Date: 20100126
Docket:
IMM-1718-09
Citation: 2010 FC 85
Ottawa, Ontario, January 26, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
GLENIS
THERESA JOHN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Glenis
Theresa John was 18 years old when she came to Canada from Grenada in 1990 in
order to care for her ailing mother. She has never left, notwithstanding that
her visitor’s visa expired in 1991, and notwithstanding that her mother died in
1994. She has remained with her uncle’s family, which includes her grandmother,
of whom she takes care.
[2]
In
2008, she applied for permanent resident status from within Canada on
humanitarian and compassionate grounds. This is an exception to the normal
procedure which requires an applicant to apply from outside Canada. The
Minister, however, may waive requirements of the Immigration and Refugee
Protection Act on compassionate and humanitarian grounds, as contemplated
by section 25 thereof.
[3]
The
Immigrant Officer refused her application. This is a judicial review of that
decision.
THE FACTS
[4]
In
her application, Ms. John, who has now lived more than half her life in Canada, set out various
factors, and attached seven letters of recommendation. In her Notes to File
dated 23 March 2009, the Immigration Officer aptly summarized these factors as
follows:
·
Has been
in Montreal for almost eighteen years;
·
Came to Canada to take care of her mother in
July 1990. Mother had Breast Cancer. Mother died on 11 September 1994;
·
After the
death of her mother, stayed in Montreal where she could have
emotional support of close family members;
·
Has been
separated of her siblings;
·
Aunts,
uncles and Granny became her support network. Felt more connected to her family
members in Montreal than the siblings she left in Grenada;
·
Stayed in Montreal to look after her Granny; to
repay the generosity of her family in Montréal who had continued to care for
her Granny; would be terrible to her Granny to lose her caregiver;
·
Financially
independent;
·
Involved
with church activities and community events but did not formally joined any
church or organization not to draw attention to herself;
·
Could not
go back to her father because he was never part of her life;
·
No longer
has a Grenadian accent;
·
Would be a
stranger in a strange land if she went back to Grenada
[5]
In
her analysis, the Immigration Officer came to the conclusion that Ms. John was not
actually financially independent. She noted that she lived with her uncle and
that she earned pin money by gardening, babysitting, and hairdressing. Perhaps
Ms. John considers herself financially independent in that she has made no
claim against the State, but the Immigration Officer’s conclusion is eminently
reasonable. She stated that she could not give significant favourable weight to
this aspect of the application. As shall be discussed, the finding that she was
not financially independent is a double edged sword. The only inference to draw
is that she is dependent on her uncle.
[6]
She
went on to hold that Ms. John is single, without children, without brothers or
sisters in Canada, but with
three brothers and two sisters in Grenada. She was of the view
that this fact counterbalanced her ties to Canada. She
concluded that Ms. John would not be subjected to unusual, unjustified or disproportionate
hardship were she to apply for permanent residence from outside Canada.
[7]
In
her application for judicial review, Ms. John relied strongly on Citizenship
and Immigration Canada’s guidelines IP-5 Immigrant Applications in
Canada made on Humanitarian or Compassionate Grounds. These Guidelines are
not law, and are not binding on Immigration Officers. Yet in nearly all cases
they serve as a valuable checklist as to matters which ought to be taken into
consideration.
[8]
The
two factors emphasized by Ms. John in this judicial review are that her
prolonged stay in Canada has led to establishment, and that the Immigration
Officer failed to properly take into account her family relationships here.
[9]
The
Minister’s position, somewhat in the alternative, is that the Officer was not
required to consider de facto family relationships because she was not
asked to. However, in any event, she did take all relevant factors into
account, and her decision should not be set aside because it is reasonable (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190).
DISCUSSION
[10]
During
the hearing I rejected out of hand as a distinct stand-alone issue the
prolonged stay in Canada submissions. Ms. John is here because she chooses
to be here. There were no circumstances beyond her control which required her
to stay here.
[11]
As
to her family relationships in Canada, she has lived with her grandmother, her
uncle and his family for many years. I take it that her grandmother is a family
class member, and that her uncle would be a de facto family member. Her
grandmother is in a direct ascending line while her uncle is in the collateral
line (see the Civil Code of Quebec, S.Q. 1991, c. 64, articles 655-659).
[12]
In
speaking of de facto family members, paragraph 13.8 of the Guidelines
suggests that an important consideration is to what extent the applicant would
have difficulty meeting financial or emotional needs without the support and
assistance of the family unit in Canada. “Separation of persons
in such a genuine dependent relationship may be grounds for a positive
decision.”
[13]
The
Guideline goes on to list a number of factors the Officer should consider which
include whether the dependency is bona fide, the level thereof, the
stability and length of the relationship, the ability and willingness of the
family in Canada to provide support, other alternatives such as siblings
outside Canada “able and willing to provide support” and whether there has been
a significant degree of establishment in Canada.
[14]
I
cannot accept the Minister’s submission that the Officer need not have
considered de facto family relationships because section 13.8 of the
Guidelines was not specifically brought to her attention. The facts were
clearly set out in the application, and not only were staring her in the face,
but indeed were noted by her. In my view, the relevant factors were adequately brought
to her attention.
[15]
Having
found that Ms. John was not financially independent, and not doubting her emotional
needs within the family unit in Canada, the Immigration Officer should have
considered the ability and willingness of the family in Canada to provide
support (which she, by necessary implication, decided they were) against the
possibility of her siblings in Grenada being willing and able to provide
support. No analysis was done in that direction.
[16]
Consequently,
in the circumstances of this case, I find the decision to be unreasonable.
[17]
Although
the decision was a discretionary one and must be exercised in good faith, which
it clearly was, following Dunsmuir, above, it must also be reasonable.
The cases cited by the Minister were not, in my opinion, on point. Sandhu v.
Canada (Minister of
Citizenship and Immigration), 2006 FC 1032, is distinguishable because
the de facto family membership issue was not raised before the Immigration
Officer. I have found that in this case it was. In Leung v. Canada (Minister of
Citizenship and Immigration), 2007 FC 200, Madam Justice Snider rightly
pointed out that there is no obligation to address the shortcomings of an
application. In this case I have found that there were no shortcomings.
Furthermore, in that case there was evidence that the applicant would be able
to support himself if returned to Hong Kong. No analysis of that nature was
done in this case.
[18]
The
decision of Mr. Justice Zinn in Pascual v. Canada (Minister of
Citizenship and Immigration), 2008 FC 993, dealt with another
issue entirely, e.g., a failure to declare a family member pursuant to section
117(9) d) of the Immigration Regulations. Thus the issue was not whether
the non-accompanying spouse was or was not a de facto family member, the
issue was that, as a matter of law, the non-accompanying, non-declared, spouse
could not be considered as a member of the family class. If a member of the
family class, but as a matter of law unable to be considered as such, it
follows that such a person could not be considered as a de facto family
member.
ORDER
THIS COURT
ORDERS that:
1.
The
application for judicial review is granted.
2.
The
decision of the Immigration Officer is quashed.
3.
The
matter is remitted to a different Immigration Officer for reconsideration in
light of these reasons.
4.
There
is no serious question of general importance for certification.
“Sean Harrington”
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