Date: 20120605
Docket: IMM-7911-11
Citation: 2012 FC 684
Ottawa, Ontario, June 5, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ALLA RYZAK
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a citizen of Israel who was born in Belarus on January
11, 1957. She entered Canada in April 1998 as a temporary resident. She
has been conditionally subject to deportation since November 1998. Her refugee
claim was abandoned in May 1999. An application for an in-Canada exemption on
humanitarian and compassionate grounds was denied in May 2001. An application
for judicial review of that decision was dismissed in July 2003. A second
application for an exemption was dismissed in February 2003 followed by a
negative Pre-removal Risk Assessment in February 2005. A third application for
an exemption was filed in July 2006 and a fourth in October 2011, which remains
pending.
[2]
The
decision to dismiss the third request for an exemption on September 16, 2011 is
the subject of this application for judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27. For the reasons that follow, the
application is dismissed.
DECISION UNDER REVIEW:
[3]
The
officer found insufficient evidence that the applicant’s
removal would result in unusual and undeserved or disproportionate hardship.
The officer considered the interests of the applicant’s Canadian daughter, who
was born on May 19, 2000 and is developmentally delayed. The daughter is
enrolled in a special education program and under treatment by a speech
therapist. The applicant is the sole caregiver for the child. The officer also
considered a psychological report about the problems that could result from
relocation. While he acknowledged that relocation to Israel would result in
some setbacks for the child, the officer found insufficient evidence that
similar services would not be available in Israel.
[4]
The
officer also considered that the applicant’s mother tongue is Russian and that
neither she nor her daughter speak Hebrew. Noting the large Russian-speaking
population in Israel which
includes a number of professionals, the officer found that there was
insufficient evidence that the child’s needs could not be met by
Russian-speaking service providers in Israel.
[5]
The
officer considered the applicant’s older daughter, who became a permanent
resident in 2002. He acknowledged the relationship between the applicant, the
younger daughter, the older daughter, and the older daughter’s children, but
found that the applicant and the younger daughter could maintain frequent
contact with the older daughter and her children by using various communication
media such as voice and visual services over the internet and email as well as
social networks. The officer recognized that this would be difficult.
[6]
Although
the officer noted the applicant’s clean civil record, he also noted that such a
clean record is expected from all members of society regardless of immigration
status.
[7]
The
officer considered the applicant’s reliance on social assistance, which she
collected in 1998, in 1999, and continuously from 2000 until October 2010, when
she was transferred to the Ontario Disability Support Program, which she
continues to collect. He noted the applicant’s statement that she had worked as
a chef in the past when she had a work permit, but found that employment
details were lacking. Her application for a work permit was refused in 2006.
[8]
The
officer considered the applicant’s statement that she is unable to work because
she is caring for her daughter and that she will find a job as soon as her
status is regularized. He found little evidence to suggest that arrangements
had been made for her daughter’s care if the applicant does find work. He also
noted that the applicant was on social assistance before her daughter was born
and during periods in which she had a valid work permit. Finally, the officer
noted that the applicant had worked for several years in Israel and therefore
found insufficient evidence that she would not be able to provide for herself
and her daughter if she relocated to Israel.
[9]
The
officer considered the claim that the applicant had nowhere to live if she
returned to Israel, but found
that the inconvenience of securing new accommodations did not amount to
hardship. The officer also considered the applicant’s volunteer involvement
with an unnamed religious institution and her periodic attendance at English
second language classes, as well as the history of unrest in Israel, but found
that these did not establish undue and unusual or disproportionate hardship.
ISSUE:
[10]
The
sole issue is whether the officer’s decision is reasonable.
ANALYSIS:
Standard of
review
[11]
Applications
for exemptions from the visa requirement are reviewable on the reasonableness
standard: Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18. Reasonableness
in this context does not mean what the Court considers fair. The Court must consider
the justification, transparency and intelligibility of the decision-making
process, and whether the decision falls within a range of possible acceptable
outcomes which are defensible in light of the facts and the law: Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 90 at para 47; and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 59.
Is the
decision reasonable?
[12]
As
stated by Justice David Stratas in his paper Some Thoughts on Advocacy in
Judicial Review Proceedings presented at the Law Society of Upper Canada
conference “The Six Minute Administrative Lawyer 2011”, Toronto, February
24, 2011, the courts are constrained by the reasonableness standard. He went on
to say:
We cannot interfere just because we think the tribunal should have
accepted the argument. We cannot interfere just because we think the tribunal
reach the wrong result. Instead, counsel's burden under the reasonableness
standard is higher. Counsel must show us that the tribunal reached a result
that was completely outside the range of outcomes available to the
tribunal. [Emphasis in the original]
[13]
In
this matter counsel for the applicant was unable to provide the Court with much
assistance. The
applicant’s written submissions are exceptionally brief. She submits that the
officer failed to fully consider the evidence before him and that he “appeared
to find every reason possible to deny the application.” She relies on the
Court’s decision in Yu v Canada (Minister of
Citizenship and Immigration), 2006 FC 956 and the affidavit submitted
on her stay motion in November 2011, which was successful.
[14]
At
the hearing, counsel quoted a sympathetic comment regarding the merits of the
applicant’s case made by the judge who granted the stay. It was inappropriate
for counsel to have done so. The comment was made per incuriam in the
context of a motion in which the Court has an equitable jurisdiction that it
does not have on an application for judicial review. On a stay motion the Court
has a broad discretion to find that the three elements of the test are met. On
judicial review, the Court must make an independent decision on the merits of
the application applying the standards of correctness and reasonableness as defined
by the jurisprudence. While empathy for an individual’s situation is
presumptively a consideration in determining whether the hardship incidental to
deportation is unusual, undeserved and disproportionate; the Court cannot rely
on empathy to find reviewable error when the decision is within the range of
acceptable outcomes.
[15]
Here,
the
applicant has not identified any issues or evidence that pre-date the decision
and that the officer failed to consider. The interests of the applicant’s child
were fully considered, including the report from Dr. Pilowsky. All of the
evidence was referenced and analyzed in the officer’s decision, and there is no
merit to the applicant’s argument that it was not fully considered. That is an
argument going to the weight to be given to the evidence, a decision to be made
by the officer and not by the Court on review.
[16]
It
was reasonable for the officer to rely on 2010 and 2011 letters from the
applicant’s daughter’s school rather than a 2005 psychological report. Nothing
in the application record or the stay motion record contradicts the officer’s
finding that there was insufficient evidence that the daughter would not have
access to the necessary support in Israel, a modern developed state with advanced
educational and other services.
[17]
The
case of Yu, above, relied upon by the applicant, dealt with an
application made outside of Canada by a failed skilled worker applicant who had
de facto family members in Canada willing to support her. The officer’s
decision was found to be unreasonable because it failed to consider the close
bond between the applicant and her twin sister, who was a Canadian permanent
resident, as well as the fact that the twin’s cancer had gone into remission
largely because of the applicant’s care. The decision had made no mention of
any of the relevant humanitarian and compassionate factors. That is not the
case here.
[18]
Although
the applicant’s affidavit from the stay motion claims that it was unreasonable
for the officer to assume that her daughter speaks Russian as well as English,
the officer obtained that information from the submissions provided. Moreover,
there was no evidence to indicate that the applicant could not obtain services
in English in Israel.
[19]
With
respect to establishment, the applicant failed to explain her lengthy reliance
on social assistance. In her submissions she states that she cannot work
because she must care for her daughter. Given the applicant’s lengthy history
of taking social assistance payments even prior to the birth of her daughter,
it was reasonable for the officer to consider that this explanation was
inadequate.
[20]
In a
post-decision letter the applicant states that she cannot work because she
suffers from chronic pain and other health problems related to her weight. But
that explanation was not before the officer. Evidence in the record as to the
reasons why the applicant is now on Ontario Disability Support also post-dates
the decision. It is trite law that in a judicial review application the only
material that should be considered is the evidence that was before the decision
maker, save in certain narrow exceptions none of which are applicable here: Canadian Tire Corporation v Canadian Bicycle Manufacturers
Association, 2006 FCA 56 at para 13.
[21]
Applicants
for an exemption on humanitarian and compassionate grounds bear the burden of
providing sufficient evidence to justify their request. This was the
applicant’s third request and it is reasonable to assume that she was aware of
her burden. Despite this, and despite being represented by counsel throughout,
the applicant did not provide sufficient evidence of the hardship or other
difficulty that she would experience in Israel. In these circumstances, the officer’s decision
was well within the range of possible, acceptable outcomes which are defensible
in respect of the facts and law.
[22]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed. No question is certified.
“Richard
G. Mosley”
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