Date: 20091119
Docket: IMM-1249-09
Citation: 2009 FC 1193
Toronto, Ontario, November 19, 2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
ELOISE
VERONICA ADAMS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
judgment concerns an application submitted by Eloise Veronica Adams (the “Applicant”),
seeking judicial review of a decision dated March 3, 2009 from an Immigration
Officer acting for the Minister of Citizenship and Immigration (the “Minister”)
and refusing her application for permanent residence from within Canada on
humanitarian and compassionate grounds.
Background
[2]
The
Applicant was born in St. Vincent on June 19, 1978 and arrived in Canada as a visitor on July 30,
1999. She has been living in Canada ever since.
[3]
In April
of 2005, she submitted an application for permanent residence from within Canada on humanitarian and
compassionate grounds which was updated and supplemented in January of 2008. In
her updated application, the Applicant stated she had no familial links in St. Vincent. She has had no contact with
her mother in St. Vincent. Further, an elderly friend whom the Applicant was
previously living with in St.
Vincent has since
passed away. She claimed that the only family she has is her sister Alisha and
her two nephews living in Canada with her. She also claimed
strong support from her cousin also living in Canada. Finally she claimed a close
relationship with the children of the family where she works as a nanny-housekeeper.
She also carried out some volunteer work for the Salvation Army and she is a
member of a local church.
The Decision
[4]
In the
March 3, 2009 decision rejecting the application, the Immigration Officer, in
stating the facts, noted that the Applicant had referred to another pending
application on humanitarian and compassionate grounds submitted by her sister,
and added that a “further query indicates that applicant’s sister is in Canada
without status and currently under a removal order”.
[5]
The
Immigration Officer further noted that there was insufficient evidence to
indicate that the Applicant could not maintain a relationship with her family
in Canada if she were to return to St. Vincent and concluded that the hardships
that would inevitably arise due to separation from family and friends in Canada would not be unusual and
undeserved or disproportionate hardship.
[6]
The
Immigration Officer considered the best interests of the Applicant’s two
Canadian born nephews. Though he recognized that a close relationship can be
formed between individuals who reside in the same household, he noted that
there was insufficient evidence to show the level of dependency the nephews
have with the Applicant or her involvement in their daily lives. He concluded
that there was insufficient evidence to suggest that any hardship would be
encountered by the Applicant or her nephews if she was required to leave Canada.
[7]
Finally,
the Immigration Officer considered the establishment of the Applicant in Canada. He recognized that she had
indeed established herself here, but he was of the view that there was
insufficient evidence to show that she had reached a level of integration and
establishment in Canada such as to warrant a positive
exemption on humanitarian or compassionate grounds.
Position of the parties
[8]
The first
argument of the Applicant was that the Immigration Officer improperly relied on
the negative information he gathered from her sister’s application,
specifically the fact that her sister was under a removal order, and used this
information in considering the Applicant’s own application on humanitarian and
compassionate grounds. It was claimed that this constituted a denial of
procedural fairness. The Applicant argued that she should have been notified of
the fact that the officer was going to rely on her sister’s application and
also given an opportunity to respond to this new information.
[9]
The
Applicant also argued that, taken overall, the decision was not reasonable. The
Applicant specifically argued that it was particularly unreasonable for the
officer to state that she had not established herself in Canada in light of the findings that
she was stably employed here, was involved in community organizations, had
carried out some studies here and had a good civil record.
[10]
For his
part, the Minister argued that the Applicant bears the onus of satisfying the
decision maker that her personal circumstances are such that the hardship of
having to obtain a permanent resident visa from outside Canada would be either unusual or
undeserved or disproportionate hardship. She did not convince the Immigration
Officer. The decision of the Immigration Officer is entitled to deference, and
this Court should not intervene if the officer considered the relevant factors.
[11]
The Minister
further argued that the Immigration Officer had considered the relevant
factors, including the degree of establishment in Canada, the family ties in Canada and in St. Vincent and the best interests of the
Applicant’s nephews. It is not thus open for this Court to substitute its own
opinion to the decision of the Immigration Officer.
[12]
Concerning
the procedural fairness argument raised by the Applicant, the Minister noted
that it was the Applicant herself who raised the residence of her sister in
Canada as a factor in her application, and she had clearly indicated in her
original application that her sister was without immigration status in Canada
awaiting the results of a pending application on humanitarian and compassionate
grounds. It was therefore appropriate for the Immigration Officer to verify
this information. There is therefore no issue of extrinsic evidence in this
case.
The legislation
[13]
Subsection
25(1) of the Immigration and Refugee Protection Act (the “Act”) reads as
follows:
|
25. (1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or 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 obligation of this Act
if the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
|
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, de sa propre initiative ou sur demande d’un
étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut
lui octroyer le statut de résident permanent ou lever tout ou partie des
critères et obligations applicables, s’il estime que des circonstances
d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt
supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
|
Standard of review
[14]
Reasonableness
is the appropriate standard of review for a decision concerning an application
for permanent residence from within Canada
on humanitarian and compassionate grounds. As noted by the Federal Court of
Appeal in Kisana v. Canada (Minister of Citizenship and
Immigration),
2009 FCA 189, [2009] F.C.J. No. 713 at para. 18:
It is unnecessary to engage in a full
standard of review analysis where the appropriate standard of review is already
settled by previous jurisprudence (see: Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190,
2008 SCC 9, at para.
62). The parties agree that the standard of review to be applied to an H&C
decision is reasonableness. This standard is supported by both pre- and post-Dunsmuir cases (see: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817;
Thandal v. Canada (Minister of Citizenship and Immigration),
2008 FC 489; Gill v. Canada (Minister of Citizenship and Immigration), 2008 FC 613, (2008), 73 Imm.L.R. (3d) 1).
[15]
On the other hand,
both Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 and Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 at para. 43, state that procedural fairness issues
(subject to competent legislative override) are to be determined by a court on
the basis of a correctness standard of review. This approach has been applied where
procedural fairness issues are raised in proceedings involving applications for
permanent residence within Canada on humanitarian and compassionate
grounds: see, inter alia, Buio v. Canada (Minister of Citizenship
and Immigration),
2007 FC 157, [2007] F.C.J. No. 205 at para. 16.
Analysis
[16]
The Applicant has
essentially raised two issues, one of procedural fairness based on alleged
reliance by the Immigration Officer on the removal order against the
Applicant’s sister, the other based on the alleged unreasonableness of the
decision taken as a whole.
[17]
I will first decide
the procedural fairness issue. Counsel for both the Applicant and the Minister
were of the view that this issue should be reviewed on a standard of
correctness.
The
procedural fairness argument
[18]
In this case, the Immigration
Officer reviewed the pertinent facts which had been submitted by the Applicant,
including the fact that the Applicant had stated that her sister was without
status and had also submitted an application for permanent residence from within Canada on humanitarian and
compassionate grounds. The Applicant does not take offence with the fact that the
Immigration Officer verified these facts, but rather that he did not notify her
and give her an opportunity to respond when he discovered that her sister was
the subject of a removal order, a fact she herself was not aware of until she
read the decision refusing her own application.
[19]
The Applicant fears
that the officer proceeded with a review of some or of the entire immigration
file of her sister, and may have based his decision in the Applicant’s case on
information contained in her sister’s file. Since the Immigration Officer did
not submit an affidavit stating what information he took into account in the
sister’s file, the Applicant has no way of knowing what additional information
was reviewed by the officer. At the very least, the officer took into account
the removal order against the sister without informing the Applicant of this
fact and giving her an opportunity to make representations on this matter.
This, for the Applicant, constitutes a breach of procedural fairness. The
Applicant contends that the Court needs to send a strong message to immigration
officers that if they are to use information contained in third party files in
making decisions, they must inform the affected applicants of the facts they
intend to rely upon in order to allow proper representations to be made on
these facts.
[20]
To support this
position, the Applicant relies on three decisions: Batiste v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1382, [2006] F.C.J. No. 1751; Batica v. Canada (Minister of Citizenship and
Immigration),
2006 FC 762, [2006] F.C.J. No. 951; and Level v. Canada (Minister of Public Safety
and Emergency Preparedness,
2008 FC 227, [2008] F.C. J. No. 297. Though these decisions correctly state the
law concerning the use of extrinsic evidence in administrative decision making
related to immigration, the facts in these decisions have little bearing on
this case. Indeed, in Batiste,
supra at paras. 12, 16 and 21, the extrinsic evidence at issue was said
to be “most significant”, and “central” to the impugned decision. Likewise, in Batica
and Level, the extrinsic evidence at stake was also a key factor in the
decisions. As discussed below, this is not the case here.
[21]
It is trite law that
the content of procedural fairness is variable and contextual, and must be
decided in the context of each case (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at para. 21). At the heart of the
matter is whether, considering all the circumstances, those whose interests
were affected had a meaningful opportunity to present their case fully and
fairly (Baker, supra at para. 30). Relief in cases involving
procedural fairness claims is governed by common law principles, including the
withholding of relief when the procedural error is purely technical and
occasions no substantial wrong or miscarriage of justice (Khosa, supra
at para. 43).
[22]
The guiding cases in
the matter of the use of extrinsic evidence in administrative decisions related
to immigration are Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.) and Haghighi v. Canada (Minister
of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A). Both of these
cases found a breach of procedural fairness where meaningful facts essential or
potentially crucial to the decision had been used to support an administrative
decision without providing an opportunity to the affected party to respond to
or comment upon these facts. Indeed, in Muliadi, supra at p. 214,
the concerned facts were “of crucial importance in the visa officer’s
decision”, and likewise in Haghighi, supra at para. 37, the risk
assessment reports at issue were found to be “apt to play a crucial role in the
final decision”.
[23]
In this case, the
alleged extrinsic evidence concerns a removal order against the Applicant’s
sister. The following extracts from the Immigrations Officer’s decision are
referred to by the Applicant to make her point:
“Submissions
indicate that applicant’s sister has a pending application for permanent
residence in Canada under humanitarian and compassionate
grounds. A further query indicates that applicant’s sister is in Canada without status and currently under a removal order. […]
There is also no guarantee that her sister’s application for permanent
residence from within Canada will receive a positive decision.”
[24]
These statements are
entirely factual and flow from the very terms of the Applicant’s application
for consideration on humanitarian and compassionate grounds. Indeed, in her
original application in April 2005, the Applicant noted that she was living
with her sister and declared the following in regard to her sister’s status:
“no status-H&C application in process” (page 78 of decision record).
Moreover, this application was accompanied by a letter from an immigration
consultant dated April 4, 2005 which indicated the following: “Eloise [the
Applicant] is currently living with her sister Ms. Alisha Adams who has also
filed a Humanitarian and Compassionate application and her two nephews born in Canada” (page 74 of decision record).
[25]
Consequently, the
facts that the Applicant’s sister has a pending application for permanent
residence in Canada under humanitarian and compassionate grounds, is without
status in Canada and that there is no guarantee that her
sister’s application will receive a positive decision are all entirely based on
information provided by or on behalf of the Applicant or flow from such
information. The Immigration Officer verified and updated this information as
he is entitled to do. It would have been inappropriate for the Immigration
Officer not to verify the facts submitted by the Applicant. This update also
indicated that the Applicant’s sister was under a removal order. Since the
Applicant herself referred to her sister’s application, she had to expect that
the immigration authorities would verify the status of that application. I see
nothing wrong with the Immigration Officer proceeding as he did.
[26]
There is indeed no
evidence in the file suggesting that the Immigration Officer used the removal
order against the sister as the basis for the decision to deny the Applicant’s
own application. In such circumstances, the reference to this removal order by
the Immigration Officer in the decision can only be viewed as a simple
statement of fact in updating the information which had been initially relied
upon by the Applicant herself. Consequently, no duty of procedural fairness
arises here.
[27]
I further reject the
Applicant’s argument that the Immigration Officer may have used other
information contained in the sister’s application to assess and deny the
Applicant’s own application. Again, there is nothing in the decision itself or
in any of the documents submitted which shows that this was the case. I am
unwilling to impute irregular motives to the Immigration Officer in the absence
of evidence to the contrary.
[28]
My decision may have
been different had it been established that the Immigration Officer had relied
on information contained in another immigration file in order to reach the
decision in this case without notifying the Applicant. However no evidence was
submitted substantiating such a claim.
The
reasonableness of the decision taken as a whole
[29]
In the context of an
application for
permanent residence from within Canada on humanitarian and compassionate
grounds, it has been consistently held that the onus of establishing that the
exemption is warranted lies with the applicant, and that an Immigration Officer
is under no duty to highlight weaknesses in an application and to request
further submissions: Kisana, supra at para. 45; Thandal v. Canada (Minister of Citizenship and
Immigration),
2008 FC 489, [2008] F.C.J. No. 623 at para. 9.
[30]
Moreover, an
exemption under subsection 25(1) of the Act is an exceptional and discretionary
remedy: Legault v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 125, [2002] F.C.J. No.457 at para. 15; Abdirisaq v. Canada (Minister of Citizenship and
Immigration),
2009 FC 300, [2009] F.C.J. No.377 at para. 3; Kawtharani v. Canada (Minister of Citizenship and
Immigration),
2006 FC 162, [2006] F.C.J. No. 220 at para. 15; Serda v. Canada (Minister of Citizenship and
Immigration),
2006 FC 356, [2006] F.C.J. No. 425 at para. 20.
[31]
Finally, it is
clearly the responsibility of the Minister or his delegate to assess the
relevant factors and to determine the weight to be given to each factor in the
circumstances of each case: Legault v. Canada (Minister of Citizenship and
Immigration), supra
at para. 11; Suresh v. Canada (Minister of Citizenship and Immigration, [2002] 1 S.C.R. 3 at para. 34.
[32]
In this case, the
Immigration Officer reviewed the familial and personal ties of the Applicant to
Canada and to St. Vincent, and based on the
facts before him, he did not find that unusual and undeserved or
disproportionate hardships would arise from returning the Applicant to St.
Vincent. He also considered the interests of the Applicant’s nephews and noted
that there was insufficient evidence provided to suggest any form of hardship
should the Applicant be required to leave Canada. It is useful to note in this respect
that neither the Applicant’s sister not her nephews submitted any documentation
to support these hardship claims. The Immigration Officer also found that there
was insufficient evidence to indicate the Applicant would not be able to
re-establish herself in St.
Vincent.
[33]
Finally, the
Immigration Officer found insufficient evidence to show that the Applicant had
established herself in Canada to a level sufficient to warrant a
positive exemption under humanitarian or compassionate grounds. The Applicant
took particular exception to this finding since the Immigration Officer had
found that she had been employed in Canada for many years, had enrolled in courses,
and had volunteered in community organizations. In light of these findings, the
Applicant argued that the officer’s decision on this matter was particularly
unreasonable.
[34]
In this regard, as
noted above, the exemption under subsection 25(1) of the Act is an exceptional
remedy that should not become an alternative means to secure permanent
residence status unless humanitarian and compassionate grounds are found to
justify this remedy. Simply being employed in Canada
and acting as a responsible citizen is not sufficient, and other factors must
be present justifying humanitarian and compassionate grounds. Moreover, as
already noted, the assessment of the evidence and the weight given to each
factor in an application based on humanitarian and compassionate grounds are
matters which properly belong to the Minister. This Court may have assessed the
evidence differently or given more weight to some of the factors, however this
is not its mandate.
[35]
In light of the
above, the decision of the Immigration Officer in this case “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir, supra at para. 47).
Disposition
[36]
Consequently the
application for judicial review shall be denied.
Certified question
[37]
At the hearing the
parties requested an opportunity to make submissions on a certified question
once this decision was communicated to them. Each party shall have until Monday
November 30th, 2009 to propose in writing to the Court, if deemed
appropriate, a serious question of general importance to be considered for
certification pursuant to paragraph 74(d) of the Act.
JUDGMENT
THE COURT JUDGES AND DECIDES that the application for judicial review is
denied.
“Robert
M. Mainville”
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