Date: 20090416
Docket: IMM-2692-08
Citation: 2009 FC 377
Ottawa, Ontario, this 16th
day of April 2009
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
STEPAN LYLAK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of an immigration
officer’s decision, dated June 3, 2008, regarding the applicant’s humanitarian
and compassionate (“H&C”) application.
[2]
The
applicant submits that the immigration officer committed a reviewable error in
the assessment of his inland H&C application.
[3]
Immigration
officers exercising the powers conferred on them by section 25 of the Act are owed
considerable deference (Baker v. Canada (M.C.I.), [1999] 2
S.C.R. 817, at paragraph 62). Their decisions should not be disturbed unless
they are unreasonable
(Rai v. Canada (M.C.I.), [2007] F.C.J. No. 12
(T.D.) (QL), 2007 FC 12, 305 F.T.R. 135, 154
A.C.W.S. (3d) 932, at paragraphs 32 and 33).
[4]
Before
me, the applicant leveraged four arguments in support of his position. First,
the applicant argued that the officer failed to consider the psychological
hardship of leaving behind his position in the Ukrainian Catholic Church, which
had become a “core part of his religious and personal identity”.
[5]
Second,
the applicant claimed the officer erred in her assessment of his relationship
with his aunt, by failing to take due account of the affidavits sworn by her
attesting to its details.
[6]
Third,
the applicant contended that there was a denial of natural justice in so far as
the officer did not express any problem with an “illegible” medical note prior
to making a decision, and thus did not provide an opportunity for the applicant
to respond with more satisfactory evidence.
[7]
Finally,
the applicant claimed that the officer ignored the
financial hardship that he would suffer as a 55-year-old man who had lived
outside his country of origin for ten years. Moreover, the officer is said to
have unfairly and improperly discounted the applicant’s financial establishment
in Canada, simply because there was a removal order in effect during the
period of his employment.
[8]
After
reviewing the record, I am concerned that the immigration officer failed to
treat adequately the question of the applicant’s establishment, in particular
his apparently deep involvement with his community. The officer recognizes the
applicant has strong ties to the Ukrainian community in Toronto, and particularly to
the Ukrainian Catholic community, writing at page 3 of her decision:
The
applicant is a deacon and serves the community through his church, Holy
Protection of the Mother of God Ukrainian Catholic Church. I note letters from
the church and its parishioners expressing their support for the applicant and
their concern about the viability of their church if the applicant were to
leave Canada.
[9]
These
statements are not followed by analysis, but rather by speculation that the
applicant is now “eligible to apply for permanent residence from outside Canada through the economic
class”. While this may or may not be true, it does not address the issue of his
establishment in Canada, and the hardship that
might consequently be engendered were he obliged to apply from abroad. I note,
for instance, a letter in the record from Nina Chyz, Administrator for the
Assumption of the Blessed Virgin Mary Church, dated September 4, 2003, wherein
she writes:
To
the parish and the community the work performed by STEPAN LYLAK is
indispensable. STEPAN has performed all his duties with great professionalism,
displaying good judgment, dependability and a willingness to work with others.
The
Church of the Assumption of the Blessed Virgin Mary is in need of a deacon and
cantor who is familiar with the Byzantine rites, is fluent in the written and
spoken Ukrainian language and has extensive knowledge of Church music.
Since
STEPAN LYLAK meets all the requirements of our Church it is recommended that he
be allowed to remain and continue to perform his indispensable duties at our
Parish. His services are urgently required.
[10]
Similarly,
a letter from Stephen Chmilar of the Ukrainian Catholic Eparchy of Toronto
discloses:
Our
Church is suffering from a decline in attendance as a result of aging
population and lack of spiritual guidance given to parishioners in small
communities. Deacon Stepan has been an intricial [sic] member of this
parish and has contributed over the past several years to help this parish
grow. In addition, Deacon Stepan volunteers his time assisting elderly members
of this parish community. His removal from Canada
would seriously affect the viability of our parish in Guelph.
[11]
These
letters suggest a degree of integration that warranted treatment in the immigration
officer’s reasons. Failure to duly consider this aspect of his establishment,
in my view, amounts to an error on the part of the officer.
[12]
I
also find that the officer’s statements that there was before her insufficient
evidence regarding the relationship between the applicant and his aunt in no
clear way take account of affidavits submitted by the aunt, Irena Jarish. In an
affidavit sworn by her October 21, 2004, Mrs. Jarish writes that she is “a
widow; my husband passed away in 1990. I do not have any children and I have no
other family members in Canada”. Later, at paragraph
10, she adds:
Today,
Stepan is a son to me. He is the only person I can rely on in Canada. He takes me to the Doctor when I need assistance. I have
skin problems that cause rashes and itches, and he massages and treats them. He
washes my hair, he irons my clothes, he cooks for me, and generally helps me
with anything which I require.
[13]
At
paragraph 13, she continues: “On Monday, October 24, 2004 I have to go for
minor surgery and Stepan will be there with me. I have no one else to take me
there, and to look after me during that whole procedure”.
[14]
Similar
statements are found in her affidavit of May 30, 2007, where she also explains
that she suffers from “serious arthritis” that hinders her from shopping for
herself, walking or standing for any length of time. She also writes that
“[w]ithout Stepan, I will be forced to move into a Retirement home, as I will
not be able to care for myself”. Reading these submissions, it is not easy to
determine on what basis the officer concluded, without further explanation,
that there was “insufficient” evidence of their relationship, her condition,
and her dependence.
[15]
Overall,
I find that the officer’s reasons provide an inadequate foundation for the
findings they support. This is not a comment on the merits of Mr. Lylak’s
application, but rather on an officer’s duty to address material evidence in
the record in such a way that the decision rendered has the hallmarks of
reasonableness – namely, “justification, transparency and intelligibility” (Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, at paragraph 47).
[16]
For
all the above reasons, the application for judicial review is granted and the
matter is sent back for re-determination by a different immigration officer,
with a view to an expedient result given that the initial application was made
more than five years ago.
JUDGMENT
The application for judicial
review is granted. The immigration officer’s negative decision, dated June 3,
2008, regarding the applicant’s humanitarian and compassionate application is
dismissed and the matter is sent back for re-determination by a different immigration
officer, with a view to an expedient result given that the initial application
was made more than five years ago.
“Yvon
Pinard”
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