Kowalik v. Canada (Minister of Citizenship and Immigration), docket IMM-956-98

Date: 19990330

Docket: IMM-956-98

BETWEEN:

MIECZYSLAW KOWALIK

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

     REASONS FOR ORDER

SHARLOW J.

[1]      The applicant seeks judicial review of a decision of an immigration officer made pursuant to subsection 114(2) of the Immigration Act. The officer determined that there were insufficient humanitarian and compassionate grounds to process the applicant's permanent residence application from within Canada.

[2]      The applicant is a citizen of Poland. He came to Canada in 1982 to visit his sisters Loekodia Dabrowski and Kye Malachoski, both of whom are Canadian citizens. After his arrival, he was told that the Canadian government was allowing visitors from Poland to stay in Canada because of conditions in Poland at that time. He sought and was granted a Minister's permit and he has lived in Canada ever since.

[3]      The Minister's permit was renewed periodically until 1988. After that time little action was taken by either the applicant or the Minister with respect to the applicant's status. He was 58 years of age when he arrived in Canada and 65 when his most recent Minister's permit expired. He was 74 when the decision under review was made, and is now 75.

[4]      The record indicates that the applicant suffered hardship during the German occupation in Poland. He joined the Polish Army but deserted and fled to Italy in 1945. Upon his return to Poland in 1948 he was imprisoned for approximately a year. After his release he married and had two sons. He worked as a tailor to support his family. In the mid-1960s, when his sons were 14 and 15 years of age, his marriage broke down and his wife divorced him, obtaining custody of their two sons. He communicates with his sons occasionally but does not have a strong bond with them. The submission in support of his application says that he has "no friends or family in Poland whom he could contact and from whom to seek assistance."

[5]      The applicant lived with his sister Loekodia from his arrival in 1982 until the early 1990's, when she sold her house in Toronto to move to St. Catherines. She died in 1994. He has maintained a relationship with his other sister Kye, but he does not live with her. He lives alone in a rented apartment in Toronto. He has some ties to the Polish community and is a member of St. Casimir's Polish Catholic Church in Toronto.

[6]      The applicant has had only a short period of gainful employment in Canada. Initially he was hampered by his inability to learn English and his uncertain immigration status. In later years he was hampered by his advancing age and health problems. For most of his time in Canada he lived on social assistance, and he still does. The record includes some evidence that the applicant suffers from various medical conditions that may not be appropriately treated in Poland, and also a medical opinion that a forced return to Poland could cause the applicant physical and psychological harm.

[7]      The reasons for the adverse decision of the immigration officer are summarized in a form under the heading "officer's recommendation and rationale":

[8]      The purpose of subsection 114(2) is to give equitable relief from certain statutory conditions that a person seeking the status of permanent resident would otherwise be obliged to meet. This relief is discretionary and no one can claim it as of right. However, a person seeking relief under this provision is entitled to have the evidence fairly considered and the applicable legal principles correctly applied. In reviewing the record, the decision and the report quoted above, I have concluded that this right was denied to the applicant.

[9]      The officer's rationale, as quoted above, indicates that the decision under review was based primarily on the applicant's failure to achieve economic independence in Canada and his resulting reliance on social assistance. In the circumstances of this case, that is an unreasonable basis for an adverse decision under subsection 114(2). It defies reason to suggest that in the case of a 73 year old person who may not be in good health, the lack of economic independence can be a basis for denying consideration on humanitarian and compassionate grounds.

[10]      That is not to say that economic independence should be disregarded in the context of a request under subsection 114(2). It is a relevant factor. But the officer was wrong to treat it as determinative in this case. While the officer noted the applicant's age, he failed to consider how that fact affected the applicant's ability to find employment. And he seems to have disregarded completely the evidence regarding the applicant's health, even though it is relevant both to the applicant's ability to work and the potential risks to him of returning to Poland at this time.

[11]      The officer erred in other respects as well, stating that the applicant might be able to look to his sons in Poland for support, even though there is no evidence that is capable of supporting that statement and the only evidence bearing on the applicant's relationship with his sons would suggest the contrary. The officer also said that the applicant "appears not to have any close family ties in Canada," indicating ignorance of the evidence that the applicant had a second sister still alive in Canada.

[12]      I have also noted that the officer gave no consideration to the duration of the applicant's residence in Canada, and the possibility that some of the time that passed before his case reached this stage related to delays that were no fault of the applicant. That may not be a relevant factor in many cases, or even most cases. But in my view, given the age of the applicant now, his age when he first came to Canada, and his age when his last Minister's permit expired, it should have been considered relevant in this case.

[13]      This application for judicial review is allowed and the applicant's request for consideration under subsection 114(2) is remitted for reconsideration by a different officer.

[14]      I have concluded that this case does not involve a serious question of general importance.

                                 Karen R. Sharlow

                                     Judge

Ottawa, Ontario

March 30, 1999