Docket: IMM-1833-16
Citation:
2017 FC 98
Toronto, Ontario, January 26, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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DANIEL AUGUST
MACK
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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]
The Applicant has applied for judicial review of
a decision of an Immigration Officer [the Officer] dated April 22, 2016 [the
Decision], denying his application for permanent residence on humanitarian and
compassionate [H&C] grounds. This application is brought pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SCC
2001, c 27 [the IRPA].
[2]
The Applicant is a 30 year old gay citizen of
the United States. He entered Canada in 2004 just after completing high school.
His affidavit shows that when he arrived, he was aware that he needed status as
a permanent resident. However, he made no effort to regularize his status until
2012.
[3]
The Applicant initially lived in Montreal and
moved to Toronto in 2011. He has lived and worked at multiple jobs in Canada,
such as gardening, bike repair, woodworking and art workshops / exhibitions.
However, he only had a work permit for a two year period from 2014 to 2016. He
has never received social assistance.
[4]
In December 2012, the Applicant’s partner applied
to sponsor him for permanent residence. However, their relationship broke down
and approximately two years later, the sponsorship application was withdrawn.
[5]
While in Canada, the Applicant’s affidavit shows
that he has had a variety of living arrangements. He has formed many close
friendships and has enriched his friends’ lives by helping them advance their
careers. He has also contributed to the welfare of young people in the LGBT
community. His letters of support are impressive. During his time in Toronto,
the Applicant formed especially close friendships with two single mothers [the
Mothers] and their young sons [the Sons]. The Applicant cares for them at no
charge, but is not their primary or even secondary caregiver and does not
provide direct financial support.
[6]
His application for permanent residence on
H&C grounds was made in 2015 and is based primarily on his establishment in
Canada and the best interests of children [BIOC].
I.
The Decision - H&C Relief Refused
[7]
The Officer noted that the Applicant had
declared a “relatively continuous occupational history”
but had not provided documentary evidence to validate his work history or
financial stability. The Officer appreciated the Applicant’s extensive
volunteer work, including with children, and his numerous character
endorsements. However, the Officer was concerned that the Applicant’s
establishment was “based on wilful disregard of
Canadian immigration law. Namely, by remaining continuously and working in
Canada without authorization for 10 years.”
[8]
The Officer accepted the Applicant’s close
relationship with his “chosen family”, which
includes members of the LGBT community and the Mothers and their Sons. The
Officer acknowledged that the chosen family is “in
essence de facto family members” and that for them his removal would be “emotionally unsettling”. However, the Officer
concluded that this separation was an inherent consequence of removal. The Officer
noted that the Sons and other children he knew would continue to live with
their primary caregivers and that none are wholly dependent on the Applicant.
II.
Issues
A.
Was there a breach of procedural fairness?
B.
Is the Decision reasonable?
III.
Standard of Review
[9]
The Officer’s discretionary decision not to
grant H&C relief is reviewable on a reasonableness standard. Issues of
procedural fairness attract review on a “correctness”
standard.
IV.
Discussion and Conclusions
A.
Was there a breach of procedural fairness?
[10]
The Applicant submits that the Officer’s
observation that there was no evidence to validate employment earnings was a
negative credibility finding, and that the Officer’s failure to alert the
Applicant to this concern was a violation of procedural fairness.
[11]
The Officer did not believe or disbelieve the
Applicant. The Officer simply stated that there was no documentary evidence to
validate any employment earnings. Accordingly, in my view, the Officer did not
make a credibility finding, and no procedural fairness issue arose.
B.
Is the Decision reasonable?
[12]
The Applicant submits that the Officer’s
analysis of both his establishment in Canada and the BIOC were unreasonable.
[13]
The first question is whether it was open to the
Officer to discount the Applicant’s establishment in Canada because he chose to
remain here without status. Immigration, Refugees and Citizenship Canada’s Guideline
entitled the Humanitarian and Compassionate Assessment, Establishment in Canada
suggests that an applicant’s establishment may be discounted on that basis. In Canada
(MCI) v Legault, 2002 FCA 125, the Federal Court of Appeal stated:
[19] In short, the Immigration Act
and the Canadian immigration policy are founded on the idea that whoever comes
to Canada with the intention of settling must be of good faith and comply to
the letter with the requirements both in form and substance of the Act. Whoever
enters Canada illegally contributes to falsifying the immigration plan and
policy and gives himself priority over those who do respect the requirements of
the Act. The Minister, who is responsible for the application of the policy and
the Act, is definitely authorised to refuse the exception requested by a person
who has established the existence of humanitarian and compassionate grounds, if
he believes, for example, that the circumstances surrounding his entry and stay
in Canada discredit him or create a precedent susceptible of encouraging
illegal entry in Canada. In this sense, the Minister is at liberty to take
into consideration the fact that the humanitarian and compassionate grounds
that a person claims are the result of his own actions. [Emphasis added]
[14]
Accordingly, in my view, it was open to the
Officer in the exercise of his or her discretion to minimize the Applicant’s
establishment in Canada in light of his choice to remain here without status.
[15]
The Applicant relied on the decision of Madam
Justice Mactavish in Heniz Klein v Minister of Citizenship and Immigration,
2015 FC 1004. In that case, the applicant had overstayed a visitor’s visa which
expired in 1986. The fact that he had been in Canada illegally was a
significant factor in the officer’s decision to refuse H&C relief. Justice
Mactavish expressed concern and in allowing a redetermination said:
[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.
[16]
The Applicant argues that this decision is on
point. However, the background is entirely different. The applicant was
disabled by significant mental health issues which at times required
hospitalization. He was also estranged from his family in Germany and had no
friends or support systems in that country. Justice Mactavish concluded that,
in these exceptional circumstances, the officer’s analysis was unreasonable.
[17]
The Applicant further submits that the Officer
failed to appreciate the meaning and importance of his “chosen
family” in Canada. Further, the Officer’s conclusion that the
Applicant’s removal would be “emotionally unsettling”
for his de facto chosen family demonstrates a failure to appreciate that it
would constitute “a permanent separation from his
family members.”
[18]
I am not persuaded by this submission. The
Decision shows that the Officer clearly accepted the Applicant’s chosen family
as his de facto family and considered the impact on them of his removal. Since
he did not provide any members of his chosen family with financial support or
shelter, the Officer considered their feelings and found that they would be “emotionally unsettled” by his removal. This may have
understated their level of distress but it was not unreasonable. Families are
often devastated by removals but they occur nonetheless.
[19]
The second issue is whether the BIOC was
adequately addressed. The Applicant submits that although he does not provide direct
financial support, he is an important role model and caregiver for the Sons. He
says that the Officer’s bald statement that “there is
insufficient objective evidence to suggest his returning to the USA would be
detrimental to their social and emotional development” shows that the
Officer failed to appreciate the impact of his removal.
[20]
The BIOC analysis is brief, but I find it is
reasonable in the circumstances of this case in which the Applicant is not a
parent, does not reside with either Son, is not a full-time care giver and is not
a source of financial support. His role as a friend and periodic care giver is valuable,
but his removal does not create a concern about the children’s best interests.
V.
Conclusion
[21]
For all of these reasons, the application will
be dismissed.
VI.
Certification
[22]
No question was certified for appeal.
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