Date: 20250324
Docket: IMM-9536-24
Citation: 2025 FC 541
Ottawa, Ontario, March 24, 2025
PRESENT: The Honourable Madam Justice Aylen
BETWEEN: |
DO MEE TUNG
|
Applicant
|
and
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
[1] The Applicant, a 64-year-old citizen of China, challenges a decision of a Senior Immigration Officer [Officer] dated May 24, 2024, refusing the Applicant’s second application for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds under section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2] The Applicant’s immigration history was set out in detail by Justice Fuhrer in her decision granting the Applicant’s application for judicial review in relation to her first negative H&C determination and will not be repeated here [see Tung v Canada (Citizenship and Immigration), 2024 FC 482 at paras 5-12].
[3] Her second H&C application was based on her establishment in Canada over the past 23 years, the best interests of her grandchildren and hardship upon her return to China. The Applicant asserts that the Officer made a number of errors in relation to the assessment of all three factors, which render the Officer’s decision unreasonable.
[4] The applicable standard of review of an H&C decision is reasonableness [see Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44]. When reviewing for reasonableness, the Court must take a “reasons first”
approach and determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified [see Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at para 8]. 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 [see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 15, 85]. The Court will intervene only if it is satisfied there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency [see Adeniji-Adele v Canada (Citizenship and Immigration), 2020 FC 418 at para 11].
[5] When conducting an H&C analysis, an officer must determine whether to assign a positive, negative or neutral weight to each factor raised by the Applicant. Where a positive or negative weight is assigned, the officer must also determine the amount of weight to assign, often expressed as “significant”
, “some”
or “little”
weight. The officer must then conduct a global assessment of the application, where all relevant facts and factors are to be weighed in order to determine if relief is justified in the circumstances [see Kanthasamy, supra at para 25].
[6] However, in this case, the Officer’s reasons are silent as to what weight, if any, was ultimately assigned to the establishment and hardship factors. For example, in their analysis of establishment, the Officer states:
The applicant has been in Canada for more than twenty-two years and, as a result, it is expected that she would have achieved a level of establishment during this time. However, the evidence presented does not demonstrate that she would be unable to re-establish herself in China; a country where she lived a portion of her life, where she received her education, and where he spouse resides, albeit in prison.
[7] In the absence of clear reasons from the Officer that sets out the weight, if any, given to the various factors and arguments raised by the Applicant, the Court is prevented from knowing whether a proper assessment was made in relation thereto and whether a proper global assessment was conducted thereafter.
[8] If the Court is to assume (which it should not have to do) that the Officer’s silence is to be interpreted as meaning that no weight was assigned to establishment, this is equally problematic. As noted above, the Applicant has been in Canada for 23 years. It is hard to understand how the Officer could conclude that almost a quarter century in Canada was not worthy of positive weight [see Toussaint v Canada (Citizenship and Immigration), 2022 FC 1146 at para 19]. A “no weight”
finding is also problematic in light of Justice Fuhrer’s earlier criticisms of the first H&C decision, wherein that officer had unreasonably discounted “the significant length of time”
the Applicant had lived in Canada [see Tung v Canada (Citizenship and Immigration), supra at para 23].
[9] In light of the above, I find that the Officer’s decision is unreasonable and accordingly, the application for judicial review shall be granted.
[10] The parties have proposed no question for certification and I agree that none arises.
JUDGMENT in IMM-9536-24
THIS COURT’S JUDGMENT is that:
The application for judicial review is granted. The decision of the Officer dated May 24, 2024, is set aside and the matter is remitted to another officer for redetermination.
The parties proposed no question for certification and none arises.
“Mandy Aylen”
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