Docket: IMM-3344-11
Citation: 2012 FC 179
Ottawa, Ontario, February 8, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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JOAO GUILHERME RIBEIRO GADELHA SIMAS
REIS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of a Senior Immigration Officer (Officer) dated 27 April 2011 (Decision) in
which the Officer denied the Applicant’s request for an exemption on
humanitarian and compassionate (H&C) grounds under subsection 25(1) from
the requirement under subsection 11(1) to apply for permanent residence from
outside Canada.
BACKGROUND
[2]
The
Applicant is a thirty-year-old citizen of Brazil. He is homosexual
and has been living in Canada since 1998. He originally entered Canada on a
visitor’s visa to study at York University, but discontinued his studies
there in 2002. The Applicant’s visa expired in 2003, but he stayed in Canada without
authorization.
[3]
The
Applicant has family in Brazil, including his mother, an aunt, and three
cousins. He says he is estranged from his mother because she does not accept
his homosexuality. His father is deceased. The Applicant also has a number of
family members in Canada, including an aunt, uncle, and two cousins, one
of whom is his godchild. He also has many friends in Canada. The
Applicant wants to stay in Canada so he can remain connected with his family
and community here.
[4]
On
21 May 2010, Citizenship Immigration Canada (CIC) received the Applicant’s
request for an exemption under subsection 25(1) of the Act and the Officer considered
his request. In reasons dated 27 April 2011, the Officer denied his request for
an exemption. She said that the elements of the Applicant’s request were not
sufficient to establish that he faced unusual and undeserved or
disproportionate hardship if he were required to apply for permanent residence
from outside of Canada. The Officer notified the Applicant of her
Decision by letter dated 27 April 2011.
DECISION
UNDER REVIEW
[5]
The
Officer began her analysis by clarifying the question before her. She said that
the purpose of the assessment was to determine if the Applicant would suffer
unusual and undeserved or disproportionate hardship if he were required to
apply for permanent residence from outside Canada and comply
with the ordinary requirements for permanent residence. She also said that the
Applicant bore the onus of demonstrating hardship.
[6]
The
Officer noted that the Applicant had arrived in Canada in 1998 and
that he had overstayed his visitor’s visa. He grounded his claim in the
hardship that would result from the severance of his ties to his family and
community in Canada if he
returned to Brazil. He also
asserted that he had no ties to Brazil and would face
financial hardship there.
[7]
Though
the Applicant was admitted on a visitor’s visa to study at York University,
the Officer found that his studies, which were intermittent, had not led him to
employment. He had become a Certified Reiki Master, though his certification
was not from a recognized institution and he had not provided evidence to show that
he had established himself as a practitioner. The Officer gave little weight to
the Applicant’s certification, which he acquired in 2009.
[8]
With
his request for an exemption, the Applicant had submitted income tax
determination statements from 2000 to 2009. The Officer noted that these had
all been filed with the Canada Revenue Agency between September 2009 and March
2010. She noted that he had a good credit history and savings of approximately
$18,000. The Officer found that the Applicant had been self-supporting during
his time in Canada, but that
his earnings had always been below the low-income cut-off for a single person
in Canada.
[9]
The
Officer also examined the Applicant’s family ties in Brazil and Canada. He said he
had no connection to his Brazilian family because his father and grandmother
are dead. The Officer noted that his mother had visited him from Brazil in 2003 and
2006, after he said their relationship broke down because of his sexuality. She
also noted that he had provided thirteen letters of support from family and
community members. The Officer acknowledged that it would be difficult for the
Applicant to sever ties with his family and community in Canada, but she
also said that there was an indication he had some extended family in Brazil. The Officer
was not satisfied that these factors would amount to unusual and undeserved or
disproportionate hardship if he were returned to Brazil.
[10]
During
his time in Canada, the Applicant has been involved with a number of organizations,
including the Metropolitan Community Church in Toronto and Al-Anon
– an organization for family members of alcoholics. He also worked with a
life-coach, who said in a letter to the Officer that an interruption in the
Applicant’s work with Al-Anon would cause him harm. The Officer said that the
Applicant had not asserted separation from these organizations as a hardship he
would face. Further, he had not adduced evidence showing that similar institutions
did not exist in Brazil, so the Officer found that separation from these
organizations would not amount to unusual and undeserved or disproportionate
hardship.
[11]
The
Officer found that the Applicant had been living alone in Canada and lived
alone when he attended high-school in Brazil. Though he said his
mother in Brazil had
relocated and, if returned, he would not live near her, the Officer found that his
mother’s relocation would not negatively affect the Applicant’s ability to
reintegrate into Brazil.
[12]
Though
the Applicant had gained proficiency in both of Canada’s official languages and
had become involved in his community, the Officer found that this level of
establishment was normal, given the length of his stay in Canada. The Officer
also pointed out that his establishment was a direct result of his
non-compliance with Canada’s immigration laws when he overstayed his visa.
[13]
The
Officer concluded that the Applicant was similarly situated to others who must
apply for permanent residence from abroad. She found that the elements of his
request were not sufficient to establish unusual and undeserved or
disproportionate hardship and denied his request for an exemption.
STATUTORY
PROVISIONS
[14]
The
following provisions of the Act are applicable in this proceeding:
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11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
…
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.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite
d’un contrôle, que
l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
…
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.
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ISSUES
[15]
The
Applicant raises the following issues in this application:
a.
Whether
the Officer breached his right to procedural fairness by:
i.
providing
inadequate reasons;
ii.
denying
him a fair hearing by not granting an interview;
iii.
fettering
her discretion;
iv.
refusing
to exercise her jurisdiction under subsection 25(1) of the Act.
b.
Whether
the Officer breached his equality rights under subsection 15(1) of the Charter
of Rights and Freedoms, Schedule B to the Canada Act 1982 (UK) 1982,
c.11 and his right to life, liberty, and security of the person under section 7
of the Charter;
c.
Whether
the Officer applied the incorrect test for an H&C exemption;
d.
Whether
the Decision was unreasonable.
STANDARD OF
REVIEW
[16]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008
SCC 9, held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[17]
Recently,
the Supreme Court of Canada held in Newfoundland and Labrador Nurses’ Union
v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, that the adequacy
of reasons is not a stand-alone basis for quashing a decision. Rather, “the
reasons must be read together with the outcome and serve the purpose of showing
whether the result falls within a range of possible, acceptable outcomes.”
(paragraph 14). The adequacy of the Officer’s reasons will be evaluated along
with the reasonableness of the Decision as a whole.
[18]
The
Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review
with respect to the first set of issues is correctness.
[19]
In Sahota
v Canada (Minister of
Citizenship and Immigration) 2011 FC 739, Justice Michael Phelan held at
paragraph 7 that the application of the proper legal test is reviewable on the
standard of correctness. See also Garcia v Canada (Minister of
Citizenship and Immigration) 2010 FC 677 at paragraph 7 and Markis v Canada (Minister of
Citizenship and Immigration) 2008 FC 428 at paragraph 19. The standard of
review with respect to the third issue is correctness.
[20]
In Baker
v Canada (Minister of Citizenship and Immigration), [1999] SCJ No 39,
the Supreme Court of Canada held that when reviewing an H&C decision, “considerable
deference should be accorded to immigration Officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry, its role
within the statutory scheme as an exception, the fact that the decision-maker
is the Minister, and the considerable discretion evidenced by the statutory
language” (paragraph 62). Justice Phelan followed this approach in Thandal v
Canada (Minister of
Citizenship and Immigration) 2008 FC 489, at paragraph 7. The standard of
review on the fourth issue is reasonableness.
[21]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and intelligibility
within the decision-making process [and also with] whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph
59. Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
[22]
With
respect to the second issue, whether the Applicant’s Charter rights were
breached, it is well established that the onus of proving a breach of a Charter
right rests with the party asserting the breach (see R v Kapp, 2008
SCC 41 at paragraph 66, R v RJS, [1995] SCJ No 10, at paragraph
280 and Law Society of British Columbia v Andrews, [1989] 1 SCR
143 (QL) at paragraph 40). This is a question of mixed fact and law within the
jurisdiction of the reviewing Court to be established on a balance of
probabilities.
ARGUMENTS
The Applicant
The Officer’s Reasons are
Inadequate
[23]
In
his affidavit, the Applicant says that the Officer’s reasons are inadequate in
several ways. First, he says that they do not show that the Officer considered
the fact that he was forced to drop out of university when he could not afford
the tuition fees. Second, the reasons do not show the weight that the Officer
put on his employment and ability to be self-supporting in Canada. Third, the Applicant
says that the Officer did not give any reasons why sending him to Brazil does
not constitute unusual and undeserved or disproportionate hardship, given that
he has spent a significant amount of time in Canada and has a network of family
and friends here.
[24]
In
his Memorandum, the Applicant says that the Officer’s reasons do not show how
she took into account the length of time he has been in Canada, his lack of family
or friends in Brazil, how his
family in Brazil has ostracized him because he is homosexual, and his support
network of family and friends in Canada. The Decision does not
show how these factors do not merit an exemption under subsection 25(1) of the
Act. The Decision also does not show that the Officer considered the
Applicant’s submissions or his homosexuality.
The
Applicant was not Given a Fair Hearing
[25]
The
Applicant says that, in addition to breaching his right to reasons, the Officer
did not give him a fair hearing when she did not consider his homosexuality. He
points to Cardinal v Kent Institution, [1985]
SCJ No 78 (QL) where the Supreme Court of Canada said at
paragraph 23 that
I find it necessary to affirm that the denial of a right to a fair
hearing must always render a decision invalid, whether or not it may appear to
a reviewing court that the hearing would likely have resulted in a different
decision. The right to a fair hearing must be regarded as an independent,
unqualified right which finds its essential justification in the sense of
procedural justice which any person affected by an administrative decision is
entitled to have. It is not for a court to deny that right and sense of justice
on the basis of speculation as to what the result might have been had there
been a hearing.
[26]
The
Applicant also says that his right to a fair hearing was breached when the
Officer did not call him for an interview or ask him to clarify issues. In his
affidavit, the Applicant says that the Officer’s reference to the 2003 and 2006
visits from his mother were actually visits to his aunt, not him. He also says that
the Officer referred to an aunt and three cousins in Brazil as showing he has
family ties in Brazil, though he actually has no contact with them.
Further, the Officer’s reference to his aunt and cousins was premised on a
misunderstanding about his visit to Brazil in 1999. The Applicant
says that all these misunderstandings could have been clarified if the Officer
had called him or brought him in for an interview. Her failure to do so
breached his right to a fair hearing.
The
Officer Breached the Applicant’s Charter Rights
[27]
The
Applicant asserts that the Officer breached his rights under sections 7 and 15
of the Charter. He says that, when she denied him a fair hearing, the
Officer breached his equality rights under section 15, based on the fact that
he is homosexual. The Applicant relies on Kapp, above, where the Supreme
Court of Canada said at paragraph 15 that an “insistence on substantive
equality has remained central to the Court’s approach to equality claims.” He
also points to Withler v Canada (Attorney General) 2011 SCC 12, where
the Supreme Court of Canada affirmed a two part test for examining breaches
under section 15 of the Charter at paragraph 61:
The substantive equality analysis under s. 15(1), as discussed
earlier, proceeds in two stages: (i) Does the law create a distinction based on
an enumerated or analogous ground? and (ii) Does the distinction create a
disadvantage by perpetuating prejudice and stereotyping? (See Kapp, at para. 17.) Comparison plays a role throughout the
analysis.
The
Officer Applied the Incorrect Test for Hardship
[28]
In
the Decision, the Officer said that “The [Applicant] bears the burden of proof to
demonstrate that if he were to return to Brazil to present
his application, he would suffer unusual and undeserved or disproportionate
hardship as per section 25 of the [Act].” The Applicant says that the test of
unusual and undeserved or disproportionate hardship that the Officer applied
was too high. He points to Yhap v Canada (Minister of
Employment and Immigration), [1990] FCJ No 205, where Justice James Jerome
said that
[T]he discretion afforded an immigration officer by s.
114(2) of the Act is wide. The officer is asked to consider, with respect to
the possible admission to Canada of a given applicant, “reasons of public policy” as well as the “existence
of compassionate or humanitarian considerations”. Neither the section of the
Immigration Act which sets out definitions of terms contained in the Act nor
the Immigration Regulations describe in any greater detail how the section is
to be applied, nor what interpretation the officer is to give to the rather
broad terms contained therein.
[29]
The
Applicant says that Yhap teaches that unusual and undeserved or
disproportionate hardship is not the test under subsection 25(1) and that the
actual test for an H&C exemption is broader and less restrictive than that
articulated by the Officer. He refers the Court to Chirwa v Canada (Minister of
Manpower and Immigration) (1970) 4 IAC 338 (IAB) where the
Immigration Appeal Board held that compassionate considerations are
those
facts established by the evidence which would excite in a reasonable man in a
civilized community a desire to relieve the misfortunes of another, so long as
these misfortunes warrant the granting of special relief from the effects of
the provision of the Immigration Act.
[30]
The
Applicant also points to Justice Sean Harrington’s judgment in Espino v Canada (Minister of
Citizenship and Immigration) 2006 FC 1255 at paragraph 1:
Compassion has been defined as including suffering together with
another, participation in suffering; fellow-feeling, sympathy, the feeling or
emotion when a person is moved by the suffering or distress of another and by
the desire to relieve it.
[31]
Based
on these two cases, the Applicant says that the Officer applied the incorrect
test for an H&C exemption under subsection 25(1) of the Act.
The
Officer Refused to Exercise Jurisdiction and Fettered her Discretion
[32]
When
the Officer applied the incorrect test for an H&C exemption, the Applicant
says that this amounted to fettering her discretion. He also says that, in
doing so, the Officer refused to exercise the jurisdiction she had to grant an
exemption in situations where there is less than unusual and undeserved or
disproportionate hardship. By restricting the scope of an H&C exemption,
the Officer refused to exercise jurisdiction and fettered her discretion.
The
Decision was Unreasonable
[33]
Finally,
the Applicant argues that the Officer’s rejection of his request for an H&C
exemption was unreasonable because she ignored and misstated evidence, did not
assess the evidence before her cumulatively, made an absurd conclusion,
punished him for overstaying his visa, and made findings which were perverse
and capricious.
[34]
The
Officer ignored the fact that the Applicant had to drop out of University
because his mother had disowned him and no longer supported him financially.
She also misstated the events surrounding his mother’s visits in 2003 and 2006
and the facts about his remaining family in Brazil. The Officer
also ignored the thirteen letters of support he had provided in support of his
application.
[35]
Though
the Officer referred in the Decision to the Applicant’s volunteer work with
Al-Anon and the Metropolitan Community Church, she
dismissed these as separate factors and did not assess their cumulative impact
on the Decision as a whole. She also did not assess the Applicant’s
establishment in Canada, proficiency in English and French, and social
network in Canada in the
context of the evidence as a whole. Rather than assessing the evidence in its
totality, the Officer weighed and assessed each of the factors individually.
The Applicant notes that in Vaca v Canada (Minister of
Employment and Immigration), [1991] FCJ No 926, Justice Bud Cullen
wrote that
[The] lawyer on the spot representing the applicant had the good
sense to do an immediate “memo to file” which reads in part: “Ms. Nakagawa said
she had no question as to the establishment of our clients but could not
consider H&C on establishment alone.” Ms. Nakagawa says she “read the
affidavit of Raul Gala Vaca dated February 12, 1991” yet did not dispute this
comment written in the Memo to File on July 5, 1990. The Department’s own
guidelines are not as equivocal as Ms. Nakagawa stated them. They read: “Economic
and establishment situations alone would not normally constitute grounds for a
positive humanitarian and compassionate recommendation”. Here she did not
consider that this case might be the exception. The myriad letters and
affidavits of support from family, friends and neighbours, the English language
certificate, the doctor and the priest's support, the purchase of a home, the
participation in a business, all go to compassionate and humanitarian grounds -
but they were not considered other than as economic establishment.
[36]
The
Officer in the present case wrote that
[…]
I note that the [Applicant] was living alone as a high school student in Brazil. I also note that the
[Applicant] has been residing alone throughout his entire stay in Canada. Therefore, I conclude that
his mother’s relocation should not negatively affect the [Applicant’s] ability
to successfully reintegrate himself into Brazil.
[37]
When
she wrote this, the Applicant says that the Officer drew the absurd conclusion
that he does not need people in his life as family and friends. He also says
that she punished him for overstaying his visa when she said that
Furthermore,
the [Applicant’s] prolonged stay in Canada
was not beyond his own control. Indeed, his establishment resulted through his
own non-compliance with Canada’s immigration laws.
[38]
Rather
than punishing him for overstaying his visa, the Officer should have regarded
his long stay in Canada as a positive factor in his application, given
that he had supported himself and had become proficient in both official
languages during that time.
[39]
Because
the Officer made perverse and capricious findings, the Applicant says that the
Decision should not stand. For support he points to Owusu-Ansah v Canada
(Minister of Employment and Immigration), [1989] FCJ No 442, Jazxhiu
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No
1533, Hatami v Canada (Minister of Citizenship and Immigration) [2000]
FCJ No 402, Horvath v Canada (Minister of Citizenship and Immigration) 2001
FCT 398, Gondi v Canada (Minister of Citizenship and Immigration) 2006
FC 433, and Jones v Canada (Minister of Citizenship and Immigration) 2006
FC 405.
[40]
The
Applicant argues that the Decision was unreasonable because the only course of
action that was reasonably open to the Officer was to grant the exemption. He
refers to Rudder v Canada (Minister of
Citizenship and Immigration) 2009 FC 689, where Justice François Lemieux
had this to say at paragraphs 36 through 38:
The Officer found Faye Rudder had no compelling reasons to
travel and even less reasons to return to Guyana because she was not sufficiently established there. The
Officer questioned the source of funds available to Faye Rudder in Canada. In my view, the
Officer could only have reached these conclusions by ignoring the evidence or
by drawing inferences from the evidence which are unreasonable. In the
circumstances, this Court's intervention is warranted. I cite Justice Lagacé's
recent judgment in Ogunfowora v. Canada (Minister of
Citizenship and Immigration), 2007 FC 471.
I conclude by finding that this is an appropriate case for
the issuance of a direction that a different visa officer issue to Faye Rudder
forthwith a TRV for a period of one month when it is suitable for the Applicant
to travel to Canada. I find that on the evidence in the record this is the only
reasonable result a Visa Officer could reach on a re-consideration.
In Pacific Pants Company Inc. et al v. the Minister of
Public Safety and Emergency Preparedness, 2008 FC 1050, this
Court at paragraphs 48 and 49 had an opportunity to discuss the scope of
paragraph 18.1(3)(b) of the Federal Courts Act which authorizes the
Court on setting aside a decision to do so “with such directions as it
considers to be appropriate”. I referred to the Federal Court of Appeal's
decision in Rafuse v. Canada (Pension Appeals Board), 2002 FCA 31, as
authority that directions issued under paragraph 18.1(3)(b) may include
directions in the nature of a directed verdict. In my view, a directed verdict
is compelling on the facts of this case.
The
Respondent
[41]
The
Respondent argues that there is no reason for the Court to interfere with the
Officer’s Decision because she considered all the evidence and came to a
reasonable conclusion. Deference is owed to the Officer’s weighing of the evidence
and, though the Applicant disagrees with her conclusion, the Court should not intervene.
Statutory
Framework
[42]
Under
subsection 25(1) of the Act, the Minister is authorized to give special and
additional consideration to an exemption from the general application of the
Act. Where the Minister does not exercise this discretion, this does not take a
right away from an applicant.
The
Officer Has Discretion to Weigh Factors
[43]
The
Respondent says that the Applicant’s arguments amount to no more than an invitation
to the Court to re-weigh the factors the Officer considered. The Applicant has
not demonstrated that the Officer exercised her discretion unreasonably. The
Officer considered all the relevant factors and came to a conclusion which was
reasonable and open to her on the evidence. The jurisprudence of this Court
establishes that it is not for the Court to re-weigh the factors considered by
a decision-maker, provided that she has considered all the necessary factors. See
Stelco Inc. v British Steel Canada Inc., [2000] FCJ 286 (FCA), Legault
v Canada (Minister of Citizenship and Immigration) 2002 FCA 125 at
paragraph 15, and Suresh v Canada (Minister of Citizenship and Immigration)
2002 SCC 1 at paragraphs 34, 37, and 39.
There
was no Charter Violation
[44]
Although
the Applicant has asserted that the Officer violated his rights under sections
7 and 15 of the Charter, he has not provided any evidence of a Charter
violation. It is not enough to establish a Charter violation simply to
point out that he is homosexual.
No Interview Required
[45]
The
Officer was under no obligation to call the Applicant for an interview.
Following Baker, above, at paragraphs 33 and 24, the Respondent says
that what is required in an H&C application is meaningful participation in
the process. By making submissions, the Applicant meaningfully participated in
the decision-making process, so there was no breach of procedural fairness.
The
Officer Applied the Correct Test
[46]
Where
the Applicant has said that the test for an H&C exemption should be based
on the broad wording of subsection 25(1) of the Act, the Respondent says that
this argument has been rejected by this Court. CIC’s manual IP5 –
Immigration Applications in Canada made on Humanitarian and Compassionate
Grounds informs immigration officers that this Court has adopted the
unusual and undeserved or disproportionate hardship test in Singh v Canada
(Minister of Citizenship and Immigration) 2009 FC 11. The Respondent notes
that arguments similar to the Applicant’s were rejected in Jung v Canada
(Minister of Citizenship and Immigration) 2009 FC 678 and Aoanan v
Canada (Minister of Citizenship and Immigration) 2009 FC 734.
[47]
The
Officer applied the correct test, weighed the factors appropriately, and did
not violate the Applicant’s Charter rights or rights to procedural fairness, so
the Decision should stand.
ANALYSIS
[48]
The
Applicant disagrees with the Decision and does not wish to return to Brazil to
apply for permanent residence in Canada, as is the norm. His
application for judicial review attempts to characterize his disagreement as
various reviewable errors. In my view, none of the grounds he puts forward are
convincing.
[49]
His
H&C application emphasized what the Applicant sees as his desirable
qualities and abilities, as well as his contributions to Canadian society and
ardent desire to remain in Canada. He regards himself as a well established
“de facto” resident. What his application fails to deal with is why, if the
Applicant is required to return to Brazil and apply for permanent
residence from outside of Canada he will suffer any kind of hardship. The
issue is not whether the Applicant is a worthy Applicant to Canada, or whether
life here for him would be better than life in Brazil. The issue
is whether he would face unusual, undeserved or disproportionate hardship. The
Applicant believes he ought to be an exception to the rule.
[50]
As
regards the specific grounds of error raised by the application, I am pretty
well in agreement with the Respondent’s conclusions that the Applicant’s
arguments, variously stated, all essentially amount to a request for this Court
to re-weigh the factors considered by the Officer and come to a different
conclusion. H&C decisions are discretionary and guarantee no particular
outcome. As long as an officer exercises her discretion reasonably and within
the parameters of procedural fairness, this Court should not intervene.
[51]
I
also agree with the Respondent that the Applicant’s argument that the Officer
ignored evidence, or failed to give proper attention to certain factors, is
merely an argument as to the weight given to various factors. This Court has
repeatedly held that it is not the responsibility of the Court to re-weigh the
relevant factors which were duly considered by an Officer making highly
discretionary decisions or to substitute its own inferences or conclusions
based on a re-weighing of the evidence. In the case at bar, it is my view that all
relevant factors were duly considered and weighed and the Officer came to a
conclusion which is supported by the evidence as a whole. See Stelco, Legault,
and Suresh, all above.
[52]
The
Applicant also baldly asserts that the Officer violated his Charter rights
under sections 7 and 15, rights but he does not explain why or how. In my view,
there is no evidence before me to show that the Officer violated his Charter
rights. He simply argues that, because he is a homosexual, his Charter rights
have been violated. I agree with the Respondent that there is no merit in this
argument.
[53]
The
fact that the Officer did not conduct an interview with the Applicant does not
give rise to a reviewable error in the context of this case. An interview is
not generally required to ensure procedural fairness when evaluating an H&C
application. In Baker, above, the Supreme Court of Canada observed that
immigration officer decisions are “very different from judicial decisions” and
that what is required is “meaningful participation” in the decision making
process. In this case. I agree with the Respondent that the Applicant’s
submissions to the Officer in support of his H&C application demonstrate
that he had a meaningful opportunity to participate. Baker, above, and Bavili
v Canada (Minister of
Citizenship and Immigration) 2009 FC 945, at paragraphs 26 to 29.
[54]
The
Applicant’s principal argument, in my view, amounts to saying that the
jurisprudence which has consistently been used to guide H&C decisions is
wrong. He says that the Officer’s decision not to allow this application on
H&C grounds was unreasonable, and was made based upon the “wrong test,” because
the Officer found that the Applicant would not suffer “unusual, undeserved or
disproportionate hardship” if his application was not granted. The Applicant
argues that the test should be broader, given the wording of section 25 of the
Act.
[55]
As
the Respondent points out, this argument has been made before this Court
previously, and has been denied on each occasion.
[56]
Immigration
Manual IP 5, guides immigration officers in the exercise of their discretion
under subsection 25(1) of the Act. Section 5.10 sets out how hardship should be
assessed. With regard to the test impugned by the Applicant, the manual states,
The criterion of “unusual, undeserved or
disproportionate hardship” has been adopted by the Federal Court in its
decisions on Subsection 25(1), which means that these terms are more than mere
guidelines. See Singh v. Canada (Minister of Citizenship and Immigration); 2009 Carswell Nat 452; 2009
FC 11.
[57]
This
very same argument was also recently dismissed in Jung and Aoanan,
both above. Further, the long list of jurisprudence where the test of “unusual,
undeserved or disproportionate hardship” has been approved by the Federal Court
in its decisions on subsection 25(1) is extremely lengthy.
[58]
Some
of the Applicant’s arguments and the evidence he relies upon in this
application were not before the Officer but are found in an affidavit sworn by
the Applicant for this application. It is trite law that the Court must assess
a decision based upon the record before the Officer except for a few
exceptional grounds that are not present in this case. See State Farm Mutual
Automobile Insurance Co. v Canada (Privacy Commissioner) 2010 FC 736 at
paragraph 54, Abbott Laboratories Ltd. v Canada (Attorney General) 2008
FCA 354 at paragraph 37 and Gitxsan Treaty Society v Hospital Employees’
Union, [2000] 1 FC 135 (FCA) at paragraph 13.
[59]
At
the oral hearing on 20 December 2011, in Toronto, the
Applicant highlighted what he regarded as key points.
[60]
First
of all, the Applicant says the Officer ignored the fact that he has no further
contact with his mother and has nothing to do with his family in Brazil. However,
when I read the submissions and evidence that was placed before the Officer, I
cannot say there is anything unreasonable about the Officer’s assessment of
what the Applicant faces in Brazil.
[61]
The
Applicant also says that the Officer ignores and brushes aside the positive
factors that support his establishment in Canada, including
the many letters of support he submitted and his volunteer work. He says these
factors were mentioned in the Decision, but were not weighed. Once again, my
reading of the Decision leads me to conclude that the Applicant is wrong in
this regard. Unless I disbelieve what the Officer says he has done, I have to
conclude that all of the factors raised in submissions were identified,
assessed and weighed by the Officer.
[62]
The
Decision specifically says the Officer considered all the factors the Applicant
put forward. In submissions, counsel gave the Court the kind of wording he
thought the Officer should have used and the kind of detail he felt
appropriate. However, just because a decision is not written the way an
applicant feels it should be written does not render that decision unreasonable
or inadequate. Based upon the evidence and the submissions that were made to
the Officer (and the onus that was upon the Applicant to establish his case for
an exemption), I cannot say she ignored evidence, made material mistakes of
fact, or provided reasons which are not reasonably responsive to the issues at
play in this application.
[63]
For
example, the Applicant makes much in this application of his sexual orientation
and feels that the Officer ignored it or did not give it sufficient weight. A
reading of his H&C submissions, however, does not reveal that the Applicant
put forward his sexual orientation as a significant factor in his H&C
application. He also did not suggest that his sexual orientation would lead to
hardship if he returned to Brazil. All that the Applicant’s then counsel
said on the matter was that
As a gay man Mr. Reis relies to a great
extent upon the strong network of friends and resources that are available to
him in Canada and played a significant role in guiding him with his sexual
orientation; resources and support, that might not have been available to him
in Brazil. The supportive ties that he has established with organizations and
friends have helped him to become the person he is today.
[64]
There
is no evidence at all that networks of friends, resources and organizations
cannot be acquired or accessed in Brazil. Like anyone else
leaving Canada, the
Applicant will lose the frequent contact he has here with friends and
organizations. There is nothing to suggest that this will be a particular
hardship to the Applicant because he is gay or that, had he stayed in Brazil, he would
not have found his true identity and become the person he is today. This is
simply unsupported speculation. Even the Applicant’s personal statement that is
attached to his counsel’s submissions does not suggest otherwise.
[65]
In
my view, then, the Officer identified and addressed all the Applicant’s
concerns in the Decision in a way that is commensurate with what he chose to
place before her. The reasons adequately explain why the Officer could not
grant the exemption.
[66]
Along
the same lines, the Applicant also complains that the Officer may have
addressed the issues he raised in support of his application separately, but
did not also consider their cumulative impact. The Decision specifically says
otherwise and the Officer emphasizes that she has considered the relevant
factors, both individually and cumulatively.
[67]
I
realize that it is not sufficient for an officer to simply say that he or she
has considered all of the evidence or all of the factors cumulatively. In the
present case, however, I think it is clear that the Officer is not using empty
words. The Decision is structured in such a way that we see how the Officer
identifies and treats individual factors and she clearly considers their
overall and cumulative impact. Having done so, she decided, reasonably in my
view, that the Applicant “is similarly situated to other prospective immigrants
to Canada who must
apply [from] abroad in the normal fashion.” I can see no error of law or
unreasonable cumulative weighing.
Certification
[68]
The
Applicant has submitted the following question for certification:
Is the Ministerial policy, and
articulation, of the test, applied by immigration officers to determine whether
“humanitarian and compassionate grounds, have been established under s. 25 of the
IRPA, as decided in the within, and all other cases, namely:
The applicant bears the burden
of proof to demonstrate that if he were to return to Brazil to present his application, he
would suffer unusual and undeserved or disproportionate hardship as per
section 25 of IRPA.
(a)
ultra
vires s. 25
in that the “unusual, undeserved, and disproportionate hardship” test
overly-restricts, and de facto amends s. 5?; and/or
(b)
fetters
the broad discretion under s. 25(1) as long-held by this Court in Yhap?
[69]
Justice Shore has
already canvassed this issue in Rizvi v Canada (Minister of
Citizenship and Immigration) 2009 FC 463 at paragraphs 13-15:
Inherent in the notion of H&C applications
is that hardship is a normal consequence of deportation proceedings, and that
relief is to be granted only when hardship goes beyond the inherent
consequences of deportation. The Officer did not fetter her discretion by
assessing whether the Applicants would suffer unusual and undeserved or
disproportionate hardship if required to leave Canada. This is
the proper burden to be met in an H&C application before the requirement to
hold a visa can be exempted (Uddin v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 937, 116 A.C.W.S. (3d) 930, 116
A.C.W.S. (3d) 930 at para. 22; Irimie v. Canada (Minister
of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206, 101 A.C.W.S.
(3d) 995 (F.C.T.D.) at paras. 12 and 26).
The argument that the focus on hardship is
incompatible with the language of ss. 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, s. 27 (IRPA) and that immigration officers
should be approaching the H&C analysis by using factors similar to those
used by the Immigration Appeal Board (IAB) in Chirwa v. Canada (Minister of
Citizenship and Immigration), [1970] I.A.B.D. No. 1, has been rejected by
this Court. In Lim v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 956, 116 A.C.W.S. (3d) 929, Justice Eleanor
Dawson noted that the jurisprudence of the IAB has not been followed in
connection with H&C applications:
[16] To the extent it was argued that
jurisprudence from the Immigration Appeal Division, including Chirwa v.
Canada (The Minister of Manpower and Immigration) (1970), 4 IAC 338
(I.A.B.) and Jugpall v. Canada (Minister of Citizenship and Immigration
Canada) [1999] IADD No. 600 (I.A.D.), provides proper guidance as to what H&C
considerations are, that jurisprudence was developed in consideration of
provisions other than subsection 114(2) of the Act. That jurisprudence has not
been followed by this Court in connection with H&C applications under
subsection 114(2). See, for example, Lee v. Canada (Minister
of Citizenship and Immigration), [2001] F.C.J. No. 139 (T.D.).
In Lim, above, the Court made the
following further comments regarding the approach in Chirwa, above:
[17] Moreover, I am not sure that there is
significant difference between the guidance offered in IP-5 and that offered by
the jurisprudence of the Immigration Appeal Division. In cases such as Chirwa,
the Appeal Division has relied on a definition of compassionate considerations
as being "...those facts, established by the evidence, which would excite
in a reasonable man in a civilized community a desire to relieve the
misfortunes of another - so long as these misfortunes warrant the granting of
special relief from the provisions of the Immigration Act". Circumstances
of unusual and undeserved or disproportionate hardship would seem to me to be
generally co-extensive with those which would excite a desire to relieve misfortune
within the Chirwa definition.
[70]
Also,
as the Respondent points out, this Court in Ha v Canada (Minister of
Employment and Immigration), [1992] FCJ No. 625, considered whether these H&C
guidelines circumscribe the proper exercise of the decision-maker’s decision.
Justice Rouleau, referring to an unreported decision of Justice Strayer, noted
that “[t]hese guidelines have come under the scrutiny of the Court and have
been found to be not only permissible but also desirable”, and held “[t]here [was]
therefore no merit to the applicant’s challenge to the guidelines.” The court
in Ha embraced the rationale that the guidelines are desirable because
they promote consistency amongst H&C decisions.
[71]
The
hardship test was also favourably cited by Justice Denis Pelletier in Irimie
v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906, at paragraphs 11 and
12. More recently, in Singh, above, at paragraphs 31-38 and Eng v
Canada (Citizenship and Immigration) 2011 FC 596 at paragraph 8, this Court
reaffirmed the fact that the “unusual and undeserved, or disproportionate
hardship” test has become the prevalent guideline in H&C decision-making and
does not result in fettering of discretion. The Court also refused to certify
questions of a similar nature in Jung, above.
[72]
It
is also telling to note that Yhap, above, which the Applicant relies on
to establish that the discretion under section 25 is broad and that the test
articulated in the Guidelines is too narrow, actually upholds that test.
Justice Jerome wrote at paragraph 38 of Yhap, that
I am not required here to adjudicate upon the propriety of the
guidelines for humanitarian and compassionate review set out in Chapter 9 of
the Immigration Manual. I will say, however, that those guidelines appear to
constitute the sort of “general policy” or “rough rules of thumb” which are an
appropriate and lawful structuring of the discretion conferred by s. 114(2).
[73]
Not
only has this Court consistently upheld application of the guidelines, the Federal
Court of Appeal in Legault, above, at paragraph 23 clearly established
that the “unusual and undeserved or disproportionate hardship” test is
acceptable for an application on H&C grounds. As the Respondent points out
in Legault, the Federal Court of Appeal cited the ministerial guidelines
established for inland processing, and while noting that the Minister is not
bound by the guidelines, emphasized that they provide guidance to
decision-makers when they exercise their discretion in determining whether
sufficient H&C considerations exist to warrant the requested exemption. The
Court of Appeal in Hawthorne v Canada (Minister of
Citizenship and Immigration) 2002 FCA 475 at paragraph 9, likewise,
held that the use of the “unusual and undeserved, or disproportionate hardship”
test in the guidelines merely assists decision-makers and does not fetter their
discretion:
Fourth, “hardship” is not a term of art. As noted in section 6.1
of Chapter IP 5 of the Immigration Manual (reproduced at para. 30 of my
colleague’s reasons), the administrative definition of “unusual and undeserved
hardship” and “disproportionate hardship” in the Manual are “not meant as ‘hard
and fast’ rules” and are, rather, “an attempt to provide guidance to decision
makers when they exercise their discretion”. It is obvious, for example, that
the concept of “undeserved hardship” is ill-suited when assessing the hardship
on innocent children. Children will rarely, if ever, be deserving of any
hardship.
[74]
Moreover,
the Supreme Court of Canada in Baker, above, at paragraphs 16, 17 and
72, recognized that “unusual and undeserved, or disproportionate hardship”, as
referenced in IP5 Manual, is a legitimate guide or lens for an officer to use in
assessing what constitutes a reasonable interpretation of the agency power.
(emphasis added):
(c) The Ministerial Guidelines
72 Third, the guidelines issued
by the Minister to immigration officers recognize and reflect the values and
approach discussed above and articulated in the Convention. As described
above, immigration officers are expected to make the decision that a reasonable
person would make, with special consideration of humanitarian values, such as
keeping connections between family members and avoiding hardship by sending
people to places where they no longer have connections. The guidelines show
what the Minister considers a humanitarian and compassionate decision, and they
are of great assistance to the Court in determining whether the reasons of Officer
Lorenz are supportable. They emphasize that the decision-maker should be
alert to possible humanitarian grounds, should consider the hardship that a
negative decision would impose upon the claimant or close family members, and
should consider as an important factor the connections between family members. The
guidelines are a useful indicator of what constitutes a reasonable
interpretation of the power conferred by this section, and the fact that this
decision was contrary to their directives is of great help in assessing whether
the decision was an unreasonable exercise of the H&C power.
[75]
In
light of the well-settled nature of the jurisprudence, I believe that the
Applicant’s arguments on point have been clearly and consistently addressed and
that there is no purpose to be served by certifying his proposed question.
[76]
It
is true that the jurisprudence from this Court and the Federal Court of Appeal
establishes that, in some circumstances, application of the Guidelines can be
an unlawful fetter on an Officer’s discretion (see Legault at paragraph
25, Singh, at paragraph 35, and Ha v Canada (Minister of Citizenship
and Immigration) 2004 FCA 49. at paragraph 49). In Rizvi, Justice Shore said
at paragraph 16 that
The Officer in this case had regard to the particular
circumstances of the Applicants, and did not fetter her discretion by
rigidly adhering to the Guidelines at the expense of a full consideration of
the evidence before her.
[77]
This
passage suggests that the unusual and undeserved or disproportionate hardship
test, which is otherwise an acceptable measure of hardship, may operate as a
fetter where an officer rigidly adheres to the Guidelines. The Court on
judicial review, then, is called to evaluate whether, on the facts before it,
the Officer applied the unusual and undeserved or disproportionate hardship
test in such a way as to fetter her discretion. In this way, the second branch
of the Applicant’s proposed question would, in my view, ask the Federal Court
of Appeal to answer in the abstract a question which can only be answered
according to the facts of each case.
[78]
In
Kunkel v Canada (Minister of Citizenship and Immigration) 2009 FCA
347, at paragraph 9, the Federal Court of Appeal held that “a certified
question must lend itself to a generic approach leading to an answer of general
application. That is, the question must transcend the particular context in
which it arose.” The second branch of the Applicant’s proposed question fails
this test: there can be no answer of general application to a question which
depends on the unique facts of each case. In my view, the second branch of the
Applicant’s proposed question is inappropriate for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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