Docket: IMM-168-15
Citation:
2015 FC 1201
Ottawa, Ontario, October 23, 2015
PRESENT: The
Honourable Mr. Justice LeBlanc
|
BETWEEN:
|
|
ARIELA EPSTEIN
|
|
Applicant
|
|
and
|
|
MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of
the decision of an Immigration Officer (Officer), dated December 17, 2014,
rejecting the Applicant’s in-land permanent residence application on
humanitarian and compassionate (H&C) grounds made pursuant to section 25 of
the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act).
[2]
For the reasons that follow, the application is
allowed.
II.
Background
[3]
The Applicant is an 82 year-old citizen of
Israel. In July 2010, the Applicant’s two daughters and their respective
families immigrated to Canada. The Applicant came to Canada on July 7, 2010 and
has remained in Canada on a temporary visa. The Applicant applied for permanent
residence under the parent and grandparent sponsorship program on January 3, 2014,
two days after the temporary suspension was lifted on the program. Her
application has since been accepted for processing. On May 14, 2014, the
Applicant applied for an exemption from the in-Canada eligibility criteria,
asking Citizenship and Immigration Canada (CIC) to allow her to remain in
Canada while the sponsorship application is processed.
[4]
The Applicant’s application for exemption based
on H&C grounds was rejected on December 17, 2014. The Officer accepted
that the Applicant lives with one of her daughters in Canada, that she shares a
close bond with all her family members in Canada, and that she is financially
supported by her daughters and sons-in-law. The Officer also noted the
Applicant’s anxiety and depression over the prospect of being separated from
her family members in Canada as she is currently taking anti-anxiety
medication. In concluding that the difficulties related to family dependency
were insufficient to justify an exemption on H&C grounds, the Officer found
that while it would be difficult for the Applicant to leave Canada, the
Applicant’s physical separation from her daughters was to be expected since the
daughters decided to immigrate to Canada. The officer also found that the
Applicant would be able to endure the separation as she was separated from her
children in the past, that the separation would not be permanent, and that the
Applicant would be able to continue her close relationship with her daughters
and grandchildren through correspondence. Moreover, the Officer found that her
family would continue to support her financially if she were to return to
Israel.
[5]
The Applicant alleges that the Officer did not
consider the disproportionate hardship aspect of the test as set out in the CIC
Operational Manual, IP 5 – Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds (IP 5 Guidelines) since the evidence
submitted before the Officer clearly demonstrates that the Applicant would
suffer a disproportionate hardship if she were to return to Israel. The Applicant
also relies on Kaur v Canada (Citizenship and Immigration), 2010 FC 805
[Kaur] to argue that the Officer failed to address the Applicant’s
personal circumstances.
[6]
The Applicant submits that the Officer erred in
the assessment of physical separation as hardship since the Applicant’s age,
high degree of dependency on her family, and difficult life were not properly
considered. The Applicant states that she was forced to live in an orphanage
for 12 years when her father abandoned her and attempted to cut the Applicant’s
ties with her mother. The Applicant only reunited with her mother at the age of
16 after her mother remarried. At the young age of 19, the Applicant married a
man 30 years her senior who was emotionally and physically abusive towards her,
yet she remained in the marriage to care for her children. Throughout her life,
the Applicant says that she lived solely for her children’s well-being. While
the Officer found that the Applicant was able to keep close contact with her
daughters over 25 years ago while they were studying abroad, the Officer’s
reliance on this point to justify that the Applicant would not suffer an undue,
undeserved, and disproportionate hardship if she were to be physically
separated from her family now at the age of 82 is unreasonable. The Applicant
relies on Nicayenzi v Canada (Citizenship and Immigration), 2014 FC 595,
457 FTR 65 [Nicayenzi] to argue that the Officer made findings of fact
based on mere speculation in this regard since the evidence submitted
demonstrates that the Applicant has no living relatives in Israel and
significantly depends on her family in Canada to support and care for her
socially, financially, and psychologically, on a daily basis.
[7]
The Applicant also challenges the Officer’s
finding that the assessment prepared by her psychiatrist, Dr. Brotman, was
prepared as an advocate for the Applicant.
III.
Issues and Standard of Review
[8]
The issue raised by this judicial review
application is whether the Officer, in concluding as he did, committed a
reviewable error as contemplated by section 18.1(4) of the Federal Courts
Act, RSC, 1985, c F-7, in failing to consider whether requiring the
Applicant to return to Israel would have a disproportionate impact due to her
personal circumstances.
[9]
The appropriate standard of review is
reasonableness since the matter is related to the Officer’s assessment of mix
questions of fact and law (New Brunswick (Board of Management) v Dunsmuir,
2008 SCC 9, [2008] 1 S.C.R. 190, at para 47 [Dunsmuir]; Nicayenzi,
above at para 10, Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] SCJ No 39; Walker v Canada (Citizenship and
Immigration), 2012 FC 447 at para 31, [2012] FCJ No 479 (QL); Kisana v
Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18,
[2009] FCJ No 713).
IV.
Analysis
[10]
Generally, a foreign national must apply
for a permanent resident visa from outside Canada. In order to be exempt from
this requirement, the foreign national must demonstrate that the exemption is
justified by H&C considerations relating to him or her pursuant to section
25 of the Act. In this respect, the IP 5 Guidelines provide that H&C
grounds may exist where the hardship of having to apply from outside Canada “would have an unreasonable impact on the applicant due to
their personal circumstances.”
[11]
Upon review of the Officer's decision and the
evidence before him, I am of the view that the Officer failed to properly
address the Applicant's personal circumstances, particularly, the Applicant’s
age and dependency on her family in Canada.
[12]
While the Officer mentions in the summary
section of his analysis that the family provides the Applicant with emotional
support, he does not conduct a thorough analysis of this factor. In my view,
and for the reasons that follow, this is a reviewable error.
[13]
This Court has held that while immigration
officers have discretion as to the weight assigned to an applicant’s personal
circumstances in H&C applications, officers cannot have any disregard for
them. (Kaur, above at paras 18-19; Koromila v Canada (Citizenship and
Immigrations), 2009 FC 393, at para 68 [Koromila]). This Court has
also held that an immigration officer cannot ignore “significant
evidence of an applicant’s emotional and human dependency on her family in
Canada” (Koromila, above at para 68). This is especially true
where a fundamental change has occurred in an applicant’s personal situation (Le
Blanc v Canada (Minister of Citizenship and Immigration), 2012 FC 1292, at
para 31[Le Blanc]).
[14]
In my view, the focus of the Applicant’s H&C
application relates to her desire to remain in Canada surrounded by her entire
family as she reaches the final stages of her life. In response to the
Applicant’s pleas, the Officer found that:
[…] when Ms. Epstein’s daughters applied to
immigrate to Canada with their families, a separation would have been expected
by them. In making the choice to leave Israel to live permanently in Canada, I
find that Ms. Epstein’s daughters would have reasonably anticipated the
difficulties that their mother would face living in Israel on her own with no
family or friends.
[15]
In my view, the Officer’s finding demonstrates
that he failed to grasp the essential point of the application. The H&C
application is the plea of an elderly woman to remain with her family in Canada
as she waits for her permanent residency application to be processed. She has
always been surrounded by her family. Indeed, her daughters postponed their
immigration to Canada for several years to be with the Applicant in Israel in
order to keep the family together. The evidence is clear that the Applicant is
dependent on her family in Canada to provide her with shelter, food, and
emotional and financial support. In sum, the Applicant is entirely reliant on
her family for her daily needs. In omitting to consider the Applicant’s
emotional and physical dependency on her family, the Officer disregarded
personal circumstances of the Applicant that were fundamental to her claim. The
Officer’s failure to properly assess the evidence and failure to have regard to
relevant personal circumstances of the Applicant constitute reviewable errors (Aguirre
v Canada (Citizenship and Immigration), 2014 FC 274, 450 FTR 301, at
para 9; Kaur, above at para 18).
[16]
Moreover, in concluding that the Applicant’s
difficulties relating to family dependency were insufficient to justify an
exemption under H&C grounds, the Officer also found that the Applicant
would be able to “maintain her close relationship with
her daughters’ families through correspondence, telephone calls and visits when
she returns to Israel.” In my view, by characterizing the facts in this
manner, the Officer ignored the Applicant’s change in circumstances,
namely, that she would be significantly isolated if she were to return to
Israel. As Justice Shore stated in Yu v Canada (Minister of Citizenship
& Immigration), 2006 FC 956, at paragraph 30, “[t]here
is a significant factual difference between living together and sharing
day-to-day life and an occasional visit.” In this case, the Officer
failed to grasp this difference when analyzing the personal circumstances of
the Applicant. The family’s move to Canada is a significant change in the
Applicant’s personal circumstances with respect to her emotional and personal support
network as the evidence is clear that the Applicant’s close relationship with
her family encompasses so much more than just occasional conversations over the
phone or the occasional visit. This significant change, coupled with the
advanced age of the Applicant, and evidence of significant isolation if she
were to return to Israel, placed a duty on the Officer to carry out a more
substantial analysis of the Applicant’s significant change in personal
circumstances (Le Blanc v Canada (Citizenship and Immigration), 2012 FC
1292, at para 31).
[17]
In my opinion, the Officer’s decision does not
fall within a range of possible, acceptable outcomes, defensible in fact and in
law. Given this finding, there is no need to determine whether the Officer
unreasonably gave no weight to the assessment prepared by the Applicant’s
psychiatrist.
[18]
No question of general importance has been
proposed by the parties. None will be certified.
Email this Content