Docket: IMM-3540-11
Citation: 2012 FC 229
Ottawa, Ontario,
February 21, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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LUWAM SEBHATU OKBAI
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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
[1]
The
applicant seeks judicial review of a decision of an immigration officer (the Officer)
at the Canadian High Commission in Nairobi, Kenya refusing the applicant’s application for
permanent residence on humanitarian and compassionate (H&C) grounds. For
the reasons that follow, the application is granted.
Facts
[2]
The
applicant is Luwam Sebhatu Okbai. Her older sister, who was granted Convention
(United Nations’ Convention Relating to the Status of Refugees,
[1969] Can TS No 6) refugee status in Canada, sponsored her for permanent residency. The
applicant and her brother were orphaned at a young age and from then on she was
raised by her older sister, the sponsor.
[3]
When
the applicant’s sister applied for permanent residence she included the
applicant in her application, requesting that the applicant be considered as a de
facto family member on H&C grounds. The applicant did not fall within
the legislative definition of family member for sponsorship but did meet the
criteria defining de facto family member in the relevant policy
documents.
[4]
The Officer
denied the request.
[5]
In
the decision letter transmitted to the applicant, dated March 25, 2011, the Officer
listed a number of inconsistencies in the applicant’s application:
[…]
I have concluded that humanitarian and compassionate considerations do not
justify granting you an exemption from any applicable criteria or obligation of
the Act. I have formed this opinion because; the statement made by your
sponsor is not compelling to suggest a waiver of any requirement of the Immigration
and Refugee Protection Act. You were 14 years old when your mother passed
away yet your sponsor alleges you were 9 years old; your sponsor states she is
‘like a mother’ to you; a previous visitor application by your sponsor does not
list you as a sister; your sponsor states she sends you financial assistance
however there is no evidence of this to examine; your sponsor states your
brother also sends money to you but again there is no evidence of this.
[6]
The Computer
Assisted Immigration Processing System (CAIPS), notes, written several months
prior to the decision letter, reflect none of the inconsistencies noted in the
March 25, 2011 letter. The notes identify different factors that resulted in
the negative decision, namely:
I HAVE READ THE SUBMISSION BEING MADE FOR H&C
CONSIDERATION ON THIS APPLICATION.
THE PREVIOUS ASSESSING OFFICER CONSIDERS CORRECTLY
THA [sic] THE applicant is not a family member of the
sponsor by definition and therefore does not meet the criteria for the DR2
category. She does not meet the criteria for FC5 either since she is over age
22yrs at lock in.
counsel provides a compelling statement or the
inclusion of the applicant as a de facto family member.
the points made such as financial dependence are
recognized. the facts that the applicant is a jehovah witness and suffers
persecution is [sic] also noted.
the applicant is not a child. she is 25 yrs old at the time of this
assessment. she is living alone in eritrea. she is unable to obtain any passport which is the
state of a large portion of eritreans in their country, they cannot obtain a
passport.
Her current situation is not unlike many in Eritrea.
i am not satisfied that the applicants current
situation would garner a positive recommendation.
the Applicant is not a family member and therefore
this application is refused.
Issue
[7]
The
applicant advances four grounds upon which this decision should be set aside:
a. The inconsistencies between
the refusal letter and the CAIPS notes render the Officer’s decision
unintelligible and thus unreasonable;
b. The Officer erred by finding
that the applicant faced persecution but did not meet the H&C test for
undue hardship;
c. The Officer erred by
failing to consider the central H&C concerns raised: family reunification
and the applicant’s de facto dependency on her sister in Canada; and
d. The Officer erred in law
and breached natural justice by misapprehending evidence and basing his
decision on credibility concerns to which the applicant had no opportunity to
respond.
[8]
For
the purposes of this decision, it is sufficient to address only the first, second
and third challenges to the decision.
[9]
In
general, H&C decisions are to be reviewed on the standard of reasonableness:
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at para 62; Thandal v Canada (Minister of Citizenship and Immigration), 2008 FC 489 at para 7,
and considerable deference is accorded to H&C decisions. This arises from
the fact that the issues, considerations and factors that are at play in an
H&C application are inherently subjective, with the consequence that
decisions are frequently those in respect of which reasonable people might come
to different, but equally defensible conclusions. As such, H&C decisions
fall squarely within the admonition that a decision will only be unreasonable
if it falls outside the range of permissible outcomes having regard to the
facts and law: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at para
43.
[10]
This
is one of those cases.
[11]
In Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the
Supreme Court of Canada (SCC) stated that
unintelligible decisions are unreasonable. The SCC recently reiterated that
challenges to the reasoning of a decision are to be reviewed on a standard of
reasonableness, and that failure in the reasoning processes are not to be
treated as raising issues of procedural fairness: Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras
21-22.
Analysis
[12]
The
CAIPS notes, in and of themselves, give no rational explanation as to why the H&C
application was refused.
[13]
The
Officer accepts that the applicant is a Jehovah’s witness and is the subject of
persecution. The Officer then notes that the applicant makes a “compelling
argument” for inclusion as a de facto family member and that the issues
of financial dependence have been “recognized.” The Officer then observes that
as she could not obtain a passport her “situation is not unlike many in Eritrea”. The Officer then
concludes that as she is not a family member her application should be refused.
[14]
Four
observations are in order. First, with respect to the conclusion: the very premise
of the application was that the applicant was not a family member. This was
never in dispute and is, in fact, why the application was made under section 25
of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). To thus conclude that
the application should be refused because she was not a family member is a tautology.
The Officer never addressed the very point of the application. On this ground
alone the decision could be set aside.
[15]
Second,
the Officer accepted that the applicant is a person in need of protection.
[16]
While
the respondent correctly points out that the H&C remedy is exceptional and
that it “is not designed to eliminate hardship”: Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906, the finding that the
applicant was the subject of persecution ought to have triggered a discussion
of whether hardship was established. It did not.
[17]
Third,
in taking into account the fact that the applicant did not have a passport, the
Officer appears to have drifted into the language and analysis of section 97(1)(b)(ii)
of the IRPA and the question of generalized risk. The relationship,
either in law or logic, between generalized risk and the lack of a passport is
not apparent.
[18]
Fourth,
no consideration was given to the fact that the applicant fell within the respondent’s
own definition of de facto family member. For example, IP 5 Policy
Manual 6.1 provides:
6.1
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 in Canada. 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.
[Emphasis
added]
[19]
Finally,
the Officer erred by failing to consider the H&C considerations that were
relevant to disposition of the application: family reunification and the
applicant’s de facto dependency on her sister in Canada. Family reunification
is only one of several objectives identified in the IRPA and officers
have discretion to weigh the statutory objectives against one another. Notwithstanding
this discretion, officers are not entitled to decline to consider a relevant
factor that is supported by the evidence in an application. Neither the CAIPS
notes nor the decision letter indicate that the Officer gave any thought to any
of the suite of considerations relevant to the disposition of H&C
applications.
[20]
In
sum, the direction at the conclusion of the CAIPS notes to “prepare a refusal
letter” has no logical or evidentiary foundation in, or nexus to, the
antecedent analysis.
[21]
It
is readily apparent that the basis for rejecting the H&C application
changed between the CAIPS notes and the March 25, 2011 letter. The application
was dismissed, in March, on what appear to be credibility concerns.
Credibility and veracity are always in issue and may be raised by the Minister
at any point in the decision-making process. Here, however, the factual
findings have no support in the record and cannot be sustained. The origin of the
discrepancy as to the applicant’s age is apparent and explicable on the record
before the Officer, but the Officer was simply wrong about the sponsor’s
visitor’s visa application and there was, contrary to the Officer’s conclusion,
evidence of financial support, a point the CAIPS notes previously recognized.
[22]
Decisions
are to be assessed globally and in their statutory context. Latitude is given
to decision-makers in their assessment of facts and evidence, and not all the
issues and evidence must be canvassed. Here, however, there is no coherence,
consistency or connection between the reasons dismissing the application and
the facts before the Officer. In consequence, it is impossible to discern why
the H&C application was dismissed.
[23]
I do
not accept the respondent’s submission that the Officer simply made an overall determination
that there were discrepancies and a lack of evidence in the applicant’s file. Rather,
the two sets of reasons are inconsistent, rendering the decision unintelligible
and contain several unsubstantiated findings of fact. The March 25, 2011 letter
provides no further guidance as to the reasons, and is, in and of itself,
unsustainable.
[24]
In
reaching this conclusion I am guided by the SCC’s recent statements in Newfoundland
and Labrador Nurses’ Union, above. Justice Abella reiterated that Dunsmuir
made clear that in reviewing the reasonableness of a decision, a court is to
consider its “justification, transparency and intelligibility.” While reasons
need not be perfect, individuals have a right to understand the basis for the
decision being made. As Justice Abella put it: “if the reasons allow the
reviewing court to understand why the tribunal has made its decision and permit
it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir criteria are met”: Newfoundland and Labrador
Nurses’ Union, above at para 16. The decision here does not pass
that test.
Costs
[25]
The
applicant seeks an award of costs.
[26]
Under
Rule 22 of the Federal Courts Immigration and Refugee Protection Rules (SOR/93-22), no costs are to be
awarded in proceedings under the IRPA, save the where the Court
determines that special reasons exist. The threshold for establishing special
reasons is high.
[27]
In Singh
Dhaliwal v Canada (Citizenship and
Immigration),
2011 FC 201, Justice Anne Mactavish reviewed the jurisprudence with respect to
the circumstances in which special reasons have been found to exist. In Singh
Dhaliwal, the breaches of procedural fairness and legal error were obvious and
the application should never have been opposed. The Court found that special
reasons existed.
[28]
It
is clear that the mere fact that an application for judicial review is opposed,
or ultimately succeeds, is not a basis for an award of costs. Considerable
latitude must be given to the parties to advance challenges and defences to the decision in
question. That is the nature of the adversarial process. Here however, no
arguable case could be made in defence of the decision, and the egregious errors were evident on
the face of decision. Costs are therefore awarded to the applicant and fixed
at $3,000.00. This is no criticism of counsel, who, as the Court would expect
from counsel for the Attorney General, in the course of argument, made the
appropriate concessions.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for
judicial review is granted. Costs to the applicant and fixed at $3,000.00. The
parties have not presented a question for certification and none arises.
"Donald
J. Rennie"
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