Docket: IMM-317-17
Citation:
2017 FC 1025
Ottawa, Ontario, November 09, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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JESSICA ANABEL
ADELA LAZO GESITE
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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]
In 2008, the Applicant came to Canada from the
Philippines as a temporary worker and was employed until 2015, after which she could
not renew her work permit. She applied for permanent resident status in Canada on
humanitarian and compassionate [H&C] grounds. Her H&C application was denied.
She claims that the H&C Officer [the Officer] failed to properly consider
her circumstances as the sole financial provider for her family in the
Philippines. For the reasons that follow, this judicial review is dismissed.
I.
Background
[2]
The Applicant is a citizen of the Philippines
who came to Canada in 2008 on a 24 month work permit. She received a second
permit in September 2013. An extension of that permit was denied on July 8,
2015.
[3]
Between 2008 and 2015, the Applicant worked at
various jobs. She was involved in her church and did translation work for Edmonton
Immigration Services. She has not worked since 2015 as she does not have a work
permit. She states that she is the sole breadwinner for her family because of
her spouse’s disability and she claims that she must remain in Canada to
support her family in the Philippines. She says that there is a lack of employment
opportunities for her in the Philippines as an older worker.
[4]
Her H&C application was denied on January 9,
2017.
II.
H&C Decision
[5]
In weighing the various H&C factors, the
Officer noted that the Applicant was somewhat established in Canada. The Officer
observed that the Applicant had been unemployed for 18 months and had
accumulated debt. The Officer noted that all of the Applicant’s family ties are
in the Philippines.
[6]
The Officer acknowledged the Applicant’s
assertion that she needs to support her family, however the Officer ultimately
concluded that considering the temporary nature of the original work permit, along
with the Applicant’s education, skills, and work experience in the Philippines,
she would be able to obtain employment in the Philippines.
III.
Issues
[7]
The Applicant essentially raises two issues:
- Did the Officer apply
the correct test for H&C relief?
- Is the decision reasonable?
IV.
Standard of Review
[8]
The Officer’s choice of the proper legal test
for an H&C application is correctness: Marshall v Canada (Citizenship
and Immigration), 2017 FC 72 at para 27 [Marshall]; Gomez
Valenzuela v Canada (Citizenship and Immigration), 2016 FC 603 at para 19.
[9]
The standard of review for the fact based
findings in an H&C application is reasonableness (Kisana v Canada
(Citizenship and Immigration), 2009 FCA 189 at para 18 [Kisana]).
V.
Analysis
A.
Did the Officer apply the correct test for H&C
relief?
[10]
The Applicant argues that the Officer failed to
properly apply the correct test for H&C relief because the Officer did not ask
whether the hardship that would be faced by the Applicant would be “unusual, undeserved or disproportionate.” The Applicant
argues that this is an error.
[11]
In Kanthasamy v Canada (Citizenship and
Immigration), 2015 SCC 61 at para 33 [Kanthasamy], the Supreme Court
of Canada held that in assessing H&C applications, officers should “consider and give weight to all relevant humanitarian and
compassionate considerations in a particular case.” Kanthasamy “changed the law” regarding H&C applications by
holding that officers should no longer measure an Applicant’s situation against
the standard of “unusual, undeserved, or
disproportionate hardship,” as noted in the Guidelines for
H&C officers (Marshall, at para 7). As noted in Kanthasamy at
para 31, while these words may be helpful as descriptors, they do not overtake
the “equitable underlying purpose of the humanitarian
and compassionate relief application process.”
[12]
Here I am satisfied that the Officer applied the
correct test when considering the H&C relief. The Officer conducted a
holistic assessment of the Applicant’s situation, noting the relevant factors
weighing in favor and weighing against H&C relief. The Officer did not
narrow the analysis to “hardship” but rather
considered all relevant factors advanced by the Applicant. This is in keeping
with Kanthasamy, and therefore the Officer did not err in the
applicable test.
B.
Is the decision reasonable?
[13]
The Applicant argues that the education and well-being
of her children is dependent upon her ability to earn Canadian wages. She
argues that her children will have to quit school without her Canadian income. She
also notes that she is in debt, and claims that she will not be able to find
work in the Philippines because employers there are hesitant to hire older
workers. She argues that the Officer failed to reasonably consider these
factors.
[14]
The Officer concludes that there was no evidence
that the Applicant would be unable to find a job in the Philippines due to her
age. Further, there was no objective country condition evidence on the specific
issue of older workers in the Philippines being unable to obtain employment. The
Officer as well took particular note of the Applicant’s breadth of previous
work experience in the Philippines.
[15]
With respect to the best interests of the child
[BIOC] analysis regarding the Applicant’s two children, the Officer notes that
the analysis generally only applies to children under the age of 18. As such,
the Applicant’s son, who was over 18 at the time of the application, is not
considered. The Applicant made no argument as to why the overage child should
be included in the BIOC analysis (see Norbert v Canada (Citizenship and
Immigration), 2014 FC 409 at paras 37-38).
[16]
The Officer noted that there was little evidence
to demonstrate that the Applicant’s daughter would have to quit school in
absence of the Applicant’s Canadian income. Accordingly this fact was not
sufficient to warrant H&C relief.
[17]
While the Applicant produced some evidence of
establishment in Canada, the Officer noted that the Applicant has greater ties
to the Philippines, where her family resides. This factor reasonably weighed
against her application.
[18]
In my view, the Applicant raises no reviewable
error concerning the Officer’s weighing of the H&C factors and the evidence.
It is not the role of this Court on judicial review to reweigh the factors and
evidence considered by the Officer (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 59).
[19]
Overall, because it is the Applicant’s onus to
demonstrate why the Officer’s exceptional H&C discretion should be
exercised, her failure to lead sufficient evidence is fatal. In Kisana,
at para 43, the Federal Court of Appeal noted that it is not the Officer’s
responsibility to intentionally seek out evidence which might support the
Applicant’s case. In Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 at para 8, the Federal Court of Appeal
further noted that if Applicants fail to raise pertinent facts to their
application, they do so at their own peril.
[20]
Based upon this law, the H&C Officer here conducted
a global and reasonable assessment of the Applicant’s H&C application in
light of the evidence offered. Accordingly, the decision is reasonable and there
is no basis for this Court to intervene.
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