Date: 20080410
Docket: IMM-1929-07
Citation: 2008 FC 463
Ottawa, Ontario, April 10,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
YOGAMMAH
THARMALINGAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant is a 64-year-old Sri Lankan widow whose only remaining children live
in Canada. She was
denied her H&C application and this is the judicial review of that
decision.
II. BACKGROUND
[2]
The
Applicant is a citizen of Sri Lanka whose refugee claim was
denied in 2004. She and her late husband then applied for H&C
consideration. Regrettably, Mr. Tharmalingam Sr. died before the H&C
process was completed.
[3]
The
Applicant has three children in Canada; another son has disappeared
in Sri
Lanka
and his whereabouts are unknown. The suggestion is that this son was caught up
in the civil war and has just disappeared.
[4]
Mrs.
Tharmalingam had been receiving welfare assistance until a year ago. After
that, she has been supported by her children, despite the fact that one is
unemployed, another is collecting employment insurance and the third is paid
$1,200 a month.
[5]
In
dismissing the application, the Officer concluded that the Applicant had not
shown a sufficient level of dependency on her family to justify an H&C
decision in her favour. The Officer noted the financial situation of each
child, as described above, and that separation from her family was no more
difficult than it would be for other families in a similar situation. Lastly,
on this financial point, the Officer noted that the Applicant’s children could
sponsor her family class application from overseas at a later date.
[6]
In
discounting the Applicant’s claim that she was unable to return to her home
country because no one is left there and her home is destroyed, the Officer
concluded that the Applicant had not sufficiently (a) explained why
her missing son could not be located and (b) shown that her home was destroyed.
[7]
The
Officer, in reviewing the Applicant’s evidence of establishment, noted that she
had shown little establishment since her arrival. Lastly, the Officer concluded
that the Applicant, who is no longer on welfare and her children are taking
care of her, had not sufficiently shown how she was supporting herself.
III. ANALYSIS
[8]
As
Dunsmuir v. New Brunswick, 2008 SCC 9, has
established, where the matter is of mixed law and fact or fact generally, the
standard of review is reasonableness. The reasonableness standard requires the
Court to engage in a somewhat probing examination of the reasons for a decision
while also recognizing that where discretion is being exercised and where the
decision maker has some level of expertise or familiarity, a measure of
deference is owed.
[9]
In
my view, there are some significant difficulties with the decision. Sympathy
for the Applicant’s circumstances is not the governing or even influencing
factor. H&C decisions are often difficult and frequently involve tragic
circumstances. It is also important to observe that “humanitarian and compassionate”
is a technical term not necessarily imputing the meaning more commonly given to
the words.
[10]
In
my view, the Officer reached an unreasonable conclusion on the financial
evidence. The fact that the Applicant’s children could not meet the financial
requirements for a sponsorship application cannot be a relevant consideration,
particularly in the face of evidence that the children have been able to take
care of the Applicant despite their difficult situations.
[11]
The
further finding that the Applicant had not provided sufficient evidence to show
how she is supporting herself flies in the face of the evidence to which the
Officer referred in the same paragraph. That evidence, which is uncontradicted,
is that the Applicant lives with her children and that they look after her,
particularly now that she is without social assistance.
[12]
This
evidence goes to the root of the first finding by the Officer that the
Applicant had not shown a sufficient level of dependency on her family in Canada. Where one
is dependent on family for the roof over one’s head and the food on the table,
it is difficult to see how that evidence, particularly in these circumstances,
did not weigh heavily on her dependency on her family.
[13]
The
Officer’s comments concerning an overseas sponsorship application can be taken
as illogical in the current context where the sons do not meet the financial
conditions for sponsorship. It could also be taken as speculation about the
future. In either case, it does not assist in the analysis of the H&C
application.
[14]
While
the burden is on the Applicant to establish her case, it is difficult to see
what more the Applicant could do to explain her missing son’s whereabouts. If
the Officer did not believe her about this matter or that of losing her house,
a matter which may be open to the Officer, it is not possible to discern the
basis for the conclusion.
[15]
While
there are problems with this decision, it is not fair to say that the Officer
was capricious. Hard facts make for hard decisions and the Officer had to
balance human sympathy with the law.
IV. CONCLUSION
[16]
Given
the Court’s conclusions, this judicial review will be granted, the decision
quashed and the H&C application referred to a different officer to be
decided on a new and more current record.
[17]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the decision is quashed and the
H&C application is to be referred to a different officer to be decided on a
new and more current record.
“Michael
L. Phelan”
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