Docket: IMM-1389-14
Citation:
2014 FC 1165
Ottawa, Ontario, December 3, 2014
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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PRATHEEPAN SOMASUNDARAM
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision made by a Senior Immigration Officer (Officer) of Citizenship and
Immigration Canada (CIC) on January 10, 2014, wherein the Officer rejected the
Applicant’s application for permanent residence from within Canada on
humanitarian and compassionate grounds (H&C) made pursuant to s. 25(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
Background
[2]
The Applicant is a 34 year old citizen of Sri Lanka and is of Tamil ethnicity. The Refugee Protection Division (RPD) of the
Immigration and Refugee Board of Canada determined by its decision dated
November 15, 2011 that the Applicant was neither a Convention refugee pursuant
to s. 96, nor a person in need of protection pursuant to s. 97, respectively,
of the IRPA. An application for leave and for judicial review of the RPD
decision was denied by the Court on March 15, 2012.
[3]
The Applicant submitted an application for
exemption from the permanent residency requirements on H&C grounds on May
23, 2012 which was denied on January 10, 2014. He filed an application for
leave and for judicial review of the negative H&C decision on March 6, 2014
(IMM-1389-14).
[4]
On December 17, 2012 he made a PRRA application
which was denied on January 10, 2014. He filed an application for leave and
for judicial review of the negative PRRA decision on March 6, 2014
(IMM-1390-14).
[5]
On September 4, 2014 the PRRA and H&C
applications were heard together by this Court. This is the decision
pertaining to the H&C matter.
Decision Under Review
[6]
Pursuant to s. 25(1) of the IRPA the Applicant
sought an exemption from the requirement that, as a foreign national, he apply
for a permanent resident visa from outside Canada. Such relief can be granted
if the Minister is of the opinion that the exemption is “justified
by humanitarian and compassionate considerations relating to the foreign
national…” (IRPA, s. 25(1)). The Applicant’s H&C application was
premised on: his establishment in Canada; the fact that as an ethnic Tamil he
would face harm if he returned to Sri Lanka; his exploration of Christianity;
and, his lack of establishment in Sri Lanka.
[7]
In considering the Applicant’s hardship relating
to risk, harm and adverse country conditions, the Officer noted that at the
time of his refugee hearing the Applicant claimed that in 1991 he travelled to India with his mother and two siblings. His mother and two siblings returned to Sri Lanka in 2000 but the Applicant remained in India until 2005, when he completed his Bachelor’s
degree. He claimed that upon his return to Sri Lanka in 2005 he was detained
and tortured for two days by the police on suspicion of involvement with the
Liberation Tigers of Tamil Eelam (LTTE). He was released when a bribe was
paid. In April or May of 2006 he travelled to India to pick up his diploma and
then returned to Sri Lanka. One month later he travelled to the United Kingdom
(UK) as a student. In November 2010, when his UK student visa was not renewed,
he made arrangements to travel to Canada, arriving on December 13, 2010.
[8]
The Officer noted that the RPD found that the
determinative issue in the Applicant’s refugee claim was credibility, including
a lack of subjective fear. The RPD did not accept that the Applicant was
interrogated on suspicion of engaging in activities with the LTTE while abroad,
nor that he would be suspected of this in the future. The RPD noted, with
respect to his lack of subjective fear, that the Applicant had not
satisfactorily explained why he did not seek asylum in either the UK, or France when he visited there, or why in 2006 he had returned to Sri Lanka from India after collecting his diploma after the alleged torture in 2005.
[9]
The Officer noted that before the RPD, the
Applicant claimed that his mother had experienced extortion in 2009 and 2010 by
the Eelam People’s Democratic Party and members of the Karuna Group due to
accusations that while abroad he and his brothers were involved in LTTE
activities, but that the RPD did not accept this. The RPD had also found that
the Applicant’s profile was not one that would cause him problems if he were to
return to Sri Lanka where he faced a generalized risk.
[10]
The Officer stated the Applicant continues to
fear returning to Sri Lanka for the same reasons as indicated at the time of
his refugee hearing, being detention and harm upon return. The Officer also stated
that the Applicant had provided country condition reports in support of his
stated hardship relating to discrimination and/or adverse country conditions
upon return to Sri Lanka. However, that having considered these, the Officer
found that they did not support that the Applicant is of such a profile that would
cause him to face hardship in returning to Sri Lanka.
[11]
The Officer also considered a letter submitted
by the Applicant’s mother, which she assigned low weight; a copy of the
Applicant’s grandmother’s death certificate, which she noted was not linked to
the claim of hardship; a statutory declaration of Patricia Watts, a law clerk
and social worker in the office of the Applicant’s counsel, which the Officer
found was not supported by the objective evidence, nor was it evident that the
deponent had a particular expertise in Sri Lankan country conditions; and, a
PRRA decision involving another Sri Lankan national, of which the Officer noted
it could not be determined if the Applicant was of the same profile.
[12]
The Officer also noted that in conducting the
assessment she had considered the most current, publicly available documentary evidence
regarding country conditions and human rights issues in Sri Lanka but that the
Applicant’s claim of hardship upon return to Sri Lanka, unaccompanied by
objective corroborative evidence, did not overcome the credibility concerns of
the RPD. Aside from the Applicant’s Tamil ethnicity, the evidence did not
support that he was of such a profile that he faced those conditions. Further,
the Officer found that the information provided by the Applicant did not
support that he faced a direct, personal impact due to discrimination,
including the practice of his Christian faith, or adverse country conditions
that could not be redressed, and that his assertions of the hardships relating
to risk or harm in returning to Sri Lanka were not unusual and undeserved or
disproportionate.
[13]
As to the Applicant’s claim based on
establishment in Canada, the Officer reviewed the information pertaining to his
employment history, information supporting that he has maintained his finances
in Canada in a satisfactory manner, paid his taxes, was involved in his
community through volunteering and faith based activities, and positive letters
of support, but noted that the test is not whether the Applicant would be a
welcome addition to the Canadian community.
[14]
The Officer also noted that the Applicant has
two brothers in Canada who are both supportive of him remaining in this country
and had provided letters to that effect. The younger of these brothers,
Thayaparan, wrote that he suffers from a major depressive disorder, diabetes and
high blood pressure. He is unable to work and receives Ontario Disability
Support Program (ODSP) financial assistance. The Applicant now resides with
this brother and assists him with cooking and cleaning and takes him to medical
appointments.
[15]
The Officer noted that the younger brother
indicated that there was no one else to assist him and that his condition had
significantly improved since the Applicant had moved in with him. Further,
that the Applicant’s submissions also included information concerning a
shortage of homecare in Ontario. However, that no information had been
submitted to support that such care had been denied to Thayaparan or that his
elder brother or other family were unwilling or unable to care of him. The
Officer also questioned the extent of care actually required, given the
Applicant’s employment in two jobs and his other activities.
[16]
As to the Applicant’s submission that he sends
money to his mother in Sri Lanka, the Officer found that the Applicant had not
provided evidence to support that his other siblings do not or were unwilling
to provide such support or that the funds are essential to his mother’s well
being.
[17]
The Officer concluded that the evidence did not
support that the Applicant has become established in Canada to the extent that
severing his ties here amount to unusual and undeserved or disproportionate
hardship.
Issues
[18]
The Applicant had initially submitted that the
Officer had erred in law in misinterpreting the scope of the statutory
discretion which she was authorized to exercise. Specifically, that the
Officer required the unusual, undeserved or disproportionate hardship test to
be personalized and to rise to the level of persecution, the “personalization”
being a carry over from s. 97 of the IRPA that is not supported by the wording
of s. 25. Further, that H&C grounds were required to be more broadly
applied (Chirwa v Canada (Minister of Citizenship and Immigration),
[1970] IABD No 1).
[19]
However, given the recent decision of the
Federal Court of Appeal in Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2014 FCA 113 [Kanthasamy], at the hearing before me
the Applicant’s counsel advised that the only issue now before the Court
pertains to the reasonableness of the decision, including the sufficiency of
the Officer’s reasons.
[20]
Accordingly, the sole issue in this matter is
whether the Officer’s decision was reasonable.
Standard of Review
[21]
The Federal Court of Appeal has recently
confirmed that a standard of reasonableness applies when reviewing an officer’s
decision under s. 25(1) of the IRPA. This includes the Court’s review of the
Officer’s interpretation of s. 25 and the test or legal principles to be
applied in making H&C decisions (Kanthasamy, above, at para 30; Lemus
v Canada (Minister of Citizenship and Immigration), 2014 FCA 114 at para
18; Charles v Canada (Minister of Citizenship and Immigration), 2014 FC
772 at para 22 [Charles]).
[22]
A decision-maker is not required in its reasons
to make an explicit finding on each constituent element leading to its final
conclusion. Perfection is not the standard. Rather, the reasons are adequate
if, when read in light of the evidence before the tribunal and the nature of
its statutory task, they allow the reviewing court to understand why the
tribunal made its decision and to determine whether the conclusion is within
the range of acceptable outcomes (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 16 and 18
[NL Nurses]). Sufficiency of reasons is no longer a stand alone ground
for review but may be subsumed within a reasonableness analysis (NL Nurses,
above, at paras 14, 22).
[23]
Accordingly, in this case the standard of review
is reasonableness.
Parties’ Submissions
The Applicant’s Position
[24]
The Applicant submits that the Officer, who also
wrote the PRRA decision concerning the Applicant which was issued on the same
day as the H&C decision, carried over and applied s. 97 restrictions to the
hardship analysis in her H&C decision. For example, the Officer accepted
that there are continuing issues with discrimination and human rights
violations perpetrated against members of the Tamil community in Sri Lanka, but
found that, aside from his Tamil ethnicity, the Applicant does not fit the
profile of persons at particular risk of torture and unlawful killings detailed
in the US Department of State Country Reports on Human Rights Practices 2012,
Sri Lanka (USDOS Report). This at least demonstrates an improper restriction
of the hardship assessment where evidence of discrimination based on ethnicity
is highly relevant. The improper importation of a s. 97 test or analysis is
also illustrated by the Officer’s cutting and pasting of large sections of her
PRRA decision into her H&C hardship analysis including her assessment of
the statutory declaration and a PRRA decision that was submitted in the
Applicant’s PRRA but was not submitted with his H&C application. The
Applicant submits that the Officer’s reasons are unclear and demonstrate that
she did not appreciate that her analysis should have focused on hardship,
rather than risk, and that she failed to properly consider the discrimination
that the Applicant would face if returned to Sri Lanka.
[25]
The Applicant submits that the Officer failed to
address or improperly discounted the evidence before her and the Applicant’s particular
circumstances, which are that he is a Tamil born in the north of Sri Lanka who
has spent the majority of his life outside Sri Lanka, causing him to be
particularly vulnerable and leading to the perception that he is wealthy and
therefore a prime target for extortion.
The Respondent’s Position
[26]
The Respondent submits that although the
Applicant disagrees with the outcome of his H&C application, he has failed
to demonstrate a reviewable error. The Applicant failed to provide sufficient
evidence to support his allegations of personal hardship. The Officer reviewed
and considered all of the evidence before her and reasonably concluded that
sufficient H&C grounds did not exist that would warrant the granting of
this extraordinary remedy. Accordingly, deference is owed to the Officer’s
decision.
Analysis
[27]
An appropriate starting point for this decision
is the Federal Court of Appeal’s recent decision in Kanthasamy, above.
[28]
There the applicant was a 17 year old Tamil male
from the north of Sri Lanka who came to Canada and claimed refugee status. The
RPD denied the claim, finding that the Sri Lankan authorities had taken
measures to improve the situation for Tamils and that the applicant would not
be at risk upon his return to Sri Lanka. This Court denied the applicant’s
application for leave to judicially review that decision. The applicant then
made an H&C application pursuant to s. 25(1) of the IRPA, which was denied.
That decision was upheld by this Court, which also certified the following
question: What is the nature of the risk, if any, to be assessed with respect
to humanitarian and compassionate considerations under s. 25 of the IRPA, as
amended by the Balanced Refugee Reform Act?
[29]
Writing for the Federal Court of Appeal, Justice
Stratas stated that in considering the applicant’s s. 25(1) application, the
Minister had to have regard to the instructions given by the recently added s.
25(1.3). This states that in examining an H&C application, the Minister
may not consider the factors that are taken into account in the determination
of whether a person is a Convention refugee under s. 96, or a person in need of
protection under s. 97(1) of the IRPA but must consider elements related to the
hardships that affect the foreign national.
[30]
Justice Stratas acknowledged that s. 25(1) is an
exceptional provision and has repeatedly been interpreted as requiring proof
that the applicant will personally suffer unusual and undeserved, or
disproportionate hardship arising from the requirement to seek a visa from
outside Canada as is the normal process under the IRPA (Kanthasamy,
above, at para 41; Singh v Canada (Minister of Citizenship and Immigration),
2009 FC 11). Further, that the unusual and undeserved, or disproportionate
hardship must affect the applicant personally and directly and the applicant
must show a link between the evidence of hardship and his or her individual
circumstances (Kanthasamy, above, at para 48; Lalane v Canada (Minister of Citizenship and Immigration), 2009 FC 6 at para 1). As to the
meaning of the unusual and underserved, or disproportionate hardship test, the
jurisprudence shows that the factors set out in section 5.11 of the Citizenship
and Immigration (Canada) processing manual, Inland Processing Manual,
Chapter IP5: Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds (CIC Manual) are a reasonable enumeration of the
types of matters that an Officer must consider when assessing an H&C
application. The CIC Manual states that the test is whether it would be a
hardship for the applicant to leave Canada in order to apply for permanent
residence abroad, that hardship is assessed by weighing together all of the
H&C considerations submitted by the applicant and that such requests may be
based on any number of factors including: establishment and ties to Canada;
factors in their country of origin (including but not limited to medical
inadequacies, discrimination that does not amount to persecution, harassment or
other hardships not described in ss. 96 and 97 of the IRPA); consequences of
the separation of relatives, etc. Justice Stratas cautioned, however, that
this is not a closed list (Kanthasamy, above, at paras 51-55):
[55] Officers must always scrutinize the
particular facts before them and consider whether the applicant is personally
and directly suffering unusual and undeserved, or disproportionate hardship,
regardless of whether the type of hardship is specifically mentioned in the
processing manual.
[31]
As to the role of s. 25(1.3), Justice Stratas
stated that s. 25(1) applicants have not met the thresholds for relief under s.
96 or s. 97 in that they have not met the risk factors under those sections,
being the risk of persecution, torture, or cruel and unusual treatment or
punishment upon removal. Subsection 25(1.3) must not duplicate the s. 96 and
s. 97 assessment of risk factors but this does not mean that the facts that
were adduced in those proceedings are not relevant to a H&C application.
While those facts may not have provided relief under s. 96 or s. 97, they may
still form a part of the “constellation of facts” that give rise to H&C
grounds warranting relief under s. 25(1). Evidence adduced in previous
proceedings under s. 96 and s. 97, together with whatever other evidence the
applicant may wish to adduce, is admissible in a s. 25(1) proceeding: “Officers, however, must assess that evidence through the lens
of the subsection 25(1) test – is the applicant personally and directly
suffering unusual and undeserved, or disproportional hardship?” (Kanthasamy,
above, at paras 66-75):
[74] The role of the officer, then, is to
consider the facts presented through a lens of hardship, not to undertake
another section 96 or 97 risk assessment or substitute his decision for the
Refugee Protection Division’s findings under sections 96 and 97. His task is
not to perform the same assessment of risk as is conducted under sections 96
and 97. The officer is to look at facts relating to hardship, not factors
relating to risk.
[75] Matters such as well-founded fear of
persecution, risk to life, and risk of cruel and unusual treatment or
punishment – factors under sections 96 and 97 – may not be considered under
subsection 25(1) by virtue of subsection 25(1.3) but the facts underlying those
factors may nevertheless be relevant insofar as they relate to whether the
applicant is directly and personally experiencing unusual and undeserved, or
disproportionate hardship.
[32]
Justice Stratas also agreed with Justice Hughes’
comments in Caliskan v Canada (Minister of Citizenship and Immigration),
2012 FC 1190 at para 22 that in interpreting s. 25 of the IRPA, the Courts are
to move away from language and “…jurisprudence respecting
personalized and generalized risk and focus upon the hardship to the
individual. Included within the broader exercise in considering such hardship
is consideration of “adverse country conditions that have a direct negative
impact on the applicant”” (Kanthasamy, above, at para 76).
[33]
Applying that backdrop to the matter before me,
it is of note that in her decision the Officer stated that the Applicant’s
H&C application had been assessed on the basis of unusual and underserved,
or disproportional hardship. Further, she stated that one of the factors to be
considered in the H&C application was hardship relating to discrimination
and/or adverse country conditions in Sri Lanka. She then described the RPD’s
decision, including its finding that the determinative issue was credibility,
including a lack of subjective fear. She noted that despite the RPD’s refusal,
the Applicant continues to fear returning to Sri Lanka for the same reasons as
indicated at the time of his refugee claim, being that he fears he will be
detained and harmed upon return. The Officer then states that:
The applicant and his counsel have provided
country condition reports advising the generalized country conditions in Sri Lanka in support of his stated hardship relating to discrimination and/or adverse country
conditions in returning to Sri Lanka. I have read and considered these
documents in conducting this assessment and find that they do not support that
the applicant is of such a profile that he would face a hardship in returning
to Sri Lanka.
[34]
The Officer stated that she had considered the
most current, publicly available documentary evidence regarding country
conditions and human rights issues in Sri Lanka and quoted from the USDOS
Report. She then concluded that:
While the US report cites continuing issues
with discrimination and human rights violations perpetrated against members of
the Tamil community in Sri Lanka, it is noted that the applicant has spent a
small portion of his life residing in Sri Lanka. The majority of his life was
spent residing in India and the United Kingdom prior to his arrival in Canada, and absent evidence to the contrary, he has been able to reside with his family in Sri Lanka quite freely in the past. I find that the scenario asserted by the applicant
involving the hardship involved in the applicant’s return to Sri Lanka, as it was previously determined not credible by the RPD panel, and unaccompanied by
objective corroborative evidence, does not overcome the credibility concerns of
the RPD. Aside from his Tamil ethnicity, the evidence before me does not
support that he is of such a profile in Sri Lanka that he faces the conditions
noted above.
[35]
The Applicant raises several concerns about this
statement and interprets the Officer’s last sentence as a finding that, apart
from his Tamil ethnicity, the Applicant does not fit one of the profiles at
particular risk of torture and unlawful killings as detailed in the USDOS
Report. The Applicant asserts that this demonstrates that the Officer imputed s.
96 and s. 97 restrictions to the hardship analysis. Further, that the imputed s.
97 restrictions included a requirement that the evidence be personalized, and
that the hardship rise to the level of persecution or risk to life or cruel and
unusual treatment or torture.
[36]
As is clear from Kanthasamy, above, the
Officer did not err by seeking evidence of a link between the adverse country
conditions and the Applicant, or of a personal and direct negative impact.
Further, in my view, the Officer’s statement does not necessarily import the
requirement that the hardship rise to the level of persecution or risk to life,
torture, or cruel and unusual treatment or punishment. This would have amounted
to the error s. 23(1.3) was designed to avoid. Rather, by referring to the “conditions noted above,” the Officer may have been
referring to any or all of the human rights problems listed in the USDOS Report
such as attacks on and harassment of activists, LTTE sympathizers and
journalists, torture and unlawful killings, arbitrary arrest and detention,
denial of fair public trials, restrictions on freedom of speech, press,
assembly, association and movement, as well as discrimination against the disabled,
those of ethnic Tamil minority, and based on sexual orientation or HIV/AIDS
status. Thus, this statement does not necessarily demonstrate that the Officer
was considering only the s. 96 and s. 97 factors of torture and unlawful
killings in the H&C analysis.
[37]
However, it also is not clear that the Officer
was considering the underlying facts in relation to hardship rather than risk.
[38]
On reading the H&C decision as a whole, it
appears that the RPD’s credibility findings, when viewed in combination with
the excerpts that were cut and paste from the Officer’s PRRA decision, were
determinative for the Officer. The RPD’s credibility findings were largely
concerned with the Applicant’s assertions that he had been interrogated on
suspicion of engaging in activities with the LTTE while abroad and the RPD’s
finding that the Applicant was not at risk of persecution or risk to life or
cruel or unusual treatment or punishment, or danger of torture as a result of
such suspicion, as well as his lack of subjective fear, in the context of a s.
96 and s. 97 analysis. The RPD found that the Applicant’s profile was not one
that would attract undue attention or reprisal if he returned to Sri Lanka. Yet, instead of looking at whether the adverse country conditions in the
documentation submitted in the H&C application would result in an unusual
and undeserved or disproportionate hardship for him should he return to Sri
Lanka (Vuktilaj v Canada (Citizenship and Immigration), 2014 FC 188 at
para 36), the Officer appears to rely primarily on the credibility findings of
the RPD in reaching her conclusion that the Applicant would not face any of the
conditions in the USDOS Report.
[39]
As to the Applicant’s profile, it may be that
the Officer was suggesting that because the evidence does not support that the
Applicant is an activist, LTTE sympathizer or journalist, he does not fit the
profile described in the quoted extract from the USDOS Report as being at risk
of attacks and harassment. Alternatively, the Officer may have been relying on
the Applicant’s profile as depicted by the RPD in its decision. In any event, this
is unclear and does not address the question of discrimination based on his
Tamil ethnicity if he were to return to Sri Lanka. Further, while the Officer
need not have accepted the Applicant’s depiction of his profile, given that the
RPD had not accepted that he was or would be suspected of LTTE association, she
was obliged to clearly identify what she determined his profile to be for the
purposes of the H&C application and to consider whether as a young Tamil
male from the north, in his particular circumstances, he would personally suffer
discrimination amounting to unusual and undeserved, or disproportionate
hardship.
[40]
In other words, despite her words to the
contrary, the Officer’s focus was on the RPD’s credibility findings in her
analysis of the adverse country condition evidence, which findings were
primarily concerned with risk, and she did not assess the evidence through the
lens of the s. 25(1) test, being whether the Applicant would personally and
directly suffer unusual and undeserved, or disproportionate hardship if
returned to Sri Lanka.
[41]
In this regard it is also of note that the
Officer referenced the statutory declaration of Patricia Watts, law clerk and
social worker in the office of counsel for the Applicant. However, the
declaration was filed in the PRRA application but not in support of the H&C
application. The Officer discounted, in part, the declaration as unsupported
by objective evidence to indicate that the Applicant is of the same profile as
individuals described in the declaration. Similarly, she referred to and
discounted a positive PRRA decision involving another Sri Lankan national on
the basis that it could not be determined that the Applicant was of the same
profile as the person referred to in that PRRA decision. That PPRA decision
was also filed by the Applicant only in the Applicant’s PRRA application. While
it may be that the Officer simply made a cut and paste error by transposing
this section of her PRRA decision into her H&C decision, it adds further
uncertainty to her consideration of the Applicant’s profile in the context of the
H&C decision.
[42]
Similarly, it is unclear how the fact that the
Applicant has spent only a small portion of his life residing in Sri Lanka is relevant to any discrimination based on ethnicity that he might face if returned to Sri Lanka.
[43]
In short, the Officer’s reasons do not permit an
understanding of how she reached her conclusion that the adverse country
conditions, in particular the existence of discrimination against Tamils, did
not meet the hardship test. I am unable to determine whether or not the decision
is outside the range of defensible outcomes, therefore I find it to be
unreasonable.
[44]
Given my above finding it is not necessary for
me to address the Officer’s establishment analysis. However, I will note one
issue, being the Officer’s treatment of the evidence concerning the care the
Applicant provides to his brother.
[45]
In this regard the Applicant submits that the
Officer discounted the value of the homecare the Applicant provides for his
brother, Thayaparan, as described by Thayaparan in a letter dated January 12,
2013. The Applicant submits that the Officer found that there was no evidence
that Thayaparan had been denied care by the Ontario Disability Support Program,
despite evidence of the failure of the public system in this regard and despite
the fact that no publicly funded option could be equivalent to daily care by a
family member. The Applicant further submits that the Officer also found that
their older brother in Canada could assist, despite evidence establishing that
he and Thayaparan are not in contact and that the older brother is often out of
town working as a truck driver. Finally, the Officer found that because the
Applicant worked two jobs and volunteered, the level of care he provided for
his brother was not firmly established. The Applicant submits that this is a
veiled credibility finding and that if the Officer had concerns about the
Applicant’s credibility, she should have convened an interview with him.
[46]
The Respondent points out that the Officer noted
the submissions about the shortage of homecare and the needs of the Applicant’s
brother but found an absence of evidence that public care has been denied and
an absence of evidence regarding the extent of care the Applicant is able to
offer his brother while working two jobs. The Applicant failed to meet his
burden of submitting objective corroborating evidence to establish the hardship
alleged: he did not provide documentation to establish that public homecare was
requested and denied; that family members other than the older brother cannot
take care of Thayaparan; or, the actual extent of care required by Thayaparan.
[47]
In my view, it is difficult to reconcile the
evidence that was before the Officer with her findings. The Officer found that
no information had been provided that their older brother in Canada or their family members were unable or unwilling to care for Thayaparan. However,
there was evidence that the older brother is not in close contact with
Thayaparan, that he works as a truck driver and is usually out of town (Applicant’s
Affidavit, Certified Tribunal Record (CTR), p 66 at para 10; Letter from Thayaparan,
CTR, p 26). The Decision itself also indicates that no other family members reside
in Canada (H&C Decision, CTR, p. 5).
[48]
The Officer also found that, given the Applicant’s
employment with two jobs and his community involvement, the Applicant had not
firmly established the extent of care actually required by Thayaparan. However,
the Officer had a letter from Thayaparan stating that he was living alone and in
a miserable state with nobody to help him before the Applicant began to assist
him, later moving in with him. In the letter, Thayaparan listed the tasks the
Applicant performs for him and expressed anxiety about the Applicant leaving
the country as he would be left alone and would fall back into the state he was
in before (CTR, p 26). In addition, the Officer had a doctor’s note confirming
Thayaparan’s medical condition and stating that the Applicant’s help is very
necessary for Thayaparan at this time (CTR, p 28).
[49]
The Officer found that no information had been
provided to support that public homecare had been denied to Thayaparan. While
this is true, the Officer had before her evidence that Thayaparan could not
work and receives ODSP financial assistance, as well as the Ontario Health
Coalition report entitled “Still Waiting: An Assessment of Ontario’s Home Care
System After Two Decades of Restructuring”, dated April 4, 2011, which states
that 10,000 people in Ontario are currently on waitlists for home care (CTR, pp
313, 323). The report brings into question the quality and timeliness of
public care available to replace the care that the Applicant provides (CTR, pp
329-330).
[50]
Finally, I would note that in Fernandez v
Canada (Minister of Citizenship and Immigration), 2005 FC 899, the officer
noted that the applicants had become reasonably established in Canada and
acknowledged the support they offered to certain members of the community and
two children with special needs. However, she considered that the support
could be otherwise provided. Justice Noël held that whether or not someone else
could equally fulfill the role was not the proper question:
[16] I think, in light of the above IP-5
Guidelines and the decisions in Jamrich and Raudales, the officer
did not reasonably assess the best interests of the children or the degree of
establishment the Applicants have achieved in the community. For instance, the
officer stated that she was "not satisfied that there is no one else
available for the families that have expressed need for the applicants to
remain in Canada" (see page 1 of her decision). This is not the proper
test. The question is not whether someone else would equally be able to fulfill
the role should the Applicants be removed from Canada, but whether their
removal will cause undue hardship. This was not properly assessed by the
officer.
[51]
I also agree that the Officer’s finding that the
extent of care actually required by Thayaparan was not firmly established,
given the Applicant’s employment and community involvement, appears to be a
credibility finding.
[52]
For these reasons, it is my view that the
Officer’s conclusion on establishment in Canada was unreasonable because she
did not properly consider the evidence of the hardship that would be caused to
the Applicant’s brother, Thayaparan, if the Applicant were to return to Sri Lanka.
Certified Question
[53]
The Applicant submits that the Kanthasamy
decision has application to the issue of the scope of the Officer’s H&C
discretion which is also at issue in this matter. As leave to appeal that
decision has been sought, but the Supreme Court of Canada has not yet made a
leave determination, the Applicant submits that my decision in this matter
should be reserved until the Supreme Court of Canada finally decides the Kanthasamy
matter, or, that I certify the following questions:
Is the appropriate standard to be applied under
ss. 25(1) of the IRPA the “unusual and undeserved, or disproportionate
hardship” test?
Is it appropriate to require that a risk of
discrimination or other such treatment, falling short of persecution as set out
in s. 96, or torture and other forms of cruel treatment as set out in s. 97 of
the IRPA, be personalized?
[54]
The Respondent opposes this request.
[55]
Given my decision that the Officer’s decision was
not reasonable, the Applicant’s request may no longer be relevant. In any
event, it is my view that it would be inappropriate to reserve a decision in
one matter simply because leave to the Supreme Court of Canada is being sought
in an unrelated matter. Such a delay is not in the public interest (see Sanchez
v Canada (Minister of Citizenship and Immigration), 2014 FCA 19 at para 11).
Further, even if I had decided that the decision was reasonable, this would
only have resulted in the Applicant having to seek a visa from outside Canada, as is the normal procedure. Finally, in my view, the proposed questions were fully
addressed by the Federal Court of Appeal in Kanthasamy, above.
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