Date: 20120525
Docket: IMM-6890-11
Citation: 2012 FC 634
Ottawa, Ontario, May 25, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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HEATHER NATASHA
ALEXANDER
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
& IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant, Ms. Heather Alexander, is a citizen of St. Vincent and the Grenadines (St. Vincent) who came
to Canada in 1995 on a visitor’s visa
and never left. In a decision dated September 20, 2011 (the Decision), an
immigration officer (Officer) determined that the Applicant’s application to
apply from within Canada for
permanent resident status on humanitarian and compassionate (H&C) grounds
was denied. The Applicant seeks judicial review of that decision.
[2]
The Applicant’s immigration history is lengthy and
complicated. Beginning in 2007, the Applicant made several attempts to
regularize her status. An initial application to apply for permanent residence
in Canada on H&C grounds was refused
in November 2007. In 2008, she initiated a refugee claim that was denied in
October 2010. In April 2008, she submitted an application under the In-Canada
Spousal and Common-Law Partner Class. During an interview with immigration
officials in February 2010, the Applicant disclosed that her first marriage had
terminated in May 2008; the application was converted, in February 2010, to an
H&C application. The Applicant amended her H&C application further in
July 2011, when she advised officials that she was in a common-law relationship
with a second person with whom she had a child. On September 19, 2011, the
Applicant provided further submissions indicating that she and her son were in
therapy due to abuse from the common-law spouse, from whom she was now
separated.
II. Issues
[3]
The Applicant raises three issues in this case:
1.
Was the Decision unreasonable because the Officer did not
adequately analyse her establishment in Canada?
2.
Were the reasons inadequate?
3.
Did the Officer fail to take into account the Applicant’s
submissions on September 19, 2011?
[4]
For the reasons that follow, I conclude that the Decision
should stand.
III. Analysis
A. Standard of
review
[5]
The standard of review applicable to the first issue is
reasonableness (see, for example, Shah v Canada (Minister of Citizenship and
Immigration), 2011 FC 1269, [2011] FCJ No 1553; Inneh v Canada
(Minister of Citizenship and Immigration), 2009 FC 108, [2009] FCJ
No 111; Tameh v Canada (Minister of Citizenship and Immigration), 2008
FC 1235, [2008] FCJ No 1563; and Ahmad v Canada (Minister of Citizenship and
Immigration), 2008 FC 646, [2008] FCJ No 814).
[6]
The Applicant submits that the adequacy of reasons is
reviewable on a standard of correctness. I do not agree. In Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14, [2011] 3 S.C.R. 708, the Supreme Court of Canada held that
the adequacy of reasons is not a freestanding ground for quashing a decision.
Rather, the reviewing court must read the reasons together with the outcome to
determine if the outcome is within the “range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190). Thus, this
second issue is merely a subset of the first issue. The overarching issue is
whether the Decision is reasonable.
[7]
The third issue is one of procedural fairness. A failure to
take into account information that could have a material impact on the decision
is a reviewable error.
B. Issue #1:
Reasonableness of the Decision
[8]
The Applicant argues the Decision is unreasonable because
the Officer did not properly examine her establishment in Canada. In the Applicant’s submission, the Officer did not
consider her employment history, financial stability, or residence in Canada. He also did not consider her involvement in the community
or support from her family in Canada. Finally, the Applicant points to the lack of reasons with respect to the
Applicant’s father’s cancer treatment.
[9]
I do not find the Applicant’s arguments to be persuasive.
[10]
I first observe that the Officer considered each and every
aspect of the Applicant’s establishment in Canada. Moreover, the Officer explained, for each assertion, why the evidence
was not sufficient or did not lead to a conclusion that the establishment would
lead to undue hardship.
[11]
With respect to the reasonableness of the Decision and the
adequacy of the Officer’s reasons, it is helpful to review the following
relevant findings the Officer made:
·
the Applicant had not shown she could not receive
counselling in St. Vincent for the abuse she suffered;
·
the Applicant had not shown the support her Canadian family
provided her would not continue if she were returned to St. Vincent;
·
the Applicant had not shown she could not continue her
relationship with her father from St. Vincent; and
·
the Applicant had not shown she would be unable to be
employed and support herself in St. Vincent if she returned there.
[12]
On my review of the record, it is apparent the Officer was
familiar with the contours of the Applicant’s request for H&C relief and
his reasons show that he considered and weighed all the positive ingredients in
her application. The reasons clearly show that the Applicant failed to satisfy
the Officer of the unusual and undeserved or disproportionate hardship she
would suffer if returned and this was the basis on which he denied her request.
No reviewable error arises from either the adequacy of the Officer’s reasons or
his conclusion.
[13]
I also observe that the submissions from the Applicant were
brief. Beyond bald assertions that there would be hardship for her and her son,
there was simply no description of her alleged hardship in returning to St.
Vincent, from where she could apply to return to Canada in the usual manner.
[14]
As the Respondent notes, Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 at para 8, [2004] 2 FCR 635, teaches that “applicants have the onus of establishing the facts on which their claim
rests”. Although the Applicant says a positive determination based on her
establishment in Canada was inevitable,
this is simply not the case. The evidence as to her establishment in Canada was that she has family here, has worked here,
and has become connected to the community here. Inherent in the notion of
H&C applications is that hardship is a normal consequence of deportation
proceedings, and that relief is to be granted only when hardship goes beyond
the inherent consequences of deportation. The Officer considered all of the
evidence and reasonably concluded that the Applicant’s establishment would not
cause undue hardship.
C. Issue
#2: Alleged failure to consider September 19, 2011 submissions
[15]
The Officer received further submissions from
the Applicant on September 19, 2011. The Decision is dated September 20, 2011.
The Applicant submits that these submissions were ignored. I do not agree.
[16]
A review of the Decision demonstrates that the
September 19 submissions were considered. The
Officer specifically referred to these submissions at various parts of his
reasons. For example, at page four of his reasons, he notes that the Applicant
said in the updated submissions she worked for Bee Clean. Given that the
Applicant did not refer to Bee Clean in her original submissions, this
demonstrates that the Officer clearly reviewed and considered the updated
submissions. The Decision also contains references to the Applicant’s father’s
cancer, support from community and family members, the separation from her
abusive common-law spouse and her counselling. All material matters in the
September 19, 2011 submissions were addressed and considered.
IV. Conclusion
[17]
Despite the somewhat sympathetic situation that
is faced by the Applicant, I am not satisfied that the Court should intervene
in this case. The Decision is reasonable and was made with due regard to all of
the evidence. The Officer’s conclusion that the hardship the Applicant would
suffer was not unusual and undeserved or disproportionate was within the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law”.
[18]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
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