Date: 20081114
Docket: IMM-1179-08
Citation: 2008 FC 1278
Ottawa,
Ontario, November 14, 2008
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
MARGARET SEONA STEPHENS
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Stephens,
a citizen of Saint Vincent, was admitted to Canada as a visitor in 2001. She did not extend
her status when it expired and has been without status since 2002.
[2]
Her
application for an exemption from the requirement to file her permanent
residence application based on humanitarian and compassion considerations (HC
application) from outside Canada, in derogation to the general
rule, was denied by an immigration officer. That decision is challenged by this
judicial review application before this Court.
[3]
Three
points at issue were raised at the hearing:
·
Ms.
Stephens’ degree of establishment in Canada;
·
The availability
of a place to live in Saint Vincent; and
·
Ms.
Stephens’ fear for her well-being should she be required to return to Saint Vincent.
[4]
As regards
decisions on HC applications, one must weigh Ms. Stephens’ degree of
establishment in Canada against an assessment of the situation that she would
face if she were to return to Saint
Vincent. The
issue of a sufficiently pronounced fear does not arise here, hence neither section 96
nor section 97 apply. Citizenship and Immigration Canada’s IP 5 manual, entitled
“Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds,” discusses unusual hardship rather than unusual, undeserved or
disproportionate hardship.
[5]
It is
clear that even before the Supreme Court’s decision in Dunsmuir v. New Brunswick
2008 SCC 9, [2008] S.C.J. No. 9, the standard of review in HC applications
was that of reasonableness (Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817).
[6]
The
officer determined that Ms. Stephens is well established in Canada. She has a family here, including
her mother and brother; she has improved herself and is devoted within her
community.
[translation]
I note that the applicant’s establishment
is that of a person wishing to live autonomously in Canada. It is normal to create social ties in
one’s circle. She can also pursue her involvement with the church and her
community in her country. I therefore find that the applicant’s establishment, while
good, is not exceptional and does not in itself justify exempting her from the
duty of applying for permanent residence from abroad.
[7]
In
this context, it is apparent that the officer is not questioning the fact that
Ms. Stephens is well established in Canada. Certainly, it is not a
question of exempting the officer’s obligation to assess the situation that Ms.
Stephens will face if she were removed to Saint Vincent.
[8]
As Justice
Teitelbaum discussed in Mooker v. Canada (Minister of Citizenship and Immigration), 2007 FC 779, 62 Imm.
L.R. (3d) 311, at paragraph 15:
. . . The
Officer reasonably concluded that the applicants’ level of establishment does
not exceed what is reasonably expected after having resided in the country for
a period of four and a half years. Moreover, the degree of establishment is
only one factor to be considered in an H&C assessment and is not in itself
determinative (Klais v. Minister of Citizenship and Immigration, 2004 FC
785 (CanLII), 2004 FC 785; Irimie v. Minister of Citizenship and Immigration
(2000), 10 Imm. L.R. (3d) 206).
[9]
Ms. Stephens
has also alleged that she would no longer have a place to live if she were to
return to Saint Vincent. While the record is far from clear as to whether she
could return to the place where she lived before, since it is possible that the
family property has been sold, no evidence was adduced suggesting that she
would no longer have anywhere to live in Saint Vincent, whether it be with her
siblings or not.
[10]
Finally,
it is possible that the general situation in Saint Vincent reveals a degree of poverty and criminal
violence, but Ms. Stephens did not relate these factors to her personal situation.
Fundamentally the argument is really that the officer should have assigned more
weight to some factors and less to others. However, as noted by Justice Blais
in Lee v. Canada (Minister of Citizenship and
Immigration)
2005 FC 413, 45 Imm. L.R. (3rd) 129, at paragraph 13:
Once again, I want to
reiterate the fact that this Court cannot lightly interfere with the discretion
given to immigration officers. The H & C decision was a fact driven
analysis, requiring the weighing of many factors. I find that the immigration
officer considered all of the relevant and appropriate factors from a
humanitarian and compassionate perspective, and did not commit any errors which
would justify this Court's interference.
[11]
The issue
for the officer to decide is the following: is the particular situation of Ms. Stephens
such that the hardship that she would experience if she were required to apply
for permanent residence from Saint Vincent would be unusual, undeserved or
disproportionate?
The officer’s decision, that it would not be, was reasonable. Her reasoning is
clearly stated and her decision does not warrant the intervention of this Court.
ORDER
THE COURT
ORDERS that the
application for judicial review be dismissed. There is no question to certify.
“Sean Harrington”
Certified
true translation
François
Brunet, Reviser
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