Docket: IMM-281-21
Citation: 2022 FC 238
Ottawa, Ontario, February 22, 2022
PRESENT: The Honourable Mr. Justice Favel
| BETWEEN:
|
| TASHANA SANEEK DAVIS
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| Applicant
|
| and
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| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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| Defendant
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1] Ms. Davis [Applicant] seeks judicial review of a senior immigration officer’s [Officer] January 4, 2021 decision denying her application for permanent residence on humanitarian and compassionate [H&C] grounds [Decision]. Pursuant to section 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], the Officer concluded that there were insufficient H&C grounds to warrant an exemption from the normal permanent residency requirements.
[2] The application for judicial review is dismissed.
II.
Background
[3] The Applicant is a 33-year-old citizen of Jamaica. At the time of her H&C application, she had resided in Canada for a total of eight years. The Applicant originally travelled to New Brunswick, Canada on April 28, 2010 to work as a seasonal seafood processor for 8 months. The Applicant states that she could not find work in Jamaica and she had to help provide for her seven siblings living in Jamaica. Between 2010 and 2014, she returned to Canada four more times to work at the same job for approximately 3.7 years. Since May 2014, the Applicant has continuously resided in Canada.
[4] In November 2014, the Applicant obtained a study permit. She moved to Brampton, Ontario in January 2015, where she attended Medix College for a year to train as a Personal Support Worker [PSW]. She was subsequently issued a Post Graduate Work Permit valid from October 2015 to October 2016. After obtaining her diploma, she worked as a PSW until November 2016. In February 2017, the Applicant received temporary resident status as a visitor, which she successfully extended three times. The Applicant’s friend, Ms. Sowa, tried to arrange employment for the Applicant as a caregiver for Ms. Sowa’s two disabled sons. This arrangement fell through because Ms. Sowa could not obtain a Labour Market Impact Assessment and the Applicant’s previous lawyer allegedly failed to fill out the appropriate forms properly. During this time, the Applicant applied again for a visitor extension, which was denied on March 26, 2019. As a result, her immigration status lapsed.
[5] Since the Applicant did not leave Canada when her visitor status lapsed, she sought an exemption from her non-compliance pursuant to section 25(1) of the IRPA. On August 12, 2019, the Applicant filed her H&C application so that she could apply to the Home Child-Care Provider Pilot Program [Pilot Program] to attain a work permit and complete the caregiver application process. The government introduced the Pilot Program in June 2019, after the Applicant’s immigration status had lapsed. At the time of her H&C application, the Applicant met the eligibility requirements for this program but could not apply since she was now inadmissible. Alternatively, the Applicant requested humanitarian consideration of her good faith efforts to attain permanent residency under a regular immigrant class. In the further alternative, if there were insufficient H&C grounds, the Applicant requested a Temporary Residency Permit.
III.
The Decision
[6] In refusing the Applicant’s H&C application, the Officer found that there were insufficient H&C grounds to warrant relief. First, the Officer considered the Applicant’s establishment in Canada. The Officer noted that the Applicant has been unemployed since October 2016, was highly dependent on others for her basic needs, and that the Applicant is not self-sufficient in Canada.
[7] The Officer mistakenly stated that the Applicant had resided in Canada for approximately six years. The Officer acknowledged that during this time, she worked, studied, volunteered, and held some ties in Canada. However, the Officer concluded that such establishment was common for living in Canada for six years and not “exceptional.”
The Officer references various support letters from the Applicant’s pastor, friends, and her cousin, which speak to her ties in Canada. The Officer noted that the Applicant would miss those in Canada but ultimately, there was “insufficient evidence”
to determine that those ties were characterized by “a degree of interdependency and reliance to such an extent that if separation were to occur it would have a negative impact on the relationship.”
The Officer found that there was “insufficient evidence”
to establish that the Applicant’s removal would sever the bonds. The Officer noted that the Applicant could maintain her relationships through telephone, Skype, letters, or future visits.
[8] Next, the Officer considered the country conditions in Jamaica. The Officer concluded that while the Applicant may face some initial difficulties reintegrating, the evidence did not suggest that her parents and siblings would be unable or unwilling to support her emotionally. Any difficulties in reintegrating would be mitigated by the fact that the Applicant grew up in Jamaica. Furthermore, there was insufficient evidence that the Applicant would face unemployment, poverty, or hunger in Jamaica. The Officer noted that while these hardships exist in Jamaica, unemployment is improving and the Applicant is at a competitive advantage. Regarding discrimination, there is little evidence that the Applicant’s family has faced discrimination in obtaining housing, education, or employment, and that the Applicant did not submit evidence that she had previously faced discrimination in Jamaica.
[9] Finally, the Officer considered the best interests of Ms. Sowa’s children and found that there was insufficient evidence to prove that their wellbeing or basic needs would be affected if the Applicant had to apply for permanent residence from outside of Canada.
IV.
Issues
[10] The sole issue in this case is whether the Decision was reasonable. The relevant sub-issues are:
Was the Officer’s analysis of the Applicant’s ties in Canada unreasonable?
Was the Officer’s establishment analysis unreasonable?
Was the Officer’s analysis of country conditions unreasonable?
Did the Officer apply the incorrect legal test when assessing H&C grounds?
V.
Standard of Review
[11] The standard of review applicable to all the sub-issues is reasonableness. The Applicant cites case law prior to Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] to support her position that the standard of correctness applies to the fourth sub-issue. Recently, in Alghanem v Canada (Citizenship and Immigration), 2021 FC 1137 [Alghanem], Justice Diner applied a reasonableness standard in considering whether an officer applied the wrong test in an H&C application (at para 17). Justice Diner further noted at paragraph 21 that “to uphold an officer’s decision as reasonable”
, an officer’s “exercise of their broad discretion must be conducted within relevant factual and legal constraints, including applying the correct legal framework”
[Emphasis added].
[12] The other sub-issues similarly do not engage one of the exceptions set out in Vavilov and are therefore reviewable on the standard of reasonableness (Vavilov at paras 16-17, 23-25). H&C exemption decisions are “exceptional and highly discretionary, warranting significant deference to the deciding officer”
(Alghanem at para 20 citing Miyir v Canada (Citizenship and Immigration), 2018 FC 73 at para 12).
[13] In assessing the reasonableness of a decision, the Court must consider both the outcome and the underlying rationale to assess whether the “decision as a whole is transparent, intelligible and justified”
(Vavilov at para 15). For a decision to be reasonable, a decision-maker must adequately account for the evidence before it and be responsive to the Applicant’s submissions (Vavilov at paras 89-96, 125-128). A decision will be unreasonable if it contains flaws that are “sufficiently central or significant”
(Vavilov at para 100). A reviewing court must refrain from reweighing evidence before the decision-maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov at para 125).
VI.
Parties’ Positions
A.
Was the Officer’s analysis of the Applicant’s ties in Canada unreasonable?
(1)
Applicant’s Position
[14] The Officer failed to grapple with the contradictory evidence that there were insufficient ties to Canada (Vavilov at para 126). The Applicant submitted significant evidence containing a dozen detailed letters of support and photos of her and her friends demonstrating that she has meaningful ties in Canada with a high degree of interdependence and reliance. Further, it shows that if the Applicant is removed, the relationships would be adversely impacted or even severed. For example, several letters stated that they depend on the Applicant’s help around the house because they are elderly. Other letters discuss the support the Applicant gave friends after deaths and births in their families.
[15] A blanket statement that the Officer reviewed the letters is not sufficient to justify the Officer’s conclusions (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at para 17 [Cepeda-Gutierrez]).
(2)
Respondent’s Position
[16] The Officer reasonably considered the Applicant’s ties in Canada, which included a consideration of her church involvement, the letters of support from friends and family, and the fact that she completed a PSW program. The Applicant is asking the Court to reweigh the evidence related to her ties in Canada, which is not the function of judicial review.
B.
Was the Officer’s establishment analysis unreasonable?
(1)
Applicant’s Position
[17] The Officer did not provide adequate reasons to justify his conclusion that the Applicant’s social establishment was “common”
and not “exceptional”
(Vavilov at paras 86, 97-98). Further, the Officer failed to explain the threshold that establishment has to meet in order to be “exceptional”
(Chandidas v Canada (Citizenship and Immigration), 2013 FC 258 at para 80 [Chandidas]; Baco v Canada (Minister of Citizenship and Immigration), 2017 FC 694 at para 18 [Baco]; Sivalingam v Canada (Minister of Citizenship and Immigration), 2017 FC 1185 at para 13 [Sivalingam]).
[18] The Officer also incorrectly stated that the Applicant resided in Canada for six years, instead of eight.
(2)
Respondent’s Position
[19] Establishment is one factor in an H&C assessment. The Officer gave some weight to the Applicant’s employment and ongoing volunteering efforts and, when weighing this with other factors, reasonably concluded that there was insufficient H&C factors to justify an exemption.
[20] The mere use of the word “exceptional”
does not mean the Officer erred. When the Decision is read as a whole, the Officer clearly used the word “exceptional”
as a descriptor and not as a “legal threshold”
(Thiyagarasa v Citizenship and Immigration, 2019 FC 111 at paras 28-32 [Thiyagarasa]).
[21] Finally, although the Officer referred to six years instead of eight years, the Officer’s reasons clearly account for the time that the Applicant worked as a seasonal worker.
C.
Was the Officer’s analysis of country conditions unreasonable?
(1)
Applicant’s Position
[22] Having established the existence of adverse country conditions, it was an error for the Officer to require direct evidence that the Applicant or her family experienced poverty or discrimination (Isesele v Canada (Minister of Immigration, Refugees and Citizenship), 2017 FC 222 at para 16). An applicant need only show a likelihood of being affected by adverse country conditions (Kanthasamy v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 at para 56 [Kanthasamy]). The evidence before the Officer showed that women in Jamaica experience discrimination in employment. There was also direct evidence before the Officer that the Applicant originally left Jamaica due to unemployment.
(2)
Respondent’s Position
[23] The Officer properly considered the Applicant’s profile against the country conditions and reasonably concluded that the Applicant would not face discrimination. The Officer acknowledged that marginalization, poverty, and hunger exist in Jamaica. However, there was simply insufficient evidence that the Applicant would be a similarly situated person. It was not an error for the Officer to note the Applicant’s employment and education efforts in Canada would put her at an advantage in the Jamaican labour market.
[24] Similarly, it was not an error for the Officer to note that there was insufficient evidence that the Applicant’s family previously experienced discrimination. An Officer can draw reasonable inferences about the discrimination experienced by others who share an applicant’s identity (Kanthasamy at para 56).
D.
Did the Officer apply the incorrect legal test when assessing H&C grounds?
(1)
Applicant’s Position
[25] Whether applying the reasonableness or correctness standard, the Officer failed to carry out the proper analysis under section 25(1) of the IRPA. When assessing the H&C factors, the Officer imposed a higher burden than the standard articulated in Kanthasamy. Here, the Officer fettered his discretion by imposing an “exceptional”
threshold and, in doing so, lost sight of positive factors such as the Applicant’s eight years of residency, work experience, studies, community engagement, volunteerism, and family-like ties. The Officer should have asked whether “the Applicant’s circumstances, when considered with humanity and compassion, [are] sufficient to warrant extraordinary relief”
(Mitchell v Canada (Citizenship and Immigration), 2019 FC 190 at para 24).
(2)
Respondent’s Position
[26] Kanthasamy does not change the nature of the H&C consideration – H&C relief remains an exceptional remedy. Kanthasamy emphasizes the humanitarian purpose of the general H&C discretion, but it does not stand for the proposition that every request for H&C discretion should be granted. In Kanthasamy, the Supreme Court accepted that the usual hardship associated with being required to leave Canada will not generally be sufficient to warrant relief on H&C grounds (at paras 14, 19, 23). The Officer did not take a segmented approach where he assessed each factor to see if it met the “unusual and undeserved or disproportionate”
hardship. Rather, the reasons demonstrate that the Officer looked at the Applicant’s circumstances as a whole.
VII.
Analysis
A.
The Applicable Legal Principles
[27] Under subsection 25(1) of the IRPA, the Minister may grant permanent residency to a foreign national who does not meet the requirements of the IRPA if the Minister is of the opinion that the circumstances are justified under H&C considerations. This means “there will sometimes be humanitarian or compassionate reasons for admitting people who, under the general rule, are inadmissible”
(Kanthasamy at paras 12-13).
[28] In Kanthasamy, the Supreme Court defined H&C considerations as those facts, established by the evidence, which “would excite in the reasonable [person] in a civilized community a desire to relieve the misfortunes of another”
(at para 21 citing Chirwa v Canada (Minister of Manpower and Immigration) (1970), 4 IAC 338 (Imm App Bd) at 350). An H&C exemption is a discretionary remedy. What warrants relief will vary on the facts and context of the case. The Applicant has the onus of establishing that an H&C exemption is warranted (Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 45).
[29] Whether there are “sufficient grounds to justify granting [an H&C] application under s. 25(1), is done by an ‘assessment of hardship’”
(Kanthasamy at para 22). The Ministerial Guidelines set out a non-exhaustive list of factors that may be relevant in assessing whether applicants will face “unusual and undeserved or disproportionate hardship.”
Those factors include but are not limited to ties to Canada; establishment in Canada; and country conditions, including discrimination not amounting to persecution (Kanthasamy at para 27).
(1)
Was the Officer’s analysis of the Applicant’s ties in Canada unreasonable?
[30] I disagree with the Applicant that the evidence contradicts the Officer’s finding that the Applicant does not have sufficient ties in Canada. I also disagree that the Officer failed to grapple with contradictory evidence.
[31] The Officer concluded that there was insufficient evidence to prove that the Applicant’s “relationships are characterized by a degree of interdependency and reliance to such an extent that if separation were to occur it would have a negative impact on the relationship between the applicant and those in Canada.”
After reviewing the record, including the Applicant’s H&C submissions, I find that the thrust of almost all of the letters is that the Applicant has a strong drive to help others and serve her faith-based community. The Officer’s specific references to various letters demonstrates that the Officer reviewed and considered all of the evidence.
[32] It is true that a blanket statement that a decision-maker “has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the [decision-maker’s] finding of fact”
(Cepeda-Gutierrez at para 17). However, in this case, any elements that evidenced interdependency or reliance were minimal and, in my view, do not “squarely contradict”
the Officer’s conclusions. The letters do not elaborate on any interdependency or reliance and it was therefore open to the Officer to conclude that there was insufficient evidence. Additionally, in her H&C submissions, the Applicant did not argue that her elderly friends or her cousin depend on her physical presence to provide care or emotional support. In my view, the Applicant cannot rely on this argument now (Singh v Canada (Citizenship and Immigration), 2009 FC 11 at para 29).
(2)
Was the Officer’s establishment analysis unreasonable?
[33] The Applicant’s argument that the Officer erred by stating that the Applicant resided in Canada for six years instead of eight has no merit. When assessing the Applicant’s establishment, the Officer began by considering the Applicant’s employment history and clearly accounted for “her employment from May 2010 until January 2015 as a seasonal worker.”
[34] Next, the Officer noted the Applicant’s church involvement and education in Canada. The Officer then goes on to state:
I give some weight to the applicant’s previous employment efforts in Canada and ongoing volunteering efforts. However, I also find it is common for individuals to have a certain degree of establishment after residing in Canada for six years, whether it is through new friendships and relationships, school, volunteerism, church, and/or other activities. I further note it is expected of foreign nationals in Canada to be financially independent and to maintain good civil records. As such, I do not find the applicant’s social establishment as exceptional, or beyond what one would expect from someone who has been living in Canada for many years.
[35] The Applicant submits that there are two issues with the Officer’s statement that the Applicant’s social establishment is not “exceptional.”
First, the Officer does not justify this conclusion. Second, the Officer does not explain what “exceptional”
establishment requires.
[36] Both objections are premised on the belief that the word “exceptional”
imposes a legal threshold. In my view, the next paragraph in the Officer’s reasons makes it clear that the use of the word “exceptional”
was merely descriptive:
I acknowledge the applicant has resided in Canada continuously since 2014 and during this time she has forged many friendships. I have reviewed the letters of support from the applicant’s friends and cousin in Canada who speak to their close relationships and the applicant’s hard working and kind nature. I acknowledge in the event the applicant is required to depart Canada she would miss those in Canada. However, I find there is insufficient evidence before me to support that the aforementioned relationships are characterized by a degree of interdependency and reliance to such an extent that if separation were to occur it would have a negative impact on the relationship between the applicant and those in Canada. Moreover, the applicant has provided insufficient evidence that separation from those in Canada would sever the bonds that have been established.
[Emphasis added.]
[37] The Officer simply concluded that although the Applicant has many close friendships, this alone is not enough to warrant H&C relief. As the Supreme Court noted in Kanthasamy, “[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”
(at para 23 [Citations omitted]). Indeed, it will be very rare that establishment “is so far reaching and profound, that it would be unreasonable for the Minister not to grant [relief] because disrupting such rich establishment excites a desire to relieve the misfortunes of another” (Shackleford v Canada (Minister of Citizenship and Immigration), 2019 FC 1313 at para 25 [Shackleford]).
[38] The Applicant relies on Chandidas, Baco, and Sivalingam for the proposition that an Officer must explain the threshold that establishment has to meet to be “exceptional”
and that an Officer must justify why that threshold is not met. These cases are distinguishable because, here, the Officer did not impose a legal threshold through the use of the word “exceptional.”
Additionally, unlike the cases cited by the Applicant, the Officer explains why the Applicant’s social establishment was insufficient to warrant H&C relief. Namely, there was insufficient evidence to demonstrate that the Applicant’s relationships are characterized by a degree of interdependence and reliance such that the Applicant would experience hardship if removed from Canada. The lack of interdependence and reliance explains why “the interruption in [the Applicant’s] establishment would not result in unusual and underserved or disproportionate hardship”
(Baco at para 14).
(3)
Was the Officer’s analysis of the country conditions unreasonable?
[39] The Applicant correctly notes that H&C applicants are not required to present direct evidence that they would face a risk of discrimination if deported (Kanthasamy at para 54). Rather, “…applicants need only show that they would likely be affected by adverse conditions such as discrimination”
(Kanthasamy at para 56). In my opinion, the Officer reasonably concluded that the Applicant failed to meet this threshold.
[40] The Officer accepted that women in Jamaica are discriminated against and face higher rates of unemployment in comparison to men. The Officer noted, however, that unemployment in Jamaica is improving overall. The Officer considered the Applicant’s specific profile and concluded that she has a competitive advantage in seeking employment because she is a citizen of Jamaica, speaks English fluently, has several years of work experience, and has furthered her education in Canada. It was open to the Officer to conclude that the skills and experiences the Applicant gained in Canada would reduce her hardship upon removal (Zhou v Canada (Citizenship and Immigration), 2019 FC 163 at para 17). The Officer reasonably concluded that although the Applicant is female, she did not show that she would likely be affected by unemployment. In light of this conclusion, it was also reasonable for the Officer to conclude that the Applicant would not likely be affected by hunger or poverty.
[41]
Finally, the Officer noted that one of the country condition documents stated that descendants of black slaves face discrimination in Jamaica. In this regard, the Officer considered that the Applicant’s parents and siblings reside in Jamaica and that there was no evidence that they experience poverty or discrimination. I agree with the Respondent that the Officer reasonably considered the experiences of the Applicant’s family and, after considering such, nevertheless concluded that there was insufficient evidence that members of the Applicant’s family faced discrimination or poverty due to their race. In Kanthasamy, the Supreme Court stated that “[e]vidence of discrimination experienced by others who share the applicant’s identity is … clearly relevant under s. 25(1)”
and that “reasonable inferences can be drawn from those experiences”
(Kanthasamy at para 56). In this case, the Officer noted that the Applicant “herself has not submitted any incidences of discrimination she previously faced in Jamaica.”
Contrary to the Applicant’s submissions, I do not read this sentence as requiring direct evidence of discrimination. The Officer was merely explaining that there was insufficient evidence to conclude that the Applicant was in a similarly situated group that would face discrimination in Jamaica.
(4)
Did the Officer apply the incorrect legal test when assessing H&C grounds?
[42]
The Applicant submits that the Officer made the same error as the officer in Kanthasamy. In Kanthasamy, the Officer erred by treating the words “unusual and undeserved or disproportionate hardship”
as “three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1)”
(Kanthasamy at paras 33, 45). The Supreme Court explained that officers should not “look at s. 25(1) through the lens of the three adjectives as discrete legal thresholds, and use the language ‘unusual and undeserved and disproportionate hardship’ in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case”
(at para 33). I do not find that the Officer used the word “exceptional”
in a manner that unreasonably curtailed their analysis.
[43] The mere use of the word “exceptional”
is not proof that the Officer applied an unreasonably high threshold. As was stated in Lopez Segura v Canada (Citizenship and Immigration), 2009 FC 894 at paragraph 29, “[i]t is not the use of particular words that is determinative; it is whether it can be said on a reading of the decision as a whole that the officer applied the correct test and conducted a proper analysis.”
[44] This case is similar to Thiyagarasa. In that case, an officer afforded positive weight to an applicant’s ties to his extended family living in Canada, but ultimately found that the applicant’s level of establishment in Canada was not “exceptional.”
Justice Southcott considered the entire context of the decision and concluded the following at paragraph 31:
The Officer did not adopt an exceptional level of establishment as a legal threshold required to be met for the application to succeed and therefore reject the application on that basis. Nor did the Officer discount the Applicant’s degree of establishment because it did not rise to an exceptional level. On the contrary, the Officer afforded positive weight to the Applicant’s establishment and considered that factor, in conjunction with the other H&C factors raised by the Applicant, but concluded that the H&C considerations did not justify an exemption from the requirement to apply for permanent residence from outside Canada.
[45] The same can be said for the present case. In the fourth paragraph of the Officer’s reasons, reproduced above at paragraph 38, the Officer afforded some positive weight to the fact that the Applicant had worked, studied, volunteered, and held some personal ties in Canada. Ultimately, however, the Officer concluded that the Applicant would not face “hardship in applying for permanent residence from outside of Canada as a result of establishment ties.”
[46] It is also important to remember that, as noted by the Officer, H&C relief is an exceptional remedy. At paragraph 16 of Shackleford, Justice Roy considered the exceptional nature of H&C relief. He stated:
The Kanthasamy decision does not depart from the requirement to treat the remedy that is the H&C exemption as being exceptional and discretionary. This is not new. It has been part of the [IRPA] and its predecessors, since 1966-67 (see Kanthasamy, para 12).
As was said in Semana v Canada (The Minister of Citizenship and Immigration), 2016 FC 1082, at para 15:
“This relief exists outside the normal immigration classes or refugee protection streams by which foreign nationals can come to Canada permanently, and it acts as a sort of safety valve available for exceptional cases. Such an exemption is not an ‘alternative immigration stream or an appeal mechanism’ for failed asylum or permanent residence claimants”.
Nothing in Kanthasamy suggests that H&C applications are anything other than exceptional: the Chirwa description itself, the fact that it is not meant to be an alternative immigration scheme, the fact that the hardship associated with leaving Canada does not suffice are all clear signals that H&C considerations must be of sufficient magnitude to invoke section 25(1). It takes more than a sympathetic case.
[47] With the above in mind, I find that the Officer did not err by noting that the Applicant’s personal ties were not “exceptional.”
When read as a whole, the Officer clearly did not reject the Applicant’s H&C application because she did not have “exceptional social establishment.”
The Officer considered a variety of factors going to her establishment and personal ties, in addition to other H&C considerations such as country conditions and the best interests of Ms. Sowa’s children. I am satisfied that the Officer conducted a proper analysis and that the result falls within the range of reasonable outcomes.
VIII.
Conclusion
[48] The application for judicial review is dismissed. The parties do not propose a question for certification and none arises from this matter.
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