Date:
20120814
Docket: IMM-7087-11
IMM-281-12
Citation:
2012 FC 983
Ottawa, Ontario,
August 14, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
|
|
|
IMM-7087-11
|
|
|
NORVIL BAILEY,
PRINCESS MARGARET
LINDSAY BAILEY, RAJAY BAILEY
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
AND BETWEEN:
|
|
|
|
|
|
IMM-281-12
|
|
|
NORVIL BAILEY,
PRINCESS MARGARET BAILEY LINDEY, RAJAY BAILEY
|
|
|
|
|
Applicants
|
|
|
and
|
|
|
|
MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
|
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
The
applicants seek judicial review of a decision of Senior Immigration Officer J.
Rolheiser (H&C Officer), dated August 24, 2011, refusing the applicants’
application for permanent residence on humanitarian and compassionate (H&C)
grounds (IMM-7087-11) pursuant to section 25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA).
Judicial review is also sought of a decision of an Inland Enforcement Officer
(Enforcement Officer), dated January 9, 2012, refusing to defer the applicants’
removal (IMM-281-12). For the reasons that follow the applications for
judicial review are dismissed.
Facts
[2]
The
applicants, Norvil Bailey (applicant), Princess Margaret Lindsay-Bailey (female
applicant), and their minor son Rajay Norvil Bailey (minor applicant), are a
family from Jamaica. The applicants also have a minor son born in Canada, Duray Norvil Bailey.
[3]
The
applicants entered Canada as temporary residents in January 2007. They made
claims for refugee protection in May 2007, which were refused on November 16,
2009. They submitted a Pre-Removal Risk Assessment (PRRA) application in
September 2010, and an H&C application in November 2010.
[4]
The
applicants’ PRRA application was refused in December 2010 and the decision was
delivered to them on January 18, 2011. They were informed that removal was
imminent. The applicants received a Direction to Report on June 1, 2011 with a
removal date of July 10, 2011. Two deferral requests were submitted, both of
which were refused. The applicants successfully obtained a stay of removal in
July 2011 on the basis of the second refusal. However, leave was ultimately
denied in that application for judicial review.
[5]
In
August 2011, the applicants’ H&C application was refused. Their removal
was scheduled for January 12, 2012. They requested deferral of removal on
January 6, and that request was denied on January 9. On January 11, the Court
stayed the applicants’ removal pending the outcome of the two applications
before this Court.
[6]
As
the removal date has long passed the order is spent and of no force. No
argument has been advanced which satisfies me that it would be in the best
interest of the administration of justice to hear and decide this issue: Borowski
v Canada (Attorney general), [1989] 1 S.C.R. 342. The application in respect
of the removal order (IMM-281-12) is therefore dismissed.
H&C Decision
[7]
In
the Decision and Reasons the H&C Officer reviewed the applicants’
establishment in Canada, the best interests of the children directly affected
by the removal, the applicants’ family ties in Canada and found that the
applicants had not established unusual and undeserved or disproportionate
hardship on any of these grounds.
[8]
Regarding
establishment in Canada, the H&C Officer noted that the applicants’
employment letters were from the previous year and there was no evidence of
their current employment status. The Officer also noted that the applicants
had only provided their 2009 income tax returns and those returns indicated
that the applicants had been on social assistance during that year. The
H&C Officer found that the applicants had not been financially
self-sufficient since arriving in Canada.
[9]
The
H&C Officer noted a letter from the applicant’s sister indicating her
support for their H&C application, but found that the letter did not
indicate whether this support was financial, which would not be binding in any
event. The Officer found little evidence that the applicants had integrated or
were active in the community.
[10]
The
H&C Officer noted the applicants’ submissions that the applicant’s sister,
as well as many cousins and friends, are in Canada, and the applicants and
their relatives in Canada provide each other considerable emotional support. However,
the H&C Officer found little evidence to substantiate this submission.
[11]
Regarding
the children, the H&C Officer found no evidence that the minor applicant
could not assimilate in Jamaica, enrol in school and make new friends there. The
H&C Officer also found no evidence that Duray could not accompany the
applicants back to Jamaica, although it was their choice whether or not to
leave him in Canada with relatives.
[12]
The
application was therefore refused.
Standard of
Review and Issue
[13]
The
remaining application, in respect of the H&C decision, concerns whether the
H&C Officer’s decision reasonable and whether the H&C Officer breached
the principles of procedural fairness.
[14]
The
substance of the H&C Officer’s decision is reviewable on a standard of reasonableness:
Da Silva v Canada (Minister of Citizenship and Immigration), 2011 FC
247, and matters of procedural fairness are reviewed on a standard of
correctness: Nizar v Canada (Minister of Citizenship and Immigration),
2009 FC 557.
Analysis
Was
the H&C Officer’s decision reasonable?
[15]
I
find that, while I have concern with aspects of the H&C Officer’s analysis
which may have been erroneous, the decision as a whole is reasonable and the
application must be dismissed.
[16]
The
applicants impugn the H&C Officer’s finding that they have not been
financially self-sufficient since arriving in Canada. They argue that the
relevant question was whether they were currently financially self-sufficient,
even if they were not upon first arriving. The respondent submits that this
finding was reasonably open to the H&C Officer.
[17]
In
my view, this finding by the H&C Officer was odd, or perhaps the choice of
language was ill-considered. Whether or not the applicants have always
been financially self-sufficient in Canada is not overly relevant to the
question at issue. An immigrant initially dependent on government assistance
could subsequently become sufficiently established in Canada such that requiring that person to leave would cause unusual and undeserved or disproportionate
hardship. Therefore, this finding on the part of the H&C Officer was
tangential at best, to the overall issue.
[18]
Secondly,
the Officer obliquely discounts the letters from the applicants’ employees. He
said there was no “current” information on file and thus impliedly rejected
them or accorded them little weight, even though they were but nine months old.
[19]
If
an Officer intends to discount or disbelieve evidence which is, on its face,
probative, and, in the H&C context, reasonably current, reasons should be
given.
[20]
Notwithstanding
that the decision strains the limits of reasonableness, it should be upheld. The
H&C Officer found that the applicants had provided little evidence of
establishment to the degree that would cause undue hardship, and a review of
the record supports that conclusion as reasonable. The applicants submitted
very little evidence of establishment and integration in Canada. All that was submitted were cryptic employment letters, some income tax returns, and a few
letters from friends. As the respondent submits, some degree of establishment
is expected and is, alone, insufficient to grant an H&C exemption. To
succeed, the applicants must demonstrate a significant degree of establishment,
and I find that the H&C Officer reasonably concluded that the applicants
did not do so in this case.
[21]
In
their submission regarding the issue of financial self-sufficiency, the
applicants implicitly argue that the H&C Officer erred by limiting the
relevant factors to be considered in the H&C analysis. The applicants
submit that the concept of hardship is broad and the Officer must assess any
hardship factor highlighted by the applicants. In my view, that is precisely
what the H&C Officer did. He considered whether the applicants’
establishment, family ties, or the best interests of the children warranted an
H&C exemption. While, as discussed above, the H&C Officer may have
misconstrued some aspects of the evidence (such as whether the applicants had
always been financially self-sufficient as discussed above), the Officer did
consider all the relevant factors advanced by the applicants and reached a
reasonable and justified conclusion.
[22]
In
any event, even if I were to accept that it was unreasonable to impugn the
applicants’ employment letters when they were less than a year old this finding
would not alter the conclusion that the decision as a whole was reasonable. Even
if the H&C Officer had accepted that the applicant and female applicant had
been continuously employed since 2009 and 2010, respectively, that finding
could not have moved the conclusion that the applicants would not suffer undue
hardship due to their establishment in Canada from the realm of reasonable to
that of the unreasonable. As well, the unexplained absence of 2008 and 2010
tax records was, appropriately, significant in the Officer’s mind.
Did
the H&C Officer breach the principles of procedural fairness?
[23]
The
applicants argue that the H&C Officer breached the duty of fairness owed to
the applicants by failing to seek updated submissions before rendering the
decision. I agree with the respondent that there is no general duty on the
part of an officer to seek further submissions or evidence from an applicant
before rendering the decision; rather, the obligation is on the applicant to
put forward all relevant evidence: Doe v Canada (Minister of Citizenship
and Immigration), 2010 FC 285.
[24]
The
applications for judicial review are dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that the
applications for judicial review be and are hereby dismissed. No question for
certification has been proposed and none arises.
"Donald J.
Rennie"
Email this Content