Date: 20090522
Docket: IMM-4512-08
Citation: 2009 FC 535
Ottawa, Ontario, May 22,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
KIRANJIT
KAUR BASRA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Kiranjit Kaur Basra seeks judicial review of the decision of a visa
officer refusing her overseas application for permanent residence on
humanitarian and compassionate grounds. For the reasons that follow, I am
satisfied that several errors were made in the assessment of Ms. Basra’s
application, with the result that the decision under review is not
reasonable. As a consequence, the application for judicial review will be
allowed.
Background
[2]
Ms. Basra is a citizen of India, and is the mother of a young son,
Yudhvir. Ms. Basra’s husband was killed in 2001. Her husband’s parents and
sister are Canadian citizens.
[3]
Ms. Basra’s late husband was his parents’ only son, and Yudhvir is their
only grandson. The Canadian family members claim to have a close relationship
with their grandson, and regularly send money to assist Ms. Basra and Yudhvir
in India. The evidence demonstrates that the family has provided the applicant
with a total of 600,000.00 Rupees since 2002.
[4]
Ms. Basra’s in-laws want her to move to Canada with her child to be with
them. To this end, Ms. Basra’s sister-in-law and her husband signed
sponsorship agreements and financial undertakings to support Ms. Basra’s
H&C application. Information regarding the couple’s financial resources was
also provided to the visa officer.
[5]
In addition, evidence was submitted to demonstrate the closeness of the
relationship between Ms. Basra and her son, and her husband’s Canadian
relatives. Medical information was also provided regarding the mental health of
Ms. Basra’s mother-in-law, and the importance to her well-being of having
Yudhvir come to Canada to be with her.
[6]
Ms. Basra’s application was considered first as an application as a
skilled worker, and the determination was made that she did not qualify as a
member of this class. No issue is taken with respect to that determination.
[7]
The officer then considered Ms. Basra’s application for permanent
residence on H&C grounds. After reviewing the evidence provided by Ms.
Basra and her family members, the visa officer determined that there were
insufficient H&C factors to overcome Ms. Basra’s ineligibility as a skilled
worker.
Analysis
[8]
As will be explained below, there are three areas of concern with
respect to the visa officer’s decision, which lead to the conclusion that the
decision was unreasonable.
The Visa Officer’s Reference to the Wrong Guidelines
[9]
Firstly, it appears from the CAIPS notes that the officer considered the
application under section 6.14 of the Overseas Selection and Processing of
Convention Refugees Abroad Class and Members of the Humanitarian-Protected
Persons Abroad Class (OP5). In this regard, the officer noted that:
Section 6.14
of OP5 states in part, ‘De facto dependants must be the dependant of a
principal applicant who has been determined to be a member of one of the three
refugee classes. The de facto depend[a]nt must also meet the definition of
refugee in their own right even when a dependency relationship is established.’
Y[u]dhvir Singh does not meet the definition of De facto dependant.
[10]
It is common ground that OP5 did not apply to this case, and that the
application should have been considered under section 8.3 of the Processing
of Applications under Section 25 of the IRPA guidelines (OP4).
[11]
The visa officer has provided an affidavit explaining that the reference
to the OP5 guidelines was an error, and that reference should have been made to
the OP4 guidelines.
[12]
I have previously commented on the practice of filing affidavits from
visa officers explaining or elaborating on their reasons for their decisions,
explaining why such affidavits should be given little weight: see, for example,
Fakharian v. Canada (Minister of Citizenship and Immigration),
2009 FC 440, at para. 4; Bin Abdullah v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1185, at paras. 12-15; Alam v. Canada
(Minister of Citizenship and Immigration), 2004 FC 182, at para.19. Other
judges of this Court have expressed similar views: see Hansra v. Canada
(Minister of Citizenship and Immigration), 2009
FC 230; Sklyar v. Canada (Minister of Citizenship and Immigration),
2008 FC 1226; Santhirasekaram v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1188; Jesuorobo v. Canada
(Minister of Citizenship and Immigration), 2007
FC 1092.
[13]
Moreover, in this case, the officer’s affidavit seems to suggest that
the reference to the wrong guidelines was little more than a typographical
error. However, it is evident from the CAIPS notes themselves that rather than
having simply mistakenly referred to OP5 instead of OP4, the application was
actually assessed under the wrong guidelines.
[14]
While it is true that the visa officer did assess the various H&C
factors in assessing the application under the OP5 guidelines, it is difficult
to know how much weight was attributed to the officer’s finding that Yudhvir
Singh did not meet the definition of de facto dependant because he did not meet
the refugee definition.
The Visa Officer’s Treatment of the Medical Report
[15]
The second area of concern relates to the visa officer’s treatment of
the medical report with respect to Yudhvir’s paternal grandmother. It appears
from the CAIPS notes that the officer placed little weight on the medical
report because “it appear[ed] to have been created for the purpose of this
application”.
[16]
It is true that the amount of weight to be attributed to evidence is a
matter within the discretion of the visa officer. However, the explanation
provided by the officer for placing little weight on the medical report in this
case is unreasonable.
[17]
Individuals do not routinely obtain written reports from their
physicians unless there is a reason for them to do so. A medical note may be
required to explain an absence from work, because it is required for an
insurance claim, or to support an immigration application. The fact that a
medical report may have been obtained for a particular purpose does not, by
itself, mean that it is unreliable or that little weight should be attributed
to it.
[18]
Moreover, the officer’s reasoning would place applicants in an
impossible situation. If no medical evidence is provided with respect to an
individual’s medical condition in immigration proceedings, the medical
condition could be discounted on the basis that there was no medical evidence
to confirm that it existed. On the other hand, if medical evidence is obtained
to support the application, the evidence could then be discounted for the
reasons given by the officer in this case. This is not reasonable.
The Visa Officer’s Finding with Respect to Ms. Basra’s
Ability to Support Herself
[19]
The final difficulty with the officer’s reasons relates to the finding
that Ms. Basra was able to support herself and Yudhvir in India.
[20]
The officer observes in the CAIPS notes that Ms. Basra’s in-laws had
been providing her with financial assistance, noting that in-laws would be
expected to support their deceased son’s widow and child in India. However,
the officer then goes on to find that “Moreover, according to the information
provided by the representative, the applicant is capable of financially
supporting herself and her son”.
[21]
While it is true that the applicant had indicated in her application
form that she was employed, there was simply no evidence before the officer to
indicate that she was able to earn enough money to support herself and her
son. Indeed, what evidence there was on that point was to the opposite effect.
[22]
That is, the applicant had stated in her submissions that “As a widow in
India with a young child, I do not have the ability to become self-sufficient”.
[23]
In the absence of any evidence to support the officer’s finding of
financial self-sufficiency on the part of the applicant, the finding is
unreasonable.
Conclusion
[24]
For these reasons, the decision does not fall within the
range of possible acceptable outcomes that are defensible in light of the facts
and the law: see Dunsmuir
v. New
Brunswick,
2008 SCC 9, at paragraph 47. As a consequence, the application
for judicial review is allowed.
Certification
[25]
Neither party has suggested a question for certification, and none
arises here.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that:
1. This application for judicial review is allowed,
and the matter is remitted to a differently constituted panel for
re-determination; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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