Date: 20071217
Docket: IMM-4902-06
Citation: 2007 FC 1326
Ottawa, Ontario, December 17,
2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
XIAO
PING HOU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Hou is a Pakistani citizen of
Chinese ethnicity. Her parents and siblings have all immigrated to Canada, with
her siblings becoming Canadian citizens, and she has no family remaining in Pakistan. Ms.
Hou runs a financially successful hair salon in her home, but claims that life
is otherwise very difficult as a non-Muslim woman living alone in Pakistan.
[2]
A first application for permanent
residence with the sponsorship of her family, in late 2004, was refused as she
did not meet the requirements of the family class. Ms. Hou had also requested
consideration for an exemption from the visa requirements under section 25 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA on humanitarian
and compassionate (H&C) grounds but that had been overlooked. An
application for judicial review of the first refusal was settled on the
understanding that she could submit a fresh H&C application. This judicial
review proceeding stems from the refusal of the second application. At the close
of the hearing, I advised counsel that I would allow the application and
provided brief oral reasons which I will now provide in writing with citations.
ISSUE:
[3]
The
only significant issue on this application was whether the Officer erred in failing to consider appropriate
factors on an application for an exemption on humanitarian and compassionate
grounds brought from outside Canada.
ANALYSIS:
[4]
The standard of review of H&C
decisions is well established as reasonableness simpliciter: Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
[1999] S.C.J. No. 39 (QL), at paragraphs 57-62, Yu v. Canada (Minister of Citizenship and Immigration), 2006 FC 956, [2006] F.C.J. No. 1217, Dang v.
Canada (Minister of Citizenship and Immigration), 2007 FC 290, [2007]
F.C.J. No. 363.
[5]
Humanitarian
and compassionate grounds are considered pursuant to section 25 of IRPA, which
reads as follows:
|
25. (1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet
the requirements of this Act, and may, on the Minister’s own initiative,
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 interdit de territoire ou qui ne se conforme pas à la présente
loi, et peut, de sa propre initiative, 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.
|
[6]
In
considering applications under section 25, immigration officers have guidelines
provided in the form of Manuals by Citizenship and Immigration Canada. The
Manual relevant to Ms. Hou’s application is Overseas Processing Policy Manual OP4 - Processing of Applications under
Section 25 of the IRPA. Section 8.3 of Manual OP4, dealing with
H&C considerations for family class applicants “describe[s] some situations
where positive consideration might be warranted.” It notes, however, that
officers “cannot be restricted by guidelines; they are obliged to consider all
the information they have.”
[7]
One
of the categories laid out in section 8.3 is de facto family members;
those who do not meet the eligibility requirement for the family class as such,
but are in a sufficient state of dependence as to render them de facto
members of a nuclear family in Canada. Specifically listed in the examples of
those who might be de facto family members is a brother or sister left
alone in the country of origin without family of their own.
[8]
Ms.
Hou’s situation fits the description laid out in section 8.3 of Manual OP4, and
her case should have been considered under those guidelines. Factors listed for
consideration in the Manual are:
• whether dependency is bona fide
and not created for immigration purposes;
• the level of dependency;
• the stability of the
relationship;
• the length of the relationship;
• the impact of a separation;
• the financial and emotional
needs of the applicant in relation to the family unit;
• ability and willingness of the
family in Canada to provide support;
• applicant's other alternatives,
such as family (spouse, children, parents, siblings, etc.) outside Canada able
and willing to provide support;
• documentary evidence about the
relationship (e.g., joint bank accounts or real estate holdings, other joint
property ownership, wills, insurance policies, letters from friends and family);
• any other factors that are
believed to be relevant to the H&C decision.
(emphasis added)
[9]
There
is no indication in the computerized (“CAIPS”) notes, which serve as the reasons
for decision in this case, that the Officer considered Ms. Hou’s evidence in
the context of these factors. The Officer referred in his decision to the
reasonableness of Ms Hou’s fears, his assessment of whether she suffers
persecution, the possibility of her moving to another location within Pakistan and whether
there were sufficient reasons to overcome her lack of points. While these may
have been relevant to a refugee determination or application for a visa as a
skilled worker, they were not material to the H&C application before the
officer. He did not address any of the factors which had been advanced as
favouring her application.
[10]
The Minister is not bound by
policy directives, as noted by Justice Michel M.J. Shore in Yu,
above. However, it is generally accepted that discretion should be exercised
within the context of the stated purpose of the statutory instrument and the
Ministerial guidelines: Baker, above, at paragraph 67.
[11]
One of the objectives of IRPA, as
set out in section 3.(1)(d), is “to see
that families are reunited in Canada”. The level of
family dependency and personal isolation is one of the factors which should be considered,
although it is not a determinative factor: Samaroo v. Canada
(Minister of Citizenship and Immigration), 2007 FC 292, [2007] F.C.J. No. 376. It, and the other factors as set
out in the Manual and the objectives of IRPA, should collectively be considered
by an immigration officer in a case like this. It does not appear that the
Officer in the instant case took the appropriate factors into account when
coming to his decision.
[12]
Accordingly,
this application for judicial review is allowed. Ms. Hou’s sponsored application
for permanent residency in the family class category on H&C grounds will be
reconsidered by a different Immigration Officer. No questions were proposed
for certification.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the
application is allowed and the matter remitted for reconsideration by another
officer in accordance with these reasons. No questions are certified.
“Richard
G. Mosley”
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