETWEEN:

                                                        RICA VERGINA GRANT

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

J. GIBSON                 

INTRODUCTION

[1]                These reasons follow the hearing on the 6^th of July, 2005 of an application for judicial review of a decision of a Citizenship and Immigration Officer (the "Officer") wherein the officer determined that there were insufficient humanitarian and compassionate grounds to warrant the processing of the Applicant's application for landing from within Canada. The decision under review is dated the 15^th day of July, 2004.

BACKGROUND

[2]                The Applicant is a citizen of St. Vincent. She is single, having separated from her common-law spouse with whom she lived in Barbados. The Applicant entered Canada as a visitor in late August, 1996 to aid her daughter in the raising of a recently born granddaughter of the Applicant. The Applicant's daughter is a permanent resident of Canada. The Applicant's granddaughter, having been born in Canada, is a Citizen of this country. The Applicant apparently has one or more other children in Canada although very little is disclosed about them in the material that was before the Officer. The Applicant apparently also has a mother, and perhaps one or more other children, in St. Vincent. The Applicant has not lived in St. Vincent since 1979.

[3]                The Applicant alleges that she was the victim of spousal violence while she lived in Barbados. The Applicant's daughter with whom the Applicant lives was also apparently the victim of spousal violence. She is separated from her husband. The Applicant's granddaughter lives with her mother and the Applicant.

[4]                The Applicant claims to be well established in Canada. She is self-employed as a domestic, has accumulated some savings, is active in volunteer work, has been law abiding throughout her stay in Canada, has been and apparently continues to be a substantial source of support for her daughter and granddaughter and has not relied on social assistance. Her daughter seeks to sponsor the Applicant.

[5]                In an undated hand-written letter that was before the Officer, the Applicant's daughter notes:

Just over seven and a half years ago my mother came to Canada two weeks after my daughter was born. It was a relief to have her, since I came to depend on her guidance and words of wisdom that could only come from someone with her good nature and experience.

Her experience as a health care worker is also a plus since I'm going through a stage of depression. Along with my medication the extra help from her has a positive impact on my recovery.

My mother contributes to both my kids and my life a great deal. I am a single parent with low income. I work during the night while mom works days because I cannot afford the daycare. She takes care of the kid. Her financial contribution towards the bills and rent is also a great asset. Without her I will be forced to go on social assistance.^[1]

[6]                In her own letter that was before the Officer, dated the 12^th of April, 2004, the Applicant writes:

I came to Canada for two reasons, one to leave my abusive husband and the second, to assist my daughter with her new born baby, for a short while. It wasn't long before I realized how much verbal abuses and sometime physical abuse that she has been going through. I[t] was unbearable for me to leave her alone and the child. I remained with her to present.

My daughter and her husband separated several times since and reconciled several times also, until recently that she decided that she has had enough and just returned home with me. She has been under severe depression for a long time and has been on medication for it. Sometimes she talks of suicide and I fear that if I am not around, that she may harm herself and her child.

Patrice [the daughter] is a beautiful and very intelligent person, but her life was ruined by the abuses she endured. Without my assistance, she cannot support herself and kids alone and she cannot make it emotionally alone, because of the depression.^[2]

[7]                References to the Applicant's daughter's depression are only marginally supported by independent evidence. In a letter dated the 15^th of April, 2004^[3], a medical doctor verifies that she had been following the Applicant's daughter for depression for approximately four months. The doctor further notes that the Applicant's daughter has been on medication daily for "... difficulty sleeping, decreased appetite, and depressed mood" and that she continues to be monitored monthly. Certainly the medical letter fails to verify the Applicant's allegation that her daughter had been under severe depression for "a long time".

THE DECISION UNDER REVIEW

[8]                In a document entitled "Humanitarian and Compassionate Narrative Form" in support of the decision under review^[4] and under the heading "Decision and Rationale", the Officer notes that he had considered that the Applicant had been in Canada for eight years at the time of the decision. He further notes:

Patrice, [the Applicant's] daughter has submitted a sponsorship and has outlined the reasons why she needs her daughter to remain in Canada with her and her daughter, Smyrna Jennifer. Both Rica [the Applicant] and Patrice state that they were in abusive relationships. Rica left her common-law husband in Barbados to get away from the abuse. She came to Canada only to find that her daughter, who was sponsored to Canada in 1998 by her husband, ended up in the same situation of spousal abuse.

[9]                The Officer notes that neither the Applicant nor her daughter have provided documentation to support the abuse that they allege they have suffered, with the exception of the medical letter, earlier referred to, in the case of the Applicant's daughter. The Officer notes that she does not consider the doctor's medical letter to be self-serving.

[10]            The Officer rationalizes his decision in three brief paragraphs, one dealing with the best interests of the Applicant's grandchild, and one each dealing with the impact on the Applicant of having to return to St. Vincent and the impact of failure to grant leave to apply for landing from within Canada on the Applicant herself, given her degree of establishment, and on her daughter. Those paragraphs read as follows:

I have looked at the best interests of the grandchild who is now 8 years old. I am aware that this child's grandmother... has been in her life a great deal of the time. However, she does still have her mother to guide and provide for her emotionally. There are many single-parents in our culture and Ms. Patrice Wright is not the exception. It is not clear as to whether the father plays a role in her life given that he is a Permanent resident of Canada.

...

Rica Vergina Grant states that she cannot return to Barbados because she is afraid to return, as noted above and that she is a citizen of St. Vincent, not Barbados. She states she has nothing to return to. However, it is noted that she has her elderly mother in St. Vincent. It is also noted that she has a relationship with her mother since she states on her submissions that she provides financial assistance to her mother from Canada.

It is admirable that Ms. Grant was able to sustain herself throughout her employment, assist her family and volunteer during her eight year stay in Canada. I am of the opinion that some establishment has been made. However, I am not satisfied that it would be a hardship if she were asked to leave it behind if she was to return to St. Vincent.

[11]       It is noteworthy that the Applicant's role in the life of her grandchild appears to be minimized and that no account is taken of the Applicant's daughter's alleged long term depression and her alleged low income in assessing the best interests of the Applicant's grandchild. It is equally noteworthy that no mention is made of the Applicant's daughter's alleged dependance herself on her mother. Finally, against the totality of the documentary evidence that was before the Officer, I can only conclude that the Applicant's establishment in Canada was itself minimized.

ANALYSIS

[12]            It is trite law that the onus on an application for landing from within Canada lies on the applicant and that it is a heavy onus. It cannot be said on the material that was before the Officer that the Applicant has put her best foot forward to meet that onus.

[13]            The foregoing being said, the Officer provides a remarkably brief rationale in support of his decision to deny the Applicant's application for landing from within Canada. It appears that the Officer effectively ignores much of the Applicant's rationale for her application without providing any explanation as to why the material before him is either ignored or dismissed as unreliable or otherwise unworthy of consideration. This is particularly evident in the very brief rationale touching on the best interests of the Applicant's Canadian born granddaughter.

[14]            On the facts of this matter, the following sentence from paragraph 7 of Justice McKeown's reasons in Delfinado v. Canada (Minister of Citizenship and Immigration)^[5], is directly on point if "daughter and granddaughter" are substituted for "mother":

My concern about this case is that the officer, having accepted that the Applicant played a key role in supporting the mother emotionally and financially, then infers that this key role could be replaced without having regard to the evidence before her.

[15]            While the decision of the Officer that is here under review might reasonably have been open to him on the totality of the material that was before him, I am satisfied that the Officer's rationale, particularly in respect of the best interests of the Applicant's granddaughter, simply cannot support the decision under review. It either ignores or is dismissive of important evidence that was before the Officer. In the result, this application for judicial review will be allowed, the decision under review will be set aside and the matter will be referred back to the Respondent for redetermination by a different Officer.

[16]            Neither counsel, when consulted, recommended certification of a question. The Court is satisfied that no serious question of general importance arises. No question will be certified.

"Frederick E. Gibson"

                                                                                                   J.F.C.                        

July 7, 2005

Toronto, Ontario

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-6841-04

STYLE OF CAUSE:               RICA VERGINA GRANT

Applicant

                                                            and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

DATE OF HEARING:                       JULY 6, 2005                                      

PLACE OF HEARING:                     TORONTO, ONTARIO.

REASONS FOR ORDER BY:          GIBSON J

DATED:                                               JULY 7, 2005

APPEARANCES:                       

Leigh Salsberg                           For the Applicant

A. Leena Jaakkimainen                        For the Respondent

SOLICITORS OF RECORD:                                                                                                                                  

Lorne Waldman

Barrister and Solicitor

Toronto, Ontario                                   For the Applicant

John H. Sims, Q.C.

Deputy Attorney General of Canada      For the Respondent