Date:
20121206
Docket:
IMM-1114-12
Citation:
2012 FC 1425
Ottawa, Ontario, December 6, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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NOBLE AGGREY
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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
ORDER AND ORDER
[1]
This is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [“IRPA”] for
judicial review of a decision dated October 7, 2010 by
an Immigration Officer [“the Officer”], to refuse the Applicant’s request based
on humanitarian and compassionate [“H&C”] considerations to be exempted
from the requirements for family sponsorship under the IRPA.
I. Background
[2]
The
Applicant is a citizen of Liberia and came to Canada as a refugee from Ghana, and is now a permanent resident. He filed a sponsorship application with humanitarian
and compassionate considerations for his wife and children who live in Ghana which was refused on October 7, 2010. The Applicant had previously appealed the Visa
Officer’s decision to refuse his sponsorship application on the basis of paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [“the Regulations”] but the appeal was rejected in a
decision rendered on January 13, 2012 by the Immigration Appeal Division. When
the Applicant was granted refugee status in Canada in 2005, he did not declare any
family member.
[3]
Both
parties agree that the decision under review is comprised of the letter sent on
October 7, 2010 and the Officer’s CAIPS notes. The Officer considered the fact
that when the Applicant first came to Canada, he never declared the existence
of his wife, who was his partner at the time, and children, which is contrary
to paragraph 117(9)(d) of the Regulations. The Officer conducted an
interview with the Applicant’s wife and reviewed the evidence submitted by the Applicant.
He considered the best interest of the Applicant’s children and the prospect of
reunification of the Applicant’s family. He came to the conclusion that the
application under section 25 of the IRPA is not justified.
II. Applicant’s Submissions
[4]
The
Applicant submits that the decision rendered is unreasonable as the Officer was
unduly focused on the Applicant’s previous nondisclosure of dependant family
members. Moreover, according to the Applicant, the Officer did not make a fair
assessment of the guiding factors for humanitarian and compassionate grounds
applications, including the children’s best interest.
III. Respondent’s Submissions
[5]
The
Respondent submits that the Officer’s decision is reasonable and is based on
the evidence that was before the Officer. He assessed the application in light
of relevant considerations under section 25 of the IRPA and rightly concluded
that no “unusual, underserved or disproportionate hardship” justifies the Applicant’s
exemption from the application of the law.
IV. Issues
1. Did the
Immigration Officer err in his interpretation and application of section 25 of
the IRPA?
2. Are the
reasons provided for the refusal of an application for sponsorship with
humanitarian
and compassionate grounds sufficient?
V. Standard of Review
[6]
The
applicable standard of review to decisions based on H&C grounds made
from within Canada
is reasonableness (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 62, 174 DLR (4th)
193).
The question of the adequateness of the reasons given by a decision-maker is reviewed
under the standard of reasonableness (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 22, [2011] 3 S.C.R. 708 [Newfoundland and Labrador Nurses’ Union]).
VI. Analysis
A.
Did
the Immigration Officer err in his interpretation and application of section 25
of the IRPA?
[7]
The
decision rendered by the Officer is not found to be reasonable by this Court as
in the Officer’s decision under section 25 of the IRPA, undue consideration was
given to the Applicant’s sponsorship application refusal under paragraph 117(9)(d)
of the Regulations.
[8]
A reading of the CAIPS notes and the letter addressed to the
Applicant’s wife reveals that the main focus of the decision is the initial
misrepresentation that occurred. Indeed, the Officer specified that
“significant weight” was given to the “policy objective of preserving the
integrity of the immigration system”. The Officer then added that he considered
the Applicant’s failure to provide adequate reasons to justify such
misrepresentation to be a “factor to which [he has] assigned significant
weight”. This demonstrates that while assessing the Applicant’s H&C claim,
he however placed considerable weight on the Applicant’s misrepresentation and
the absence of satisfying explanation to justify such misrepresentation.
[9]
In Sultana
v Canada (Minister of Citizenship and Immigration), 2009 FC 533 at
paras 30-31, 80 Imm LR (3d) 214, this Court found that although it is
appropriate for an Officer to consider the sponsor’s explanation for failing to
declare family members, such consideration should not override the H&C
factors that are to be examined in the context of an application under section
25 of the IRPA:
[30] This fixation on the
failure of the sponsor to declare his family members prevented the immigration
officer from genuinely assessing the H&C considerations submitted by the Applicants.
I agree with the Respondents that this is not a case where the immigration
officer, as in David v. Canada (Minister of Citizenship and
Immigration), above, or in Hurtado v. Canada (Minister of Citizenship and Immigration), above, made no findings of
fact or failed to consider the positive factors. In the present case, the
immigration officer did look at the various considerations advanced by the Applicants.
Nonetheless, at the end of the day, his notes read as if the failure to
disclose was the overriding consideration, and that the sponsor had brought
upon himself all his and his family’s misfortunes. This, in turn, led the
immigration officer to analyse the positive factors supporting the sponsorship
application through the prism of the sponsor’s conduct at the time of his own
application to become a permanent resident, and to overlook the genuineness and
stability of his relationship with his wife and children, the sincere remorse
of the sponsor and the likely impact of the decision on any future prospect for
this family to be reunited, as Mrs. Sultana will likely not be eligible for
permanent resident status under any other category given her severely limited
education and language skills and the non-existence of employment skills or
experience.
[31] In so doing, the
immigration officer fettered his discretion under subsection 25(1) of the IRPA and effectively allowed the Applicants’ exclusion under paragraph 117(9)(d) to unduly influence
his opinion as to whether the Applicants’ personal circumstances warranted
exemption for H&C reasons. As a result, I am of the view that the
immigration officer made a reviewable error, not so much because he came to
questionable conclusions in his assessment of the evidence, but more fundamentally
because he misunderstood the interplay between section 25 of the IRPA and section 117 of the Regulations.
[10]
In
the present case, the Officer expressly stated in the letter that he considered
the Applicant’s claim under section 25 of the IRPA. However, in the CAIPS notes
as well as in the letter, it is apparent that the Applicant’s misrepresentation
was given substantial weight in the Officer’s analysis.
B.
Are the
reasons provided for the refusal of an application for sponsorship with
humanitarian and compassionate grounds
sufficient?
[11]
The Officer came to the conclusion that with regard to
possibilities of family reunification, “reasonable alternatives to humanitarian
and compassionate consideration are available”. However, the Officer did not provide
detailed information as to the nature of those reasonable alternatives. Indeed,
at the hearing, the Respondent’s counsel made an argument that one alternative
available to the Applicant is returning to Ghana. However, this suggestion
consists in only one alternative to the Applicant. Moreover, such conclusion
seems to ignore the evidence as to the Applicant’s possible difficulty to find
work if he were to return to Ghana because of obstacles faced by Liberian
refugees in this country and the fact that
the Applicant provides substantial financial support to his family in Ghana. This
Court also notes that the Officer did not address this concern related to work
problems in Ghana, which had been brought to his attention by the Applicant.
[12]
In his decision, the Officer simply stated that other
alternatives are available to this family but he did not explain the details of
such alternatives, why such alternatives would be adequate in the circumstances
or what would be the potential impacts of such alternatives on family
reunification. If the fact that several reasonable alternatives are available
to the Applicant and his family warrants a refusal of his H&C application,
the Officer was under an obligation to comment on those alternatives.
[13]
Second,
there seems to be a contradiction in the decision, which undermines the adequacy
of the reasons provided. Indeed, in the letter, the Officer explained that he
assessed the likely impact of the decision on the possibility of reunification
of the Applicant’s family but that he bases his refusal on reasonable
alternatives available to the Applicant. Such a statement contradicts the
Officer’s previous conclusion in the CAIPS notes in which he determined that
with regard to the impact of the decision on a future prospect of reunification
for the family, he “considered the likely impact on any future prospect for
this family to be re-united in Canada, but [has] given significant weight to credibility issues
regarding the Applicant’s options at this stage”. After reading the decision
and the CAIPS notes, the precise reason why the Officer considered that the
prospect of reunification for the Applicant’s family does not justify granting
the H&C application remains ambiguous.
[14]
This
passage of Newfoundland and Labrador Nurses’ Union, above, at para 14,
is relevant to the present case:
[14] 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).
[15]
Moreover,
it has been established by the Supreme Court of Canada that in the context of
judicial review, “reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
[16]
After considering both, the outcome and the reasons
provided by the Officer, it is unclear what rationale was at the basis of his
determination that the likely impact of a negative decision on the prospect of
reunification of the Applicant’s family would not amount to unusual,
underserved or disproportionate hardship. The apparent contradiction in the CAIPS notes with the reasons included
in the letter is such that the conclusion reached by the Officer lacks intelligibility, transparency and
acceptability as the main reason why the Applicant’s claim was rejected remains unclear.
Moreover, the Officer’s conclusion in the CAIPS notes seems to imply that in
case of refusal of the H&C request, the Applicant and his family would not
have any alternative available to them in terms of family reunification. Such a
finding is not consistent with the Officer’s letter in which he stated that with
respect to possibilities of family reunification, other reasonable alternatives
are available to this family. Therefore, the decision rendered by the Officer
does not meet the standard of reasonableness.
VII. Conclusion
[17]
Considering
the evidence that was before the Officer and the reasons provided, the decision
does not fall within a range of possible acceptable outcomes.
[18]
The parties were invited to submit a question for certification
but none was proposed.
ORDER
THIS
COURT ORDERS THAT:
1. The application for
judicial review is granted.
2. The decision made on October 7, 2010 is quashed
and the matter is remitted back for
redetermination by a different Immigration Officer.
3. No question is certified.
“Simon Noël”
____________________________
Judge
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