Date: 20100819
Docket: IMM-5903-09
Citation: 2010 FC 824
Ottawa, Ontario, August 19, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MOHAMED
AZAD KARIMULLAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The
anatomy of humanitarian and compassionate (H&C) grounds is based on
exceptional criteria in a differently constituted framework. That framework is
established to examine extenuating (or extraordinary) circumstances. It
is Canada's unique response to
the fragility of the human condition.
[2]
In
this case, the officer erred by only narrowly focusing on the material
well-being of the Applicant and without demonstrating an understanding of his emotional
health. H&C applications are designed to consider all forms of hardship,
from the tangible to the intangible. The intangible hardships, such as losing
contact with one’s family, which represent deprivation of a significant
category, are no less relevant to an H&C than the deprivation stemming from
a fatal tragedy; this is especially true in this case given the type of illness
the Applicant suffers from as well as the evidence showing the importance of
family support.
[3]
It
is to be recalled that, just as it is publicly or notoriously recognized that
infants without emotional bonds most often stop eating and drinking and
eventually die; those who are severely emotionally handicapped often suffer the
same fate. Reference is made to the medical evidence on record, coupled with
the recognition that the future does look bleak for the Applicant should his
remaining parent be unable to extend the emotional bond which is an essential
tether to the sustenance of life.
[4]
It
is acknowledged by this Court that the financial-medical and practical
situation with available guarantees is necessary to ensure that a burden
does not fall on the Canadian public. That having been said to be available
through the Applicant’s closest of family ties, any impediment appears to
dissipate in the Applicant’s favour, if, in fact, that is the case. The matter
of guarantees, however, is not for this Court to determine, but is entirely in
the bailiwick of the first-instance decision-maker who is the finder of fact,
as it is only that decision-maker who is best suited to determine such
guarantees.
II. Judicial Procedure
[5]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a visa
officer refusing to grant permanent resident status to the Applicant on H&C
grounds pursuant to subsection 25(1) of the IRPA.
III. Background
[6]
The
Applicant, Mr. Mohamed Azad Karimullah, is a 56 year old citizen of Guyana. He is the
last member of his immediate family living in Guyana, as his mother and five of
his nine siblings live in Canada (the Applicant has nine siblings; the
remaining four live in various locations throughout the world).
[7]
The
Applicant suffers from schizophrenia. The evidence shows that he receives
medication for his illness and his condition is under control. In spite of
this, the Applicant is stated to be incapable of being self-sufficient.
IV. Decision under Review
[8]
The
Applicant applied for permanent residence through the Skilled Worker Class
(which was denied) and submitted an application for permanent resident status
pursuant to subsection 25(1) of the IRPA.
[9]
The
Applicant’s claim was based on being the last remaining family member in Guyana and being
dependent on his family for support due to his mental illness.
[10]
The
officer denied the Applicant’s request on the grounds that his family members
willingly left him in Guyana, that his family has been able to visit him
regularly and has been able to financially support him in Guyana.
[11]
The
officer presumed that the Applicant is able to find employment in Guyana or, at the
very least, care for himself because his disability is not so severe as to
render him inadmissible to Canada on health grounds. The officer also noted
that the Applicant is receiving medical treatment in Guyana.
V. Issues
[12]
1)
Did the officer make unreasonable findings of fact?
2) Did the
officer err by failing to apply the guidelines for a de facto family
member?
VI. Pertinent Legislative Provisions
[13]
Subsection
25(1) of the IRPA states:
|
Humanitarian and compassionate considerations
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.
|
Séjour pour motif d’ordre humanitaire
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.
|
VII. Positions of the Parties
Applicant’s
Position
[14]
The
Applicant argues the officer ignored medical evidence emphasizing that he is
unable to support himself financially. The Applicant submits the officer
erred by presuming he can support himself in the face of evidence to the
contrary.
[15]
The Applicant also
submits the officer ignored evidence showing his emotional dependency on his family
members.
[16]
The Applicant argues
that the officer’s inference that his family abandoned him in Guyana is
contradicted by evidence showing he lived in Canada for three
years before his illness manifested itself.
[17]
The Applicant further
submits the officer erred by failing to consider him as a de facto
family member, as laid out in the Overseas Processing Manual 4 (OP4). The
Applicant argues he meets the criteria which may allow him to be deemed a de
facto family member.
[18]
In
addition, the Applicant specifies that all of the letters and documentation in the
context of the entire evidence of the family in regard to the financial means
must be shown to be considered by the officer in a significant manner for the
decision to be reasonable.
[19]
The Applicant has also emphasized that
his mother is 78 years of age and spends six months a year with him but, due to
her age, her travel will become less and less possible with her advancing
years.
[20]
The Applicant also noted, as
demonstrated in the evidence with respect to the financial means of the family,
that siblings are gainfully employed and have families of their own and
therefore will not be able to spend lengthy periods of time outside of Canada with their brother.
Respondent’s
Position
[21]
The
Respondent submits H&C decisions are discretionary and are to be afforded
deference by the reviewing court.
[22]
The
Respondent argues the officer took the relevant considerations, including the
factors which apply to de facto family members, into account and did not
make any reviewable errors.
[23]
The
Respondent submits any hardship faced by the Applicant is the result of his
family moving outside of Guyana and, as a result, any hardship caused by
continued separation cannot be considered undue.
Applicant’s
Reply
[24]
The Applicant replies
that the officer made an unreasonable finding by presuming he can find
employment when there is evidence showing that the opposite is true. The
Applicant reiterates that the officer ignored evidence of his emotional
dependency.
VIII. Standard of Review
[25]
It
is well-established that H&C decisions are exceptional remedies which are
to be reviewed on the deferential standard of reasonableness. In the case of Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada held
that “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” (Dunsmuir
at para. 47).
IX. Analysis
[26]
The
Applicant’s representative asked the officer to consider him as a de facto
family member. The OP4 Manual discusses de facto family members in the
following terms:
De facto family members
De facto family members are persons who do not
meet the definition of a family class member.
They are, however, in a situation of
dependence that makes them a de facto member of a nuclear family that is
either in Canada or that is applying to immigrate. Some
examples: a son, daughter, brother or sister left alone in the country of
origin without family of their own; an elderly relative such as an aunt or
uncle or an unrelated person who has resided with the family for a long time.
Also included may be children in a
guardianship relationship where adoption as described in R3(2) is not an
accepted concept. Officers should examine these situations on a case-by-case basis
and determine whether humanitarian and compassionate reasons exist to allow
these children into Canada.
Consider:
• whether
dependency is bona fide and not created for immigration purposes;
• the
level of dependency;
• the
stability of the relationship;
• the
length of the relationship;
• the
impact of a separation;
• the
financial and emotional needs of the applicant in relation to the family unit;
• ability
and willingness of the family in Canada to provide support;
• applicant's
other alternatives, such as family (spouse, children, parents, siblings, etc.)
outside Canada able and willing to provide support;
• documentary
evidence about the relationship (e.g., joint bank accounts or real estate holdings,
other joint property ownership, wills, insurance policies, letters from friends
and family);
•
any other factors that are
believed to be relevant to the H&C decision.
[27]
In
the case of Yu v. Canada (Minister of Citizenship and Immigration), 2006
FC 956, 298 F.T.R. 82, the Court noted that “[g]uidelines and policy directives
do not constitute law and, as such, immigration agents and the Minister himself
or herself are not bound by them. They are, however, important and useful to
decision-makers and the courts, in this case in order to determine the factors
to consider in an H&C application” (Yu at para. 19).
[28]
The
de facto family member guidelines explain that officers must be aware of
every facet of dependency, from financial to emotional in order
to render a reasonable decision. This must be done in conjunction with an
explanation by officers of the ability of the family to provide financial
guarantees, all of which must be shown, to have been considered in relation to
the entire evidentiary record of detailed documents of the financial means of
family members as to their earnings. Without such a specific demonstration, the
decision would not be reasonable. Recognizing that the criterion of the
unification of family members is a hallmark of the Canadian immigration system,
due consideration must be given to this key intention of the very values which
the Canadian immigration system has legislated into effect in its legal framework
of guiding principles.
[29]
In
this case, the officer devotes the entirety of her decision to the Applicant’s material
well-bring, yet does not demonstrate an understanding of his mental and
emotional health. This is significant because the de facto family member
guidelines state that the officer is to have regard to the emotional needs of
an applicant. Also, there was evidence before the officer, such as the letters
from the Georgetown hospital and
from the Applicant’s siblings, advising of his emotional needs.
[30]
The
Court recognizes the obligations imposed by the standard of reasonableness;
however, in the seminal case of Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d)
264, the court held the following:
[15] The Court may infer that the
administrative agency under review made the erroneous finding of fact
"without regard to the evidence" from the agency's failure to mention
in its reasons some evidence before it that was relevant to the finding, and
pointed to a different conclusion from that reached by the agency. Just as a
court will only defer to an agency's interpretation of its constituent statute
if it provides reasons for its conclusion, so a court will be reluctant to
defer to an agency's factual determinations in the absence of express findings,
and an analysis of the evidence that shows how the agency reached its result.
[31]
It
is the Court’s conclusion that, given the guidelines advising the officer to
consider the Applicant’s emotional needs, the
submissions by his representative, the medical evidence about his condition and
treatment for depression, and the evidence provided by his family, the officer
unreasonably ignored his emotional needs and, as such, the decision cannot
stand.
X. Conclusion
[32]
For
all of the above reasons, the matter is remitted to another decision-maker, a
different officer who will consider the entire matter anew in conjunction with
the specific family guarantees that have been offered.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be
granted and that the assessment be remitted for consideration anew by a
different officer;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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