Date: 20060811
Docket: IMM-5659-05
Citation: 2006 FC 967
Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FU RONG LIANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Liang is a
citizen of China who applied for permanent residence in Canada and requested
that his case be assessed on humanitarian and compassionate grounds because he
is the last remaining member of his family in China. A vice consul at the
Canadian Consulate in Hong Kong (officer) refused the request for special
relief on humanitarian and compassionate grounds. On this application for
judicial review of that decision I find that the officer’s analysis, as
contained in his reasons, could reasonably have led the officer from the
evidence to his decision to refuse Mr. Liang’s application. As such, the
decision withstands a somewhat probing examination so that the application for
judicial review should be dismissed.
BACKGROUND FACTS
[2] At
the time the application was filed the following facts were put before the
officer:
·
Mr. Liang is a single 24 year-old Chinese national. He is the
only member of his family left in China.
·
Mr. Liang is attending a university in China, and he has never
worked.
·
Mr. Liang’s only sibling is a brother who was landed in Canada in
1997.
·
Mr. Liang's parents came to Canada as members of the family class
in 2000. At the time they left China, they left some money for Mr. Liang's
daily expenses and tuition fees.
·
Mr. Liang has been, and is, dependent on his parents for
emotional and financial support. Accordingly, he is most anxious to be
reunited with his family in Canada.
[3] Updated
information later provided stated that:
·
Mr. Liang has completed school and has obtained employment in China.
·
Mr. Liang will have no problem establishing himself successfully
in Canada, and his family has sufficient means to ensure that he will never
become a burden on the Canadian taxpayer.
·
Mr. Liang remains single.
[4] The
submissions made in support of the humanitarian and compassionate application
were as follows:
You may remember that
the last remaining family member (and dependent remaining family member) were
by policy deemed to be humanitarian and compassionate applications.
The essential
ingredient of the two policy heads was financial or emotional dependency. In
this case, we have both, although only one is necessary. In 1988, the J-88
policy of dependency made the last remaining family member policy unnecessary
and the policy was deleted.
Amendments to the
J-88 reversed the role of the last remaining family member but the same was not
reinstated but rather was left to proof of dependency which exists here.
To put it another
way, the dependency of a last remaining family member was for long years deemed
to fit the humanitarian and compassionate definition under subsection 114(2).
It was there too long
for anyone to be mistaken that the same situation does not exist today. Since
the dependency/humanitarian and compassionate rule was subtended by section 3
of the Immigration Act requiring the facilitation of reunion between Canadian
citizens and their close relatives from abroad, it follows that what was
humanitarian and compassionate prior to 1988 for long years is still
humanitarian and compassionate today.
The last remaining
family member aspect simply is that there is no one to fill the family needed
role of emotional support. Therefore, this should continue to be recognized as
humanitarian and compassionate.
A second look at this
case, falls into the definition of humanitarian and compassionate used by the
Immigration Appeal Board when defining their jurisdiction under s. 77 of the
Immigration Act. They defined humanitarian and compassionate in terms of the
case of Chirwa. This definition of humanitarian and compassionate has
been used over 300 times and is intended to relieve against the misfortunes of
another based upon the feelings of a reasonable person.
The applicant was
excluded as a dependent of his father under the Family Class Provisions because
he was not under 19 year of age and was not a full-time student when his
brother executed an Undertaking of Assistance to sponsor his parents as set out
in the Immigration Regulations. The educational institution he attended was a
self-taught collegiate and he was not continuously enrolled and in attendance
as a full-time student when his parents migrated. He misses his parents very
much and has no family in China.
It is hard to
challenge that this indeed would not cause a reasonable person to relieve
against the loneliness of this young dependent.
THE OFFICER’S DECISION
[5] In
the letter which advised Mr. Liang of the negative decision, the officer wrote:
You have requested […] special
relief under Humanitarian and Compassionate grounds and s. 25 of the
Immigration and Refugee Protection Act. I have weighed the evidence on file
and I am satisfied you do not qualify for special relief. I took into
consideration the definitions of Chirwa v. MMC in your case. I found
that there was proof of some dependence and a degree of closeness with your
family in Canada. The proof does not, however, support to my satisfaction that
this separation is the cause of misfortunes that “warrant the granting of
special relief.” This is specifically because there were insufficient “facts,
established by the evidence” that satisfied me that they would “excite in a
reasonable man in a civilized community a desire to relieve the misfortunes of
another.” The request for Humanitarian and Compassionate considerations is
thus refused.
[6] The
Computer Assisted Immigration Processing System (CAIPS) notes, which form part
of the reasons for the decision, record that the officer considered the
following:
·
The fact that Mr. Liang is the last remaining member of his
family in China is not in and of itself a sufficient basis for a positive
decision.
·
The fact that Mr. Liang is not an eligible member of the family
class is not a ground, by itself, for a favourable decision.
·
The application did satisfy the officer that Mr. Liang was close
to his family; however, closeness to family and physical separation from family
do not of necessity create a situation that ought to be relieved through a favourable
humanitarian and compassionate decision. There was no evidence that
Mr. Liang was depressed, suffered any psychological stress, or otherwise
fell within the circumstances contemplated in the Chirwa decision relied
upon by Mr. Liang.
·
Mr. Liang's dependence upon his family "is only an issue so
far as their separation induces difficulty in [the] provision of
support". Mr. Liang remained able to live in the family home in China,
the family called each other frequently, and Mr. Liang was able to receive his
family as visitors.
·
Mr. Liang had not provided proof that adequate funds for
resettlement were available to him, therefore his application as a member of
the federal skilled worker class could not be processed under the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act). In the years since his
family had immigrated to Canada, Mr. Liang had done little to improve his
application for immigration.
·
The evidence provided did not establish undue strain, stress or
sorrow that would warrant special relief under humanitarian and compassionate
considerations.
STANDARD OF REVIEW
[7] In
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 the Supreme Court reviewed the decision of a delegate of the
Minister of Citizenship and Immigration to reject an application for landing on
the basis of humanitarian and compassionate grounds made under the previous
immigration act (R.S.C. 1985, c. I-2). Having regard to the fact-specific
nature of the inquiry, its role within the statutory scheme, the fact that the
decision-maker is the Minister (or his delegate) and the considerable
discretion conferred upon the Minister, the Court concluded that the
appropriate standard of review was reasonableness simpliciter. That
analysis is, in my view, equally applicable to the present legislative scheme.
[8] In
Canada (Director of Investigation and Research, Competition Act) v. Southam
Inc., [1997] 1 S.C.R. 748 at paragraph 56, the Supreme Court held that
an unreasonable decision is one that "in the main" is not supported
by reasons that can stand up to a "somewhat probing examination".
Thus, a court reviewing a decision on the reasonableness standard must
ascertain whether the reasons given by the decision-maker support the
decision. A decision will be unreasonable only if there is no line of analysis
within the given reasons that could reasonably lead the decision-maker from the
evidence to the conclusion. A decision may be reasonable "if it is
supported by a tenable explanation even if this explanation is not one that the
reviewing court finds compelling". See: Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.
CONSIDERATION OF THE DECISION
[9] Mr.
Liang argues that the officer erred in his assessment that there were
insufficient humanitarian and compassionate considerations to warrant an
exemption from the statutory requirements. Specifically, Mr. Liang submits
that:
1. Under prior policies (specifically the Last Remaining Family
Member policy and policy J-88) the Minister recognized that humanitarian and
compassionate grounds existed in circumstances when a last remaining single son
or daughter was left alone, abroad. What was humanitarian and compassionate
then remains humanitarian and compassionate today, and family reunification
remains a cornerstone of immigration legislation.
2. The officer was satisfied as to the existence of emotional
dependency. Thus, Mr. Liang is a de facto family member in a situation
of dependence.
3. The officer should have recognized that Mr. Liang would not
have been excluded as a dependent from his parents’ application for landing but
for the fact that the university he attended was not a school recognized under
the regulations to the Act. The officer should also have considered that Mr.
Liang would have qualified as a dependent if the legislation that changed the
age of dependency had come into force at an earlier date.
4. The officer required the situation to be "so sorrowful or
pitiable" that it must be remedied by an extraordinary measure. By doing
so, the officer imported additional requirements and fettered his discretion.
[10] I
begin consideration of these arguments by restating that review on the standard
of reasonableness simpliciter does not permit the reviewing Court to
lose sight of the fact that it is the Minister who is obliged to weigh the
factors relevant to his decision. In Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 36, the
Supreme Court explained that to the extent it had reviewed the exercise of the
Minister’s discretion in Baker, the Court's decision "was based on
the ministerial delegate's failure to comply with self-imposed
ministerial guidelines, as reflected in the objectives of the Act,
international treaty obligations and, most importantly, a set of published
instructions to immigration officers".
[11] Mr.
Liang is correct that one of the stated objectives of the Act, found at
paragraph 3(1)(d) of the Act, is to see that families are reunited
in Canada. However, as the Supreme Court noted in Suresh in the passage
referred to above, a more important consideration for the officer was the
published instructions from the Minister to immigration officers.
[12] Chapter
4 of the Overseas Processing Manual (Chapter 4), dealing with applications
advanced on humanitarian and compassionate grounds, recognizes the existence of
de facto family members. They are persons who do not fall within the
family class but who, nonetheless, may merit humanitarian and compassionate
considerations because of their situation of dependence. Section 8.3 of
Chapter 4 provides the following guidance to officers:
De facto family members
De facto family
members are persons who do not meet the definition of a family class member.
They are, however, in a situation of dependence that makes them a de facto
member of a nuclear family that is either in Canada or that is applying to
immigrate. Some examples: a son, daughter, brother or sister left
alone in the country of origin without family of their own; an elderly
relative such as an aunt or uncle or an unrelated person who has resided with
the family for a long time. Also included may be children in a guardianship
relationship where adoption as described in R3(2) is not an accepted concept. Officers
should examine these situations on a case-by-case basis and determine whether
humanitarian and compassionate reasons exist to allow these children into Canada.
Consider:
• whether
dependency is bona fide and not created for immigration purposes;
• the level of
dependency;
• the stability of the
relationship;
• the length of the
relationship;
• the impact of a
separation;
• the
financial and emotional needs of the applicant in relation to the family unit;
• ability
and willingness of the family in Canada to provide support;
• applicant’s
other alternatives, such as family (spouse, children, parents, siblings, etc.)
outside Canada able and willing to provide support;
• documentary
evidence about the relationship (e.g., joint bank accounts or real estate
holdings, other joint property ownership, wills, insurance policies, letters
from friends and family);
• any
other factors that are believed to be relevant to the H&C decision.
[underlining
added]
[13] Notwithstanding
the existence of prior policies or guidelines, no argument was advanced on Mr.
Liang's behalf that the Minister was precluded from revising the instructions
given to officers. Section 8.3 of Chapter 4 continues to recognize that a
relative such as a son left alone in the country of origin may be in a
situation of dependence such that humanitarian and compassionate reasons exist
to allow their entry into Canada.
[14] In
the present case, the officer examined the evidence put before him, including
that relating to the level of dependency, the impact of separation, the
financial and emotional needs of Mr. Liang in relation to the family unit, and
the ability and willingness of the family in Canada to provide support. The
officer found the evidence did not support a positive decision and, in my view,
the officer gave tenable reasons for that conclusion. This precludes
intervention on judicial review by this Court.
[15] Turning
to the specific arguments directed on Mr. Liang's behalf, it is apparently true
that at one time the Last Remaining Family Member Policy provided that:
(3) Last Remaining Single Family
Members
(a) Special consideration on
humanitarian and compassionate grounds will be granted in all instances to the
following last remaining family members:
(i) a last remaining single son
or daughter, not sponsorable, who meets statutory requirements (health and
background) and who can satisfy a visa officer that he or she is alone abroad
and that the parents are in Canada as permanent residents or Canadian citizens
or are in the process of receiving immigrant visas;
[16] There
is no evidence to show that this policy remains in force.
[17] To
argue that what amounted to sufficient humanitarian and compassionate
considerations under prior guidelines must of necessity meet the current
guidelines is to say that in every case where an officer finds a last remaining
single son or daughter to be alone abroad when their parents are in Canada as
permanent residents (or as Canadian citizens or the parents are in the process
of receiving immigrant visas) an officer must find sufficient humanitarian and
compassionate considerations to exist. In my respectful view this does
violence to Parliament’s intent as evidenced in section 25 of the Act. It is
inconsistent with the granting of a broad discretion to the Minister in that
section to say that there are circumstances which in every case must lead to a
positive exercise of that discretion.
[18] It
is also true, as Mr. Liang submits, that the officer found the existence of an
emotional dependency between Mr. Liang and his family. However, some
dependency by itself is insufficient. Accordingly, the officer properly
considered the level of dependency and other relevant factors in accordance
with the ministerial guidelines.
[19] The
fact that the maximum age of a dependent child changed is not a factor that the
officer was obliged to consider. As the Minister argues, even if Mr. Liang's
parents had awaited the coming into force of the Act, Mr. Liang would never
have been of an age that allowed him to come within the definition of a
dependent child.
[20] Finally,
the officer did consider whether the situation was "so sorrowful or
pitiable" as to require relief. However, in so doing the officer was
turning his mind to the dicta in Chirwa, the case urged upon the officer
by Mr. Liang. Thus, the officer did not fetter his discretion.
[21] Some
time has elapsed since Mr. Liang's application was filed and I know of nothing
that would preclude a fresh application. If Mr. Liang remains a single person
it may be that with the passage of time a more compelling evidentiary record
can be prepared to accompany a new application. I am satisfied, however, that
on the record before him the officer's reasons withstand a somewhat probing
examination.
[22] Counsel
posed no question for certification and I am satisfied that no question arises
on this record.
JUDGMENT
[23] THIS COURT ORDERS AND ADJUDGES that:
1. The application for
judicial review is dismissed.
“Eleanor R. Dawson”
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