Date: 20100201
Docket: IMM-5406-08
Citation: 2010 FC 109
Ottawa, Ontario,
February 1, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
DANIEL JOHNSON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review, pursuant to s. 72 of the Immigration and
Refugee Protection Act, R.S.C. 2001, c. 27, of an officer’s decision
rejecting the applicant’s application for permanent residence based on
humanitarian and compassionate (H&C) grounds. The officer concluded that
the applicant had only minimally established himself in Canada and that he had failed to
lead sufficient documentary evidence to support a finding of unusual and undeserved
or disproportionate hardship if returned to his country of nationality.
[2]
For the
reasons that follow, this application is dismissed.
BACKGROUND
[3]
Daniel
Johnson is a dual citizen of the United States of America and of Israel. He was born in New Orleans, Louisiana, and became a
professional basketball player. Mr. Johnson first came to Canada in 1992. He has two Canadian
born children, Don, aged 16, and Wendy, aged 12.
[4]
Following
the birth of his children, Mr. Johnson pursued his professional basketball
career overseas, playing in Ireland and Israel. Unfortunately, his children were
apprehended from their mother and placed in the custody of the Jewish Family
and Child Services.
[5]
The date
of Mr. Johnson’s return to Canada is unclear. His H&C
application states that he has lived in Etobicoke, Ontario, from April 2002 to the present date,
but his H&C application also states that he was employed in Gonzalez, USA, from April 2002 to
March 2005, and that his Canadian “employment” only began in April 2005. In
any event, at some point Mr. Johnson returned to Canada and undertook legal proceedings to gain
custody of his children. He was successful, but is currently in a family law
dispute with his ex-wife over his ability to remove the children from Canada should he be ordered to
leave.
[6]
In
December 2005, Mr. Johnson filed a refugee claim on the grounds that his house
and economic livelihood in Louisiana were destroyed in Hurricane
Katrina. In March 2006, Mr. Johnson’s refugee claim was dismissed. An
application for leave and judicial review of this decision was dismissed by
this Court on August 24, 2006.
[7]
In July
2006, Mr. Johnson submitted an H&C application with the assistance of an
immigration consultant. In his application Mr. Johnson sets out his
significant community and church involvement. Most of that involvement relates
to basketball and his letters in support speak favourably of his involvement.
In fact, the officer quotes from one letter from the International Charity
Association Network that speaks to his contribution and to his involvement in
the Mentoring Basketball Camp with the Cabbagetown Youth Centre in the most
glowing terms:
Daniel has been a key part in
both developing and operating programs for at risk youth. His absence would be
a huge loss to not only the program but to the many youth who have benefited
and those who stand to benefit from working with him.
[8]
The
application noted his educational achievements including the fact that he had a
Bachelors Degree from Alabama State University. The application states that
“with all his qualifications and professional basketball competence, Mr. Daniel
Johnson has potentials (sic) for future continuous employment in Canada.” The application itself
discloses that Mr. Johnson had not had remunerative employment in Canada. In response to the question
asking how he supported himself financially before coming to Canada, he stated that it was from
income from professional employment. In response to the question that asked
“How do you, and will you, support yourself financially in Canada?” he answered “Presently I
support myself through social services, and I intend to support myself in
future through income from my employment”.
[9]
Lastly,
Mr. Johnson sets out in his application the hardship he will experience if he
is required to apply for Canadian residency from abroad. In addition to the
loss of his friends and his loss to the community activities in which he is
involved, he states that he and his children will suffer hardship because his
house had been destroyed by Hurricane Katrina, accordingly, he alleged that “he
and all these dependants would suffer considerable economic, financial and
emotional hardships” if returned to the United States of America.
[10]
On June 5,
2008, Mr. Johnson’s H&C application was rejected.
[11]
The
officer notes that the applicant bears the onus of proving that he will face
unusual and undeserved hardship or disproportionate hardship if required to
apply for permanent residence from outside Canada. The officer went on to consider a
number of factors including hardship or sanctions upon return to the United
States, spousal, family or personal ties that would create hardship if severed,
degree of establishment in Canada, best interests of the children, establishment,
ties or residency in any other country, and return to country of nationality.
[12]
The
officer analyzed the applicant’s prior refugee claim, including the claims
contained therein that his home and economic livelihood had been wiped out by
Hurricane Katrina. The officer observed that the applicant was not living in Louisiana at the time of the
hurricane. The officer noted that the applicant “would have access to numerous
services in the United
States and in
particular New
Orleans,
Louisiana” stemming from Federal disaster relief funds made available in
response to Hurricane Katrina. The officer also noted that the United States generally has very high
quality medical care. The officer concluded that the applicant had led
insufficient evidence to prove that he would suffer hardship if returned to the
United States:
The applicant has not provided
sufficient documentation to indicate that he would be unable to maintain
himself and his family in the United
States. Similar
to Canada, the United States provides social services which include
access to a variety of agencies that could provide assistance to the applicant
in maintaining himself and his children. The applicant has provided
insufficient documentation to support that he would be unable to find suitable
housing and employment in the United
States.
Further, the documentation does not suggest that the applicant would be denied
access to the necessary services available in the United States. The applicant is well-educated and it
is reasonable to assume that he would seek out services to support his family.
I am not of the opinion that the hardships as described by the applicant
constitute an unusual and undeserved or disproportionate hardship.
[13]
The
officer noted that the applicant is divorced and that he had numerous personal
relationships in Canada, but concluded that there was
“insufficient evidence to establish that severing these ties would have a
significant negative impact on the applicant that would constitute an unusual
and undeserved or disproportionate hardship.”
[14]
The
officer noted that the applicant had not led any evidence of his paid
employment in Canada, and that he was currently
unemployed and on social assistance. The officer stated that the applicant
“has not displayed sound financial management while residing in Canada.” The officer concluded that
the applicant’s voluntary record amounted to some evidence of integration into
Canadian society, but determined that this establishment was not of the level
“that his departure would cause an unusual and undeserved, or disproportionate
hardship.”
[15]
The
officer reviewed the best interests of the applicant’s two children. The
officer noted the lack of submissions made in support of the children’s best
interests, such as their academic or extra-curricular activities. The officer
noted that the children, as Canadian citizens, had the right to remain in
Canada and that they had an aunt in the United States. The officer noted that the children
would have basic services available to them in the United States, even if it was not of the standard
available in Canada. The officer concluded that
given the similarity between Canadian and American cultures, and the children’s
young ages, removal to the United
States “would
not be detrimental” to them. The officer stated that the evidence led did not
support the finding of a “negative impact on the children which would amount to
an unusual and undeserved or disproportionate hardship.”
[16]
The
officer noted that the applicant had a Bachelor of Arts degree, that he had
resided in a number of different countries, that he had family in the United
States, and that he had been employed in the United States, all of which lessened the negative
impact of returning to the United
States. The
officer also noted that there were neither impediments to the applicant’s
return nor impediments to the accompaniment of his children if returned. The
officer concluded:
The evidence before me does
not support that returning to the United States would be an unusual and undeserved or disproportionate
hardship for the applicant. With the evidence before me, the applicant has not
demonstrated that his personal circumstances are such that the hardships of not
being granted the requested exemption would be unusual and undeserved or disproportionate,
and not anticipated by the legislation.
ISSUE
[17]
The
applicant raises a single issue: Whether the officer’s determination of the
applicant’s H&C application was unreasonable.
ANALYSIS
[18]
The
applicant submits that the decision was unreasonable for the following reasons:
(1) the officer displayed confusion over the basis for applicant’s negative
refugee claim, (2) the officer cited no evidence to support the finding that
the applicant had exhibited poor financial management, (3) the officer’s conclusion
regarding level of establishment does not withstand a somewhat probing analysis
given the evidence on record, (4) the officer’s conclusion regarding the
applicant’s ability to re-establish himself in the United States was
inconsistent with the finding of minimal establishment, and (5) the officer
unjustifiably relied on self-serving reports of support by the Louisiana State
Government regarding the availability of disaster relief services and
improperly used these reports to ignore the applicant’s submission that he
would suffer hardship through “the loss of his home, in the context of his
having to support two minor children as a single parent.”
[19]
The
respondent submits that the officer’s decision is “largely based on the
insufficiency of evidence” provided by the applicant. The respondent contends
that the applicant is asking this Court to reweigh the evidence. The
respondent submits that the finding of poor financial management was
self-evident given the applicant’s own submissions, and that this conclusion
was reasonably available to the officer to make. The respondent submits that
the applicant’s sole establishment factor was his voluntary record, and that
the officer’s conclusion on establishment was reasonable given that fact. The
respondent submits that the finding of resourcefulness is not inconsistent with
the finding of minimal establishment. The respondent contends that the
applicant led scant evidence to support the best interests of his children or
the economic loss that he allegedly suffered from Hurricane Katrina. The
respondent relies on Buio v. Canada (Minister of Citizenship and
Immigration),
2007 FC 157 at para. 32 for the proposition that the “applicant bears the onus
of bringing both the information relevant to his claim, and the evidence
supporting that information to an officer’s attention.” The respondent submits
that the applicant simply did not lead sufficient evidence to reasonably lead
to a positive decision. The respondent also submits that the officer’s alleged
error regarding the applicant’s refugee claim was immaterial to the outcome
reached.
[20]
In Dunsmuir v.
New Brunswick, 2008 SCC 9 at para. 47, the Supreme Court held that
the reasonableness inquiry in judicial review:
… is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[21]
It is
clear, from reading the decision as a whole that the officer’s primary concern
was with the lack of evidence presented by the applicant in support of his
application. In Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para. 8, the
Court of Appeal stated that H&C “applicants have the onus of establishing
the facts on which their claim rests, they omit pertinent information from
their written submissions at their peril”. At paragraph 5, the Court of Appeal
also held that “an applicant has the burden of adducing proof of any claim on
which the
H&C application relies.” In Buio at para. 32,
Justice de Montigny interpreted the Court of Appeal’s pronouncement to mean
that “written submissions alone may not be sufficient for an application to succeed.”
There may need to be additional documentary evidence provided to support the
otherwise bald claims made in written submissions. In this case, such
documentary evidence was lacking.
[22]
The
applicant submitted that he would face hardship if returned to the United States because of the impact of
Hurricane Katrina. However, he provided no documentation on the economic loss
that he suffered. He provided no evidence that his house was destroyed. He
provided no evidence that social services would not be available to him and his
children in the United
States. He
provided no evidence that he would be destitute. In contrast, the officer’s
research suggested that social services would be available. Given the lack of
evidence submitted by the applicant, the officer’s preference for her
independent research was justifiable. Absent contrary evidence, it was
reasonable to rely on the information provided by the Louisiana State
Government. The officer did not ignore the loss of the applicant’s house, even
though this submission was completely undocumented; rather, the officer held
that there was not enough evidence to establish the requisite level of hardship
for a positive H&C decision. The conclusion that the applicant would not
suffer unusual and undeserved or disproportionate hardship if returned to the United States was reasonably available to
the officer given the facts presented.
[23]
The
applicant challenges the officer’s conclusion regarding degree of establishment
as well as her comment on the applicant’s poor financial management. The
applicant was not working and was in receipt of social assistance. Though a
single father, the applicant’s children are of school age and do not require
daycare during the day. The applicant is well educated and has a history of
employment elsewhere. However, the applicant provided no explanation as to why
he was unable to work in Canada. The applicant provided no
documentation of his financial resources. The officer was justified in
concluding that the applicant had “not displayed sound financial management”
given the applicant’s reliance on social services when the evidence showed that
he was able to work. Further, this comment must be taken in the context of the
officer’s conclusion that “there is insufficient evidence to confirm [the
applicant’s] financial stability in Canada.”
[24]
The
officer’s conclusion regarding degree of establishment was also justifiable.
The applicant has an extensive and commendable voluntary record. However,
voluntary service is but one factor in assessing establishment in Canada. Other relevant factors include
a history of stable employment, a pattern of sound financial management,
involvement in community organizations or other activities, education or
training integration, and a good civil record. It was open to the officer to
balance the applicant’s commendable voluntary record against his lack of
employment and his reliance on social assistance. It cannot be said that the
officer’s conclusion, regarding the applicant’s degree of establishment in Canada was unreasonable.
[25]
The
applicant also challenges the officer’s conclusion regarding his ability to
re-establish himself in the United
States. The
applicant reasons that if the officer concluded that he had not established
himself in Canada to a sufficient degree then it did not make sense that the
officer also concluded that he would be able to re-establish himself in the
United States. However, a finding that an applicant has the requisite skills
necessary to re-establish themselves in their country of nationality does not
lead to the conclusion that the applicant must have established themselves in Canada.
[26]
In my
view, there is nothing illogical or inconsistent with the officer stating on
the one hand that the applicant has demonstrated only minimal establishment in
Canada, and on the other hand that he has certain traits that would facilitate
his re-establishment in the United
States. On the
contrary, it may be that the applicant has a greater chance of finding
employment in the United
States, where he
has family, where his degree is from, and where he has a history of
employment. The officer’s conclusion on the prospects for the applicant’s
successful return to the United
States was not
unreasonable.
[27]
Finally,
the applicant challenges the officer’s inaccurate treatment of the applicant’s
refugee claim and the Refugee Protection Division’s negative determination of
that claim. I do not agree with the respondent that this was a mere clerical
error. However, I agree with the respondent that the error was immaterial to
the decision under review, and therefore it does not amount to a reviewable
error.
CONCLUSION
[28]
For all
these reasons, this application is dismissed. No question was proposed for
certification and on the facts of this case, there is no question that meets
the test for certification.
JUDGMENT
THIS COURTORDERS AND ADJUDGES
that:
1.
This
application for judicial review is dismissed; and
2.
No
question is certified.
“Russel W. Zinn”
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