Docket: IMM-10224-12
Citation: 2013 FC 1081
Toronto, Ontario, October 28,
2013
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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SANTOSH PAUL AND
BAHADUR SINGH AHLUWALIA
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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 ORDER AND ORDER
[1]
In the present Application the Applicants challenge
a negative decision rendered by an Immigration Officer (Officer) with respect
to their application to be granted permanent residence from within Canada on
humanitarian and compassionate considerations pursuant to s. 25 of the Immigration
and Refugee Act (IRPA). The Applicants argue that the Officer
ignored the reality of their lives and, therefore, the decision rendered is
unreasonable. For the reasons that follow I agree with this argument.
[2]
To support the Applicants’ application for
landing, their Counsel provided the following particulars to the Officer in
support of an argument that a positive humanitarian and compassionate decision
should be rendered:
The
applicants are an elderly Indian couple; the male is 78 and the female 76. At
this advanced age, they are becoming ever more reliant on the support of their
children. This is particularly true for the female. In the past, in India they
got such support from their elder son, Sushil. However, with his unexpected and
tragic death at the age of 49 last January, they no longer have such support. Needless
to say the death of their son has impacted the applicants severely. Their
remaining two sons, Prit Kamal (PK) and Sunil have brought their parents to
Canada, to look after them. The family now hopes to make the parents (and
grandparents) stay in Canada with them permanently. While the death of their
son still weighs heavily on them, they are much better to deal with it,
surrounded by their family, as they are in Canada.
The
applicants had three sons; two of them have been in Canada since 1996. They are
both Canadian citizens, both doing well financially. They have families and
children that love and support their grandparents. Prit Kamal (PK) Ahluwalia
owns a successful, large and well known Indian restaurant in Toronto's theater
district, Dhaba Indian Excellence, employing not only themselves but several
others. In 2001 they purchased a condominium in downtown Toronto for $325,000.
Clearly it is worth much more ten years later. They also have over $ 200,000 in
funds with their bank. The other brother Sunil and his spouse are also well
established, and earned just under $96,000 last year, and continue to work for
Peel Plastic Products and Gate Gourmet respectively. All their children are
doing well and pursuing education in Canada. They are all Canadian.
The
parents are happy with them, and they are willing and able to support them. The
2 families are ready and willing to sponsor them, but the time needed to
finalize the processing of such an application is well over 6 years, this would
lead to prolonged periods of separation, which would be very difficult on the
parents. In particular in light of their recent tragedy.
In
light of their advanced years, the applicants wish to spend as much of what
remains of their lives, with their children and grandchildren. If they await
for a Family Class application to be finalized they would have to wait over 6
years, which they may not have, or which may constitute much of the time they
have remaining. Therefore, they asks [sic] that they be allowed to remain in
Canada, and that this application be granted so that they will not have to
return to India, and be separated from their family.
(Applicants’
Application Record, p. 23)
[3]
The whole of the Officer’s decision is addressed
in the following three-part analysis.
[4]
First, with respect to the Applicants’ mental state
arising from their son’s death, the Officer found as follows:
The
applicants state that since their son in India who took care of them, died over
two years ago, they were struggling emotionally, physically and mentally as
they had no one left to take care of them. I can understand and empathize
with the fact that their son in India left a huge emotional whole [sic] for
this couple. However, I am not satisfied fully what extent their
suffering actually was due to lack of evidence about this. As such, I am not
giving much weight to this factor. The applicants still have each other and
are not alone. I am not satisfied that they or the family could not find
help in India to take care of them on a daily basis. Again, not taking this
factor much into account.
The
submissions contend that remaining to live in the house which they shared with
their deceased son was leading them into depression and no desire to live. They
also state that living in Canada with family helps them be supported and move
on from their son's death. Again, insufficient evidence about their mental
state has been demonstrated on this application. The fact that they do not
want to live in the same house in understandable, but I am not satisfied that
they could not find a new place to dwell especially with the help of their
successful son from Canada. Living with their family in Canada could help
them but I am not satisfied that having help in India would also not help them.
As such, I cannot give much weight to this factor either.
[Emphasis
added]
I have the
following comments about this finding. Having found a huge emotional hole left
in the Applicants’ lives by the death of their son, and understanding and
empathizing with them in their loss, in the very next breath the Officer
discounts that very response. Obviously the suffering is the result of the
death; on the evidence there is no other emotional factor in play. To say that
the Applicants have each other is evidence that the Officer has missed the
point of the application, to say the least. The Applicants are together, but in
their condition, which the Officer has said is understandable, they critically
need the ongoing support of their family in Canada. While the Officer admits
that living with their family in Canada could help the Applicants,
nevertheless, the Officer seems to believe that there is also similar care
available for them in India. Again, this comment misses the point. The application
for humanitarian and compassionate consideration is based on evidence that the
care the Applicants require to stabilize and improve their lives is only the
care of their family in Canada.
[5]
Second, with respect to the need to acquire
permanent residence on H&C grounds from within Canada rather than from
overseas, the Officer found as follows:
The
application also surmises that presently it takes 47 months or 6 years to
process parents and grandparents overseas for permanent residence. This they
state is a prolonged separation that would be difficult. The fact that it
takes that length of time to process parents is a situation that everyone in
those circumstances must accept. It is not unique to this couple and it is
standard processing time. As this is the regular procedure and timings I am
not giving much weight to this factor. The applicants may continue to visit
their family in Canada and are eligible to apply for visitor visas to return. I
am also satisfied that sufficient evidence has been shown that the family are
also financially capable to travel to India to be with their loved ones. As
such, not much weight will be put on this factor either.
[Emphasis
added}
I have the
following comments about this finding. The fact that the Applicants are in
their late 70’s means that they might not be alive to survive the inordinate
processing time which the Officer finds is normal. In this respect the
Applicants have a special argument that might be described as unique. By
expressing the idea that the Applicants’ Canadian family can visit the
Applicants in India is evidence of a failure on the part of the Officer to
recognize the core reason for the making the s. 25 application: it is not about
visits, it is about the urgent need to provide permanent residence in Canada.
[6]
And third, with respect to the issue of
establishment, the Officer found as follows:
The
applicant's [sic] establishment in Canada has also been looked at. The
applicants have been here for a little over one year. They are at a retirement
age and cannot work. Their family in Canada supports them and they are living
in their house. They have two sons and their families who visit them and live
with them. I am not satisfied that there is a sufficient level of
establishment in Canada that it overcomes the fact that there is a lack of
other humanitarian factors.
[Emphasis
added}
I have the
following comment about this finding. While establishment in Canada might be a
primary factor in granting an H&C application, it is not a factor in the
present case. The Applicants are not maintaining establishment. They are
maintaining practical and emotional need for support of their family in Canada.
In the passage quoted, the Officer seems to understand the situation at hand,
but pays no attention to it. The last sentence in the passage just quoted is evidence
that the Officer believes that there is no merit to the arguments presented. What
is so very obvious about the Officer’s decision is that it is devoid of any
sense of compassion.
[7]
As is well recognized in the review of decisions
under s. 25 of IRPA, decision-making by immigration officers is assisted
by the Minister’s Guidelines which state as follows:
A
positive H&C decision is an exceptional response to a particular set of
circumstances. The hardship of having to apply for a permanent resident visa
from outside of Canada would pose, in most cases, an unusual and undeserved
hardship that was not anticipated by the Act of Regulations. The hardship in
most cases is the result of circumstances beyond a person’s control. Or, that
the hardship would have a disproportionate impact on the applicant due to their
personal circumstances.
(IP
5 Operational Manual - Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds)
[8]
The argument advanced to the Officer in the
present case can be identified as one based on unusual, undeserved, and
disproportionate impact. In Damte v Canada (Citizenship and Immigration),
2011 FC 1212 at paragraphs 33 and 34, I have expressed what these considerations
should mean:
Thus,
the Guideline test requires a subjective as well as an objective evaluation of
hardship: unusual hardship might only require an objective analysis, whereas
undeserved and disproportionate impact hardship requires both an objective as
well as a subjective analysis. A subjective analysis requires that the facts be
viewed from an applicant’s perspective. In particular, a disproportionate
impact analysis must reflect an understanding of the reality of life a person
would face, in body and mind, if forced to leave Canada. In my opinion, to be
credible in determining these essential features, a decision-maker must
apparently, and actually, apply compassion.
Applying
compassion requires an empathetic approach. This approach is achieved by a
decision-maker stepping into the shoes of an applicant and asking the question:
how would I feel if I were her or him? In coming to the answer, the
decision-maker’s heart, as well as analytical mind, must be engaged.
[9]
In the end result, because I find that the
Officer exhibited a profound misunderstanding of the evidence in reaching the
decision under review, I find that the decision is unreasonable.
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