Docket: IMM-995-23
Citation: 2024 FC 1872
Ottawa, Ontario, November 22, 2024
PRESENT: The Honourable Mr. Justice Ahmed
BETWEEN: |
SUDIPTA SARKAR NOMITA SARKAR SANJOY SARKAR |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants seek judicial review of a decision of a Migration Officer (the “Officer”
) of Immigration, Refugees and Citizenship Canada (“IRCC”
) dated September 26, 2022 removing a dependent from their application for permanent residence under the family sponsorship class. The Officer determined that the dependent did not meet the requirements of a Type C dependent under section 2 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”
) and that humanitarian and compassionate (“H&C”
) factors did not justify an exemption from the regulatory criteria.
[2] The Applicants submit that the Officer breached their procedural rights and rendered a decision that was unreasonable.
[3] I disagree. I find that the decision is reasonable and was rendered in a procedurally fair manner. For the reasons that follow, this application for judicial review is dismissed.
II. Facts
[4] The Applicants are Sudipta Sarkar (the “Sponsor”
), Nomita Sarkar (the “Principal Applicant”
), and Sanjoy Sarkar (the “Dependent”
). The Sponsor is a Canadian citizen. The Principal Applicant and the Dependent are citizens of Bangladesh. The Principal Applicant is the Sponsor and Dependent’s mother. The Dependent is the Sponsor’s brother.
[5] In 2017, the Principal Applicant applied for permanent residency, listing the Dependent, then 39 years old, as a Type C dependent. Section 2 of the Regulations defines a Type C dependent as an individual who “is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition.”
[6] In the application, the Applicants claimed that the Dependent was financially dependent on the Principal Applicant. The Applicants stated that the Dependent suffers from “Irritable Bowel Syndrome and Panic/Obsessive-Compulsive Spectrum Disorders,”
that he is unemployed; and that he had not been refused a Canadian visa in the past.
[7] IRCC subsequently found that the Dependent had applied for a Temporary Resident Visa (“TRV”
) in 2010 and two study permits in 2017. The applications were refused. In these applications, the Dependent reported that he is employed and suffers no serious health issues.
[8] From 2018 to 2020, IRCC investigated the Applicants’ claims. IRCC issued two procedural fairness letters, requested medical examinations, and interviewed the Principal Applicant and Dependent.
[9] On April 29, 2020, IRCC determined that the Dependent did not meet the definition of a Type C dependent and removed him from the Principal Applicant’s permanent residence application.
[10] The Applicants sought judicial review of this decision. The application for judicial review was settled and the decision was returned for redetermination.
[11] On September 26, 2022, the Applicants were notified that the Dependent had once again been found to not meet the definition of a Type C dependent pursuant to section 2 of the Regulations. This is the decision that is presently under review.
III. Issues
[12] I frame the issues as follows:
Is the redetermination decision dated September 26, 2022 reasonable?
Did the Officer breach the duty of procedural fairness?
[13] The parties submit that the applicable standard of review for the merits of the Officer’s decision is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 25, 86-87 (“Vavilov”
)). I agree.
[14] The issue of procedural fairness is to be reviewed on the correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 (“Canadian Pacific Railway Company”
) at paras 37-56; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35). I find that this conclusion accords with the Supreme Court of Canada’s decision in Vavilov (at paras 16-17).
[15] Reasonableness is a deferential, but robust, standard of review (Vavilov at paras 12-13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible, and justified (Vavilov at para 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision-maker (Vavilov at para 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision-maker, and the impact of the decision on those affected by its consequences (Vavilov at paras 88-90, 94, 133-135).
[16] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov at para 100). Not all errors or concerns about a decision will warrant intervention. 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). Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”
(Vavilov at para 100).
[17] Correctness, by contrast, is a non-deferential standard of review. The central question for issues of procedural fairness is whether the procedure was fair having regard to all of the circumstances, including the factors enumerated in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at paras 21-28; Canadian Pacific Railway Company at para 54).
IV. Analysis
A. The Redetermination Decision is Reasonable
[18] The Applicants submit that the Officer’s decision is unreasonable. According to the Applicants, the Officer misapprehended the evidence, unreasonably impugned the Applicants’ credibility, and erred in their consideration of H&C factors and the definition of a Type C dependent per section 2 of the Regulations.
[19] The Respondent submits that the Officer made no reviewable error. The Respondent maintains that the Officer was attentive to the medical and employment documents brought by the Applicants and rightly impugned the Applicants’ credibility based on the Dependent’s undisclosed visa applications and discrepant health and employment information. Given these credibility concerns and the ambiguity of the Applicants’ medical evidence, the Officer reasonably determined that the Dependent did not meet the requirements in section 2 of the Regulations and that H&C factors did not justify an exemption to these criteria.
[20] I agree with the Respondent.
[21] Contrary to the Applicants’ submissions, the Officer did not ignore or misapprehend either “the medical evidence on the Dependent’s health issues”
or “the evidence of [the Dependent’s] financial dependency since before the age of 22.”
The Officer’s decision and reasons explicitly reference “medical documentation; narrative accounts, letters of support and psychiatric assessments; evidence of remittances and other “non-medical evidence concerning dependency”; open-source information regarding country conditions in Bangladesh provided by [the Applicants]; and all other evidence provided.”
[22] Having reviewed this evidence, it was open to the Officer to conclude that the Dependent does not meet the criteria for a Type C dependent (Regulations, s 2). The Officer clearly states that this determination was made “on balance,”
with the decision listing both evidence favourable and “contrary”
to the Applicants’ claims. While the Applicants disagree with the Officer’s weighing of this evidence, they have failed to demonstrate any exceptional circumstances which would justify disrupting these factual findings on reasonableness review (Vavilov at para 125).
[23] With respect to the negative credibility determinations, I find no reviewable error in the Officer’s reasons. They are justified, transparent, and intelligible (Vavilov at para 99).
[24] The Officer’s credibility determinations are clearly explained in the Global Case Management System (“GCMS”
) notes. In the GCMS notes, the Officer states that the Applicants’ credibility was eroded by previous immigration applications, in which the Applicants claimed that the Dependent is gainfully employed and had no serious health conditions. The Officer finds that this information “diminishes credibility and calls [into question] the genuineness of [the Applicants’] statements”
that “[the Dependent] is basically not able to support himself or to work, and that he is entirely dependent on [the Principal Applicant].”
Unlike in Owusu-Ansah v Canada (Minister of Employment and Immigration), 1989 CarswellNat 53, [1989] FCJ No 442, where the decision-maker considered factors that “cannot be rationally related to the Applicant’s credibility,”
here the Officer relied on statements that directly contradict the Applicants’ claims (at para 11).
[25] Similarly, the Officer did not disregard the Applicants’ explanations for these contradictions. The Officer simply found them to be insufficient. For instance, the Officer noted a report by a psychotherapist which states that the Dependent “did not appreciate what he was writing”
on his TRP application, calling this document “possibly the strongest piece of evidence in the [A]pplicants’ favour.”
However, the Officer then reasonably determined that this document does not resolve their credibility concerns, since:
…the [Dependent] not appreciating the consequences of what he was writing does not adequately account for it being written this way several times (ie on several applications) as well as corroborated in writing by the [S]ponsor, who independently stated that [the Dependent] was in the midst of a career, and failed to identify it as anything other than normal paid employment – which I believe is what it was.
[26] Furthermore, I do not find the Officer’s application of section 2 of the Regulations to be unreasonable. In the GCMS notes, the Officer states, “despite whatever medical conditions [the Dependent] has, it has not prevented him from holding a job and has not forced him to be financially dependent on the [Principal Applicant] since before the age of 22.”
The Officer’s reasons are aligned with “the nature of the particular regulatory regime”
and do not warrant judicial intervention (Vavilov at para 142).
[27] I find that the Officer’s conclusion on this issue was based on a holistic assessment of the record, rather than a selective review of the evidence as the Applicants contend. According to the Applicants, the Officer relied heavily on a doctor’s note stating “that [the Dependent] is able to work, live and lead normal life [sic] independently without the need of any nurse or helper or machine,”
treating this document as determinative and concluding that the Dependent is therefore not a Type C dependent. However, the reasons demonstrate that the Officer referred to a plethora of evidence in making this finding, including multiple doctor’s notes, a psychotherapist report, notes from an interview with the Dependent and Principal Applicant, previous visa applications, and the Dependent’s academic transcript. The Officer did not treat any one source as determinative. The Applicants’ submissions to the contrary cannot succeed.
[28] Finally, I find no error in the Officer’s assessment of H&C considerations, namely: the Dependent’s medical conditions, family separation, the best interests of the Sponsor’s children, and the impact of the COVID-19 pandemic (“COVID”
) on the Dependent and Principal Applicant in Bangladesh.
[29] Once again, the Applicants’ submissions are contradicted by the record. The Applicants submit that the Officer disregarded the exceptional nature of the H&C factors in favour of the Dependent. However, the decision demonstrates that the Officer duly considered these factors. The Officer thoroughly assessed the Dependent’s medical conditions, affirming “that [the Dependent] does in fact have some degree of medical infirmity.”
The Officer also noted the Applicants’ specific concerns regarding family separation, acknowledging “that the [P]rincipal [A]pplicant may refuse to leave Bangladesh without [the Dependent.]”
On the best interests of the Sponsor’s children, the Officer noted that “any child in Canada would benefit from having an uncle come to live with them,”
but found this consideration to be “not as impactful”
as the Sponsor’s children currently live with the Sponsor in Canada. On the issue of COVID in Bangladesh, the Officer determined “that this crisis is lifting and there is nothing submitted that credibly establishes that [the Dependent] has been unduly impacted in a permanent manner.”
The Officer did not fail to consider the issues raised by the Applicants. They simply did not agree that the issues warranted H&C relief.
[30] For these reasons, I find the decision to be reasonable.
B. There was No Breach of Procedural Fairness
[31] I note that the Applicants did not explicitly raise the issue of procedural fairness in their initial submissions, though they did make limited references to fairness and natural justice. Consequently, the Respondent made no submissions on this issue.
[32] In any event, the Applicants’ submissions with respect to procedural fairness are meritless. Of the Applicant’s procedural claims, one is viable: that the Officer breached their duty of procedural fairness by preventing the Applicants from submitting further medical documents prior to the redetermination decision. Specifically, the Applicants submit that IRCC failed to provide them with a medical requisition form and thereby blocked them from providing an assessment from a panel physician.
[33] I do not find this argument persuasive. IRCC invited the Applicants to “provide any submissions [they] wish…regarding the matter of [the Dependent’s] inclusion as an accompanying dependent”
prior to redetermination. This invitation allowed the Applicants to submit supplemental medical reports. That any such reports would not be issued by a panel physician is not sufficient to demonstrate a deprivation of the Applicants’ procedural rights.
V. Conclusion
[34] This application for judicial review is dismissed. The Officer adequately considered the Applicants’ evidence and rendered a decision that is justified in light of its factual and legal constraints (Vavilov at para 90). I find that the decision is reasonable and there was no breach of the duty of procedural fairness.
[35] No questions for certification were raised, and I agree that none rise.
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