Date: 20080220
Docket: IMM-1538-07
Citation:
2008 FC 219
Ottawa,
Ontario, February 20, 2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
JEANIE
LYNN LAO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision dated February 1, 2007,
rendered by Mr. Harold Wulf, the Second Secretary at the Canadian Embassy in
Manila, Philippines (the Second Secretary), wherein he denied the applicant’s
application for permanent residence under section 25 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) with respect
to her application under subsection 117(9) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations).
I. Background
[2] Ms. Jeanie
Lynn Lao (the applicant) was born May 22, 1983 in the Philippines. Her birth
certificate indicates Jimmy Lao as her father and Evelyn Yuquimpo as her
mother.
[3]
Jimmy
Lao (the sponsor) arrived in Canada and became a permanent resident on July 6,
1996. He declared three dependants and a spouse at the time, but did not
include the applicant. He became a Canadian citizen December 29, 2001.
[4]
On
September 27, 2005, the applicant filed an application for permanent residence
in Canada under the family
class which was refused on March 30, 2006 on the basis that she did not meet
the requirements for immigration to Canada due to her sponsor’s
failure to declare her when he became a permanent resident. No appeal of that
decision was brought.
[5]
On
August 6, 2006, the applicant made a new application for permanent residence in
Canada as a member
of the family class with exemption from the requirement that she be under the
age of twenty-two. In addition, the applicant’s representative asked for a
direct consideration under subsection 25(1) of the Act on the basis that there
are sufficient compassionate and humanitarian grounds to grant permanent
residence to the applicant. On February 1, 2007, the Second Secretary decided
that the applicant was not a member of the family class with respect to her
sponsor. He also concluded that after reviewing her case on humanitarian and
compassionate (H&C) considerations, it was not justified by H&C considerations
to grant her permanent residence status or to exempt her from any applicable
criteria or obligation of the Act.
[6]
The
application for H&C is mainly based on the following explanation. Ms Evelyn
Yuquimpo (step mother) is not the birth mother of the applicant. Her real
mother was the concubine of the sponsor before he was married to the step mother.
The step mother was told of the existence of the child only one week before the
wedding. Due to family and general social pressure in the Philippines, the
applicant was raised by her grand-parents. The sponsor did not declare her
because the step mother did not want her family to know about the applicant.
The applicant, the sponsor and the three other children born to the sponsor and
the step mother now want to be reunited in Canada. The
grand-mother who took care of the applicant has passed away and the
grand-father has left for the United States. There is no close
family left in the Philippines. The applicant is educated and has the ability
to become economically established.
II. Decision under
review
[7]
The
Second Secretary wrote the following in the Computer Assisted Immigration Processing
System (CAIPS) notes:
IN CONSIDERATION OF H&C IN THIS CASE,
I DO NOT FIND COMPELLING REASONS TO RECOMMEND A25 IN THIS CASE.
ACCORDING TO SPONSOR, FAILURE TO INCLUDE
SUBJ IN HIS WIFE’S APPLICATION WAS UPON HERSELF. AFTER IMMIGRATION OF SPR
RELATIONSHIP BECAME BETTER. IT IS NOT CLEAR WHY THERE HAS BEEN NO EFFORT TO
SPONSOR SUBJECT PREVIOUSLY IF SPONSOR AND HIS FAMILY HAVE SUCH STRONG FEELINGS
FOR HER IN THE PAST. SUBJECT HAS PURSUED HER EDUCATION HERE IN THE PHILIPPINES,
GRADUATED FROM A WELL-KNOWN PRIVATE
UNIVERSITY AND IS NOW GAINFULLY EMPLOYED
WITH IBM.
PREVIOUS APPLICATION WAS FILED WHILE
SUBJECT WAS COMPLETING UNIVERSITY STUDIES. WITH SUBJECT NOW 23 YEARS OLD AND APPARENTLY
WORKING AND LIVING INDEPENDENTLY. I AM NOT SATISFIED THAT ANY OF THE
CONSIDERATIONS PRESENTED BY THE REPRESENTATIVE ARE SUFFICIENT TO OVERCOME THE
EXCLUSION OF R117(9)(d). I AM NOT SATISFIED THAT NON-DECLARATION WAS NOT DUE TO
AN ACT OF OMISSION BUT RATHER A DELIBERATE CHOICE OF SPONSOR AND HIS WIFE DUE
TO CONSCERNS ABOUT FAMILY IMAGE.
III. Legislation
[8]
The
relevant legislation is contained in Annex A.
IV. Issue
A) Did the
Second Secretary err in his assessment of the evidence or fail to provide adequate
reasons?
V. Applicable standard
of review
The Supreme
Court of Canada, in Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 62,
determined that the applicable standard of review of a decision based on
H&C grounds made from within Canada should be reasonableness simpliciter.
Recently, this Court has applied the same standard of review for H&C
applications made from outside of Canada (David v. Canada (Citizenship and Immigration), 2007 FC 546 at
paragraph 14 [David]; Nalbandian v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1128, at paragraph 12). However,
on a question of procedural fairness, the applicable standard of review is
correctness (Canada (Attorney General) v.
Sketchley,
2005 FCA 404).
VI. Applicant’s submissions
[9] The applicant argues
that the Second Secretary erred in considering the circumstances of the
applicant in relation to subsection 25(1) of the Act and paragraph 117(9)(d)
of the Regulations and did not give adequate reasons to support his decision.
VII. Respondent’s submissions
[10]
The
respondent alleges that the Second Secretary’s reasons demonstrate that he
considered all the relevant factors in his assessment of the application and
that there is no basis for the Court’s intervention.
VIII. Analysis
A) Did the
Second Secretary err in his assessment of the evidence or fail to provide
adequate reasons?
[11]
The
applicant believes that the Second Secretary did not consider all the relevant
factors or engage in a meaningful analysis of those factors. The applicant believes
that he should have considered: the legislative scheme and Parliament’s
intention; the intention of the applicant’s father at the time of his application
for permanent residence, as he had nothing to gain by omitting his daughter;
the relationship between the applicant and her family; as well as the change in
circumstances after the sponsor left the home country.
[12]
The
Second Secretary summarized the grounds given for H&C in the CAIPS notes as
follows:
- WISH TO BE REUNITED WITH FATHER.
- WISH BY SPR AND HIS WIFE TO RECTIFY
MISTAKE OF LEAVING HER BEHIND.
- GRANDMOTHER PASSED AWAY AND GRANDFATHER
HAS GONE TO U.S..
- SUBJ HAS SKILLS AND ABILITY TO BECOME
ECONOMICALLY ESTABLISHED.
- SUBJ HAS RELATIONSHIP WITH
HALF-SIBLINGS IN CANADA.
[13]
The
respondent argues that it appears from the CAIPS notes that the Second
Secretary did consider the factors alleged by the applicant but found that
balancing these with the unfavourable factor that although the sponsor had been
granted permanent residence status in Canada since July 1996, no attempts to
sponsor the Applicant were made until 2005.
[14]
Moreover,
the respondent notes that the applicant did not demonstrate that she was a “dependent
child” pursuant to section 2 of the Regulations, which specifies that the child
has to be less than 22 years old. On this particular question, I would note
that the applicant’s representative requested, in the letter dated August 6,
2006 an exemption of the requirement to be twenty-two years old on H&C
grounds. The Second Secretary did not really address this concern so I believe
it was not a turning point in his decision.
[15]
Justice
Michel
Shore, in Li v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1109, examined the reasons of a visa
officer who had determined not to grant permanent residence on H&C grounds
after having found that the applicant was excluded from the family class and
wrote the following at paragraphs 27 and 28 :
The
reasons provided by the Visa Officer through the CAIPS notes are not sufficient
because they do not make findings of fact with respect to the evidence
submitted by Mr. Li. Indeed, the CAIPS notes do not refer to the relationship
between Mr. Li and his father, Mr. Li’s need and reasons for wanting to be
with his father, the life Mr. Li could expect in Canada, the relationship with
his sister (who is now in Canada), and the fact that his father has been
supporting Mr. Li financially.
The
Visa Officer’s decision does not begin to approach the complexity of the
interplay between paragraph 117(9)(d) of the Regulations and subsection
25(1) of IRPA. It does not disclose any analysis of the factors for and against
allowing an exemption from paragraph 117(9)(d) of the Regulations, and
therefore, does not show that any balancing was done to determine whether, in
the particular circumstances of Mr. Li, H & C factors existed to overcome
paragraph 117(9)(d).
[16]
In
the case at bar, I believe it is important to cite here, once more, a crucial
part of the CAIPS notes:
IT IS NOT CLEAR WHY THERE HAS BEEN NO
EFFORT TO SPONSOR SUBJECT PREVIOUSLY IF SPONSOR AND HIS FAMILY HAVE SUCH STRONG
FEELINGS FOR HER IN THE PAST. SUBJECT HAS PURSUED HER EDUCATION HERE IN THE PHILIPPINES, GRADUATED FROM A WELL-KNOWN PRIVATE UNIVERSITY AND IS NOW GAINFULLY EMPLOYED
WITH IBM.
[…]
I AM NOT SATISFIED THAT NON-DECLARATION
WAS NOT DUE TO AN ACT OF OMISSION BUT RATHER A DELIBERATE CHOICE OF SPONSOR AND
HIS WIFE DUE TO CONCERNS ABOUT FAMILY IMAGE.
[17]
I
am of the opinion that if the Second Secretary thought it was “not clear” as to
why the applicant applied in September 2005 for the first time, it can only mean
that he did not consider or that he erred in his assessment of the evidence
that was before him. The grandmother of the applicant, who raised her, passed
away in July 2005, less than 2 months before the applicant applied for the
first time to come to Canada. As her infirm grandfather had moved to
the United
States,
it is understandable that the applicant wanted, at that point, to join what was
left of her close family. The sponsor also gave a detailed explanation
concerning his spouse’s feeling towards the applicant which changed only over
the years. Although the half-siblings presented letters to demonstrate their
affection toward the applicant, it has been alleged that the spouse had had strong
feelings against sponsoring the applicant, but no longer objects.
[18]
In
addition, it is clear from the evidence submitted in support of the application
that no “omission” is alleged for the non-declaration of the applicant.
Although this choice was deliberate and related to family image, the Second
Secretary nonetheless had to analyse the H&C factors to see if, in the
circumstances, an exemption from paragraph 117(9)(d) of the Regulations
should be granted. The applicant provided an extensive explanation as to why,
when he came to Canada, he did not mention the applicant.
[19]
Although
directives (Manual I.P. 2) for processing applications under Section 25 of the
IRPA are not law, they indicate the factors to be considered in deciding such
application.
[20]
Finally,
the evidence reveals that the applicant had been unemployed since February
2006, her last employer being IBM. This is a disturbing fact because the Second
Secretary wrote in the CAIPS notes dated January 29, 2007, that the applicant
“IS NOW GAINFULLY EMPLOYED WITH IBM”. This is a factual error.
[21]
While
it is within the Second Secretary’s discretion to balance the different factors,
he has the obligation to consider them and on this, I will cite Justice Luc J. Martineau
in the decision David, above, in which he
wrote the following at paragraph 24:
[24]
While it is not the role of the Court to re-weigh the evidence, it
must be satisfied that the totality of the evidence has been thoroughly
reviewed by the decision-maker. This appears not to be the case and the
few indications mentioned in the CAIPS notes do not provide a clear rationale
of why any of the public policy considerations mentioned by the First Secretary
(such as the past misrepresentations) should prevail here over the objective
mentioned at paragraph 3(1)(d) of the Act “to see that families are
reunited in Canada”. Nor do they reveal whether the First Secretary considered
that de facto family members excluded from the family class because of
the operation of paragraph 117(9)(d) of the Regulations may suffer
hardship indefinitely.
[22]
Justice
Frank Iacobucci gave the following explanation of the reasonableness standard
in Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56:
…An
unreasonable decision is one that, in the main, is not supported by any reasons
that can stand up to a somewhat probing examination. Accordingly, a court
reviewing a conclusion on the reasonableness standard must look to see whether
any reasons support it. The defect, if there is one, could presumably be in the
evidentiary foundation itself or in the logical process by which conclusions
are sought to be drawn from it. An example of the former kind of defect
would be an assumption that had no basis in evidence, or that was contrary to
the overwhelming weight of the evidence. An example of the latter kind of
defect would be a contradiction in the premises or an invalid inference. [Emphasis
added]
[23]
In
the present case, I believe that the decision should be set aside because the
reasons given by the Second Secretary are, on one hand, not drawn from the
evidence submitted are speculative and, on the other hand, not complete enough
to understand the rationale of why the H&C considerations presented were
not sufficient to overcome the exclusion of paragraph 117(9)(d) of the
Regulations.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
- The application for
judicial review is allowed.
- The decision made
on February 1, 2007 is set aside and the matter is sent back for
re-determination by a different decision maker.
“Orville
Frenette”
ANNEX A
The discretionary power of the Minister to grant
an exemption is found at subsection 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 and reads as follows:
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25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, 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.
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25. (1) Le ministre
doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme
pas à la présente loi, et peut, de sa propre initiative, 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.
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The following extracts of the Immigration
and Refugee Protection Regulations, SOR/2002-227 are relevant in the
instant judicial review:
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2. The definitions in this section apply in these Regulations.
[…]
"dependent child" , in respect
of a parent, means a child who
(a) has one of the following
relationships with the parent, namely,
(i) is the biological child of the
parent, if the child has not been adopted by a person other than the spouse
or common-law partner of the parent, or
(ii) is the adopted child of the parent;
and
(b) is in one of the following
situations of dependency, namely,
(i) is less than 22 years of age and not
a spouse or common-law partner,
(ii) has depended substantially on the
financial support of the parent since before the age of 22 — or if the child
became a spouse or common-law partner before the age of 22, since becoming a
spouse or common-law partner — and, since before the age of 22 or since
becoming a spouse or common-law partner, as the case may be, has been a
student
(A) continuously enrolled in and
attending a post-secondary institution that is accredited by the relevant
government authority, and
(B) actively pursuing a course of academic,
professional or vocational training on a full-time basis, or
(iii) is 22 years of age or older and
has depended substantially on the financial support of the parent since
before the age of 22 and is unable to be financially self-supporting due to a
physical or mental condition. ( enfant à charge )
117. [...]
(9) A foreign national shall not be
considered a member of the family class by virtue of their relationship to a
sponsor if
[…]
(d) subject to subsection (10),
the sponsor previously made an application for permanent residence and became
a permanent resident and, at the time of that application, the foreign
national was a non-accompanying family member of the sponsor and was not
examined.
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2. Les définitions qui suivent s’appliquent au présent règlement.
[…]
«enfant à charge» L’enfant
qui :
a) d’une part, par rapport à l’un ou
l’autre de ses parents :
(i) soit en est l’enfant biologique et
n’a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii) soit en est l’enfant adoptif;
b) d’autre part, remplit l’une des
conditions suivantes :
(i) il est âgé de moins de vingt-deux
ans et n’est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé qui n’a pas
cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre
de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans ou
est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la
fois :
(A) n’a pas cessé d’être inscrit à un
établissement d’enseignement postsecondaire accrédité par les autorités
gouvernementales compétentes et de fréquenter celui-ci,
(B) y suit activement à temps plein des
cours de formation générale, théorique ou professionnelle,
(iii) il est âgé de vingt-deux ans ou
plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de
l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de
vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique
ou mental. ( dependent child )
117. […]
(9) Ne sont pas considérées comme
appartenant à la catégorie du regroupement familial du fait de leur relation
avec le répondant les personnes suivantes :
[…]
d) sous réserve du paragraphe (10), dans
le cas où le répondant est devenu résident permanent à la suite d’une demande
à cet effet, l’étranger qui, à l’époque où cette demande a été faite, était
un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas
fait l’objet d’un contrôle.
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