Docket: IMM-7215-10
Citation: 2011 FC 1111
Ottawa, Ontario, September 28,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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JORGE ENRIQUE JURADO TOBAR
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks to set aside a decision of an Immigration Officer at Citizenship
and Immigration Canada (CIC), refusing the applicant’s application under section
25 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA)
for
permanent residency on humanitarian and compassionate (H&C) grounds. The
CIC Immigration Officer (the Officer) found that the applicant would not face
unusual, undeserved or disproportionate hardship by having to apply for a
permanent resident visa outside of Canada. For the reasons that follow, this application
for judicial review is dismissed.
[2]
The
applicant is a 59-year old citizen of Ecuador. He was at one time a Canadian permanent
resident, but in 1996 returned to Ecuador to pursue his business interests. In
consequence, he lost his permanent residency status. In July 2006, over a
decade later, he returned to Canada to look after his ailing mother, then a Canadian citizen,
who died in March 2010. When in Canada, he resumed his relationship with his daughter,
a Canadian citizen, and with his son’s Canadian children—his grandchildren. The
applicant currently lives with his sister, also a Canadian. Consistent with
the condition of his visitor’s visa, he has not worked while in Canada. He has apparently
depleted his savings of $2,000 USD and in his application notes that he sold
some personal belongings and his business in Ecuador. In Ecuador he had a “relatively comfortable existence”
working as a plant chief and also earning income from a rented room in his
home. Given the opportunity to stay in Canada he asserts that he would work as a heating and
cooling technician, or as an aircraft mechanic.
[3]
In the
November 30, 2010 decision rejecting his application, the Visa Officer wrote:
The
applicant bear [sic] the onus of satisfying the decision-maker that his
personal circumstances are such that the hardship of having to obtain a
permanent resident visa from outside Canada in the normal manner would be i) unusual
and undeserved or ii) disproportionate.
…
After
a careful review of the file as a whole, I am not of the opinion that to
request the applicant to apply for permanent residence in the usual manner
would amount to hardships that was not anticipated by the Immigration &
Refugee Protection Act (IRPA) and resulted from circumstances beyond the
client’s personal control. Based on the evidence currently before me, I am also
not satisfied that the hardships associated with submitting an overseas application
as required under the Act would have a disproportionate impact due to the
applicant’s personal circumstances.
I
am not of the opinion that sufficient humanitarian and compassionate grounds
exist to justify this exemption request.
[4]
It is
well-settled that the grant of an H&C application is reserved for exceptional
cases. As well, given the highly discretionary element in an H&C decision,
significant deference is afforded by this Court to the decision and a wider
scope of possible reasonable outcomes may be present: Inneh v Canada
(Citizenship and Immigration), 2009 FC 108 at para 13; and Del Melo
Gomes v Canada (Citizenship and Immigration), 2009 FC 98 at para 9. To
succeed on judicial review, an applicant must demonstrate that the officer
either ignored or misconstrued evidence, or made a reviewable error in the
analysis of factors relevant to the discretion.
[5]
The
thrust of this application, however, is that the Officer’s reasons for refusing
the H&C application fail to disclose the analysis and balancing of factors
required by section 25 of the IRPA. Put more colloquially, it is said
that the Officer failed to come to terms with the substance of the application
and resorted to conclusionary statements. The applicant argues that the
reasons, while tracking and listing factors relevant to the exercise of
discretion, and identifying certain relevant facts, fails to engage in the
analysis necessary for the reasons to cross the threshold of sufficiency. In
consequence, the reasons are said to consist of a number of conclusionary
statements and assumptions. Moreover, counsel contends that the analysis is
devoid of the balancing of factors inherent to any H&C decision and
reflects neither a humanitarian nor compassionate perspective essential to the
proper consideration of any H&C application.
[6]
The
Officer’s reasons indeed address the substance of the H&C application. They
note and applaud the reasons why the applicant came to Canada, they note the
development of his relationships with his Canadian grandchildren, but balanced
against this the fact that he is a grandparent, and not a care-giver to these
children. The reasons note the paucity of facts or evidence concerning the
relationship which would elevate removal to hardship beyond that usually
suffered as a consequence of removal. The Officer acknowledged the difficulty
of separation but considered that the existence of other means of remaining in
touch with the grandchildren, although admittedly less preferable, were
available. The Officer also notes the continued existence of a residence and
family ties in Ecuador—a son.
[7]
In
sum, the Officer reasonably concluded that, in-so-far as the family
relationships were concerned, they did not exceed the usual hardships
associated with removal. This conclusion falls within the range of reasonable
possible outcomes, particularly when considered in light of the purpose of
section 25 of the IRPA, which is to provide for exceptional and
compelling circumstances. As noted by this Court in Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906 at para 26, the H&C
process is not an ex post facto screening device which circumvents or supplants
the usual process established by the IRPA. Nor are H&C officers
required to reach a decision that is the most beneficial to children, in this
case, the grand-children; rather, the officer must simply be alive to their
interests: Hawthorne v Canada (Minister of Citizenship and Immigration),
2001 FCT 1041.
[8]
I
turn now to the second branch of the applicant’s argument, namely the failure
to consider the applicant’s personal situation. It is said that the applicant,
at the age of 56, divested himself of most his assets, sold his business and
came to Canada to look after his
ailing mother. In consequence, she remained in her home and was not a burden to
the public health care system. The applicant’s visitor visa was renewed four
times and in consequence, he is now 60 and claims he has no meaningful
prospects of employment in Ecuador.
[9]
The
Officer was not satisfied, on the evidence, that the applicant would face undue
economic hardships if he returned to Ecuador:
… little evidence was provided to
demonstrate that he could not be financially independent in Ecuador in the
event that he is required to apply for permanent residence from outside of
Canada as stated in the Act. It was mentioned that the applicant is currently
renting one room out of his residence in Ecuador which generate enough revenue to
maintain the whole house. It is reasonable to assume that the applicant could
still reside there if he chooses to in the event he is required to apply in the
regular fashion.
[10]
It
may not be the most economically advantageous situation for the applicant, but
the Officer considered the fact that the applicant had a home and some form of
residual income available to him on return.
[11]
While
there are facts in support of the applicant and a different outcome is possible,
H&C decisions are highly discretionary. The focus of this Court’s inquiry
is to ensure that the reasons which underlie the decision demonstrate
justification, transparency and intelligibility. The reasons why the applicant’s
situation was not accepted as surpassing the usual hardships of removal are clear
and coherent. The Officer noted the competing considerations and grasped the
essence of the H&C submission. The fact that, in balancing the
considerations, a different and more charitable decision could have been
reached does not render this decision unreasonable. The reasons are not mere
conclusions, but in fact reflect a balanced consideration of the relevant
factors.
[12]
The
application for judicial review is dismissed.
[13]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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