Date: 20081009
Docket: IMM-1853-08
Citation: 2008
FC 1152
Vancouver, British Columbia, October 9, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
JUNG
MI LEE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant, a citizen of Korea, seeks judicial review of a
negative decision with respect to her application for an exemption from
the visa requirement on Humanitarian and Compassionate (H&C) grounds. She
challenges both the reasonableness of the decision and the procedural fairness
of the failure to grant her an oral interview.
[2]
For the
reasons that follow, I find that the Officer’s decision was reasonable and that
the applicant’s challenge merely goes to the weight to be given to the evidence
that was before the Officer. I am also of the view that the applicant did not
have a right to an interview in the context of this particular file. As a
result, this application for judicial review is dismissed.
I. Facts
[3]
The
applicant is a 35-year-old citizen of Korea.
Her former spouse, whom she married on February 4, 2005, sponsored her
application to immigrate to Canada.
[4]
After
arriving in Canada on February 20, 2005, the
applicant’s husband became physically and emotionally abusive towards her,
causing her to flee the family home in fear for her life, on or about November
14, 2005. The applicant’s husband was charged with assault, sexual assault and
uttering threats against her. He eventually pled guilty to a charge of common
assault and was sentenced to one year of probation on or about February 13,
2007.
[5]
The
applicant applied for and obtained a divorce on the grounds of cruelty, which
became final on April 26, 2007.
[6]
On July 6,
2007, the applicant was diagnosed by Dr. Kim, a psychologist, with
psychological trauma, including post-traumatic stress disorder, anxiety,
depression and insomnia attributable to constant experiences of domestic
violence.
[7]
After
their separation, the applicant’s former husband withdrew his sponsorship
application. She was therefore left to apply for permanent residence from
within Canada on humanitarian and compassionate
grounds. Her application was refused in a decision rendered on April 4, 2008.
II. The Impugned Decision
[8]
The Officer
recognized that the breakdown of Ms. Lee’s marriage and the abuse she suffered
during her marriage were devastating and traumatic experiences for her, and
noted that the memory of the abuse she suffered will unfortunately remain with
her whether she is in Korea or Canada. The Officer also acknowledged that Ms.
Lee has post-traumatic stress disorder and that her recovery from the abuse she
suffered will be a long process for her, but added that she has begun the
process of healing from the abuse.
[9]
The Officer
also acknowledged the psychologist’s recommendation (i.e., that the applicant
should remain in Canada rather than return to Korea to recover from her mental illness), but
found the evidence presented insufficient to show that Ms. Lee would not have
access to psychological counselling in Korea.
[10]
The
Officer took note of the emotional support Ms. Lee has received in Canada from
her cousin and her church, but also added that she has close family members in Korea. The Officer noted that the applicant’s
parents permitted her to live with them in Korea and continued to support her after she
returned to Canada, even though they were upset about
her divorce. The Officer found it was reasonable to expect the applicant’s
parents, despite her divorce, would continue to support Ms. Lee if she were to return
to Korea.
[11]
The
Officer expressed sympathy for Ms. Lee’s plight and considered it unfortunate
that the sponsorship was withdrawn as a result of her divorce, but found that
factor insufficient to warrant a visa exemption. Moreover, the Officer came to
the conclusion that Ms. Lee did not have a significant degree of establishment
in Canada.
[12]
Finally,
the Officer accepted that Ms. Lee may face societal discrimination in Korea as
a divorced woman, but was not satisfied on the basis of the evidence submitted
that the Korean government sanctions such discrimination. Furthermore, the
Officer was not satisfied that Ms. Lee, in coping with these difficulties,
would be isolated from other women in Korea
who are divorced and living in situations similar to her own.
[13]
To sum up,
the Officer wrote:
I recognize that a return to Korea may cause Ms. Lee stress and anxiety and
entail a period of re-adjustment. I am not, however, satisfied that it would
cause her disproportionate hardship. Ms. Lee has family in Korea who have been supportive of her and who
can offer her assistance in resettling in that country. She worked in Korea
prior to coming to Canada. Her parents have supported
her financially and it is reasonable to expect that they would be willing to
assist her financially in Korea, if required.
III. Issues
[14]
There are
three issues to be determined in this application for judicial review:
- What is the applicable
standard of review?
- Has the Officer committed a
reviewable error in assessing the evidence?
- Has the Officer breached the
duty of fairness owed to the applicant by not granting her an oral interview?
IV. Analysis
[15]
There is
no dispute between the parties as to the applicable standard of review.
According to the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, an exhaustive
review is not required in every case to determine the proper standard of
review. Reliance can be placed on existing jurisprudence when the analysis
required has already been performed (see Dunsmuir, para. 57).
[16]
It is well
settled law since Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 [Baker], that the standard of review applicable to
an officer’s decision as to whether or not to grant an exemption based on humanitarian
and compassionate considerations is that of reasonableness simpliciter.
Following the decision of the Supreme Court in Dunsmuir to move from
three to two standards of judicial review, the applicable standard must
henceforth be reasonableness.
[17]
Accordingly,
this Court must determine the reasonableness of both the process and the
outcome of the impugned decision. As to the outcome, the Court will intervene
only if the decision falls outside the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir, para.
47). Considering that the relief under s. 25 of the Immigration and Refugee
Protection Act (IRPA) is an exceptional remedy dependent on the
Minister’s discretion, considerable deference shall be given to the
determination of the decision maker (Gazlat v. Canada (Minister of
Citizenship and Immigration), 2008 FC 532).
[18]
As to
issues of procedural fairness, it is well established that a standard of review
analysis is not appropriate. When such issues are raised, it falls upon the
Court to determine whether the process that was followed was fair, having
regard to all the circumstances; if a breach is found, the decision must be set
aside (Sketchley v. Canada (Attorney General), 2005 FCA 404; Ha v.
Canada, 2004 FCA 49).
[19]
Section
11(1) of the IRPA requires a foreign national who wishes to reside
permanently in Canada to apply for and obtain a
visa before coming to Canada. However, section 25(1) of IRPA
allows the Minister to exempt a foreign national from this requirement where
there are sufficient humanitarian and compassionate considerations to justify
such an exemption.
[20]
It should
never be forgotten that granting relief under section 25 is an “exceptional
remedy” dependent on the Minister’s discretion. An applicant is not entitled to
a particular outcome, and it is not sufficient that an applicant’s plight may
invite sympathy. The onus is on the applicant to satisfy the officer that, in the
applicant’s personal circumstances, the requirement to obtain a visa from
outside Canada in the standard manner would
cause unusual and undeserved or disproportionate hardship. The test cannot be
whether Canada would be a more desirable
place to live than the applicant’s country of origin. Nor should this Court
intervene only for the reason that it may have come to a different conclusion.
As long as the officer properly examined the totality of the evidence and came
to a defensible and acceptable outcome, her decision should be insulated from
judicial review as the weight to be given to any particular fact remains
entirely within her expertise.
[21]
It is
trite law that the proper test for assessing humanitarian and compassionate
applications is whether the general obligation for all foreign nationals to
apply for permanent residence from abroad would cause the applicant unusual,
undeserved or disproportionate hardship. This assessment, in turn, encompasses a
consideration of the risk the applicant allegedly faces in her country of
nationality, her level of integration in Canadian society, and the consequences
of her removal from Canada.
[22]
The
applicant submits that the Officer resorted to unverified assumptions and
erroneous logic to discount established findings of discrimination against
divorced women in Korea, as opposed to contextualizing
those findings and assessing the repercussions for the applicant personally. More
particularly, the applicant contends the Officer explained away the real stigma
and hardship the applicant would face as a psychologically unwell divorced
woman by arguing that she will not be alone in her suffering. The fact that there
may be thousands of other women who are victims of social discrimination and
hostility in Korea does not justify the refusal of her application; equally
irrelevant, in the applicant’s view, is the fact that insufficient evidence was
submitted to demonstrate that the Korean government sanctions discrimination
against divorced women.
[23]
Having
read carefully the reasons for the decision reached by the Officer, I cannot
but conclude that the Officer was alive to the applicant’s position. She
acknowledged the abusive relationship Ms. Lee had left, the psychological scars
she bears as a result, and the long healing process ahead of her. The Officer
also recognized it was unfortunate that the sponsorship was withdrawn. But
having regard to all the circumstances, she was nevertheless not satisfied that
the hardship of having to obtain a permanent resident visa from outside of Canada in the normal manner would be
either unusual and undeserved or disproportionate. This is a conclusion that
she could reasonably draw on the basis of the evidence that was before her.
[24]
Contrary
to what the applicant asserts, the inferences drawn by the Officer with respect
to the support Ms. Lee will likely receive from her parents upon her return to Korea are not unreasonable. Nor was it
irrelevant to take into consideration the facts that the Korean government does
not countenance or condone societal discrimination, and that she would not be
isolated in coping with these difficulties. The Officer also noted there was
insufficient evidence to show that Ms. Lee would not have access to
psychological counselling in Korea to aid in her recovery. Of course,
none of these factors were sufficient or determinative, in and of themselves,
in assessing her application. Nevertheless, they could certainly be taken into
consideration to determine whether she would suffer unusual and undeserved or
disproportionate hardship if required to apply for permanent residence from Korea.
[25]
The
psychologist’s opinion on social conditions in Korea, while no doubt interesting and relevant
considering his own background, could not bind the Officer. Not only could he
not be cross-examined, but more importantly, he was not qualified as an expert
on that topic, and his views are therefore no more than his opinion.
[26]
The
applicant relied on a few cases from this Court to support her proposition that
the Officer erred in assuming that Ms. Lee would be able to cope since she will
not be alone in her situation if sent back to Korea. However, these cases (Melchor v.
Canada (Minister of Citizenship and Immigration), 2004 FC 1327; Sha’er
v. Canada (Minister of Citizenship and Immigration), 2007 FC 231) are
distinguishable in that they both dealt with H&C applications where the
officer applied the PRRA test of risk to life or risk of cruel and unusual
treatment.
[27]
Finally,
the applicant submitted that the Officer did not give sufficient weight to the
Respondent’s IP-5 Manual (Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds), which instructs officers to be
particularly sensitive to cases where the spouse of a Canadian citizen or
permanent resident leaves an abusive situation and, as a result, is left
without an approved sponsor.
[28]
Section
13.10 of that Manual states:
Family members in Canada, particularly
spouses, who are in abusive relationships and are not permanent residents or
Canadian citizens, may feel compelled to stay in the relationship or abusive
situation in order to remain in Canada;
this could put them at risk. Officers are then urged to be particularly
sensitive to such cases and to take into account a number of factors when
assessing them, namely 1) information indicating there was abuse such as police
incident reports, charges or convictions, 2) whether there is a significant
degree of establishment in Canada, 3) the hardship that would result if the
applicant had to leave Canada, 4) the customs and culture in the applicant’s
country of origin, 5) support of relatives and friends in the applicant’s home
country, 6) whether the applicant is pregnant, 7) whether the applicant has a
child in Canada, 8) the length of time in Canada, 9) whether the marriage or
relationship was genuine, and 10) any other factors relevant to the H&C
decision.
[29]
It is true
that the Officer nowhere mentions explicitly the Manual in her reasons. Once
again, however, a careful reading of her decision shows that she did take the suggested
factors into consideration. Moreover, it has been held time and again that
guidelines are not law, are not binding on the Minister or his agents, and do
not create any legal entitlement in applicants who believe they have satisfied
them (Legault v. Canada (Minister of Citizenship and Immigration), 2002
FCA 125). While they can be of assistance to the Court, they cannot fetter the
discretion of an officer.
[30]
The
applicant’s final argument is that the Officer breached the duty of fairness in
not providing the applicant with an oral interview. According to Ms. Lee, the
Officer’s written reasons contain several statements that amount to unverified
assumptions. For example, the Officer assumes that because Ms. Lee’s parents
have supported her financially in Canada,
it is reasonable to expect that they would continue to do so should she return
to Korea and that they would also
sustain her emotionally. In making that assumption, says the applicant, the
Officer ignored her assertion that she felt uncomfortable with her parents
during her month-long visit with them, for the very fact that they were upset
over her divorce. It does not necessarily follow that the applicant’s parents
will continue to support her in Korea, where their daughter is stigmatized and
shunned by society, in the same manner they do now when she is in Canada. Ms. Lee therefore argues that
she should at least have had a chance to address the Officer’s speculations and
rebut her assumptions at an interview.
[31]
Procedural
fairness does not always require an oral hearing. As the Supreme Court
recognized in Baker, supra, “[t]he flexible nature of the duty of
fairness recognizes that meaningful participation can occur in different ways
in different situations” (at para. 33). The Court went on to state explicitly
that an oral hearing is not a general requirement for an H&C decision. As
long as the applicant is allowed to put before the immigration officer the
information relevant to his or her application, the procedure will be fair.
[32]
The
applicant tried to rely on the decision of this Court in Khan v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1372, where Justice Rouleau was concerned that the immigration officer
had not properly investigated the validity of a marriage. There was nothing of
the kind here. The credibility of the applicant was not at stake. The Officer’s
inferences that the applicant’s family would continue to support her in Korea were reasonable to make in the
circumstances, on the basis of the evidence that was before her.
V. Conclusion
[33]
For all of
the foregoing reasons, I am of the view that this application for judicial
review ought to be dismissed.
[34]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that this
application for judicial review is dismissed. No serious question of general
importance is certified.
“Yves
de Montigny”
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