Docket: IMM-10181-23
Citation: 2024 FC 1817
Ottawa, Ontario, November 15, 2024
PRESENT: The Honourable Mr. Justice Manson
BETWEEN: |
BONIFACE EDWARD |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Introduction
[1] This is an application for judicial review of a decision (the “Decision”
) by an Immigration Officer (the “Officer”
) refusing the Applicant’s application for Permanent Residence on Humanitarian and Compassionate grounds pursuant to section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
).
II. Background
[2] The Applicant, Mr. Boniface Edward, is a 48-year-old citizen of Saint Lucia. The Applicant came to Canada in 2006 on a 6-month visitor visa, and has remained in Canada ever since. The Applicant previously applied for a spousal sponsorship application, but his former spouse withdrew it in 2021.
[3] On March 5, 2022, the Applicant applied for Permanent Residence on Humanitarian and Compassionate (“H&C”
) grounds, and in the alternative, the Applicant requested that he be issued a Temporary Residence Permit (“TRP”
). The Applicant raised the following H&C factors: his establishment in Canada, hardship in Saint Lucia arising from the COVID-19 pandemic, and the lack of other viable options for permanent residence due to estrangement from spouse.
III. The Decision
[4] On August 1, 2023, the Officer refused the application. The Officer conducted a global assessment of the three factors raised by the Applicant and found there was not a sufficiently compelling reason to warrant granting the application.
[5] With respect to the Applicant’s establishment in Canada, the Officer considered the fact that the Applicant has been living and working in Canada for 17 years, most of it without authorization. The Officer considered that the Applicant has some friends and family in Canada, however, the majority of the Applicant’s family is in Saint Lucia, which is where he grew up and spent most of his life. Accordingly, the Officer found that while reintegration into Saint Lucian society would be difficult at first, it is reasonable to believe that he would be able to re-establish himself in Saint Lucia.
[6] The Officer afforded no weight to the remaining two factors raised. First, the Officer found that there was no evidence to suggest Saint Lucia’s health care system in unable to provide adequate coverage, especially since the COVID-19 pandemic is no longer a global emergency. Second, the Officer gave no weight to the Applicant’s factor that he had no other viable options for permanent residency since the reasons were that his estranged wife would not support a spousal sponsorship application and that he cannot qualify for permanent residence under any other class because he did not meet the criteria established by Parliament.
IV. Issues
[7] The only issue is whether the Officer’s decision was reasonable.
V. Analysis
[8] The standard of review with respect to the Officer’s substantive findings is reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 25).
[9] The Applicant asserts that the Officer made two serious errors. First, the Officer failed to assess the Applicant’s request for a TRP. Second, the Officer erred with respect to their assessment of the Applicant’s H&C factors by “holding against”
the Applicant the fact that he lived and worked in Canada without status for 17 years.
[10] The Respondent concedes that the Officer should have considered the Applicant’s request for a TRP and submits that the application for judicial review of the Officer’s H&C refusal should be dismissed and the TRP request alone be sent back for determination. I agree.
[11] Section 24(1) of the IRPA requires an officer to make a decision on the TRP, and the Officer’s failure to do so constitutes a reviewable error (Mpoyi v Canada (Immigration, Refugees and Citizenship), 2018 FC 251 at para 36). However, the Officer’s assessment of the H&C factors was reasonable.
[12] In Kanthasamy, the Supreme Court of Canada stated that the H&C exemption was not intended to be “an alternative immigration scheme”
and accepted that it should not be given “undue overbreadth”
. The Court accepted that the usual hardship associated with being required to leave Canada will generally be insufficient to warrant relief on H&C grounds (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 23).
[13] The Officer considered all of the Applicant’s factors raised, assigned them separate weight, and then undertook a global assessment of all the factors presented. The Applicant does not challenge the Officer’s findings with respect to the Applicant’s lack of viable options for permanent residency and the hardships in Saint Lucia due to the COVID-19 conditions, as it was reasonable for the Officer to assign those factors no weight. The Applicant does not challenge the Officer’s findings with respect to the Applicant’s lack of viable options for permanent residency and the hardships in Saint Lucia due to the COVID-19 conditions. This is appropriate as it was reasonable for the Officer to assign those factors no weight.
[14] With respect to the Applicant’s main argument on judicial review, it is settled law that officers can consider an applicant’s negative immigration history when assessing the H&C factors in an application (see e.g. Aguilar Sarmiento v Canada (Citizenship and Immigration), 2017 FC 481 at paras 6 and 15 and the cases cited within). Moreover, and contrary to the Applicant’s assertions, the Officer did not “hold against”
the Applicant this fact. Rather, the Officer reasonably considered and balanced the Applicant’s lack of authorization to live and work in Canada for 17 years with the other factors raised, including his employment and presence of friends and family in Canada (Rozgonyi v Canada (Citizenship and Immigration), 2022 FC 349 at para 30).
[15] The Applicant has failed to show any arguable issue in the Officer’s weighing of the evidence and finding that he had provided insufficient grounds to support his request for exceptional H&C relief. The Decision was reasonable.
VI. Conclusion
[16] For the reasons above, I dismiss the judicial review in respect of the H&C Application, but allow the judicial review on the TRP issue only. The proper recourse, as requested by both parties, is to remit the TRP Application to a different officer for determination.
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