Date: 20070223
Docket: IMM-1973-06
Citation: 2007 FC 200
Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
WING FU LEUNG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Wing Fu Leung is a
citizen of Hong Kong who came to Canada in 2003 on a visitor’s visa. Except for one
brother, all of his close relatives – including his mother – have been in Canada for some time. He
applied for permanent resident status in Canada on humanitarian and compassionate (H&C)
grounds. In a decision dated March 21, 2006, an Immigration Officer denied his
application. He seeks judicial review of this decision.
[2] The Officer’s decision
is reviewable on a standard of reasonableness (Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193). On this standard, a
decision will not be overturned if it can withstand a somewhat probing
examination.
[3] The basis of the
submissions made to the Officer was simple. The Applicant alleged that:
- As the only single child, he bore
responsibility for caring for his ailing 60-year old mother;
- Except for a brother from whom he is
estranged, he has no family in Hong Kong.
[4] In support of his application,
the Applicant submitted a letter from his mother’s medical doctor. The letter
states that the mother has diabetes and hypertension and that she is on
medication. There is no mention in the letter that the mother needs constant
care. Indeed, the letter seems to imply that the mother’s medical condition is
under control. On the basis of this evidence, the Officer concluded that the
mother’s medical condition was “not so bad that requires constant medical
attention”.
[5] The Officer also noted
that the Applicant, who had been employed in Hong Kong, produced no explanation
for the estrangement from his brother in Hong Kong or evidence to show that he
had been living with his brother in Hong Kong.
[6] The Applicant submits
that the Officer’s conclusions with respect to the mother’s illness and her
need for ongoing care were purely conjecture. He further submits that any such
concerns should have been put to the Applicant. I do not agree.
[7] The burden is on the
Applicant to present the evidence necessary to support his application (Owusu
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635, 318 N.R. 300).
There is no obligation on the Officer to address the shortcomings of the
application with the Applicant (Carreiro v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 342 at para. 13 (F.C.T.D.); Kaur
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1192 at para. 22 (F.C.)). In this
case, the medical condition of his mother was the foundation of his claim. The
only support for that claim was a vague doctor’s letter that identified two
common ailments and noted that she was on medication. It was reasonably open to
the Officer to conclude as he did that the mother did not require constant care
and attention from her son.
[8] In
his decision, the Officer notes that the Applicant’s volunteering demonstrates
that “his mother’s medical condition is well under control as Applicant doesn’t
have to spend his time looking after her”. The Applicant submits that his
volunteer work and the severity of his mother’s condition are unrelated. I
agree with the Applicant. However, I find that this error was not central to
the decision. As the Officer stated, he rejected the Applicant’s claim
regarding the severity of his mother’s condition based on the fact that the
medical note was vague and did not indicate that constant medical attention was
required, as claimed by the Applicant.
[9] The other aspect of the
Applicant’s claim is the connection to his family in Canada and his lack of
support and ties to any family in Hong Kong. In his decision, the Officer noted:
·
that
there was no
documentary evidence provided to substantiate the Applicant’s claims with
respect to the family dispute that caused his brother in Hong Kong to be
estranged from the family;
·
that
the Applicant was employed and self-supporting in Hong Kong; and,
·
that
separation of the family was anticipated in 1996 when the rest of the family
decided to come to Canada.
[10] The
Applicant submits that he should have been assessed as a de facto family
member under Operation Manual IP-5 (Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds) [IP-5] which provides guidelines
for immigration officers in their assessment of H & C applications. In this
case, the Applicant argues that the Officer failed to take into account the
factors as set out in IP-5. Section 6.1 of IP-5 states that:
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6.1. De facto family members
De facto family
members are persons who do not meet the definition of a family class member.
They are, however, in a situation of dependence that makes them a de facto
member of a nuclear family in Canada. Some examples: a son, daughter,
brother or sister left alone in the country of origin without family of their
own; an elderly relative such as an aunt or uncle or an unrelated person who
has resided with the family for a long time.
|
|
6.1
Membres de fait de la famille
Les
membres de fait de la famille sont les personnes qui ne répondent pas à la
définition de membre de la catégorie du regroupement familial. Ils sont, par
contre, dans une situation de dépendance qui les rend de fait membres d’une
famille nucléaire au Canada. Voici quelques exemples : fils, fille,
frère ou sœur laissés seuls dans le pays d’origine sans famille propre; un
parent âgé, par exemple une tante ou un oncle ou une personne non apparentée
qui a résidé avec la famille pendant longtemps.
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[11] Section
13.8 of IP-5 provides:
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13.8. De facto family members
An
important consideration is to what extent the applicant would have difficulty
in meeting financial or emotional needs without the support and assistance of
the family unit in Canada. Separation of persons in such a
genuine dependent relationship may be grounds for a positive decision.
Officers
should consider the following factors:
·
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;
·
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);
·
whether there is a
significant degree of
establishment in Canada? (See Section
11.2, Assessing the applicant’s
degree
of establishment in Canada); and
·
any other factors
relevant to the H&C
decision.
|
|
13.8.
Membres
de la famille de fait
L’une
des considérations importantes est la difficulté qu’aurait le demandeur de
satisfaire à ses besoins financiers ou émotionnels sans l’aide de la famille
au Canada. La séparation d’un parent de fait de ses proches peut constituer
la base d’une décision CH favorable.
L’agent
doit tenir compte des facteurs qui suivent :
·
s’agit-il
d’une dépendance authentique,
qui ne vise pas à obtenir le statut de
résidence permanente.
·
le
niveau de dépendance;
·
la
stabilité de la relation;
·
la durée
de la relation;
·
la
capacité et la volonté de la famille
au Canada d’assumer le soutien;
·
les autres
recours du demandeur, par
exemple sa famille (époux, enfants,
parents et fratrie, etc.) à l’étranger,
disposés à assumer le soutien et
capables de le faire;
·
documents
qui prouvent la relation
(p. ex., compte bancaire commun, biens
immobiliers ou autres communs,
testament, police d’assurance ou lettres
d’amis ou de parents);
·
existe-t-il
un degré appréciable
d’établissement au Canada? (Voir la
Section 11.2, Évaluation du degré
d’établissement au Canada); et
·
tout
autre facteur pertinent à la décision
CH.
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[12] Clearly,
the guidelines provide that a de facto family member must show that he
is in a situation of dependence. In this case, the Applicant bases his claim of
dependence on the fact that he is unable to maintain steady employment in Hong
Kong and his need for emotional support from his family in Canada.
[13] While
IP-5 sets out examples of factors that should be considered in
determining the extent of financial or emotional needs, the list is neither
mandatory nor exhaustive. These guidelines have been explained by the Supreme
Court in Baker, above at para. 72, as follows:
72 [T]he guidelines issued by the
Minister to immigration officers recognize and reflect the values and approach
discussed above and articulated in the Convention. As described above,
immigration officers are expected to make the decision that a reasonable person
would make, with special consideration of humanitarian values such as keeping
connections between family members and avoiding hardship by sending people to
places where they no longer have connections. The guidelines show what the
Minister considers a humanitarian and compassionate decision, and they are of
great assistance to the Court in determining whether the reasons of Officer
Lorenz are supportable. They emphasize that the decision-maker should be alert
to possible humanitarian grounds, should consider the hardship that a negative
decision would impose upon the claimant or close family members, and should
consider as an important factor the connections between family members. The
guidelines are a useful indicator of what constitutes a reasonable
interpretation of the power conferred by the section, and the fact that this
decision was contrary to their directives is of great help in assessing whether
the decision was an unreasonable exercise of the H & C power.
[14] However,
the Federal Court of Appeal has made it clear that “the Minister
and his agents are not bound by these guidelines” (Legault v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 at
para. 20,
212 D.L.R. (4th) 139).
[15] The
facts show, and as the Officer stated within his reasons, the Applicant is a 37
year old man who was able to obtain employment and was able to support himself
in Hong Kong, and there is no reason why he is unable to do so when he returns
to Hong Kong. In addition, loneliness due to the separation between family
members, although unfortunate, is not sufficient in this case to constitute a
situation of dependence. In my view, the decision of the Immigration Officer
reflects that he took into account the factors that were relevant to the facts
of this case. That he did not explicitly refer to each of the factors is not a
grounds for review. Of far greater importance, is that the Officer dealt with
the evidence before him and exercised his discretion in a non-arbitrary manner.
[16] The
Applicant also submits that the Officer took irrelevant considerations into
account by considering the voluntary separation of the family in 1996. In my
view, the fact that the family, for whatever reason, left the adult Applicant
behind in 1996 when they came to Canada is a relevant factor. In this case, the
voluntary separation goes directly to the question of emotional dependence as
argued by the Applicant. A family who has chosen separation is accountable for
the results of their choice. A voluntary separation raises a rebuttable
inference that the family member left behind is not dependent on the family. It
may be that changed circumstances can overcome the applicability of this factor
but that does not mean that it is irrelevant to the Officer’s decision.
[17] In sum, the decision of
the Officer can stand up to a somewhat probing examination; it was not
unreasonable. The Application for Judicial Review will be dismissed.
[18] Neither party
proposed a question for certification. No question of general importance is
raised in this case and, accordingly, no question will be certified.
ORDER
This Court orders that:
- The
application for judicial review is dismissed; and
- No
question of general importance is certified.
“Judith A. Snider”
__________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1973-06
STYLE OF CAUSE: WING
FU LEUNG v. THE MINISTER
OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: February 20, 2007
REASONS FOR ORDER
AND ORDER: Snider J.
DATED: February
23, 2007
APPEARANCES:
Ralph Dzegniuk FOR
THE APPLICANT
Maria
Burgos FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Green
& Spiegel FOR
THE APPLICANT
Barristers
and Solicitors
Toronto, Ontario
John
H. Sims, Q.C. FOR
THE RESPONDENT
Deputy
Attorney General of Canada
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