Docket: IMM-4194-11
Citation: 2012 FC 236
Ottawa, Ontario, February 21,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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ARLINE TINDALE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks to set aside a decision of an Immigration Officer at
Citizenship and Immigration Canada (CIC), refusing the applicant’s application
under section 25 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA) for permanent residency
on humanitarian and compassionate (H&C) grounds. The CIC Immigration
Officer (the Officer) found that the applicant would not face unusual,
undeserved or disproportionate hardship by having to apply for a permanent
resident visa outside of Canada. For the reasons that
follow this application for judicial review is granted.
Facts
[2]
The
applicant is originally from Jamaica. Her first husband abused her. She fled from him to Canada taking only her
youngest son with her leaving behind several other children. She is estranged
from these children and claims she has no one to return to even though her
mother and seven siblings still live in Jamaica.
[3]
The
applicant has been in Canada for over twenty years without
legal status. Her attempts at regularizing her status are many and storied: in
October 2003, thirteen years after she entered the country, her application for
permanent residency on humanitarian and compassionate grounds (H&C
application) was refused; in September 2004, her refugee claim was refused; in
December 2004, her application for judicial review of the refugee claim
decision was denied; in November 2006, her first Pre-Removal Risk Assessment (PRRA)
application was decided negatively; in April 2007 her application for judicial
review of the PRRA decision was dismissed; in October 2009, her sponsor
withdrew the sponsorship application for permanent residency; in May 2011,
her second PRRA application was decided negatively, a decision in respect of which
she sought judicial review in Arline Tindale v MCI, 2012 FC 237
(IMM-4197-11); and in June 2011, her second H&C application was refused. Justice
James Russell granted a stay of the applicant’s removal pending judicial review
of the decision in the present case, and pending judicial review of a negative PRRA.
The decision in that matter was released contemporaneous with this decision.
Issue
[4]
The
issue in this case is whether the decision of the Officer to refuse the
applicant’s H&C application is reasonable per Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 SCR 190.
Analysis
[5]
It
is axiomatic that it is not the role of the Court to replace the findings and
decision of an officer with its own findings and decision but rather to review
the decision rendered by the officer to ensure that it accords with the law.
In consequence, the Court cannot disturb decisions by administrative
decision-makers provided these are reasonable, even if they are in themselves
decisions which the Court in exercising its discretion would not have reached.
[6]
The
Officer organized her analysis of the claim under the following headings:
hardship or sanctions upon return to Jamaica, family or personal ties that would create
hardship if severed, degree of establishment in Canada, establishment, ties or residency in any
other country, return to country of nationality. The applicant takes issue
with specific finding of the Officer under the “degree of establishment in Canada” analysis. That
finding is the following:
While
recognize that leaving Canada after more than twenty years may be difficult,
the evidence before me does not support that the applicant has become
established in Canada to the extent that her leaving Canada amounts to an
unusual and undeserved, or disproportionate hardship.
[7]
The
applicant argues that the above finding leaves it “…unclear what was required
to satisfy the officer that the Applicant was sufficiently established.”
[8]
The
applicant relies on Cobham v Canada (Minister of Citizenship &
Immigration),
2009 FC 585 for this argument. In Cobham, Justice John O’Keefe allowed
the application for an exemption on H&C
grounds from the normal requirement to apply for permanent residence from
outside of Canada
because “…the applicant’s degree of establishment is an important factor in
this case and therefore, the inadequacy of the reasons on this point bear on
the fairness of the overall decision.” Here, while the Officer identified some
of the relevant factors which bear on establishment, there is no analysis as to
why the conclusion was reached. Indeed, any fair and objective reading of the
reasons points in the opposite direction from the conclusion reached.
[9]
Decisions
on H&C applications are discretionary, not “arbitrary and procedurally
unfair.” As was held in Jurado Tobar v Canada (Citizenship and
Immigration),
2011 FC 1111:
It
is well-settled that the grant of an H&C application is reserved for
exceptional cases. As well, given the highly discretionary element in an
H&C decision, significant deference is afforded by this Court to the
decision and a wider scope of possible reasonable outcomes may be present: Inneh
v Canada (Citizenship and Immigration), 2009 FC 108 at para 13; and Del
Melo Gomes v Canada (Citizenship and Immigration), 2009 FC 98 at para 9.
To succeed on judicial review, an applicant must demonstrate that the officer
either ignored or misconstrued evidence, or made a reviewable error in the
analysis of factors relevant to the discretion.
[10]
In Adu
v Canada (Minister of
Citizenship & Immigration), 2005 FC 565 Justice Anne Mactavish held at
paras 14-20:
In
my view, these “reasons” are not really reasons at all, essentially consisting
of a review of the facts and the statement of a conclusion, without any
analysis to back it up. That is, the officer simply reviewed the positive
factors militating in
favour of granting the
application, concluding that, in her view, these factors were not sufficient to
justify the granting of an exemption, without any explanation as to why that
is. This is not sufficient, as it leaves the applicants in the unenviable
position of not knowing why their application was rejected.
[…]
In
contrast, in this case, the officer reviewed the evidence of establishment in Canada offered by the applicants in support of their applications,
and then simply stated her conclusion that this was not enough. We know from
the officer's reasons that she did not think that the applicants would suffer
unusual, undeserved or disproportionate harm if they were required to apply for
permanent residence from abroad. What we do not know from her reasons is why
she came to that conclusion.
[11]
This
reasoning applies with equal force in this case. There is a disconnect between
the factors indentified by the Officer and the conclusion reached, such that
the Court does not know why the Officer reached the conclusion that he did.
There is “no line of analysis” within the reasons that could reasonably lead
the Officer from the evidence before him to the conclusion: Law Society of New Brunswick v Ryan, 2003 SCC 20, [2003] 1
SCR 247, at para 55. In consequence, the application for judicial review is
granted.
[12]
There
is no question for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The
matter is referred back for re-determination before a different Officer at Citizenship
and Immigration Canada. No question for certification has been
proposed and the Court finds that none arises.
"Donald
J. Rennie"
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