Docket:
IMM-1480-11
Citation:
2012 FC 96
Ottawa,
Ontario, January 26, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
|
|
DELMA BETTY ANN JOHN
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms.
Delma Betty Ann John arrived in Canada from Grenada in 2001. Originally, she
entered Canada on a visitor’s visa, but that expired in 2002. In 2004, she
filed an application for permanent residence on humanitarian and compassionate [H&C]
grounds. An immigration officer denied her request. That officer was
subsequently suspended for taking bribes.
[2]
Ms.
John re-filed her H&C application and added supplementary information, but
she was turned down again. Ms. John argues that the officer failed to consider
the best interests of the various children adversely affected by the decision –
those for whom Ms. John was employed as a caregiver, as well as her nieces and
nephews in Canada and Grenada – a total of 12 children. She also maintains that
the officer failed to take adequate account of her degree of establishment in Canada. She asks me to quash the officer’s decision and order another officer to reconsider
her application.
[3]
In
essence, the issue is whether the officer’s decision was reasonable in light of
the evidence on establishment and the best interests of the children. I cannot
conclude that the officer’s decision was unreasonable in either area. The
officer took account of all the evidence, and balanced the various positive and
negative factors. I must, therefore, dismiss this application for judicial
review.
II. The Officer’s
Decision
[4]
The
officer took note of Ms. John’s family members in Canada - a brother, sisters,
nephews, nieces and a sister-in-law. In Grenada, she has two sisters, four
brothers and an elderly aunt. She is an active volunteer in the community and
involved in her church. She worked as a caregiver for two families. She has
many friends here.
[5]
The
officer accepted that, if she returned to Grenada, Ms. John and her extended
family would suffer emotional and financial hardship.
[6]
The
officer noted that Ms. John has a savings and chequing account, and has not
relied on social assistance. She has taken courses at Woodsworth College, George Brown College, and the Centre for Addiction and Mental Health. In terms of
her employment record, the officer noted that Ms. John has helped run a
catering business, and has worked as a cashier, housekeeper and caregiver.
[7]
With
respect to her attachment to Grenada, the officer mentioned her family members
there. In addition, she had completed high school in Grenada and worked as a
caregiver there for three years. She was also active in her church there.
[8]
As
factors supporting a positive decision, the officer listed Ms. John’s degree of
establishment in Canada - the length of time she has lived here, her employment
and volunteer work, and her attachments to family, friends, church and
community. She also considered the potential hardship of returning to Grenada, as well as the best interests of the various children.
[9]
As
factors supporting a negative decision, the officer mentioned Ms. John’s family
in Grenada, and the fact that she has lived and worked in Canada illegally since 2002.
[10]
The
officer’s analysis began with a recognition that Ms. John bore the onus of
showing that the hardship of being denied an H&C would be unusual,
undeserved or disproportionate.
[11]
With
respect to establishment, the officer noted that Ms. John came to Canada for economic and family reasons, but then overstayed her visa and remained here
illegally. Naturally, having been in Canada for nearly 10 years, she had
established herself to a certain extent here. She had a valid passport and
enough money to travel back to Grenada. The officer found that Ms. John had not
shown that severing her employment, church participation and volunteer work in Canada would have such a significant negative impact that it would justify an H&C.
[12]
Regarding
hardship upon return to Grenada, the officer acknowledged that Ms. John would
be separated from her family members here and would have to re-adjust to living
in Grenada. However, she could resume her connection with her family there. Her
family in Grenada mentioned the country’s poor economic situation and their
reliance on money Ms. John sends them. However, that situation applied to the
whole country, and there was also evidence that Grenada was recovering from the
effects of the 2004 hurricane.
[13]
The
officer observed that Ms. John would be returning to Grenada with new skills
and had savings on which she could rely in the short term. The officer found
little evidence that Ms. John would not be able to re-establish herself in Grenada, or that she would face serious hardship if she had to apply for permanent resident
status from there.
[14]
With
respect to the best interests of the children, the officer considered that Ms.
John had cared for her niece and nephew for more than three years and had a
strong bond with them. However, the children had their parents in Canada and the USA, and had previously been separated from Ms. John when they immigrated to Canada. Further, the officer noted that those children were now young adults and could stay
in touch with their aunt by mail, phone or internet. Her other sister’s twins were
just four years old, and although Ms. John babysat them occasionally, she was
no longer their caregiver. Ms. John’s brother and his four children lived in Ottawa and were already separated from their aunt.
[15]
Ms.
John also served as a caregiver to a friend’s two children. She had a close
bond with those children, but was no longer their caregiver; the children were
in school. The officer noted that her friend was on permanent disability
through worker’s compensation and was seriously ill. She was also separated
from her husband, who had bipolar disorder. However, she had help from other
family members.
[16]
The
officer took into account the fact that, at present, Ms. John works as a
caregiver for two families. The children are very young and, while caregivers
are in demand, the officer noted that the children would have the support of
their parents until a new person could be found.
[17]
In
conclusion, the officer found that the hardships associated with Ms. John’s
return to Grenada were not unusual, undeserved or disproportionate.
III. Was the Officer’s
Decision Unreasonable?
[18]
Ms.
John submits that the officer’s decision was unreasonable because she failed to
take adequate account of her establishment in Canada and the negative impact
her departure would have on the best interests of a dozen (or more) children.
[19]
In
my view, Ms. John has not shown that the officer failed to be “alert, alive and
sensitive” to the best interests of the numerous children that depend on her.
For example, in the case of her friend’s children, the officer considered their
current ages and circumstances, including the ways in which the children would
be cared for in Ms. John’s absence.
[20]
Therefore,
I find that the officer was not unreasonable in determining that, in the absence
of Ms. John, the various children affected by her return to Grenada would still receive adequate care. In particular, the officer considered the best interests
of the affected children in Grenada. The officer accepted that it would be
better for those children if Ms. John continued to be employed in Canada and sent them a portion of her salary. But this was merely one factor among many to
consider.
[21]
With
respect to the issue of establishment, Ms. John submits that the officer
unreasonably discounted this evidence because it reflected the time she spent
in Canada without status. In her favour, she has been in Canada for almost a decade and has been employed steadily, mostly caring for Canadian
children. She has supported herself, as well as her family in Canada and abroad, without receipt of social assistance. She has a number of close family
members in Canada, and has been heavily involved in community, volunteer and
church activities. She has completed training and university courses, and also
has a good civil record. In part, her establishment in Canada is a consequence of her having to submit a second H&C application for reasons
beyond her control.
[22]
In
my view, the officer gave detailed consideration to Ms. John’s degree of
establishment in Canada. However, she concluded that Ms. John had not shown
that returning to Grenada would have such a significant negative impact that an
H&C exemption was merited. She also took into account Ms. John’s lack of
status noting, in particular, that she had not complied with a voluntary
departure notice.
[23]
Looking
at the evidence and the officer’s analysis as a whole, I cannot conclude that
her conclusion was unreasonable. The officer conducted an even-handed and
thorough review of Ms. John’s application. While Ms. John may dispute the
weight the officer accorded various positive and negative factors, that is not
a basis on which I can allow an application for judicial review. So long as the
officer’s decision is justified, intelligible and transparent, and falls within
the range of defensible outcomes based on the facts and the law, I must uphold
it.
IV. Conclusion and
Disposition
[24]
The
officer fully considered the best interests of the various children affected by
her decision, and took full account of the degree of Ms. John’s establishment
in Canada. Accordingly, I cannot conclude that the officer’s decision was
unreasonable in light of the evidence before her. I must, therefore, dismiss
this application for judicial review. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Email this Content