Date: 20100630
Docket: IMM-4641-09
Citation: 2010 FC 717
Ottawa, Ontario, June 30,
2010
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
BERTA
CELIA GARCIA DE LEIVA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
judgment concerns an application for judicial review submitted on September 16,
2009 by Berta Celia Garcia De Leiva (the “Applicant”), seeking judicial review
of a decision dated September 3, 2009 of an Immigration Officer acting for the
Minister of Citizenship and Immigration (the “officer”) and refusing her
application for permanent residence from within Canada on humanitarian and
compassionate grounds.
Background
[2]
The
Applicant is an elderly woman who was born in Guatemala and is a citizen of that country. She
entered Canada in July of 1998 as a visitor
and has remained here ever since. She first received extensions to her visitor
status until the end of the year 2000, at which time she submitted a first
application for permanent residence from within Canada on humanitarian and compassionate
grounds. That application was refused in November of 2001.
[3]
The
Applicant then submitted a refugee claim which was also rejected on April 19,
2004 on the basis that the Refugee Protection Division did not believe that she
had been persecuted in Guatemala.
[4]
The
Applicant thus again applied for permanent residence from within Canada on
humanitarian and compassionate grounds through an application she signed in
November of 2004 but which was filed at a later date. This second application
raised facts and arguments similar to those raised in her first application:
principally that she could not be sponsored by her Canadian daughters since
they could not meet the financial criteria for sponsorship, that she was living
with and assisting her daughter who suffered from a disability, and that she
was escaping a long abusive relationship with her former husband.
[5]
This
second application on humanitarian and compassionate grounds took close to five
years to process and included numerous requests for additional information and
updates. This application was rejected by decision dated September 3, 2009,
hence this judicial review application.
The Decision
[6]
In the
September 3, 2009 decision rejecting the application, the officer noted that
the Applicant had two adult daughters who were living in Canada and were Canadian citizens,
three other adult children living in Guatemala, an adult son living in New York and an adult daughter living
in Argentina. The Applicant also has two
brothers and a sister living in Guatemala.
[7]
The
officer’s reasons for rejecting the application are set out in the last
paragraph of her decision:
Upon assessing all the information on the
client’s file, I am not satisfied that sufficient humanitarian and
compassionate grounds exist to warrant processing of subject’s application from
within Canada. Subject has been dependant
on social services from the year 2003 to present. In addition, her daughter Haydee
Laiva with whom she resides has provided insufficient information to satisfy me
that she is willing and able to support her mother financially in Canada as she has been a long term
recipient herself on disability benefits from the Ministry of Social Services.
Subject has a son in the US, three other children in Guatemala, a daughter in Argentina and two
brothers and a sister in Guatemala upon whom she can depend for
financial support other than relying on social assistance in Canada. In addition, she has been
travelling from 1988 to 1998 between her children in the (sic) Canada, her son
in the USA, her daughter in Argentina
and her children and siblings in Guatemala.
I am therefore not satisfied that sufficient humanitarian and compassionate
grounds exist to allow subject to remain in Canada and apply for permanent residence.
Subject can return to Guatemala with her three children and
two (sic) siblings who can provide her with the care and support she requires.
Besides subject has been living in Guatemala
for most of her life and would most likely be able to adjust to an environment
and culture she was most comfortable with.
Position of the Applicant
[8]
The Applicant
argues that the Immigration Officer did not consider the hardship to the
daughter Haydee who relies on her because of her disability. The Applicant
further submits that the officer ignored the bulk of the evidence submitted
which demonstrated that her relatives overseas cannot provide her with the care
and support she needs. It was pure speculation on the part of the officer to
assert that her other relatives could care and support her. Consequently, the
Applicant asserts that the officer’s decision is unreasonable.
[9]
The
Applicant further argues that the officer relied on the Refugee Protection
Division decision rejecting her claim for refugee protection to find that she
was not at risk if she returned to Guatemala.
However the standard is not the same in a refugee claim than in an application
based on humanitarian and compassionate grounds. One relates to risks while the
other concerns hardship. Consequently the officer confused the risk analysis
with the hardship analysis, and failed to carry out the latter.
Position of the Respondent
[10]
The
Respondent argues that this Court should not lightly interfere with the
discretion given to immigration officers. A decision concerning humanitarian
and compassionate factors is not a simple application of legal principles but
rather a fact specific weighing of many factors involving a high degree of
discretion involving a special grant of an exemption to an otherwise legal
requirement.
[11]
The
Respondent adds that the Applicant bears the onus of satisfying the decision
maker that her personal circumstances are such that the hardship of having to
obtain a permanent resident visa from outside Canada would be either unusual or undeserved or
disproportionate hardship. She did not convince the officer that her situation
merited an exemption. This decision of the officer is entitled to deference,
and this Court should not intervene if the officer considered the relevant
factors.
The Respondent
further argues that the officer has considered the relevant factors in this
case. It is not thus open for this Court to substitute its own opinion to that
of the officer who has been entrusted by the Minister with the responsibility
to decide such matters.
The legislation
[12]
Subsection
11(1) of the Immigration
and Refugee Protection Act
(the “Act”) requires
that a person who wishes to apply for permanent residence in Canada must do so
from outside Canada. However,
this requirement can be waived under subsection 25(1) of the Act which reads as follows:
|
25. (1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
25. (1) Le ministre doit, sur demande d’un
étranger
se trouvant au Canada qui est interdit de territoire ou qui ne se conforme
pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un
étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut
lui octroyer le statut de résident permanent ou lever tout ou partie des
critères et obligations applicables, s’il estime que des circonstances
d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur
de l’enfant directement touché — ou l’intérêt public le justifient.
|
Standard of review
[13]
Reasonableness
is the appropriate standard of review for a decision concerning an application
for permanent residence from within Canada
on humanitarian and compassionate grounds. As noted by the Federal Court of
Appeal in Kisana v. Canada (Minister of Citizenship and
Immigration),
2009 FCA 189, [2009] F.C.J. No. 713 at para. 18:
It is unnecessary to engage in a full
standard of review analysis where the appropriate standard of review is already
settled by previous jurisprudence (see: Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190,
2008 SCC 9, at para.
62). The parties agree that the standard of review to be applied to an H&C
decision is reasonableness. This standard is supported by both pre- and post-Dunsmuir cases (see: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817;
Thandal v. Canada (Minister of Citizenship and Immigration),
2008 FC 489; Gill v. Canada (Minister of Citizenship and Immigration), 2008 FC 613, (2008), 73 Imm.L.R. (3d) 1).
Analysis
[14]
In the context of an
application for
permanent residence from within Canada on humanitarian and compassionate
grounds, it has been consistently held that the onus of establishing that the
exemption is warranted lies with the applicant, and that an immigration officer
is under no duty to highlight weaknesses in an application and to request
further submissions: Kisana, supra at para. 45; Thandal v. Canada (Minister of Citizenship and
Immigration),
2008 FC 489, [2008] F.C.J. No. 623 at para. 9.
[15]
Moreover, an
exemption under subsection 25(1) of the Act is an exceptional and discretionary
remedy: Legault v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 125, [2002] F.C.J. No.457 at para. 15; Abdirisaq v. Canada (Minister of Citizenship and
Immigration),
2009 FC 300, [2009] F.C.J. No.377 at para. 3; Kawtharani v. Canada (Minister of Citizenship and
Immigration),
2006 FC 162, [2006] F.C.J. No. 220 at para. 15; Serda v. Canada (Minister of Citizenship and
Immigration),
2006 FC 356, [2006] F.C.J. No. 425 at para. 20.
[16]
Finally, it is
clearly the responsibility of the Minister or his delegate to assess the
relevant factors and to determine the weight to be given to each factor in the
circumstances of each case: Legault v. Canada (Minister of Citizenship and
Immigration), supra
at para. 11; Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3 at para.
34.
[17]
In this case, the
Applicant has provided little information on the nature and extent of her
daughter’s disability and on the type and extent of assistance she provides her
daughter.
[18]
Further, there was
little evidence provided by the Applicant on the ability of her other children
to support or assist her. The Applicant has many other children living in
Canada, the USA, Argentina and Guatemala, and she has offered very little insight into the reasons
why they cannot care for her or otherwise contribute to her care in Canada or elsewhere.
[19]
The officer took into
account the age of the Applicant, but noted that she suffered from medical
problems because of her age.
[20]
Finally, the officer
considered the Applicant’s hardship claims related to an eventual return to
Guatemala, but found these unfounded on the basis that the Applicant had lived
in Guatemala for most of her life and had numerous
children and relatives residing there.
[21]
The
Applicant certainly presents a difficult situation in light of her age.
However, the officer deemed that the evidence submitted by the Applicant was
insufficient to justify an application for permanent residence within Canada. This decision was
largely based on the perceived burden the Applicant potentially presented for Canada’s social and health
services, which outweighed the humanitarian and compassionate considerations
submitted.
[22]
The
decision which the officer was entrusted to make was a difficult one. The
immigration authorities took a long time to come to this decision and requested
additional information from the Applicant. The Applicant presents a thorny case
which the officer dealt with in light of the information available to her.
[23]
In this regard, as
noted above, the exemption under subsection 25(1) of the Act is an exceptional
discretionary remedy. Moreover, as already noted, the assessment of the
evidence and the weight given to each factor in an application based on
humanitarian and compassionate grounds are matters which properly belong to the
Minister acting through his delegate. This Court may have assessed the evidence
differently or given more weight to some of the factors, however this is not
its mandate.
[24]
In light of the
above, the decision of the Immigration Officer in this case “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, supra at para. 47).
[25]
Consequently the
application for judicial review shall be denied.
[26]
This
case raises no important question justifying certification under paragraph
74(d) of the Immigration and Refugee Protection Act, and consequently no
such question shall be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application for judicial review is
denied.
"Robert
M. Mainville"
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