Docket: IMM-4326-16
Citation:
2017 FC 540
Ottawa, Ontario, June 2, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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LEIZL REGALADO
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Applicant
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and
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MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
The Applicant challenges a negative decision
[the Decision] of a Senior Immigration Officer [the Officer], refusing an
application for permanent residence based on humanitarian and compassionate
[H&C] grounds under section 25 of Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act or IRPA].
[2]
The Applicant, a citizen of the Philippines,
came to Canada on September 14, 2012 on a work permit. She has since had three
jobs, the last of which ended in March 2016. The Applicant says there is a pending
civil action against her last employer in Superior Court for abusive conduct. Later
in March 2016, the Applicant submitted a permanent residence application based
on H&C grounds, which was refused on September 29, 2016.
[3]
In the Decision, the Officer noted that while
the Applicant had demonstrated a certain degree of establishment (living in
Canada for 4 years, ties to the community and friends), a section 25 exception
was not justified based on the evidence. The Officer noted that she arrived in
Canada on a temporary basis and indeed there was no guarantee that she would be
able to stay “beyond the time she was authorized to
work.”
[4]
The Officer also considered the best interests
of the children [BIOC], the Applicant’s minor brother and niece, whom the
Applicant says depend on her for financial support. The Officer noted that
there was insufficient evidence that the children’s access to education and
fundamental rights would be offended if the Applicant was to return to the
Philippines, given her skills and background. The Officer further noted that
there was insufficient evidence to establish that the children’s parents,
grandparents, aunts and uncles residing in the Philippines would be unable to
assist in ensuring the children’s wellbeing.
II.
Issues and Analysis
[5]
The Applicant challenges the Officer’s findings
on (i) establishment and (ii) BIOC. The parties agree that the applicable
standard of review for the issues raised is reasonableness per Kanthasamy v
Canada (Citizenship and Immigration), 2015 SCC 61 at para 44.
A.
Establishment
[6]
With respect to establishment, the Applicant
says the Officer (a) minimized her establishment and (b) ignored evidence.
a.
Minimizing establishment
[7]
The Applicant argues that it was unreasonable
for the Officer not to explain what “level of
establishment he requires to warrant the exercise of the discretion provided
under section 25 of IRPA,” because the Officer noted that her degree of
establishment is what “one would expect to accomplish
in her circumstances.”
[8]
This argument is misguided; the Officer cannot
be expected to arbitrarily set the degree of establishment required under
section 25, as that analysis will necessarily vary depending on the facts of
each case. Likewise, it is not the role of an officer to speculate as to what
additional facts or circumstances would have triggered a section 25 exception. Rather,
it is the Applicant’s role to demonstrate exceptional circumstances, including
establishment, rather than simply expected (Baquero Rincon v Canada
(Minister of Citizenship and Immigration), 2014 FC 194 at para 1).
[9]
The Applicant further argues that the Officer
should have considered her establishment against the “abusive
arrangements she had and falling victim of an exploitative recruitment agency”.
With this in mind, the Applicant says that her claim was viewed with “less significance […] simply because she […] overstayed in
Canada” because the Officer notes that there “was
no guarantee that the Applicant would be allowed to remain in Canada beyond the
time she was authorized to work.” The Applicant relies on this Court’s
decision in Klein v Canada (Citizenship and Immigration), 2015 FC 1004
at paras 4-5 [Klein], to say that an individual’s establishment cannot
be minimized or “viewed with less significance”
simply because the individual has overstayed in Canada.
[10]
It is often that H&C cases invariably turn
on their facts, and this case is no exception. Klein is entirely
distinguishable on that basis alone. There, Justice Mactavish held that the
officer’s repeated reliance on Mr. Klein’s decision to stay in Canada
was misguided, because the relevant inquiry was rather whether forcing him to
apply for permanent residence status outside Canada would cause unusual or
disproportionate hardship.
[11]
Here, however, the Officer’s comments were made
within the confines of an establishment analysis. Unlike in Klein, the Officer’s
comments were made in passing, they were not repeatedly made, and were not at
the heart of the Decision. Rather, they were one of various factors properly
considered by the Officer in reasonably concluding that establishment was ordinary
under the circumstances. In short, the Officer’s conclusion on this particular
aspect of the Decision was reasonable.
b.
Ignoring evidence
[12]
The Applicant says that the Officer ignored key evidence,
namely documentary evidence on unemployment in the Philippines, including
heightened unemployment and underemployment of women and graduates in the hotel
and service sectors, in addition to affidavit evidence from the Applicant’s
family concerning both costs of private school for the niece and niece, and her
father’s medical condition. The Applicant also says that the Officer, in
ignoring this documentary evidence, drew conclusions based on speculations.
[13]
First, it is well established that there exists
a presumption that the decision-maker has reviewed the entire record. Here,
that presumption is corroborated by the Officer’s references in Section 6 of
the Decision to the “application and submissions”
in addition to the US Department of State Report. Furthermore, in section 5 of
the Decision, the Officer referred to various aspects of the points raised by
the Applicant, including experience in her field in Canada, her certificate in
Hotel and Restaurant management, and the cost of schooling.
[14]
Second, it is not the role of this Court to
intervene if upon reading the record, the Court is able to understand the
reasonableness of the conclusion made by the decision-maker (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 15). In this case, the Court’s intervention would be
inappropriate because the Officer clearly considered the Applicant’s argument
that she would struggle to find employment if she returned to the Philippines,
and be unable to provide the requisite financial support. Simply put, I am
satisfied that the finding there was insufficient evidence to trigger a section
25 H&C exception was justified, given the Applicant’s education,
transferable skills, family ties, acquaintances, and knowledge of the country.
[15]
With respect to the Applicant’s argument that
the Officer made speculative findings, that argument is also unconvincing, as
there is no evidence of speculation in the Decision. Rather, as pointed out
above, the reasons are purely based on insufficiency of evidence to overcome
the Applicant’s personal circumstances within the discretion of a section 25
H&C exemption, which is “highly discretionary”
and merits deference (Singh v Canada (Citizenship and Immigration), 2016
FC 240 at para 13).
B.
BIOC
[16]
The Applicant challenges the Officer’s Decision,
arguing that s/he applied the incorrect legal test: relying on Williams v
Canada (Citzenship and Immigration), 2012 FC 166 at para 64, the Officer
erred in stating: “although children residing in Canada
may enjoy better social and economic opportunities than they would in the
Philippines, there is little evidence before me to suggest these children’s
fundamental rights are denied in the Philippines”.
[17]
I agree with the Applicant that viewed in
isolation, this statement could be problematic. However, the Officer’s BIOC
analysis is not limited to this one passage. Instead, the Officer also noted
the Applicant’s employment possibilities in the Philippines (which I have above
already found to be reasonable based on the evidence), and the insufficiency of
evidence that the parents/uncles/aunts/other family members could not assist in
financially maintaining the children’s education. It was within this context
that the BIOC analysis was conducted. This, rather than conducting a “bare amenities” approach, as the Applicant argues,
the Officer, in light of the other conclusions, found that that the BIOC would
reasonably be met. This approach, in my view, was consistent with the approach
taken in Kanthasamy at paras 33 and 45. Underpinning the BIOC
conclusions was a unique factual matrix that justified the Officer’s Decision,
including that:
(1)
the children, for whom the BIOC arguments are
made, are Filipino nationals, who have always lived in the Philippines, and who
have no status in – or evidence of visits to – Canada;
(2)
their family and other bonds were therefore to
the Philippines, family members who until this point of time, had cared for the
children;
(3)
part of the BIOC was found to be the future
benefit of a physical presence of the Applicant with these children;
(4)
the Applicant, at the time of the H&C
Application, was not herself supporting their private school education, because
she was unemployed here in Canada; the Applicant’s support was rather
predicated on the interim measure of having the family take out loans in the
Philippines, as well as sending support from other friends in Canada, all in
the hope of finding future employment in Canada; and
(5)
evidence that public schooling, although
inferior, is an option.
[18]
These facts, while not necessarily articulated
in this manner by the Officer, all formed a backdrop to the Officer’s
conclusion on BIOC. I find that conclusion to be entirely reasonable in light
of the circumstances of this case.
III.
Conclusion
[19]
Upon reviewing the record, I am of the view that
the Officer’s findings were reasonable. While they may not be what another
decision-maker would have found, they are nonetheless within the ambit of
possible and acceptable outcomes. In light of the reasons provided above, this application
for judicial review is dismissed.
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