Date: 20110728
Docket: IMM-5723-10
Citation: 2011 FC 952
Ottawa, Ontario, July 28, 2011
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
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QIHONG ZHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the September 14, 2010 decision by the
Immigration Officer to deny Ms. Qihong Zhu’s application for permanent
residency to be processed from within Canada on humanitarian and
compassionate grounds (“H&C Application”). The Officer found that there
were insufficient grounds to establish undue hardship and to warrant approving
the application.
I. Facts
[2]
The
applicant is a 71-year-old female citizen of China who came to Canada on a
temporary visa to visit her son on November 3, 2008. Three weeks later, on
November 26, 2008, her husband suddenly passed away in China. Her son is
a Canadian citizen who lives in Edmonton with his wife and child.
The applicant is a member of the family class who could be sponsored from
abroad if her permanent residency application is not processed from within Canada.
[3]
The
applicant filed her H&C application on January 5, 2009. On August 9, 2010,
before processing her application, the Immigration Division sent her a letter
asking her for updated submissions and evidence to support her application; she
claims not to have received this letter.
[4]
As
for the rest of the facts, the parties disagree on them.
[5]
In
her reasons for rejecting the H&C Application, the Officer found that the applicant
is reasonably healthy and able to care for herself, that she has savings,
property, and a pension in China, and that she is better established there than
in Canada. In short, she found that the applicant could live in China without
undue hardship.
[6]
In
contrast, in an affidavit prepared in support of the judicial review
application before this Court, the applicant claims that since her husband’s
passing in 2008, she has had nothing to return to in China since her
only family there are elder sisters too frail to care for her. She submits that
the wait time for overseas family class applications from China is on average
six years, so she would likely be seventy-seven years old before she could
return to Canada. She has
never lived alone in her life, is depressed, and is becoming forgetful, so
doubts that she could manage on her own in China.
[7]
Furthermore,
her son claims, in an affidavit submitted in support of this application to this
Court, that she would be at risk of premature death in China because she
is too frail and elderly to live independently there. In particular, her son
claims that she is suffering from early senile dementia, that she lost her
retirement pension because the company who pays is bankrupt, that she cannot
care for herself, that she has no where to live in China because of a dispute
over her property, and that her sisters in China also suffer from dementia and
cannot care for her.
II. The
Impugned Decision
[8]
The
Officer communicated the decision rejecting the H&C Application to the applicant
by letter dated September 14, 2010. The Officer set out the various factors
that went into her decision-making in some detail, considering the applicant’s
personal relationships, her grandchild in Canada, the
hardship she would experience upon returning to China, and her
relative degree of establishment in the two countries. The Officer lists
factors supporting a positive decision, and factors not supporting a positive
decision.
[9]
The
Officer acknowledges the applicant’s depression, her reliance on her family in Canada for
emotional support, the best interests of her Canadian grandson, her son’s sense
of obligation to support his mother, and her good civil record. The Officer
notes that these factors support a positive decision. However, she concludes
that despite these factors, the application should be dismissed because undue
hardship has not been shown for several reasons. The applicant has property, a
pension, and savings in China; she is eligible to be sponsored as a family
member from abroad; the concerns about her depression worsening and causing
premature death if removed to China are only speculative; there is insufficient
evidence that she cannot be cared for or receive emotional support in China
during the processing time of her family class application; her grandson can be
cared for by his parents and by day-care services in Edmonton; and the
Application has not shown that her situation differs from that of other elderly
people in China. The Officer develops each of these ideas in some detail.
III. Issues
[10]
The
Court is called upon to review two issues:
a. Did the Officer commit a
reviewable error in failing to adequately assess the hardship involved in
applying for permanent residency from China
where the processing time is lengthy?
b. Was there a breach of natural
justice because the applicant did not receive the Immigration Division’s letter
inviting her to add further submissions and evidence to her application?
IV. Analysis
[11]
After
considering the arguments of both parties, I have come to the conclusion that
the Court’s intervention is not merited. I will review each of the issues in
turn to explain how I have reached this conclusion.
a. Did the Officer commit a
reviewable error in failing to adequately assess the hardship involved in
applying for permanent residency from China where the processing time is lengthy?
[12]
This
question is reviewable on a standard of reasonableness, as it deals with the
Officer’s assessment of the evidence regarding the potential hardship to be
suffered by the applicant. Assessing the evidence of hardship falls within the
Officer’s field of expertise: Dunsmuir v New Brunswick, 2008 SCC 9 at paras. 47
and 51-56.
[13]
I
do not find the applicant’s argument – that the Officer erred in failing to
consider China’s lengthy family class processing time in assessing hardship –
to be compelling.
[14]
The
Officer’s reasons are thorough, clear, and well-organized, and she carefully
weighs the different factors before arriving at the conclusion that a return to
China would not
constitute undue hardship for the applicant. Although the Officer does not
expressly mention that the processing time in China could be up to six years,
her whole analysis suggests an acknowledgment of the likelihood that her
decision may result in the applicant’s return to China on at least
a semi-permanent basis. The Officer’s global assessment of the applicant’s
health, finances, and establishment in China implies an
understanding of the possibility that life in China could be a
long-term reality for the applicant. At no time does she say “Given that the applicant
will only have to return to China for a short time …” or anything of the
kind. The Officer has assessed the potential hardship involved in a permanent
return to China, although
she has noted that this hardship may be at some point alleviated by a
successful family class application. I do not see how the Officer’s assessment
could be set aside as unreasonable on this point.
[15]
I
will now turn to a discussion of the second issue.
b)
Was
there a breach of natural justice because the applicant did not receive the
Immigration Division’s letter inviting her to add further submissions and
evidence to her application?
[16]
This
question is one of procedural fairness. For such a question, it is trite law that the
standard of review is that of correctness: see, for example, Canadian Union
of Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29,
[2003] 1 S.C.R. 539 at para 100; Sketchley v Canada (Attorney General), 2005 FCA 404 at para
53. When applying the correctness standard, no deference is due.
[17]
As
mentioned above, on August 9, 2010, the Immigration Division sent the applicant
a letter asking for updated submissions and evidence to support her
application. She claims to have not received this letter. On this basis, she
claims that she was denied procedural fairness, leading to a breach of natural
justice. She argues that because she did not receive the letter, she did not
submit relevant information that should have been before the Officer and that
could have changed the outcome of the decision.
[18]
Here
is the information that she claims she would have submitted, had the letter
reached her:
·
She
suffers from dementia (whereas the Officer found her to be healthy);
·
She
has no pension in China due to the recent bankruptcy of the pension
company (whereas the Officer found the applicant would have access to income
via this pension);
·
She
would be homeless in China because the property she ostensibly owns
is actually the subject of a dispute with a Communist party leader (whereas the
Officer found that she would have a place to live);
·
She
would be alone in China since her only relatives, three elder sisters, also
suffer from dementia and are unable to provide support (whereas the Officer
found that she would enjoy the support of her family);
·
Due
to his filial obligations, the applicant’s son may have to quit his job to care
for his mother if she is returned to China, which would cause
prejudice to his wife and child (whereas the Officer was unaware of this fact).
None of this information was put before the
Officer because, argues the applicant, she did not know that an update was
requested. She argues that this caused her prejudice because important
information was missing during the decision-making process.
[19]
The
applicant also argues that because it is generally the policy of the
Immigration Department to send these letters requesting updates before
processing H&C applications, she was entitled to receive one and the fact
that she did not means she was not treated fairly.
[20]
Quite apart from any
practice the Department may have of requesting these updates (a practice which
has not been proven in any case), the law makes it clear that the onus is upon
the applicant to prove her case: Owusu v Canada (MCI), 2004 FCA
38, [2004] 2 FCR 635 at para 8, Bernard v Canada
(MCI), 2001 FCT 1068, [2001]
FCJ No 1474 at para 23. The Officer had no duty to request additional
documents or facts to supplement the information provided by the applicant: Bernard,
supra at para. 24, Ly v Canada (MCI), (2000) 194
FTR 123 at para 20 (FCTD), [2000]
FCJ No 1965. The same rule is true for Visa Officers: Tahir
v Canada (MCI), [1998]
FCJ No 1354, 159 FTR 109 (FCTD) at para 8, and Lam v Canada (MCI), [1998]
FCJ No 1239, 152 FTR 316 (FCTD) at para 4.
[21]
As
the Court stated in Owusu, supra, “since applicants have the onus of establishing the facts on which
their claim rests, they omit pertinent information from their written submissions
at their peril.” Clearly, the onus was upon the applicant to give the Officer
all relevant information. Given that she claims her situation had changed so
dramatically from the time of her initial application, it would have been
prudent of her to update the file of her own initiative, but she failed to do
so. The Officer’s failure to successfully send the letter, which he had no duty
to do, cannot be considered a breach of procedural fairness in these
circumstances, especially since the evidence shows that an attempt to send the
letter was made.
[22]
Moreover, the new evidence of the
applicant’s changed circumstances is not particularly compelling, given that it
is not substantiated by any documentary evidence but merely consists of bald
assertions of fact. For that reason, it is not clear that, even if this
information had been before the Officer, it would have changed the outcome of
her application.
V.
Conclusion
[23]
For all of the foregoing reasons, I find that
the application for judicial review ought to be dismissed. No question has been
proposed for certification and none is certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that this
application for judicial review is dismissed. No question of general importance
is certified.
“Yves
de Montigny”
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