Docket:
IMM-11625-12
Citation: 2013 FC 1017
Calgary, Alberta, October
8, 2013
PRESENT: The Honourable Madam Justice Mactavish
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BETWEEN:
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FAITH AYANRU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Faith Ayanru seeks judicial review of the
refusal of her application for permanent residence on humanitarian and
compassionate grounds. The principal basis for her application for judicial
review is her assertion that the reasons offered by the immigration officer for
rejecting her H&C application were insufficient.
[2]
As will be explained below, I have concluded
that the H&C officer’s reasons meet the standard established by recent appellate
jurisprudence and that the officer’s decision was reasonable. Consequently, Ms.
Ayanru’s application for judicial review will be dismissed.
Analysis
[3]
Ms. Ayanru relies upon my decision in Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565, 139 A.C.W.S. (3d) 164 in
support of her claim that the reasons provided by the officer were inadequate. Adu
is to some extent distinguishable from this case on its facts, as the reasons
in Adu identified all of the positive factors supporting a grant of
H&C relief, and then refused the application without any explanation for
the refusal. The applicant in Adu thus could not understand why the
H&C application had been refused. In contrast, the officer in this case
identified and weighed both the positive and negative factors in determining
that H&C relief should not be granted.
[4]
It should also be noted that the law relating to
the sufficiency of reasons in administrative decision-making has evolved
substantially since the time that Adu was decided, both with respect to the
degree of scrutiny to which fact-based, discretionary decisions such as the one
at issue in this case should be subjected, and in relation to the sufficiency
of reasons as a stand-alone ground for judicial review.
[5]
In Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, the Supreme Court of Canada held that in reviewing a
decision against the reasonableness standard, regard must be had to the justification, transparency and intelligibility of the
decision-making process, and whether the decision falls within a range of
possible acceptable outcomes which are defensible in light of the facts and the
law: see Dunsmuir at para. 47.
[6]
A reviewing Court must,
moreover, pay “respectful attention to the reasons offered or
which could have been offered in support of a decision”: Public Service
Alliance of Canada v. Canada Post Corporation and Canadian Human Rights
Commission, 2010 FCA 56, [2011] 2 F.C.R. 221, at para. 164 [emphasis in the
original].
[7]
In Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the
Supreme Court held that the adequacy of reasons is not a ‘stand-alone’ basis
for quashing a decision. Rather, reasons must be
read together with the outcome of the case, in order to determine whether the
result falls within a range of possible outcomes: at para. 14.
[8]
In Construction Labour Relations v.
Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405,
the Supreme Court reiterated that administrative decision-makers “do not have
to consider and comment upon every issue raised by the parties in their
reasons”, even on seemingly central issues, provided that the decision, when
“viewed as a whole in the context of the record, is reasonable”: at para. 3.
[9]
Where, as here, a decision-maker is considering a
fact-specific, discretionary matter with little legal content, the range of
possible, acceptable outcomes available to the decision-maker may be quite
broad. As a consequence, it will be relatively difficult for an applicant in
such a case to show that a decision falls outside of the range of possible,
acceptable outcomes:
Attorney General of Canada v. Lawrence Abraham et al., 2012 FCA 266, ,
440 N.R. 201 at para. 44.
[10]
Ms. Ayanru based her H&C application on
three grounds – the best interests of her four children in Nigeria, the risk she says that she would face at the hands of her ex-husband in that country and
her establishment in Canada.
[11]
The officer gave little weight to the best interests
of Ms. Ayanru’s children, explaining that limited information had been provided
with respect to the interests of the children, and that it had not been
explained how returning Ms. Ayanru to her children in Nigeria would affect their interests. Not only is this finding reasonable, it also bears noting that
the children were all over the age of 18 by the time that a decision was made
in relation to Ms. Ayanru’s H&C application.
[12]
With respect to the risk allegedly faced by Ms.
Ayanru in Nigeria, the H&C officer noted that Ms. Ayanru’s refugee claim
had been dismissed on credibility grounds and that no additional evidence of
risk had been provided in support of her H&C application, nor had Ms.
Ayanru demonstrated that she could not live safely in various cities in
Nigeria.
[13]
Much of the information provided by Ms. Ayanru
in support of her H&C application related to the issue of establishment.
The officer expressly stated that this evidence had been considered and
recognized that Ms. Ayanru had achieved a reasonable level of establishment in Canada. While accepting this as a positive factor, the H&C officer nevertheless found
that her level of establishment was not unusual for someone who had been in Canada for some nine years, and did not warrant an exemption.
[14]
It is thus clear why Ms. Ayanru’s application
for H&C relief was refused. While Ms. Ayanru may not agree with the
decision, and, in particular, with the officer’s finding with respect to the
extent of her establishment in Canada, it falls within the
range of possible acceptable outcomes which are defensible in light of the
facts and the law, based upon the record that was before the officer.
[15]
Ms. Ayanru is clearly an industrious and capable
individual who has worked very hard to make a good life for herself in Canada. While her efforts are certainly to be commended, the test is not whether an H&C
applicant would be a welcome addition to Canada.
[16]
As Justice Pelletier observed in Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 101 A.C.W.S. (3d) 995, 10 Imm.
L.R. (3d) 206, if this were the test, it would “make the H&C process an ex
post facto screening device which supplants the screening process contained in
the [legislation]”. This would, in turn, “encourage gambling on refugee claims
in the belief that if someone can stay in Canada long enough to demonstrate
that they are the kind of persons Canada wants, they will be allowed to stay”:
at para. 26.
[17]
According to Justice Pelletier, the “degree of attachment is relevant to the issue of whether
the hardship flowing from having to leave Canada is unusual or
disproportionate. It does not take those issues out of contention”: Irimie,
at para. 20. In this case, the H&C officer reasonably determined that Ms.
Ayanru had not demonstrated that she would suffer
unusual, undeserved or disproportionate hardship based upon her establishment
in Canada if she were compelled to apply for permanent residence from outside Canada.
Conclusion
[18]
For these reasons, the application for judicial
review is dismissed. I agree with the parties that the case does not raise a
question for certification.
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