Date: 20110217
Docket: IMM-3433-10
Citation: 2011 FC 190
Toronto, Ontario,
February 17, 2011
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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PENG CHOW LIM
AND TAN HWEE CHIN
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Applicants
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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]
The
applicants ask the Court to review and set aside a decision of an immigration
officer denying their application for permanent residence in Canada from within Canada on humanitarian and
compassionate grounds (the H&C application).
[2]
They
submit that the officer erred in failing to provide sufficient reasons, in
denying the applicants procedural fairness, and in making an unreasonable
decision, considering the facts adduced and the Guidelines established by the respondent.
[3]
The
application is dismissed for the reasons that follow.
Adequate Reasons
[4]
The
applicants’ memorandum reproduces lengthy passages from the officer’s decision.
They submit that much of the decision is “dismissive” due to the officer not
giving much weight to the evidence put forward. The applicants say it is trite
law that a decision maker must give reasons for the weight he or she accords
the evidence, and that here the officer has failed to do so. The applicants
say the officer simply reviewed the evidence before her and stated what weight
she assigned to it, and that this analysis did not meet the standards set out
in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2
SCR 817.
[5]
The
applicants brought the Court’s attention to a passage from Adu v Canada (Minister of
Citizenship and Immigration), 2005 FC 565, where Justice Mactavish wrote, at
para. 14, that:
In my view, these ‘reasons’ are not
really reasons at all, essentially consisting of a review of the facts and the
statement of a conclusion, without any analysis to back it up. That is, the
officer simply reviewed the positive factors militating in favour of granting
the application, concluding that, in her view, these factors were not
sufficient to justify the granting of an exemption, without any explanation as
to why that is. This is not sufficient, as it leaves the applicants in the
unenviable position of not knowing why their application was rejected.
The applicants say this is precisely the error
the officer committed here.
[6]
The
applicants also cite Raudales v Canada (Minister of Citizenship and
Immigration), 2003 FCT 385, with respect to what constitutes adequate
reasons, and submit that the Court cannot examine the decision as it stands
because it has no insight as to why the officer gave weight one way or the
other to much of the evidence.
[7]
As
examples of the concerns raised, the applicants point to a number of passages
where the officer refers to certain facts and then concludes with one of the
following statements: “I have weighed this factor and have given it moderate
weight,” “I have weighed this factor heavily,” “I have weighed all of these
factors, and do not weigh them heavily,” and “I have weighed this factor and
have not given it significant weight.”
[8]
Unlike
the decision before the Court in Adu, the officer does more in this case
than merely reproduce the facts and then conclude with a statement as to the
weight she is assigning to them. When the decision is read as a whole the
reasons for assigning more or less weight to certain pieces of evidence are
clear. For example, with respect to family and personal relationships in
Canada, the officer noted that the applicants chose to remain in Canada and complete an H&C
application, that although their daughter has little family in Canada she has been here for
almost 18 years, and that her situation is not significantly unusual. With
respect to establishment, the officer explained that the applicants’ membership
in the Windsor Senior’s Centre and their relationships in Canada were given little
weight because the applicants had provided insufficient clarification about how
severing these ties would cause hardship. The officer also noted that the
applicants have some family in Singapore and that they are financially self-sufficient. These are
all reasons why the officer assigned the evidence the weight she did. The
applicants should not be in any doubt regarding why their application was
refused, and the Court certainly is not.
Procedural Fairness
[9]
The applicants’
submission that they were denied procedural fairness rests upon the fact that
the officer requested that they provide certain documents and then concluded
that they had provided “insufficient evidence.” The applicants explain the
alleged unfairness as follow, at paras. 21 to 25 of their memorandum:
The Applicants provides [sic] the decision
maker with the evidence. Having been provided with the evidence requested, the
decision maker turns around and refused [sic] the application, in large
part, for the Applicants having failed to provide “sufficient evidence,”
despite having provided all the evidence that the decision maker had requested.
It is submitted that this is
procedurally unfair and unreasonable on its face.
Having effectively provided the
Applicant[s] an opportunity to reply to [her] concerns, by requesting
documents, fairness would dictate that all areas in which [s]he believed [s]he need [sic] more
materials and/or explanations should have been put to the applicants.
It is submitted that not doing so, under
the circumstances is simply unfair.
[10]
This
submission is without merit.
[11]
The
officer, by letter of February 9, 2010 (a date that is four and one-half years
after the H&C application was initially filed), wrote to the applicants as
follows:
Before a decision can be made about
exempting you from the requirements of the Immigration and Refugee Protection
Act, further information is required, specifically:
Evidence of employment for sponsor (include
2008 Notice of Assessment, last three pay statements, and bank statements for
the past 6 months), complete copy of valid passports for yourself and your
spouse, information regarding property or home owed in Singapore if applicable,
and any other updated information you wish to provide.
[12]
By
letter of February 23, 2010 the applicants provided the specific documents
requested and provided two short paragraphs that could be said to be “updated
information.”
[13]
The submission
of the applicants that the request for certain documents created a legitimate
expectation that the documents requested would be sufficient to allow the
decision maker to positively assess the application is without foundation. The
letter merely states that these documents are required before a decision can be
made – there is no suggestion that the decision made will be positive.
Further, when the officer writes that the applicants have failed to provide
“sufficient evidence” she is not stating that they failed to respond adequately
to the request for information; rather, she is stating that insufficient
evidence was provided by the applicants to permit her to reach the result they
wished. This is clear when that phrase is read in the context from which it
was taken: “However, the applicants have provided insufficient evidence to
illustrate that they are established to such a degree that if they had to
return to Singapore they would suffer
unusual and undeserved or unreasonable hardship.”
Reasonableness of the Decision
[14]
There
is no suggestion that the officer ignored any relevant evidence; rather, the
applicants submit that (i) it was counterintuitive of the officer to assign
negative weight to the fact that the applicants submitted an H&C
application rather than an overseas sponsorship given that if they had
submitted an overseas sponsorship there would be no H&C, (ii) that the
officer’s finding that the hardship was not the result of circumstances beyond
the applicants’ control was unreasonable given that the separation they would
have to endure for five years while a sponsorship application is being
processed is not within the their control, (iii) that the officer’s
determination that the situation was not unusual was unreasonable because
although the officer listed different factors, she did not consider whether
cumulatively the situation was unusual, nor did she consider the unusual nature
of the applicants’ daughter’s job, and (iv) that it was unreasonable for the
officer to find that the applicants would be economically self-sufficient in
Singapore when she found that the evidence was insufficient to demonstrate
establishment in Canada.
[15]
Contrary
to these submissions, I find that there is nothing about the officer’s decision
that was unreasonable. It fell within “a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9, at para.
47.
[16]
Specifically,
there was nothing problematic about the officer’s findings that the applicants
submitted an H&C application rather than an overseas sponsorship given that
this fact is directly relevant to whether or not any hardship that would be
experienced by the applicants would be beyond their control. The officer’s
reference to circumstances beyond the applicants’ control related to the
hardship of leaving Canada after living here for
five years. This is within the applicants’ control because they decided to
live here without permanent status, albeit with visitor permits.
[17]
The
officer did consider the facts cumulatively. The officer specifically stated,
in the final paragraph of her decision:
I have considered all the information
regarding this application as a whole. Having considered the grounds the
applicants have forwarded as grounds for an exemption, and weighing these
factors together globally, I do not find they constitute as [sic]
unusual and undeserved or unreasonable hardships.
[18]
The
officer did not ignore the unusual nature of the applicants’ daughter’s job as
a corrections employee. The officer acknowledged that the job was high stress
and involved shift work and overtime, but found that these features (not the
job itself) were not unusual.
[19]
Finally,
it was open to the officer to find that the applicants would be economically
self-sufficient in Singapore and still find that their establishment in Canada was not sufficient to
warrant a positive H&C decision. Economic self-sufficiency is only one
aspect of establishment, which itself is only one aspect of an H&C
determination.
[20]
Neither
party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application is dismissed and no question is
certified.
"Russel
W. Zinn"
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