Docket: IMM-6179-13
Citation: 2014 FC 333
[UNREVISED ENGLISH CERTIFIED
TRANSLATION]
Ottawa,
Ontario, April 4, 2014
PRESENT: The Honourable Mr. Justice Noël
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BETWEEN:
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DIDIER SÉNÉPART
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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 ORDER AND ORDER
I. Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001 c 27 (IRPA) of a decision dated September 10, 2013, by Carlos
Costa, an immigration officer with Citizenship and Immigration Canada (CIC,
immigration officer), refusing the applicant’s application for permanent
residence on humanitarian and compassionate grounds (H&C application).
II. Facts
[2]
The applicant is a Belgian citizen who was born
on January 26, 1960, and arrived in Canada on February 24, 2003.
[3]
His spouse, whom he married on February 24, 2010,
after approximately seven years together, has HIV. The diagnosis was made in
January 2008.
[4]
In Belgium, the applicant was convicted of forgery,
using forged documents, breach of trust and embezzlement in 1984, and of
forgery, using forged documents, fraud and possession of stolen property in 2003.
[5]
The applicant filed a refugee protection claim
on February 27, 2007, which was rejected by the Immigration and Refugee Board
on February 10, 2010. The Federal Court of Canada dismissed his application for
leave and judicial review regarding that rejection.
[6]
In July 2010, he filed an initial H&C
application accompanied by a sponsorship application by his spouse. A CIC
immigration officer refused that application on January 14, 2013. The H&C
application relied on the applicant’s settlement in Canada and on his marriage to
his spouse. On January 31, 2012, the applicant filed an application for leave
and judicial review with respect to that refusal, but abandoned it after the respondent
offered to reconsider his H&C application.
[7]
That reconsideration took place on September 10,
2013, and it is the CIC’s refusal at the end of that process that is the
subject of this application for judicial review.
[8]
Meanwhile, in September 2010, the applicant
filed a pre-removal risk assessment application, which was rejected in May
2011.
III. Impugned
decision
[9]
After summarizing the applicant’s arguments and stating
the applicable legal framework and burden of proof in the case, the immigration
officer refused the H&C application.
[10]
According to him, the fact that the H&C
application was accompanied by a sponsorship application prepared by the
applicant’s spouse was a positive aspect, but the applicant did not submit a
Quebec Selection Certificate (QSC) or demonstrate that he took steps to obtain
it, which was a negative aspect. Furthermore, CIC attached little weight to the
applicant’s argument concerning the importance of his relationship because he
attempted to settle permanently in Canada only after he had lived with his
spouse for seven years.
[11]
The immigration officer also attached little
weight to the applicant’s argument concerning his spouse’s state of health, finding
that the applicant did not submit evidence that his spouse is unable to work or
support himself because of his HIV diagnosis.
[12]
Little weight was given to the applicant’s
argument that he has not stopped working since he arrived in Canada because he did not work from September 2007 to April 2009 and did not submit
evidence of income from 2004 to 2009 as well as from 2010 until today.
Moreover, the applicant stated that he started working in 2003 whereas his
record in the immigration information system shows that he got his first work
permit in 2007. Thus, either the applicant contradicted himself in that respect
or he worked illegally in Canada for four years.
[13]
The immigration officer was of the opinion that
the applicant did not demonstrate that his extended stay in Canada was not the result of an inability to leave the country or circumstances that were out
of his control. Finally, CIC attached significant weight to a negative aspect
of the H&C application, that is, the fact that the applicant did not claim
refugee protection until 2007 even though he arrived in Canada in 2003 and consequently stayed in the country illegally for several years.
[14]
The applicant stated that he would have nowhere
to stay in his country of origin and that he would not be able to find
employment there, but the immigration officer found that he has family in his
country of birth and that the skills that he has acquired here would be
transferable. Consequently, CIC did not attach a lot of weight to that argument.
[15]
Regarding the applicant’s settlement in Canada, the immigration officer found that the fact that the applicant’s spouse is a
Canadian citizen and lives here does not automatically mean that the applicant
is settled in the country.
IV. Applicant’s arguments
[16]
The applicant claims that the immigration
officer’s decision is not reasonable for various reasons.
[17]
He states that CIC misinterpreted the system, that
is, the decision-making process surrounding the processing of an H&C
application regarding the issuance of a QSC. The immigration officer wrongly
drew a negative inference from the absence of a QSC in the applicant’s record, as
the applicant was unable to submit a QSC because a request in that respect can
only be made after an H&C application has successfully passed its first stage,
which was not the case.
[18]
Furthermore, it was not reasonable to doubt the
relationship between the applicant and his spouse by stating that seven years had
passed before a permanent residence application was filed. Such reasoning
disregards the proceedings undertaken by the applicant over the years, namely
his refugee protection claim.
[19]
The immigration officer also erred in his
assessment of the potential consequences of the applicant’s departure on his
spouse, who has HIV. The decision refers only to the relationship of financial
dependence between the spouses and completely eliminates the concept of the moral
and psychological support between the spouses, who were required to go through
significant hardship because the applicant’s spouse was diagnosed with HIV. The
applicant reasonably expected the immigration officer to explain why he did not
accept that important argument, which is at the heart of the application and
which makes their application, notwithstanding the decision, exceptional relative
to other couples. The applicant also claims that CIC, in its decision, lacked
compassion for persons with HIV by barely touching on the daily reality of a
couple where at least one member has the virus.
[20]
Finally, the immigration officer should have
considered the fact that the applicant has a criminal record in Belgium and
that the processing of a permanent residence application from outside Canada
would consequently be longer and that, during that time, the applicant would
not be able to offer the daily moral and psychological support that he has been
offering his spouse for years.
V. Respondent’s arguments
[21]
The respondent claims that the decision is
completely reasonable, mainly because it constitutes the result of the exercise
of a highly discretionary power that requires a reviewing court to show
deference and respect. Furthermore, the immigration officer repeated passages
from the applicant’s written submissions word for word, which indicates that
the decision-maker was attentive to the applicant’s claims. Furthermore, had it
been made, proof of the applicant’s settlement in Canada would not have been
sufficient to obtain a positive response, and the applicant refused to have his
application processed in the spouse/common-law partner class.
[22]
In addition, the respondent adds the following
in reply to the applicant’s arguments. First, the burden was on him to prove
his allegations concerning the moral and psychological support that he and his
spouse provide each other because of the illness. In that regard, the applicant
submitted nothing except for his written submissions, and the respondent
specifies that the separation of a couple cannot in itself justify a positive
decision. Furthermore, the immigration officer’s finding regarding the absence
of a QSC in the applicant’s record was not determinative in the outcome of the
H&C application. The mere fact of having stated that many people with HIV
lead a normal life despite their illness is not reflective of a lack of
compassion on the part of the immigration officer. Finally, it is unthinkable
that the existence of a criminal record should favour a positive determination
because that would result in preferential treatment for people who have a
criminal record over those who have never come into conflict with the law.
VI. Issue
[23]
Did the CIC immigration officer err by refusing
the H&C application?
VII. Standard of
review
[24]
It is well established that a decision rendered
by a CIC officer in an H&C application must be reviewed on the standard of
reasonableness (Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at paragraph 18, [2009] FCJ No 713 (Kisana); see for example, George
v Canada (Minister of Citizenship and Immigration), 2012 FC 1240 at paragraph
31, [2012] FCJ No 1348).
[25]
As a result, the Court should be careful not to
intervene if the immigration officer’s finding is justified, transparent and
intelligible and if it falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 47, [2008] SCJ No 9).
VIII. Analysis
[26]
Before beginning the analysis of this case, it
would be advisable to state the legal framework in which an H&C application
is filed. In filing such an application, under section 25 of the IRPA, foreign
nationals intend to be relieved of, for humanitarian and compassionate reasons,
their general obligation to file their application for permanent residence from
outside the country. In order for foreign nationals to be provided the relief
sought, which also constitutes the exception to the rule, they must prove their
allegations—the burden is on them (see Kisana, above, at paragraph 35;
Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at
paragraph 5, [2004] 2 FCR 635). Thus, in this case, it was up to the applicant
to convince the immigration officer that his personal situation was such that the
filing of his application for permanent residence from abroad would lead to
unusual and undeserved or disproportionate hardship.
[27]
Furthermore, as indicated by the respondent, it
is true that the power conferred by section 25 of the IRPA is highly
discretionary (see Baker v Canada (Minister of Citizenship and Immigration),
[1999] SCJ No 39 at paragraphs 51-53) and it is also important to note that a
reasonable exercise of that discretionary power may result in a wider scope of
possible outcomes (see for example L.A.H. v Canada (Minister of Employment
and Immigration), 2012 FC 337 paragraph 18, [2012] FCJ No 353). And despite
the fact that reviewing courts cannot substitute their own appreciation of the
appropriate solution or re-weigh the evidence (Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paragraph 59, [2009] SCJ No 12), they
can nevertheless examine the justified, transparent and intelligible nature of
the decision rendered (Dunsmuir, above, at paragraph 47).
[28]
It is therefore within the limits of that legal
framework and for the following reasons that this Court states that the
decision by the immigration officer to refuse the applicant’s H&C
application that is under review here is unreasonable and that the matter must
be referred back to another immigration officer for redetermination.
[29]
The immigration officer’s primary error is the
result of a misapprehension of unusual and undeserved or disproportionate
hardship as it relates to the radically different reality that the applicant
and his spouse live with relative to most couples, at least regarding one
aspect of their life, that is, the illness. For many years, they have mutually
supported each other and have provided each other with needed moral and psychological
support to confront the challenges that being infected with HIV brings. That
reality inevitably disrupts their individual everyday life and their life as a
couple. The applicant has reason to claim that the moral and psychological
support in their relationship is an essential component of his H&C
application and he was entitled to expect the issue to be addressed by the
immigration officer because it was important. The immigration officer
completely eliminated that notion in his reasoning; for CIC, only the financial
support seemed to be taken into consideration. Although the applicant emphasized
the financial support between himself and his spouse in his written submissions,
the fact remains that he addressed the moral and psychological aspect of the
support in their relationship, and the decision does not explain why that crucial
issue was not accepted. Without suggesting that the immigration officer lacked
compassion for persons with HIV, that is an unreasonable error.
[30]
An assessment of the decision reveals other less
serious errors. First, the immigration officer stated that he attached little
significance to the applicant’s argument that he has been in a relationship
with his spouse for many years on the grounds that he filed an application in
the aim of settling permanently in Canada after living with his spouse for
seven years. By finding as such, the immigration officer seems to have not taken
into consideration the proceedings undertaken by the applicant since his
arrival: he filed a refugee protection claim in 2007 (which was rejected in
2010), an application for leave and judicial review of the rejection of his
refugee claim (which was dismissed), a pre-removal risk assessment application (which
was rejected), an initial H&C application in 2011 and a reconsideration of
that H&C application in 2013 (which led to this application for judicial
review). It was, however, relevant for the immigration officer to point out
that, in the absence of evidence to the contrary, the applicant seems to have
stayed in Canada without status for some time—more specifically, from the time
his visitor’s visa expired on May 23, 2003, until February 14, 2007, when
his refugee claim was filed—but given the proceedings undertaken by the
applicant, it is completely unreasonable to suggest that he waited until he had
lived with his spouse for seven years before taking steps to remain in Canada,
especially since the immigration officer minimized the importance of the
applicant’s relationship because of that finding.
[31]
Then, the immigration officer also erred
regarding the QSC. In fact, according to the process in place for the processing
of H&C applications, which is in two stages, a QSC can only be requested
and obtained if an H&C application had been approved in principle at the
first stage. It was therefore completely unreasonable for the immigration
officer to draw a negative inference from the absence of a QSC in the
applicant’s record. The erroneous finding in that regard is perhaps not fatal
in itself for the outcome of the H&C application in this case, but it
undermined the weight the officer attached to the fact that the H&C
application was accompanied by a sponsorship application, which, in addition to
the other errors that have already been mentioned, most certainly contributed
to the outcome of an unreasonable finding.
[32]
However, it was completely reasonable for the
immigration officer to note certain problems in the application. For example,
the applicant did not provide financial data for certain years in Canada. Also, the applicant’s argument that his H&C application should have received a
positive determination because he has a criminal record is flawed for obvious
reasons raised by the respondent in his submissions: such a situation would result
in giving preferential treatment to people who have come into conflict with the
law over those who have no criminal record. That being said, I am of the
opinion that those problems in the H&C application at the heart of this
matter cannot compensate for the errors made by the immigration officer that
fatally undermine the decision, especially regarding the moral and
psychological support the applicant provides to his spouse and the unusual and
undeserved or disproportionate hardship that their potential separation would cause
in that regard.
[33]
The parties were invited to submit a question
for certification, but none was proposed.
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