Docket: IMM-1074-17
Citation:
2017 FC 886
Ottawa, Ontario, October 6, 2017
PRESENT: The
Honourable Mr. Justice Locke
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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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JESSICA MA and
MICHELLE MA
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Respondents
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JUDGEMENT
AND REASONS
[1]
This is an application for judicial review of a
decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board of Canada. The IAD’s decision granted the respondents’ appeal
from a refusal by a visa officer to excuse (on humanitarian and compassionate
(H&C) grounds) their failure to comply with the residency obligation for
permanent residents as set out in the Immigration and Refugee Protection Act,
SC 2001, c 27. The Minister of Citizenship and Immigration seeks an order setting
aside the IAD’s decision.
[2]
For the reasons provided below, I have concluded
that the application should be allowed.
I.
FACTS
[3]
The respondents are two sisters who came to
Canada as young children with their parents from South Africa as permanent
residents in July 1994. However, their stay was brief. They returned to South
Africa in September 1994 with their parents for business reasons. Though the
respondents claim that their parents intended to settle in Canada once the
business issues were resolved, this never happened. The family came to Canada
for short visits with family in 1995, 1996, 1998 and 2000, but they never
stayed to reside in Canada. The respondents have not visited Canada since 2000.
[4]
By 2015, the respondents had reached 24 and 25
years of age, respectively. That year, the respondents’ parents sought to come
to Canada. Knowing that they had failed to respect the residency requirements
for permanent residents, and believing that their status as permanent residents
had lapsed, they applied for visitor visas. They were informed that they
retained their permanent resident status, but that they appeared to have
violated the residency requirements. The respondents’ status was the same. The
parents were given the following options: (i) show compliance with the
residency requirements; (ii) make an argument for relief from the residency
requirements on H&C grounds; or (iii) renounce their permanent resident
status. After being informed that their decision would not affect the
respondents’ rights, they elected to renounce their permanent resident status.
[5]
The respondents made their application for
travel documents in February 2016, about eight months after learning of their
status. They acknowledged that they had failed to meet the residency
requirements. However, they sought relief from this failure on H&C grounds.
This application was dismissed by an immigration officer.
[6]
The respondents then appealed this decision to
the IAD. In support of their appeal, the respondents submitted a bundle of
documents. They also each testified at the hearing, as did their mother. The
IAD’s decision on this appeal is the subject of the present application for
judicial review.
II.
IMPUGNED DECISION
[7]
The IAD noted the following non-exhaustive list
of H&C considerations:
1. The
extent and seriousness of the breach of the residency obligation.
2. The
respondents’ initial and continuing degree of establishment in Canada.
3. The reasons for the original departure from Canada and
for continuing or lengthy stays abroad.
4. Whether
attempts to return to Canada were made at the earliest opportunity.
5. Any
family ties that they have in Canada.
6. Whether there are unique or special
circumstances present in the case.
[8]
The IAD found that the evidence submitted by the
respondents, as well as the witnesses’ testimony was credible and reliable.
[9]
The IAD stated that the extent and seriousness
of the breach of the residency obligation was significant, but that it was not
the respondents’ decision to leave Canada to return to South Africa. They had
little choice because of their age. The IAD also found it significant that the
respondents learned of their continued permanent resident status only shortly
before seeking travel documents. The IAD found that, in the circumstances,
there need not be “substantial positive factors to
offset the breach of the residency obligation.”
[10]
The IAD acknowledged that the respondents’
return visits to Canada in 1995 to 2000 were brief and not intended to enable
them to put down roots, but assigned some positive weight to these efforts.
After acknowledging that the respondents had not established themselves in
Canada through bank accounts, investments, real property or filing annual
income tax returns, the IAD found these to be, “at
best, neutral factors.”
[11]
The IAD assigned positive weight to the
respondents’ continued contact with family in Canada.
[12]
The IAD noted that the respondents had reached
the age of majority several years before they sought to return to Canada, and
found that it would have been much more reasonable to provide H&C relief if
they had sought to return at the first opportunity. However, the IAD found it
to be a critical and positive factor that they did so once they learned of
their status.
[13]
The IAD was of the view that the respondents “now seek the relative political and economic stability of
Canada”. The IAD found that “to fail to provide
the relief would be unfair and possibly even dangerous or cruel”, and
that “by remaining in South Africa, the [respondents]
will face hardships of a kind and to an extent that only by allowing the
appeal, will the hardships be alleviated.”
[14]
The IAD concluded that H&C considerations
warranted special relief, and accordingly granted the respondents’ appeal.
III.
ISSUES
[15]
The Minister submits that the IAD made the
following errors:
1. The IAD unreasonably minimized the respondents’ breach of
their residency obligation when it found that, in the circumstances, there need
not be “substantial positive factors to offset the
breach of the residency obligation.”
2. The IAD unreasonably considered the respondents’ complete
failure to establish themselves in Canada (including not having even visited
Canada since 2000) as possibly something other than a negative factor.
3. The
IAD’s reasoning in consideration of the hardship the respondents faced if
relief was not granted was unreasonable.
IV.
ANALYSIS
[16]
At the outset, I wish to note a number of issues
on which the parties are in agreement.
[17]
They agree that the applicable standard of
review is reasonableness and that reasonableness should be assessed based on
the evidence as a whole. They also agree that the IAD’s discretion to grant
H&C relief or not is entitled to substantial deference. The Court should
not reweigh the evidence. The Supreme Court of Canada had this to say on the
subject of deference and the reasonableness standard of review in Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47:
Tribunals have
a margin of appreciation within the range of acceptable and rational solutions.
A court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. In judicial review, reasonableness is concerned mostly
with the existence of justification, transparency and intelligibility within
the decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[18]
The parties do not disagree on the list of
factors to be considered in determining whether to grant H&C relief. They
also agree that the respondents and their mother were heard by the IAD and
considered credible.
A.
Breach of Residency Obligation
[19]
The Minister notes that the respondents’ breach
of their residency obligation was total. They have not set foot in Canada since
2000. The Minister argues that the IAD’s finding that, in the circumstances,
there need not be “substantial positive factors to
offset the breach of the residency obligation” misstates the applicable
legal framework by suggesting that little was required to excuse the
respondents’ total failure. The Minister identifies two errors under this
heading: (i) excusing the respondents because of their age, and (ii) excusing
the respondents’ ignorance of the law.
[20]
On the question of excusing the respondents
because of their age, the Minister cites Lai v Canada (Citizenship and
Immigration), 2006 FC 1359 [Lai]. At paragraph 26 of that decision,
the Court stated:
In the case of
a dependent child of relatively tender years there is little, if any,
opportunity to independently fulfill the residency obligation required to
preserve landed status or to create the genuine ties to Canada that are
typically necessary for H & C relief. In most cases the child can only
accomplish that which the parents are prepared to allow and support. Ms. Lai’s
status in Canada may have been jeopardized by the decisions of her parents, but
her claim to relief should not be enhanced by those parental decisions.
[Emphasis added.]
[21]
The Minister also cites several IAD decisions
which have followed the principle set out in Lai that young age does not
excuse a breach of the residency obligation.
[22]
In my view, Lai is distinguishable from
the facts in the present case. In Lai, the impugned decision had denied
the applicant’s request for H&C relief. The Minister was the respondent in
that case. Accordingly, Ms. Lai was seeking to overcome the impugned decision
by focusing on her age. The Court focused on the need for deference to the IAD.
In Lai, age was the principal factor in issue.
[23]
In the present case, the respondents seek merely
to maintain the IAD’s exercise of discretion, and many other factors are in
issue. I do not read the above-quote passage from Lai as a blanket
prohibition against consideration of age as a factor when considering H&C
relief from a failure to meet one’s residency obligation.
[24]
I turn now to the issue of the respondents’
ignorance of their continued permanent resident status. The Minister cites
authority for the proposition that ignorance of the law cannot excuse a failure
to meet the residency obligation: Canada (Citizenship and Immigration) v
Tefera, 2017 FC 204 at paras 27-28. In my view, there is an important
distinction between reliance on ignorance of the law and reliance on ignorance
of one’s legal status. I would characterize the latter as a mistake of fact
rather than law. The revelation that prompted the respondents to seek H&C
relief concerned their status under the law, not the law itself.
[25]
To conclude on this section, I acknowledge that
the IAD’s statement that there need not be “substantial
positive factors to offset the breach of the residency obligation”
unfortunately suggests that the breach was not total. However, I do not believe
that the IAD misunderstood the factual situation or the legal test to be
applied. In my view, the IAD was simply stating that the respondents’ age was a
consideration in assessing their request for H&C relief, such that not much
more in the way of positive factors was necessary. It is also my view that it
was open to the IAD to apply that reasoning.
B.
Establishment in Canada
[26]
The Minister notes that the IAD found no
establishment in Canada by the respondents but still accepted that establishment
may be a neutral factor. The Minister argues that this finding was unreasonable
in view of Canada (Citizenship and Immigration) v Sidhu, 2011 FC 1056 [Sidhu]
at para 49:
… [T]he Board
found that the respondent’s degree of establishment in Canada was neutral,
despite finding that there was absolutely no evidence of any establishment in
Canada. This, too, was unreasonable. In the absence of any evidence of
establishment, this factor should have weighed against the respondent.
[27]
In response, the respondents note that Sidhu
is distinguishable because there were factors other than establishment at play
in that case.
[28]
That may be the case, but the proposition set
out in para 49 of Sidhu stands independent of other issues. I agree that
it was unreasonable for the IAD to find that establishment could be a neutral
factor.
C.
Hardship
[29]
The Minister argues that the IAD’s decision
contained almost no analysis of the evidence concerning hardship to which the
respondents would be exposed if H&C relief were not granted. The Minister
also notes that the H&C relief the respondents seek is exceptional, special
relief which sits outside the normal immigration classes. The Minister argues
that there was evidence that weighed against the respondents’ assertion of
hardship, and that such evidence should have been discussed in the IAD’s
decision. In the absence of such discussion, the Minister argues that the IAD’s
conclusion on hardship was unreasonable, lacking in justification, transparency
and intelligibility.
[30]
The respondents rely on authority to the effect
that a tribunal is not required to refer to each and every detail supporting
its conclusion. The respondents’ mother had testified concerning issues of
security and racism in South Africa. The respondents also made reference to security
concerns. The respondents submit that the evidence of hardship was ample.
[31]
I accept that the IAD did not have to refer to
all of the evidence it relied on to reach its conclusions. However, I am
troubled by the dearth of analysis on the issue of hardship, especially in
light of the following:
1. The
firm conclusions by the IAD that (i) “to fail to
provide the relief would be unfair and possibly even dangerous or cruel”,
and (ii) “by remaining in South Africa, the
[respondents] will face hardships of a kind and to an extent that only by
allowing the appeal, will the hardships be alleviated.”
2. The fact that
the respondents and their parents appear to have built generally successful
lives for themselves in South Africa and most of the security and racism
concerns referred to in the evidence have not affected the respondents personally.
[32]
It is not clear to me how the IAD reached its
conclusions regarding hardship, and indeed whether it considered all of the
evidence. I agree with the Minister that the IAD’s analysis of hardship lacks
justification, transparency and intelligibility.
V.
CONCLUSIONS
[33]
Having considered the issues raised by the
Minister, I have concluded that the IAD erred in its analysis of (i) the
respondents’ establishment in Canada, and (ii) the hardship to which they could
be exposed if H&C relief is not granted. Moreover, I am satisfied that
these errors could have affected the result in the IAD’s decision. For these
reasons, and despite the respondents’ argument that the IAD’s decision should
be considered as a whole, I have concluded that the present application should
be allowed.
[34]
The parties are agreed that there is no serious
question of general importance to certify.
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