Date:
20121025
Docket:
IMM-9565-11
Citation:
2012 FC 1240
Ottawa, Ontario,
October 25, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
|
|
TANA GEORGE
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Citizenship and Immigration Canada officer (the officer) dated
February 16, 2011, wherein the applicant’s permanent residence application was
refused (the decision). This conclusion was based on the officer’s finding that
there were insufficient humanitarian and compassionate (H&C) grounds to
warrant an exception allowing the applicant’s permanent residence application
to be made from within Canada.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred back to Citizenship and Immigration
Canada (CIC) for redetermination by a different officer.
Background
[3]
The
applicant was born in St. Lucia in 1994. She does not know who her father is
and only met him once at 11 years of age. She had a difficult childhood in
Ciceron due to her mother leaving her at home alone while working, difficulty
with schooling and fear of crime.
[4]
She
arrived in Canada on September 10, 2005. Her mother remained in St. Lucia and the applicant does not know her whereabouts. In Canada, she lived with her
grand uncle and aunt. These relatives have provided her with every need and
ensured that she gets the best education possible.
[5]
She
has a sister who filed a successful H&C application, but no remaining
family in St. Lucia. She does not know how she would survive alone upon a
return to that country.
[6]
The
applicant filed an H&C application on March 3, 2010.
Officer’s Decision
[7]
In
a letter dated February 16, 2011, the officer denied application for an
exemption from the requirement to apply from within Canada on H&C grounds.
[8]
The
officer listed the applicant’s immigration history and briefly summarized the
applicant’s submissions. The officer noted the applicant’s position that she
would experience hardship if returned to St. Lucia due to not knowing the
whereabouts of her parents and the applicant’s statement that her grand uncle
and aunt had filed adoption papers in St. Lucia. He also noted the applicant’s
submissions that her grand uncle and aunt are prepared to be her guardian and
that she would be deprived of her education in St. Lucia.
[9]
In
providing the rationale for rejecting the application, the officer noted that
the applicant’s grand uncle and aunt were both retirees and had a combined
income of $24,000 in 2008. The officer noted that “[the applicant] has been
attending school here in Canada and therefore her demands would be much greater
in terms of finances than that of her grand uncle and aunt”. Therefore, the
applicant’s relatives were not in a financial position to provide for her care
and support in Canada. The officer found there was insufficient information to
indicate that the applicant’s adoption papers were in process or that her grand
uncle and aunt have legal rights to be her guardian.
[10]
The
officer did not see the credibility of the applicant being under the care of a
distant relative when still a minor and due to the low income of her grand
uncle and aunt. The officer noted the lack of other financial information such
as a bank statement. The officer noted that the applicant has no close family ties
in Canada upon whom she can depend for financial or emotional support and that
she has her mother still residing in St. Lucia.
[11]
In
assessing all the factors cumulatively, the officer was not satisfied the
applicant would suffer hardship if returned to St. Lucia. The applicant had no
close family ties in Canada and no one in Canada has legal custody of her. The officer
was not satisfied that her grand uncle and aunt in Canada would be able to
provide for her long term care and support.
Issues
[12]
The
applicant submits the following points at issue:
1. Did the officer
err in fact and law in failing to have any or proper regard to the relevant
facts?
2. Was procedural
fairness violated by the failure of the respondent to ensure the applicant’s
application was considered by the same officer as her sister’s?
3. Was procedural
fairness violated by the two sisters’ applications coming to opposite results?
4. Did the officer
violate procedural fairness by failing to communicate with the officer who
decided the applicant’s sister’s application?
5. Did the officer
err by failing to consider the best interests of the child?
6. Was the
applicant’s H&C application denied because of the incompetence of the
applicant’s representative and is it a reviewable error?
[13]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in denying the application?
3. Did the officer
breach procedural fairness?
Applicant’s Written Submissions
[14]
The
applicant submits that because the personal circumstances and hardship of she
and her sister were substantially the same, they should have had the same
outcome.
[15]
The
applicant submits that the officer’s finding that the applicant’s grand uncle
and aunt could not financially support the applicant is unreasonable because
they had already been supporting the applicant since 2005. The officer’s claim
that there were no documents supporting the guardianship of the applicant, the
applicant supplied a statutory declaration by her mother giving full custody to
the applicant’s grand uncle and aunt.
[16]
The
applicant submits it is clear that the applicant’s mother cannot support her
and that she has a close bond with her grand uncle and aunt. There was no
evidence that they could not support themselves. The officer drew an
unreasonable conclusion without any analysis of income and expenses. Given that
the applicant’s mother cannot support her, the applicant should be with her
grand uncle and aunt. If the officer did not request any further information
about the income or expenses of the grand uncle and aunt, he should not have
made the unreasonable inference they could not support the applicant.
[17]
It
should have been clear to the officer that the applicant’s grand uncle and aunt
had provided long term care of the applicant for over six years and that the
applicant had no contact with her mother during the same period. Returning a 17
year old to a country where she has no family to stay with and no means of
support would be unusual, undeserved and disproportionate hardship.
[18]
The
applicant’s sister also submitted an H&C application. It is clear from the
reasons for decision that the officer who made that decision recognized that
her grand uncle and aunt were providing proper support to the applicant’s sister
and that she would not be able to live with her parents in St. Lucia. The applicant came to Canada at a younger age than her sister, making her case
even stronger.
[19]
The
applicant relies on several cases where this Court has quashed H&C decisions
based on an officer’s failure to properly consider all evidence. The applicant
submits in this case the officer failed to consider the statutory declaration
made by the applicant’s mother and the fact that the applicant’s grand uncle
and aunt have supported her for seven years. This failure to consider relevant
facts has resulted in a reviewable error of law.
Respondent’s Written Submissions
[20]
The
respondent submits that the applicant has not established that CIC was ever
informed that the two sisters filed contemporaneous applications, as neither
cover letter mentioned this issue. The two applications used different
surnames. Neither sister listed each other on the portion of the application
form for providing details of family members. The applicant’s sister lists her
adoptive mother and makes no mention of her biological mother. CIC therefore
had no reason to join the applications. Therefore, the applicant’s procedural
fairness rights were not violated.
[21]
The
respondent submits that an officer’s assessment of an H&C application is
reviewable on a standard of reasonableness, a deferential standard. Such
assessments are highly discretionary and no particular outcome out of a wide
scope of possible outcomes is guaranteed. When applications are not joined, they
constitute individual assessments. The applicant has not given notice of the
incompetency allegations to her former counsel so the Court cannot consider
that argument.
[22]
The
respondent argues that the officer’s decision is reasonable on its face. The
statutory declaration of the mother was not before the officer and only
permitted the applicant to travel to Canada with the grand aunt and uncle and
reside with them for the period of time required to meet adoption requirements.
There was no formal granting of custody or guardianship.
[23]
The
officer had concerns about the credibility of the applicant’s statement that
her mother abandoned her to the care of distance relatives who were retired and
had low income. The officer focused on elements of the application that were
problematic. No one had legal custody or guardianship of the applicant in Canada and the grand aunt and uncle provided little information about their finances. The
respondent argues the applicant is asking the Court to reweigh the evidence but
this is not the object of a judicial review.
[24]
While
the applicant argues it was irrational to find that the relatives could not
provide long term care, the respondent submits that the applicant provided
limited financial information to establish that they could continue to provide
such support. The onus was on the applicant to provide all evidence and
information necessary. The onus does not shift to the officer to request
further evidence.
[25]
The
officer did not ignore the statutory declaration as it was not part of the
application. Even if it had been in evidence, it does not indicate custody,
only consent to the applicant travelling and residing with them temporarily.
The officer was not incorrect in finding that custody had never been awarded.
[26]
The
officer properly assessed the best interests of the child as his entire
analysis was concerned with the applicant’s interests. Therefore, the
application should be dismissed.
Applicant’s Further Written
Submissions
[27]
The
applicant submits the conduct of her representative was prejudicial to the
applicant and that prejudice amounted to a violation of procedural fairness. If
the officer had known that the applicant’s mother had allowed the applicant’s
sister to be adopted in Canada, the applicant’s own evidence would have been
more credible. The representative was also incompetent by failing to inform the
applicant that financial documents would be necessary to support her H&C
claim. The applicant provided notice to the former immigration consultant.
Respondent’s Further Written
Submissions
[28]
The
respondent argues the response provided by the applicant’s former immigration
consultant does not corroborate the applicant’s evidence. Therefore, there is
an insufficient factual basis for this Court to find the applicant was prejudiced
by the actions of this consultant.
Analysis and Decision
[29]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[30]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995; and Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, at paragraph 43,
[2009] 1 S.C.R. 339). No deference is owed to decision makers on these issues (see
Dunsmuir above, at paragraph 50).
[31]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada are
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at paragraph 18, [2009] FCJ No
713; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193 at paragraph 14, [2009] FCJ No 1489; and De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717 at paragraph 13, [2010] FCJ No
868).
[32]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the Board came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Khosa above, at paragraph 59). As the Supreme Court
held in Khosa above, it is not up to a reviewing court to substitute its
own view of a preferable outcome, nor is it the function of the reviewing court
to reweigh the evidence (at paragraph 59).
[33]
Issue
2
Did
the officer err in denying the application?
The applicant argues that
the officer’s decision was unreasonable because it did not properly consider
the evidence of the applicant’s dependence on her relatives since 2005 and her
inability to provide for herself upon return to St. Lucia. Conversely, in
arguing that the officer’s decision was reasonable, the respondent relies
predominantly on the significant deference owed to H&C decisions on
judicial review. In considering the officer’s decision, I examine it against
the criteria of reasonableness: transparency, justifiability and
intelligibility (Dunsmuir above, at paragraph 47). H&C decisions are
discretionary and have a large range of possible outcomes (Holder v Canada (Minister of Citizenship and Immigration), 2012 FC 337 at paragraph 18, [2012]
FCJ No 353).
[34]
The
officer’s reliance on the family’s low combined income in rejecting their
ability to provide for the applicant is not transparent. There is no indication
of why $24,000 per year is an inadequate amount, what amount would be adequate,
or a reference to evidence on the cost of living in Toronto. This reasoning is
completely opaque.
[35]
The
officer also appears to treat the scenario of the applicant living with her
relatives as a hypothetical: “[the applicant] has been attending school here in
Canada and therefore her demands would be much greater in terms of
finances” (emphasis added). The applicant’s reliance on her relatives is not a
hypothetical, since by her evidence she has been successfully living with them
for six years. This evidence is clearly relevant to whether her relatives can
support her financially and the officer gives no justification for why the
applicant living with her relatives is analyzed as a change of course instead
of a continuation of the status quo.
[36]
The
officer is correct that there is no evidence of guardianship of the applicant
by her relatives. That issue, however, is not determinative of this
application. The applicant’s evidence is that she does not know the whereabouts
of her mother, so would be a completely abandoned minor if removed. Therefore,
she argues that her situation in Canada should not be considered in absolute
terms but in reference to the hardship she would faced if removed.
[37]
In
response to this alleged hardship, the officer did “not see the credibility” of
the applicant being sent from St. Lucia to Canada. Therefore, her application
was only considered as if removal to St. Lucia would simply mean a return to
the care of her mother. The officer offers no rationale for what makes the
applicant’s evidence implausible.
[38]
The
officer’s finding that the applicant has “no close family ties in Canada” is unintelligible, as is the repeated reference to the applicant’s grand uncle and
aunt as distant relatives. The officer does not set out what level of familial
relation qualifies as sufficiently close or why these relatives, who have lived
with and provided for the applicant for six years, fail this criterion.
[39]
For
each of these findings, the evidence does not dictate a particular outcome and
that is why it is the officer’s role to consider the evidence and make
findings. Even with due deference to that role, the reasons in this case simply
do not explain why the officer came to these conclusions.
[40]
It
is not the Court’s role to reweigh the evidence in this application. It is,
however, the Court’s proper role to evaluate the decision for transparency,
intelligibility and justifiability. In this case, the ability of the
applicant’s relatives to provide for her and whether she would be in the care
of her mother if returned to St. Lucia were the two central factual issues of
her application. On both issues, the officer offered only a bare finding and
inadequate explanation. Even considering the decision in its totality and
without isolating these individual issues, the decision fails to meet the Dunsmuir
test.
[41]
Therefore,
I find that the decision of the officer was unreasonable.
[42]
I
need not deal with Issue 3 because of my finding on Issue 2.
[43]
The
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
[44]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
|
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of nationality,
their country of former habitual residence, would subject them personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
|
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
Email this Content