Docket:
IMM-2255-13
Citation: 2014 FC 60
Ottawa, Ontario, January 17, 2014
PRESENT: The Honourable
Madam Justice Strickland
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BETWEEN:
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SHARON HULLANA RARAMA
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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]
This is an
application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision of
an immigration officer dated March 4, 2013 denying the Applicant, Sharon
Hullana Rarama, a permanent resident visa as a member of the Live-In Caregiver
(LIC) Class. The officer determined that the Applicant had not submitted all
relevant documents and evidence as required by subsection 16(1) of the IRPA
and, therefore, that it could not be established that the Applicant met all the
requirements set out in subsection 72(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (IRPA Regulations).
Background
[2]
The Applicant is a
citizen of the Philippines. She came to Canada in September 2005 as a member
of the LIC Class and subsequently applied for permanent residence having
completed the required 24-month employment period. Her application was
approved in principle on May 6, 2009.
[3]
Prior to coming to Canada she was married to Andie Son Regimen Rarama (former husband), a resident of the Philippines, and they had a child, Ashlie Shane H. Rarama, who was born in the Philippines in August of 2002. The Applicant and her former spouse were divorced by order
of the Ontario Superior Court of Justice on August 29, 2008.
[4]
On her application
for permanent residence made in February 2008, she listed her daughter Ashlie
as a non-accompanying overseas dependent. Citizenship and Immigration Canada
(CIC) advised the Applicant that her daughter must be medically examined to
ensure that she was not inadmissible in accordance with the IRPA Regulations.
However, and as she explained to CIC on several occasions, due a refusal to
cooperate by her former husband, the Applicant was unable to have her young
daughter to comply with this requirement.
[5]
CIC advised that
without documentary evidence that the Applicant’s daughter was in the sole
custody of another person, the medical examination must continue and that
failure to comply may result in the refusal of the Applicant’s application of
permanent residence. CIC also sought proof of the attempts the Applicant had
made to have her daughter examined.
[6]
In June 2010 the
Applicant again advised CIC that she could not provide the information required
and asked, therefore, that her daughter be removed from her application for
permanent residence so that her application could continue to be processed. CIC
denied this request in August 2010 stating that: “You have not shown that you
are able to comply with this requirement because your child is required to
undergo examination [sic], and you have not show [sic] that she
is in the sole legal custody of another person, nor have you shown that you are
unable to exercise your legal parental rights.”
[7]
In November 2011 CIC
advised the Applicant that the IRPA Regulations provided an exception
regarding the admissibility requirements for children in the sole custody of a
separated or former spouse if applicants provide documentary proof of the
custody arrangements. The Applicant was advised that, if she could provide
such documentary evidence, it should be submitted along with a statutory
declaration acknowledging the custody arrangements and stating that she was
aware that she could not sponsor her child as a member of the family class in
the future. The statutory declaration was to be administered by a Commissioner
of Oaths or Notary Public. The Applicant made the statutory declaration on
June 22, 2012 before her counsel who then provided it to CIC.
[8]
CIC responded on July
23, 2012 by repeating its denial of the Applicant’s request for removal of her
daughter from her application and demanding that her daughter be examined. The
Applicant’s counsel responded by referring to the previously submitted
statutory declaration and advising that the Applicant’s lawyer in the
Philippines had told the Applicant that she had no right to require conduct of
the medical examination under Philippine law. Further, the Applicant was now
involved in a relationship in Canada and had given birth to a daughter on
October 11, 2012.
[9]
On March 4, 2013 CIC
refused the Applicant’s application for permanent residence in Canada. That decision is the subject of this judicial review.
Decision Under Review
[10]
In the March 4, 2013
letter, the officer stated that pursuant to subsection 16(1) of the IRPA,
an applicant must produce all relevant evidence and documents that the officer
reasonably requires. The letter goes on to explain that despite multiple
requests, the Applicant had not met this requirement because she had not
provided proof of attempts of medical examination or custody documents for her
daughter. As a result, it could not be established that the Applicant met the
requirements of permanent residence as described in section 72(1) of the IRPA
Regulations. Her application for permanent residence in Canada as a member of the LIC class was therefore refused.
Issues
[11]
The Applicant raised
the following issues in her written submissions:
1.
Did the officer
ignore, fail to assess, and misinterpret crucial evidence and law including:
a)
The Applicant’s
request to have her daughter removed from her application;
b)
Evidence that the
Applicant’s ex-husband had de facto custody of their daughter;
c)
Guidance from Manual
IP 4 from CIC, that when the country of citizenship is the Philippines, a statutory declaration is sufficient evidence of marital breakdown;
d)
Reconciliation and
change in custody arrangements were not reasonable possibilities;
e)
The amount of discretion
the officer had to exempt the Applicant from the medical examination
requirement; and
2.
The Officer erred in
law by failing to satisfy principles of procedural fairness, discretion, and
providing adequate reasons.
[12]
In my view the issues
can be framed as follows:
1.
What is the standard
of review?
2.
Was the officer’s
decision reasonable?
Standard of Review
[13]
Although the
Applicant framed some of the issues that she has identified as matters of
procedural fairness, including the allegation of insufficient reasons, in my
view these are subsumed within the analysis of the reasonableness of the
officer’s decision. The adequacy of reasons no longer amounts to a stand-alone
basis for quashing a decision (Newfoundland and Labrador Nurses’
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 at paras 14, 21-22).
[14]
Where the standard of
review applicable to a particular question before the court is well-settled by
past jurisprudence, the reviewing court may adopt that standard of review (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[15]
A decision of a visa
officer to deny a permanent residence application because an applicant has not
provided proof of attempts of medical examination or custody documents is a
question of fact to be evaluated on the reasonableness standard (Lhamo v
Canada (Minister of Citizenship and Immigration), 2013 FC 692, [2013] FCJ
No 730 (QL) at paras 25, 31). When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.” (Dunsmuir,
above, at paragraph 47, and Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59 [Khosa]).
Positions of the Parties
[16]
The Applicant submits
that the officer’s decision was unreasonable. The Applicant had showed good
faith and due diligence through ongoing correspondence with CIC including
giving CIC notice of her former husband’s lack of cooperation in obtaining the
documents and the conduct of the medical examination; the efforts made by her
family and others to assist her in this regard; her loss of contact with her
husband; and, submitting proof of her divorce and a statutory declaration
confirming that her ex-husband had sole custody and waiving her right to
sponsor her daughter in the future. Additionally, as seen from the Computer
Assisted Immigration Processing System (CAIPS) notes, the Manila office of CIC
had confirmed receipt of a letter from the Applicant’s ex-husband stating that
he refused to permit their daughter to be examined, that the Applicant had
never extended financial support for the child, and, that the Applicant was now
in a common law relationship with another person.
[17]
The Applicant takes
the view that she could not reasonably have been expected to do more. The
Applicant also submits that CIC Manual IP 4 explicitly states that a statutory
declaration is sufficient proof of marital breakdown and custody in countries
like the Philippines where divorce is not possible.
[18]
The Respondent
submits that the Applicant failed to comply with CIC’s request for documents
and evidence despite being given eight opportunities to do so and two
extensions of time over the course of four years. The Respondent takes the
position that none of the documents submitted by the Applicant are sufficient
to support her claim that her ex-husband has sole custody of their daughter or
of attempts to have her daughter examined. In particular, the daughter is not
mentioned in the court documents regarding the divorce, and the statutory
declaration was not notarized.
Analysis
[19]
For the reasons that
follow, in my view, the officer’s decision to refuse the Applicant’s
application for permanent residence was not reasonable.
[20]
Section 72 of the IRPA
Regulations sets out the requirements for obtaining status as a permanent
resident under the LIC class which include establishing that the applicant
meets the selection criteria and other requirements of that class (section
72(1)(d)) and that the applicant and his or her family members, whether
accompanying or not, are not inadmissible (section 72(1)(e)(i)). Section 30 of
the IRPA Regulations requires family members of foreign nationals,
whether accompanying or not, to submit to a medical examination.
[21]
CIC Manual IP 4
states under the heading “9.14. Inadmissibility and non-accompanying family
members” that an exception to the requirement for medical examination of family
members applies for children of applicants who are in the legal custody of
someone else:
All family members, whether accompanying or not, are required to be examined
unless an officer decides otherwise. Normally, an inadmissible family member,
whether accompanying or not, would render the principal applicant inadmissible.
There are however two exceptions to this rule described in R23. The
first is the separated spouse of the applicant. The second is where a child
of the applicant is in the legal custody of someone other than the applicant or
accompanying family member, or where someone other than the applicant or
accompanying family member of the applicant is empowered to act on behalf of
that child by virtue of a court order or written agreement or by operation of
law.
If an applicant’s separated spouse or their children who are legally in
the custody of someone else are inadmissible, their admissibility would not
render the applicant inadmissible. As separated spouses can reconcile and custody arrangements for children
may change, examination is required in order to safeguard the future right to
sponsor them as members of the family class. If these family members are not
examined, they cannot be sponsored under the family class at a later date under
R117(9)(d) unless R117(10) applies.
….
Satisfactory written evidence of a separation and that a child is in the
legal custody or guardianship or another individual (including the other
parent) is required. Acceptable documentary proof may include the following:
•
formal separation
agreement;
•
letter from a lawyer
indicating that divorce proceedings are underway;
•
court order in
respect of children identifying the fact of the relationship breakdown;
•
documents removing
the spouse or common-law partner from insurance policies or will;
•
statutory
declaration in the case of countries where legal separation and divorce are not
possible, for example, the Philippines.
To be satisfied that the relationship has truly broken down, the officer
may consider supporting evidence such as:
•
evidence that the
separated spouse is living with or has children with another partner…
•
[emphasis added]
[22]
This excerpt from
Manual IP 4 is significant because it indicates that:
•
The reason that
examination of non-accompanying family members is required is to safeguard the
right of the applicant to sponsor those family members later, should custody
arrangements change or reconciliation occur;
•
If the exception
applies, then inadmissibility of an applicant’s separated spouse or their
children who are legally in the custody of someone else will not render the
applicant inadmissible;
•
In countries like the
Philippines where legal separation or divorce is not possible, a statutory
declaration describing the marital status and custody arrangements may serve as
sufficient evidence for the purposes of granting the exemption to the medical
examination requirement; and
•
Additional evidence
that can be considered includes the fact that the separated spouse is living
with or has children with another partner.
[23]
While such manuals
and guides issued by CIC are not regulations and are not binding, they assist
the Court in assessing whether a decision being reviewed was reasonable (Tran
v Canada (Minister of Citizenship and Immigration), 2012 FC 201, [2012] FCJ
No 210 (QL) at para 36; Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 22).
[24]
Here, the Applicant
provided a statutory declaration well in advance of the decision to refuse her
application. The content of the statutory declaration is important and the
relevant portions are set out below:
1.
I am providing this
declaration in response to request [sic] by CIC Case Processing Centre.
2.
I confirm that my
daughter Ashlie Shane Rarama is and has in fact been in the sole custody of my
former husband Andie Son Rarama who resides in the Philippines and is not being
made available for examination in connection with my application for permanent
residence in Canada.
3.
I also confirm the
same again by hereby releasing in favour of Andie Son Rarama any right I may
have to claim custody of Ashlie Shane Rarama, and since Ashlie is not being
made available for examination I am also releasing and giving up any right to
sponsor Ashlie Shane Rarama as a member of the family class to Canada.
4.
In releasing and
giving up such rights, I specifically acknowledge and do so notwithstanding
that I am fully aware that I cannot sponsor Ashlie Shane Rarama as a member of
the family class in the future.
. . .
[25]
According to Manual
IP 4, this was acceptable documentary proof of the fact that the Applicant’s
daughter is in the legal custody or guardianship or another individual.
However, the officer’s decision does not acknowledge the existence of the
statutory declaration. In fact, the officer’s CAIPS notes, which form a part
of the reasons for the decision (Toma v Canada
(Minister of Citizenship and Immigration), 2006 FC
779, 295 FTR 158 at para 10, citing Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at paras 43 and 44), state that the Applicant “has not
provided any documentation regarding sole custody”. In another entry, the
officer states that the statutory declaration was not notarized. However, the
CIC letter requesting the statutory declaration, sent to the Applicant on
November 28, 2011, states that, “The statutory declaration must be administered
by a Commissioner of Oaths or Notary Public”. As noted above, the statutory
declaration was made before the Applicant’s Canadian counsel who signed it as a
“Lawyer & Notary, A Commissioner etc.”
[26]
The officer was not
compelled to accept the statutory declaration as de facto evidence that the
Applicant’s daughter was in the sole custody of her ex-husband (the provision
of which distinguishes this matter from Rojas v Minister of Citizenship and
Immigration, 2012 FC 1303, [2012] FCJ No 1407 (QL)). However, in
view of the guidance offered by Manual IP 4, in my opinion, the officer would
need to provide a reasonable basis upon which to refuse to accept that
evidence. In this case, the only possible explanation for doing so, being that
the document was not “notarized”, directly contravenes the requirements that
CIC itself set out for the Applicant. It was, as required, administered by a
Notary Public and Commissioner of Oaths.
[27]
Further, as stated at
page 22 of Manual IP 4, in countries where “legal separation and divorce are
not possible, for example, the Philippines”, it may also be that formal custody
arrangements are not be easily attained since those arrangements would arise
from the event of a separation or divorce.
[28]
In these
circumstances, the officer’s refusal without explanation to accept the
statutory declaration as evidence as to the custody of the Applicant’s daughter
was unreasonable.
[29]
It must also be noted
that the very reason that the medical examination policy exists—to safeguard
the right of the Applicant to sponsor her daughter at a later date—had
been unambiguously waived by the Applicant in her statutory declaration. The
declaration thereby met the content requirement of CIC as set out in its
November 28, 2012 letter.
[30]
Subsection 117(9)(d)
of the IRPA Regulations states that a foreign national shall not
be considered a member of the family class by virtue of their relationship to a
sponsor if the sponsor previously made an application for, became a permanent
resident and, at the time of that application, the foreign national was a
non-accompanying family member of the sponsor and was not examined. Thus, once
the statutory declaration was received, the officer no longer had any reason to
require that the Applicant’s daughter be medically examined. Accordingly, it
was unreasonable for the officer to continue to demand proof of attempts to
have her examined and to refuse to grant the exception on the basis that she
had failed to do so. Subsection 16(1) of the IRPA states that an
applicant must produce all relevant evidence and documents that the officer
reasonably requires. The information as to the attempts by the Applicant to
have her daughter medically examined was no longer relevant nor was it
reasonably required.
[31]
Finally, as is
apparent from the CAIPS notes, there was also evidence before the officer that
the Applicant had started a new relationship with a new common law spouse and
had given birth to a child with her new spouse. This, as recognized by Manual
IP 4, is supporting evidence that may be considered by the officer to establish
that her prior relationship has truly broken down and that reconciliation was
unlikely. The officer also had before him the Applicant’s Certificate of
Divorce from the Ontario Superior Court of Justice—further evidence that her
relationship with her former husband was concluded.
[32]
While an officer does
not in his reasons have to refer to each and every piece of documentary
evidence before him, if the evidence was significant, the omission may be fatal
(Hinzman v Canada (Citizenship and Immigration), 2010 FCA 177, [2012] 1 FCR 257 at para 38). Here the whole premise of the officer’s refusal
to issue the permanent residence visa was based on the Applicant’s alleged
failure to produce proof of attempts to examine her daughter and/or custody
documentation. The refusal to accept or the ignoring of the information
provided by way of the statutory declaration and otherwise was fatal in these
circumstances.
[33]
As a final note, the
Respondent’s characterization of the facts—that the Applicant had been given
four years to comply and that she did not—is not persuasive nor entirely
accurate. A review of the record shows that the Applicant had been in constant
communication with CIC, even before she filed her application for permanent
residence, and had sought CIC’s advice and kept CIC fully apprised of the difficulties
she was facing as regards to her former spouse’s refusal to permit the medical
examination. CIC did not acknowledge the substance of these communications or
other relevant information.
[34]
In this situation the
officer’s reasons did not reflect the evidence that was before him and, given
that evidence, his decision was not justifiable, transparent or intelligible
and did not fall within the range of possible, acceptable outcomes defensible
in respect of the facts and the law.
[35]
Accordingly, the application
for judicial review is allowed.
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