Date:
20121220
Docket:
IMM-1497-12
Citation:
2012 FC 1517
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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MERISSA ROXANNE THOMAS
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a Citizenship and Immigration Canada officer (the officer) dated
January 23, 2012, wherein the applicant’s permanent residence application was
refused. This conclusion was based on the officer’s finding that there were
insufficient humanitarian and compassionate (H&C) grounds to warrant an
exception allowing the applicant’s permanent residence application to be made
from within Canada.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred back to Citizenship and
Immigration Canada (CIC) for redetermination by a different officer.
Background
[3]
The
applicant and her son are citizens of Grenada and have lived in Canada since April 2006, when they came to Canada on a temporary resident permit. They consider Canada to be their home. The applicant’s son has lived in Canada since he was three years
old. He is in school and the applicant is gainfully employed to support them.
[4]
The
applicant argues that leaving Canada would be very difficult for her son given
the different school system and lifestyle in Grenada and would create undue
psychological and emotional pain.
[5]
The
applicant filed her H&C application on July 8, 2011.
Officer’s Decision
[6]
In
a letter dated January 23, 2012, the officer informed the applicant her H&C
application had been rejected. Several pages of information were attached to
serve as reasons for the decision.
[7]
In
the attached form, the officer noted the applicant’s immigration details and
family members. The officer briefly summarized the application. The officer
went on to note the establishment factors offered by the applicant and her
submissions on the best interests of the child.
[8]
The
officer described the exemption sought by the applicant, an exemption from the
requirement of having to apply for permanent residence from outside Canada. The officer considered the hardship factors cited by the applicant, including
poverty and unemployment in Grenada. The officer found that the applicant had
not sufficiently indicated how her removal from Canada would amount to unusual
and undeserved or disproportionate hardship, as she had not demonstrated that
the poverty in Grenada meant she would be unable to get a job there or that her
skills obtained in Canada would not be of use there in her search for employment.
She had also not submitted sufficient information to demonstrate the severing
of social ties would cause her sufficient hardship. She lived in Grenada prior to coming to Canada and has four siblings there.
[9]
The
officer then turned to the applicant’s son. The officer acknowledged he had
been in Canada for five years and has a grandmother here who cares for him, who
submitted a letter indicating her attachment to both her daughter and grandson.
The officer acknowledged the applicant’s son might have a hard time adjusting
to life in Grenada and might miss his grandmother. However, the officer found
that it had not been demonstrated that this would be at a level which would
cause the applicant unusual and undeserved or disproportionate hardship.
Therefore, the officer rejected the application.
Issues
[10]
The
applicant submits the following points at issue:
1. Did the officer
fail to be alive, alert and sensitive to the best interests of the child?
2. Did the officer
make his conclusion unreasonably and without regard to the evidence?
3. Did the officer
fail to assess the establishment in Canada of the applicant and her son?
[11]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in denying the application?
Applicant’s Written Submissions
[12]
The
applicant submits that reasonableness is the appropriate standard of review.
[13]
The
applicant argues the primary basis for the H&C application was the best
interests of the child and that the officer was required to be alert, alive and
sensitive to those interests. Those best interests must be clearly identified
and defined, examined with a great deal of attention and given substantial
weight.
[14]
The
applicant argues the officer’s dismissive reasons demonstrated that the officer
was not alert, alive or sensitive to the best interest of the child. In form,
the officer improperly applied the “unusual and undeserved or disproportionate
hardship” test to the best interest of the child analysis. This is an error.
The officer also made no mention of the best interests of the child. In
substance, the officer also disregarded those interests by not acknowledging it
would be in the child’s best interest to avoid living in poverty. The officer
also mistakenly claimed that the applicant had two siblings in Grenada, when it fact her application indicated she had four siblings there.
[15]
The
applicant further argues the officer applied the wrong standard of proof to her
hardship claim, requiring her to demonstrate with certainty she could not find
work in Grenada. It was unreasonable for the officer to find that the applicant
could find suitable employment given the uncontradicted submissions on the
poverty in Grenada. The officer made no real assessment of the hardship due to
the severance of the applicant’s relationship with her mother, simply
dismissing it on the basis of insufficient evidence.
[16]
Finally,
the applicant argues the officer failed to properly assess the applicant’s
establishment evidence. The applicant’s H&C application set out how she met
criteria enumerated in the IP5 Manual. The officer made no assessment of the
level of establishment and therefore could not give positive consideration to
it. This is an error that renders the decision unreasonable.
Respondent’s Written Submissions
[17]
The
respondent agrees that reasonableness is the appropriate standard of review.
The denial of an H&C exemption is not the denial of any legal rights, but
simply the lack of being exempt from the normal requirements of applying for
permanent residence. The onus is on an H&C applicant to establish that she
would suffer undue, unusual or disproportionate hardship by having to apply
from outside Canada.
[18]
The
respondent agrees that the best interests of the child should be considered an
important factor, but they will not always outweigh other considerations. The
officer reasonably considered all the factors raised by the applicant,
including that the child had a close relationship with his grandmother. The
officer was not obliged to point to each document and is presumed to consider
all evidence. All the factors raised by the applicant on judicial review were
considered by the officer.
[19]
The
respondent argues that the fact that Canada is a more desirable place to live
and raise a child is not determinative of an H&C application. Otherwise,
anyone living illegally in Canada with children would have to be granted
permanent status for H&C reasons. The officer properly considered all the
factors relating to the applicant’s son.
[20]
The
respondent submits that the officer did not require the applicant to
demonstrate that she would not be able to find employment in Grenada. Rather, the officer stated that the existence of poverty in Grenada did not mean she would
not be able to secure employment.
[21]
The
respondent characterizes the applicant’s establishment argument as simply
disagreeing with the weight the officer assigned to the evidence. The degree of
establishment is not itself a determinative factor and is not sufficient in
establishing hardship.
Analysis and Decision
[22]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190). À
[23]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada is
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at paragraph 18, [2009] FCJ No
713; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193 at paragraph 14, [2009] FCJ No 1489; and De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717 at paragraph 13, [2010] FCJ No
868).
[24]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraph 59).
[25]
Issue
2
Did the officer err in
rejecting the applicant’s claim?
This Court has held that the
unusual, undeserved or disproportionate hardship test has no place in the best
interests of the child analysis (see Beharry v Canada (Minister of Citizenship and Immigration), 2011 FC 110, [2011] FCJ No 134 at
paragraph 11).
[26]
The
mere use of the words unusual, undeserved or disproportionate hardship does not
automatically render an H&C decision unreasonable (see Beharry above,
at paragraph 12). On a judicial review, the Court must determine whether the
officer assessed the degree of hardship likely to result from the removal of
the child from Canada and then balance that hardship against other factors that
might mitigate the consequences of removal (see Beharry above,
at paragraph 14).
[27]
In
this case, not only did the officer appear to apply the wrong test, but also
completely omitted mention of the proper test, that of the best interests of
the child.
[28]
Furthermore,
the officer’s finding was that “it is not demonstrated that this would be at a
level where it would cause the applicant unusual and undeserved or
disproportionate hardship” (emphasis added). Given that the officer had used
the term “the applicant’s son” elsewhere in the same paragraph, the language in
this sentence could give the impression that the officer was actually
considering the hardship that the applicant herself would endure as a result of
her son’s difficulties. However, I cannot determine from the reasons what the
officer meant. If the officer was looking at the applicant’s hardship, then
there is no assessment or analysis of the best interests of the child.
[29]
While
the officer did catalogue the issues raised by the applicant on the point of the
best interests of the child (his connection with the grandmother, his
establishment and the poverty in Grenada), it is very difficult to interpret
the reasons as being alert, alive and sensitive to those interests as they
pertained to the child.
[30]
Furthermore,
there is no indication in the reasons that the officer balanced the best
interests of the child against other factors, as required (see Beharry
above, at paragraph 14). Rather, they were simply rejected as insufficient.
[31]
It
is not a reviewing court’s role to reweigh evidence. In this case, however, it
is quite clear to me that the officer’s assessment of the evidence was the
result of the application of the incorrect legal test and even considering the
decision with all due deference, it cannot be saved from that error.
[32]
Given
my finding on this issue, I need not address the applicant’s arguments with
respect to the officer’s other findings.
[33]
Consequently,
I would grant the application for judicial review and remit the application to a
different officer for redetermination.
[34]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred to a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, examine
the circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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