Date: 20091029
Docket: IMM-5309-08
Citation:
2009 FC 1108
Ottawa, Ontario, October 29, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ROSHAN LAL SHALI
NANCY SHALI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of the negative decision of an officer (Officer), dated November 9, 2008
(Decision), which refused the Applicants’ application for permanent residence
within Canada on humanitarian or compassionate grounds pursuant to section
25(1) of the Act.
BACKGROUND
[2]
The
Applicants, Roshan and Nancy Shali, are citizens of India who applied for
permanent residence status from within Canada based on humanitarian and
compassionate (H&C) grounds. The Applicants’ claim is based on hardships
they would suffer upon their return to India while
waiting for the processing of their application.
DECISION UNDER REVIEW
[3]
The
reasons given by the Officer to support a negative finding include: the
sponsorship by the Applicants’ son can be made while the Applicants are outside
the country; the Applicants are not well-established in Canada; and the
Applicants have both a daughter and a brother residing in India. Also, the
Applicants can hire help to assist them in India. On the positive
side was the sponsorship by the Applicants’ son.
[4]
While
the Officer considered family reunification as a factor, she found that the
travel history of the Applicants and their ability to obtain visitor’s visas
for travel to Canada showed that it was reasonable to expect that such travel
would continue to occur if the Applicants were required to return to India. The Officer
noted that the Applicants have previously resided with either their brother or
their daughter in India, even though affidavits on file show that
neither alternative is now available to them. The Officer also noted that in the
past the Applicants have hired help, and that they could continue to hire help
when they return to India.
[5]
While
the Officer recognized that some challenges would exist for the couple upon
their return to India, she found that the hardships were not unusual
and undeserved or disproportionate. Moreover, the Officer was not satisfied
that the lengthy processing times overseas warranted an exemption from the
legislative requirements.
ISSUES
[6]
The
issues raised by the Applicants are as follows:
1)
Did the Officer err
by overlooking the emotional needs of the Applicants and the emotional support
that their son would be providing to them?
2)
Did the Officer err
by finding that the Applicants’ daughter and sibling who resided in India were factors that do not support a positive decision?
3)
Did the Officer err
by not providing any analysis of why the evidence by the Applicants’ daughter
and brother was rejected or did not weigh more heavily in her assessment?
4)
Did the Officer err
by inferring that reliable help would be available to the Applicants in the
future?
5)
Did the Officer err
by placing too much weight in the past travel history of the Applicants while
overlooking their current circumstances?
6)
Did the Officer err
by stating that the lengthy processing times overseas are not sufficient to
warrant an exemption?
7)
Were the Officer’s
reasons adequate to satisfy the duty of procedural fairness?
STATUTORY PROVISIONS
[7]
The
following provision of the Act is applicable in these proceedings:
|
Humanitarian and compassionate
considerations
25. (1) The Minister shall, upon request of a
foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or 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 obligation of
this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations.
|
Séjour pour motif d’ordre humanitaire
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, de sa propre initiative ou sur demande d’un
étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut
lui octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des circonstances d’ordre
humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de
l’enfant directement touché — ou l’intérêt public le justifient.
|
STANDARD OF REVIEW
[8]
Questions of procedural
fairness and natural justice such as the provision of adequate reasons are
reviewed on a standard of correctness. See Salman v. Minister of Citizenship
and Immigration, 2007 FC 877 at paragraph 9.
[9]
The
standard of review to be applied when determining whether adequate grounds
existed to allow the
Applicants to apply for permanent residence within Canada is reasonableness: Barzegaran v. Canada (Minister of Citizenship and Immigration),
2008 FC 681, at paragraphs 15-20.
[10]
In paragraph 44
of Dunsmuir the Supreme Court of Canada recognized that, although the
reasonableness simpliciter and patent unreasonableness standards are
theoretically different, “the analytical problems that arise in trying to apply
the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review”.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[11]
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”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene 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.”
ARGUMENTS
The Applicants
Overlooked
emotional needs
[12]
The
Applicants submit that the Officer overlooked their emotional needs because she
did not note any of the emotional factors in her assessment. The Applicants had
provided the Officer with evidence of the emotional turmoil that a return to India would cause,
including feelings of helplessness, worry and depression. The Applicants submit
that since the Officer included the factors that she considered relevant to the
assessment in her notes and other concerns were not noted, the concerns not
mentioned must have either been overlooked or considered irrelevant. The
Applicants submit that the Officer erred either by overlooking these considerations,
or by determining that they were not relevant to her assessment.
No
help available
[13]
The
Applicants submit that the Officer erred in determining that the presence of
the Applicants’ brother and daughter in India supported a
negative decision. The affidavits supplied by the Applicants’ daughter and
brother demonstrate that the Applicants would not be able to rely on these relatives
for help upon their return to India.
[14]
The
Applicants submit that the Officer should have explained why she did not accept
the evidence that supported a positive decision, especially since the
Applicants relied on the affidavits to show that they needed to stay in Canada to make
their application. The Applicants suggest that such evidence required analysis
by the Officer, but that such an analysis did not occur. The Officer should
have provided an adequate analysis that demonstrated how she reached her
conclusion.
[15]
The
Applicants say that the reasons given by the Officer in this instance were
inadequate. The Applicants cite and rely on Via Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 at paragraphs 21 and 22, for the
position that the obligation to provide reasons is not satisfied by simply
repeating the evidence and submissions of a party and then stating a
conclusion. A decision maker must set out findings of fact and the principle
evidence upon which findings are based before stating a conclusion. It is
necessary for reasons to address the major points at issue in any case.
Moreover, the decision maker’s reasoning process must be set out, and must demonstrate
consideration of the relevant factors.
Officer erred
in finding help is available
[16]
The
Applicants submit that the Officer erred in inferring from the evidence
provided that it was reasonable to believe that the Applicants could find
reliable help and assistance upon their return to India. The
Applicants say there is no evidence to support this inference. Rather, the
evidence suggests that the help that the Applicants found was unreliable, and
was “more of a liability than a help.” The Applicants suggest that the Officer could
have drawn the opposite conclusion based on the same evidence.
Officer
erred in focusing on travel history
[17]
Although
the Applicants concede that they would likely be issued visitor visas, the
Applicants contend that the Officer’s reliance upon this factor overlooks the
entire purpose of their application. Simply put, the Applicants’ needs are no
longer being met by yearly visits to Canada. The Officer erred in giving great
weight and consideration to this factor. In so doing the Officer misconstrued
the relevancy of this evidence.
Officer erred in finding that long
processing times do not warrant an exemption
[18]
The
Applicants submit that, taken alone, long waiting times would not warrant a
statutory exemption. However, where hardship is alleged, the Applicants say
that the length of time to process the application ought to be considered. The
Applicants contend this is so because the longer they spend in India, the longer
they will have to endure the hardship they fear. Moreover, the Applicants
suggest that since they are both suffering from poor health, longer processing
times could make their hardship more severe if their conditions deteriorate.
[19]
The
Applicants submit that since the processing time in this application will cause
suffering to them, it should be a relevant factor for consideration. In support
of this proposition, the Applicants cite cases where this principle has been
considered in stay applications: Harry v. Canada (Minister of
Citizenship and Immigration), 2000 CANLII 16418 at paragraph 17, and Boniowski
v. Canada (Minister of Citizenship and Immigration), 2004 FC 1161.
[20]
The
Applicants suggest that while the contexts of these cases are different, the
principle is the same: that excessive hardship, or irreparable harm, ought to
be a relevant factor for consideration. Accordingly, the Applicants submit that
the Officer erred in finding that a lengthy processing time was not a relevant
consideration.
The Respondent
[21]
The
Respondent submits that, pursuant to subsection 25(1), the Officer has full
authority to determine what constitutes humanitarian and compassionate grounds and
that the Decision requires considerable deference from the Court.
[22]
Moreover,
the Respondent submits that the H&C process is not designed to eliminate
all hardship, but rather to grant relief from “unusual and undeserved or
disproportionate hardship.” The Respondent contends that this is a high
threshold to meet: Irmie v. Canada (Minister of Citizenship
and Immigration), 10
Imm. L.R. (3d) 206, Owusu v. Canada (Minister of Citizenship
and Immigration), 2004 FCA 38. Moreover, a granting of relief under subsection
25(1) is an exceptional remedy based on the discretion given to the Minister.
[23]
The
Respondent submits that even though the Applicants’ plight may evoke sympathy,
this alone is not enough for H&C relief. Rather, the onus lies upon the
Applicants to demonstrate to the Officer that the statutory requirement to
obtain a visa from outside of Canada would result in unusual and underserved or
disproportionate hardship.
[24]
Even
if the Court would have decided the case differently, the Respondent contends
that as long as the Officer examined the evidence and came to an acceptable and
defensible conclusion, her Decision should be insulated from judicial review.
Evidence was
considered
[25]
The
Respondent contends that the discretionary authority of an immigration officer
includes the right to determine the weight given to particular factors and to
the documentary evidence provided. There is no evidence in this case to suggest
that the Officer failed to consider the “emotional factors,” as submitted by
the Applicants. The Officer was not required to specifically reference that she
considered the emotional hardship of the Applicants. Rather, the question of
emotional needs is to be considered as part of the overall assessment of the
hardship faced on return. If the reasons as a whole indicate that the Officer
was alive to the issue then the Decision cannot be unreasonable: Quiroa v.
Canada (Minister of Citizenship and Immigration), 2007 FC 495.
[26]
In
the case at hand, the Officer clearly noted that she had considered all the
information regarding this application as a whole, and reviewed the possible grounds
for exemption. Moreover, the Officer also read and considered the affidavits
provided by the Applicants’ daughter and brother, and understood that they
would no longer be able to care for the Applicants. The Officer was alive to
the issue that the Applicants would require assistance in their daily lives.
[27]
The
Respondent suggests that the emotional component is inherent in the assessment
undertaken by the Officer in her consideration of the Applicants’ “hardship of
having to live alone in India,” which the Officer noted was the ground
advanced by the Applicants in their application. The Officer clearly had this
issue in mind when making her Decision.
[28]
Regarding
the issue of domestic help, the Officer acknowledged that while some of the Applicants’
past hired help had been unreliable, it was “reasonable to believe that they
would be able to find reliable help to assist them with their chores should
they be required to return to India.” The Respondent submits that this
conclusion was not unreasonable. It cannot be said that a presumption that such
help is available is an unrealistic expectation.
[29]
Moreover,
the Officer recognized that while the Applicants may face challenges due to Ms.
Shali’s partial loss of mobility, such challenges were not hardship that rose
to the level of being unusual and undeserved or disproportionate. The relief
under subsection 25(1) is an exceptional remedy that is dependent on the
Minister’s discretion.
Detailed reasons are not
required
[30]
The
Respondent disputes the allegation that the Officer erred by not providing
detailed reasons as to why the affidavit evidence of the Applicants’ daughter
and brother did not weigh more heavily in the Officer’s assessment and Decision.
[31]
While
the Applicants cite and rely on Via Rail to show that detailed reasons
are necessary, the Respondent submits that the Court has rejected the
application of Via Rail in the context of an H&C decision: Paz v.
Canada (Minister of Citizenship and Immigration), 2009 FC 412. Via Rail
did not consider the discretionary decisions of a delegate of the Minister; it
dealt with decisions made by an administrative tribunal. As such, it is not
reasonable to require administrative officers to give as detailed reasons for
their decisions as would be required by an administrative tribunal: Paz.
When notes are the method used to provide reasons, the threshold for adequacy of
reasons is fairly low (see for example, Paz at paragraph 27, in general Ozdemir
v. Canada (Minister of Citizenship and Immigration), 2001 FCA 331 and Jeffrey v. Canada
(Minister of Citizenship and Immigration), 2006 FC 605 at paragraph 15.
[32]
The
Officer’s reasons acknowledge the affidavit evidence provided and explain how this
evidence factored into her Decision. Although the existence of their daughter
and brother in India is listed as being a factor not supporting a
positive decision, the reasons demonstrate that the Officer considered and
weighed the affidavit evidence regarding the Applicants’ return to India.
Accordingly, the Officer weighed the existence of family members who would no
longer be able to give support and accommodation to the Applicants against the
Applicants’ ability to hire domestic help. The Officer then determined that the
challenges that would be faced by the Applicants in this instance would not
amount to unusual or undeserved and disproportionate.
[33]
Even
if the Applicants’ daughter and brother are no longer able to provide
accommodation to the Applicants, it does not mean that their existence should
not be considered when determining “factors related to country of origin.” The
Applicants have spent most of their time in India living with
either their daughter or their brother. This is a factor related to the country
of origin. The Officer did not err in considering this evidence in both
contexts in which it arose.
Processing
Times
[34]
The
Respondent submits that the Applicants are taking issue with the weight the
Officer gave to processing times in India. There was no evidence
before the Officer as to processing times for India. While the
Officer considered the existence of “lengthy processing times overseas,” the
Officer came to the conclusion that, in this case, it did not constitute a
factor which was sufficient to warrant a statutory exemption.
[35]
While
the Applicants attempt to compare hardship in an H&C application to
irreparable harm on a stay motion, the Respondent submits that such a parallel
cannot be drawn. The determination of irreparable harm on a stay motion depends
on the application of a test in which a “serious likelihood [or] jeopardy to
the applicants’ life or safety” must be demonstrated: (Golubyev v. Canada (Minister
of Citizenship and Immigration), 2007 FC 395 at paragraph 12. Clearly, this
is not the case with the Applicants.
[36]
In
sum, the Respondent submits that the Officer considered all relevant factors in
reaching her Decision and did not ignore any evidence. Moreover, the Officer
exercised her discretion in a reasonable manner and came to a reasonable
conclusion.
ANALYSIS
[37]
The
facts of the present case invite considerable sympathy. It is entirely
reasonable that the Applicants, who are well into their 60s, should wish to
remain with their son in Canada and should wish to resist the
inconvenience, hardship and emotional turmoil that will arise if they are
forced to return to India pending a determination of their permanent
residence application. However, sympathy and reasonableness are not sufficient
to justify interference by this Court. This is because the H&C process is
fact-driven and Parliament has decreed that H&C officers should have a
broad discretion to determine whether applicants will suffer unusual and
underserved or disproportionate hardship.
[38]
As
the Respondent points out, the H&C process is not designed to eliminate any
kind of hardship; relief is only available for “unusual and undeserved or
disproportionate hardship.” See Owusu at paragraph 8; Ahmad v. Canada
(Minister of Citizenship and Immigration), 2008 FC 646 (CanLII), at
paragraph 49. The onus is on the Applicants to satisfy this test and the
discretion belongs to the Minister and his delegates and not the Court. The
Court cannot intervene merely because it has sympathy for the plight of the
Applicants or even because it would have reached a different conclusion on the
facts.
[39]
The
Applicants have raised several grounds to justify interference by the Court
but, in the end, they are asking the Court to re-weigh the evidence and reach a
conclusion that favours them. The Court simply cannot do this.
Overlooking the Emotional Needs of the
Applicants and the Emotional Support Available from their son in Canada
[40]
The
emotional needs referred to by the Applicants are fears of living alone in
India, feelings of helplessness and worries about the future, and feelings of
hopelessness because there is no one to go back to in India, while their son is
available to take care of them in Canada.
[41]
These
are subjective feelings of the Applicants. They do not refer to medical issues
although, of course, the fact of Nancy’s ill-health does
exacerbate them. In the end, they are fairly typical fears about separation and
they are adequately addressed in the Decision. The Officer demonstrates that
she is totally alive to the emotional issue because she notes that the H&C
grounds put forward by the Applicants are based upon “the hardship of having to
live alone in India.”
[42]
The
Decision also examines the objective basis for these feelings and finds there
is no unusual and undeserved or disproportionate hardship because:
a. The
Applicants can hire help in India;
b. They may not
have family accommodation waiting for them but they are not without family
connections in India;
c. Their son in
Canada can continue to support them in India while they
wait; and
d. They can
obtain visitor’s visas and visit their son in Canada as they have
done in the past.
[43]
The
Officer also says that she has considered the grounds put forward by the
Applicants, and it is obvious from the Decision as a whole that she has not
overlooked the emotional grounds because they are not really detachable from
the various factors that are discussed. For example, the Applicants’ feelings
of helplessness and worries about the future are part of the consideration that
the Officer gives to the availability of help in India, the
continuing support of their son, and the availability of visitor’s visas.
[44]
As
Justice Shore pointed out
in Quiroa v. Canada (Minister of Citizenship and Immigration) 2007 FC
495 (CanLII), at paragraph 38:
… It is not a requirement that the Officer specifically reference
that the emotional hardship of the Applicants were considered. If the reasons,
when taken as a whole, indicate that the Officer was alive to the issue, they
will survive a somewhat probing examination and will not be found to be
unreasonable.
In the
present case, the Decision as a whole reveals that the Officer was fully alive
to the emotional issues and took them into account as part of the weighing
process.
Affidavits
of Daughter and Brother in India
[45]
The
Officer does not overlook the affidavits of the brother and daughter in India or come to any
conclusions that reject the evidence in those affidavits.
[46]
The
Officer acknowledges that these family members cannot provide accommodation as
in the past, but points out that the Applicants can hire assistance and have
other forms of help available to them. The Applicants have hired help in the
past. The fact that it was not reliable is not evidence that reliable help is
not available in India. In the past, the Applicants managed with
unreliable help. It stands to reason, then, they will also be able to manage
with reliable help.
[47]
The
reasons in the Decision on this issue are entirely adequate. The Officer
concludes that the Applicants may not have accommodation with the daughter and
brother, but there are other ways to manage their lives while they are waiting
in India for the
results of their permanent residence application. The Applicants are really
arguing that the emotional difficulties of waiting in India should have
outweighed the other factors in this case. But weight is a matter for the
Officer to decide, and there is nothing unreasonable in the Officer’s reasoning
or conclusions that the difficulties associated with waiting in India can be
managed and do not amount to unusual and undeserved or disproportionate
hardship. The reasons and the conclusions fall well within the range of
acceptable outcomes justifiable on the facts and the law.
Inferring
that Reliable Third Party Help Available
[48]
There
is nothing unreasonable about this inference. There was evidence that the
Applicants had hired help in the past. They found it unreliable but managed
nevertheless. There was no evidence to suggest that reliable or adequate help
is not available to the Applicants in India or that the Applicants
could not afford it.
[49]
The
Applicants say at paragraph 24 of their written memorandum that “It is
submitted that the Officer might easily have drawn an opposite conclusion from
the same evidence.” This, of course, is not the point. The discretion
belongs to the Officer and, provided the Decision falls within the range of
possible acceptable outcomes which are defensible in respect of the facts and
law, the Court cannot interfere. See Dunsmuir at paragraph 47.
[50]
The
facts of this case are that the Applicants have found help in the past and have
provided no evidence that reliable help is not available to them in India, or that
they cannot afford reliable help. The conclusions of the Officer fall within
the range of acceptable outcomes.
Placing Too Much Weight on Past Travel
History and Overlooking Current Circumstances
[51]
The
arguments advanced by the Applicants on this issue are all about “weight.”
Weight is a matter for the Officer’s discretion. There is nothing to suggest
that any factor was overlooked or that the Decision on this issue does not fall
within the range of acceptable outcomes.
Lengthy
Processing Times From Overseas
[52]
As
the Decision makes clear, this was a factor that the Officer took into account.
Once again, it is a matter of weight and the Court simply cannot interfere
because the Applicants disagree with the Decision and feel that this factor
should have been given more weight.
[53]
The
Applicants’ assertion that the Officer examined this factor on the assumption
that the waiting period would be two years is not born out by the record of
what was before the Officer. The fact that a government analyst might have got
the period wrong in an affidavit rendered after the Decision does not show that
the Officer was under some misconception about the waiting times for the
Applicants. There is no reason to suspect that the Officer did not accept the
Applicants’ position on the relevant waiting and processing times which the
Applicants faced if sent back to India and did not take the
times into account when deciding whether there was unusual and underserved or
disproportionate hardship.
Conclusions
[54]
The
Court may well have come to a different conclusion from that of the Officer,
but I cannot say that anything material was overlooked, that the reasons are
inadequate, or that the Decision does not fall within a range of possible
acceptable outcomes which are defensible in respect of the facts and the law.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is dismissed;
2.
There
is no question for certification.
“James
Russell”
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