Docket: IMM-7205-14
Citation:
2015 FC 1004
Ottawa, Ontario, August 25, 2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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HEINZ KLEIN
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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
[1]
Heinz Klein is a German citizen who came to
Canada on a visitor’s visa in 1986 and never left. He has suffered from
depression for more than 30 years, which has, at times, been severe enough to
require his hospitalization. Mr. Klein has nevertheless been able to carve
out a meaningful life for himself in Canada, where he has made many friends and
has become deeply involved in his community, where he holds a leadership role.
[2]
Mr. Klein does not lead a conventional
existence. He works odd jobs and earns money through busking. Despite his
significant mental health issues, Mr. Klein has never once sought social
assistance, and has been able to support himself with the assistance of his
community.
[3]
Mr. Klein is estranged from his family in
Germany, and has no friends, family or support systems available to him in that
country.
[4]
In refusing Mr. Klein’s H&C
application, the immigration officer repeatedly made reference to the fact that
Mr. Klein chose to remain in Canada without status after his visitor’s
visa expired in 1986. It is apparent from a review of the officer’s reasons as
a whole that this was an extremely important consideration for the officer,
which was given considerable weight.
[5]
It is true that in deciding whether requiring an
H&C applicant to apply for permanent residence from outside Canada would
constitute undeserved hardship, officers are entitled to consider the
extent to which the person’s stay in Canada was due to factors within or
outside their control. That said, even if an applicant’s lengthy stay in Canada
was entirely a matter of personal choice (as is the case here), an immigration
officer must still consider whether requiring the person to apply for permanent
residence from outside Canada would result in unusual or
disproportionate hardship. I am not satisfied that the officer properly
considered this aspect of the H&C test.
[6]
While recognizing that Mr. Klein would
suffer some hardship if he were required to return to Germany in order to apply
for permanent residence, the officer held that Mr. Klein had not
demonstrated that “he is suffering from depression more
so than what is experienced by those who are required to leave a country such
that it […] amounts to unusual, undeserved or disproportionate hardship”.
Given the evidence in the record regarding Mr. Klein’s decades-long battle
with depression, this finding is unreasonable.
[7]
I am also satisfied that the officer
demonstrated a lack of sensitivity in evaluating the extent of Mr. Klein’s
establishment in Canada. It is true that Mr. Klein was homeless during his
early years in Canada, and that he has not held conventional employment during
his time in this country. Mr. Klein also does not own a home, a car, a
business or any of the other assets that are typically viewed as indicators of
establishment in Canada. But Mr. Klein is not your typical H&C
applicant. He is a person with a disability who has clearly worked very hard to
make a life for himself in Canada. He volunteers extensively in a variety of
organizations, and has succeeded in earning the respect and love of many people
in his community. To require that someone in Mr. Klein’s position be able
to demonstrate that he has achieved the conventional markers of establishment
is to ignore the reality of his life.
[8]
An example of this is the officer’s comment
regarding the lack of receipts to support Mr. Klein’s earnings. In
addition to his volunteer activities, Mr. Klein is a musician who supports
himself in part by busking. Busking is not a job that typically generates
paperwork.
[9]
The officer further appears to have dismissed
all of the evidence regarding the important role that Mr. Klein plays in
his community solely on the grounds that he remained in Canada without proper
immigration authorization.
[10]
The officer concludes by accepting that Mr. Klein
will indeed face some hardship on his return to Germany, but discounts this by
once again returning to his lack of status in Canada, noting that Mr. Klein
did not “have a reasonable expectation that he would be
able to remain in Canada permanently given the course of his immigration
history”.
[11]
As a result of the above, I am not satisfied
that the officer assessed Mr. Klein’s application in a reasonable or
compassionate manner. The officer’s preoccupation with Mr. Klein’s lack of
immigration status fails to recognize the fact that the whole purpose of an
H&C application is to overcome matters such as inadmissibility or a lack of
immigration status.
[12]
As a consequence, Mr. Klein’s application
for judicial review is granted. I agree with the parties that this case is
highly fact-specific and does not raise a question for certification.
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