Docket: IMM-6162-14
Citation:
2015 FC 294
Ottawa, Ontario, March 9, 2015
PRESENT: The
Honourable Madam Justice Bédard
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BETWEEN:
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MIRNA MAJDALANI AND
TRACY HAWCHAR
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Applicants
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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
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. It challenges a decision (the H&C decision) rendered
by a Senior Immigration Officer (the Officer) rejecting the applicants’
application for an exemption on humanitarian and compassionate grounds under
subsection 25(1) of the IRPA from the requirement to apply for permanent
resident visas from outside Canada (the H&C application). Although I
acknowledge the unfortunate circumstances of the situation and the capable
submissions of the applicants’ counsel, the Court’s intervention is not
warranted and the application is dismissed.
I.
Context
[2]
The applicants, Mirna Majdalani (the applicant)
and Tracy Hawchar, her now-adult daughter, are Lebanese citizens.
[3]
The applicant arrived in Montreal on December 1,
2006 with her two daughters, Natacha and Tracy. At the time, Natacha was 16
years old and Tracy was 11 years old. The applicant claimed refugee protection
based on a fear of persecution in Lebanon based on her Christian faith and
violence in the region. During the refugee claim process, the applicant’s
oldest daughter, Natacha, returned to Lebanon. The applicant’s refugee claim
was rejected on December 31, 2009, and an application for leave and for
judicial review was dismissed by this Court on April 22, 2010.
[4]
In 2009, the applicant married a Canadian
citizen, and she lived in Ontario with Tracy from 2009 to 2012. In 2010, she
applied for permanent residence in the spousal category, but her spouse
withdrew his sponsorship in 2011 due to a deterioration of the relationship which
led to a divorce that was finalized in 2013.
[5]
The applicants moved back to Montreal in March 2012,
and they have been living there since that time.
[6]
On March 23, 2012 the applicant filed an H&C
application and on October 25, 2012, she submitted a Pre-removal risk
assessment (the PRRA application).
[7]
The grounds for the H&C application are the
applicants’ establishment in Canada, including the care that the applicant
provides to her mother, Mrs. Gedeon, who is a Canadian citizen, the best
interests of Tracy, and the risks the applicant may face in Lebanon as a Christian and as a single woman. In support of the application, the applicant filed
documentary evidence including her own affidavit, a letter signed by Tracy, a letter signed by Mrs. Gedeon, a medical note signed on March 9, 2012 by Mrs.
Gedeon’s doctor, Dr. Juan-Francisco Asenjo, and documentary evidence regarding general
country conditions.
[8]
Both the PRRA and H&C applications were
denied on April 30, 2014. The applicants now seek judicial review of the
negative H&C decision.
[9]
On August 6, 2014, the applicants were notified
their removal to Lebanon was scheduled for September 8, 2014. On August 18,
2014, they requested an administrative deferral, which was then denied by a Law
Enforcement Officer on August 22, 2014. To my knowledge, the applicants have
not filed an application for leave and judicial review challenging the Law Enforcement
Officer’s decision.
[10]
However, on August 26, 2014, they filed a motion
with this Court for a stay of their removal, pending the determination of this
application. On September 5, 2014, Justice Shore granted their motion for stay
of removal, pending the outcome of this judicial review.
[11]
With respect to irreparable harm, the applicants
alleged they would face risks as Christian Lebanese females in the current
geopolitical context in Lebanon, emanating from the spillover from the Syrian
unrest, the insurgent advances made by the Islamist State of Syria and Levant (ISIL) militants, and the increasing tension between the religious communities.
They filed documentary evidence regarding the escalating tides of sectarian
warfare and increased instability stemming from the political unrest in Syria. They also alleged the negative impact their removal would have on the applicant’s
mother due to the deterioration of her medical condition. In support of this
allegation, the applicants filed a medical note from Dr. Asenjo, dated August
18, 2014, in which he provided an update regarding Mrs. Gedeon’s condition and
her need for assistance.
[12]
In his Order, Justice Shore discussed the issue
of irreparable harm and noted the unstable current situation in Lebanon, but he was not satisfied that the applicants would be in danger in Lebanon. However, he acknowledged the recent deterioration of Mrs. Gedeon’s condition, and he
granted the stay.
II.
The H&C decision under review
[13]
The Officer considered the applicant’s occupational
and financial situation in Canada, the applicant’s family in Canada, more particularly the situation regarding her mother’s health condition, the best interests
of Tracy, including the allegation that she would not receive an appropriate
education in Lebanon, the applicants’ health issues, and the risk and adverse
conditions in Lebanon. The Officer considered all of the applicants’ submissions
and numerous updates. She found that the applicants had not demonstrated they would
face unusual and undeserved, or disproportionate hardship in Lebanon and that there were not sufficient humanitarian and compassionate grounds which would
justify granting an exemption from obtaining a permanent resident visa outside Canada.
III.
Issues and standard of review
[14]
This application raises the following two
issues:
1)
Did the Officer breach her duty of procedural
fairness by relying on information found on the Quebec Government website and
on the Ministry of Education and Higher Education of Lebanon website without
providing the applicants with the opportunity to respond to that information
prior to rendering her decision?
2)
Did the Officer err in her assessment of the
applicants’ evidence and circumstances?
[15]
The standard of review for questions of
procedural fairness is correctness (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43,
[2009] 1 S.C.R. 339; Mission Institution v Khela, 2014 SCC 24
at para 79, [2014] 1 S.C.R. 502). In this regard, I endorse the approach adopted by
Justice Mosley when he states that the question is not really whether the
decision was “correct”, but rather whether the
process followed by the decision-maker was fair (Hashi v Canada (Minister of
Citizenship and Immigration), 2014 FC 154 at para 14, [2014] FCJ No 167;
and Makoundi v Canada (Attorney General), 2014 FC 1177 at para 35,
[2014] FCJ No 1333).
[16]
With respect to the second issue, the Officer’s
decision involves questions of mixed fact and law, and it is well established
that these decisions are reviewable under the reasonableness standard of review
(Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189
at para 18, [2009] FCJ No 713 [Kisana]; Kanthasamy v Canada (Minister of Citizenship and Immigration), 2014 FCA 113 at paras 81-84, [2014] FCJ No 472
[Kanthasamy]; Nicolas v Canada (Minister of Citizenship and
Immigration), 2014 FC 903 at para 23, [2014] FCJ No 924).
IV.
Preliminary issue – the evidence that was not
before the Officer
[17]
The applicants submitted five documents that
were not before the Officer. These documents fall into two categories:
documents post-dating the H&C decision and documents submitted in support
of the procedural fairness allegations. The respondent objects to their
admissibility.
[18]
The documents post-dating the H&C decision were
also adduced in the context of the applicants’ motion for a stay. These
documents are as follows:
- A medical
note from Dr. Asenjo dated August 18, 2014 providing
an update regarding Mrs. Gedeon’s health condition;
- A letter from
the applicant’s employer (“My Furnished Apartment”) dated August 13, 2014
confirming that the applicant has worked continuously from 2012 to 2014;
- Paragraph 47
of the applicant’s memorandum: a quotation
from a news article dated July 13, 2014.
[19]
The following documents were submitted in
support of the applicants’ allegations regarding procedural fairness:
- A print-out of the
Lebanese Ministry of Education and Higher Education website;
- A report by the
Protecteur du Citoyen, entitled Chez soi: Toujours le premier choix?
[20]
It is trite law that evidence which was not
before the decision-maker is not admissible on judicial review unless it falls
within the recognized exceptions, for example, where the evidence provides
context, is filed to support an allegation of breach of procedural fairness by
the decision-maker, or where it is filed to demonstrate the absence of evidence
(Association of Universities and Colleges of Canada v Canadian Copyright
Licensing Agency (Access Copyright), 2012 FCA 22 at paras 19-20, [2012] FCJ
No 93 [AUCC]).
[21]
The documents post-dating the Officer’s decision
are inadmissible. They serve as a supplement to the evidence submitted to the
Officer in support of the applicants’ H&C application, and they emphasize
the applicants’ personal circumstances. The applicants cannot bolster the
evidentiary record which was before the Officer to support a claim that the
Officer’s decision was not reasonable. The reasonableness of the Officer’s
decision must be assessed in light of the evidentiary record that was put
before her.
[22]
The applicants argue that because these
documents were before the stay judge, and the stay order is part of the respondent’s
record, they should now be considered as properly admissible. This argument has
no merit. The circumstances at bar do not fit any of the exceptions noted in AUCC,
above. Further, in the context of a stay motion, documents post-dating the
decision being challenged in the underlying application can be admissible when,
for example, they are provided to support the allegation of irreparable harm. The
2014 medical update regarding Mrs. Gedeon’s condition
and the documents regarding country conditions in Lebanon were relevant to the
applicant’s allegation of irreparable harm. This, however, does not render that
evidence admissible in the context of the underlying application where the
Court is tasked with determining whether the Officer’s decision is reasonable
in light of the evidence submitted to him.
[23]
The two other documents, as noted in paragraph
19 above, are filed in support of the applicants’ arguments regarding procedural
fairness. The applicants submit them to respond to the Officer’s use of “extrinsic” sources and to counter the information the
Officer found in the two websites she consulted. In this context, the Court
declares these documents fall into one of the recognized exceptions and, they are
admissible in the context of this judicial review.
V.
Analysis
A.
General principles
[24]
The Court must keep in mind the context of an
H&C application when reviewing the Officer’s decision. It is well
established that subsection 25(1) of the IRPA offers an exceptional and highly
discretionary remedy, as the general requirement is that people wishing to live
in Canada as permanent residents must submit their application from outside
Canada and qualify to obtain an immigrant visa prior to entering Canada. The statutory
scheme of H&C decisions was well canvassed by Justice Shore in Bhalrhu v
Canada (Minister of Citizenship and Immigration), 2011 FC 49 at paras
14-17, [2011] FCJ No 68:
Legislative Principles
14 According to section 25 of the
IRPA, a foreign national may be exempted from any applicable criteria or
obligation of the IRPA if "the Minister is of the opinion that it is
justified by humanitarian and compassionate considerations relating to the
[person], taking into account the best interests of a child directly
affected".
15 The existence of an H&C review
offers an individual special and additional consideration for an
exemption from Canadian immigration laws that are otherwise universally
applied. Granting relief under section 25 of the IRPA is an "exceptional
remedy" dependent on the Minister's discretion. An applicant is not
entitled to a particular outcome, even if there are compelling H&C
considerations present.
16 The Minister has the discretion to
balance H&C considerations against public interest reasons that might exist
for refusing to grant an exceptional remedy (Canada (Minister of Citizenship
and Immigration) v Legault, 2002 FCA 125, [2002] 4 FC 358, at paras 14-21).
17 The purpose of H&C discretion
is to allow flexibility to approve deserving cases, not anticipated in the
legislation. It cannot be "a back door when the front door has, after all
legal remedies have been exhausted, been denied in accordance with Canadian
law" (Legault, above at paras 21-23; Rizvi v Canada (Minister of
Citizenship and Immigration), 2009 FC 463, [2009] FCJ No 582 (QL/Lexis), at
para 17; Mayburov v Canada (Minister of Citizenship and Immigration)
(2000), 183 FTR 280, 98 ACWS (3d) 885, at para 39).
[See also Kanthasamy, above, at paras
40-43]
[25]
It is trite law that the onus in an H&C
application lies with the applicants (Rizvi v Canada (Minister of
Citizenship and Immigration), 2009 FC 463 at para 21, [2009] FCJ No 582; Kanthasamy,
above, at para 41) and they must establish that they would face unusual,
undeserved or disproportionate hardship if they had to apply from outside Canada. It is also well established that an H&C officer has no obligation to highlight the
weaknesses of an application or seek additional information from applicants
when the evidence submitted is insufficient. In Kisana, above, at para 45,
the Federal Court of Appeal reiterated these principles as follows:
45 It is trite law that the content
of procedural fairness is variable and contextual (see: Baker, supra,
para. 21; and Khan v. Canada (MCI), 2002 FCA 413). The ultimate question
in each case is whether the person affected by a decision "had a
meaningful opportunity to present their case fully and fairly" (see: Baker,
supra, para. 30). In the context of H&C applications, it has been
consistently held that the onus of establishing that an H&C exemption is
warranted lies with an applicant; an officer is under no duty to highlight
weaknesses in an application and to request further submissions (see, for
example: Thandal v. Canada (MCI), 2008 FC 489 at para. 9). In Owusu,
supra, this Court held that an H&C officer was not under a positive
obligation to make inquiries concerning the best interests of children in
circumstances where the issue was raised only in an "oblique, cursory and
obscure way" (at para. 9). The H&C submissions in that case consisted
of a 7-page letter in which the only reference to the best interests of the
children was contained in the sentence: "Should he be forced to return to
Canada, [Mr. Owusu] will not have any way to support his family financially and
he will have to live every day of his life in constant fear" (at para. 6).
[26]
Keeping these principles in mind, I now turn to
the specific issues raised in this application.
B.
Procedural fairness
[27]
The applicants allege that the Officer breached
their right to procedural fairness by relying on information which the Officer gathered
from two websites without informing them and giving them an opportunity to
comment on that information before rendering her decision. With respect, I
disagree for the following reasons.
[28]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817 at para 32, [1999] SCJ No 39, the
Supreme Court of Canada established that a duty of fairness was owed to H&C
applicants and that this duty was more than just minimal. The Court noted that
procedural fairness is variable, flexible and contextual (Baker at paras
21-33) and that “[a]t the heart of this analysis is
whether, considering all the circumstances, those whose interests were affected
had a meaningful opportunity to present their case fully and fairly” (Baker
at para 30; Kisana, above, at para 45). The Supreme Court did not
dictate the content of procedural fairness, but it identified guiding factors
to determine the content of the duty of fairness. These factors were summarized
in Congrégation des témoins de
Jéhova de St-Jérôme-Lafontaine v Lafontaine (Village), 2004 SCC 48 at para 5, [2004] 2 S.C.R. 650:
5 The content of the duty of
fairness on a public body varies according to five factors: (1) the nature of
the decision and the decision-making process employed by the public organ; (2)
the nature of the statutory scheme and the precise statutory provisions
pursuant to which the public body operates; (3) the importance of the decision
to the individuals affected; (4) the legitimate expectations of the party
challenging the decision; and (5) the nature of the deference accorded to the
body: Baker v. Canada (Minister of Citizenship and Immigration), [1999]
2 S.C.R. 817. In my view and having regard to the facts and legislation in this
appeal, these considerations require the Municipality to articulate reasons for
refusing the Congregation's second and third rezoning applications.
[29]
The issue of the use of “extrinsic”
evidence by administrative bodies and tribunals, and more specifically by
H&C officers, and whether fairness requires that this evidence be disclosed
to applicants has been raised on several occasions before this Court.
[30]
One of the pre-Baker leading cases on
this point is Mancia v Canada (Minister of Citizenship), [1998] 3 FC 461
at para 22, [1998] FCJ No 565 (FCA) [Mancia], where
Justice Décary stated that “fairness dictates that the
applicant be informed of any novel and significant information which evidences
a change in the general country conditions that may affect the disposition of
the case”.
[31]
In Haghighi v Canada (Minister of Citizenship
and Immigration), [2000] 4 FC 407 at paras 27-28, [2000] FCJ No 854 [Haghighi],
rendered after Baker, the Federal Court of Appeal discussed the issue of
the use of documentary evidence not previously disclosed to applicants by
H&C officers. In that instance, the evidence at issue was a risk assessment
report. The Court determined the appropriate analytical framework no longer
requires the Court to determine whether a piece of evidence could be characterized
as “extrinsic evidence”. The Court adopted a
contextual approach to determine whether the duty of fairness requires
disclosure with a view to the nature of the decision involved and the possible
impact of the evidence at issue on the decision. Justice Evans, writing for the
Court, set out the contextual approach as follows:
27 Hence, in deciding whether
disclosure of the PCDO's report is required, the Court must consider, inter
alia, the factors identified by L'Heureux-Dubé J. for locating on the
fairness spectrum the duties owed by the immigration officer in a subsection
114(2) case. The inquiry into what is required to satisfy the duty of fairness
must be contextualised: asking, as Shah, supra, directed, whether
the report can be characterised as "extrinsic evidence" is no longer
an adequate analytical approach.
28 The contextual considerations
relevant to determining whether the immigration officer was required by the
duty of fairness to disclose the PCDO's report to the respondent for comment
include the following:
(a) Since an important function of the duty
of fairness is to minimise the risk of incorrect or ill-considered decisions,
one element of the calculus for determining the procedural content of the duty
of fairness in a given case is the extent to which the procedural right
claimed is likely to avoid the risk of error in making the decision or in
resolving the particular issue in dispute. Another element is the seriousness of
the impact of an erroneous decision on those affected by it.
(b) Against these considerations must be
balanced any costs likely to attend the recognition of the procedural right
claimed, such as delays in the decision-making process and the diversion of resources
that may be entailed by adding another procedural layer.
(c) The characteristics of the
decision-maker may also provide a clue to the procedural duties that can
appropriately be imposed as a matter of fairness. A decision-maker with the
trappings of an adjudicative body may more readily be expected to comply with
procedures which, in their general design, resemble those of courts. On the
other hand, where, as here, Parliament has conferred decision-making power on
an officer of a government department, it is appropriate to shape the content
of the duty of fairness applicable with an eye to the bureaucratic model of
decision-making that is characterised by expertise, team work and the division
of labour.
(d) The location of the decision within
the wider statutory scheme is also relevant. Here, subsection 114(2) confers an
important element of discretion that enables immigration officers to take into
account the personal circumstances of individuals who are not eligible for
landing in other immigration categories for which more objective qualifications
apply. While an integral component of a rule-oriented immigration regime,
decisions made on humanitarian and compassionate grounds are discretionary and
residual in nature and therefore do not attract the same degree of procedural
protection as decisions that involve the determination of a person's legal
rights.
(e) To the extent that agency practice
prescribes procedural propriety, it is relevant to note that, while immigration
officers do not routinely disclose PCDOs' risk assessment reports so that
subsection 114(2) applicants can respond, this is sometimes done.
[Emphasis added]
[32]
The principles set out in both Mancia and
Haghighi have since been applied by this Court, occasionally with some
nuances.
[33]
In some cases, the Court has held that
information publicly available, for example documents available on the internet
originating from credible, reliable and well-known sources, is not considered “extrinsic evidence” or “novel
and significant” information (Sinnasamy v Canada (Minister of
Citizenship and Immigration), 2008 FC 67 at paras 39-40, [2008] FCJ No 77; Pizarro
Gutierrez v Canada (Minister of Citizenship and Immigration), 2013 FC 623
at para 46, [2013] FCJ No 692).
[34]
In other cases, the Court applied the “novel and significant” test, and it found the duty to
disclose is triggered when the information contained in the document relied
upon by the officer was not available and would not have been easily accessible
to the applicant, or when the evidence could not have been anticipated (Jiminez
v Canada (Minister of Citizenship and Immigration), 2010 FC 1078 at paras
17-19, [2010] FCJ No 1382; Stephenson v Canada (Minister of Citizenship and
Immigration), 2011 FC 932 at paras 35, 39, [2011] FCJ No 1156; Adetunji
v Canada (Minister of Citizenship and Immigration), 2012 FC 708 at para 38,
[2012] FCJ No 698).
[35]
In Molina de Vazquez v Canada (Minister of Citizenship and Immigration), 2014 FC 530 at paras 27-28, [2014] FCJ No 548
[Molina de Vazquez], Justice de Montigny stressed that not all information
available online can be considered as information publicly available. However, he
found that the H&C officer was not required to disclose general information
regarding the Argentinean school system even though he had gathered the
information from an unorthodox website because it contained general information
which was easily accessible elsewhere by the applicants:
27 I agree with the Applicants'
assertion that not everything found online can be considered as publicly available.
If it were otherwise, as I stated in Sinnasamy v Canada (Minister of
Citizenship and Immigration), 2008 FC 67 (at para 39), it "would
impose an insurmountable burden on the applicant as virtually everything is
nowadays accessible on line". An officer should therefore be prudent when
considering and relying upon "materials that could not be described as the
kind of standard documents that applicants can reasonably expect officers to
consult" (Mazrekaj v Canada (Minister of Citizenship and Immigration),
2012 FC 953 at para 12). […]
28 That being said, it is not the
document itself which dictates whether it is "extrinsic" evidence
which must be disclosed to an applicant in advance, but whether the information
itself contained in that document is information that would be known by an
applicant, in light of the nature of the submissions made: Jiminez v Canada
(Minister of Citizenship and Immigration), 2010 FC 1078 at para 19; Stephenson
v Canada (Minister of Citizenship and Immigration), 2011 FC 932 at paras
38-39. In the case at bar, while the particular websites consulted by the
Officer might be considered somewhat unorthodox and are clearly not standard
sources, they contained general information on the Argentinean school system
which would have been reasonably accessible by the Applicants. They provide
general information on the Argentinean school system that could have been found
elsewhere by the Applicants, and that information can clearly not be
characterized as "novel and significant information which evidences a
change in the general country conditions that may affect the disposition of the
case", as stated by the Federal Court of Appeal in Mancia.
[See also Lopez Arteaga v Canada (Minister of Citizenship and Immigration), 2013 FC 778 at para 24, [2013] FCJ No 833 (J.
Gagné); Begum v Canada (Minister of Citizenship and Immigration), 2013
FC 824 at para 36, [2013] FCJ No 896 (J. Strickland).]
[36]
Other judges have assessed the extent of the
duty of H&C officers to disclose documents with a view to whether disclosure
was required to provide an applicant with the opportunity to participate in a
meaningful manner in the process. In Priyanta Jayasinghe v Canada (Minister of Citizenship and Immigration), 2007 FC 193, [2007] FCJ No 275, Justice Shore expressed the following:
26 The discharge of a visa officer's
duty of fairness must be assessed on a case-by-case basis. In cases, alleging a
breach of duty of fairness, based on the failure to disclose reports which
exist in the public domain, the question is whether the disclosure of the
reports or references to specific passages of the report was required in order
to provide the applicant with a "reasonable opportunity in all the
circumstances to participate in a meaningful manner in the decision-making
process". (Haghighi v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 854 (F.C.A.) (QL), at para. 26).
[37]
However, in all instances the Court has recognized
that to trigger the duty to disclose, the information must be important in the
sense that it may have an impact on the outcome of the decision. In Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20, [2013] FCJ No 25, Justice
Mosley discussed the necessity of the evidence to potentially impact on the
decision:
17 Guidance in respect of the use of
extrinsic evidence in administrative decisions related to immigration was
offered by the Federal Court of Appeal in Muliadi v Canada (Minister of
Employment and Immigration), [1986] 2 FC 205 (FCA) and Haghighi v Canada
(Minister of Citizenship and Immigration), [2000] 4 FC 407 (FCA). The
question is whether meaningful facts essential or potentially crucial to the
decision had been used to support a decision without providing an opportunity
to the affected party to respond to or comment upon these facts.
[…]
25 The key question in the
circumstances of this case is whether fairness dictated that the officer
disclose the Xinhua report and invite further submissions because the content
of the announcement was "novel and significant and [evidenced] changes in
the general country conditions that may affect the decision" (Mancia,
para 27).
[…]
29 In the result, I do not find that
the officer breached procedural fairness by failing to disclose the news report
and to invite further submissions. Even if I had reached a different conclusion
on this question, I doubt that I would have found that it was material to the
outcome. Any submissions that the applicant could have made about the source
and quality of the information would not have displaced the officer's findings
on the other evidence that he relied upon in reaching his decision.
[Emphasis added]
[See also Garnett v Canada (Minister of Citizenship and Immigration), 2012 FC 31 at para 31, [2012] FCJ No 28.]
[38]
In the case at bar, the Officer accessed information online from two sources. First, she
referred to information gathered from the Quebec Government website regarding home
support services. Second, she referred to information found on the Ministry of
Education and Higher Education of Lebanon website regarding the education
system in Lebanon.
[39]
In my view, the
Officer did not breach her duty of fairness by not disclosing this information
to the applicants.
[40]
It is important to
assess the Officer’s duty of fairness in light of the applicants’ allegations with
a view to their evidentiary burden. The Officer’s research online pertained to
two of the applicants’ main allegations.
(1)
The applicant’s presence is required to care for
Mrs. Gedeon
[41]
First, the
applicant alleged she needed to remain in Canada to care for her elderly mother.
[42]
In support of her allegation, she filed an affidavit
which she signed on May 29, 2012. In her affidavit, the applicant declared that
her mother is getting old, she has no other family in Canada and she needs her presence more and more as she is getting older. Further, she stated her
mother can no longer travel as a result of her health condition and age, and her
returning to Lebanon would involve a permanent separation from her mother.
[43]
The applicant also submitted a letter from her
mother, Mrs. Souheila Gedeon, dated April 24, 2012. In her letter, Mrs. Gedeon
stated she is a Canadian citizen; she has been living in Canada for over 20 years. Also, she hopes that her daughter will be able to stay in Canada because her daughter is taking care of her and along with her granddaughter, is keeping
her company. Mrs. Gedeon insisted that she has no other family members in Canada and that she relies on her daughter for various everyday basics.
[44]
The applicant also submitted a medical note from
Dr. Asenjo dated March 9, 2012. In his note, Dr. Asenjo indicated that Mrs.
Gedeon has been his patient at the Pain Centre of the General Hospital for 6 years. He stated that Mrs. Gedeon is over 80 years of age with severe-degenerative
osteoarthritis of the spine, and she has had multiple surgeries in the lower
extremities, as well as several procedures for pain control. Further, Dr. Asenjo
indicated that Mrs. Gedeon is progressively becoming more dependent on help to
perform her regular duties at home. He recommended she plan for someone,
hopefully a relative, to live with her in order to remain in her own home.
[45]
The Officer was not satisfied the applicant had established
that her presence in Canada was required to care for Mrs. Gedeon. She
considered the applicant’s affidavit, Mrs. Gedeon’s letter and Dr. Asenjo’s
letter, and she concluded that “these letters are not in and of themselves
sufficient to demonstrate that the presence of the applicants’ [sic] in
Canada would be the sole option for the care of Mrs. Gedeon at the present time
and that an exemption from the permanent resident visa requirement would be
justified.”
[46]
She then noted that the applicant’s siblings are
Canadian citizens and that the incapacity or unwillingness of other family
members to help Mrs. Gedeon was not established.
[47]
It is clear from the decision that the Officer
was of the view the applicant had not demonstrated that Mrs. Gedeon’s medical
condition was such that there was no alternative other than for the applicant to
stay in Canada and care for her mother. The Officer found that the applicant
had not established that in her absence Mrs. Gedeon would be left without the
assistance and support that she needs. It was only after having reached her conclusion
that the applicant’s evidence was insufficient, that the Officer went further and
noted other options that would be available for Mrs. Gedeon’s care. She noted
as examples the Home Care Support Services and Domestic Help Services,
and she referenced the Quebec Government website where information about these
programs can be found.
(2)
Tracy could not get an appropriate education if
she were to return to Lebanon
[48]
The applicants
also alleged Tracy would not be able to get a proper education in Lebanon because she could no longer speak Arabic.
[49]
In support of this
allegation, the applicant submitted her own affidavit in which she stated that Tracy had done all of her secondary education in Canada, she is fully bilingual in English and French, but she no longer speaks Arabic with
ease and fluency.
[50]
The applicant also filed a letter from Tracy dated April 14, 2012. In her letter, Tracy stated she no longer speaks the national
language, and therefore, she might not be able to get a proper education in Lebanon. She added only foreign students with foreign passports can be exempted from “the
Arabic”, which would not be her case. In her letter, Tracy also stated she is
close to her grandmother and her grandmother needs someone to take care of her since
she can no longer travel overseas, due to her health condition.
[51]
In her decision, the
Officer noted that no supporting evidence was submitted to demonstrate the
Arabic curriculum is compulsory in Lebanon and that Tracy’s education would be
negatively affected if she were to return to Lebanon. The Officer was clearly
of the view that the applicants had not met their evidentiary burden on this
front. She then went further and added the following:
Despite this, I consulted the Ministry of
Education and Higher Education of Lebanon’s website. According this [sic]
public source of information, Lebanese students may request an exemption from
the Arabic curriculum and pursue their studies in a different educational
system.
[52]
It appears from
the Officer’s decision that the information she obtained both from the Quebec
Government website and the Ministry of Education and Higher Education of
Lebanon’s website did not influence her primary findings that the applicants
had not provided sufficient evidence in support of their allegations.
Therefore, I am of the view the information at issue was not significant, and it
did not influence the Officer’s decision.
[53]
Further, I am also
of the view that in both cases, the information came from standard and well-known
public sources, and it would have been easily accessible to the applicants. Besides,
in the context of the applicants’ allegations regarding Mrs. Gedeon’s needs and
Tracy’s education, the information referenced by the Officer is the type of
information the applicants could have expected the Officer to consult.
[54]
Both of these websites
are official and widely available sources the applicants could reasonably be
expected to know about. Moreover, there is nothing particularly novel or
significant in the information, which is of public knowledge.
[55]
The Officer named two home support services to substantiate
her assertion that even though the applicant had not established that Mrs.
Gedeon would be left without the support she needs if the applicant left
Canada, she was convinced services exist to assist and support persons in Mrs.
Gedeon’s situation. She named the Home Care Support Services and
the Domestic Help Services, and she did not discuss these services further,
but she mentioned the Quebec Government website pages where information about
those services is provided. It is common knowledge that services such as Home
Care Support Services and Domestic Help Services exist in Canada, especially
in Quebec, and it was incumbent on the applicants to establish that public
services would not be available or would not suit Mrs. Gedeon’s needs.
[56]
The applicants submit a Report from the
Protecteur du Citoyen to support an allegation related to the accessibility of
the services to which Mrs. Gedeon would be entitled. In my view, this report
does not really counter the Officer’s general assertion that options are
available for Mrs. Gedeon’s care. Moreover, having claimed the applicant’s
presence was required to care for Mrs. Gedeon, the applicants had the burden of
filing evidence to support a finding that no other options were available for
Mrs. Gedeon’s care. Furthermore, being satisfied that no breach of procedural
fairness occurred from the non-disclosure of the existence of those programs, I
do not see how the Report from the Protecteur du Citoyen can be of any use.
[57]
Regarding Tracy’s education, the applicant argues the Officer failed to take into account another
page of the Lebanese government website which shows it might be difficult for Tracy to obtain an exemption from the Arabic curriculum. Having raised the issue of Tracy’s
language of education, the burden was on the applicants to demonstrate in their
H&C application that Tracy was not eligible for such an exemption, and the
Officer was not satisfied the applicants had provided sufficient evidence to
support their allegation. Furthermore, the information gathered from the
Lebanese Ministry of Education and Higher Education’s website is certainly not
novel, it was easily accessible to the applicants, and it should have been
anticipated in light of the applicants’ submissions. If the applicants are of
the view there is information on the website which supports their assertion
that Tracy would not be able to access a proper education in Lebanon, they should have submitted it to the Officer, along with their H&C application.
[58]
In the context of
this case, I conclude that the disclosure of the information stemming from the
two websites was not required to allow the applicants to participate in a
meaningful manner in the Officer’s decision-making process.
[59]
The circumstances in the case at bar are clearly
distinguishable from those in Bailey v Canada (Minister of Citizenship and
Immigration), 2014 FC 315, [2014] FCJ No 352, where the H&C officer
assessed whether the applicant, a quadriplegic, could access adequate medical
care in Jamaica. In doing so, the officer relied on a website called “The Mustard Seed Communities of Jamaica”, which
described two organizations providing care to the disabled in Jamaica but did
not even mention quadriplegics. Justice Russell found that this was “obscure information of dubious relevance” and an
egregious breach of procedural fairness (para 70).
[60]
The circumstances
of this case have more similarity with those in Molina de Vazquez,
above, at para 28 (quoted at paragraph 35 of these reasons), where Justice de
Montigny held that the H&C officer did not breach his duty of fairness when
he relied on information regarding the Argentinean school system that he obtained
online without disclosing it to the applicant.
C.
Reasonableness of decision
[61]
The applicants do not raise any serious challenge
to the reasonableness of the Officer’s decision. The Officer clearly applied
the appropriate criteria, and she duly considered all of the evidence and the
applicants’ personal circumstances.
[62]
With respect to the applicants’ risks
allegation, the Federal Court of Appeal in Kanthasamy, above, confirmed
the interpretation to be given to the combination of subsections 25(1) and 25(1.3)
of the IRPA:
73 In my view, that is a useful way
of describing what must happen under section 25 now that subsection 25(1.3) has
been enacted - the evidence adduced in previous proceedings under sections 96
and 97 along with whatever other evidence that applicant might wish to adduce
is admissible in subsection 25(1) proceedings. 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 disproportionate
hardship?
[63]
The Officer noted the test she would apply to
assess the applicant’s allegation of risk in the context of the H&C
application. She indicated a risk assessment in the context of an H&C
application has a broader scope and a different threshold than a risk
assessment in the context of a claim for protection, and she would analyze the
applicant’s allegations in the context of hardship. The test enunciated by the
Officer is clearly in line with the interpretation confirmed in Kanthasamy.
[64]
Moreover, the Officer’s decision is clear,
detailed and coherent. The Officer considered all the circumstances and
arguments advanced by the applicants, and she provided a thorough analysis of
the evidence.
(1)
Occupational and financial situation in Canada
[65]
The Officer found the applicant had not
demonstrated a significant degree of establishment in Canada. She also found the applicant had not established she had, or had been able to attain, a
suitable degree of financial independence. The Officer noted the evidence with
respect to the applicant’s occupations in Canada was very limited and her
letters and pay stubs only represented 6 months of employment out of the 88
months that she has been in Canada. The Officer found the applicant’s income
was insufficient to support herself and her daughter.
[66]
The Officer reasonably assessed the evidence
regarding the applicant’s employment. The evidence showed various short periods
of employment followed by long periods of unemployment throughout the period of
2006 to 2014. The only update regarding her employment status was the November
12, 2012 update, which included an employment offer. This letter merely shows
that the applicant had obtained full-time employment in October 2012. Nothing
in this letter renders the Officer’s decision unreasonable. As indicated
earlier, the new letter from the same employer (dated August 13, 2014)
post-dates the Officer’s decision and is therefore, inadmissible on judicial
review.
(2)
Family in Canada
[67]
The Officer considered the applicant’s assertion
and all of the evidence submitted by the applicant. This evidence is summarized
in the section of these reasons dealing with procedural fairness and need not
be repeated.
[68]
The Officer’s consideration of Mrs. Gedeon’s situation
was altogether reasonable. The Officer considered the evidence from Dr. Asenjo and
from Mrs. Gedeon. Dr. Asenjo’s medical note of March 9, 2012 was very general,
and it did not support a finding that the applicant’s presence was a necessity.
He did not provide any detail as to Mrs. Gedeon’s specific needs, nor did he
state she would be unable to access public healthcare services. He simply
recommended Mrs. Gedeon plan for someone, “hopefully a relative”, to live with her
in order to remain in her own home.
[69]
At the time this medical note was written, the
applicant had been living in Ontario since 2009, and had only moved back to Montreal in March 2012. This medical note, along with the applicant’s affidavit and Mrs.
Gedeon’s letter was the only evidence before the Officer, and in my view, the
Officer’s determination based on this evidence was reasonable. It was reasonable
for the Officer to conclude the applicant had not established that no other
options were available for the care of Mrs. Gedeon and that the evidence was
insufficient to justify an exemption from the requirements of the IRPA. The
onus lay with the applicant to establish that there existed no alternative
except for her to stay in Canada to care for her mother. Nothing in the
evidence submitted suggests that Mrs. Gedeon would be left without care if the
applicant was to leave Canada. Further, other than the statements of the applicants
and Mrs. Gedeon, there is no evidence to suggest that Mrs. Gedeon could not
travel with them to Lebanon.
[70]
The August 18, 2014 medical note from Dr. Asenjo
provides an update on Mrs. Gedeon’s condition. It is somewhat more detailed than
the medical note of March 2012 as to her current condition, her specific needs,
and the impact the applicant’s removal would have on her. However, this evidence
post-dates the Officer’s decision, and as I indicated earlier, it cannot be
considered in the assessment of the reasonableness of the Officer’s decision.
(3)
Best interests of the child
[71]
The Officer was not satisfied a return to Lebanon would have a significant direct impact on the applicant’s daughter, Tracy, who was
a minor when the H&C application was filed. Tracy is now a young adult
attending university.
[72]
As previously noted, the Officer considered the
applicant’s allegation that in Lebanon, Tracy would not be exempted from the
Arabic curriculum and, therefore, she would be unable to obtain a proper
education as she no longer speaks Arabic with ease and fluency. She found the
allegation was not supported by any evidence establishing the Arabic curriculum
is compulsory in Lebanon and Tracy’s education would be negatively affected.
[73]
Moreover, the Officer noted that considering how
well Tracy had adjusted after moving to Canada, the applicant had not
demonstrated Tracy would be unable to adapt to the new environment in Lebanon.
[74]
Tracy’s letter was the
only evidence provided to substantiate the applicant’s allegation. This was
clearly insufficient, and the Officer’s conclusion on this point is reasonable.
(4)
Risk and adverse conditions in Lebanon
[75]
The Officer considered the applicant’s
allegation of risk, but she was not satisfied she had discharged her onus of
establishing that she and Tracy would be exposed to such adversity in Lebanon because they are Christians and because she is a single women. She was not
satisfied that they would face unusual, undeserved or disproportionate hardship
if they were to return to Lebanon. The Officer’s finding is reasonable, and it is
based on several elements.
[76]
The Officer noted the applicant reiterated facts
and arguments which had already been addressed by the Refugee Protection Division
of the Immigration and Refugee Board (RPD). She noted that the RPD found the
applicant had not met the burden of establishing a risk, and she had admitted
the possibility of relocating in a Christian area such as the Broumana region.
The RPD also considered that the applicants could return to Mansourieh, another
Christian area where the applicant’s oldest daughter had voluntarily returned. The
Officer noted she had not been provided with evidence which would establish the
possibility no longer exists, for the applicants to live in regions like
Broumana or Mansourieh.
[77]
The Officer noted the applicant’s allegation
that the situation in Lebanon had since deteriorated due to the ongoing Syrian
crisis, that Lebanon’s immediate future was uncertain and that she feared
sectarian violence as a member of a religious minority. The Officer noted the
documentary evidence provided by the applicant in support of her allegations,
and while she recognized there were issues affecting the Lebanese population in
general, she found the evidence submitted was general in nature and did not
pertain to the applicant’s particular situation. Further, she noted that the
evidence denoted that the Syrian crisis may potentially impact Lebanese
security and stability, disrupt a fragile balance between Sunnis, Shias and
Christians, but she found that the evidence was speculative and insufficient to
demonstrate a present and actual risk.
[78]
The Officer also dealt with the applicant’s
allegation of gender-based hardship, but she was not satisfied the applicant
would face significant direct hardship due to her status as a divorced woman.
The Officer acknowledged that the situation of women in Lebanon is “not perfect”. However, she found that the applicant failed to demonstrate how the
situation would particularly affect her and her daughter. The Officer noted
that the applicant was educated and had worked in Lebanon before moving to Canada, and that she had not demonstrated that she had been a victim of any acts of
discrimination in the past. The applicant disagrees with the Officer’s
characterization of the status of women as “not perfect”, however, the
applicant did not rebut the Officer’s finding that the applicant has not
demonstrated how this situation would affect her personally. Further, the
Officer considered and rejected the applicant’s arguments that she would face undue
hardship as a divorced woman with no male relative, or she would face a custody
dispute with her ex-husband.
[79]
The Officer also noted that the applicant
alleges that her ex-husband in Lebanon was abusive, but she indicated that this
allegation was not supported by any evidence. The Officer also considered the
applicant’s allegation that her ex-husband would have greater custody rights
than her in Lebanon, but this contradicts the divorce judgment from Lebanon, which grants the applicant full custody of Tracy. Finally, the Officer noted that the
applicant was alleging that she would face hardship because she has no male
family member to protect her, but does not elaborate on how this would cause
hardship, nor does she submit corroborating evidence.
(5)
Applicants’ Health issues
[80]
The Officer found that, despite the fact that
the applicant and her daughter were prescribed medication in 2012, there was no
recent evidence of ongoing treatment, nor was there evidence of their inability
to receive treatment in Lebanon. This finding was clearly reasonable in light
of the scarce evidence submitted.
[81]
The applicants disagree with the Officer’s
conclusions, but this disagreement is not sufficient to warrant the Court’s
intervention. It is not for the Court to reweigh the evidence and the factors
analyzed by the Officer. In the case at bar, the Officer’s conclusion is a
possible outcome which is defensible in respect of the facts and of the law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). Moreover, the
Officer’s decision is transparent, well-reasoned and intelligible.
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