Date: 20081121
Docket: IMM-1054-08
Citation: 2008 FC 1303
Toronto, Ontario, November 21,
2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
YI PAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of an immigration officer's refusal,
dated February 25, 2008, of the applicant's request for inland processing of
her application for permanent residence, on humanitarian and compassionate
grounds. For the reasons that follow, I dismiss her application.
Background
[2]
Yi
Pan is an unmarried 45-year-old Chinese national who has been in Canada without any
immigration status since 1997. Between 1985 and 1997 she lived and worked
legally in the United States. Her green card, permitting her to work
legally in the United States, lapsed in 2004.
[3]
Yi
Pan's mother and sister live in Canada. Her elderly mother
suffers from numerous diseases and afflictions, while her sister is a recent
cancer survivor and suffers from reduced kidney function, lupus and several
other disorders. Yi Pan has devoted the last 10 years caring for the two women
and providing them with emotional support. Her sister is sponsoring Yi Pan’s
permanent residence application.
[4]
In
written submissions in support of her H&C application, Yi Pan emphasized her
family members’ health problems, their reliance on her assistance, and her
absence of ties with China after having lived 22 years in North
America. However, she does have a brother who still lives in China and she has
stayed in regular contact with him. She also drew attention to her education obtained
at the University of
California at Los
Angeles,
and her work experience in United States. She filed letters
from her sister’s and mother's physicians, character references, and family
photographs, among other documents in support of her application.
[5]
On
February 22, 2008, Yi Pan was interviewed over the phone by an immigration
officer. She provided details as to her sister's occupation, her brother’s
situation in China and her
means of support. The letter refusing the application for inland processing on
H&C grounds was issued three days later. The relevant portions of the
decision under review are the following:
I acknowledge that having her
daughter with her would provide any mother great support at that age. However,
the applicant has not provided sufficient evidence to show how her mother and
sister are dependent on her. With the information presented before me I am not
satisfied that it would cause unusual and undeserved or disproportionate
hardship for the applicant to apply for permanent residence from outside Canada. …
Ms. Pan states that she has no
family members or friends in China and she would face extreme hardship to
adjust to life in China if she were to leave Canada. Ms. Pan further states that
her mother and sister would be depressed and upset to lose the person they have
relied on for the past decade. I acknowledge the fact that returning to China
may cause Ms. Pan considerable challenges, especially after having lived
outside China for more than twenty years.
However, as per information submitted in her initial application and then
confirmed a telephone interview, Ms. Pan does have a brother in China. Ms. Pan admits that she is in contact
with her brother and speaks to him on the phone on a regular basis, she
stresses though that she and her brother have not lived together for a long
time and that her brother is the only one supporting his family. I acknowledge
that it would be difficult for Ms. Pan to return to China and re-establish herself, however, since
she is currently being supported by her sister and mother financially, it can
be safe to say that her sister and mother would continue to support her until
she is able to support herself and establish herself in China.
[6]
Ms.
Pan submits that the decision is unreasonable and citing Dunsmuir v. New
Brunswick,
2008 SCC 9, says that the officer’s decision-making fails the justification,
transparency and intelligibility requirements set out by the Supreme Court of
Canada.
Issue
[7]
The
applicant essentially raises a single issue: Whether the immigration officer
properly weighed the evidence and properly exercised her discretion as required
under section 25 of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
Analysis
[8]
As
submitted by counsel for the applicant, section 25(1) of the Act provides for
relief, in limited circumstances, from the consequences of the strict
application of the provisions of the Act, where the consequences to the
applicant or her close family, cry out on humanitarian and compassionate
grounds for such relief. As is the case here, it is sometimes invoked in
favour of an exception to the requirement that applications for permanent
residency are to be made from outside Canada. Section 25(1) reads
as follows:
|
25. (1) The Minister shall, upon request of
a foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, 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.
|
25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, 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.
|
[9]
The
applicant submits that the officer erred in considering the H&C application
in three respects. First, the officer focused the analysis of the hardship on
the applicant and failed to consider the hardship imposed on the mother and sister
of the applicant. Second, the officer failed to apply the objective test set
out by the Immigration Appeal Board in Chirwa v. Canada (Minister of
Citizenship and Immigration), [1970] I.A.B.D. No. 1. Third, the
officer’s determination of the applicant’s ability to survive in China was based on
assumption and speculation and not on the evidence.
[10]
The
respondent submits that the officer carefully considered all the evidence
presented and that the applicant is, in reality, asking this Court to reweigh the
evidence that was before the officer.
[11]
Section
25(1) of the Act provides that permanent residency status may be granted 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”.
[12]
The
applicant submits that regard must be had to the decision in Chirwa when
determining whether there are humanitarian and compassionate considerations
which should prompt the Minister to permit an inland application. This is not
the first time this submission has been made to this Court. Generally, it has
been rejected.
[13]
Chirwa involved an
application under subsection 15(1)(b)(ii) of the Immigration Appeal Board
Act, 1966-67 (Can.), c. 90, which
provided that the Board might direct that the execution of a deportation order
be stayed or quashed and that the person could be granted entry or landing
having regard to “the existence of compassionate or humanitarian considerations”
that in its opinion warranted the granting of special relief. In its
examination of the issue, the Immigration Appeal Board made the following
observation:
27 Section
15(1)(b)(ii) gives the Court discretionary power - the words "in the
opinion of" used in the subsection make this quite clear. This discretion
extends to the appellant and to other persons who are closely connected with
him and who are directly affected by his fate. This discretion, however, is
judicial discretion, i.e., it must be founded on evidence, and the wording of
the section makes it quite clear that the test is objective and not subjective.
Webster's New Collegiate Dictionary defines "compassion" (fr. com -
pati, to bear, suffer) as "sorrow or pity excited by the distress or
misfortunes of another, sympathy". The word "pity" is given as a
synonym: "A feeling for the suffering of others". While this
definition implies an element of subjectivity, since emotion is involved, it is
clear that no judicial decision or finding, no matter how discretionary, can be
based on emotion. The meaning of the words "compassionate
considerations" in the context of s. 15(1)(b)(ii) must therefore be taken
to be those facts, established by the evidence, which would excite in a reasonable
man in a civilized community a desire to relieve the misfortunes of another -
so long as these misfortunes "warrant the granting of special relief"
from the effect of the provisions of the Immigration Act. The Immigration Act
and the Immigration Appeal Board Act are in pari materia. It is clear that in
enacting s. 15(1)(b)(ii) Parliament intended to give this Court the power to
mitigate the rigidity of the law in an appropriate case, but it is equally
clear that Parliament did not intend s. 15(1)(b)(ii) of the Immigration Appeal
Board Act to be applied so widely as to destroy the essentially exclusionary
nature of the Immigration Act and Regulations.
28 The
same arguments apply to the phrase "humanitarian considerations".
Webster defines "humanitarianism" as "Regard for the interests
of mankind, benevolence". "Humane" is defined as "Having
feelings and inclinations creditable to man; kind, benevolent" - again a
subjective word which is used objectively in the section.
[14]
I
concur with the observations of Justice Beaudry in Qiu v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 15, that this Court and the Immigration Officer are
to be guided as to the meaning of humanitarian and compassionate grounds from
the Supreme Court of Canada’s decision in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817. He writes:
[41]
Contrary to the submissions of the applicant, the Member was not required to
apply Chirwa, supra, in rendering his decision. The concept of
humanitarian and compassionate grounds has been the subject of a great deal of
judicial treatment since the Immigration Appeal Board of the day rendered that
decision. The exercise of the discretion of the Minister and the consideration
of humanitarian and compassionate grounds was amply examined by the Supreme
Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817. This decision was followed by others which added to our
collective understanding of these matters.
[15] In Baker, Madam Justice
L’Heureux-Dubé pointed out that the Manual which the Minister prepares for the
use by staff in processing section 25 applications is a good indicator of how
the discretion given to the Minister is to be exercised. It is significant that
the Manual provides that humanitarian and compassionate considerations refer to
“unusual and underserved” or “disproportionate” hardship being imposed on the
applicant in relation to others who are being asked to leave Canada. As a
consequence, as was noted by Justice Pelletier in Irimie v. Canada (Minister of
Citizenship and Immigration), 10 Imm. L.R. (3d) 206, [2000] F.C.J. No. 1906
(Q.L.), something more is required by way of hardship than those consequences
that are inherent on being asked to leave a country in which one has resided
for some time. This analysis does provide an objective basis for the required
decision and, in my view, one that is more appropriate and more readily applicable
than that expressed in Chirwa.
[16] The applicant further submitted
that the Chirwa test is more appropriate when looking at the hardship
that would befall the family members, in this case the mother and sister, who
would be left behind in Canada without the support of the applicant. She
submits that the hardship they will experience must also be examined and taken
into consideration and, in so doing, the appropriate measure is not “unusual
and underserved” or “disproportionate” hardship.
[17] In my view, absent a finding of
dependency by her mother and sister, the hardship occasioned by the applicant’s
removal, as difficult for the family as it will no doubt be, cannot be said to go
beyond the natural hardship of family separation occasioned by the removal of a
family member. The officer did consider the evidence presented and concluded
that “the applicant has not provided sufficient evidence to show how her mother
and sister are dependent on her”.
[18] I have examined the officer’s conclusion
that dependency was not established and find that it is a reasonable conclusion
based on the record. The letters submitted from her family member’s medical
doctors do not establish that either her sister or mother are dependent on the
applicant. Her mother’s doctor writes that “it would be advisable for
her to get a close relative to take care of her” (emphasis added). This is far
from indicating either that such care is required or that it cannot be provided
by someone other than a family member. In any event, as the respondent noted,
even after the applicant’s removal, the mother will still have one daughter
remaining in Canada to provide
family care, if needed. With respect to the sister, her doctor writes that she
“should have someone or family member to assist her in her daily housework”
The evidence before the officer was that the sister is engaged in full time
employment and the assistance offered by the applicant involves helping her to
attend her medical appointments. As such, the officer’s conclusion that there
is nothing in the evidence to establish a degree of dependency cannot be said
to be an unreasonable finding.
[19] The applicant further submits
that she will suffer undue or disproportionate hardship in returning to China after having
been absent for more than 20 years. Undoubtedly there will be an adjustment;
however, she does have family living in China – and more
importantly family with whom she has maintained contact during her long absence
from her home country. The officer also considered the applicant’s education
and experience and, in my view, reasonably concluded that she should be able to
re-establish herself there within a reasonable time period. The applicant
submits that the officer engaged in speculation when she concluded that the
applicant’s mother and sister would offer financial support to her until she
re-established herself in China. Based on the fact that they have
financially supported the applicant for the last 10 years, that is not an
unreasonable conclusion for the officer to have reached. In any event, the
burden was on the applicant and she provided no evidence that there would not
be financial support for her in China for the period until
she re-established herself.
[20] Having reviewed all of the materials
in the Certified Tribunal Record and the decision under review, I conclude that
the decision is reasonable and fair based on the evidence presented. Counsel
submitted that the officer failed to weigh the evidence on the “scales of
sensitivity”. I disagree. The officer looked and considered all the evidence
offered by the applicant and, in my view, her decision was reasonable and met
the test set out in Dunsmuir.
[21] The applicant submitted the
following question for certification: Whether Chirwa is the more
appropriate test to utilize when there are persons other than the applicant
affected by the applicant’s removal from Canada, rather than
the undeserved, disproportionate or unusual hardship test in Baker,
given that Chirwa was an interpretation given by a court.
[22] I am of the view that the
question posed would not be dispositive of an appeal in this matter. First,
there was no evidence of harm to the family members established here even on
the Chirwa test and second, the decision turns on its unique facts. In
any event, Baker makes it clear that it applies even when there are
other family members left behind. Madam Justice L’Heureux-Dubé, with reference
to the Manual’s guidelines wrote: “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” (emphasis added). Accordingly, the
question posed will not be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed and no question is certified.
“Russel W. Zinn”
Email this Content