Docket: IMM-4236-11
Citation: 2012 FC 542
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ROXANNE ADELAINE MILLETTE
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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
dated 17 May 2011 (Decision) which denied the Applicant’s request for permanent
residence on humanitarian and compassionate (H&C) grounds under subsection
25(1) of the Act.
BACKGROUND
[2]
The Applicant is 39
years old and a citizen of Grenada. She fled Grenada for
Canada on 2 August 1995 because she feared
for her life as a result of an abusive relationship. She now lives with
relatives in Canada.
[3]
The Applicant first filed
an application to remain in Canada on H&C grounds in September 1998,
but she says her former counsel did not forward her documentation and fee to
Citizenship and Immigration Canada (CIC). The Respondent refused this first H&C
application on 31 July 2006.
[4]
In January 2008, the
Applicant filed a refugee claim based on her fear of returning to Grenada because her former boyfriend, who she said had abused her,
lived there. In on 21 January 2010, the Refugee Protection Division of the
Immigration and Refugee Board (RPD) found the Applicant was not a Convention
refugee or a person in need or protection. The RPD refused the Applicant’s
refugee claim because of a lack of credible and trustworthy evidence to
demonstrate that she was a victim of violence from her former boyfriend and
that she feared returning to Grenada.
[5]
On 3 September 2009,
the Applicant applied a second time for permanent residence on H&C grounds under
subsection 25(1) of the Act. For this application, the Applicant relied on her
close relationships to family members residing in Canada, her employment in Canada, and her length of residence in Canada to demonstrate establishment. She said that she would
experience disproportionate hardship if she was required to return to Grenada. She pointed to her lengthy stay in Canada, her age, the
cramped accommodations she would share in Grenada, the shame of being deported,
the financial assistance she provides to family in Grenada, and her lack of
familiarity and employment opportunities there.
DECISION
UNDER REVIEW
[6]
The
Officer noted that although he was not bound by the earlier negative refugee
determination made by the RPD, he gave it considerable weight in this
application. The Officer also said that he conducted his own independent
research on country conditions in Grenada using the United States, Department
of State, Bureau of Democracy, Human Rights and Labor, “Country Reports on
Human Rights Practices, 2010 – Grenada” (April 8, 2011) (DOS Report). The
Officer noted the DOS Report indicates that, while violence against women
continues to be a serious concern in Grenada, the government has
taken steps to address it. He found there was insufficient evidence to show
that the Applicant’s former boyfriend was interested in harming her today, since
she had not lived in Grenada for more than 15 years.
Also, the Officer found that, if she were to have problems with her former
boyfriend, the DOS Report indicated that she could seek assistance from the
authorities in Grenada.
[7]
The
Officer further found the Applicant would not face unusual and underserved or
disproportionate hardship upon returning to Grenada or due to her establishment
and the length of time she has spent in Canada as it is
expected that during the refugee claim process claimants will establish themselves
to a certain degree.
[8]
The
Officer accepted that the Applicant had developed relationships with family in Canada, but found
that her separation from her family would not amount to hardship as the
Applicant could continue to contact her family by phone and/or letters and
apply for an immigrant visa from abroad. He also noted the Applicant sends
money to family in Grenada, but found that she has a demonstrated ability
to adjust and adapt to change. He also found her family in Grenada would be
able to support her if she returned there.
[9]
Having
weighed all of the evidence before him, the Officer concluded that the
Applicant had not satisfied him that she will experience unusual and undeserved
or disproportionate hardship if she is required to return to Grenada and apply
for permanent residence through the regular process. Accordingly, the Officer
denied the Applicant’s request.
STATUTORY
PROVISIONS
[10]
The
following provisions of the Act are applicable in these proceedings:
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Application before entering Canada
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.
[…]
Humanitarian and compassionate considerations
— request of foreign national
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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Visa et documents
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.
[…]
Séjour pour motif
d’ordre humanitaire à la demande de l’étranger
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
[11]
The
Applicant raises the following issues in this case:
a.
Whether the Officer
erred by relying on extrinsic evidence;
b.
Whether the Officer’s
assessment of the H&C factors was reasonable.
STANDARD OF
REVIEW
[12]
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.
[13]
With
respect to the first issue, whether or not the Officer relied on extrinsic
evidence without giving notice to the Applicant is an issue of procedural
fairness which implicates the Applicants opportunity to respond. In Worthington v Canada (Minister of Citizenship and
Immigration)
2008 FC 626, at paragraphs 42 to 45, Justice John O’Keefe held that this issue
is reviewable on the correctness standard. The Supreme Court of Canada held in Canadian
Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29 at paragraph 100,
“it is for the courts, not the Minister, to provide the legal answer to
procedural fairness questions.” Further, 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.”
[14]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, 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 Michael 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
second issue is reasonableness.
[15]
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.”
ARGUMENTS
The Applicant
Breach of
Procedural Fairness
[16]
The
Applicant argues that the Officer breached her right to procedural fairness
when he relied extensively on the DOS Report without giving her an opportunity
to comment on it. He used the DOS Report to support his finding that upon her
return to Grenada she will be
able to avail herself of help from the authorities if she has problems with her
former boyfriend.
[17]
The
Applicant notes that CIC contacted her by letter dated 23 September 2010 and
asked her to make further submissions before a decision was made on her
application. However, the DOS Report was published on 8 April 2011, well after
the Applicant made submissions in October 2010, and this report was never disclosed
to her.
[18]
The
Applicant relies on Chen v Canada (Minister of
Citizenship and Immigration) 2002 FCT 266 at paragraph 33:
Fairness
[…] will not require the disclosure of non-extrinsic evidence, such as general
country conditions reports, unless it was made available after the applicant
filed her submissions and it satisfies the other criteria articulated in that
case.
[19]
The
Applicant also points to CIC’s manual IP 5 - Immigration Applications in Canada made on
Humanitarian and Compassionate Grounds (IP-5 Guide). At page
70, the IP-5 Guide says that, where officers rely on extrinsic evidence in
making an H&C determination, the information must be shared with the
affected party. The Applicant says the DOS Report is extrinsic evidence because
it does not originate from her and is information she did not have access to or
was not aware would be used in the Decision.
[20]
The
Applicant also says fairness dictates that applicants must have knowledge of
the case they must meet. In this case, the Officer was required to present the
DOS Report to her to allow her an opportunity to respond. The Applicant relies
on Dasent v Canada (Minister of Citizenship and Immigration), [1994] FCJ
No 1902; Muliadi v Canada (Minister of Citizenship and Immigration),
[1986] 2 FC 205 (FCA); Cornea v Canada (Minister of Citizenship and
Immigration) 2003 FC 972; Rukmangathan v Canada (Minister of Citizenship
and Immigration) 2004 FC 284; Pathmanathan v Canada (Minister of
Citizenship and Immigration) 2009 FC 885; Gunaratnam v Canada (Minister
of Citizenship and Immigration) 2011 FC 122; Hassani v Canada (Minister
of Citizenship and Immigration) 2006 FC 1283; Torres v Canada (Minister
of Citizenship and Immigration) 2011 FC 818.
H&C
Assessment
[21]
The
Applicant also says that the Decision is unreasonable because it was made
without regard to the facts. The Officer erred when assessing the Applicant’s
establishment in Canada from 15 years of continuous residence here. He
wrote that
Although the applicant lived in Canada
for a significant time period, I am not satisfied that the applicant has become
so established to the point where it would cause her unusual and underserved or
disproportionate hardship to leave Canada
and seek an immigrant visa in the normal manner. I note that a person who is in
Canada making a refugee claim is
afforded the tools such as employment and student authorizations which would
allow them to be self-sufficient and to integrate into Canadian community.
Since the refugee process takes several years to run its course, it is expected
that a certain level of establishment would take place during that time. As
such, I do not give significant weight to the applicant’s length of time or
establishment in Canada.
[22]
The
Officer failed to appreciate the fact that she only initiated a refugee claim
in January 2008, after she had already been here for thirteen years. Any tools
she used to establish herself were self-acquired and independent of her refugee
claim. By not considering or giving weight to the first 13 years of
establishment in Canada before her refugee claim, the Officer failed to
properly consider her degree of establishment and to properly assess her
hardship. The Applicant relies on Raudales v Canada (Minister of
Citizenship and Immigration) 2003 FCT 385; Jamrich v Canada (Minister of
Citizenship and Immigration) 2003 FCT 804.
[23]
The
Officer did not address all of the relevant positive establishment factors in
her application. He failed to address her educational upgrading, letters of
support, employment history and finances. This failure renders the Decision
unreasonable. See Amer v Canada (Minister of
Citizenship and Immigration) 2009 FC 713 at paragraphs 13 to 14. While
the Officer is presumed to have considered all the evidence, he committed a
reviewable error by not referring to important evidence (see Cepeda-Gutierrez
v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 (QL) at paragraph 17).
[24]
Further,
the Officer did not assess the Applicant’s hardship properly and in accordance
with the Act and the IP-5 Guide. The Officer said the following:
I understand the [A]pplicant’s desire to
remain close to her family in Canada but she has not demonstrated
that having to comply with legislative requirements is unusual and undeserved
or disproportionate hardship. Reunification with his [sic] family can be
obtained by requesting an immigrant visa from abroad.
[25]
There
are no provisions in the Act under which the Applicant can obtain an immigrant
visa from abroad. She would not qualify as a member of the Family Class because
her relationships with her sister and niece in Canada are not
recognized under that class. The Officer did not consider the objectives of the
Act, one of which is family reunification and relationships in Canada.
[26]
The
Applicant says she submitted evidence of the hardship she would experience from
separation from her sister and niece in Canada. As in Husain
v Canada (Minister of Citizenship and Immigration) 2011 FC 451 – where the
officer failed to consider the possibility of the applicant’s family being reunited
in Canada – the Officer failed to appreciate the evidence she presented to show
that her circumstances favour reunification in Canada in light of their close
relationship for 15 years.
[27]
The
Applicant concludes that the Officer made too many errors in the Decision that
were central to the issues of this case (see Katalayi v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 1494 (TD).
The Respondent
No Breach of
Procedural Fairness
[28]
The
Respondent says the importance of a decision to an affected individual is only
one of the relevant factors used to determine the content of the duty of
fairness in a given context. Mancia v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461 (FCA) is the leading case
on the content of the duty of fairness in relation to a decision of an
immigration officer. Mancia says at paragraph 27 that, where an officer
relies on extrinsic evidence on general country conditions that is publicly
available, but that only became available and accessible after an applicant
made his or her submissions, fairness requires disclosure by the officer only
where the documents “are novel and significant and where they evidence changes
in the general country conditions that may affect the decision”.
[29]
The
Applicant has not provided any evidence suggesting that the information in the DOS
Report had not been published in other sources available to the Applicant prior
to her October 2010 submissions. The Applicant has not demonstrated that the
amendments to the Grenadian domestic violence legislation, referred to in the DOS
Report, amount to a significant change in the context of her personal
circumstances. Following Mancia, the duty of fairness did not require
the Officer to disclose the DOS Report to the Applicant. Hence, there was no
breach of procedural fairness.
[30]
The
Respondent notes that the Officer found the Applicant had not provided evidence
to show her former boyfriend is interested in harming her today. Even if the DOS
Report evidenced a significant change in country conditions in Grenada with respect
to cases of domestic violence, the report would not have affected the Officer’s
Decision.
Decision
is Reasonable
[31]
The
Applicant has failed to identify a reviewable error in the Decision. For the
Officer to grant an exemption on H&C grounds, the Applicant had to show
that, in relation to others who are being asked to leave Canada, her personal
circumstances are such that unusual and undeserved or disproportionate hardship
would result if she were required to leave (see Singh v Canada (Minister of
Citizenship and Immigration) 2009 FC 11 at paragraphs 2, 11, 18, 38). Unusual
hardship will generally be hardship that is not addressed or anticipated by the
Act or the Immigration and Refugee Protection Regulations SOR/2002-227,
and refers to circumstances beyond an applicant’s control (Singh, above,
at paragraphs 19 to 20).
[32]
The
Respondent also notes that the Applicant has a “heavy burden to discharge in
order to satisfy the Court that a rejection of a claim under section 25 was unlawful”
(Mikhno v. Canada (Minister of
Citizenship and Immigration), 2010 FC 386 at paragraph 25). In this
case, the Officer reasonably determined there was insufficient evidence that the
Applicant’s personal circumstances would cause her to suffer hardship if she
were required to return to Grenada. The Officer
acknowledged the evidence showing the Applicant’s relationship with her family
in Canada, but found that the Applicant’s mother, father and four siblings live
in Grenada and that her
family there would help her to adjust.
[33]
The
Officer considered the evidence the Applicant submitted to show her
establishment, but it was not compelling. She relied on her work experience,
but this experience amounted only to her working in Canada
intermittently between 1995 and 2008 without a work permit. She cannot be
allowed to rely on her illegal work in Canada to show her
establishment. See Serda v Canada (Minister of
Citizenship and Immigration) 2006 FC 356 at paragraph 21.
[34]
To
ground H&C relief, the alleged hardship suffered by an applicant must be
more than the hardship “which is inherent in being asked to leave after one has
been in place for a period of time” (Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906 (QL) at paragraph
12). The Respondent further notes that simply because an applicant for H&C
relief must leave friends and family in Canada is not
necessarily hardship that warrants an H&C exemption. Leaving family and
friends is a predictable consequence of the risk taken by staying in Canada without
landing.
[35]
The
Officer did not err when he found the Applicant could apply for a visa from Grenada if she
wanted to be reunited with her family members in Canada. An H&C
determination is not an additional mechanism for selecting permanent residents,
and the Officer was not required to determine if the Applicant is admissible
under other grounds (Jung v Canada (Minister of Citizenship and Immigration)
2009 FC 678 at paragraphs 45 and 46).
ANALYSIS
[36]
There
was no obligation on the Officer to disclose to the Applicant that he was
relying upon the 2011 US DOS Report and, even if such an obligation existed, it
would not be material in this case because the core finding of the Decision on
risk is that the Applicant
has provided insufficient objective evidence
to establish that her former boyfriend, Chris is still interested in harming
her today, fifteen years following her departure from Canada.
[37]
The
reference to the protections available to the Applicant in Granada is an
alternative finding:
Nonetheless, if the applicant encounters
problems with Chris or anyone else she can seek the assistance of the police or
the judicial system in her country.
[38]
I
also agree with the Respondent that, in Mancia, the Court of Appeal held
that where an officer relies on extrinsic evidence on general country
conditions that is publicly available, but that only becomes available and
accessible after an applicant has made his or her submissions, fairness
requires disclosure by the officer only where the documents “are novel and
significant and where they evidence changes in the general country conditions
that may affect the decision.” That is not the situation here.
[39]
In
this case, the Applicant last made submissions in October 2010. The 2011
version of the yearly DOS Report was published on 8 April 2011 and the
Officer’s decision on the H&C application was rendered on 17 May 2011. The
Officer cited the report in the decision and found that the documentary
material showed that “the government of Granada is committed
to protecting the rights of victims of violence.” I agree with the Respondent
that the Applicant has not provided any evidence to the Court suggesting that
the information in the DOS Report had not been published in other sources
available to her prior to her October 2010 submissions. Nor has the Applicant
adduced any evidence or made any arguments as to how the information in the DOS
Report can be said to demonstrate a change in the general country conditions in
Granada. I agree
with the Respondent that the DOS Report does not evidence such a change. While
the Report references certain amendments to the Grenadian domestic violence
legislation, the Applicant has failed to demonstrate that those amendments
constitute a significant change in the context of her personal circumstances.
As a result, as per the test set out in Mancia, it is my view that the
duty of fairness did not require the disclosure of the DOS Report to the
Applicant.
[40]
As
regards establishment, there was no need for the officer to refer to all of the
evidence before reaching her conclusion. In Ozdemir v Canada (Minister of
Citizenship and Immigration) 2001 FCA 331 at paragraph 11, the Federal
Court of Appeal provided the following guidance on point:
In this case, the new evidence was not of sufficient importance or
probative value that the duty of fairness required the PCDO to deal with it
expressly in her reasons. Further, it would be inappropriate to require PCDOs,
as administrative officers, to give as detailed reasons for their decisions as
may be expected of an administrative tribunal that renders its decisions after
an adjudicative hearing. In our opinion, the reasons given by the PCDO
adequately explain the basis of her decision and do not support an inference
that she failed to consider all the material before her.
[41]
As
the Decision makes clear, the Officer was aware that the Applicant had been in Canada for over 15
years, and he specifically deals with the years since her failed refugee claim.
The Applicant cannot expect to profit from the earlier years when she lived and
worked here illegally. It would mean that someone who manages to remain here
illegally would be better placed than someone who has respected the system. As
Justice Nadon pointed out in Tartchinska v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 373 (FC) at paragraphs 21
and 22:
More
importantly, the Guidelines certainly do not suggest that an applicant must
pursue self-sufficiency at all cost and without regard to the means. I
therefore disagree with the Applicants’ argument that “[i]t is irrelevant
whether self-sufficiency is pursued with or without a work permit.” In my
opinion, the source of one’s self-sufficiency is very relevant; otherwise,
anyone could claim an exemption on the basis of self-sufficiency even if that
self-sufficiency derived from illegal activities. I appreciate that in this
case the Applicants worked honestly, albeit illegally. Nonetheless, the
Applicants knowingly attempted to circumvent the system when they chose to
continue working without authorization. Indeed, despite being told during their
first interview that they were not authorized to work and that they should
cease, there was no indication that the Applicants had given up their
employment at the time of the second interview. Moreover, their lawyer had
cautioned them about the risks of working without a work permit as well as on
the ostensible benefit of showing self-sufficiency (regardless of its source),
and they chose to remain in Canada and work illegally.
I understand that the Applicants hoped that accumulating time in Canada despite a departure order
against them might be looked on favourably insofar as they could demonstrate
that they have adapted well to this country. In my view, however, applicants
cannot and should not be “rewarded” for accumulating time in Canada, when in fact, they have no
legal right to do so. In a similar vein, self-sufficiency should be pursued
legally, and an applicant should not be able to invoke his or her illegal
actions to subsequently claim a benefit such as a Ministerial exemption.
Finally, I take note of the obvious: the purpose of the exemption, in this
case, was to exempt the Applicants from the requirement of applying for status
from abroad, not to exempt them from other statutory provisions such as the
requirement of a valid work permit.
[42]
As
regards the two-year period following the Applicant’s failed refugee claim,
there is simply nothing exceptional in the record that conflicts with, or which
could impact, the Officer’s conclusion so as to require special mention. The
Applicant has submitted no evidence as to why her establishment during this
period was in any way exceptional.
[43]
As
regards the adequacy of reasons, there is nothing in the Decision that would
render it unreasonable within the principles set out by the Supreme Court of
Canada in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board) 2011 SCC 62 at paragraphs 12 to 16:
It is important to emphasize the Court’s
endorsement of Professor Dyzenhaus’s observation that the notion of deference
to administrative tribunal decision-making requires “a respectful attention to
the reasons offered or which could be offered in support of a decision”. In his
cited article, Professor Dyzenhaus explains how reasonableness applies to
reasons as follows:
“Reasonable” means here that the reasons do in
fact or in principle support the conclusion reached. That is, even if the
reasons in fact given do not seem wholly adequate to support the decision, the
court must first seek to supplement them before it seeks to subvert them.
For if it is right that among the reasons for deference are the appointment of
the tribunal and not the court as the front line adjudicator, the tribunal’s
proximity to the dispute, its expertise, etc, then it is also the case that its
decision should be presumed to be correct even if its reasons are in some
respects defective. [Emphasis added.]
(David Dyzenhaus, “The Politics of Deference:
Judicial Review and Democracy”, in Michael Taggart, ed., The Province of
Administrative Law (1997), 279, at p. 304)
See also David Mullan, “Dunsmuir v. New
Brunswick, Standard of Review and Procedural Fairness for Public
Servants: Let's Try Again!” (2008), 21 C.J.A.L.P. 117, at p. 136; David
Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of
Administrative Law (5th ed. 2009), at p. 380; and Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para.
63.
This, I think, is the context for understanding
what the Court meant in Dunsmuir when it called for “justification,
transparency and intelligibility”. To me, it represents a respectful
appreciation that a wide range of specialized decision-makers routinely render
decisions in their respective spheres of expertise, using concepts and language
often unique to their areas and rendering [page715] decisions that are often
counter-intuitive to a generalist. That was the basis for this Court’s new
direction in Canadian Union of Public Employees, Local 963 v. New Brunswick
Liquor Corp., [1979] 2 S.C.R. 227, where Dickson J. urged restraint in
assessing the decisions of specialized administrative tribunals. This decision
oriented the Court towards granting greater deference to tribunals, shown in Dunsmuir's
conclusion that tribunals should “have a margin of appreciation within the
range of acceptable and rational solutions” (para. 47).
Read as a whole, I do not see Dunsmuir
as standing for the proposition that the “adequacy” of reasons is a stand-alone
basis for quashing a decision, or as advocating that a reviewing court
undertake two discrete analyses - one for the reasons and a separate one for
the result (Donald J. M. Brown and John M. Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), at ss.12: 5330 and 12: 5510).
It is a more organic exercise - the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. This, it seems to me, is what the Court was saying
in Dunsmuir when it told reviewing courts to look at “the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes” (para. 47).
In assessing whether the decision is reasonable
in light of the outcome and the reasons, courts must show “respect for the
decision-making process of adjudicative bodies with regard to both the facts
and the law” (Dunsmuir, at para. 48). This means that courts should not
substitute their own reasons, but they may, if they find it necessary, look to
the record for the purpose of assessing the reasonableness of the outcome.
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees’ International Union,
Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382,
at p. 391). In other words, if the reasons allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met.
[44]
In
relation to family ties, once again, given the evidence and submissions before
the Officer, I cannot say that anything material was overlooked.
[45]
The
Officer came to the reasonable determination that there was insufficient
evidence that the Applicant’s personal circumstances – including her
relationship with her sister, niece and other Canadian relatives – would cause
her to suffer unusual and undeserved or disproportionate hardship if she were
required to return to Granada.
[46]
The
Officer acknowledged the Applicant’s evidence on the closeness of her
relationship with her family members who reside in Canada. However,
the Officer also found that the Applicant’s mother, father and four of her
siblings live in Granada. The Officer reasonably determined that there
was insufficient evidence that the Applicant’s family in Granada would not
provide her with the support she might require in making the adjustment to life
in that country.
[47]
This
Court has repeatedly held that the alleged hardship suffered by an applicant
must be more than the hardship which is inherent in being asked to leave after
one has been in place for a period of time. That an applicant must leave
friends and family is not necessarily hardship warranting an H&C exemption;
rather, it is a predictable consequence of the risk taken by staying in Canada without
landing.
[48]
As
regards the Officer’s remark that “Reunification with his [sic] family
can be obtained by requesting an immigrant visa from abroad,” the view of this
Court is that an H&C application is not an additional mechanism for
selecting permanent residents for immigrating to Canada for those
who do not otherwise qualify. For example, the words of Justice Max Teitelbaum
in Jung, above, at paragraphs 41 to 46, are equally applicable to this
Applicant’s situation:
The
Applicant submits that the Officer erred in determining that Ms. Jung could
present a claim for permanent residence from Korea. However, the Applicant notes that Ms. Jung would not be
eligible to apply for permanent residence under any class.
The
Applicant does not have the required occupational experience and education to
seek immigration in the Skilled Worker Category, nor does she have the assets
to qualify for the Entrepreneur and Investors Class. Finally, Ms. Jung would
not qualify in the Family Class either, because there is no spouse evident.
This
application is the last opportunity for the Applicant to seek Permanent
Residence in Canada. Therefore, the Officer’s finding that Ms. Jung could
apply from Korea would appear to be incorrect.
Applications
for Permanent Residence as a general rule are made from outside Canada. One of the
exceptions is when an application is exempted from this requirement due to
compassionate or humanitarian considerations. The Respondent submits that the
Officer's decision is reasonable and in accordance with precedent with regard
to Ms. Jung’s application.
The
Respondent submits that the Applicant’s argument misconstrues the nature of the
H&C process. The Respondent states that an H&C application is not an
additional mechanism for selecting perspective permanent residents, nor is it a
mechanism for immigrating to Canada for those who do not qualify otherwise: Irimie v. Canada (M.C.I.), [2000] F.C.J. 1906. This would
seriously undermine the immigration system.
I agree with the Respondent that the
Officer is not required nor should be required to determine whether the
Applicant is admissible under any grounds for refugee, immigration or permanent
residence status. The Officer is tasked with determining whether there are
sufficient H&C grounds for an exemption from applying outside of Canada for
permanent residence.
[49]
All
in all, I can find no reviewable error with this Decision. It is completely
within the Dunsmuir range based on the facts.
[50]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
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