Date: 20090604
Docket: IMM-3407-08
Citation: 2009 FC 585
Ottawa, Ontario, June 4, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MAUREEN
ELAINE COBHAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[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 July 16, 2008, rejecting the applicant’s
request to be exempted on humanitarian and compassionate (H&C) grounds from
the normal requirement to apply for permanent residence from outside of Canada.
[2]
The applicant
requests that the decision be set aside and the matter referred to a different
visa officer for redetermination. The applicant also seeks the costs of these
proceedings.
Background
[3]
Maureen Elaine Cobham
(the applicant) is a widow and citizen of Barbados who has lived continuously in Canada since her arrival in 1992 on a visitor’s visa. Since then,
she has worked almost continuously as a live-in caregiver or cleaner for
different families with whom she claims to have established very close
relationships. In 1991, her then-employer submitted an application under the
Foreign Domestic Worker Program, but the application was refused.
[4]
The applicant’s
mother and half-brother live in Barbados, as do four grown children she continues
to support through regular remittances of money and goods.
[5]
In June 2004, the
applicant applied to the Minister under subsection 25(1) of the Act to be
exempted from the normal process of applying for permanent residence from
outside of Canada, on the basis of H&C factors.
According to the applicant, she qualifies as a de facto family member of
her son, grandchildren, brother, and cousin living in Canada, as well as of the families for whom she has worked over
the years. Her son, Fabien Cobham, a permanent resident, has made an
undertaking to support his mother, but it is largely symbolic as he is
ineligible to sponsor her given his annual income of $11,000.
[6]
In a letter dated
July 16, 2008, the applicant was informed that her application had been denied.
Officer’s Decision
[7]
In her reasons dated
July 14, 2008, the officer first considered whether the applicant constituted a
de facto family member of her son and his daughters, as well as her
cousin and her employer. Noting that the record included letters of support
from the applicant’s son and granddaughters, the officer acknowledged that
there was an “emotional bond between the son and mother and the grandchildren
and grandmother”. Nevertheless, she found that there was insufficient evidence
to establish that they were so “financially or emotionally dependent on each other
to the extent that it would cause unusual and undeserved or disproportionate
hardship if she had to leave Canada and apply for permanent residence in the
normal way”.
[8]
Second, the officer
examined the applicant’s establishment in Canada. She observed that the applicant had
been here 16 years and that she has been continuously employed for that period,
as indicated by the letters in the record provided by her employers, with only
a brief period of unemployment from December 2006 until April 2007. The officer
acknowledged that the applicant had taken steps to upgrade her skills, earning
a high school diploma from the International Correspondence Schools in August
1996 and a diploma as a Natural Health Consultant in November 2003, and
completing a course at the Klara Johnson School of Cake Decorating. In
addition, the officer found that she had never been on social assistance, and
had regularly sent money and goods to Barbados to assist her family. Nonetheless, she
concluded at page six of the decision:
I
have considered the length of time the applicant has been in Canada and during
this time it is expected that a certain level of establishment has occurred,
however this in and of itself does not amount to the applicant facing unusual
and undeserved or disproportionate hardship if she were required to apply from
outside Canada.
[9]
Next, the officer
considered the potential hardship facing the applicant were she to return to Barbados to apply for permanent residence. The officer rejected the
applicant’s claim that she would suffer hardship because her relatives in Barbados were unable to support her, finding that she has not
provided any evidence to substantiate this claim. Moreover, the officer
observed that the applicant, who has been working for the past 16 years in
Canada and has proven she is industrious, resourceful and motivated, had not
shown that she could not use her skills to support herself in Barbados.
[10]
Finally, the officer
dismissed as mere speculation the applicant’s claim that her return to Barbados meant, in effect, that she was unlikely to ever return to Canada either as a visitor or as a permanent resident, given her
particular circumstances. The officer also found that such a question was
beyond the scope of her assessment.
Issues
[11]
The applicant raises
the following issues:
1. What
is the appropriate standard of review?
2. Did
the officer fetter her discretion in the assessment of hardship by failing to
take into account the fact that the applicant’s H&C application is her only
viable option for immigration to and remaining in Canada?
3. Did
the officer err in law by failing to provide sufficient reasons for the
conclusions she has drawn in the process of assessing the applicant’s permanent
residence application?
Applicant’s Submissions
[12]
At paragraph 12 of
her memorandum, the applicant sets out what appears to be one of the branches of
her argument:
[I]f
forced to return to Barbados, there would be no realistic way of the Applicant
being ever reunited with her family members in Canada, since, as already
explained, the Applicant’s son could not sponsor her and she could not apply
for a visa on her own, as she does not meet the selection criteria for Skilled
Workers.
[13]
This situation, it is
argued, presents a form of hardship that the officer was bound to consider in
her analysis. The applicant puts it this way:
[I]f
the Officer is considering what hardship results from having to apply outside
of Canada, isn’t it a rather obvious relevant factor whether the person can
apply outside Canada to begin with?
[14]
According to the
applicant, given her advanced age and low educational achievement, she would
not meet the minimum criteria for permanent residence as a skilled worker. And
given the requirement in sections 179 and 183 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (Regulations) that it be established
that a prospective visa holder will leave Canada by the end of the period
authorized for their stay, it is also very unlikely that she would ever be
granted a visitor’s visa, having overstayed her previous visa by over a decade.
The applicant argues:
In
short, the Officer failed to consider and comprehend the simple fact that this
was the Applicant’s only route of becoming a Permanent Resident of Canada and
remaining here with her extensive family.
[15]
The second branch of
the applicant’s argument is her claim that the officer’s reasons are not adequate
because they fail to explain why the applicant did not meet the definition of a
de facto family member, and why her degree of establishment would not
place her in a situation of unusual, undeserved or disproportionate hardship.
The applicant argues that the officer failed to comply with section 9.3 of the
Minister’s guidelines for in-land processing of permanent residence
applications (IP-5), which directs officers in recording their reasons to,
“Explain the thought process behind the decision. Make no assumptions; fill in
the gap between the facts listed and the decision”. At paragraph 26 of her
submissions, the applicant writes:
The
reasons merely consist of a review of the relevant facts of this case and the
ultimate conclusion that given these circumstances, an exemption is not
warranted. No inherent line of reasoning is to be found anywhere in this
“decision”.
In
other words:
…
The Officer’s decision, in short, amounts to a mere restatement of the relevant
facts of this case and her ultimate conclusion, without any line of reasoning
at all demonstrating how the Officer arrived at such conclusion.
[Emphasis
in original]
[16]
As a result, the
applicant argues, it is impossible to decipher why the officer concluded as she
did on important elements of the claim.
Respondent’s Submissions
[17]
The respondent
emphasizes, in written submissions, that the exemption available under
subsection 25(1) of the Act is both exceptional and discretionary. The
respondent reminds the Court that the onus is on the applicant to bring forth
all the necessary evidence to make her case and argues that this is a case
where she simply failed to so.
[18]
The respondent notes
that hardship must consist of more than the mere inconvenience or predictable
costs associate with leaving Canada:
That
an applicant must sell a house or car or leave a job or family is not necessarily
undue hardship; rather it is a consequence of the risk that the applicant took
by staying in Canada without landing.
[19]
According to the
respondent, the applicant has not demonstrated that the officer made a material
error in relation to any of the findings; she merely disagrees with the
assessment.
[20]
With respect to the
argument that an exercise of discretion under section 25 of the Act provides
the only means by which the applicant could remain in Canada, the Minister responds at paragraph 28 of the submissions:
The
Applicant argues that the Officer fettered her discretion in failing to take
into account the H & C application was her only option for immigrating or
remaining in Canada. The Respondent categorically rejects
this argument as unfounded and without regard [to] the decision of the officer.
In essence what the Applicant argues is that she should benefit from her long
time illegal status in Canada and that this somehow entitled her to
remain as a result. This cannot be the case. The Applicant has been fully aware
that she has been living and working illegally in Canada since her arrival. She has, it would seem, been underground
hiding from immigration authorities but now wants to benefit from her actions. This
is inconsistent with the objectives of IRPA. Moreover, it is submitted that the
Officer was clearly aware of the argument advanced by the Applicant in relation
to her speculation in relation to consideration under another section of the
Act….
[21]
The respondent also
disagrees that the officer’s reasons are inadequate. Instead of merely listing
factors and stating a conclusion as alleged by the applicant, the officer
addressed the grounds and made reasonable findings with respect to each as to
why they were not compelling enough to justify an exemption on H&C grounds.
Applicant’s Reply
[22]
The applicant, in her
reply, reiterates that the officer’s conclusions on key points are
unreasonable, and fall short of being justified, transparent and intelligible,
as required by Dunsmuir v. New
Brunswick, [2008]
S.C.J. No. 9, 2008 SCC 9, at paragraph 47.
Analysis and Decision
[23]
Issue 1
What
is the appropriate standard of review?
Generally
speaking, decisions of immigration officers are reviewed on a standard of reasonableness.
However, where the issue is the sufficiency of the reasons, the standard is
correctness.
[24]
I wish now to deal
with Issue 3.
[25]
Issue 3
Did
the officer err in law by failing to provide sufficient reasons for the
conclusions she has drawn in the process of assessing the applicant’s permanent
residence application?
The
officer’ analysis with respect to the applicant’s establishment does not seem
to contain any explanation for the conclusion she reached. After summarizing
the evidence, the officer ended the first paragraph on page 6 of her reasons
with the following statement:
I
have considered the length of time the applicant has been in Canada and during
this time it is expected that a certain level of establishment has occurred,
however this in and of itself does not amount to the applicant facing unusual
and undeserved or disproportionate hardship if she were required to apply from
outside Canada.
[26]
The respondent argues
that the officer was entitled to come to this conclusion because the fact that
“an Applicant must sell a house or car or leave a job or family is not
necessarily undue hardship; rather it is a consequence of the risk that the
Applicant took by staying in Canada without landing”. What is at issue here,
however, is not the correctness of the conclusion, but the adequacy of its
justification. I agree with the applicant that it is impossible to decipher on
what basis the officer concluded as she did, in view of the evidence. Madam Justice
Mactavish’s statement at paragraph 14 of Adu v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 693, 2005 FC 565 applies
equally here:
In
my view, these ‘reasons’ are not really reasons at all, essentially consisting
of a review of the facts and the statement of a conclusion, without any
analysis to back it up. That is, the officer simply reviewed the positive
factors militating in favour of granting the application, concluding that, in
her view, these factors were not sufficient to justify the granting of an
exemption, without any explanation as to why that is. This is not sufficient,
as it leaves the applicants in the unenviable position of not knowing why their
application was rejected.
(See
also Kim v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1399, at paragraph 24;
Aleman v. Canada (Minister of Citizenship and Immigration.), [2004]
F.C.J. No. 293, at paragraphs 38 to 41; Jasim v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1290; Via Rail Canada
Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25 (C.A.), at
paragraphs 21 and 22.)
[27]
I am of the view that
the applicant’s degree of establishment is an important factor in this case and
therefore, the inadequacy of the reasons on this point bear on the fairness of
the overall decision.
[28]
The application for
judicial review must be allowed and the matter referred to a different officer
for redetermination.
[29]
Because of my finding
on this point, I will not deal with the other matters in issue.
[30]
Neither party wished
to submit a proposed serious question of general importance for my
consideration for certification.
[31]
Section 22 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, governs cost
awards in immigration matters:
22. No costs shall be awarded to or
payable by any party in respect of an application for leave, an application for
judicial review or an appeal under these Rules unless the Court, for special
reasons, so orders.
There
are no special reasons to order costs in this matter.
JUDGMENT
[32]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for redetermination and there shall
be no order for costs.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The
following provisions of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27 are
pertinent:
|
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
[…]
|
11. (1) L’étranger doit, préalablement à
son entrée au Canada, demander à l’agent les visa et autres documents requis
par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
[…]
|
|
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.
|
Email this Content