Docket: IMM-1553-17
Citation:
2017 FC 876
Ottawa, Ontario, October 4, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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MARINA
GARYFALLIA PATOUSIA
STEFANOS
CHORTIS
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Applicants
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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
I.
Introduction
[1]
This is an application for judicial review of
the decision of an Immigration Officer denying the Applicants’ application for
permanent residency on humanitarian and compassionate (“H&C”) grounds,
under section 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
II.
Background
[2]
The Applicants are Marina Garyfallia Patousia,
and her husband, Stefanos Chortis (collectively, the “Applicants”). Ms.
Patousia is a citizen of Greece and South Africa, and Mr. Chortis is a citizen
of Greece.
[3]
The Applicants have two Canadian-born children:
Max, aged 7, and Alex, aged 3.
[4]
The Applicants lived in Greece until 2006. They
then moved to the United States. In 2007, the Applicants moved to Canada. They
have been in Canada ever since.
[5]
According to the Applicants, they left Greece
because they could not find employment. Though they owned a small restaurant in
Greece, it was not making any money. Ms. Patousia also, apparently, had worked
at an office at some point. They also indicated that they left Greece because
they “did not fit in”, especially Ms. Patousia,
who is viewed as a foreigner (given that she is South African born), and has
difficulty with the Greek language.
[6]
The Applicants initially came to Canada as visitors.
In 2008, they applied for and received an extension to remain in Canada as
visitors.
[7]
Despite having visitor-status, the Applicants
began working in Canada soon after arriving. Ms. Patousia began working at an
internet café in 2007, and later registered her own cleaning business. Mr.
Chortis has worked for 7 different employers since his arrival in 2007.
[8]
In 2009, the Applicants hired an immigration
consultant to prepare a skilled worker application for Ms. Patousia. The
consultant never submitted the application, a fact which the Applicants did not
discover until “years later.” However, the Applicants did file an official complaint against the
consultant once they learned of his inaction and that complaint remained active
for over four years.
[9]
The Applicants had no further interaction with
the immigration system until June of 2015, when they sought H&C relief to
apply for permanent residency. This Application was refused, as was their
subsequent application for leave and judicial review.
[10]
In February of 2016, the Applicants submitted a
new H&C Application, arguing that their circumstances had changed
significantly from the time of their previous failed application. In
particular, the Applicants’ son Max had been diagnosed with and is now
receiving treatment for ADHD, and Mr. Chortis had been diagnosed with and is
receiving treatment for depression. Further, the economic situation in Greece
is “dire”, and Mr. Chortis is required to send a
portion of his employment income to his parents in Greece to finance their
medical treatment, as well as his sister and niece to assist with their daily
needs. This application was refused, and is the subject of this judicial review.
[11]
In August of 2016, an inadmissibility report
regarding the Applicants was prepared pursuant to section 44 of the IRPA,
on the grounds that the Applicants had failed to leave Canada at the end of
their authorized stay (contrary to subsection 29(2) of the IRPA), and
had obtained work in Canada without authorization (contrary to subsection 30(1)
of the IRPA).
[12]
The Immigration Officer (“Officer”) found
insufficient H&C grounds and dismissed the Application.
A.
Immigration History
[13]
The Officer began by recounting the Applicants’
immigration history. While acknowledging that the Applicants had been misled by
the immigration consultant, who they had paid in 2009 to prepare a skilled
worker application for Ms. Patousia, the Officer held that they still had “a certain amount of responsibility” to regularise
their immigration status between the expiry of their visitor status in 2008,
and their first H&C application in 2015. The Officer also took issue with
the Applicants demonstrated “lack of respect of the
immigration laws”, given that they started working soon after arrival in
Canada, without authorization. This factor reflected negatively on the
Applicants.
B.
Best Interests of the Children
[14]
The Officer took note that Max has been
diagnosed with ADHD, and receives special services in school as well as
medication to treat his condition. The Officer referenced the supporting
documentation outlining Max’s behavioural challenges, which have a negative
effect on his school and home life, as well as reports suggesting that
treatment had proven beneficial. The Officer also noted, however, that the “identified supportive strategies” for Max were such
that they “can be used at school and/or at home”.
As such, the Officer found that the Applicants could continue to assist Max by
employing such strategies wherever they reside.
[15]
The Officer further acknowledged that removal
would result in a disruption in services for Max, but found that there was “insufficient evidence to indicate why he could not continue
to benefit from similar services in Greece.” The Officer justified this
conclusion by pointing to the availability of free education in Greece, as well
as special educational programs available in Greece.
[16]
The Officer similarly held that there was
insufficient evidence that Max would not be able to access his ADHD medication,
or a comparable drug, in Greece. The evidence led by the Applicants respecting
Greece’s child-health care system noted access challenges for Muslim, Roma, or
migrant/asylum-seeking children. The Officer held that there was no evidence
that Max fell into any of these categories, or further that Max would have
challenges accessing health services on account of the noted deficiencies.
[17]
Similarly, the Officer held that evidence led
regarding child poverty in Greece was focused on children from less advantaged
backgrounds, and that there was no evidence that the Applicants’ children would
suffer in the same way –particularly given the Applicants’ industriousness and
lengthy work history in both Greece and Canada.
[18]
There was also insufficient evidence that the
children would be endangered in Greece based on violence in schools.
[19]
The Officer noted that very little information
had been provided regarding the best interests of the Applicants’ second child,
Alex. Cumulatively, the Officer found that there was insufficient evidence that
the best interests of the children would be compromised if they accompanied
their parents to Greece.
[20]
Finally, the Officer noted that the children
have extended family members in Greece, and that it was reasonable to believe
that these family members would be willing to assist and support the children
in some respects, emotionally or otherwise, during their integration.
C.
Fear of Returning to Greece
[21]
With respect to the claim that Mr. Chortis
remits money to his family in Greece, in part to assist his parents with
medical care, the Officer held that there was insufficient evidence that his
family “would be subjected to challenges if such funds
were not forthcoming.” In the alternative, the Officer held there was
insufficient evidence as to why Mr. Chortis could not continue to financially
contribute to them once re-settled in Greece.
[22]
The Officer assessed the evidence led pertaining
to the economic situation in Greece – which the Applicants alleged grounded
their fear of returning. The Officer acknowledged the objective documentary
evidence led by the Applicants, as well as letters from their Greek friends,
both of which discussed the financial crisis in Greece. However, the Officer
also took note of a report form 2015 which suggested that the Greek economy was
finally on the upswing.
[23]
Moreover, the Officer considered the Applicants’
work history in Greece, including owning and managing a restaurant. While there
would undoubtedly be re-integration difficulties, the Officer found there was
insufficient evidence that the Applicants could not use their entrepreneurial
and managerial skills, combined with their experience from Canada, to
successfully re-establish themselves in Greece. The Officer found that the
Applicants’ argument that they would be subject to age discrimination in Greece
was speculative, particularly given that such discrimination would be unlawful
in Greece.
[24]
With respect to the Applicants’ evidence
regarding Greece’s poor health care system, the Officer also took note of the
conflicting evidence that certain aspects of the Greek health care system –
including life expectancy and direct access to specialists – were strong and/or
improving.
[25]
With regards to Mr. Chortis’ personal health
situation, the Officer took note of a letter from a Community Health Centre
speaking to the treatment Mr. Chortis was receiving. The Officer noted,
however, that the author of the letter was not identified, nor did the letter
contain any information regarding a medical diagnosis. The Officer nonetheless
accepted that Mr. Chortis was receiving treatment for depression, but held that
there was no information as to whether he could receive this treatment in
Greece. Further, relying on Federal Court case law, the Officer noted that the
stress related to a precarious immigration status is not a valid H&C consideration.
[26]
With respect to the Ms. Patousia’s argument that
she was treated as a foreigner in Greece and therefore had difficulty finding
meaningful work, the Officer noted an insufficiency of evidence as to
discrimination she faced, or why Ms. Patousia could not find “meaningful work” in Greece.
D.
Establishment in Canada
[27]
The Officer took note of two issues respecting
the Applicants’ work history. First, a letter from Ms. Patousia’s employer in
Canada pre-dated her supposed period of employment at that establishment.
Second, a letter of reference for Mr. Chortis misspelled his first name. While
these were mentioned, the Officer does not appear to have treated them as
substantial factors.
[28]
The Officer found that there was insufficient
documentary evidence about Ms. Patousia’s cleaning business to “corroborate the financial viability/success of the
established business.” However, the Officer did find that it
demonstrated her resourcefulness. Similarly, the Officer took note of the
Applicants’ long employment history in Canada (seven employers in ten years),
and held that while it was not reflective of stability, it did demonstrate his
resourcefulness in finding new employment
[29]
The Officer also noted that the Applicants were
self-sufficient in Canada, which was considered a positive factor.
[30]
Assessing the Applicants’ social ties to Canada,
the Officer noted that they were members of a Greek Orthodox church, but also
that there was “little information to elaborate on the
type and extent of the applicants’ involvement with the Church.”
Ultimately, the Officer found that the “applicants’
demonstrated efforts towards community integration does not go beyond one [sic]
would expect from individuals residing in Canada for over 9 years.”
[31]
The Officer considered the reference and support
letters from the Applicants’ friends in Canada and Greece as positive factors,
but found “insufficient evidence…to support that the
aforementioned relationships are characterized by a degree of inter-dependency
and reliance to such an extent that if separation would occur that it would
amount to hardships for either the applicants or their friends.”
Further, there was no evidence as to why the Applicants could not maintain
these friendships, or form new friendships, in Greece.
[32]
The Officer found that the abovementioned
factors reflected a “modest level of establishment in
Canada.”
III.
Issues
[33]
The issues are:
- Did the Officer
err by assessing every H&C factor through a lens of hardship?
- Was the Officer’s
consideration of establishment unreasonable?
- Did the Officer
misconstrue evidence regarding the economic conditions in Greece?
- Was the Officer’s
assessment of the best interests of the child unreasonable?
IV.
Standard of Review
[34]
The standard of review is reasonableness for
H&C exemptions. The choice of the appropriate legal test to be applied is a
question of law to be reviewed on a correctness standard.
V.
Analysis
A.
Did the Officer err by assessing every H&C
factor through a lens of hardship?
[35]
The Applicants argue that the Officer erred by
assessing the entire application through a hardship lens, contrary to Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy].
Instead, the Officer should have considered that hardship was only one among
many factors, and applied the test endorsed by Kanthasamy: whether the
H&C factors, established by the evidence, would excite in a reasonable man
[sic] in a civilized community a desire to relieve the misfortunes of another (Kanthasamy
at para 13, quoting from Chirwa v Canada (Minister of Citizenship and
Immigration), (1970) 4 IAC 338).
[36]
The Applicants quote from the Decision, where
the Officer wrote with respect to their establishment in Canada:
The purpose of assessing establishment is to
determine whether the applicants are established to such a degree that they
would suffer hardship if they should leave Canada…
[37]
And with respect to Mr. Chortis’ mental health
condition:
…little information has been shown with
respect to the treatment regime, why the applicant could not continue treatment
in Greece or be subjected to hardships in accessing the treatment.
[38]
Similarly, the Applicants argue that the Officer’s
best interests of the children was “centered on
hardship”, given that the Officer held that “the
onus is on the applicant to provide evidence of the adverse effects on the
children should the applicants leave Canada”. According to the
Applicants, this reasoning positioned the children’s best interests against
evidence of hardship, or lack thereof, contrary to “[n]umerous
decisions prior to Kanthasamy”.
[39]
Finally, the Applicants argue that the Officer
improperly assessed their social connections in Canada through a hardship lens,
when the Officer wrote that “insufficient evidence has
been put forth to support that…if separation were to occur it would amount to
hardship.”
[40]
The Applicants also make a separate, yet related
argument, that the Officer erred by noting the lack of evidence about “why the applicant could not continue the treatment [for his
depression] in Greece or be subjected to hardships in accessing the treatment.”
They argue that this runs afoul of Kanthasamy, which holds that once a
decision-maker accepts a mental health condition:
…requiring further evidence of the
availability of treatment, either in Canada or [in the country of origin]…undermined
the diagnosis and had the problematic effect of making it a conditional rather
than a significant factor” (at para 47).
[41]
Kanthasamy is
clear that H&C considerations are not limited to hardship, and “hardship” should not be treated as an independent
test which an applicant must meet before being granted relief. Rather,
decision-makers should consider all relevant factors, focusing on the “equitable underlying purpose of the humanitarian and
compassionate relief application process” (para 31). However, the
concept of hardship or unusual and undeserved or disproportionate hardship can
be “instructive” in reaching a determination, so
long as they are not treated as “thresholds for relief
separate and apart from the humanitarian purpose of s.25(1)” (Kanthasamy
at para 33).
[42]
With respect to children however, the concept of
“unusual and undeserved hardship” is
presumptively inapplicable, because children will rarely be “deserving” of hardship (Kanthasamy at para
41).
[43]
The Respondent argues that the Officer
considered all the evidence and did not assess the application through a
hardship lens, but only considered hardship as one factor in the analysis of
each of the H&C factors.
[44]
The Officer largely focussed on insufficiency of
evidence and much of what the Applicants are seeking is for the Court to
reweigh the evidence.
[45]
However, the problem for the Officer is that he
or she bases all of his or her findings of fact through, as the Applicants
submit, a lens of hardship, as the threshold test for each H&C factor,
instead of focussing on the H&C considerations in a contextually manner. In
reading the Officer’s decision as a whole, the Officer has imposed a hardship-based
analysis on the evidence, which is both incorrect and unreasonable (Torres v
Canada (Minister of Citizenship and Immigration), 2017 FC 715 at para 8),
as I will comment on further below.
B.
Was the Officer’s consideration of establishment
unreasonable?
[46]
The Applicants’ argue that the Officer erred by
failing to properly assess their lengthy establishment in Canada. The
Applicants take particular issue with the Officer’s repeated suggestion that
factors supporting the Applicants’ establishment in Canada (i.e. their work
history and success in making friends) also spoke to their ability to
re-establish themselves in Greece. However, the question should not be whether
the Applicants could resume activities in the country of origin, but whether
they have demonstrated successful establishment in Canada.
[47]
The Applicants further rely on Marshall v
Canada (Minister of Citizenship and Immigration), 2017 FC 72 [Marshall],
which notes that “focus on treatment options in an
applicant’s home country was criticized by the majority in Kanthasamy”
(para 37). The Applicants assert that the Officer’s error in this regard was
compounded by suggesting that they could relieve the stress associated with a
precarious immigration status by returning to Greece.
[48]
I agree with the Applicants that the Officer
failed to provide any reasonable explanation as to why the establishment
evidence is insufficient. As stated by Justice Boswell in Baco v Canada
(Minister of Citizenship and Immigration), 2017 FC 694, at paragraph 18:
18 The degree of an applicant's
establishment in Canada is, of course, only one of the various factors that must
be considered and weighed to arrive at an assessment of the hardship in an
H&C application. The assessment of the evidence is also, of course, an
integral part of an officer's expertise and discretion, and the Court ought to
be hesitant to interfere with an officer's discretionary decision. However, the
Officer in this case followed the same objectionable and troublesome path as in
Chandidas and in Sebbe. It was unreasonable for the Officer to
discount the Applicants' degree of establishment merely because it was, in the
Officer's view, "of a level that was naturally expected of them... [and it
is not] beyond the normal establishment that one would expect the applicants to
accomplish in their circumstances." The Officer unreasonably assessed the
Applicants' length of time or establishment in Canada because, in my view, the
Officer focused on the "expected" level of establishment and,
consequently, failed to provide any explanation as to why the establishment
evidence was insufficient or to state what would be an acceptable or adequate
level of establishment.
[49]
The Officer’s analysis of the Applicants’
establishment in Canada is unreasonable.
C.
Did the Officer misconstrue evidence regarding
the economic conditions in Greece?
[50]
The Applicants argue that the Officer erred by “misconstruing the overwhelming evidence of the dire economic
circumstances in Greece” and by focusing instead on one report by “Freedom House” (elsewhere called “Freedom in the World”) which suggested that certain
aspects of the Greek economy were improving. Specifically, the Applicants’
submitted “many articles, reports and letters from
friends and family that detail the dire economic situation in Greece”.
The Applicants argue that these materials were not appropriately considered,
and therefore the “officer’s conclusions are untenable
and not supported by the evidence.”
[51]
The Applicants also take issue with the
conclusion of the Officer that there was insufficient evidence that Mr.
Chortis’ remittances to his parents were being used for medical care, despite
letters from the Applicants’ parents saying as much.
[52]
With respect to this factor, I must agree with
the Officer that the Applicants are asking the Court to reweigh the evidence,
which is not the role of the Court.
D.
Was the Officer’s assessment of the best
interests of the child unreasonable?
[53]
The Applicants argue that the Officer erred by
deciding, contrary to the evidence presented about the Greek education system,
that Max could continue receiving treatment in Greece.
[54]
Moreover, the Applicants argue that the Officer
erred by failing to state what was in the children’s best interest. According
to the Applicant, the Officer should have applied the test from Williams v
Canada (Minister of Citizenship and Immigration), 2012 FC 166 [Williams],
which holds that a best interest analysis should begin by first assessing what
is actually in the child’s best interests, and then weigh that against the
other factor.
[55]
While the Applicants acknowledge that subsequent
jurisprudence has found it is not necessary to abide strictly by the Williams
test, so long as the officer identifies and defines the best interests and
gives them considerable weight, the Applicants maintain that the Officer
strayed from what was permissible by focusing on “whether
moving to Greece would be detrimental to their best interests”, rather
than identifying the best interests of the children.
[56]
Again, I agree with the Applicants. The Officer
concludes his decision concerning best interest of the children by stating that
hardships for the children in Greece do not warrant an H&C exemption – thereby
looking though a threshold lens which renders the Officer’s decision both
incorrect and unreasonable.
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