Date: 20111213
Docket: IMM-306-11
Citation: 2011 FC 1413
Ottawa, Ontario, this 13th
day of December 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
VANESSA VALE PEREIRA
Applicant
and
MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an
application for judicial review of the decision of A. Bilich, Immigration
Officer, Citizenship and Immigration Canada (the “officer”), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27, by Vanessa Vale Pereira (the “applicant”). In his decision, the
officer rejected the applicant’s application for permanent residence in Canada on the basis of humanitarian
and compassionate relief.
[2]
The
applicant, a citizen of Brazil, arrived in Canada on December 31, 2002 as a student and a
valid visitor until February 7, 2003. While she was still a student in Brazil, she decided to leave
her country because of the abuse her and her sister had suffered. When she arrived
in Canada, she resided with her
sister and aunt, the latter not having legal status in Canada. The applicant filed an
application for permanent residence on the basis of humanitarian and
compassionate grounds. This application was converted to a spousal application
in 2008 under section 124 of the Immigration and Refugee Protection
Regulations, SOR/2002-227, as amended S.C. 2002, c. 8, because the applicant
had gotten married in 2007. Meanwhile, her sister was granted status in Canada on the basis of humanitarian
and compassionate grounds.
[3]
In
2010, due to the applicant’s spouse’s failure to attend her landing appointment
in 2008 and the breakdown of her marriage in 2009, the applicant’s application
for permanent residence was considered on the basis of humanitarian and
compassionate grounds rather than as an application under the spousal class.
[4]
The applicant
asserts that she came to Canada to escape from the “reign of guardianship”
caused by her uncle’s family, her parents and grandparents being deceased, no
longer having any immediate family in Brazil. Consequently, she no longer has
any ties to her country of origin.
[5]
Furthermore,
she is established in Canada, being a housecleaner
and residing with her aunt. Although her aunt is not legally in Canada, she holds the family
together in the applicant’s opinion, instilling a sense of belonging,
especially after the breakdown of her marriage and the feelings of abandonment
this marital failure raised. This failure also led to her dependency on her
sister and aunt for emotional support, them being her only real family. Despite
these factors, her application for permanent residence on the basis of
humanitarian and compassionate relief was rejected by the officer.
[6]
As a
preliminary issue, the applicant submits that the record before the officer was
incomplete, which shows a lack of care on the latter’s part. However, counsel
for the applicant admits that the significance of the alleged missing documents
is purely speculative. Furthermore, there is absolutely no evidence of any
prejudice to the applicant as a result of the alleged gaps in the tribunal
record. Therefore, the applicant’s preliminary argument is without merit.
* * * * * * *
*
[7]
The
present application raises the following issues:
1.
Did the officer err in
his identification and application of the legal test for humanitarian and
compassionate relief to the case at hand, notably, by failing to conduct a
proper analysis of the applicant’s personal circumstances?
2.
Did the officer
engage in speculation and make perverse findings of fact, thereby committing a
reviewable error?
[8]
It
is agreed that the identification of the correct test in assessing humanitarian
and compassionate grounds by an officer is a question of law and is to reviewed
on a standard of correctness (Ebonka v. Minister of Citizenship and
Immigration, 2009 FC 80 at para 16 [Ebonka]; Premnauth v.
Minister of Citizenship and Immigration, 2009 FC 1125 at para 20 [Premnauth]).
However, the officer’s application of this test to the applicant’s particular
circumstances, and ultimately, his decision to grant humanitarian relief are
questions of mixed facts and law, to be reviewed on a standard of
reasonableness (Ebonka at para 16; Premnauth at para 21; Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Tartchinska
v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161
at para 19 [Tartchinska]).
[9]
This
standard of reasonableness is explained by the broad discretion granted to
officers evaluating exemptions based on humanitarian and compassionate grounds
(Tartchinska at para 18). Thus, deference is owed to the officer’s
factual determinations and weighing of the evidence (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]).Weighing
of the relevant humanitarian and compassionate grounds is not the function of
this Court (Suresh at para 34) and an applicant is not entitled to a
particular outcome (Tartchinska at para 18). Consequently, the officer’s
decision and findings must only be disturbed if his “reasoning process was
flawed and the resulting decision falls outside the range of possible,
acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir
at para 47). This Court must also intervene if the officer based his
decision on erroneous findings of fact made in a perverse or capricious manner,
or based on speculation.
* * * * * * *
*
1. Did the officer
err in his identification and application of the legal test for humanitarian
and compassionate relief to the case at hand, notably, by failing to conduct a
proper analysis of the applicant’s personal circumstances?
[10]
While
the officer only mentioned “unusual” and “disproportionate” hardship at the end
of his decision, he engaged in an analysis of the applicant’s personal circumstances
and did not commit a reviewable error: the decision read as a whole evinces a
reasonable application of the correct standard of undeserved, unusual or
disproportionate hardship.
[11]
The officer’s
decision constantly refers to the applicant’s personal circumstances,
specifically, her family ties, her establishment in Canada, the abuse she
suffered and the breakdown of her martial relations, contrary to Kaur v.
Minister of Citizenship and Immigration, 2010 FC 805. In Kaur, there
was no mention whatsoever of the applicant’s personal circumstances, so the
applicant did not know why the officer did not accept her personal
circumstances, nor why these factors were not given any weight (at para 23).
Similarly, in Adu v. Minister of Citizenship and Immigration, 2005 FC
565, the officer had only mentioned the positive factors and dismissed
the application for humanitarian and compassionate relief: the applicant did
not know why his application was rejected (at para 14). However, the applicant here
does understand what factors the officer considered and the weight they were
given in coming to his conclusion: his reasons were adequate (Kang v.
Minister of Citizenship and Immigration, 2011 FC 293 at para 27).
[12]
As
the respondent stated, substance trumps form: what matters is not the words
used, but whether the officer undertook a proper analysis of humanitarian and
compassionate grounds (Pannu v. Minister of Citizenship and Immigration,
2006 FC 1356 at paragraphs 37 and 41). The officer went through a discussion of
each of the factors identified by the applicant before rejecting her claim.
There is no doubt that her personal circumstances were considered: a proper
analysis was undertaken. While this Court may not have necessarily come to the
same conclusion, the officer’s decision was reasonable, being defensible in
facts and in law, falling within the range of possible, acceptable outcomes (Dunsmuir
at para 47).
2. Did the officer
engage in speculation and make perverse findings of fact, thereby committing a
reviewable error?
[13]
The
applicant first argues that the officer erred in his consideration of the
psychological report. I do not agree. The officer did not err in granting less
weight to the psychological report, clearly explaining in his reasons his
assessment of the report. The report was five years old at the time the officer
rendered his decision and did not necessarily reflect the applicant’s current
mental state. It was also solely based on one subjective assessment, as
explained by the respondent. Moreover, unlike in Karimullah v. Minister of
Citizenship and Immigration, 2010 FC 824, relied on by the applicant, where
there was not a single mention of the applicant’s mental and emotional health,
the officer does consider the applicant’s emotional state in his assessment of
the humanitarian and compassionate grounds.
[14]
The officer
did not go on to speculate that since this report was not convincing, the applicant
was fully relieved of her mental anguish. Rather, the officer concluded that
due to the applicant’s age and that it had been eight years since she had first
left Brazil, she would reasonably
be able to cope with her personal circumstances: there is evidence supporting
the officer’s conclusion. The officer was not making a psychological
determination, but making a factual determination based on his assessment of
the evidence.
[15]
Therefore,
despite the conclusion in the psychological report that if the applicant was
refused permission to stay in Canada, “her symptoms will intensify and her
suffering will increase”, it was reasonable for the officer to grant less
weight to the report and make a different factual determination for the
above-mentioned reasons: his factual determinations are anchored in the
evidence.
[16]
The
applicant further argues that the officer’s finding that she had other family
members who could provide support in Brazil is perverse. The applicant rightly asserts that
the officer’s finding that she has other family members she could rely on in Brazil, to compensate for the
loss she will face, is perverse. The only family members she has left in Brazil are her abusers. While
her uncle did not carry out the emotional and psychological abuse himself, it
was under his roof, at the hands of his wife: it is ridiculous to assert that
this man can provide the emotional support necessary without constantly
remembering the abuse she suffered while under his care. The officer’s finding
as to the existence of other family members in Brazil is unintelligible and unjustified (Dunsmuir).
However, this error alone, in the particular circumstances of the present case,
is not determinative and does not warrant allowing the present application for
judicial review.
[17]
The
applicant finally argues that the officer erred in his qualification of her
family ties. In this regard, the respondent is right in asserting that weight
cannot be given to the aunt’s presence in Canada, since she is here illegally and her continued
presence in the country is not guaranteed. Moreover, contrary to Koromila v.
Minister of Citizenship and Immigration, 2009 FC 393 [Koromila] and Yu
v. Minister of Citizenship and Immigration, 2006 FC 956 [Yu], the officer
does not negate the applicant’s emotional dependence on her sister and aunt:
this humanitarian and compassionate factor is given weight, as mentioned in the
officer’s decision (see Da Silva v. Minister of Citizenship and Immigration,
2011 FC 347 at para 26 where consideration of an emotional bond by the officer
is sufficient to distinguish the case from Koromila). While undoubtedly,
there is a difference between living together and sharing day-to-day life as
opposed to occasional visits (Yu at para 30), the officer did not
consider there to be sufficient evidence making the applicant’s physical
proximity necessary, considering she can live independently.
[18]
It
was also reasonable for the officer to conclude that there were reasonable
lines of communication between Canada and Brazil. While the applicant’s sister cannot
necessarily return to Brazil, having sought
permanent residence in Canada for humanitarian and
compassionate grounds, there is no unreasonable obstacle preventing the applicant
from visiting, nor any restriction as to oral communication. Hence, since
physical proximity was not proven to be necessary, despite the applicant’s
acknowledged emotional dependence on her aunt and sister in Canada, it was
reasonable for the officer to conclude that the family would nonetheless be
able to stay in touch and maintain their bond once the applicant returned to Brazil.
[19]
Therefore,
overall, the officer’s factual determinations were not perverse, but rather
supported by his assessment of the evidence. Since his conclusions were
anchored in the evidence, he did not engage in speculation (Zhang v.
Minister of Citizenship and Immigration, 2008 FC 533 at paras 11-13).
Hence, these conclusions were reasonable and deference is owed: this Court
ought not intervene because the officer’s determinations were well within the
range of possible, acceptable outcomes defensible in facts and in law.
* * * * * * * *
[20]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[21]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review is dismissed.
“Yvon
Pinard”
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