Date: 20071217
Docket: IMM-2429-07
Citation: 2007 FC 1315
Ottawa, Ontario, December 17, 2007
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ARNOLD AYODELE GEORGE
PAMELA ADEKULE GEORGE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a humanitarian and compassionate (H&C)
decision, dated April 27, 2007, wherein the Immigration Officer (the Officer) determined that
there were insufficient H&C grounds upon which to exempt the applicants
from subsection 11(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act), which requires the applicants to apply for
permanent resident status from outside of Canada.
ISSUES
[2]
Only
one issue is raised by the case at bar: did the Officer commit a reviewable
error by misapprehending or misconstruing the evidence before her?
FACTUAL BACKGROUND
[3]
The
principal applicant and his wife are citizens of Sierra Leone, born on September
24, 1929 and June 10, 1942, respectively. The applicants fled Sierra Leone in 2003 to
escape the continuing civil war and the fear of crime. They entered Canada on March 18,
2003, using visitors’ visas, in order to visit their daughter. They obtained
extensions of their visas on November 5, 2003.
[4]
On
January 15, 2004, the applicants filed a refugee claim, which was subsequently
denied. The decision was judicially reviewed and dismissed by this Court on
February 3, 2005.
[5]
The
applicants submitted a Pre-Removal Risk Assessment (PRRA) on April 6, 2006.
They received a negative decision on December 12, 2006. The applicants sought
leave to have this decision judicially reviewed; however, leave was denied on
July 24, 2007, because the applicants failed to perfect their record.
[6]
The
applicants applied for an H&C exemption from the permanent resident visa
requirements on March 21, 2005. The application was denied on April 27, 2007,
and the negative decision forms the basis of the present application for
judicial review.
[7]
The
applicants submit that the following reasons constitute exceptional
circumstances militating in favour of the approval of the H&C application:
a) The country
conditions in Sierra
Leone
reveal high rates of criminality, the high risk of disease, and the inaccessibility
of medical care.
b) The
processing time for a sponsorship application made in Sierra Leone is 32 to 50
months, and another 28 months in Mississauga.
c) The house the
applicants lived in before leaving Sierra Leone is damaged and
uninhabitable.
d) The applicants
might be targets of crime because they are elderly and are returning from Canada, and will
therefore be seen as having significant financial resources.
e) The
applicants are employed and support themselves in Canada, and their
health has improved since their arrival.
f)
The
applicants have a strong bond with their daughter living in Canada. They are
able to maintain better contact with their son and four year old granddaughter living
in the United
States.
They have links to their community through their church and volunteer work.
DECISION UNDER REVIEW
[8]
The
Officer concluded that there were insufficient H&C grounds to exempt the
applicants from subsection 11(1) of the Act, and refused the application. The
Officer provided the following reasons:
a) She was not
satisfied that the applicants had demonstrated that the level of establishment
was beyond a minimal level. She considered the evidence and accepted that the
applicants were employed, paid taxes and were active in their local church.
b) It was the
Officer’s finding that the hardship alleged by the applicants derived from the
country conditions in Sierra Leone, and though the country
has significant problems, the hardship is generalized and not undeserved or
disproportionate.
c) She concluded
that there was insufficient evidence to support the fact that their home had
been damaged. She determined that the applicants’ claim that they would be
targeted by criminals was speculative. She found that there was insufficient
evidence that the applicants had been refused medical treatment in Sierra Leone
or that their health had improved since their arrival in Canada.
d) She was
satisfied that the applicants have sufficient funds to re-establish themselves
in Sierra
Leone,
and that financial support from their daughter would still be forthcoming upon
their return.
e) Little weight
was accorded to the fact that the processing time for sponsorship is lengthier
in Sierra
Leone.
f)
The
fact that the applicants have three sons living in Gambia, a son in
the United States, and two adult grandchildren in Sierra Leone was
considered. The Officer also noted that the principal applicant has two
brothers living in Sierra Leone. As such, she was satisfied that there
exists a degree of family support available to the applicants in Sierra Leone.
g) The officer
considered the best interest of the applicants’ four year old granddaughter in
the United
States,
and concluded that there was insufficient proof of the ties or contact that
they had with their granddaughter. She found that they had not satisfactorily
demonstrated that their absence would have a negative impact on the child.
h) The officer
acknowledged the strong bond between the applicants and their daughter.
i)
The
Officer found that there were few allegations of risk, and concluded that, in
light of the negative determination of the applicants’ refugee claim and PRRA,
that there was not a reasonable chance that the applicants face a risk to life
or risk of cruel and unusual treatment or punishment upon their return to
Sierra Leone.
RELEVANT LEGISLATION
[9]
The
requirement that a visa be obtained abroad in general circumstances is
established in subsection 11(1) of the Act, while the H&C exemption is set
out in subsection 25(1) of the Act:
|
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 shall be issued
if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act.
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.
|
11.
(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
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.
|
[10]
The
provisions that were used by the Officer when considering the applicants’
application is contained in the Immigration Manual, Chapter IP-05. This manual
sets out the factors that an Officer may consider when evaluating the degree of
an applicant's establishment in Canada.
|
5.1.
Humanitarian and compassionate grounds
Applicants
bear the onus of satisfying the decision-maker that their personal
circumstances are such that the hardship of having to obtain a permanent
resident visa from outside of Canada
would be
(i)
unusual and undeserved or
(ii)
disproportionate.
Applicants
may present whatever facts they believe are relevant.
11.2
Assessing the applicant's degree of establishment in Canada
The
applicant's degree of establishment in Canada may be a factor to consider in certain
situations, particularly when evaluating some case types such as:
-
parents/grandparents not sponsored;
-
separation of parents and children (outside the family class);
-
de facto family members;
-
prolonged inability to leave Canada has led to establishment;
-
family violence;
-
former Canadian citizens; and
-
other cases.
|
5.1
Motifs d'ordre humanitaire
Il
incombe au demandeur de prouver au décideur que son case particulier est tel
que la difficulté de devoir obtenir un visa de résident permanent de
l'extérieur du Canada serait
(i)
soit inhabituelle et injustifiée;
(ii)
soit excessive.
Le
demandeur peut exposer les faits qu'il juge pertinents, quels qu'ils soient.
11.2
Évaluation du degré d'établissement au Canada
Le
degré d'établissement du demandeur au Canada peut être un facteur à
considérer dans certains cas, particulièrement si l'on évalue certains types
de cas comme les suivants :
-
parents/grands-parents non parrainés;
-
séparation des parents et des enfants (hors de la catégorie du regroupement
familial);
-
membres de la famille de fait;
-
incapacité prolongée à quitter le Canada aboutissant à l'établissement;
-
violence familiale;
-
anciens citoyens canadiens; et
-
autre cas.
|
ANALYSIS
Preliminary Issue
[11]
The
respondent submits that certain documents, attached as exhibits “C”, “D”, “E”
and “F” to the affidavit of Arnold Ayodele George, are not properly before the
Court and should not be considered. The respondent argues that these exhibits
were not submitted to the Officer for consideration on the H&C application.
Because they were not submitted prior to April 27, 2007, when the decision was
rendered, they should not be considered by this Court.
[12]
This
Court has consistently held that only evidence before the decision maker may be
considered on judicial review. In Isomi v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1753, 2006 FC 1394 at
paragraph 6, Justice Noël
wrote:
In its case law, this Court has clearly
established that, on judicial review, the Court may only examine the evidence
that was adduced before the initial decision-maker (Lemiecha (Litigation
Guardian) v. Canada (Minister of Citizenship and Immigration) (1993), 72
F.T.R. 49 at paragraph 4; Wood v. Canada (A.G.) (2001), 199 F.T.R. 133
at paragraph 34; Han v. Canada (Minister of Citizenship and Immigration),
2006 FC 432 at paragraph 11). In Gallardo v. Canada (Minister of Citizenship
and Immigration), 2003 FCT 45 at paragraphs 8 and 9, a case concerning a
claim for refugee protection based on humanitarian and compassionate
considerations, Mr. Justice Kelen wrote:
The Court cannot consider this
information in making its decision. It is trite law that judicial review of a
decision should proceed only on the basis of the evidence before the
decision-maker.
The Court cannot weigh new
evidence and substitute its decision for that of the immigration officer. The
Court does not decide H&C applications. The Court judicially reviews such
decisions to ensure they are made in accordance with the law.
[13]
The
exhibits in question consist of correspondence between counsel and the Minister
of Citizenship and Immigration, Border Services and opposing counsel. All are
communications in which the applicants attempt to dispose of the present matter
by means other than adjudication. It is my opinion that these documents were
included for the purpose of establishing special circumstances which might
allow costs to be awarded to the applicant. I would therefore exclude the
evidence insofar as the allegations therein might bear on the review of the
Officer’s decision; however, I will allow them for the consideration of costs
only.
Standard of Review
[14]
Both
parties submit, and I agree, that the appropriate standard in this case is
reasonableness simpliciter (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at pages 857-858.
Therefore, the decision will be unreasonable in the circumstances described in Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 55-56.
[55] A decision will be unreasonable only
if there is no line of analysis within the given reasons that could reasonably
lead the tribunal from the evidence before it to the conclusion at which it
arrived. If any of the reasons that are sufficient to support the conclusion
are tenable in the sense that they can stand up to a somewhat probing
examination, then the decision will not be unreasonable and a reviewing court
must not interfere (see Southam, at para. 56). This means that a
decision may satisfy the reasonableness standard if it is supported by a
tenable explanation even if this explanation is not one that the reviewing
court finds compelling (see Southam, at para. 79). [Emphasis added]
[56] This does not mean that every
element of the reasoning given must independently pass a test for
reasonableness. The question is rather whether the reasons, taken as a whole,
are tenable as support for the decision. At all times, a court applying a
standard of reasonableness must assess the basic adequacy of a reasoned
decision remembering that the issue under review does not compel one specific
result. Moreover, a reviewing court should not seize on one or more mistakes or
elements of the decision which do not affect the decision as a whole.
[15]
It
is, therefore, not the role of the Court to re-weigh the evidence and factors
considered by the Officer in deciding whether or not to grant an H&C
exemption. The Court may not set aside the Officer’s decision even if it would
have arrived at a different conclusion (Williams v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1948, 2006 FC 1474 at
paragraph 7; Gallardo v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 749, 2007 FC 554 at
paragraph 4).
Did the Officer Commit a
Reviewable Error?
[16]
The
applicant submits that the Officer misapprehended the ruling of the Refugee
Protection Division of the Immigration and Refugee Board (the Board). The
applicant argues that the decision of the Board should be considered by the
Officer to be a positive and not a negative factor in the H&C application
as the Officer wrote in its decision. The Board stated the
following in its reasons:
The principal claimant testified in a
forthcoming and straightforward manner. His wife accepted his testimony but
added a description of pain and fear she experienced when escaping from the
rebels in January 2000.
[…] The panel finds, based on the
testimony of the principal claimant that the mistreatment experienced by the
claimants at the hands of people in their area by reason of their Krio
background cumulatively amounts, at the most, to harassment.
[…] The claimant had no problems with the
rebels from March 2000 to March 2003, when they left for Canada. The panel recognizes the
hardship experienced by the claimants after returning to their damaged home.
[…]
Once again the panel notes to
straightforward manner in which the principal claimant testified. The panel’s
jurisdiction in this claim is restricted to a determination of whether or not
the claimant is a Convention refugee or a person in need of protection as
defined by the Immigration and Refugee Protection Act. While it is sympathetic
to the claimants’ situation, it has no humanitarian and compassionate
jurisdiction to exercise in making this determination.
[17]
The
Officer adopted the decision from the Board in its penultimate paragraph of its
decision. The Court finds disturbing that the Officer can state after having
adopted the Board's reasons:
[…] In my opinion, the hardship the applicants
assert is generalized and is relevant to the general population in Sierra Leone. Little evidence speaks to
how they would personally be subject to such hardships in a way not generally
faced by other individuals in or from Sierra Leone.
[18]
I
agree with the applicant's submission that the Board had found harassment and
hardship but was legally helpless to treat these issues. Therefore, I find
that the Officer failed to assess the relevant evidence.
[19]
On
the question of lengthy processing time for sponsorship, the Officer writes at
page 4 of its decision:
The applicants are concerned about the
lengthy processing time for sponsorship. I have considered this is a situation
faced by most prospective immigrants to Canada who apply for permanent
residence from outside Canada in the required manner under
IRPA legislation and therefore give this factor little weight.
[20]
Given
the evidence that the Officer had in front of her that it would take from five to
six years to process an overseas application and given the applicants’ age and
their personal circumstances, the Court concludes that the Officer made a
reviewable error.
[21]
In
its memorandum of fact and law, the applicants urges the Court to grant them costs
on a solicitor client basis because "special circumstances" are
present in the case at bar. I do not agree. There is no evidence here that the
respondent acted in a malicious manner or in bad faith.
[22]
The
applicant proposed the following certified question:
Is the length of time required for the
processing of an overseas parental family class application a positive factor
in the granting of an inland humanitarian and compassionate application,
particularly in consideration of the other individual circumstances of the
claimants?
[23]
The
respondent opposes such a question. The Court agrees with the respondent that
this question does not raise a serious question of general importance which
would be dispositive of an appeal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed. The matter is remitted to a
different Officer for redetermination. No question is certified.
“Michel
Beaudry”
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