Docket: IMM-3336-15
Citation:
2016 FC 682
Ottawa, Ontario, June 17, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Applicant
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and
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CONSTANCIO
ABARQUEZ
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant seeks judicial review pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision dated July 7, 2015, by the Immigration Appeal
Division [IAD], which found, pursuant to paragraph 67(1)(c) of the IRPA, that
there were sufficient humanitarian and compassionate considerations to warrant
special relief from a determination that the Respondent had not complied with
his residency obligation and therefore had lost his permanent resident status.
[2]
For the reasons set out below, the application
for judicial review is dismissed.
I.
Background
[3]
The Respondent is a seventy (70) year old
citizen of the Philippines whose spouse came to Canada in 1989 and obtained a
work permit in April 1990 as part of the caregiver program. The Respondent and
his three (3) children were successfully sponsored by his spouse and became
permanent residents upon their arrival in Canada on July 13, 1996. The
Respondent was fifty (50) years old when he came to Canada.
[4]
Since 1974, the Respondent has spent his entire
career working on ships. Prior to his arrival in Canada in 1996, the Respondent
worked as a master mariner and ship captain. Of the view that he could not find
similar employment in Canada, the Respondent returned to the Philippines after
fifty-nine (59) days in Canada and went to work for his previous employer. The
Respondent worked as a master mariner and ship captain until his retirement in
2011.
[5]
Over the years, the Respondent saw his family
six (6) to seven (7) times when his ship came to port for a day or two in
Canada or the United States. The longest period the Respondent stayed in Canada
was in October 2000, when he returned for a period of eight (8) months to be
with his family. The Respondent’s spouse visited the Philippines for two (2)
months with their younger daughter and son, who also visited his father once in
2006. The Respondent communicated with his spouse and family by phone from the
ship and from the seamen’s club whenever the ship was in port.
[6]
In anticipation of his retirement in the spring
of 2011, the Respondent applied for a travel document in January 2011 to come
to Canada. This triggered an investigation into whether he had fulfilled his
residency obligation. He admitted that he had not been physically present in
Canada during the relevant five-year period, but invoked humanitarian and
compassionate considerations to request special relief. On August 4, 2011, a
determination was made at the Canadian Embassy in the Philippines that the
Respondent had not fulfilled his residency obligation pursuant to section 28 of
the IRPA and therefore had lost his permanent resident status.
[7]
The Respondent appealed this decision to the
IAD. He did not challenge the finding that he had no physical presence during
the period of reference but argued that the appeal should be allowed on
humanitarian and compassionate grounds.
[8]
On July 7, 2015, the IAD concluded that while
the determination that the Respondent had lost his permanent resident status
was valid in law, there were sufficient humanitarian and compassionate grounds
to allow the appeal in light of all the circumstances of the case and taking
into account the best interests of any child directly affected by the decision.
After providing an overview of the relevant facts, the IAD enumerated a list of
non-exhaustive factors that should be considered in determining whether to
grant special relief on the basis of humanitarian and compassionate
considerations. The IAD cautioned that these factors are not exhaustive and
that none are determinative. It noted that an assessment of all the
circumstances in any given case may also involve affording lesser or more
weight to one factor instead of another, depending on the context. The IAD then
commented on the Respondent’s testimony as well as that of his spouse, son and
daughter. The IAD noted that while the Respondent had difficulty remembering
details, he was nonetheless generally sincere and credible in his testimony
which was provided by telephone, as he was still in the Philippines. The IAD
also found the Respondent’s spouse, son and daughter to be credible.
[9]
The IAD determined that many factors weighed
against allowing the appeal. The Respondent did not establish himself in
Canada, unlike the rest of his family. Furthermore, he was not physically
present in Canada during the relevant five-year period and he had never worked
in Canada. The IAD also noted that the Respondent had made no attempt to return
to Canada on a permanent basis until he retired.
[10]
The IAD found however that the hardship faced by
the Respondent and his family due to their ongoing separation for many years
was an overriding factor that favoured allowing the appeal. The IAD
acknowledged that while one could view this longstanding separation as merely a
continuation of the status quo, another view would be that separation becomes
more difficult with age. The IAD found this to be the case for the Respondent,
who had reached an age where the future becomes more uncertain and he becomes
more vulnerable. The IAD observed that except for a few siblings who remain in
the Philippines, all of the Respondent’s family is in Canada. Each of the
family members who testified also spoke of the difficulty of their family’s
separation and their desire to be together. In addition, the IAD noted that it
was in the best interests of the four (4) grandchildren to have contact with
the Respondent. Ultimately, the IAD found that the Respondent’s case was
exactly the type of situation covered by the test established in the decision
of Chirwa v Canada (Minister of Manpower and Immigration), (1970) 4 IAC
388 (IAB) at paragraph 27, namely that a reasonable person living in a
civilized community would want to allow the family to finally be together.
II.
Analysis
[11]
The sole issue to be decided by this Court is
whether the IAD’s decision to grant the Respondent’s appeal on humanitarian and
compassionate grounds is reasonable.
[12]
It is established in law that the IAD’s
assessment of humanitarian and compassionate considerations for granting
special relief from a loss of permanent resident status raises questions of
mixed fact and law and is reviewable based upon the standard of review of
reasonableness. The IAD’s decision involves a high degree of discretion and
warrants considerable deference (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 60, [2009] 1 S.C.R. 339 [Khosa]; Nekoie v
Canada (Citizenship and Immigration), 2012 FC 363 at para 15; Tai v
Canada (Citizenship and Immigration, 2011 FC 248 at para 48). In
determining whether a decision is reasonable, the Court is concerned with the “existence of justification, transparency and intelligibility
within the decision-making process” and “whether
the decision falls within a 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, [2008] 1 S.C.R. 190 [Dunsmuir]; Khosa, at
para 59).
[13]
The Applicant submits that the IAD’s decision to
grant special relief is unreasonable on the basis of the following errors which
warrant the intervention of this Court:
A.
The IAD ignored evidence regarding the reasons
for the separation of the Respondent from his family and the best interests of
the grandchildren;
B.
The IAD ignored evidence regarding the reasons
behind the Respondent’s absences from Canada;
C.
The IAD ignored the importance of the breach of
the residency obligation beyond the five-year period preceding the examination.
[14]
Specifically, the Applicant argues that in
concluding that the family separation amounted to hardship, the IAD failed to
consider that the difficulties stemming from the family separation were of the
Respondent’s own choosing, in that it was the Respondent who chose to work as a
sea captain in the Philippines and not to pursue any job openings available to
him in Canada. It was also the Respondent who chose to stay in the Philippines
instead of coming to Canada to visit his family when he was unemployed or on
vacation and who took no measures to alleviate the difficulties caused by the
family separation. The Applicant further argues that there was little evidence
of any relationship between the Respondent and his grandchildren and simply no
evidence to support a conclusion that the separation of the Respondent from his
family, including his grandchildren, constituted hardship which would justify
granting special humanitarian and compassionate relief. Relying on Canada
(Citizenship and Immigration) v Sidhu, 2011 FC 1056, the Applicant argues
that the IAD could not grant relief to a situation that the Respondent created
of his own volition.
[15]
With respect to the second error alleged to have
been committed by the IAD, the Applicant submits that the IAD’s conclusion that
the Respondent did not establish himself in Canada solely because of his work
as a seaman is contradicted by the evidence. According to the Applicant,
although there were several long periods prior to 2011 when the Respondent was
either unemployed or on vacation, he did not attempt to return to Canada and
the Respondent and his spouse could not provide an explanation for not doing
so. The Applicant argues that the IAD should have addressed this inconsistency.
[16]
Finally, the Applicant argues that the IAD
ignored the importance of the breach of the residency obligation beyond the
five-year period preceding the examination and did not consider that the
Respondent was completely absent from Canada for approximately fifteen (15)
years, except for a period of eight (8) months in 2000-2001. By limiting its
assessment to only the five-year period preceding the examination, the IAD
failed to correctly apply the IRPA.
[17]
The Respondent, who was not present at the
hearing but did file written submissions, argued that the IAD’s decision to
grant special relief based on humanitarian and compassionate considerations was
reasonable in the circumstances of the case. The IAD found the Respondent to be
credible and honest about his absences throughout the immigration procedures.
The Respondent also submits that the IAD took note of the Respondent’s
explanation that the reason behind his absences was economic in nature. The
list of humanitarian and compassionate factors to be considered by the IAD is
non-exhaustive and it was open to the IAD to not diminish the importance of
these factors even in the presence of a breach of the residency obligation.
Given the objective of family reunification in the IRPA, it was reasonable for
the IAD to consider this factor as well as the best interests of the children
affected by the decision. The decision to be separated from his family in order
to provide for their needs was not one of choice, but a consequence of him
providing for the needs. As for the low number of trips to see one another,
this was the result of a lack of finances.
[18]
With respect, I do not agree with the
Applicant’s submission that the IAD ignored or misconstrued the evidence
regarding the reasons for the family’s separation and the Respondent’s absences
from Canada, or that the IAD ignored the importance of the breach of residency.
[19]
It is clear from the IAD’s reasons that the IAD
considered that the difficulties stemming from the family’s separation were of
the Respondent’s own choosing. In identifying the negative factors which
weighed against granting special relief, the IAD noted at paragraph 19 of its
decision that the Respondent did not establish himself in Canada, he was not
physically present in Canada during the relevant five-year period and he had
never worked in Canada. The IAD explicitly noted that the Respondent had made
no serious attempt to return to Canada on a permanent basis until he retired.
With respect to the Respondent never having worked in Canada, the IAD also
indicated at paragraph 8 of its reasons that it was unclear whether the
Respondent would have been able to work as a master mariner and sea captain
when he first arrived in 1996 had he attempted to do so.
[20]
Moreover, the issue of the Respondent’s failure
to seek employment in Canada was fully canvassed at the hearing before the IAD.
The Respondent testified that he did not look for employment in Canada because
he could not find work as a master mariner. As a result, he went back to work
for his company in the Philippines to earn a better salary in order to support
his family (Certified Tribunal Record [CTR], at 460). The Respondent’s spouse
also testified before the IAD that the Respondent could have found other
employment but the only thing he knew was to work on a ship. She testified that
when her husband arrived in Canada, although excited to settle here, he was
already fifty (50) years old and he was too old to do lower ranking jobs or to
become a labourer on the ships (CTR, at 486). When questioned by the IAD on why
the Respondent did not come to Canada when he was unemployed or on vacation,
the Respondent’s spouse testified that her husband did not come to Canada
because he was waiting to be called back to work (CTR, at 502-503).
[21]
The IAD did not misconstrue the reasons for the
Respondent’s absence from Canada or the reasons for the family’s separation.
While it found the Respondent’s failure to make any attempts to establish
himself in Canada to be a negative factor which weighed against granting the
Respondent special relief, the IAD accepted the Respondent’s explanation that
the only reason he did not establish himself in Canada was because of his work
as a seaman. She found the Respondent and his spouse to be credible and it was
open to the IAD to draw such a conclusion.
[22]
I am also of the view that the IAD’s finding
regarding the relationship between the Respondent and his grandchildren and the
hardship resulting from the Respondent’s separation from his family, including
his grandchildren is supported by the evidence. First, with respect to the
grandchildren, the Respondent testified that when he came to Canada in 2000, he
played with his grandchildren, did activities with them and gave them money
(CTR, at 463, 477, 499). The Respondent’s spouse also testified that when the
Respondent’s ship came to Canada and the United States, she would meet the
Respondent and would be accompanied by at least one of her children and
sometimes a grandchild (CTR, at 488). She also testified that when she went to
visit the Respondent in the Philippines in 2009, she went with one of her
daughters and her daughter’s son (CTR, at 493). The Respondent’s daughter
testified to the same effect (CTR, at 511, 516). In addition, the Respondent’s
daughter testified to the importance of having the grandchildren spend time
with the Respondent so that he could talk to them about their culture and
traditions (CTR, at 519).
[23]
As for the hardship caused by the continued
separation of the Respondent from his family, all of the witnesses who appeared
before the IAD testified that they had close ties with each other and with the
Respondent despite his lengthy absences. They would meet with the Respondent whenever
his ship came to Canada and the United States, even if only for a day or two
(CTR, at 456-457, 487-488, 511, 515). They visited him in the Philippines (CTR,
at 493, 496-498, 511, 516) and they would speak to each other using the ship’s
satellite phone and whenever the Respondent’s ship would come to port (CTR, at
459, 487).
[24]
Both the Respondent’s son and daughter testified
that the Respondent and his spouse were getting old and that they would like to
see them be reunited again (CTR, at 512-513, 518). They testified that the
Respondent’s spouse had health conditions, that she had just undergone hip
surgery and that it would be better for her if the Respondent was there to care
for her (CTR, at 513, 518). The Respondent’s son testified that if the Respondent
had to stay in the Philippines, it would be difficult to see his father again
because of the financial consequences of having to travel to the Philippines.
He testified that they were not a wealthy family (CTR, at 513). The
Respondent’s daughter also testified to the same effect (CTR, at 519).
[25]
While the Respondent and his family may not have
enjoyed the more traditional family setting as a result of the Respondent’s
occupation which kept him away from his family for long periods of time, the
IAD accurately noted that the family has remained close and that the separation
is becoming more difficult as a result of the Respondent’s age and the
uncertainty of his future.
[26]
The Applicant places a lot of weight on the
words used by the IAD in stating that the Respondent was not physically present
in Canada during the relevant five-year period. I do not share the Applicant’s
view that the IAD limited its assessment to the preceding five-year period and
minimized the importance of the breach of his residency obligation. The IAD was
well aware that the Respondent had not been physically present in Canada for
most of the time since 1996, except for a period of eight (8) months when he
returned in 2000. The IAD considered the Respondent’s absences from Canada and
his overall failure to establish himself here to be negative factors in its
assessment of whether to grant special relief. However, it found that since the
factors to be considered were not exhaustive and that the circumstances of a
case may involve giving lesser or more weight to one consideration over
another, in the particular circumstances of the Respondent’s case, the hardship
to the family outweighed the negative factors, including the importance of the
breach.
[27]
It is clear from my review of the IAD’s decision
and of the underlying record that the IAD considered all of the evidence and
that it assessed all of the factors it was required to consider. It is
important to recall that in Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-16, [2011] 3 SCR 708, the
Supreme Court of Canada enunciated that when a reviewing court examines a
decision, it should not substitute its own reasons, but should instead look to
the record for the purposes of establishing the reasonableness of the outcome.
It is not the role of this Court to reassess the evidence and reweigh the
factors or to substitute its own view of the evidence (Khosa, at para 61).
The Applicant’s arguments amount to no more than a disagreement with the IAD’s
assessment of the evidence and the weight it gave to each factor. In the end,
it was up to the IAD to decide how much weight it should assign to the various
elements.
[28]
For the above reasons, I find the IAD’s decision
to be reasonable and falling within the range of possible acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir, at para
47).
[29]
The Applicant did not submit a question for
certification and no serious question of general importance arises in this
case.
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