Docket: IMM-5089-11
Citation: 2012 FC 528
Ottawa, Ontario, May 3, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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CHUL HO PARK; KUMJA NOH
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Applicants
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and
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THI MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of a visa officer (Officer) at Citizenship and Immigration Canada (CIC), dated
16 May 2011, which refused the Applicants’ application for permanent residence
on humanitarian and compassionate (H&C) grounds under subsection 25(1) of
the Act.
BACKGROUND
[2]
The
Applicants are both citizens of South Korea. The Male Applicant is
57 years old and the Female Applicant is 56 years old. They live together with
and care for the Male Applicant’s mother (Song) in Canada. The
Applicants have two daughters who live in South Korea. The Male
Applicant also has five siblings in Canada.
[3]
The
Applicants came to Canada as visitors in November 2007 to help care for
the Male Applicant’s father after he had a heart attack. The Male Applicant is
his parents’ eldest child so, according to Korean custom, his father’s care
fell to him. The father died in September 2008, but the Applicants remained in Canada to help care
for Song.
[4]
While
they have been in Canada, the Respondent has granted the Applicants
several extensions of their visitor status. The Certified Tribunal Record (CTR)
shows they were granted an extension on 4 March 2011, which expired on 31
December 2011, but the CTR does not disclose their current status in Canada. In the time
he has been here, the Male Applicant has established a consulting business. The
Applicants attend a Christian church in Richmond Hill, Ontario.
[5]
On
18 September 2008, the Applicants applied for permanent residence on H&C
grounds (H&C Application). The Applicants drew attention to the care they
provide to Song, their social ties to the community, and the Male Applicant’s
successful business here. The Applicants also said they and their family would
face unusual and undeserved or disproportionate hardship if they had to return
to South
Korea.
They pointed out that none of the Male Applicant’s five siblings in Canada would be
able to care for Song. Before the Applicants came to Canada, the Male
Applicant’s parents lived alone. Since her husband has died, Song is unable to
live on her own. The Applicants also noted that Song is emotionally attached to
the Male Applicant.
[6]
The
Applicants provided updated submissions to the Officer on 15 March 2011 which
pointed out that one of the Male Applicant’s sisters is estranged from the
family. His second sister cares for her son, who has leukemia, and a daughter
who has heart disease. The Male Applicant’s third sister runs a gas station in Uxbridge,
Ontario.
The Applicants said that none of the sisters could care for Song. The
Applicants also said one of the Male Applicant’s brothers has a physical
disability and his other brother cares for his mother-in-law and travels
frequently on business; neither of them is able to care for Song. Only the Male
Applicant is able to care for his mother who relies on him.
[7]
In
their updated submissions the Applicants reviewed their establishment in Canada, again
drawing attention to the Male Applicant’s business. They also spoke about their
family in Canada, including
many nieces and nephews and said they do not have the same family ties in South
Korea as they have in Canada.
[8]
The
Officer considered the H&C Application and refused it on 16 May 2011.
DECISION
UNDER REVIEW
[9]
The
Decision in this case consists of the Officer’s letter to the Applicants
(Refusal Letter) and the completed Humanitarian and Compassionate Grounds
Application template (Notes), both dated 16 May 2011.
[10]
The
Officer reviewed the Applicants’ biographical information and immigration
history and then considered the merits of their claim. She noted that they
relied on the length of their time, establishment, and family ties in Canada as positive
factors in the H&C Application. The Applicants also relied on the hardship
they face if required to return to South Korea. The Officer noted the
Applicants bore the onus to demonstrate they would experience unusual and
undeserved or disproportionate hardship if they were not granted H&C
relief.
Establishment
[11]
The
Officer found the Applicants had not shown they would suffer unusual and
undeserved or disproportionate hardship arising from their establishment in Canada if they were
required to return to South Korea. She noted they had
been in Canada since
November 2007 and originally came here to care for the Male Applicant’s father.
She also noted the Male Applicant had started a successful business and the
Applicants had built up their savings in Canada.
[12]
The
Officer also found that the Applicants’ departure from Canada would not
cause their Canadian family unusual and undeserved or disproportionate
hardship. She noted that the Applicants provided care and support to Song,
which meant the Male Applicant’s other family members did not have to care for
her. The Officer found that balancing family and career obligations was a
challenge many Canadian families face. She was not satisfied that, if they were
required to leave Canada, other arrangements could not be made to care
for Song. Although it was beneficial for Song and the Applicants to live
together, their circumstances were not so exceptional that they required an
exemption from the ordinary requirements for immigration to Canada.
[13]
The
Officer acknowledged that having family close by is desirable, and that the
Male Applicant is the only member of his family who is not a Canadian resident.
However, she found the Applicants could re-unite with their two daughters in South Korea if they
returned there. Although leaving Canada would be difficult, the
Officer was not satisfied the difficulties they faced would amount to unusual
and undeserved or disproportionate hardship.
ISSUES
[14]
The
Applicants raise the following issues in this case:
a.
Whether
the Officer applied the proper test for an H&C Exemption;
b.
Whether
the Officer ignored their submissions;
c.
Whether
the Officer denied them the opportunity to respond;
d.
Whether
the Decision was reasonable;
e.
Whether
the Officer provided adequate reasons;
f.
Whether
the Officer breached their rights to life, liberty, and security of the person
under section 7 of the Charter of Rights and Freedoms being Schedule
B to the Canada Act 1982 (UK) 1982, c11 (Charter).
STANDARD
OF REVIEW
[15]
The
Supreme Court of Canada, in Dunsmuir v New Brunswick 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to a particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[16]
In Herman v Canada (Minister of Citizenship and Immigration) 2010 FC
629, Justice Paul Crampton held at paragraph 12 that the standard of review on
the question of whether an officer applied the correct test in assessing an
H&C application was correctness. Justice Michael Kelen made a similar
finding in Ebonka v Canada (Minister of Citizenship and
Immigration) 2009 FC 80 at paragraph 16, as did Justice Michel Beaudry
in Mooker v Canada (Minister of Citizenship and
Immigration) 2008 FC 518 at paragraph 15. The standard of review on the
first issue is correctness.
[17]
In Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (QL),
the Supreme Court of Canada held at paragraph 22 that procedural fairness
includes “an
opportunity for those affected by [a] decision to put forward their views and
evidence fully and have them considered by the decision-maker.” In addition, the opportunity to respond to a
decision-maker’s concerns is also an issue of procedural fairness (see Karimzada
v Canada (Minister of Citizenship and Immigration) 2012 FC 152 at paragraph
10 and Guleed v Canada (Minister of Citizenship and Immigration) 2012
FC 22 at paragraphs 11 and 12).
[18]
In
Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour) 2003
SCC 29, the Supreme Court of Canada held at paragraph 100 that “It is for
the courts, not the Minister, to provide the legal answer to procedural
fairness questions.” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review on
the second and third issues is correctness.
[19]
In Baker, above, the Supreme Court of Canada
held that, when reviewing an H&C decision, “considerable deference should
be accorded to immigration Officers exercising the powers conferred by the
legislation, given the fact-specific nature of the inquiry, its role within the
statutory scheme as an exception, the fact that the decision-maker is the
Minister, and the considerable discretion evidenced by the statutory language”
(paragraph 62). Justice Michael Phelan followed this approach in Thandal v Canada (Minister of Citizenship and Immigration) 2008 FC
489, at paragraph 7. The standard of review on the fourth issue is
reasonableness.
[20]
In Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme
Court of Canada held at paragraph 14 that the adequacy of reasons is not a
stand-alone basis for quashing a decision. Rather, “the reasons must be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes.” The adequacy of reasons, therefore,
is to be analysed along with the reasonableness of the Decision as a whole.
[21]
When
reviewing a decision on the standard of reasonableness, the analysis will be concerned
with “the existence of justification, transparency and intelligibility within
the decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[22]
With
respect to the breach of their Charter rights, it is well established that the
onus of proving a breach of a Charter right rests with the party asserting the breach
(see R v Kapp, 2008 SCC 41 (QL) at paragraph 66, R v RJS, [1995] SCJ No 10 (QL), at paragraph 280 and Law Society British Columbia v Andrews, [1989] 1 S.C.R. 143
(QL) at paragraph 40). This is a question of mixed fact and law within the
jurisdiction of the reviewing Court to be established on a balance of
probabilities.
STATUTORY PROVISIONS
[23]
The
following provisions of the Act are applicable in this proceeding:
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11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document required
by the regulations. The visa or document may be issued if, following an
examination, the officer is satisfied that the foreign national is not inadmissible
and meets the requirements of this Act.
…
25. (1) The Minister
must, on request of a foreign national in Canada who is inadmissible or who does
not meet the requirements of this Act, and may, on request of a foreign
national outside Canada, 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.
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11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
…
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente
loi, et peut, sur
demande d’un étranger se trouvant hors du Canada, 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.
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ARGUMENTS
The Applicants
Improper
Test
[24]
The
Applicants say the Officer did not apply the unusual and undeserved or
disproportionate hardship test when she considered their H&C Application.
They note that a previous version of CIC’s manual IP-5 – Immigrant
Applications made in Canada on Humanitarian and
Compassionate Grounds (Guidelines) says that
A positive H&C decision is an exceptional
response to a particular set of circumstances. An H&C decision is more
complex and more subjective than most other immigration decisions because
officers use their discretion to assess the applicant's personal circumstances.
Applicants must satisfy the decision-maker that
their personal circumstances are such that they would face unusual, undeserved,
or disproportionate hardship if required to apply for a permanent resident visa
from outside Canada.
[25]
Although
the version of the Guidelines the Applicants rely on is no longer current, the
Applicants rely on the previous version to say they meet both the unusual and
undeserved hardship and disproportionate hardship tests. On this basis, it was
unreasonable for the Officer to deny the H&C Application.
[26]
Contrary
to the Officer’s conclusion, the Applicants say their personal circumstances
are unique and show they face disproportionate hardship. They point to the
death of the Male Applicant’s father, their proximity to Song, and their
proximity to the Male Applicant’s siblings as factors which demonstrate the
disproportionate hardship they face. Had the Officer applied the correct test
for an H&C request, she would have granted the H&C Application.
Unreasonable Decision
[27]
The
Applicants say the Decision was unreasonable because the Officer took into
account irrelevant considerations and facts which were not in evidence. The
Officer said that
The balancing of the demands of family
needs and careers are challenges faced by millions of Canadian families. Many
Permanent Residence [sic] and Canadians are waiting patiently for their
family members to come to Canada through normal immigration
procedures to lend a helping hand for family needs.
[28]
The
experiences of other families were not relevant to what was at issue before the
Officer, which was whether the Applicants’ personal circumstances would lead to
hardship if their H&C Application was refused. When she considered the
experiences of other families, the Officer looked to irrelevant considerations.
[29]
The
Officer also relied on an assumption that the experience of other families is
similar to what the Applicants face. She pointed to no evidence which showed
this was the case, which means any findings based on this assumption were
unreasonable.
[30]
The
Officer also drew a negative inference from the experiences of other families.
They point to Tafilica v Canada (Minister of
Citizenship and Immigration) 2003 FCT 191, where Justice James O’Reilly
said at paragraph 17 that
Here, the Board made a general finding that the applicants lacked
credibility and concluded that the claimants had failed to establish “the core
of their claim.” Similarly, the negative inferences whose validity is
challenged by the applicants were at the core of the Board’s assessment of
their claims and were central to its conclusion regarding the applicants’
credibility. Where the Board has made clear errors in the course of arriving at
such a conclusion, judicial intervention is warranted. In my view, the evidence
referred to above, viewed reasonably, is incapable of supporting the Board’s
conclusion.
Inadequate
Reasons
[31]
The
Officer’s reasons are inadequate because they do not show how she reasoned from
the evidence before her to her conclusions. The Officer did not say why the
factors in their application do not amount to hardship. Although she
acknowledged all the factors they put forward, the Officer said that
I have considered all information
regarding this application as a whole. Having reviewed and considered the
grounds the [Applicants] have forwarded as grounds for an exemption, I do not
find they constitute unusual and undeserved or disproportionate hardship.
Therefore, I am not satisfied humanitarian and compassionate grounds exist to
approve this exemption request.
[32]
The
Officer’s reasons do not show how she assessed how Song depends on the Male
Applicant, which was a key aspect of the H&C Application. All the Officer
did was restate the evidence before her and add a conclusion, without showing
how she arrived at that conclusion. The Applicants refer to Sabbah Hermiz et
al v Canada (Minister of Citizenship and Immigration) IMM-1128-05
(unreported) where Justice Campbell relied on Law Society of New Brunswick v
Ryan 2003 SCC 20 (QL) at paragraph 55 for the proposition that a “decision
will be unreasonable only if there is no line of analysis within the given
reasons that could reasonably lead the tribunal from the evidence before it to
the conclusion at which it arrived.”
Breach of Procedural Fairness
[33]
The
Applicants also argue the Officer breached their right to procedural fairness
when she did not put concerns she had to them for their comment. In Muliadi
v Canada (Minister of
Employment and Immigration), [1986] 2 FC 205 (FCA), the Federal
Court of Appeal held at paragraph 14 that
Nevertheless, I think it was the officer’s duty
before disposing of the application to inform the appellant of the negative
assessment and to give him a fair opportunity of correcting or contradicting it
before making the decision required by the statute. It is, I think, the same
sort of opportunity that was spoken of by the House of Lords in Board of
Education v. Rice, [1911] A.C. 179 in these oft-quoted words of Lord
Loreburn L.C., at page 182:
They can
obtain information in any way they think best, always giving a fair opportunity
to those who are parties in the controversy for correcting or contradicting any
relevant statement prejudicial to their view.
[34]
Although
the Officer found that alternative arrangements could be made for Song’s care
if the Applicants left Canada, she did not give them the opportunity to
comment on this aspect of their claim. Rather than allowing them to address
this issue, they Officer held it against them.
[35]
In
a similar way, the Officer breached the Applicants’ right to procedural
fairness when she found that other families in Canada faced
similar circumstances. She did not put the information she based this finding
on to the Applicants, so she deprived them of the opportunity to respond to her
concerns.
The
Respondent
[36]
The
Respondent argues that the Decision should stand because the Officer applied
the correct test, considered the evidence before her, and came to a reasonable
conclusion. H&C relief is exceptional and discretionary and a refusal under
subsection 25(1) does not take any right away from an applicant.
Preliminary
Issue
[37]
The
Respondent objects in part to the Male Applicant’s affidavit on judicial
review. This affidavit contains information which was not before the Officer,
so the Court should disregard it.
Correct Test
[38]
The
Officer clearly set out the appropriate test: whether the Applicants would
experience unusual and undeserved or disproportionate hardship if she denied
the H&C Application. See Doumbouya v Canada (Minister of
Citizenship and Immigration) 2007 FC 1186. Although the Applicants have
said their application could only lead to one conclusion, this is not the case.
They only disagree with the way the Officer weighed the factors before her,
which is not an appropriate ground for judicial review.
Officer Considered all Positive Factors
[39]
The
Officer did not ignore any relevant aspects of the H&C Application. She
considered the Applicants’ establishment and family ties in Canada and the
support and care they provide to Song. Having considered all the evidence, the
Officer arrived at a conclusion which is consistent with the standard the Court
has articulated for H&C relief. As Justice Pelletier held in Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906 (QL), at
paragraph 12,
If one then turns to the comments about unusual or undeserved which
appear in the Manual, one concludes that unusual and undeserved is in relation
to others who are being asked to leave Canada. It
would seem to follow that the hardship which would trigger the exercise of
discretion on humanitarian and compassionate grounds should be something other
than that which is inherent in being asked to leave after one has been in place
for a period of time. Thus, the fact that one would be leaving behind friends,
perhaps family, employment or a residence would not necessarily be enough to
justify the exercise of discretion.
[40]
The
Officer considered all the relevant factors and arrived at a reasonable
conclusion, so the Decision should stand.
No Irrelevant Factors
[41]
The
experience of other Canadian families is relevant to an H&C application, so
it was not an error for the Officer to consider this. H&C applicants must
demonstrate that they face unusual hardship to ground a positive decision,
which necessarily entails a comparison with the experiences of others. As
Justice Eleanor Dawson held at in Ahmad v Canada (Minister of
Citizenship and Immigration) 2008 FC 646 at paragraph 49,
[…]
I accept the
submission of the Minister that the definition of hardship in the context of an
application for permanent residence on humanitarian and compassionate grounds
necessitates a comparison in that an officer must first consider what is usual
in order to determine what would be unusual. Contrary to the argument of the
applicants, this does not introduce a subjective question which involves comparisons
between an applicant and others, nor does it ignore the concept of
disproportionate hardship.
[42]
To
determine if the hardship the Applicants faced was unusual, it was necessary
for the Officer to consider what others in similar circumstances face.
No Breach of
Procedural Fairness
[43]
The
Officer’s statement that she was not satisfied that other arrangements could
not be made for Song’s care does not show she had a concern which the
Applicants needed to address. This was a finding of fact that the Applicants
were not the only people who could care for Song. The onus was on the
Applicants throughout to establish that this was not the case, and they did not
do so. The evidence before the Officer was that the Male Applicant has five
siblings in Canada in a closely
knit family. Had the Applicants wanted to provide additional evidence that they
were the only ones who could care for Song, they should have put it before the
Officer without waiting for her to ask.
No Evidence Alternate Arrangements Could
not be Made
[44]
The
Officer acknowledged Song’s age, health issues, and need for care and was aware
of the care the Applicants provided for her. However, the Applicants did not
show that other arrangements could not be made for Song’s care if they left Canada. The
evidence before the Officer was that Song had six children and many
grandchildren in Canada, all of whom formed a supportive family. The
Male Applicant’s sister, in her letter to the Officer, indicated that it would
be difficult, but not impossible, for her and the other siblings to care for
Song if the Applicants had to leave Canada. Although the Applicants said in their
submissions that the Male Applicant’s siblings would be unable to care for
Song, they provided insufficient evidence that this was the case. Further, they
did not show that outside care could not be arranged or that only care from a
family member would suffice.
ANALYSIS
[45]
The
Applicants allege a range of reviewable errors which they say render the
Decision either unreasonable or procedurally unfair. When examined against the
Decision as a whole the Applicants’ arguments are not convincing.
[46]
First
of all, it is obvious that the Officer applies the right test and finds the
Applicants have not satisfied her that they qualify for an exemption on
humanitarian and compassionate grounds. In the opening paragraph of her reasons
she points out that the
applicants bear the onus of satisfying
the decision-maker that their personal circumstances are such that the hardship
of not being granted the requested exemption would be i) unusual and undeserved
or ii) disproportionate.
[47]
The
rest of the Decision goes on to examine the Applicants’ personal circumstances
against this test and concludes with the Officer saying she does not find the
grounds put forward by the Applicants “constitute an unusual and undeserved or
disproportionate hardship.” The body of the reasons explain why. No reviewable
error arises from the test the Officer applied.
[48]
I
do not accept the Applicants’ assertions that the Officer failed to base the Decision
on their personal circumstances, drew unwarranted negative inferences, took
into account irrelevant circumstances, and did not consider the hardship of
abandoning the Male Applicant’s mother. My reading of the Decision suggests
entirely otherwise. All the Applicants are saying is that they disagree with
the Officer’s conclusion and they are attempting to dress up their disagreement
as a reviewable error. Disagreement is not a form of reviewable error. See Abdollahzadeh
v Canada (Minister of Citizenship and Immigration) 2007 FC 1310 at
paragraph 29 and Deol v Canada (Minister of
Citizenship and Immigration) 2009 FC 406 at paragraphs 70 and 71.
[49]
The
Applicants also say that the Decision lacks an inherent line of reasoning. The Decision,
however, clearly examines the grounds for hardship put forward by the
Applicants and explains why those grounds do not constitute unusual and
undeserved or disproportionate hardship. The reasons could not be simpler or
more coherent. There is no reviewable error on this issue.
[50]
The
Applicants also attempt to raise a procedural fairness issue by saying that the
Officer obviously had concerns about the situation of the Male Applicant’s
mother which he was obliged to raise with the Applicants in advance of making
the Decision.
[51]
The
Applicants misunderstand the jurisprudence on this point. The Officer examines
the situation of the Male Applicant’s mother carefully. He finds that the
Applicants have not provided sufficient evidence or argument to satisfy him
that, if they were to leave Canada “other adequate arrangements could not be
made for the case of the mother.”
[52]
The
onus of proof is on the Applicants to establish their case with sufficient
evidence. They simply failed to do that in this case. There is no obligation on
an officer to warn applicants in advance that their evidence is deficient. See Owusu
v Canada (Minister of
Citizenship and Immigration) 2004 FCA 38 at paragraph 8 and Sharma v
Canada (Minister of
Citizenship and Immigration) 2009 FC 786 at paragraph 8.
[53]
As
the Respondent points out, the Officer acknowledged Song’s age, health issues
and requirements for care. The Officer further acknowledged that the Applicants
have provided care and support for Song since arriving in Canada, which has
freed the Male Applicant’s five siblings from those responsibilities. However,
the Applicants did not show that, if they were required to leave Canada, other
adequate arrangements could not be made for Song’s care.
[54]
The
Respondent also points out that all of the Male Applicant’s siblings are
currently living in Canada. There is evidence that several of them live
close to Toronto, where Song
currently lives. Song also has many grandchildren in Canada. The
Applicants’ submissions suggest that the family is supportive and gathers
frequently and the siblings provide financial and emotional support to the
mother. None of this is challenged by the Applicants.
[55]
The
letter from the Male Applicant’s sister indicates that it would be “difficult”
— though not untenable — for the other siblings to care for the mother: “I know
taking care of our mother should be our first priority; however, we all have
our own families and businesses to take care of as well, making it difficult.”
[56]
Also,
as the Respondent points out, even if it is accepted that the Male Applicant’s
many relatives in Canada would be unable to care for Song, there is no
evidence in the record that care could not be arranged outside the family.
There is no evidence that the type of care Song requires can only be provided
by a family member, and not by a professional caregiver. There is also evidence
that the Male Applicant’s siblings are in a position to provide financial
support to Song. The Applicants do not challenge this.
[57]
The
Male Applicant’s affidavit on leave says that he and his siblings have
attempted to find a caretaker for his mother, but have encountered
difficulties. This submission was not made to the Officer. There is no evidence
in the record that was before the Officer of any attempts to arrange alternate
care for the mother. As the Respondent asserts, and as is well established in
this Court, judicial review must be based on the evidence that was before the
Officer when she made the Decision. There was no evidence before the Officer of
the family’s failed attempts to find a caretaker for Song, so the Court cannot
now rely on this evidence to assess the Decision.
[58]
I
can find no reviewable error with this Decision. Obviously, the Applicants are
disappointed and do not agree with the Officer’s conclusions. But it is not the
role of this Court to re-weigh the evidence and substitute its own conclusions
for those of the Officer. See Suresh v Canada (Minister of
Citizenship and Immigration) 2002 SCC 1 at paragraph 29.
[59]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
Application
for judicial review is dismissed.
2.
There
is no question for certification.
“James
Russell”
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