Docket: IMM-4109-11
Citation: 2012 FC 495
Ottawa, Ontario, April 30,
2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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XIAO YU WANG
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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
I.
Overview
[1]
In 2000, Ms.
Xiao Yu Wang came to Canada from China on a study permit. She stayed in Canada on additional study permits and
work permits. She has two Canadian-born children. Her husband is a Hungarian citizen.
[2]
Ms. Wang
applied for permanent residence in Canada as a skilled worker, but was turned
down because her husband was inadmissible to Canada. He
was deported to Hungary in 2010.
[3]
Ms. Wang
then submitted an application for humanitarian and compassionate [H&C] relief.
An immigration officer refused her application, finding that Ms. Wang and her
family would not suffer unusual, undeserved or disproportionate hardship if
they had to apply for permanent residence either from China or Hungary.
[4]
Ms. Wang argues
that the officer treated her unfairly by relying on documentation of which she
was unaware. She also argues that the officer rendered an unreasonable
decision. She asks me to overturn the officer’s decision and order another
officer to reconsider her application.
[5]
In my
view, the documents on which the officer relied did not have to be explicitly
disclosed to Ms. Wang. They were publicly available and it was foreseeable that
the officer would consult them. However, the officer’s analysis of the hardship
that would face the family if they relocated to Hungary and China was incomplete. While the officer
considered whether the family could obtain status in those countries and basic
amenities such as health care and education, she did not actually consider
whether their removal would cause them serious hardship. Therefore, her
conclusion was unreasonable. I must, therefore, allow this application for
judicial review.
[6]
The issues
are:
1. Did the officer treat Ms. Wang
unfairly?
2. Was the officer’s conclusion
unreasonable?
II. The Officer’s Decision
[7]
The officer accepted
that Ms. Wang had a close relationship with her family in Canada. However, the officer weighed a number of negative factors
against her. For example, Ms. Wang’s husband had been excluded from refugee protection
for criminality, and had worked illegally in Canada.
[8]
Ms. Wang
pointed out to the H&C officer that she was not certain her husband would
be allowed to accompany her if she returned to China. She also worried that her children
would not be entitled to health care or schooling in China. Similarly, she submitted that her
children would not be entitled to health care or education in Hungary, if the family reunited
there.
[9]
In
response to these submissions, the officer sought out information on the rules
of naturalization in both China and Hungary. She found this information on the
Internet. After reviewing it, she concluded that both China and Hungary allow the spouses of citizens
to become permanent residents. In Hungary,
the children of citizens are recognized as citizens. The rules in China are less clear, but it appeared to the
officer that, because Ms. Wang was merely a temporary resident of Canada when her children were born,
they would be recognized as Chinese citizens. Therefore, the children would
have all of the rights of citizenship, including health care and education, in
both Hungary and China. The officer also pointed out
that both countries have
private schools if the parents wished their children to be educated in English.
[10]
The officer accepted
that it was in the children’s best interests for the family to reside together.
She considered them young enough to adjust to a new country. They could keep in
touch with family members in Canada through visits and Skype. There would
naturally be a period of adjustment, but they had significant material and
personal resources on which they could rely. Therefore, the hardships the
family would face were not unusual or unanticipated.
[11]
Accordingly, the
officer refused Ms. Wang’s application.
III. Issue One - Did the Officer
Treat Ms. Wang Unfairly?
[12]
Fairness usually
requires that decision-makers disclose any materials they consult that are not
in the record and give applicants a chance to make submissions on them.
However, this is not the case for documents that are general, neutral, publicly
available, and do not contain novel
and significant information (Mancia v Canada (Minister of Citizenship and Immigration),
[1998] FCJ No 565 (CA), at paras 26-27).
[13]
Here, the officer
relied on publicly available documents and, therefore, did not violate any
rules of procedural fairness. Moreover, Ms. Wang raised the issue of the
family’s status in Hungary and China in
her H&C application. Therefore, she could have anticipated that the officer
would consult the citizenship laws of those countries (Nadarajah v Canada (Minister
of Citizenship and Immigration), [1999] FCJ No 283 (CA), at para 1). The
officer simply relied on information taken from the website of Hungary’s
Ministry of Foreign Affairs and of China’s Embassy in Canada. These are obviously well-known, publicly available
sources.
[14]
Still, as
will be seen below, the officer’s analysis would have benefited from additional
submissions Ms. Wang could have provided, had she been given an opportunity.
IV. Was the officer’s decision unreasonable?
[15]
It seems clear
that the children would be recognized as Hungarian citizens, and that Ms. Wang would
be able to acquire permanent residence in Hungary. However, there seem to be significant
hurdles regarding Ms. Wang’s entitlement to Hungarian citizenship. It appears
that she would have to show that she was fully employed in Hungary and to pass an examination in
basic constitutional studies in the Hungarian language. The officer did not
appear to consider these provisions or the hardship it might cause Ms. Wang to
satisfy them. Similarly, for the children to become citizens of China, it appears that Ms. Wang would have to
demonstrate that she had only been living in Canada temporarily and had not actually settled
here. It was not obvious that she could satisfy that burden.
[16]
In other
words, the meaning of the rules the officer consulted was not self-evident.
Further, the officer essentially stopped her analysis of hardship at the issue
of status. For example, she did not consider whether Ms. Wang or the children
would experience discrimination in Hungary.
Nor did she consider whether Ms. Wang’s spouse would be able to work in China,
or the impact on the family of China’s one-child policy.
[17]
Given
these uncertainties and omissions, I find that the officer’s analysis of the
potential hardships facing Ms. Wang and her family was incomplete and her
conclusion was unreasonable.
V. Conclusion and Disposition
[18]
The
officer did not have an obligation to disclose the documents she relied on to Ms.
Wang or to give her a chance to comment on them. However, had she done so, her
analysis of the issue of the family’s status in China and Hungary would likely have been more complete.
However, the officer also failed to analyze fully the hardships that would face
the family if they relocated to Hungary or China. Her conclusion that the hardship was
not sufficiently serious to merit relief, therefore, was unreasonable.
[19]
The
application for judicial review is allowed. Counsel for Ms. Wang proposed
questions for certification. However, given the basis on which I have allowed
this application for judicial review, the proposed questions should not be
stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is allowed and the matter is referred back to
the Board for reconsideration by another officer;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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