Date: 20071127
Docket: IMM-1862-07
Citation: 2007 FC 1243
Ottawa,
Ontario, November 27, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
RUBEN
ALEJANDRO RODRIGUEZ RIVERO
Applicant
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 (the Act), for judicial review of
a decision rendered April 18, 2007, wherein the Immigration Officer (the officer)
denied the application for permanent residence from within Canada on
humanitarian and compassionate grounds (the H&C) pursuant to subsection
25(1) of the Act.
BACKGROUND
[2]
Ruben
Alejandro Rodriguez Rivero (the applicant) is a 31 year-old citizen of Uruguay.
[3]
His half-brother is a Canadian citizen.
[4]
His half-brother made an application for sponsorship of his
mother and the applicant in 1999. However, the applicant abandoned his
brother’s application because at that time, he did not want to come to Canada. His mother became a permanent resident in May 2002.
[5]
He arrived in Canada December 14, 2005 with a temporary visa to visit his mother and half-brother.
His temporary visa was extended several times and he made an H&C
application for permanent residence on May 11, 2006.
[6]
On April 18, 2007, his H&C application was denied. It
is this negative decision that forms the object of the present application for
judicial review.
DECISION UNDER REVIEW
[7]
The officer determined that the H&C considerations did
not justify granting an exemption from the requirement that he apply for a
permanent resident visa from outside Canada.
ISSUE FOR
CONSIDERATION
[8]
Did the officer err in overlooking relevant evidence,
misapprehending relevant evidence, as well as making perverse findings of fact
unsupported by the evidence?
PERTINENT
LEGISLATION
[9]
Subsection 25(1) of the Act reads as follows:
|
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.
|
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.
|
STANDARD OF
REVIEW
[10]
The H&C decision is a discretionary decision and the
applicable standard of review for an H&C decision rendered by an
immigration officer is reasonableness simpliciter (Baker
v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paragraph 62).
[11]
The Supreme Court, in Law Society of New-Brunswick v.
Ryan, [2003] S.C.R. 247 [footnotes omitted] explained the reasonableness
standard at paragraphs 55 and 56:
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, 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, at para. 79).
This does not mean that every element of
the reasoning given must independently pass a test for reasonableness. The
question is rather whether the reasons, taken as a whole, are tenable as
support for the decision. At all times, a court applying a standard of
reasonableness must assess the basic adequacy of a reasoned decision
remembering that the issue under review does not compel one specific result.
Moreover, a reviewing court should not seize on one or more mistakes or
elements of the decision which do not affect the decision as a whole.
ANALYSIS
[12]
The applicant submits that the officer erred in her
assessment of the considerable evidence submitted on the family and their
emotional interdependency, the disastrous effect a separation would have on the
family unit and the hardships the individual members of the family unit would
suffer.
[13]
The applicant refers the Court to Exhibit A-2, which is an
affidavit of his mother. It appears from the document that his mother travelled
to Uruguay from December 2002 to
January 19, 2003, from December 2003 to April 2004 and from December 2004 to
March 2005. She ends her affidavit by explaining that with every year that
passes by, the trip gets harder on her and is very tiring.
[14]
The officer clearly takes that evidence into account since she
states that the applicant’s mother visited him several times. The officer also
mentions that the mother also traveled to Uruguay in November 2006, to attend a wedding, while the applicant remained in Canada.
[15]
In my opinion, the officer assessed the emotional
interdependency – which she admitted was present in their situation – but clearly
specified that this factor was not sufficient in itself to grant an exemption.
[16]
The applicant alleges that the officer had no evidence
before her purporting to the fact that the applicant could apply for permanent
residence from outside Canada and that she never assessed the chances of being accepted as an
independent skilled worker. That was not her role. The officer’s duty was to
make a discretionary decision as to whether the applicant would suffer unusual,
undeserved or disproportionate hardship if he was to file an application for permanent
residence from abroad, not to conduct a preliminary evaluation of the
application’s chances of being accepted. Moreover, she pointed out that the
applicant had proven to be able to travel since he came to Canada several times and always obtained the necessary visas to
do so.
[17]
In support of his affidavit submitted for this judicial
review, the applicant submits Guidelines from the Quebec government about the Family Class. Those documents and the general
argument concerning the fact that the applicant would not get accepted in Quebec because he did not fall within a category of the Family
Class were not before the decision-maker. The only argument raised by the
applicant is one stating that because he did not speak French, he could not be
selected by Quebec. The officer gave little
weight to that argument and mentioned that he could have learned French while
he was in Canada and would still have the chance to learn it in Uruguay while applying for a permanent resident visa.
[18]
The applicant also alleges that the officer speculated when
she determined that the applicant could find employment upon his return to Uruguay. I cannot conclude that this was not supported by the
evidence before her. As she stated herself, she had no evidence before her
purporting that he could not find employment. The only evidence she had was
that he had been working in Uruguay for ten years prior to his arrival in Canada. Therefore, it was reasonable for her to infer that he would find
employment.
[19]
A complete reading of the decision leads me to find that
the officer made a thorough and comprehensive analysis of all of the H&C
grounds raised by the applicant. The alleged mistake made by the officer in
mentioning that the mother suffered “osteoarthritis” (“arthrose” in French)
instead of “osteoporosis” (note that the only relevant information I could find
in the applicant’s mother’s medical file was “joint pains”), while it may be a
more serious condition, is not sufficient for this Court to intervene when the
global decision remains reasonable.
[20]
The applicant has not rebutted the presumption that the
decision-maker has considered all of the evidence and that the assessment of
weight to be given to the evidence is a matter within her discretion and
expertise (Woolaston v. Canada (Minister of Employment and Immigration),
[1973] S.C.R. 102, Shah
v. Canada (Minister of Public Security
and Emergency Preparedness, 2007 FC 132).
[21]
The officer concluded in her reasons that the applicant had
failed to demonstrate that he would suffer unusual, undeserved or disproportionate
hardship if he was required to apply for permanent resident visa
from Uruguay, and thus refused to grant
an exemption under subsection 25(1) of the Act.
[22]
In
light of the evidence before the officer and the reasons given by her, I find
this conclusion to be reasonable and see no reason to interfere with it.
[23]
For
the above reasons, this judicial review is denied.
[24]
Counsel
did not propose any questions for certification.
JUDGMENT
1.
The
application is dismissed.
2.
There
is no question for certification.
“Pierre Blais”
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