Docket: IMM-1328-14
Citation:
2015 FC 341
Calgary, Alberta, March 17, 2015
PRESENT: THE
CHIEF JUSTICE
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BETWEEN:
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Ivan ABARCA NAVA
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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
(Reasons delivered orally in Calgary on March 17, 2015)
[1]
The standard of review applicable to the
procedural fairness issue that the Applicant, Mr. Abarca, has raised is
correctness.
[2]
As recognized by the both parties, the standard
of review applicable to the second issue that Mr. Abarca has raised is
reasonableness.
[3]
I am satisfied that the Officer’s failure to
respond more quickly to the requests of Mr. Abarca and his spouse for an
expeditious processing of their joint application did not violate their right
to procedural fairness.
[4]
The circumstances of Mr. Abarca’s wife were
undoubtedly very serious and trying and it would obviously have been preferable
for the Officer to have responded much sooner to their requests for an
expeditious processing of their application. However, the delay of
approximately five months in responding to those requests did not amount to a
breach of procedural fairness.
[5]
There was nothing which obliged the officer to
give the applicants priority over other applicants, some of whom may well have
also had humanitarian and compassionate circumstances warranting urgent
attention.
[6]
I do not accept Mr. Abarca’s assertion that the
Officer’s decision was unreasonable by virtue of an insufficient degree of
empathy and compassion reflected therein.
[7]
The Officer explicitly stated that she was “sympathetic to the Applicant’s current plight.” She
reiterated her sympathy again later in her decision. Elsewhere, she recognized
the suffering of Mr. Abarca’s spouse and the likelihood that he has “suffered a significant emotional loss in the passing of his
spouse.”
[8]
I am unable to agree with the suggestion that
the Officer discounted this significant emotional loss or the circumstances
that kept Mr. Abarca in Canada.
[9]
The Officer reasonably noted that the bulk of
the submissions in the application were focused on the circumstances of Mr.
Abarca’s spouse, who was the principal applicant prior to her passing. The
Officer correctly observed that those submissions relating to his spouse were
rendered moot by her passing.
[10]
In addition, the Officer noted that very little
information was included about Mr. Abarca in the application. I have confirmed
that there was in fact very little in the Certified Tribunal Record relating to
him. What there was essentially concerned his establishment in Canada over the four years that he has been here, which was considered by the Officer.
[11]
It was reasonably open to the Officer to
conclude that Mr. Abarca had not demonstrated that the considerations he had
raised would result in an unusual and undeserved or disproportionate hardship
if he had to apply for permanent residence from outside Canada.
[12]
In reaching this conclusion, the Officer also
noted that, subsequent to the death of his spouse, no additional submissions
were made on Mr. Abarca’s behalf.
[13]
In am satisfied that the Officer’s conclusion,
and the process by which it was reached, were “within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, at
para. 47).
[14]
There was a rational and not unreasonable
foundation for the Officer’s decision. Therefore, pursuant to the Supreme Court
of Canada’s teachings in cases such as Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association 2011 SCC 61, at para 53, and Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, at paras 13 and 16, this Court will not interfere with that
decision.
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