Date: 20120517
Docket: IMM-6593-11
Citation: 2012 FC 600
Toronto, Ontario, May 17,
2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
|
|
JANICE VALNEY JANETTA GEORGE
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR ORDER AND
ORDER
[1]
The
present Application is a challenge to a decision of an Officer of the Minister
of Citizenship and Immigration Canada (H&C Officer) in which the Applicant
was denied permanent residence from within Canada on
humanitarian and compassionate grounds. A principle feature advanced by the
Applicant in making her application was that she is fully established in Canada and she
would suffer undeserved, unusual, or disproportionate hardship from being
required to apply from outside Canada. For the reasons that follow, I find that
the H&C Officer’s negative determination on this feature renders the
decision as unreasonable.
[2]
In
her application for relief the Applicant presented herself as a 55 year-old
citizen of St. Vincent who has: lived in Canada for 23 years; raised two
dependent Canadian children to teen age years; been financially independent;
supported herself and her children by working as a cleaner and a child carer;
acted as a Sunday school and outreach program teacher; and enjoyed the active
support of her Church community.
[3]
Guidance
for the H&C Officer in reaching a determination on establishment is
expressed in IP 5: Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds (Guidelines), in
particular, in provision 11.5:
The
degree of the applicant’s establishment may be measured with questions such as
the following:
• Does the applicant have a history of
stable
employment?
• Is there a pattern of sound financial
management?
• Has the applicant remained in one
community or
moved around?
• Has the applicant integrated into the
community
through involvement in community organizations,
voluntary services or other activities?
• Has the applicant undertaken any
professional,
linguistic or other studies that show integration
into Canadian society?
• Do the applicant and their family
members have a
good civil record in Canada? (e.g. no criminal charges or interventions by law
enforcement officers or other authorities for domestic violence or child
abuse).
The applicant’s establishment up to the
time of the Stage 1 assessment may be considered. The fact that the Applicant
has some degree of establishment in Canada is not necessarily sufficient to
satisfy the hardship test: (Diaz Ruiz v Canada (Minister of Citizenship & Immigration), 2006 FC 465,
147 A.C.W.S. (3d) 1050 (F.C.); Lee v Canada
(Minister of Citizenship
& Immigration), 2005 FC 413, 138 A.C.W.S. (3d) 350 (F.C.)).
[4]
In
assessing the Applicant’s degree of establishment, the H&C Officer provides
the following analysis:
The applicant has been out of
immigration status in Canada since 28-Apr-1989, for over
22 years. Her application lists employment in Canada since 1998. She has never applied for
and received a work permit. She states she is self employed as a babysitter,
cleaning houses and for a cleaning company on a contract basis (Jeeves
Janitorial and Carpet Cleaning Services Inc., Pickering, ON) since Sept 1998. She provided a letter
dated 06Nov2008 from Don Carmichael stating he had hired her at his office
(Index Strategy Inc in Richmond
Hill, ON) and to clean his home on a bi-monthly
basis. Also provided a letter dated 28Feb2008 from Kelly and David Jones
stating they hired the applicant to clean their home and to look after their
children, a letter dated 24Jan2008 from Robin Kalbrleisch stating that the
applicant worked as a housekeeper for them, a letter dated O7Feb2008 from Wes
Mills stating applicant works for him as a housekeeper, and a letter of
employment dated l5Feb2008 from Jeeves Janitorial & Carpet Cleaning in
Pickering, ON stating that the applicant has worked for them as a subcontractor
cleaner part time since 1998. The applicant states she has notified taxes in Canada since arriving in 1989.
[…]
I have not weighed the
applicant’s establishment in Canada heavily for several reasons. Firstly, I am not satisfied
her establishment was out of her control. Secondly I am not satisfied that her
establishment is to an unusual degree. She works part time jobs, rents an
apartment, has friends and family in Canada,
and is involved in her church community and volunteers her time at the church.
This would be a reasonable establishment in Canada over 22 years. I note that her work with
youth at her church is commendable; I do not find that this is sufficient
reason to approve her application. Insufficient evidence was provided to
illustrate that she could not find similar employment and establish herself to
the same degree into the community in St. Vincent. Also, the applicant has
failed to provide sufficient evidence of adequate financial support in Canada. She has not provided tax
statements, or updated employment information and evidence.
[Emphasis added]
(Application Record, pp. 14 – 15)
With respect to the H&C Officer’s
findings, Counsel for the Applicant argues as follows:
It is respectfully submitted,
the immigration officer did not properly take into account the successful
establishment made by the applicant during her approximately 23 year history in
Canada. In her reasons, the
immigration officer has given positive consideration to the majority of the
factors involved in establishment such as the length of time in Canada; her
stable work history throughout her time in Canada; her remaining in Toronto throughout
her time in Canada; her active involvement in church activities; her family
ties in Canada and her good civil record. In her reasons, the immigration
officer was unduly concerned and acted unreasonably by finding the applicant
did not obtain a work permit which she could not legally obtain as she was out
of status, her failure to pay income tax during her time in Canada and that she
does not have any savings in Canada even though the immigration officer was
aware that the applicant was the sole means of support for herself and her
children and received no support from the fathers of her Canadian born
children.
(Applicant’s Memorandum, para. 18)
I agree with this argument. Indeed, on a
liberal interpretation of the evidence, the Applicant has met all of the
criteria outlined in the Guidelines, but one: the Applicant has not
engaged in further professional or linguistic studies.
[5]
The
H&C Officer found establishment to be within the Applicant’s control and
assigned little weight to her evidence offered to prove this fact. It appears
that the reason for this determination is a belief that the Applicant should or
could conform to conduct expected of a person who has status in Canada. Thus, the
criteria the Applicant had to meet included holding a work permit, holding a
certain type of job, and paying taxes. In my opinion, the fact that the
Applicant did not conform to this expectation inhibited a fair assessment of
the evidence of who the Applicant is: a person who has put down deep roots in Canada. In my
opinion, the Guidelines place a focus on this phenomenon, which is found
on the unique circumstances of each individual case.
[6]
As
a result, I find that the decision under review is unreasonable.
ORDER
THIS COURT
ORDERS that:
1.
The
decision under review is set aside and the matter is referred back to a
differently constituted panel for redetermination.
2.
There
is no question to certify.
“Douglas R. Campbell”
Email this Content