Date: 20040720
Docket: IMM-5794-03
Citation: 2004 FC 1019
BETWEEN:
NINA LAZAREVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.:
Introduction
[1] The Respondent requires that the 66 year old female applicant leave her 82 year old infirmed husband (for whom she is the sole caregiver and nurse) to return to Russia, which she left over 40 years ago, so that her permanent residence application may be assessed.
[2] Despite the excellent submissions made by Mr. George on behalf of the Minister, the Court will not uphold the Minister's decision to refuse exemption from the requirement that the applicant apply for permanent residence from outside Canada.
Background
[3] Section 25(1) of the Immigration and Refugee Protection Act (the "IRPA") provides that the Minister may exempt a foreign national from any requirement of the IRPA if the Minister is "of the opinion that it is justified by Humanitarian and Compassionate (H & C) considerations relating to them taking into account the best interest of a child directly affected, or by public policy considerations."
[4] Ms. Lazareva is now 66 years old, having been in Canada for in excess of 10 years, without legal status. Originally born in what is now Russia, she spent 33 years in Bulgaria where she was a nurse until her arrival here.
[5] For the past 10 years, and seemingly sporadically, she has been involved in various attempts to stay in Canada, first as a refugee and then through other legal recourses.
[6] In 2003, Ms. Lazareva married Mr. Posdniakow, an 82 year old Canadian citizen and widower. Mr. Posdniakow has various medical conditions which require regular attention. He is unable to travel and, except for Ms. Lazareva's abilities as a nurse, he would require outside nursing assistance.
[7] Ms. Lazareva made an application for permanent residence on H & C grounds based on her marriage to a Canadian. There is no issue that the marriage is bona fide. She also asked for exemption from the requirement that this permanent residence application be dealt with while she remained in Canada ("an inland application").
[8] The Minister refused the exemption on the grounds that Ms. Lazareva had not established that "unusual, undeserved or, disproportionate hardship" would arise if she were required to leave the country during the application processing period. The decision was based on two, amongst other points: firstly that she could return to Bulgaria; secondly that any separation was temporary and therefore would not be unusual, undeserved or disproportionate.
Analysis
[9] It is common ground that the applicable standard of review of the Minister's decision is reasonableness. Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.).
Re: Country of Return
[10] There has been much confusion and argument over to which country Ms. Lazareva could return "temporarily". Russia is her place of birth but she has not been there for over 40 years and has no connection to it. Bulgaria is where she worked but she has no Bulgarian citizenship and her status there is, at best, questionable.
[11] The Minister's representative concluded in the reasons for decision that she could and would return to Bulgaria where she has an estranged daughter.
[12] The Court was advised, during the hearing, that only Russia would agree to take her. Therefore, the Minister was in error on a critical matter which undermines the validity of his decision. On that ground alone, the decision should be quashed but that leaves open what is the proper recourse.
Hardship
[13] The proper recourse is informed by a consideration of whether the conclusion as to hardship is reasonable. While the Minister's representative was no doubt trying to strike the correct balance of competing factors; with respect I must disagree with the reasonableness of the ultimate conclusion.
[14] While Ms. Lazareva may be the maker of most of her misfortune, her husband should not be cast in the same light.
[15] The Supreme Court in Baker requires in H & C type decisions that there be a consideration of the impact on dependents and family. That requirement applies to elderly dependents as much as it does to young children.
[16] The Minister concluded that the separation would be temporary; meaning of short duration. It was admitted that Ms. Lazareva's application could take up to 2 years, and perhaps longer, to process. During that time Mr. Posdniakow would be deprived of, his spouse, a level of care not usually available from commercial sources, and would be unable to travel to visit his wife.
[17] The Minister failed to give adequate consideration to these and other factors in assessing the hardship which would arise. What is temporary separation for a family with young children may well be permanent for the elderly and infirmed.
[18] Therefore, I find that the Minister's decision is not reasonable in all the circumstances of this case.
Re: Remedy
[19] In the usual course, a decision such as this would be quashed and the matter remitted back but time is an important factor. The Applicant's counsel asked this Court to give directions to the Minister as to how and when the permanent residence application should be processed. The Court is in no position to give any such direction. There is no evidence of undue delay or of bad faith.
[20] However, given my comments concerning the ephemeral nature of time for the Applicant and her husband, I will direct the Minister to process this request for permanent residence as an inland application.
[21] This case is so fact specific that its resolution involves no issues of either importance or precedence. No question will be certified.
[22] An order is issued reflecting these reasons.
"Michael L. Phelan"
J.F.C.
Toronto, Ontario
July 20, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5794-03
STYLE OF CAUSE: NINA LAZAREVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 15, 2004
REASONS FOR ORDER BY: PHELAN J.
DATED: JULY 20, 2004
APPEARANCES BY:
Ms. Inna Kogan
FOR THE APPLICANT
Mr. Greg George
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Inna Kogan
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040720
Docket: IMM-5794-03
BETWEEN:
NINA LAZAREVA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
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