Date:
20121105
Docket:
IMM-8691-11
Citation:
2012 FC 1292
Ottawa, Ontario,
November 5, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
EUNETA ULLICA LE BLANC
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Exceptional
new circumstances in the human condition of an applicant may require a
comprehensive review of a decision that may have been fully warranted prior to
the exceptional significant change in personal situation of an applicant.
II. Introduction
[2]
The
Applicant requested an exemption on humanitarian and compassionate [H&C]
grounds under subsection 25(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] from the requirement to apply for permanent
residence from outside Canada. An Immigration Officer refused the Applicant’s
request, finding that she would not suffer unusual and undeserved or
disproportionate hardship if she had to apply for permanent residence outside
Canada.
III. Judicial Procedure
[3]
This
is an application under subsection 72(1) of the IRPA for judicial review
of the Officer’s decision, dated November 1, 2011.
IV. Background
[4]
The
Applicant, Ms. Euneta Ullica Le Blanc, a citizen of Antigua and Barbuda, was
born in 1945.
[5]
The
Applicant’s brother and niece are her only living immediate family; both are
Canadian citizens who have been resident in Canada since 1975. Her niece has
signed sponsorship documents in support of her application for permanent residence.
The Applicant’s sister, a Canadian citizen resident in Canada since 1972,
passed away in 2011.
[6]
The
Applicant was employed by a family acquaintance in Antigua as a live-in
domestic from December 2006 to October 2007; she worked as a domestic for another
employer from January 1999 to December 2006.
[7]
The
house of the Applicant’s employer suffered hurricane damage in 2007. The
employer can no longer continue to employ or accommodate the Applicant.
[8]
The
Applicant was a visitor in Canada from October 2007 until April 2008. She
returned to Antigua in April 2008, where she again lived with her employer. The
Applicant returned to Canada on December 18, 2008 and was admitted as a visitor
for six months; her visitor status was later extended to December 30, 2010. In
Canada, the Applicant lived with her sister until her sister passed away.
[9]
The
Applicant applied for permanent residence on H&C grounds on June 25, 2009.
The Officer declined the application on November 1, 2011.
[10]
The
Applicant alleges that she is no longer able to work and no longer has a
support network in Antigua. According to the Applicant, her employer was her
sole source of emotional support in Antigua and can no longer provide her with
that support. The Applicant alleges she has mental health problems and a
learning disability that makes it difficult for her to communicate. She has
not, however, supplied supporting medical documentation.
V. Decision under Review
[11]
The
Officer denied the Applicant’s request under subsection 25(1) of the IRPA
for an exemption from the requirement to apply for permanent residence from
outside Canada. The Officer found that the Applicant had not demonstrated that
denying her request would result in unusual and undeserved or disproportionate
hardship. In particular, the Officer stated that “[t]he hardship the applicant
would suffer is directly related to the application of the law” (Decision at p
4).
[12]
Although
the Officer accepted that the Applicant's only remaining family lived in
Canada, she found that the Applicant had lived separately and apart from these
relatives “for most of her life, and there is no prejudicial effect on her if
she had to be separated from her family again” (Decision at p 4). In support,
the Officer observed that the Applicant had returned to Antigua after her first
visit to Canada.
[13]
Reasoning
that the Applicant's family could support her financially while abroad, the
Officer was not persuaded by the Applicant's claim that she could not return to
Antigua “because she is unemployed and cannot take care of herself” (Decision
at p 4); the Officer noted her family pledged to support her financially in
Canada.
[14]
Noting
that the Applicant's alleged health problems did not prevent her from working
in Antigua and that she had not submitted supporting medical documentation, the
Officer assigned little weight to the Applicant's allegation of health
problems.
VI. Issue
[15]
Was
the Officer reasonable in finding that requiring the Applicant to apply for
permanent residence from outside Canada would not result in unusual and
undeserved or disproportionate hardship?
VII. Relevant Legislative
Provisions
[16]
The
following legislative provisions of the IRPA are relevant:
|
25. (1) Subject to
subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, 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.
|
25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, 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.
|
VIII. Position of the Parties
[17]
The
Applicant submits that, in an H&C application, hardship must be (i) unusual
and undeserved or (ii) disproportionate. Unusual and undeserved hardship is
hardship not anticipated by the IRPA or Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations] and resulting
from circumstances beyond an applicant’s control. Hardship not meeting the
criteria for unusual and undeserved hardship is disproportionate if refusing an
exemption requested on H&C grounds disproportionately impacts an applicant
because of personal circumstances (IP-5 Immigrant Applications in Canada made
on Humanitarian or Compassionate Grounds).
[18]
According
to the Applicant, the Officer’s statement that “[t]he hardship the applicant
would suffer is directly related to the application of the law” shows the
Officer considered unusual and undeserved hardship but not disproportionate
hardship (Decision at p 4). The Applicant cites Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 805, which holds that this is a
reviewable error and that decision-makers “cannot fail to have regard to the
applicant's personal circumstances” (para 18). The Applicant submits the
Officer only considered personal circumstances to assess unusual and undeserved
hardship.
[19]
The
Applicant argues the following personal circumstances show that refusing to
exempt her from the requirement to apply for permanent residence from outside
Canada results in disproportionate hardship: (i) the location of her only
family in Canada; (ii) her learning disability; (iii) her lack of support base
in Antigua; (iv) her family’s ability and willingness to support her
financially and emotionally.
[20]
The
Applicant argues that a letter from her sister in support of her H&C claim
was sufficient to establish that she has mental health problems and a learning
disability. The Officer, the Applicant submits, had “no reason not to believe”
the letter.
[21]
Finally,
the Applicant argues the Officer ignored evidence in concluding that requiring
her to return to Antigua would not be “prejudicial” because she “lived
separated from her family for most of her life” (Decision at p 4). The
Applicant submits that this finding ignored evidence that she had lived with
family friends for 27 years who could no longer accommodate her. The Officer’s
reasoning that her employment also showed self-sufficiency ignored evidence
that she ceased to work in April 2008 and that she lived in Antigua with a
family unable to continue accommodating her.
[22]
The
Respondent submits the decision falls within a range of possible, acceptable
outcomes defensible with respect to the evidence and applicable law. According
to the Respondent, the Applicant is in substance challenging the weight
assigned to the various factors. Consequently, he submits, there is no basis
for judicial review.
[23]
The
Respondent argues that the Applicant’s argument that the Officer failed to
consider disproportionate hardship takes a microscopic view of the decision.
The Respondent cites Ahmed v Canada (Minister of Employment and Immigration)
(1993), 156 NR 221 for the principle that reasons should not be read
“microscopically” but rather “as a whole”.
[24]
The
Respondent acknowledges that the decision states that the Applicant’s hardship
was “directly related to the application of the law” but submits that the
Officer did consider disproportionate hardship. The Respondent takes the
position that the Officer mentions disproportionate hardship several times in
the decision. Further, the Officer considered the Applicant’s personal circumstances
in relation to the disproportionate hardship test, specifically addressing her
lack of family in Antigua and family ties to Canada. The Respondent
distinguishes Kaur, above, on the basis that the decision-maker there
made no mention whatsoever of the applicant’s personal circumstances.
[25]
The
Respondent submits that the Applicant’s submissions that the Officer ignored
evidence amounts to a disagreement with the weight the Officer assigned to the
evidence in the Officer’s discretion as trier of fact. The Officer is presumed
to have considered all the evidence and need not discuss every piece of
evidence in reasons. The Respondent further observes that the Officer actually
did note that the Applicant lived with family friends who could no longer
accommodate her and that she was no longer employed.
[26]
Finally,
the Respondent submits that the Officer reasonably weighed the Applicant’s
evidence of establishment factors and alleged hardship. According to the
Respondent, the Officer was entitled to find that separating the Applicant from
her family would not have a prejudicial effect. Citing Rettegi v Canada
(Minister of Citizenship and Immigration), 2002 FCT 153, the Respondent
argues that family separation does not always rise to the level of irreparable
harm. Moreover, the Officer’s conclusion that the Applicant could be
self-sufficient in Antigua was supported by the evidence of her employment as a
domestic servant and her family’s ability to support her financially. The
Respondent also argues it was reasonable to assign little weight to the
Applicant’s alleged health problems, given the absence of medical
documentation. Evidence of her employment in Antigua entitled the Officer to
assign little weight to this particular allegation.
IX. Analysis
[27]
Whether
the Officer's finding that requiring the Applicant to apply for permanent
residence from outside Canada would not result in unusual and undeserved or
disproportionate hardship is reviewable on a reasonableness standard (Frank
v Canada (Minister of Citizenship and Immigration), 2010 FC 270).
[28]
Because
the reasonableness standard applies, the Court may only intervene if the
Board’s reasons are not justified, transparent or intelligible. To satisfy this
standard, the decision must also fall in the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[29]
The
Applicant’s submissions that the Officer considered her personal circumstances
in regard to the unusual and undeserved hardship but not disproportionate
hardship is made on the basis of a remark by the Officer that “[t]he hardship
the applicant would suffer is directly related to the application of the law”.
This essentially amounts to a challenge to the adequacy of the Officer's
reasons. The Supreme Court of Canada has, however, held that if reasons are
given, a challenge to the reasoning or result is addressed in the reasonability
analysis. According to Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708,
“reasons must be read together with the outcome and serve the purpose of
showing whether the result falls within a range of possible outcomes” (para
14). A reviewing court may not “substitute [its] own reasons” but may “look to
the record for the purpose of assessing the reasonableness of the outcome”
(para 15).
[30]
To
obtain an H&C exemption, the Applicant must show she would face “unusual,
undeserved or disproportionate hardship” if she was required to apply for
permanent residence from outside Canada (Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 11, 340 FTR 29 at para 19). Unusual
or undeserved hardship is hardship that is unanticipated by the IRPA or Regulations
which result from circumstances beyond her control. Disproportionate hardship
requires the Applicant to show that the hardship of applying for permanent
residence from outside Canada disproportionately impacts her given her personal
circumstances (para 20).
[31]
In
a significant departure from pre-existing personal circumstances, it was
unreasonable to conclude that the Applicant would not suffer disproportionate
hardship in being required to apply for personal residence from Antigua. That
is uniquely due to a fundamental change in the Applicant’s personal situation
in respect of her emotional support network in Antigua, in recognition of her
age and emotional needs as she has not lived alone at any time as reflected by
the evidence. The advanced age of the Applicant and her emotional state, even
without further medical evidence, warrants a more substantial analysis in
respect of the significant change of personal circumstances. The decision,
before this Court, was rendered in respect of previous evidence prior to the
Applicant’s personal change in circumstances (with the passage of time), which,
as yet, has not been taken into account. Furthermore, it was a supposition of a
hypothetical nature by the decision-maker to speculate that the Applicant’s
family would, in fact, provide her with the financial needs by which to sustain
herself in Antigua. (That may have been the case if she would reside with one
of them in Canada; however, that does not mean that the financial assistance,
as per the evidence, would be provided if she would leave Canada.) Therefore, a
new (or de novo) assessment is essential simply due to a transformation
in personal circumstances without provision of external circumstances which
would warrant the decision as it stands.
X. Conclusion
[32]
For
all of the above reasons, the Applicant’s application for judicial review is
granted.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for
judicial review be granted and as a result the matter is to be determined by a
different decision-maker. No question of general importance for certification.
“Michel M.J. Shore”
Email this Content