Date: 20011114
Docket: IMM-5541-00
Neutral citation: 2001 FCT 1260
BETWEEN:
EDUVIGES DELFINADO
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of a decision of the Immigration Officer, Luz-Marina Nunez dated October 6, 2000, wherein she rejected the applicant's claim for landing based on humanitarian and compassionate grounds.
[2] The issues are: 1) whether the officer erred by failing to comply with a direction of the Court in a previous judicial review in this matter to base the redetermination on the applicant's primary role as caregiver and 2) whether the officer breached procedural fairness by drawing adverse inferences from the evidence without giving the applicant an opportunity to respond to her concerns which were not apparent on the face of the record.
[3] In the first judicial review, McGillis J. stated:
Counsel for the applicant submitted, among other things, that the immigration officer erred by ignoring or misapprehending the evidence concerning the applicant's role in caring for her mother. I agree with that submission. In my opinion, the uncontradicted and unchallenged evidence in the record indicates that the applicant plays a pivotal role in providing care and financial support for her mother. In the circumstances, the immigration officer either ignored or misapprehended the evidence in concluding that the applicant's care for her mother was "limited" due to her employment and that there was "insufficient evidence" her removal would be detrimental to her mother. Given that the applicant's role in caring for and in supporting her mother formed a central element of the application for humanitarian and compassionate relief, I am satisfied that the error made by the immigration officer in assessing that aspect of the application taints the entire decision.
[4] Both the officer and the Court in the first decision appear to have ignored a letter from Intercede to Citizenship and Immigration Canada dated July 15, 1999, which stated inter alia:
Ms. Delfinado is currently on [sic] the process of:
- looking for her own apartment in preparation for the arrival of her family,
- getting information at the Toronto Separate Catholic School so her two daughters could attend elementary school.
[5] All the evidence from the first hearing was before the Board on the second hearing. The officer in the second hearing stated, under the heading of Humanitarian and Compassionate Considerations:
While considering the Memorandum of Fact and Law, no 15 deals with just this issue of subject's ill mother who requires subject for emotional and financial support. There is no doubt mother is ill and requires the emotional support of subject but all evidence provided indicates emotional and financial support is granted by all other family members. What would happen to the financial support if subject brings hr [sic] own family and livers [sic] in her own apartment? Counsel indicates other family members in Canada can't really do much more than what they are doing as they work and have their own families. Will subject not have her own family when and if her husband and children join her? Will she then, not fall under the same category as those siblings who work and have their own families? All evidence indicates this would be the case.
[6] In section 6, Decision and Rationale, the officer discusses the lack of respect by the applicant for the Immigration Act and then continues:
Subject has strong family ties in Canada especially her mother who is ill and requires her support both financially and morally, but in my opinion subject has stronger ties in the Philippines, her husband and two children. Had subject's mother no other children in Canada and had subject no family of her own, my thought in this matter would probably be different. I am not satisfied the children here cannot offer the same care and support that subject is offering and has offered ever since her mother became ill, while sacrificing her own family life.
... It is to be noted as well that all family members in Canada have pledged their support financially.
[7] The question of the pivotal role played by the applicant in caring for and supporting her mother is a very important factor. I do not agree with counsel, however, that it is the only factor. The officer must properly assess the pivotal role and the question is did the officer in the case before me ignore evidence or was the officer simply weighing evidence. My concern about this case is that the officer, having accepted that the applicant played a key role in supporting the mother emotionally and financially, then infers that this key role could be replaced without having regard to the evidence before her. There was evidence to show that four of the other children had never provided any emotional support, and that the fifth child, the applicant's sister, had recently ended her marriage and was unable to continue providing financial assistance. I am unable to see anything in the evidence which provides that the other brothers and sisters could have filled the void left with the applicant's departure in the event the H & C application failed. The officer has made an unreasonable inference.
[8] It is also difficult to determine whether the officer was relying on the Intercede letter. In part of her remarks it appears that the officer is saying that the husband and her two children will remain in the Philippines. Yet she then goes on to say:
Had subject's mother no other children in Canada and had subject no family of her own, my thought in this matter would probably be different.
[9] If the husband and children are coming to Canada in the near future then this fact must be included as part of the analysis of the applicant's ability to look after her mother. The evidence before me makes it highly unlikely that the husband and the two children could come to Canada in the near future.
[10] The second issue raises an equally difficult problem and that is whether the officer provided fairness to the applicant in giving the applicant an opportunity to respond to her concerns. While the onus is on the applicant to provide satisfactory humanitarian and compassionate reasons, in this case the matter is more complex because of the fact that this is the second hearing. The first officer had interviewed the applicant but when the matter was returned to a different officer by the Court, the second officer decided not to proceed with an interview. Baker makes it very clear that one does not have to offer an interview in an H & C application. However, the second officer did send out a series of questions which were unrelated for the most part to the pivotal role of the applicant in the mother's care. There were questions which had some relationship to the issue and they are as follows:
It is noted you also have a brother residing with you. In what way does he provide to the care Of your mother.
It is also noted you did not provide an address for your sister Emiliana. Where is she residing.
...
Please provide a letter of employment from the sister you states [sic] helps support your mother while you are employed.
[11] The applicant responded to this letter and stated that her brother no longer lived with their mother and that he was deaf and unable to provide any assistance. The applicant further indicated that if sent back to the Philippines she would not be able to come back to visit her mother which would cause her severe hardship. Nor could she continue to support her. As stated earlier, the sister was now in a different position with respect to supporting the mother. Although the officer should have asked questions related to the support to be supplied by the applicant's brothers and sisters, there is no onus on the officer to do so. However, it is somewhat misleading to ask questions that are irrelevant to the main issue. I would not reverse the officer's decision on this ground alone, but when considered together with the officer's inference that there were other members of the family who could support the mother when there is no such evidence, there is a reviewable error. In my view, this matter must be returned to a different immigration officer for redetermination of the applicant's case.
[12] The application for judicial review is allowed. The decision of the officer dated October 6, 2000 is quashed and the matter is remitted to a different immigration officer for redetermination.
"W.P. McKeown"
JUDGE
TORONTO, ONTARIO
November 14, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5541-00
STYLE OF CAUSE: EDUVIGES DELFINADO
Applicant
- and -
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 17, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: WEDNESDAY, NOVEMBER 14, 2001
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. David Tyndale
For the Respondent
SOLICITORS OF RECORD: JACKMAN, WALDMAN & ASSOCIATES
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20011114
Docket: IMM-5541-00
Between:
EDUVIGES DELFINADO
Applicant
- and -
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
Respondent
REASONS FOR ORDER
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