Docket: IMM-622-17
Citation:
2017 FC 715
Ottawa, Ontario, July 24, 2017
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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ANDRE JOHAB
PENA TORRES
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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]
This is an application for judicial review of
the decision of an immigration officer [officer] rejecting the applicant’s
request for an exemption on humanitarian and compassionate grounds [H&C
application], pursuant to section 25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
The applicant is a 23 year old citizen of Mexico
and who arrived in Canada in 2002 at the age of 9. He initially came to Canada
on a student permit for which he received numerous extensions. Since then, he has
completed high school and studied at the Vancouver Film School in 2013 and at the
VanArts Program for Acting in 2016, achieving a Diploma in Acting for Film and
Television. Lately, he has been employed as an actor and as a cook. The
applicant lives in Canada with two older siblings, a brother who is a permanent
resident, and a sister who is a Convention refugee and has applied for
permanent residency as part of the BC Provincial Nominee Program. His parents
are still residing in Mexico and often come to Canada under super visas. During his stay in Canada, the applicant has
returned to his native country on numerous occasions, but only for short trips.
[3]
The applicant’s student permit expired on
November 30, 2016, and on June 15, 2016, the applicant filed an H&C
application. To support his H&C application, the applicant filed numerous
letters of support to demonstrate his strong establishment in Canada and his
connections with his community. The applicant also highlighted his long-term
relationship with his high school girlfriend and his strong relationship with
his siblings and niece. As such, the applicant alleged that his niece looks up
to him and that he is a good influence in her life. Furthermore, the applicant
alleges that he would encounter difficulties if he had to return to Mexico as
he has lost his ability to read and write in Spanish, as well as his
familiarity with the Mexican culture, due to his long-term residence in Canada.
[4]
On January 24, 2017, the officer denied the
applicant’s H&C application. The officer acknowledged the fact that the
applicant has spent most of his life in Canada. However, he questioned why the
applicant had not made an application earlier to obtain his permanent residence
status. If the applicant had decided that he wanted to settle in Canada
permanently, he should have looked into applying for other streams such as
Canadian Experience Class program [CEC] or the Provincial Nominee Program first
[BC PNP]. He granted little weight to the fact that the applicant has been in a
five year relationship with his girlfriend and that he spent the last fourteen
years of life in Canada. He recognized that the applicant has lost some of his
proficiency in the Spanish language, but considered that his parents in Mexico
can assist him in his adjustment. The officer also considered the applicant’s
good influence on his niece and recognized that if the applicant was to leave,
there certainly would be a change in her status quo, but found that all
ties would not necessarily be severed. In conclusion, having “assessed the application globally and weighed all the
factors submitted cumulatively”, the officer was not satisfied that the
applicant “would face significant hardship in
applying for permanent residence abroad” [my underlining].
[5]
In the present application for judicial review,
the applicant strongly contests the general analysis of the officer for each
ground raised in his H&C application. Also, and most importantly, the
applicant submits that the officer erred by applying the “unusual and undeserved or disproportionate” hardship
test, as defined in the Guidelines, a standard that was clearly rejected by the
Supreme Court in Kanthasamy v Canada (Citizenship and Immigration), 2015
SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy]. On the other hand, the respondent
defends the reasonableness of the conclusions reached by the officer, submitting
that the applicant has not established that H&C considerations outweighed
the requirements of section 11 of the IRPA to file his permanent resident application
from outside Canada, while the use of the expression “significant
hardship” by the officer does not imply that he has applied the wrong
test.
[6]
While an officer’s H&C findings are reviewed
on the standard of reasonableness (Kanthasamy at para 44, Semana v
Canada (Citizenship and Immigration), 2016 FC 1082, [2016] FCJ No 1058 at
para 18 referring to Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] SCJ No 12 at paras 57-59), his or her choice of the applicable
legal test is subject to a review on the correctness standard (Marshall v
Canada (Citizenship and Immigration), 2017 FC 72, [2017] FCJ No 52 at para
27, Valenzuela v Canada (Citizenship and Immigration), 2016 FC 603,
[2016] FCJ No 571 at para 19). There are several grounds for the Court to intervene
in this case. In a nutshell, I am satisfied that the officer drew unreasonable
or unintelligible conclusions from the evidence, proposed an alternative
permanent resident process that does not exist for the applicant and, overall, has
not addressed the evidence in a manner that is consistent with the Supreme
Court of Canada’s clear direction in Kanthasamy and the underlying
equitable nature of the H&C process.
[7]
In Kanthasamy, the Supreme Court mentions
that “the words ‘unusual and undeserved or disproportionate
hardship’ [used in the Guidelines] should […] be treated as
descriptive, not as creating these new thresholds of relief separate
and apart from the humanitarian purpose of s. 25(1)” (para 33) [my
underlining]. In this respect, the purpose of subsection 25(1) of the IRPA is
to offer “an equitable relief” in circumstances
that “would excite in a reasonable [person] in a
civilized community a desire to relieve the misfortunes of another” (Kanthasamy
at para 21, citing Chirwa v Canada (Minister of Citizenship and Immigration)
(1970), 4 IAC 338 p 350). However, it is important to remember that subsection
25(1) of the IRPA remains a flexible and responsive exception to the
ordinary operation of the Act (Canada (Public Safety and Emergency
Preparedness) v Nizami, 2016 FC 1177, [2016] FCJ No 1199 at para 16,
referring to Kanthasamy at para 90). On that note, the Supreme Court in Kanthasamy
at paragraph 23 underlines that “[t]here will
inevitably be some hardship associated with being required to leave Canada.
This alone will not generally be sufficient to warrant relief on
humanitarian and compassionate grounds under s. 25(1), […] nor was s. 25(1)
intended to be an alternative immigration scheme” [my underlining].
[8]
In the case at bar, the officer has parsed the
evidence in a manner that is inconsistent with Kanthasamy by asserting
whether “significant hardship” was present,
instead of focusing on humanitarian considerations raised by the applicant – most
importantly the fact that he has lived most of his life in Canada. From this
choice of words, and reading his decision as a whole, it is clear that the
officer has imposed a hardship based analysis on the evidence and has simply
substituted the threshold “significant hardship” for
“unusual and underserved or disproportionate hardship”.
This error clearly affects the conclusion reached by the officer.
[9]
The applicant has primarily been a student and
his work history consisted of three months as a cook in a local restaurant. It
was unreasonable to advance, as an alternative to the H&C process, that the
applicant may qualify for the CEC or the BC PNP programs, as he clearly did not
legally qualify for either of those. In order for the applicant to qualify for
the BC PNP, the applicant must have the support of his BC based employer and a
full-time permanent job offer from them. He must also have a minimum of two
years of directly related full-time work experience in the skilled person that
the employer was offering him. Similarly, the CEC has a necessary legal precondition
that applicants must have acquired in Canada, one year of full-time work, or
the equivalent in part-time work in a Skill Type O, A or B level job. The
officer simply offered those alternatives without any legal or factual knowledge
of their requirements. Therefore, it was unreasonable to draw a negative
inference from his lack of effort to get his permanent residency.
[10]
Furthermore, while the officer says that he did
give some weight to his lack of literacy in Spanish, he failed to analyse how
this will impact the applicant. For example, the applicant seriously questioned
how his acting skills earned in Canada will be helpful in Mexico without
Spanish literacy skills. Even though the applicant’s parents are still residing
in Mexico, they will not help him to become literate and understand his native
language. Indeed, acquiring literacy skills will be very difficult at his age.
[11]
Compounded with the fact that the officer
applied the wrong test, cumulatively, the errors noted above render the
decision overall unreasonable. Consequently, this application for judicial
review is allowed. The impugned decision is set aside and the matter sent back
for redetermination by a different officer. Counsels have proposed no question
for certification and no such question arises.
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