Date: 20081222
Docket: IMM-2040-08
Citation: 2008 FC 1400
Ottawa, Ontario, December 22, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ERROL GEORGE VEITCH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Errol George Veitch challenging a
decision by the Respondent denying his claim under s. 25 of the Immigration
and Refugee Protection Act, R.S.C. 2001, c. 27 (IRPA) for Humanitarian and Compassionate
(H&C) relief. Mr. Veitch asserts that he was denied the opportunity to
provide sufficient evidence of his Canadian establishment because of the
failure of the decision-maker (Officer) to “properly advise” him about what was
required. He also claims that because he responded to the Officer’s request for
supplementary employment information, a reasonable expectation arose that
nothing further would be required from him.
I. Background
[2]
Mr.
Veitch is a citizen of Jamaica. He is 63 years old and
apparently suffers from Parkinson’s disease. Mr. Veitch claims to have entered Canada in 1977 but he
deposes in his affidavit that he has no exact recollection of how he came to be
here.
[3]
Initially
Mr. Veitch’s application for H&C relief contained almost no meaningful
information about the nature and extent of his establishment in Canada. Because of
the deficiencies in the application, the Officer requested further employment
particulars for the preceding ten years including the names of employers and
the nature of his work. For any periods of unemployment Mr. Veitch was
asked to provide his addresses. Mr. Veitch took almost a year to respond and,
when he did, he provided only vague references to periods of employment and
unemployment and an incomplete listing of his addresses in the Toronto region after
1995. The only substantive basis for relief contained in Mr. Veitch’s
application is found in the following brief passage:
As I mentioned, I have lived in Canada for approximately 30 years
now. My life is here in Canada. I have worked steadily
through the past several years with some limited times of unemployment. I am
now in my 60’s and I have not known any other country except Canada for a very long time. Canada is my home.
I have never been in trouble in Canada and I have tried to be a good
citizen for the past 30 years.
[4]
Mr.
Veitch provided almost nothing in the way of third party information to verify
the nature or the extent of his Canadian establishment over the time he claimed
to be living here. He produced no references from past employers, friends,
acquaintances or service providers. He offered no income tax or Canada Pension Plan
records and, notwithstanding the possible significance of his claimed health
problem, he provided no medical records.
II. The
Decision under Review
[5]
The
Officer rejected Mr. Veitch’s application for the following reasons:
The applicant’s humanitarian and
compassionate grounds are based on: Establishment and lack of ties elsewhere.
In making my decision in this case I reviewed
the submissions made by the subject the last dated received 21 January 2008. I
also reviewed information available on the Foss system.
The subject has provided no evidence of
his presence in Canada for the period he states he
has resided. He has provided no evidence of how he is supported. He states that
he now receives social assistance. Immigration records show that he applied for
assistance in 2005. The subject is divorced and has three children in USA. He provides no details of the children,
ages etc and has provided only a copy of his divorce from Ivy Veitch. No
address is listed for him on the Judgment. It is not clear how he received a
copy.
I am not satisfied based on information
before me that the subject has lived continuously in Canada and that he is
established here to a degree that having to return to Jamaica would cause an
excessive, undeserved or disproportionate hardship.
I have considered all information
regarding this application as a whole. Having reviewed and considered the
grounds the applicants have forwarded as grounds for an exemption, I do not
find they constitute an unusual and undeserved or disproportionate hardships.
Therefore, I am not satisfied that sufficient humanitarian and compassionate
grounds exist to approve this exemption request.
III.
Issue:
[6]
Did
the Officer breach the duty of fairness or create a reasonable expectation that
the information submitted by Mr. Veitch would be sufficient to meet the requirements
for H&C relief?
IV. Analysis
[7]
I
am not convinced that the circumstances of this case are distinguishable from
cases like Irias v. Canada (Minister of Citizenship and Immigration), 2003
FC 1321, [2003] F.C.J. No. 1717, Tahir v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1354, 159 F.T.R. 109 and
El Doukhi v. Canada (Minister of Citizenship and Immigration), 2006 FC
1464, [2006] F.C.J. No. 1843. In Irias, Justice Paul Rouleau dealt with
the same argument raised here and dismissed it on the following basis:
20 I now turn to the final issue in
this case, that is the applicant’s allegation that the Immigration Officer’s
decision was not fair and breached natural justice, as she based her decision
on a lack of information that she did not request from the applicant.
21 As mentioned, the Immigration
Officer requested that the applicant provide updated information, and
specifically asked for a written explanation of who the applicant was living
with prior to arriving in Canada. In reply, the applicant
submits that the Immigration Officer clearly had questions about other matters,
to which she did not request clarification from the applicant. Specifically,
regarding whether both the applicant’s son and wife were currently employed,
and what the applicant’s age had to do with the hardship she claimed she would
face if she returned to Nicaragua.
22 The respondent submits that the
onus is on the applicant to provide the decision maker with all of the pertinent
information in an application. The fact that the applicant did not explain what
her age had to do with her application, and that her daughter-in-law’s
employment status was unclear, did not place a burden on the Immigration
Officer to contact the applicant in order to obtain this information.
23 I cannot agree with this
position of the applicant. As was stated by Heald D.J. in Patel v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 54 (F.C.C.):
The applicant submits that he is entitled
to have all relevant evidence considered on a humanitarian and compassionate
application. I agree with that submission. However, the onus in this respect
lies with the applicant. It is his responsibility to bring to the visa
officer’s attention any evidence relevant to humanitarian and compassionate
considerations.
24 The onus of providing all
relevant evidence considered on an H&C application clearly lies with the
applicant, in accordance with section 5.25 of the Manual and the statement by
Heald D.J. in the Patel case. I agree with the respondent’s suggestion that an
insufficient submission on the part of an applicant does not result in an onus
on an immigration officer to elicit further information.
25 In this case, the applicant was
given the opportunity to provide information about her situation in support of
her application, and the Immigration Officer even asked the applicant to
provide further information. Thus, I cannot conclude that the Immigration
Officer erred in not making a second request for additional information from
the applicant.
I agree with the above analysis and would
add that, in this case, Mr. Veitch’s application for relief was so deficient
that its rejection was inevitable. No reasonable person could expect a
favourable response given the sparse and incomplete information that Mr. Veitch
supplied in proof of his Canadian establishment. Furthermore, there is nothing
in Mr. Veitch’s affidavit which even suggests that he was confused or mislead about
what might be required to support his application. For whatever reason, Mr.
Veitch did not take this matter seriously and he cannot now claim to have been
unfairly treated by the Respondent.
[8]
I
would add, in conclusion, that there may well be a compelling case here for
H&C relief. Mr. Veitch may have come to Canada in 1977 or thereabouts, but
he provided insufficient information to establish his continuous residency in Canada after that
time. He has family in the United States and he may well have
been in that country for extended periods of time. Mr. Veitch has a Social
Insurance Number and he probably worked in Canada for periods
of time over the last 25 years or so. He is getting on in years and his health
is apparently compromised. He appears to have little, if any, connection to Jamaica. Beyond these
sparse details the record discloses little else about his establishment in Canada and, as I
have already noted, the denial of H&C relief on this record is entirely
understandable and reasonable.
[9]
Counsel
for Mr. Veitch indicated that a further H&C application is now
contemplated. Hopefully he will be able to submit the kind of comprehensive
H&C application that is required for his claim for relief to be
appropriately and fully considered. With the assistance of his present counsel
he can probably accurately reconstruct the details of his history in Canada and obtain
information from third parties to corroborate much of his personal history.
Government and employment records may still be available and presumably third
party references and attestations to his life in Canada can be
obtained. Presumably he also has access to relevant medical information which
may support his claim to H&C relief.
V. Conclusion
[10]
As
noted above, this application for judicial review must be dismissed. Neither
party proposed a certified question and no question of general importance
arises.
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