Date: 20081008
Docket: IMM-319-08
Citation: 2008 FC 1139
Ottawa, Ontario, October 8, 2008
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ROMAN
DOROSHENKO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a
decision of a visa officer (Officer) dated November 13, 2007 (Decision)
refusing the Applicant’s application for permanent residence from within Canada on
humanitarian and compassionate grounds.
BACKGROUND
[2]
The
Applicant is a married, male citizen of the Ukraine and has been living in Canada since his
arrival in October 1997 at the age of 25. The Applicant had valid visitor’s
status until September 30, 1998, but continued to remain in Canada past the
time allowed by his visitor’s visa.
[3]
The
Applicant is a trained teacher in the Ukraine and works as a musician
in Canada. The
Applicant’s parents reside in the Ukraine.
[4]
While
in Canada as a visitor, the Applicant met and married his wife, a Canadian
Citizen.
DECISION UNDER REVIEW
[5]
The
Officer found that the Applicant did not present sufficient evidence to
establish that he would not be able to find employment to support himself in Ukraine as he had
the skills to teach and practise as a musician. The Applicant had also
previously worked in Ukraine performing deacon
duties. The Officer also found that the Applicant has reasonable savings to
assist his integration back into Ukrainian society and still speaks Ukrainian.
The Officer concluded that there would be no reason why the Applicant could not
apply for permanent residence from outside of Canada.
[6]
Although
the Applicant has some establishment in Canada, has upgraded his skills, and
has found gainful employment, the Officer found that this took place while he
remained in Canada illegally of
his own accord, and not due to circumstances beyond the Applicant’s control.
[7]
The
Officer concluded that the Applicants case did not warrant an exemption under
s. 25(1) because the Applicant would not be subjected to unusual, undeserved or
disproportionate hardship should he apply from outside Canada.
STATUTORY PROVISIONS
[8]
The
following provisions of the Act are applicable in these proceedings:
|
Application
before entering Canada
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document shall be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
Humanitarian
and compassionate considerations
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.
|
Visa
et documents
11.
(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
Séjour
pour motif d’ordre humanitaire
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.
|
ISSUES
[9]
The
issue raised by the Applicant is whether the Officer erred in his assessment of
whether there were sufficient humanitarian and compassionate grounds to grant
the Applicant an exemption under subsection 25(1) of the Immigration and
Refugee Protection Act by failing to take into account the medical issues
that were raised by the Applicant.
STANDARD OF REVIEW
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9,
the Supreme Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review” (Dunsmuir at para.
44). Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[11]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[12]
In Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R.
817 at para. 61,
the Supreme Court of Canada held that the standard of review applicable to an
officer’s decision of whether or not to grant an exemption based on
humanitarian and compassionate considerations was reasonableness simpliciter.
That standard has subsequently been applied in a long line of cases in which
the need for significant deference in this context has been recognized. Thus,
in light of the Supreme Court of Canada’s decisions in Baker and Dunsmuir,
and the previous jurisprudence of this Court, I
find the standard of review applicable to this issue to be reasonableness. When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir
at para. 47). Put another way, the Court should only intervene if the Officer’s
decision was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (ibid).
ANALYSIS
[13]
This
application raises a narrow issue: was it reasonable for the Officer not to
take into account the medical issues that were raised before him?
[14]
In
his affidavit, the Officer says that, with regard to the letters about the
Applicant’s arrest, detention, and medical diagnosis “I did not find that the
letters had any relevance or probative value in establishing what degree of
hardship would be faced by Mr. Doroshenko should he have to apply for permanent
residence from outside Canada.”
[15]
The
Officer also says that the Applicant’s “counsel did not make any argument in
her submissions regarding why [the Applicant’s] medical condition would
constitute undue, disproportionate, or undeserved hardship.”
[16]
The
Applicant admits that the issues he is now raising were not properly
“crystallised” before the Officer, but he says that the evidence was there and
should have been taken into account as part of the Decision. Quite apart from
the hardship issue, the Applicant says such evidence is relevant to the
establishment considerations that are part of the Decision. In his reasons, the
Officer points out that the Applicant’s stay in Canada in breach of
the immigration regulations was purely a matter of choice. The Applicant disputes
this and says that his medical condition was material to this issue.
[17]
The
Applicant is not a refugee claimant and there is nothing to suggest he could
not have returned to Ukraine. He stayed in Canada as
a matter of choice.
[18]
If
I look at the evidence before the Officer concerning the Applicant’s medical
condition, I see there is a letter from Dr. Kuhlmann dated March 10, 2006. Dr.
Kuhlmann says that to his knowledge “this patient never had any symptoms from
this condition.”
[19]
There
is also a note from the Applicant himself on the file in which he explains that
the diagnosis for T.B. was wrong: “it became clear that I did not have any
illness.”
[20]
In
his affidavit, the Applicant provides after-the-fact explanations and makes
several uncorroborated assertions about his medical condition. But none of this
was before the Officer when he made his Decision.
[21]
The
Officer was never made aware of how the events surrounding the misdiagnosis
might have impacted the decision he had to make in any way. There were no
submissions by Applicant’s counsel on this point.
[22]
If
I look at what was before the Officer, it is difficult to say that there was
anything with which to gauge the relevance of the Applicant’s medical condition
to the application. It is too vague and flimsy. The kinds of implications which
the Applicant now says the Officer should have drawn cannot be supported by the
facts in this case.
[23]
As
this Court has pointed out on numerous occasions, it is up to applicants to
specify the grounds upon which their applications are based and to adduce the
necessary evidence. See Ahmed v. Canada (Minister of
Citizenship and Immigration) 2008 FC 646 at paragraph 37. In the
present case, it was incumbent upon the Applicant to raise and support with
evidence the issue which he thought gave rise “not just to hardship, but to
hardship which is unusual and undeserved or disproportionate,” to use Justice
Dawson’s words from Ahmed.
[24]
The
Applicant not only adduced little in the way of evidence as to the nature of
his medical condition, he also failed to raise any issues based upon it, or to
say how it might impact in any way the decision the Officer had to make.
[25]
The
Officer’s Decision that the letters had no relevance or probative value was
entirely understandable and reasonable. And even if the Officer’s affidavit is
left entirely out of account, it was not unreasonable for the Officer not to mention
or address in his Decision the letters which, on their face, appear to have no
probative value and the relevance of which the Applicant failed to explain to
the Officer.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
This
application for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
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