Date: 20110209
Docket: IMM-305-10
Citation: 2011 FC 152
Ottawa, Ontario, February 9,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
DAMEON
LODGE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Lodge seeks judicial review pursuant to section 72 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of a negative
humanitarian and compassionate (“H&C”) decision made on December 22, 2009
by an Immigration Officer (“Officer”) of Citizenship and Immigration Canada. The
Officer found that Mr. Lodge’s situation did not warrant an exemption from the
requirement to apply for permanent residence from outside of Canada, nor that
doing so would constitute unusual and undeserved or disproportionate hardship.
[2]
The
applicant is a citizen of Jamaica. His mother sponsored
him to come to Canada in 1999. He was 18 years of age at the time. Along
with his mother, the applicant’s stepfather and three sisters also reside in Canada. His father
and two brothers remain in Jamaica.
[3]
Mr.
Lodge became involved in criminal activity soon after his arrival in Canada. In July
2001, Mr. Lodge was convicted for failure to comply with a recognizance and
carrying a concealed weapon. He was sentenced to 15 days in prison for each
conviction. In November 2001, Mr. Lodge was convicted of failure to comply with
a recognizance, possession of break-in instruments, attempted theft, theft, and
possession of property obtained by crime. He was sentenced to one day in
prison, with 3 months pre-sentence custody taken into consideration, and 18
months probation. It appears from the Officer’s decision and reasons that Mr.
Lodge was also briefly detained in 2004.
[4]
As
a result of these convictions, for which he now has a pending application for a
pardon, the applicant lost his status as a permanent resident of Canada and a
deportation order was issued against him in 2006. Following his release from
prison the applicant had moved from Toronto, where his offences had
been committed, to London, Ontario where he met and married Kongham (Kay)
Phouttharath. They were married in 2006 and have since bought a house and have
had a son together. The applicant also has two Canadian-born daughters from two
previous relationships. They were born in December 2002 and May 2003. Each
daughter lives with their respective mothers in Toronto.The applicant also has
a daughter in Jamaica.
[5]
An
application for an exemption on H&C grounds was submitted in February 2007.
The application was denied in December 2008. That decision was quashed on judicial
review and sent back for re-determination in 2009. Justice Russell Zinn found
that the Officer had erred in weighing the evidence and, in particular, in assessing
the best interests of the applicant’s children: Lodge v. Canada (Minister of
Citizenship and Immigration), 2009 FC 870, 83 Imm. L.R. (3d) 121.
[6]
The
H&C application was denied a second time in December 2009. The Officer
found that there were insufficient humanitarian and compassionate grounds to
approve the request for an exemption and that the requirement to apply for
permanent residence from outside of Canada did not constitute
unusual, underserved or disproportionate hardship. Consequently, the application
was rejected. That decision is the matter under review in this application.
ISSUES:
[7]
The
applicant has raised several issues regarding the Officer’s consideration of
the best interests of the children, the applicant’s establishment
in Canada, the assessment of whether applying from outside of Canada would constitute
unusual and undeserved or disproportionate hardship and the adequacy of the officer’s
reasons for decision.
ANALYSIS:
[8]
The
reasonableness standard applies in the present matter: Ahmad v. Minister of
Citizenship and Immigration, 2008 FC 646 at para. 11. As stated in Inneh
v. Minister of Citizenship and Immigration, 2009 FC 108 at para. 13,
H&C decisions are discretionary in nature and are therefore afforded a
wider scope of possible, reasonable outcomes. Reasonableness is concerned
mostly with the existence of justification, transparency and intelligibility
within the decision-making process: Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.
[9]
Contrary
to the applicant’s submissions, the Officer did consider the potential hardship
to Mr. Lodge’s children which would be attendant upon his removal. The officer acknowledged
the applicant’s submissions that to remove Mr. Lodge would be to deprive the
children “of financial and emotional support” and would cause them to “lose the
love and support of their father”. The Officer reasoned, however, that if the
applicant were to return to Jamaica, the children would not
be growing up without a father. It was not unreasonable for the Officer to find
that a geographical separation did not equate to a father no longer loving or
supporting his children.
[10]
This
is not a case such as those relied upon by the applicant: Kolosovs v.
Minister of Citizenship and Immigration, 2008 FC 165; Soto v. Minister
of Citizenship and Immigration, 2006 FC 1524. In Kolosovs, the Court
found that the applicant was very much the emotional and financial support to
his four grandchildren, one of whom had special needs and thus required special
attention. In the present case, it is overreaching to suggest that Mr. Lodge
plays a comparable role in the lives of each of his three Canadian born
children. While he does certainly play a role, there are questionable
circumstances surrounding his employment and financial establishment. His two
daughters are cared for primarily by their mothers.
[11]
Soto
can
also be distinguished from the present matter. In that case, the Officer’s
decision contained only one paragraph which pertained to the children’s
interest. In the case before us, the Officer’s Notes to File were two and half typed
pages in length, single spaced, and took numerous aspects of Mr. Lodge’s
children’s interests into account. The Officer may have misunderstood the
evidence of one of the mothers as to the frequency of contacts with one of the
children in Toronto but that
does not render the decision as a whole unreasonable.
[12]
The
Officer noted the age of Mr. Lodge’s young son, finding that because he was
only five months old, the impact of the applicant’s removal would be lower. The
Officer also looked at the level of dependency between the applicant’s children
and the applicant, noting that the primary caregivers of Mr. Lodge’s two
daughters are their mothers. It was reasonable for the Officer to consider that
they would therefore continue to be cared for should the applicant return to Jamaica.
[13]
Insofar
as establishment is concerned, the Officer did note positive factors put
forward by the applicant such as his family ties. Mr. Lodge’s mother and
sisters both live in Toronto as do two of his three
children. His third child and his wife live together with him in London. He also
owns a home with his wife, Kay.
[14]
As
to employment, the officer considered the information submitted but found that
it did not favour the applicant. The officer also considered Mr. Lodge’s
volunteer activity giving it little weight because the evidence did not provide
any details about the nature of his work, the length of his contribution or the
way in which his volunteerism positively affected the community. It was open to
the officer to attach little weight to the evidence submitted and his decision
to do so does not constitute a reviewable error.
[15]
The
applicant is correct in stating that the Officer must provide “reasoned
reasons”: Adu v. Minister of Citizenship and Immigration, 2005 FC 565 at
paras. 10 and 11. The reasons must be “sufficiently clear, precise and
intelligible so that a claimant may know why his or her claim has failed and be
able to decide whether to seek leave for judicial review”: Ogunfowora v.
Minister of Citizenship and Immigration, 2007 FC 471, 63 Imm. L.R. (3d) 157
at para. 58. The applicant does not, however, present cogent arguments as to
why the reasons are inadequate in this case. He argues, for the most part, that
the Officer placed little to no weight on certain evidence. That does not
constitute a basis on which to find that the reasons are insufficient.
[16]
In
this case, it seems to me that the Officer made a clear and comprehensive analysis
of the information presented. Most of the pertinent evidence submitted was
noted in the Officer’s Notes to File. This included: letters in support of the
applicant, letters pertaining to volunteer activity, his employment and marital
status as well as family ties here in Canada and abroad.
[17]
The
Officer made no mention of the applicant’s eligibility to apply for a pardon. It
is not clear from the record that the application had been made when the matter
was before the officer. The application had been submitted but returned for
additional information as of the date of the filing of this application. It is
presumed that an officer considers all of the evidence but need not mention all
of it in the decision: Sidhu v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 741 at para. 15; Wynter
v. Canada (Minister of
Citizenship and Immigration) (2000), 185 F.T.R. 211, 24 Admin. L.R.
(3d) 99 at para. 38; Rodriguez v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 414 at para. 18. Here, the
failure to refer to the applicant’s eligibility was not material as the
applicant continued to be inadmissible for criminality when the application was
considered. A pardon will, of course, have a considerable bearing on when the
applicant may be permitted to return with his wife’s sponsorship and the
Minister’s consent, assuming he is removed, as counsel noted at the hearing.
[18]
The
application is dismissed. No serious questions of general importance were
proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application for
judicial review of the decision made on December 22, 2009 by an Immigration
Officer for an exemption on humanitarian and compassionate grounds is
dismissed. No questions are certified.
“Richard
G. Mosley”
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