Date:
20130507
Docket: IMM-1594-12
Citation: 2013 FC 482
Edmonton, Alberta, May 7, 2013
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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JASMATTIE
DE COITO
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY
PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Ms. De Coito, is 59 years-old and
a citizen of Guyana of Indian ethnicity. She has lived in Canada with members of her family for over a decade. She left Guyana as a result of a
brutal attack on her, her husband, daughter and niece. Thugs broke into their
home, assaulted the applicant’s husband and gang-raped Ms. De Coito, her
daughter and niece. The applicant’s husband died as a result of the attack.
Tragically, this was the second instance of a similar attack; several years
earlier, the applicant’s first husband was also attacked and killed in Guyana.
[2]
Ms. De Coito applied for refugee status in Canada based on her past experience and the risk to the Indo-Guyanese in Guyana, and her claim was
denied. She also sought and was granted a pre-removal risk assessment, which
was likewise denied. She made an application for humanitarian and compassionate
[H&C] consideration under section 25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA or the Act], which was denied on
January 13, 2012 by a Senior Immigration Officer of Citizenship and Immigration
Canada. The H&C decision is the subject of the present application for judicial
review. Ms. De Coito argues that in rendering a negative decision in her
application, the Officer committed several reviewable errors, namely that:
1.
The Officer failed to give adequate
consideration to the best interests of Ms. De Coito’s step-grandson, with whom
she is very close;
2.
The Officer ignored critical pieces of submitted
evidence, including a CD of news clips from Guyana, describing the attack on
Ms. De Coito and her family and supplementary submissions from her counsel,
containing additional information regarding the alleged hardship her step-grandson
would experience if the applicant is removed; and
3.
The Officer’s treatment of the hardship that the
applicant would be likely to suffer if returned to Guyana is unreasonable
because the Officer’s reasons show she copied from another file and assumed
facts that were wholly foreign to Ms. De Coito’s situation and because the
result reached is unreasonable.
[3]
I need only address the final point as in my
view the Officer’s treatment of the issue of hardship in this case is
unreasonable and demands intervention by this Court.
[4]
In coming to this conclusion, I recognize that
the reasonableness standard of review applies to the Officer’s decision and
that, in the context of a discretionary decision like the present, the
reasonableness standard mandates that considerable deference be given to the
decision so that I cannot substitute my views for those of the Officer (Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at paras
18, 20). To borrow the words of Justice Binnie, writing for the majority in Khosa
v Canada (Minster of Citizenship and Immigration), 2009 SCC 12, [2009] 1
SCR 339 [Khosa] at para 62, whether I agree with the Officer’s decision
is “beside the point” because Parliament entrusted the Officer to make the
decision. Put another way, the range of permissible outcomes for a
discretionary decision is large (see Abraham v Canada (Attorney General),
2012 FCA 266 at para 42; Diabate v Canada (Minister of Citizenship and
Immigration), 2013 FC 129 at para 24).
[5]
That said, discretionary decisions are not
immune from review if the results reached are unreasonable nor is the range of
permissible outcomes without bounds. The Supreme Court of Canada’s recent
jurisprudence elucidating the content of the reasonableness standard makes
clear that a reviewing court must examine both the reasoning process and the
outcome reached in evaluating whether an administrative tribunal’s decision is
reasonable. As noted by the majority in Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, [2008] 1 S.C.R. 190, “A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes.”
Similarly, in Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 14, Justice Abella, writing
for the Court held that, “[T]he reasons must be read together with the outcome
and serve the purpose of showing whether the result falls within a range of possible
outcomes.” Justice Abella recently confirmed in Doré v Barreau du Québec,
2012 SCC 12 that the requirement of a reviewing court to assess both reasons
and outcome applies to discretionary decisions.
[6]
The instances where review is warranted due to
the unreasonable nature of the result reached by a tribunal in making a
discretionary decision will be few and far between because it is not for the
reviewing court to reweigh the factors considered by the tribunal, provided the
factors it considered are the relevant ones (Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 37, [2002] 1 S.C.R. 3).
Where, however, the tribunal fails to consider the relevant factors or
considers irrelevant ones in coming to its decision, the case law has long
recognised that such failure will provide the basis for intervention ( see e.g.
Maple Lodge Farms Ltd v Canada, [1982] 2 S.C.R. 2, 137 DLR (3d) 558).
[7]
In addition, if a tribunal merely lists a key
relevant consideration but then ignores that factor so as to effectively denude
it of content, review may be warranted. This, in fact, is what occurred in Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999]
SCJ No 39 where the Supreme Court set aside an H&C decision, in part
because the officer who made the decision so diminished the interests of the
affected children that he in effect ignored them. Writing for the majority in
that case, Justice L’Heureux-Dubé wrote at para 66:
The wording of s. 114(2)
and of Regulation 2.1 requires that a decision-maker exercise the power based
upon “compassionate or humanitarian considerations” (emphasis
added). These words and their meaning must be central in determining whether
an individual H & C decision was a reasonable exercise of the power
conferred by Parliament. The legislation and regulations direct the Minister
to determine whether the person’s admission should be facilitated owing to the
existence of such considerations. They show Parliament’s intention that those
exercising the discretion conferred by the statute act in a humanitarian and
compassionate manner. This Court has found that it is necessary for the
Minister to consider an H & C request when an application is made […]
Similarly, when considering it, the request must be evaluated in a manner that
is respectful of humanitarian and compassionate considerations.
[8]
Here, the Officer’s decision is unreasonable
because she cut and pasted from reasons in another matter and used those
reasons to justify rejecting Ms. De Coito’s claim that she would suffer unusual,
undeserved or disproportionate hardship if she were returned to Guyana. The Officer wrote as follows:
[…] I find that
should the applicant need to re-establish herself in Guyana, it would be
reasonable to assume that she would have the support and assistance of their
other son and the principal applicant’s siblings, and be able to apply their
restaurant entrepreneur skills and/or their Canadian work experience to assist
them in obtaining employment. Thus, I find that should he return to Trinidad, the elements assessed here would not contribute to a hardship that is unusual and
undeserved or disproportionate.
[9]
Ms. De Coito is a woman, is not from Trinidad, has
never worked in a restaurant and does not have a son in Guyana. Thus, nothing in the preceding paragraph applies to her situation. The respondents
argue that these are merely clerical errors as the Officer elsewhere accurately
set out the facts pertaining to Ms. Ms. De Coito’s claim. The respondents
therefore assert that the errors made by the Board do not warrant intervention.
[10]
I disagree. Contrary to the respondents’ position, these
factual errors are at the very heart of the Officer’s reasoning in this case.
The failure to accurately appreciate and analyze the applicant’s situation
renders the Officer’s decision unreasonable.
[11]
While the latter conclusion is determinative of this application,
I would also note that the conclusion reached by the Officer appears to fall
outside the range of reasonable outcomes. The purpose of H&C discretion is
discussed in the respondents’ Inland Processing Manual 5:
Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds,
which provides (at s 2):
The purpose of
H&C discretion is to allow flexibility to approve deserving cases not
covered by the legislation. This discretionary tool is intended to uphold Canada’s humanitarian tradition. Use of this discretion should not be seen as conflicting
with other parts of the Act or Regulations but rather as a complementary
provision enhancing the attainment of the objectives of the Act.
[12]
This purpose has likewise been recognized by Justice L’Heureux-Dubé in Baker
where she noted at para 15:
Applications for permanent residence
must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of
the Act. One of the exceptions to this is when admission is facilitated owing
to the existence of compassionate or humanitarian considerations. In law,
pursuant to the Act and the Regulations, an H & C decision is made by the
Minister, though in practice, this decision is dealt with in the name of the
Minister by immigration officers […] In addition, while in law, the H & C
decision is one that provides for an exemption from regulations or from the
Act, in practice, it is one that, in cases like this one, determines whether a
person who has been in Canada but does not have status can stay in the country
or will be required to leave a place where he or she has become established.
It is an important decision that affects in a fundamental manner the future of
individuals’ lives. In addition, it may also have an important impact on the
lives of any Canadian children of the person whose humanitarian and
compassionate application is being considered, since they may be separated from
one of their parents and/or uprooted from their country of citizenship, where
they have settled and have connections.
[13]
The result reached in this case is difficult to reconcile with the
purpose of the H&C provisions in the Act and the notion that consideration
needed to be given to Canada’s humanitarian tradition. If the applicant is not
deserving of this exceptional treatment, it is hard to see who would be. As
counsel for the applicant noted, if Ms. De Coito is not granted H&C
consideration, she will not likely be able to return to Canada except, perhaps,
on a temporary basis and thus will be required to live in Guyana, where she has
no real roots and experienced significant trauma. It is difficult to imagine
someone more deserving of compassionate consideration than a 59 year-old
grandmother who lost two husbands in brutal murders, experienced gang-rape and
witnessed her daughter and niece being gang-raped, and would be forced to
return to the country these events occurred, where she has not lived for over
10 years and has few remaining connections. This would appear to be exactly the
sort of case Parliament had in mind when it provided the Minister of
Citizenship and Immigration discretion to waive compliance with the IRPA.
[14]
For these reasons, the Officer’s decision will be set aside and the
matter remitted to the respondents for reconsideration in accordance with this
decision. No question of general importance under section 74 of the IRPA was
proposed and none arise in this case.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review of the Officer’s
decision is granted and the Officer’s decision of January 13, 2012 is set
aside;
2.
The applicant’s H&C claim is remitted to the
respondent, Minister of Citizenship and Immigration, for re-determination
by a different officer;
3.
No question of general importance is certified;
and
4.
There is no order as to costs.
"Mary J.L. Gleason"
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