Date: 20090422
Docket: IMM-3499-08
Citation: 2009 FC 393
Ottawa, Ontario, April 22, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
KONSTANTINA
KOROMILA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
an Officer of Citizenship and Immigration Canada (Officer) in Rome, Italy,
dated May 31, 2008 (Decision), refusing the Applicant’s application based upon
humanitarian and compassionate (H&C) grounds pursuant to section 25 of the
Act.
BACKGROUND
[2]
The
Applicant resides in Greece. She is not married and does not have
children. She has one sibling, a sister named Maria, who currently lives in Canada and is a
Canadian citizen.
[3]
The
Applicant’s mother died when she was three years old and her father never
remarried. The Applicant and her sister were raised in Greece by their
father and their aunt. Their father died of a heart attack when they were
teenagers and their aunt continued to care for them.
[4]
Both
the Applicant and her sister pursued post-secondary studies. The Applicant went
on to become an administrator with the Ministry of Social Services in Greece where she
worked until her retirement.
[5]
The
Applicant’s sister met George Pefanis while he was vacationing in Greece in 1968.
George was originally from Greece but had become a Canadian citizen. Maria
married George and immigrated to Canada. The Applicant remained
in Greece to live with
and help support her aunt. It was their intention to join Maria and George in
Canada.
[6]
Maria
and George travelled every summer to visit the Applicant and her aunt in Greece. When Maria
gave birth to her first child in 1969, a son named Constantine, the aunt
travelled to Canada to help Maria
and stayed for nine and a half months. When the aunt returned to Greece, Maria
and Constantine went to stay in Greece for about eight months.
[7]
Six
months after Maria and Constantine returned to Canada, their aunt
had a very bad stroke and was paralyzed on the left side of her body. At the
time of the stroke, Maria was pregnant with her second son, John, but travelled
to Greece to stay and
help with her aunt for six months. Maria then returned to Canada and the
Applicant remained in Greece to look after her aunt.
[8]
Due
to her aunt’s condition, the Applicant could not travel to Canada for several
years, but Maria and her family continued to travel to Greece and stayed every
summer for a month. The Applicant was very close with Maria, George and her
nephews.
[9]
In
1986, the Applicant arranged for a caregiver to stay with her aunt while she
travelled to Canada. When
Constantine became engaged, the Applicant arranged for a caregiver to be with
her aunt so she could travel to Canada for the wedding in
2000.
[10]
In
2002, the aunt’s condition deteriorated and Maria travelled to Greece to be with
her. The deterioration continued after Maria’s return to Canada and, in
December of 2002, the aunt died. Maria returned to Greece and stayed
for several weeks so that she and the Applicant could grieve together.
[11]
In
the spring of 2003, the Applicant developed a heart condition which required a
pacemaker. Maria flew to Greece to assist her and the Applicant flew back to Canada with her and
stayed for four months.
[12]
The
Applicant and Maria visit each other regularly and, when they are apart, they
speak frequently on the phone. The Applicant also speaks frequently with
Constantine and John. The Applicant attended John’s wedding in Canada in 2005. She
also made lengthy visits to Canada when Constantine’s two
children were born.
[13]
The
Applicant says that she is alone in Greece and is now an elderly
woman. Although she is in good health, she is vulnerable in the way “elderly
people who are on their own can be.”
[14]
Although
Maria and George have travelled to Greece many times over the
past few years, health concerns now prevent George from making the trip. The
Applicant says that, as they age, it will become more difficult for her and
Maria to visit each other.
[15]
The
Applicant applied for permanent residence in Canada in June of
2007. Her family in Canada is willing to be responsible for her welfare
notwithstanding the fact that she has sufficient income on her own. John, who
is now a physician, included a sponsorship application with the Applicant’s
Permanent Resident Application.
[16]
On
April 2, 2008, it is alleged that the Officer advised the Applicant that, in
order to proceed with her application, she would need to provide language test
results.
[17]
Applicant’s
counsel replied to the visa office by e-mail on April 28, 2008, stating that
the Applicant’s application was based on H&C grounds and that no points
were being claimed for language skills. Counsel also stated that the Applicant
did not live close to any of the test centres and that it would be difficult
for her to travel to one. This was why she was seeking an exemption under
section 25 of the Act. Counsel also requested that consideration be given to
paragraph 3(1)(d) of the Act which deals with the reunification of families
in Canada.
[18]
The
Officer replied by e-mail on May 21, 2008 stating that the Applicant had
applied under the skilled worker category and that she had not obtained the
minimum required points. As well, the fact that the Applicant lived too far
from a testing centre was not acceptable. The Officer also noted that H&C
factors alone could not be the sole consideration and that the Applicant’s
skilled worker application still had to be considered.
[19]
By
e-mail on June 11, 2008, Applicant’s counsel stated that the forms for skilled
worker had been submitted because there were no special forms for the
processing of cases abroad under section 25 of the Act and that to make the
initial submission the Applicant had to use one of the existing forms in the
categories of family, economic or refugee. Counsel explained that the
application was being made on H&C grounds because the Applicant did not
meet the requirements for eligibility in any of the three existing categories.
[20]
The
Officer advised by e-mail on June 11, 2008 that the final Decision had been
made. A letter was received on June 11, 2008 by the Applicant which explained
that the Officer had refused her application for permanent residence.
[21]
The
Officer was cross-examined on his affidavit on December 10, 2008.
DECISION UNDER REVIEW
[22]
The
Officer concluded that H&C considerations under the skilled worker category
did not apply to the Applicant.
[23]
He
found that the Applicant’s health problems did not prevent her from remaining
active and that she had many friends and acquaintances in Kalamata where she
lived. The Officer noted that the Applicant had travelled to Canada in the past
and that her relatives had visited her in Greece. She was also
in regular contact with her relatives in Canada and was
financially independent and well-established. The Officer noted that the
Applicant is lonely, but felt this was not sufficient to support a positive
decision on H&C grounds.
[24]
The
Officer pointed out that nothing prevented the Applicant from visiting her
relatives in Canada for half a year or more if she chose to. The Officer also noted
that, although it would be convenient for the Applicant to be near her
relatives, when her sister immigrated to Canada many decades
ago the family was separated and the decision was accepted and understood at
that time.
[25]
The
Officer noted that the Applicant had remained in Greece, had an active and full
life, and had kept herself well informed about her relatives in Canada during the
last decade. The Officer found that section 3(1)(d) of the Act, which
focuses on reuniting families, was not applicable to the Applicant.
[26]
The
Officer also found that all aspects of the H&C criteria did not apply to
the Applicant’s case and that she did not have the requisite points to be a
skilled worker. He awarded her 46 out of a possible 100 points.
ISSUES
[27]
The
Applicant raises the following issues for review:
1)
The
Officer erred in law by misinterpreting and misstating the purpose of paragraph
3(1)(d) of the Act;
2)
The
Officer erred in law in the exercise of discretion by ignoring evidence,
misconstruing evidence, and fettering his discretion.
STATUTORY PROVISIONS
[28]
The
following provisions of the Act are applicable to these proceedings:
3. (1) The objectives of this Act with respect to
immigration are
…
(d) to see that families are reunited in Canada;
Economic immigration
12(2) A foreign national may be selected as a
member of the economic class on the basis of their ability to become
economically established in Canada.
Humanitarian
and compassionate considerations
25. (1) The Minister shall, upon request of a
foreign national who is inadmissible or who does not meet the requirements of
this Act, and may, on the Minister’s own initiative, 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.
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3.
(1) En matière d’immigration, la présente loi a pour
objet :
…
d) de veiller à
la réunification des familles au Canada;
Immigration économique
12(2) La
sélection des étrangers de la catégorie « immigration économique »
se fait en fonction de leur capacité à réussir leur établissement économique
au Canada.
Séjour
pour motif d’ordre humanitaire
25.
(1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, 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.
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[29]
The
following provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations) are
also applicable to these proceedings:
Class
75. (1) For the purposes
of subsection 12(2) of the Act, the federal skilled worker class is hereby
prescribed as a class of persons who are skilled workers and who may become
permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec.
Skilled
workers
(2) A foreign national is a skilled worker if
(a) within the 10 years preceding the date of their application
for a permanent resident visa, they have at least one year of continuous
full-time employment experience, as described in subsection 80(7), or the
equivalent in continuous part-time employment in one or more occupations,
other than a restricted occupation, that are listed in Skill Type 0
Management Occupations or Skill Level A or B of the National Occupational
Classification matrix;
(b) during that period of employment they performed the actions
described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational Classification;
and
(c) during that period of employment they performed a substantial
number of the main duties of the occupation as set out in the occupational
descriptions of the National Occupational Classification, including
all of the essential duties.
Minimal requirements
(3) If the foreign national fails to meet the requirements of subsection
(2), the application for a permanent resident visa shall be refused and no
further assessment is required.
Selection Criteria
76. (1) For the purpose
of determining whether a skilled worker, as a member of the federal skilled
worker class, will be able to become economically established in Canada, they must be
assessed on the basis of the following criteria:
(a) the skilled worker must be awarded not less than the minimum
number of required points referred to in subsection (2) on the basis of the
following factors, namely,
(i) education, in accordance with section 78,
(ii) proficiency in the official languages of Canada, in accordance with
section 79,
(iii) experience, in accordance with section 80,
(iv) age, in accordance with section 81,
(v) arranged employment, in accordance with section 82, and
(vi) adaptability, in accordance with section 83; and
(b) the skilled worker must
(i) have in the form of transferable and available funds, unencumbered
by debts or other obligations, an amount equal to half the minimum necessary
income applicable in respect of the group of persons consisting of the
skilled worker and their family members, or
(ii) be awarded the number of points referred to in subsection 82(2) for
arranged employment in Canada within the meaning of subsection 82(1).
Number
of points
(2) The Minister shall fix and make available to the public the minimum
number of points required of a skilled worker, on the basis of
(a) the number of applications by skilled workers as members of
the federal skilled worker class currently being processed;
(b) the number of skilled workers projected to become permanent
residents according to the report to Parliament referred to in section 94 of
the Act; and
(c) the potential, taking into account economic and other
relevant factors, for the establishment of skilled workers in Canada.
Circumstances for officer's substituted evaluation
(3) Whether or not the skilled worker has been awarded the minimum
number of required points referred to in subsection (2), an officer may
substitute for the criteria set out in paragraph (1)(a) their
evaluation of the likelihood of the ability of the skilled worker to become
economically established in Canada if the number of points awarded is not a
sufficient indicator of whether the skilled worker may become economically
established in Canada.
Concurrence
(4) An evaluation made under subsection (3) requires the
concurrence of a second officer.
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Catégorie
75. (1) Pour l’application du paragraphe
12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une
catégorie réglementaire de personnes qui peuvent devenir résidents permanents
du fait de leur capacité à réussir leur établissement économique au Canada,
qui sont des travailleurs qualifiés et qui cherchent à s’établir dans une
province autre que le Québec.
Qualité
(2) Est un travailleur qualifié l’étranger qui satisfait
aux exigences suivantes :
a) il a accumulé au moins une année continue d’expérience
de travail à temps plein au sens du paragraphe 80(7), ou l’équivalent s’il
travaille à temps partiel de façon continue, au cours des dix années qui ont
précédé la date de présentation de la demande de visa de résident permanent,
dans au moins une des professions appartenant aux genre de compétence 0
Gestion ou niveaux de compétences A ou B de la matrice de la Classification
nationale des professions — exception faite des professions d’accès
limité;
b) pendant cette période d’emploi, il a accompli
l’ensemble des tâches figurant dans l’énoncé principal établi pour la
profession dans les descriptions des professions de cette classification;
c) pendant cette période d’emploi, il a exercé une partie
appréciable des fonctions principales de la profession figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles.
Exigences
(3) Si l’étranger ne satisfait pas aux exigences prévues
au paragraphe (2), l’agent met fin à l’examen de la demande de visa de
résident permanent et la refuse.
Critères de sélection
76. (1) Les critères ci-après indiquent que
le travailleur qualifié peut réussir son établissement économique au Canada à
titre de membre de la catégorie des travailleurs qualifiés (fédéral) :
a) le travailleur qualifié accumule le nombre minimum de
points visé au paragraphe (2), au titre des facteurs suivants :
(i) les études, aux termes de l’article 78,
(ii) la compétence dans les langues officielles du
Canada, aux termes de l’article 79,
(iii) l’expérience, aux termes de l’article 80,
(iv) l’âge, aux termes de l’article 81,
(v) l’exercice d’un emploi réservé, aux termes de
l’article 82,
(vi) la capacité d’adaptation, aux termes de l’article
83;
b) le travailleur qualifié :
(i) soit dispose de fonds transférables — non grevés de
dettes ou d’autres obligations financières — d’un montant égal à la moitié du
revenu vital minimum qui lui permettrait de subvenir à ses propres besoins et
à ceux des membres de sa famille,
(ii) soit s’est vu attribuer le nombre de points prévu au
paragraphe 82(2) pour un emploi réservé au Canada au sens du paragraphe
82(1).
Nombre de points
(2) Le ministre établit le nombre minimum de points que
doit obtenir le travailleur qualifié en se fondant sur les éléments ci-après
et en informe le public :
a) le nombre de demandes, au titre de la catégorie des
travailleurs qualifiés (fédéral), déjà en cours de traitement;
b) le nombre de travailleurs qualifiés qui devraient
devenir résidents permanents selon le rapport présenté au Parlement
conformément à l’article 94 de la Loi;
c) les perspectives d’établissement des travailleurs
qualifiés au Canada, compte tenu des facteurs économiques et autres facteurs
pertinents.
Substitution de
l’appréciation de l’agent à la grille
(3) Si le nombre de points obtenu par un travailleur
qualifié — que celui-ci obtienne ou non le nombre minimum de points visé au
paragraphe (2) — ne reflète pas l’aptitude de ce travailleur qualifié à
réussir son établissement économique au Canada, l’agent peut substituer son
appréciation aux critères prévus à l’alinéa (1)a).
Confirmation
(4) Toute décision de l’agent au titre du
paragraphe (3) doit être confirmée par un autre agent.
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STANDARD OF REVIEW
[30]
The
Applicant submits that questions of law invoke a standard of correctness: Dunsmuir v. New
Brunswick,
2008 SCC 9
(Dunsmuir). She points out that, prior to Dunsmuir, the
standard of review for discretionary decisions connected with applications
based on H&C grounds was reasonableness simpliciter: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2
S.C.R. 817
at paragraph 61 (Baker).
[31]
The Respondent submits that the
appropriate standard of review for this Decision is the same as the standard
enunciated at pages 7 and 8 of Maple Lodge Farms Ltd. v. Canada, [1982]
2 S.C.R. 2:
It is, as well, a clearly-established rule that the courts should
not interfere with the exercise of a discretion by a statutory authority merely
because the court might have exercised the discretion in a different manner had
it been charged with that responsibility. Where the statutory discretion has
been exercised in good faith and, where required, in accordance with the
principles of natural justice, and where reliance has not been placed upon
considerations irrelevant or extraneous to the statutory purpose, the courts
should not interfere.
[32]
In
relation to the standard of review for federal skilled worker application, Silva v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 981 (F.C.) at
paragraph 7 provides as follows:
I
adopt the view that the particular expertise of Visa Officers dictates a
deferential approach when reviewing such a decision. The assessment of an
applicant for permanent residence under the Federal Skilled Worker Class and a “substituted
evaluation” under subsection 76(3) are discretionary decisions involving
factual findings that should be given a high degree of deference. Such
decisions should be reviewed on the standard of patent unreasonableness.
[33]
Whether the Officer applied the correct test in assessing risk in
an H&C application is a question of law and therefore must be reviewed on
the standard of correctness: Pinter v. Canada (Minister of
Citizenship and Immigration) 2005 FC 296; Mooker v. Canada
(Minister of Citizenship and Immigration), [2007] F.C.J. No. 1029 at
paragraph 16 and Kim v. Canada (Minister of Citizenship and Immigration),
[2008] FC 632 at paragraph 24. Besides the issues of law, however, the
Applicant and the Respondent raise issues related to the Officer’s exercise of
discretion which should be reviewed under a reasonableness standard.
[34]
In 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”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[35]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the 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.
[36]
In Baker, the Supreme Court held that the standard of
review applicable to an officer’s decision of whether or not to grant an
exemption based on humanitarian and compassionate considerations was
reasonableness simpliciter. Thus, in light of the Supreme Court of
Canada’s decision in Dunsmuir and the previous
jurisprudence of this Court, I find the standard of review applicable to the
issues raised, with the exception of questions of law, to be reasonableness.
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.”
ARGUMENT
The Applicant
Purpose of Paragraph
3(1)(d) of the Act
[37]
The
Applicant submits that paragraph 3(1)(d) of the Act can and ought to be
considered in any case involving a de facto family member. The Applicant
cites Nalbandian v. Canada (Minister of Citizenship and Immigration)
(2006), FC 1128 at paragraph 15 for the following:
…there is no evidence of an invalid inference drawn by her,
equally, there is no evidence before the Court that she was cognisant of the
principle enunciated in paragraph 3(1)(d) of the Act
or of the considerations to be taken into account as enunciated in the elements
of OP 4 quoted above in considering whether a de facto
family member, as the Applicant undoubtedly was and is, should qualify for
relief on humanitarian and compassionate considerations.
[38]
The
Applicant says that the Officer erred in law in concluding that paragraph 3(1)(d)
of the Act applies only to parents and spouses and not to de facto
family members.
Exercise
of Discretion
[39]
The
Applicant submits that the exercise of discretion by the Officer must be
reasonable. An unreasonable decision is defined in Canada (Director of
Investigation and Research) v. Southam Inc., [1997] S.C.R. 748 at paragraph 56,
which is cited in Raudales v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 532 at paragraphs 10 and 11 (Raudales):
10
As to what is an unreasonable decision, in Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1
S.C.R. 748, Mr. Justice Iacobucci at paragraph 56 wrote for the
Court that:
An
unreasonable decision is one that, in the main, is not supported by any reasons
that can stand up to a somewhat probing examination. Accordingly, a court
reviewing a conclusion on the reasonableness standard must look to see whether
any reasons support it. The defect, if there is one, could presumably be in the
evidentiary foundation itself or in the logical process by which conclusions
are sought to be drawn from it. An example of the former kind of defect would
be an assumption that had no basis in the evidence, or that was contrary to the
overwhelming weight of the evidence.
11 A
court reviewing a decision on judicial review may not intervene in the exercise
of discretion simply because the court would have weighed relevant factors
differently and arrived at a different decision. The decision must, however, be
able to withstand a somewhat probing examination.
[40]
The
Applicant says that this Court has previously considered the policy of the
Respondent to allow “last remaining family members” to become permanent
residents of Canada even though they do not
qualify for entry: Sitarul v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 1067 (Sitarul). In Sitarul,
the Court had the following to say on point:
The policy that counsel suggests was not or was
improperly defined is 1.17, which provides that:
1) Family Reunification
Family Reunification is a stated objective of
Immigration Policy as defined in A3(c). Although the provisions of R4 establish
the frame work of the Family Class ... they do not adequately capture the
intent of the overall policy. Historically, in administering the Immigration
Act, this has been recognized; therefore, provision is made for the acceptance
of certain Immigrants who cannot qualify for entry but who should, nonetheless,
be permitted to take up residence in Canada on humanitarian grounds.
2) Last Remaining Family Members
a) The Intent of this policy is to
provide a procedure whereby deserving individuals who, in practice, are
dependent members of the family, may benefit from the treatment accorded
"accompanying family members" even though they may not satisfy the
strict definition of family set out in the Family Class Regulations. Cases may
be considered at the time of, or subsequent to, the migration of the family
unit.
b) Immigration officers in Canada and visa
officers abroad will, on occasion, have family situations brought to their
attention which will indicate by their nature, on the basis of the facts
presented, and in the context of the social and economic environment of the
persons concerned, that the admission of the relative should be facilitated.
They may include persons who have never come within the legal definition of the
family class but who, nevertheless, have established a long-term dependence
which would make them a de facto member of the nuclear family, such as an
elderly aunt or a long standing aged family servant who had resided with the
family prior to its departure for Canada. The primary consideration is, and
continues to be, that the Immigrant has considerable difficulty in meeting
his/her financial or emotional needs without the support and assistance of the
family unit who is migrating to, or is already in, Canada.
(emphasis
added)
[41]
The
Applicant submits that the applicable provisions of the Respondent’s present
guidelines found in Citizenship and Immigration Canada Manual, OP-4 at page 9 (OP-4 Manual) reflect
the policy recognized above. The present policy has a paragraph on de facto
family members who can qualify to come to Canada on H&C grounds. An example of who may be
eligible includes a sister left alone in her country of origin without family
of her own. Although the Guidelines are not binding, the Applicant submits that
they can be of assistance to the Court in reviewing discretionary decisions: Legault
v. Canada (Minister or
Citizenship and Immigration) 2002 FCA 125.
[42]
The
Applicant also submits that, by not considering this information, the Officer
committed a reviewable error by failing to demonstrate the logical process by
which his conclusions were drawn: Nalbandian at paragraph 15.
[43]
The
Applicant says that the Officer failed to adequately consider the emotional and
financial needs of the Applicant. The Applicant argues that she satisfies each
and every one of the criteria set out for de facto family members.
Although the Officer indicated that he took into account the H&C
considerations, the Applicant suggests that the Officer could not have been
familiar with the OP-4 Manual and that his request for a language test further
indicates his misunderstanding of the kind of application being made.
[44]
The
Applicant further submits that the Officer’s reasons cannot withstand a probing
examination as contemplated by Raudales. This application for judicial
review should be allowed and the Decision set aside and the application
returned for processing by another officer.
[45]
The
Applicant answers the Respondent’s arguments by pointing out that reliance upon
Agot v. Canada (Minister of Citizenship and Immigration) 2003 FCT 436 (Agot)
and Liang v. Canada (Minister of Citizenship and Immigration) 2006 FC
967 (Liang) is in error since those cases are distinguishable on
their facts from the present circumstances.
[46]
The
Applicant did not stay in Greece to look after “other relatives” as the Officer characterized
it; she stayed to look after her de facto mother who had no one else to
care for her. In the Applicant’s view, this should not be held against her by
Canadian immigration authorities.
[47]
The
Applicant also points out that the Respondent’s reliance upon case law dealing
with unusual and undeserved or disproportionate hardship is misplaced. The
Applicant is already outside of Canada and applying to enter Canada; so the jurisprudence cited
by the Respondent is not instructive. Regardless, the Applicant submits that
she will endure unusual and undeserved or disproportionate hardship if she is
not allowed to join her family in Canada.
[48]
In
cross-examination, the visa officer conceded that paragraph 3(1)(d),
which provides for family reunification, could theoretically apply to a sibling.
The Officer maintained, however, that the Applicant had a legal right to enter Canada as a visitor at any
time and that any application for an extension of permanent residence status could
be extended, though the Officer was unable to provide the legal authority for
such a conclusion.
[49]
The
Officer also stated on cross-examination that he had considered the difficulty
of the Applicant having to travel as she gets older. The Officer was asked to
point to the part in the CAIPS notes that indicated that the increased
difficulty of traveling in advancing years was considered. There was nothing in
the CAIPS notes on this issue.
[50]
The
Officer was also questioned about his conclusion that the Applicant had many
friends and acquaintances in Kalamata; the Officer only had two letters from
residents of Kalamata.
[51]
The
Applicant submits that the Officer confused the requirement of all foreign
nationals having to apply formally to enter Canada with the requirement that
some foreign nationals have obtained visas in advance. When Applicant’s counsel
tried to ask additional questions about the basis for the conclusion that the
Applicant was automatically entitled to extend her status in Canada, the Respondent’s
counsel instructed the Officer not to answer.
The Respondent
[52]
The
Respondent submits that subsection11(1) of the Act provides that all foreign
nationals seeking admission to Canada must first apply to an officer for a visa
or for any other document that may be required by the Regulations prior to
entering Canada. Pursuant to section 25 of the Act, the Minister is authorized
to grant a foreign national permanent resident status or an exemption from any
applicable criteria or obligation of the Act if the Minister is of the opinion
that it is justified on H&C grounds.
[53]
The
Respondent says that the onus is on the Applicant to demonstrate that she would
face unusual and undeserved or disproportionate hardship by having to apply for
permanent resident status outside of Canada: Arumugam v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 985 at paragraphs 16-17. A decision
made on H&C grounds is an exceptional measure and is discretionary: Legault
at paragraph 15, leave to SCC dismissed (2002) SCCA No. 220 and Baker.
[54]
The
Respondent submits that the Applicant is not entitled to a particular outcome
and, in order to successfully attack a negative decision, she must show that
the Officer’s Decision was unreasonable because the Officer erred in law, acted
in bad faith or proceeded on an incorrect principle: Tartchinska v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 373
(F.C.T.D.) at paragraph 17; Baker; Suresh at paragraph 34 and Mohammed
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 1508 at paragraph 20 (F.C.T.D.).
[55]
The
Respondent cites Agot at paragraph 15 which refers to Law Society of
New Brunswick v. Ryan 2003 SCC 20 at paragraph 55 (which was adopted in Liang):
55. 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. If any of the reasons that are sufficient to support the conclusion
are tenable in the sense that they can stand up to a somewhat probing
examination, then the decision will not be unreasonable and a reviewing court
must not interfere (see Southam, supra, at para. 56). This means that a
decision may satisfy the reasonableness standard if it is supported by a tenable
explanation even if this explanation is not one that the reviewing court finds
compelling (see Southam, supra, at para. 79).
[56]
The
Respondent also submits that the OP-4 Manual referred to by the Applicant does
more than describe who might qualify as a de facto family member; it
also provides decision makers with a list of considerations to take into
account in making such a determination. Section 8.3 of the OP-4 Manual provides
as follows:
De
facto family members are
persons who do not meet the definition of a family class member. They are,
however, in a situation of dependence that makes them a de facto member
of a nuclear family that is either in Canada or that is applying to
immigration. Some examples: a…sister left alone in the country of origin without
family of their own…
Consider:
·
Whether the
dependency is bona fide and not created for immigration purposes;
·
The level of
dependency;
·
The stability of the
relationship;
·
The length of the
relationship;
·
The impact of a
separation;
·
The financial and emotional
needs of the application in relation to the family unit;
·
The ability and
willingness of the family in Canada to provide support;
·
Applicant’s other
alternatives, such as family (spouse, children, parents, siblings, etc.)
outside Canada able and willing to provide support;
·
Documentary evidence
about the relationship…
·
Any other factors
that are believed to be relevant to the Humanitarian and Compassionate
decision.
[57]
The
Respondent contends that the Officer took into account the relevant factors in
the Applicant’s case. The Applicant had some emotional dependency on her sister
and her sister’s family but was also financially independent, retired and had lived
her entire life in Greece. She had also been
separated from her sister since her sister chose to move to Canada. The Applicant had also
visited Canada throughout the years.
[58]
The
Respondent concludes by stating that any hardship due to the continued
separation of the Applicant and her sister cannot be considered undue,
undeserved or disproportionate. The Officer considered the relevant factors;
the only dispute is the weight the Officer afforded to the factors. The
Respondent says that the Applicant has failed to demonstrate that the Officer’s
weighing of the relevant factors was conducted in bad faith or was based on
irrelevant considerations.
ANALYSIS
[59]
I
think there are two reviewable errors in this Decision that require the matter
to be sent back for reconsideration.
[60]
The
Decision itself is very short and it has been supplemented by the Officer’s later
affidavit and cross-examination. In my view, however, these subsequent
rationalizations and explanations cannot substitute for the Decision itself.
[61]
First
of all, in the Decision the Officer’s stated understanding of the scope of
section 3(1)(d) of the Act is that “the objective of the law was to
reunite parents with their children or children with parents or spouses.”
[62]
This
means that the Officer either misunderstood the scope of section 3(1)(d)
and so fettered his discretion or he made a mistake of law.
[63]
The
words of Justice Gibson in Nalbandian at paragraph 15 are equally
applicable to this case:
… there is no evidence before the Court that she was cognisant of
the principle enunciated in paragraph 3(1)(d) of the Act
or of the considerations to be taken into account as enunciated in the elements
of OP 4 quoted above in considering whether a de facto
family member, as the Applicant undoubtedly was and is, should qualify for
relief on humanitarian and compassionate considerations.
[64]
The
Officer and the Respondent have, post-Decision, attempted to justify the
Officer’s position on section 3(1)(d) by suggesting that it could apply
to the Applicant, but the facts of her case mean that she could never satisfy
the requirements that would bring the subsection into play.
[65]
My
reading of the Decision, however, is that the Officer excluded subsection 3(1)(d)
because he thought it was only applicable to the reunification of “parents with
their children or children with parents or spouses.”
[66]
This
error is compounded by the Officer’s assessment that the Applicant’s coming to Canada permanently was simply
a matter of convenience and that the Applicant was not a de facto family
member who had been left behind.
[67]
The
Officer’s characterization of what has happened to this family – “…when your
sister immigrated to Canada many decades ago the family was then separated and
this was a decision all concerned accepted and understood” – is, in my view, a
travesty of the facts that fails to take into account why the Applicant was left
behind in Greece and the significant evidence of her present isolation. She may
have financial means, but there is significant evidence of isolation in Greece
and complete emotional and human dependency on her family in Canada. Due to her
compassionate dedication to an aging and infirm relative, she has been left
alone in Greece without the benefit of
close family support.
[68]
To
use Justice Shore’s words from Yu v.
Canada (Minister of Citizenship and Immigration) 2006 FC 956, at paragraph
15, the “visa officer ignored the evidence of emotional dependency …” and there
is “a significant factual difference between living together and sharing
day-to-day life and an occasional visit.”
[69]
Such
matters seem to have been left entirely out of account by the Officer to an
unreasonable extent. In addition, he did not consider the application of
subsection 3(1)(d) of the Act to this case.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is allowed and the matter is returned for reconsideration by a
different visa officer.
2. There is no
question for certification.
“James Russell”