Date: 20100805
Docket: IMM-6146-09
Citation: 2010 FC 805
Ottawa, Ontario August 5, 2010
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
GYAN
KAUR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under section 72(1) of the Immigration
and Refugee protection Act, S.C. 2001, c. 27 (the “Act”), of a
decision of an immigration officer, dated November 5, 2009, denying the
application for permanent residence from within Canada based on Humanitarian
and Compassionate (the H&C application) grounds submitted by the Applicant.
BACKGROUND
[2]
The
Applicant is a 74-year-old citizen of India. She has been a
housewife all her life. She came to Canada in 2001, after the death
of her husband. She has four children, who are all, at the present time, in Canada. Two of her
children were granted refugee status and have become Canadian citizens. The two
others remain illegally in Canada as their refugee claims have been denied.
[3]
In
February 2002, the Applicant claimed asylum on the ground that she feared
persecution because of her Sikh nationality. Her application was denied in
January 2004. On September 1st 2004, the Applicant submitted a first
H&C application, which was updated in October 2007, and which was based on the
risks and the hardship that she would be exposed to should she return to India:
she alleged a fear of persecution because of her Sikh nationality and invoked the
hardship that she would suffer if she were separated from her family should she
have to leave Canada.
[4]
On
January 9, 2008, the pre-removal risk assessment (PRRA) officer concluded that the
humanitarian considerations put forward by the Applicant did not warrant the granting
of the H&C exemption from the requirement to obtain a permanent resident
visa prior to coming to Canada. An application for leave and for judicial
review of that decision was dismissed by the Federal Court on May 21, 2008
(IMM-689-08).
[5]
On
September 18, 2009, the Applicant filed a second application for permanent
residence from within Canada for H&C considerations, which led to
the decision now under review.
THE DECISION
UNDER REVIEW
[6]
The
Applicant’s H&C application was denied on November 5, 2009. In his
decision, the immigration officer concluded that the Applicant did not
demonstrate a sufficient degree of establishment in the community and that she
would not suffer unusual, undue or unjustified hardship if she had to apply for
a permanent residency visa from India.
THE ISSUES
[7]
The
Applicant alleges that the officer made three reviewable errors:
a)
His
conclusions and inferences are not supported by the evidence and are based on
speculation;
b)
He
failed to consider the personal circumstances of the Applicant, and thus
rendered a decision without regard to this evidence.
c)
He
failed to provide adequate reasons for his decision.
[8]
The
Respondent argues that the officer’s assessment of the evidence was reasonable
and that he did consider the personal circumstances that were raised by the
Applicant despite the fact that he did not mention every piece of evidence in
his decision.
THE STANDARD
OF REVIEW
[9]
The
case law has made it clear that the applicable standard of review regarding a
decision on an H&C application is that of reasonableness (Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1; Dunsmuir v. New
Brunswick,
2008 SCC 9; Kisana (Minister of Citizenship and Immigration) v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189.
[10]
The
same standard applies to the decision-maker’s assessment of the evidence
(Dunsmuir; Ndam v. Canada (Minister of Citizenship
and Immigration), 2010 FC 513; Martinez v. Canada (Minister of
Citizenship and Immigration), 2009 FC 798). The court must not re-assess the
evidence, re-weigh the factors examined by the decision-maker or substitute its
own appreciation of the evidence unless there are gross errors or perverse
findings of fact (The Royal Bank of Canada v. Wu, 2010 FCA 144). The
Court’s role when reviewing a decision under the standard of reasonableness is enunciated
in Dunsmuir, above, at paragraph 47:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness 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.
[11]
While
a failure of a decision-maker to consider relevant evidence may suggest an
erroneous finding of fact, a failure to mention and address relevant evidence
or major points in issue in the reasons may also reveal an inadequacy of the
reasons provided (Malveda v. Canada (Citizenship and Immigration), 2008
FC 447). The question of the adequacy of reasons raises an issue of procedural fairness
and the decision, in that regard, must be held to the standard of correctness (Adu
v. Canada (Minister of Citizenship and Immigration), 2005 FC 565; Thomas
v. Canada, 2007 FC 838; Canada (Attorney General) v. Fetherston,
[2005] F.C.J. No. 544).
ANALYSIS
[12]
After
having reviewed the immigration officer’s decision and the material that was in
his possession, I consider that the officer failed to address the Applicant’s
personal circumstances and, thus rendered a decision without regard to the
evidence. The officer also failed to provide adequate reasons in his decision.
[13]
Under
section 25 of the Act, the Minister has discretion to grant a foreign
national an exemption in exceptional situations.
|
25. (1) The Minister
must, on request of a
foreign national in Canada who is inadmissible
or who does not meet
the requirements of this
Act, and may, 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
obligations of this
Act if the Minister is of the
opinion that it is
justified by humanitarian and
compassionate
considerations relating to the
foreign national,
taking into account the best
interests of a child
directly affected.
|
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, sur demande d’un étranger se
trouvant hors du
Canada, étudier le cas de cet
étranger; il peut
lui octroyer le statut de résident
permanent ou lever
tout ou partie des critères
et obligations
applicables, s’il estime que
des considérations
d’ordre humanitaire relatives
à l’étranger le
justifient, compte tenu de
l’intérêt
supérieur de l’enfant directement touché.
|
[14]
In examining an application for landing from
within Canada on humanitarian and compassionate grounds made pursuant to
section 25, an Immigration Officer is to follow the relevant Ministerial
guidelines: Immigration Manual IP5 - Immigration Applications in Canada made on
humanitarian or compassionate Grounds, a manual put out by the Minister of
Citizenship and Immigration Canada, provides guidelines on what is meant by
Humanitarian and Compassionate grounds. It states, at paragraph 5.1:
|
5.1 Humanitarian and Compassionate Grounds
Applicants bear the onus of satisfying the decision-maker
that their personal circumstances are such that the hardship of having to
obtain a permanent resident visa from outside of Canada would
be:
(i) unusual and undeserved or
(ii) disproportionate.
Applicants may present whatever facts they believe are
relevant.
|
5.1 Motifs d'ordre humanitaire
Il incombe au demandeur de prouver au
décideur que son cas particulier est tel que la difficulté de devoir obtenir
un visa de résident permanent de l'extérieur du Canada serait
(i) soit inhabituelle et
injustifiée;
(ii) soit excessive.
Le demandeur peut exposer les faits qu'il
juge pertinents, quels qu'ils soient.
|
[15]
The IP5 Manual goes on to define "unusual
and undeserved" hardship and "disproportionate" hardship. It
states, at paragraphs 6.7 and 6.8:
|
6.7 Unusual and undeserved hardship
Unusual and undeserved hardship is:
• the hardship (of having to apply for a
permanent resident visa from outside of Canada) that the applicant would have to face
should be, in most cases, unusual, in other words, a hardship not anticipated
by the Act or Regulations; and
• the hardship (of having to apply for a
permanent resident visa from outside of Canada) that the applicant would face should be, in
most cases, the result of circumstances beyond the person's control
6.8 Disproportionate hardship
Humanitarian and compassionate grounds may exist in cases
that would not meet the "unusual and undeserved" criteria but where
the hardship (of having to apply for a permanent resident visa from outside
of Canada) would have a disproportionate impact on the applicant
due to their personal circumstances
|
6.7 Difficulté inhabituelle et injustifiée
On appelle difficulté inhabituelle et
injustifée :
• la difficulté (de devoir demander un visa
de résident permanent hors du Canada) à laquelle le demandeur s'exposerait
serait, dans la plupart des cas, inhabituelle ou, en d'autres termes, une
difficulté non prévue à la Loi ou à son Règlement; et
• la difficulté (de devoir demander un visa
de résident hors du Canada) à laquelle le demandeur s'exposerait serait, dans
la pluparts des cas, le résultat de circonstances échappant au contrôle de
cette personne.
6.8 Difficultés démesurées
Des motifs d'ordre humanitaire peuvent
exister dans des cas n'étant pas considérés comme « inusités ou injustifiés »
, mais dont la difficulté (de présenter une demande de visa de résident
permanent à l'extérieur de Canada) aurait des répercussions disproportionnées
pour le demandeur, compte tenu des circonstances qui lui sont propres.
|
[16]
The
Applicant based her application on her family ties in Canada, the absence of
family ties in India and the hardship she would suffer if she were
to return to India in view of her
personal circumstances. The personal circumstances stated by the Applicant are
as follows:
- She is a
73 year-old lady (now 74);
- She has
no means to sustain herself in India: her husband died in 2001; she has no
work experience and very limited education; her financial situation is
precarious; she has no home in India and no family left
in India;
- The
system of care for the elderly is underdeveloped in India and she
would not receive the necessary care and financial support;
- Her four
children live in Canada where the five of
them share an apartment and take care of each other;
- Her
daughter filed a sponsorship application for her in 2007, which is still being
processed;
[17]
The
officer addressed the question of hardship in a very succinct manner:
[TRANSLATION]
I do not believe that this person
would suffer an unusual, undue or unwarranted inconvenience if she had to file
her application for permanent residence from abroad as is provided for by the
Canadian Immigration Act. The difficulties she will face will flow directly
from her wish to remain illegally without the proper documentation in Canada; it is as simple as that. ..
[18]
The
officer reached his conclusion on hardship on the basis of one consideration
only: the hardship that she might suffer is the result of her own action. He
did not address the question of whether the hardship would “have a
disproportionate impact on the Applicant due to her personal circumstances”. I
am of the view that the officer failed to address the Applicant’s personal
circumstances which were central to her H&C application. The immigration officer
has discretion as to the weight to be given to the personal circumstances raised
by an applicant, but he cannot fail to have regard to the applicant’s personal
circumstances.
[19]
While
the officer is presumed to have considered all of the evidence before him and
he does not need to mention every piece of evidence in his reasons (Florea
v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No 598 (F.C.A), his decision
cannot stand if he ignores relevant evidence (Litke v. Canada (Human
Resources and Social Development), 2008 FCA 366. In Cepeda-Gutierrez v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, at
paragraph 17, Justice Evans stressed that “… the more important the evidence
that is not mentioned specifically and analyzed in the … reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact “without regard to the evidence””.
[20]
In
the analysis portion of his decision, the officer cited some of the personal
circumstances put forward by the Applicant in support of her H&C
application but he never addressed them when discussing the issue of hardship.
In a very recent decision, the Federal Court of Appeal reaffirmed the obligation
of the officer to address the personal circumstances raised in an H&C
application:
[28]
At the outset of her reasons, the Officer
declares that “the appellants’ H&C application has been assessed on the
basis of unusual and undeserved, or disproportionate hardship” (H&C
decision, ibidem). It is common ground that this is the appropriate
test.
. . .
[30]
However, she never turns her mind to the
thrust of the H&C application: will Mr. Hinzman be subjected to
disproportionate hardship if returned to the United States,
regardless of the existence of a law of general application or state protection
and notwithstanding other findings on differential treatment and due process?
[the key issue] (see counsel’s submissions in the H&C application, appeal
book, volume 1, at pages 125 and following).
[37]
The Minister’s policy and judicial guidelines
for processing applications to remain in Canada based on H&C grounds
clearly provide that when assessing a request, officers “must … indicate that
all factors have been analysed and explain the weight given to each of these
factors and why” before conducting “a balancing exercise between the positive
H&C factors identified and the facts that weight against granting an
exemption” (Inland Processing Policy Manual, Chapter 5, Immigrant Applications
in Canada made on Humanitarian or Compassionate Grounds, Appendix B.)
. . .
[40]
. . . , the H&C Officer had the duty to
look at all of the appellants’ personal circumstances, including Mr. Hinzman’s
beliefs and motivations, before determining if there were sufficient reasons to
make a positive H&C decision (ibidem, Chapter 5, section 11.3). She
did not. . . . (Hinzman v. Canada (Minister of Citizenship and
Immigration), 2010 FCA 177)
[21]
In this case, the officer made the same error that the PRRA officer
made in Hinzman, above, and by failing to have regard to the Applicant’s
personal circumstances, he rendered a decision without regard to evidence that
was central to the application.
[22]
This
brings me to the issue of the adequacy of the reasons. I am of the view that
the officer did not provide adequate reasons.
[23]
By
failing to address the personal circumstances put forward by the Applicant, the
officer has left her in a position where she does not know why the officer did
not accept her personal circumstances or why he did not give them any weight. The
officer’s reasons do not meet the standard set out by the Supreme Court in Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 and in R. v.
Sheppard, [2002] 1 S.C.R. 869.
[24]
In
Via Rail Canada Inc. v. National Transportation Agency (C.A.), [2000]
F.C.J. No. 1685, the Federal Court of appeal provided useful guidance as to the
notion of adequate reasons and stressed that reasons must address the major
points in issue and must set out the reasoning followed by the decision maker:
21 The duty to give
reasons is only fulfilled if the reasons provided are adequate. What
constitutes adequate reasons is a matter to be determined in light of the
particular circumstances of each case. However, as a general rule, adequate
reasons are those that serve the functions for which the duty to provide them
was imposed. In the words of my learned colleague Evans J.A., "[a]ny
attempt to formulate a standard of adequacy that must be met before a tribunal
can be said to have discharged its duty to give reasons must ultimately reflect
the purposes served by a duty to give reasons."7
22 The obligation to provide adequate
reasons is not satisfied by merely reciting the submissions and evidence of the
parties and stating a conclusion.8
Rather, the decision-maker must set out its findings of fact and the principal
evidence upon which those findings were based.9
The reasons must address the major points in issue. The reasoning process
followed by the decision-maker must be set out10
and must reflect consideration of the main relevant factors.11
[25]
In
this case, the immigration officer failed to address the major points in issue
and, therefore, his decision cannot stand.
[26]
A
final comment. The main personal circumstances put forward in support of
the H&C application had already been raised by the Applicant in her first
H&C application, which was denied by a PRRA officer on January 9, 2008.
That decision was well articulated and the PRRA officer dealt with each of the
factors presented by the Applicant and he explained the weight that he gave to
them. The decision under review did not refer to that first H&C decision
other than to mention that this was the Applicant’s second application and that
the first application had been denied. I do not have to decide whether the
second application should have been denied on the basis that the Applicant was invoking
elements that had already been addressed, but it is very clear that the
decision under review contains errors that were not made by the PRRA officer
who processed the first H&C application.
[27]
No
question was proposed for certification under paragraph 74(d) of the Act,
and no such question will be certified.
JUDGMENT
THIS COURT ORDERS
AS FOLLOWS:
1.
The
immigration officer’s decision is set aside;
2.
The
matter is referred back to Citizenship and Immigration Canada to be determined
by a different immigration officer;
3.
No
question of general importance is certified.
“Marie-Josée Bédard”
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