Docket: IMM-5133-13
Citation:
2015 FC 140
Ottawa, Ontario, February 4, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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FELADELFO ANQUILERO
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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
I.
Nature of the Matter and Background
[1]
Pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], the Applicant
requested an exemption from the requirement to apply for permanent residence
from outside Canada on humanitarian and compassionate [H&C] grounds. This
request was refused, so the Applicant now seeks judicial review under
subsection 72(1) of the IRPA, asking the Court to set aside the negative
decision and return the matter to another officer for re-consideration. He also
asked for costs.
[2]
The Applicant is now a 59 year-old citizen of
the Philippines. He first came to Canada in August, 1990, and about a year
later applied for refugee protection, claiming to have experienced seven years
of torture and harassment from government intelligence and political guerrillas
in the Philippines. The Applicant’s application for refugee protection was
granted and he was declared a Convention refugee on February 6, 1992.
[3]
However, the Applicant returned to the Philippines to pay his last respects to his father, who died on January 24, 1992. While there,
the Applicant was in an accident and suffered a spinal injury. He was rendered
paraplegic, and to this day remains confined to a wheelchair. He stayed in the Philippines for many years after the accident for surgery and rehabilitation, and while
there he was allegedly kept in hiding.
[4]
The Applicant eventually returned to Canada on December 29, 2001. On March 17, 2003, he applied for permanent residence as a Convention
refugee, but his application was refused some six months later. On September
27, 2005, the Refugee Protection Division of the Immigration and Refugee Board
determined that the Applicant was no longer a Convention refugee. Subsequent to
that loss of status, the Applicant requested a pre-removal risk assessment, but
that application was refused on May 5, 2008.
[5]
On April 26, 2011, the Applicant made the
H&C application presently under review in this Court. The Applicant was soon
thereafter scheduled to be removed from Canada, but that removal was deferred
on or about July 7, 2011 (see: Court File No. IMM‑4320-11).
II.
Decision under Review
[6]
More than two years after making the H&C
application, a senior immigration officer [Officer] denied the Applicant’s
request for an H&C exemption on June 28, 2013.
[7]
Although the Applicant was found to be a
Convention refugee at one time, the Officer did not think the Applicant truly
feared for his life since he voluntarily returned to the Philippines to pay his last respects to his father. Further, the Officer observed that there was no
evidence that the Applicant was targeted by his former persecutors during the
nine years that he was in the Philippines afterwards. Although the Applicant
stated that he was concealing his presence, the Officer noted that he became
president of his church and was the Chairman of the Marijobojoc Consolidated
Multi-purpose Cooperative.
[8]
The Applicant had claimed that he would be
unable to re-integrate into the labour market in the Philippines because he was
too old. While the Officer accepted that it might be difficult for a man his
age to find a job, the Applicant was educated and certified as an auto
mechanic. He also spoke both Visayan and English, and the Officer was satisfied
that, when seeking employment, the Applicant could rely on those skills and
others he had acquired through his volunteer work in Canada. Furthermore, in
the Officer’s view, the Applicant would not be returning to an unfamiliar place
since he has a social network in the Philippines and two of his sons live
there. Although the Officer accepted that the Applicant’s sons could not offer
financial assistance, the Applicant had not proven that they would withhold
their emotional support.
[9]
The Applicant was also worried about the
situation of persons with disabilities in the Philippines, as the documentary
evidence showed that they face challenges including poverty and limited access
to basic social services. However, the Officer found that the government was
making some efforts to improve the situation, and that the Applicant had
received medical treatment and rehabilitation during the nine years after his
accident. As there was no indication that he had been denied services during
this period, the Officer decided that the Applicant had not shown that he would
be personally and directly affected by the problems generally faced by people
with disabilities in the Philippines.
[10]
The Applicant also stated that he suffers from
advanced stages of heart disease, and he claimed that he would be unable to see
cardiologists in the Philippines since the closest ones to his hometown are in Manila and he is too ill to travel there. The Officer did not agree; the Applicant had
relocated thousands of miles to Canada, and there was no proof that he could
not travel the more modest distance between Manila and his hometown. In any
event, the Applicant could simply choose to live in Manila, thus resolving any
problem in that regard and also improving his employment prospects and his
access to social services.
[11]
Although the Applicant had been in a Canadian
research trial for cardiovascular disease and asked to stay until its findings
were known, the outcome of this research was expected in 2012, well before the
Officer decided the application, so no weight was assigned to that factor.
[12]
The Officer next recognized that the Applicant
had been integrating into Canadian society. He was volunteering and
participating in the community, and has never relied on social assistance
despite his disability. He has also built strong friendships. However, despite
these positive factors, the Officer noted that separation and its associated
hardships can be expected any time that a person is removed from Canada in order to comply with the ordinary requirements of the IRPA. The Officer
did not consider it unusual and undeserved or disproportionate in the
circumstances of the Applicant. Also, there was not enough evidence to convince
the Officer that the Applicant would be unable to re-establish himself in the Philippines, especially as he still has friends there as well as his two sons.
[13]
Finally, the Officer considered the best
interests of the two young children of the family hosting the Applicant in Canada. The Officer accepted that the Applicant had formed a close relationship with them
and that they have benefited from his presence. However, the Officer decided
that the children’s parents could take care of them, and that the Applicant
could maintain contact with them through other means such as the telephone,
email, letters and video chat. Ultimately, the best interests of these children
were not enough to justify an exemption from the requirement for the Applicant
to apply for permanent residence from outside Canada.
[14]
The Officer concluded by observing that “[t]he H&C process is not designed to eliminate hardship;
it is designed to provide relief from unusual, undeserved or disproportionate
hardship” (citing Irimie v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1906 (QL) at paragraph 26, 10 Imm LR (3d) 206).
In the Officer’s view, the Applicant’s circumstances did not rise to that
level, so the application was denied.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[15]
The Applicant acknowledges that the standard of
review is reasonableness, but submits that the decision does not meet that
standard for three reasons: first, the Officer failed to apply the proper test
in assessing the Applicant’s application; second, the Officer ignored material
evidence; and third, the Officer’s reasons are inadequate.
[16]
The Applicant points out that officers are
required to consider the particular circumstances of an applicant and assess
those circumstances in light of the IRPA and the relevant guidelines
(citing White v Canada (Citizenship and Immigration), 2008 FC 896 at paragraph
12, 74 Imm LR (3d) 153). Here, the Applicant asserts that the Officer did not globally
assess the Applicant’s application in accordance with chapter IP 5 of the Inland
Processing Manual, “Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” [Manual]. All the relevant
criteria outlined in the Manual favoured the Applicant, and he argues that the
Officer erred by assessing them in isolation. Had the Officer properly assessed
the total hardship that the Applicant would suffer if he were required to apply
for status from outside of Canada, the Applicant says the Officer could not
have concluded there was insufficient evidence to demonstrate unusual and
undeserved or disproportionate hardship.
[17]
The Applicant also relies upon the decision in El
Thaher v Canada (Citizenship and Immigration), 2012 FC 1439 [El Thaher],
to argue that the Officer failed to properly assess the degree of the
Applicant’s establishment in Canada. The Applicant submits that the Officer did
not conduct any personalized assessment of the Applicant’s circumstances as
someone with a physical disability, and that the Officer made contradictory
findings about the availability of medical care or services should the
Applicant return to the Philippines.
[18]
Furthermore, the Applicant states that the
Officer ignored relevant evidence. Relying upon the decision in Ranji v
Canada (Public Safety and Emergency Preparedness), 2008 FC 521, at
paragraphs 26 and 28, the Applicant says that officers are expected to describe
and discuss significant facts, even though they may not be obliged to recite
every piece of evidence. The Applicant argues that the more important the
evidence that is not mentioned specifically and analysed in the reasons, the
more willing a court may be to infer from the silence that the decision-maker
made an erroneous finding of fact without regard to the evidence (citing Chandidas
v Minister of Citizenship and Immigration, 2013 FC 258 at paragraphs 17 and
71, 429 FTR 55).
[19]
Here, the Applicant takes issue with the
Officer’s assessment of the availability of medical services and accommodations
for persons with disabilities in the Philippines. The Applicant claims that the
Officer selectively relied only on the United States’ Department of State
Report on conditions in the Philippines [USDOS Report], and either ignored or
failed to properly assess the additional documentation from the Asian
Development Bank with respect to disabled persons and the services available to
them in the Philippines [Asian Development Bank Report]. According to the
Applicant, the evidence presented in the Asian Development Bank Report
contradicts the Officer’s conclusion on availability of services and
accommodation for persons with disabilities in the Philippines.
[20]
In addition, the Applicant says that the Officer
clearly knew about the Applicant’s proposed removal from Canada but did not mention how the deferral of such removal resulted in the Applicant becoming even more
established in Canada. The Applicant argues that this was unreasonable, citing Bailey
v Canada (Citizenship and Immigration), 2014 FC 315 at paragraphs 56-61
and 68, 24 Imm LR (4th) 298; and Lozano Vasquez v Canada, 2012 FC 1255
at paragraphs 39-43, 14 Imm LR (4th) 110.
[21]
The Applicant lastly submits that the Officer’s reasons
are inadequate as they are neither transparent nor justifiable (citing Adu v
Canada (Minister of Citizenship and Immigration), 2005 FC 565 at paragraph
14 [Adu]).
[22]
In conclusion, the Applicant says that he is not
a burden to Canadian society. If the Court were to accept the Respondent’s
arguments, the Court would be diminishing the good community service, conduct
and establishment of the Applicant in Canada. The Applicant says that this is “insulting” to him, especially since he has met all
the factors outlined in the Manual. The Applicant has been in Canada for 13 years, and he argues that the H&C provisions of the IRPA are intended to
cover the exceptional and unique circumstances of individuals like him.
B.
The Respondent’s Arguments
[23]
The Respondent says that H&C relief is
exceptional; it is not just a question of whether the Applicant’s circumstances
are sympathetic. In the Respondent’s submission, the Officer’s decision was
reasonable in view of the evidence that was submitted.
[24]
In that regard, the Respondent takes issue with
certain “facts” that were contained in the Applicant’s affidavit requesting
leave of this Court for judicial review but for which there was no evidence
before the Officer. In particular, the Respondent says there was no evidence that
the Applicant self-catheterized, was unfit to fly, relied on benefactors for
his expenses, or was unable to pay his living expenses in the Philippines. Rather, the evidence before the Officer was such that the Applicant is a fully
independent person with good mechanical skills, and the Officer cannot be
expected to account for evidence that was never submitted.
[25]
The Respondent states that the Officer here
applied the correct test of unusual and undeserved or disproportionate hardship.
The Manual is only a guideline and the list of factors is not determinative
(citing Doumbouya v Canada (Citizenship and Immigration), 2007 FC 1186,
325 FTR 186).
[26]
Furthermore, the Respondent argues that the
Applicant did not personalize whether he would be deprived of medical and other
services and accommodations in the Philippines. The Respondent states that the
Officer cited the DOS Report, and should be presumed to have considered the
Asian Development Bank Report as well. According to the Respondent, the Officer
properly considered the Applicant’s medical condition and needs, but the
Applicant failed to provide sufficient evidence that he could not get
appropriate treatment or accommodations in the Philippines.
[27]
The Respondent says that the decision in El
Thaher is distinguishable since that case only determines that an officer
needs to consider an applicant’s establishment in Canada. A high degree of
establishment does not mean that an H&C application must be granted.
Furthermore, the cases cited by the Applicant for persons with significant
medical requirements or disabilities are distinguishable, since the applicants
in those cases were highly dependent on other people.
[28]
As to the sufficiency of the Officer’s reasons,
the Respondent says that this is not a stand alone basis for granting the
application for judicial review (citing Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
paragraph 18, [2011] 3 S.C.R. 708 [Newfoundland Nurses]). Here, the
Officer’s reasons can be understood. According to the Respondent, the Officer
properly assessed the Applicant’s employability and, in addition, the
Respondent notes that the Applicant was able to access care in the Philippines during the nine years before he re-entered Canada.
[29]
The Respondent also says that the decision in Adu
is distinguishable, since it has been overtaken by Newfoundland Nurses
and, in any event, the Officer’s reasoning is clear and does not merely state
conclusions after summarizing the evidence.
IV.
Issues and Analysis
A.
Is the evidence challenged by the Respondent
admissible?
[30]
At the hearing of this matter, the Respondent
argued that the Applicant had improperly supplemented the record for judicial
review by relying on evidence which was not before the Officer.
[31]
The general rule is that the evidentiary record
for a judicial review application is restricted to that which was before the
decision-maker (Association of Universities and Colleges of Canada v
Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paragraph
19, 428 NR 297 [Association of Universities]). Although there are
exceptions to that rule (Association of Universities at paragraph 20),
none apply in this case.
[32]
Thus, the additional evidence adduced by the
Applicant subsequent to the date of the Officer’s decision will not be
considered when assessing the Officer’s decision. The Applicant cannot now
produce new evidence which was not before the Officer in an effort to buttress
his arguments that the Officer made factual errors.
B.
Standard of Review
[33]
The appropriate standard of review for an
H&C decision is that of reasonableness since it involves questions of mixed
fact and law: see, e.g., Kisana v Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at paragraph 18. That standard was recently
confirmed in Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA
113 at paragraphs 30, 32 and 37, 372 DLR (4th) 539 [Kanthasamy], where
the Federal Court of Appeal stated that an H&C decision is analogous to the
type of decision that attracted a reasonableness standard of review in Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2
SCR 559.
[34]
The Court should therefore not interfere if the
Officer’s decision is intelligible, transparent, justifiable, and falls within
the range of possible, acceptable outcomes that are defensible in respect of
the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph
47, [2008] 1 S.C.R. 190. A reviewing Court can neither reweigh the evidence that
was before the Officer, nor substitute its own view of a preferable outcome: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 59
and 61, [2009] 1 S.C.R. 339. Furthermore, the Court does not have “carte blanche to reformulate a tribunal’s decision in a way
that casts aside an unreasonable chain of analysis in favour of the court’s own
rationale for the result” (Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at paragraph 54,
[2011] 3 S.C.R. 654).
C.
Was the Officer’s Decision Reasonable?
[35]
Upon review of the Officer’s decision as a
whole, it is clear that the Applicant’s establishment in Canada was not appropriately or fully considered. In just three paragraphs, the Officer had
this to say about the Applicant’s degree of establishment:
I recognize that since being in Canada, the applicant has made efforts to integrating [sic] into Canadian society.
He has been involved in the community through volunteer work, as well as
participating in community activities. The applicant has provided letters
regarding his volunteer work as well as letters of support. I note the
applicant is also involved in the Filipino community. I have also considered
that the applicant has not relied on social assistance despite his physical
disability and medical condition.
I have also considered that the applicant
has strong personal ties to Canada. It is understandable that he would want to
remain in Canada with his friends. I note that separation is a general result
when friends become residents of different countries and note the associated
hardships, such as emotional and financial support [sic] are not in
isolation to the hardships faced by others who have been similarly separated
from family members. There is insufficient evidence before me to suggest that
the applicant could not maintain his relationship with his Canadian friends to
some extent from abroad through other means. I note the applicant would not be
without family ties in the Philippines, he has two adult children currently
residing in the Philippines. While I accept that the applicant’s preference is
to remain in Canada, in consideration of the evidence before me, I am not
satisfied that requiring the applicant to apply for permanent residence in the
normal manner constitutes unusual and undeserved or disproportionate hardship.
I accept that the applicant has several
positive elements towards his establishment. However, I am not satisfied that
his level of establishment in Canada is exceptional or more than would be
expected of similarly situated individuals. There is insufficient evidence
before me to establish that the applicant’s situation in the Philippines is such that the hardships associated with seeking permanent residence in the
normal manner constitute unusual and undeserved or disproportionate hardships.
There is insufficient evidence before me that the applicant would not be able
to re-establish himself in his country of origin or that in doing so, it would
amount to hardship that is unusual and undeserved or disproportionate. While I
accept that applicant will face some hardship in having to return and resettle,
I am not satisfied he has established that the hardships associated with him
severing his personal and community ties to Canada would amount to unusual and
underserved [sic] or disproportionate hardship.
[36]
While the Officer may have considered the
evidence, he or she did not appreciate the significant, indeed unusual, degree
of establishment that the material submitted by the Applicant tended to show. There
are no obvious defects in the evidence, and it was not reasonable for the
Officer to repeatedly say “there is insufficient
evidence before me” without explaining why the evidence was
insufficient. As Mr. Justice Donald Rennie observed in Velazquez Sanchez v
Canada (Citizenship and Immigration), 2012 FC 1009 at paragraph 19, this
kind of “boilerplate approach is contrary to the
purpose of providing reasons as it obscures, rather than reveals, the rationale
for the officer’s decision.” The Officer thus unreasonably minimized the
significant hardship that would be suffered by the Applicant if he is required
to leave Canada after having lived here continuously for more than 13 years and
having first arrived here as a Convention refugee more than 24 years ago.
[37]
The degree of the Applicant’s establishment here
in Canada is, of course, only one of the various factors that must be
considered and weighed to arrive at an assessment of the hardship in an H&C
application. The assessment of the evidence is also an integral part of an
officer’s expertise and discretion and the Court should be hesitant to
interfere with an officer’s discretionary decision. However, the Applicant’s
establishment was clearly an extremely significant aspect of his H&C
application and, therefore, it required an appropriate analysis which was
sensitive to the unusual length of time which the Applicant has resided in
Canada and the degree to which the Applicant established himself here despite
his disability.
[38]
In this regard, I agree with the following
passage from Mr. Justice James Russell’s decision in El Thaher:
[56] What is missing is an analysis of
the degree of establishment in this case. The Applicant believes it is
exceptional and would lead to exceptional hardship if he is removed. This was a
highly significant aspect of the H&C application. The Officer did not have
to agree with the Applicant but, on these facts, I think he did have to explain
why he disagreed.
[57] The same problem arose in Sebbe
v Canada (Minister of Citizenship and Immigration), 2012 FC 813, where the
officer failed to appreciate the degree and extent of establishment, and did
not properly consider the hardship related to that establishment. Justice Zinn
warned in Sebbe at paragraph 21, that “what is required is an analysis
and assessment of the degree of establishment… and how it weighs in favour of
granting an exemption.” I do not think this really occurs in the Decision
before me. …
[39]
Although the purpose of subsection 25(1)
of the IRPA and the public policy embodied in such section is not to
ameliorate all hardship, but, rather, to mitigate unusual and undeserved or
disproportionate hardship, the Officer was obliged to fully assess the
Applicant’s personal evidence of establishment and not blandly conclude that
his level of establishment was “not … more than would
be expected of similarly situated individuals.”
V.
Conclusion
[40]
In the result, therefore, I find that the
Officer’s failure to fully consider the extent of the Applicant’s establishment
on a personalized basis and the degree of hardship he would likely face if
returned to the Philippines was not transparently justified by the reasons. The
decision is beyond the range of possible, acceptable outcomes that are
defensible in respect of the facts and the law, and it must therefore be set
aside.
[41]
This application for judicial review is allowed
and the H&C application is remitted to a different immigration officer for
re-determination. Neither party raised a question of general importance for
certification, so none is certified.
[42]
The Applicant originally asked for costs in his
application, but has not repeated that request. Regardless, there are no
special reasons that take this case outside of the “no costs” regime
established by section 22 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22: Ndungu v Canada (Citizenship and
Immigration), 2011 FCA 208 at paragraphs 5-7, 423 NR 228.
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