Date:
20130313
Dockets: IMM-2328-12
IMM-4970-12
Citation:
2013 FC 265
Ottawa, Ontario,
March 13, 2013
PRESENT: The
Honourable Madam Justice Strickland
Docket: IMM-2328-12
BETWEEN:
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ANOWARA BEGUM
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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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Docket:
IMM-4970-12
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AND BETWEEN:
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ANOWARA BEGUM
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION AND
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT
AND JUDGMENT
I. Background
[1]
This
is an application made pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (IRPA) for judicial review of two
decisions of a senior immigration officer of Citizenship and Immigration Canada
(Officer). The first decision denied the request of Anowara Begum (Applicant),
made pursuant to subsection 25(1) of the IRPA, for an exemption on humanitarian
and compassionate (H&C) grounds from the requirement of subsection 11(1) of
the IRPA to apply for permanent residence from outside Canada. The second
decision maintained that denial upon reconsideration.
[2]
The
Applicant is a 68 year old woman from Bangladesh who arrived in Canada on October 6, 2006 as a visitor with a temporary resident visa. She submitted
her claim for refugee protection on November 25, 2008, which was denied by a
panel of the Refugee Protection Division (RPD) of the Immigration and Refugee
Board (IRB) on November 30, 2010. Her subsequent application for leave and
judicial review of that decision was denied by this Court on May 6, 2011.
[3]
By
letter from her immigration consultant dated February 26, 2011, the Applicant
applied for permanent residence on humanitarian and compassionate grounds the
(H&C Application). The grounds being 1) the interdependent relationship
between her and her daughter’s family, with whom she resides, 2) hardship if
she were to return to Bangladesh, 3) her establishment in Canada, and 4) the best interests of her grandchildren. The H&C Application was
denied on February 2, 2012 and that decision was communicated to the Applicant
on February 22, 2012 (Decision).
[4]
The
Applicant’s husband, who resided in Bangladesh throughout the time that she has
been in Canada, died on January 7, 2012. Her immigration consultant, who was
not aware that the Decision had already been rendered, communicated this fact
to the Citizenship and Immigration Canada (CIC) backlog office on February 10,
2012. The Decision was received by the Applicant on February 22, 2012 and on February
27, 2012 her consultant wrote to the Officer who issued the Decision and asked
that it be reconsidered in light of the death of the Applicant’s husband. The
H&C Application was reconsidered by the Officer on March 9, 2012 and was
again denied (Reconsideration).
[5]
The
Applicant filed an application for leave and for judicial review on March 8,
2012 with respect to the Decision (IMM-2328-12) followed, on May 23, 2012, by
an application for leave and for judicial review with respect to the
Reconsideration (IMM-4970-12). By separate Orders, both dated November 13,
2012, this Court granted leave with respect to the application seeking judicial
review of the Decision (IMM-2328-12) and of the Reconsideration (IMM-4970-12), and
ordered that the two matters be heard together. This is the judicial review of
both of those matters.
II. Positions of the
Parties
A. The Applicants Position
[6]
In
essence, the Applicant’s position is that the length of time that she has been
in Canada, the financial and emotional interdependence of the Applicant and her
daughter’s family and the marginalization that the Applicant would face in Bangladesh must lead to the conclusion that the Applicant would endure undue and disproportionate
hardship should she be required to leave Canada. Further, because the
Applicant’s daughter and son-in-law work all day during the week, her departure
would require the Applicant’s daughter to stay home with the children or hire a
third party to provide child care services. Either event is less desirable than
having the children cared for by the Applicant, a family member, and will
significantly reduce the family income which is not in the best interests of
the children nor is the severing of the emotional relationship with their
grandmother. The Applicant submits that Officer’s failure to give any weight to
her establishment in Canada was unreasonable and that he was not alert, alive
and sensitive to the best interests of the children.
[7]
With
respect to the Reconsideration, the Applicant’s position is that Officer’s
finding that the death of her husband would not have a significant impact on
her circumstances is contrary to, or ignored, the new evidence. Therefore, the
finding that the Applicant would not face unusual and undeserved or
disproportionate hardship should she leave Canada was unreasonable. Further,
that the Officer should not have drawn conclusions about the Applicant’s
financial situation from information contained in her three year old Personal
Information Form (PIF) as her situation had subsequently changed as indicated
by the submissions accompanying her request for reconsideration. The Officer
breached procedural fairness by not providing the Applicant with an opportunity
to explain the apparent inconsistencies before drawing conclusions and negative
inferences from them.
B. The Respondent’s Position
[8]
The
Respondent, in essence, submits that the Applicant is requesting that the Court
reweigh the evidence and come to a different conclusion. However, as long as the
Officer considered the relevant factors, the Court cannot interfere with the
weight given to those factors, even if it would have weighed them differently.
The power to exempt individuals from the applicable requirements for permanent
residence is exceptionally discretionary. Considerable deference is owed to an
officer when exercising such power.
[9]
The
Respondent submits that the Officer properly considered the Applicant’s
submissions including the Applicant’s six year stay in Canada, the interdependent relationship with her daughter’s family, and the best interests
of the Applicant’s grandchildren. The H&C process is not meant to eliminate
the hardship inherent in being asked to leave after one has been in place for a
period of time, but to provide relief from unusual, undeserved and
disproportionate hardship that would be caused if an applicant was required to
leave Canada and apply from abroad in the normal fashion. The Officer
reasonably concluded that it would not constitute unusual and undeserved or
disproportionate hardship if the Applicant had to return to Bangladesh.
[10]
The
Officer reconsidered his refusal of the Applicant’s H&C application
including the fact that her husband had died, but determined that the
Applicant’s submissions that she would be alone, destitute and penniless if she
returned to Bangladesh were inconsistent with the record before him. There was
no duty on the Officer to seek clarification or elicit additional financial
information from the Applicant. The Officer properly considered the request for
reconsideration based on the record before him and there was no breach of
procedural fairness.
III. Issues
[11]
I
have phrased the issues raised by the Applicant as follows:
As regards to
the Decision:
A.
Did
the Officer fail to give any weight to the Applicant’s establishment in Canada thereby causing the Decision to be unreasonable?
B.
Was
the Office alive, alert and sensitive to the best interests of the Applicant’s grandchildren?
As regards to
the Reconsideration:
C.
Was
the Officer’s decision in the Reconsideration unreasonable and reviewable as it
was not consistent with or ignored the evidence?
D.
Did
the Officer deny the Applicant procedural fairness by not allowing her to
address apparent inconsistencies in evidence about her financial situation?
IV. Standard of Review
[12]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008
SCC 9 at para 57 [Dunsmuir] held that a
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where the search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis (Dunsmuir,
above; Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189 at para 18 [Kisana]).
[13]
The
standard of review on H&C decisions is reasonableness (see De Leiva v Canada (Minister of Citizenship and Immigration), 2010 FC 717 at para 13; Adams v Canada (Minister of
Citizenship and Immigration), 2009 FC 1193 at para 14; Kisana, above, at para 18; Walker v
Canada (The Minister of Citizenship and Immigration), 2012 FC 447 at para
31 [Walker]).
When reviewing a decision on the standard of reasonableness the analysis will
be concerned with “the existence of justification, transparency and
intelligibility of the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law (see Dunsmuir, above, at
para 47; Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 59 [Khosa]). Put otherwise, the Court should only
intervene if the decision was unreasonable in the sense that it falls outside
the “range of possible, acceptable outcomes which are defensible in respect of
the facts and the law” (Dunsmuir at paragraph 47). The standard of
review for the first three issues is reasonableness.
[14]
Conversely,
with regard to the fourth issue, being whether or not an applicant has been
provided with a meaningful opportunity to respond to a visa officer’s concerns,
this a matter of procedural fairness to be reviewed on the standard of
correctness (see Rahim v Canada (Minister of Citizenship and Immigration),
2006 FC 1252 at para 12; Zare v Canada (Minister of Citizenship and
Immigration), 2010 FC 1024 at paras 20 – 21; and Yazdani v Canada
(Minister of Citizenship and Immigration), 2010 FC 885 at paras 24 – 25).
No deference is owed to a decision-maker on this standard.
V. Analysis
The
Decision
A. Establishment
[15]
The
Applicant submits that the Officer’s failure to give any weight to the
Applicant’s establishment in Canada was unreasonable.
[16]
In
the Decision the Officer acknowledged the Applicant’s submission that she had
lost many links to her home country as she had been in Canada for the last six
years, that she now had a highly interdependent relationship with her
daughter’s family, a sound pattern of financial management, was integrated into
her community with a strong civil record and no criminal convictions. The
Officer also acknowledged the Applicant’s submission that she lived with her
daughter and helped with food preparation, shopping and household chores and
that although the Applicant has a pacemaker, her daughter and son-in-law were
paying for her related medical costs such that she would not be a burden on Canada’s health care system.
[17]
The
Officer determined that the Applicant’s civil records were good, but not an
achievement, and that there was insufficient evidence to establish that the
Applicant was integrated into her community or involved in local community
activities. The Officer did not agree that the Applicant had lost her links to
Bangladesh noting that her husband (who, unknown to the Officer when the
Decision was made, had died on January 7, 2012) and two brothers were still in Bangladesh. The Officer noted that although the Applicant had alleged in her refugee claim
that she had problems with one of the brothers, the RPD previously found that
the allegation was not credible.
[18]
With
respect to the interdependent relationship between the Applicant and the
Applicant’s daughter and her family, the Officer did not find that the
Applicant would be faced with unusual and undeserved or disproportionate
hardship if she had to leave her daughter and grandchildren and return to Bangladesh. The Applicant and her daughter had been separated for many years before the
Applicant came to Canada in 2006 and, although the daughter would not be able
to help with the Applicant’s health condition if she were to return to
Bangladesh, this did not constitute unusual and undeserved or disproportionate
hardship nor was there sufficient evidence to establish that Bangladesh did not
have the knowledge and technology to care for patients with pacemakers.
[19]
When reviewing a
H&C decision, “considerable deference should be accorded to Immigration
Officers exercising the powers conferred by the legislation, given the
fact-specific nature of the inquiry, its role within the statutory scheme as an
exception, the fact that the decision-maker is the Minister, and the
considerable discretion evidenced by the statutory language” (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 62,
[1999] SCJ No 39 [Baker]).
[20]
Further,
it is not up to a reviewing court to substitute its own view of a preferable
outcome (see Kisana, above, at para 20; Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ no 1425, 157 FTR 35
at para 14), nor is it the function of the reviewing court to reweigh the
evidence (Khosa, above, at paras 59 and 61; Suresh v
Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paras 34
and 37).
The weighing of a particular factor, here establishment in Canada, is for the
Officer to determine (Gutierrez v Canada
(Minister of Citizenship and Immigration), 2008 FC 1391 at para 63; El Thahir v Canada (Minister of
Citizenship and Immigration), 2012 FC 1439 at para 43) and
the court should refrain from re-evaluating the weight given to the different
factors considered by an officer (Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para 11 [Legault]).
[21]
Here
the Applicant does not point to any specific evidence that the Officer
overlooked or misinterpreted but submits that the Officer failed to give any
weight to the evidence of establishment. However, the Decision refers to the
Applicant’s age, the length of time she has been in Canada and the interdependent
relationship with her daughter’s family. Further, when making the Decision, the
evidence of establishment on the record before the Officer was limited to the
February 26, 2011 submission of the Applicant’s immigration consultant
outlining the Applicant’s interdependent relationship with her daughter’s
family and her contribution to the running of her daughter’s household. The
Applicant did not work outside the home and there was no evidence that she
owned property in Canada or of any community interaction or other form of
establishment.
[22]
While
the Applicant
submits that the Officer’s failure to give any weight to the Applicant’s
establishment in Canada was unreasonable, in my view this is not the case. The
Decision demonstrates that the Officer did consider and weigh the evidence
before him pertaining to the Applicant’s establishment in Canada. The Officer reasonably exercised his discretion in determining what, if any, weight
was to be subscribed to the Applicant’s establishment in Canada. As I have noted above, the jurisprudence is clear that it is not the role of this
Court to reweigh the factors of the H&C determination (Legault,
above). As a result, the Applicant’s argument on this issue cannot succeed.
B. Best Interest of the Child
[23]
The
Applicant submits that the Officer was not alive, alert and sensitive to the
best interests of her grandchildren.
[24]
In
the Decision the Officer acknowledged the submission, made on behalf of the
Applicant by her immigration consultant, that a strong interdependent
relationship between the Applicant and her daughter’s family existed and that
removal from Canada would have a significant impact on her three grandchildren.
It was further acknowledged that the Applicant acts as a live in caregiver to
her grandchildren and without that support one of the children’s parents would
have to stay at home with a resultant loss of income necessary for the
children’s care and future education.
[25]
This
was followed by the Officer’s analysis of the best interests of the children:
There is only one photo showing the applicant with
her daughter and the grandchildren that has been submitted. I do not find it
sufficient to show the strong interdependent relationship between the applicant
and her grandchildren.
I agree that the applicant’s daughter may have to stay home to look after her
own children if the applicant is returned to Bangladesh. However, I do not find
it against the best interest of her three grandchildren if the applicant has to
leave Canada and submit her H&C application outside of Canada.
[26]
The
Applicant submits that the Officer failed to consider that if the Applicant’s
daughter were forced to stay home to care for the children that the family
income would, effectively, be cut in half which is not in the best interests of
the children. The Respondent submits that the evidence before the Officer was
that the grandchildren are 12, 8 and 5 years old, that the Applicant’s daughter
and son-in-law work full time but that they did not state their hours of work,
and that the Applicant’s submissions did not address whether the parents had
considered or could make alternate childcare arrangements or whether the
parents would be unable to provide the care and support that the Applicant
provides to the grandchildren. Accordingly, there was insufficient evidence
before the Officer to establish that the Applicant’s daughter would have to
stay at home or that the family’s income would be cut by half.
[27]
The
record before the Officer when the Decision was made included the February 26,
2011 submission letter from the Applicant’s immigration consultant. This stated
that the Applicant provides emotional support to the family and a real
contribution to the efficient running of the household by acting as care giver
to the young children which is important as the Applicant’s daughter and
son-in-law are employed full time. The daughter “works every day” as a Customer
Service Representative at Subway Restaurants and the son-in-law “works full
time” for Career Connections Staffing of Canada. The submission further states
that:
Since [the Applicant’s daughter and son-in-law] are
both busy during the week all day, their children need supervision to ensure
they go to school, are taken care of when they arrive from school, are fed
properly, cleaned and dressed, do their homework and that all other care is
taken of them.
[…]
As described above, a strong interdependent (sic)
has developed between the applicant and the family of her sponsor. The children
are particularly dependant on their grandmother to take care of them and raise
them, while both of the parents earn an income. Without this support, one of
the parents would have to stay at home, loosing (sic) important income
necessary for their care, and future education. The family may also
alternatively need to hire a care giver, which is a major expense, and will
likely not be live-in, and certainly not be a family member. Family members do
make better parents or surrogates because they can better (sic) trusted with
children to whom they have a stronger emotional attachment”.
[28]
When
considering the best interest of children affected by an immigration decision,
the Supreme Court of Canada has stated that:
[…] for the exercise of the discretion to fall
within the standard of reasonableness, the decision-maker should consider
children's best interests as an important factor, give them substantial weight,
and be alert, alive and sensitive to them. That is not to say that children's
best interests must always outweigh other considerations, or that there will not
be other reasons for denying an H & C claim even when children's interests
are given this consideration. However, where the interests of children are
minimized, in a manner inconsistent with Canada's humanitarian and
compassionate tradition and the Minister's guidelines, the decision will be
unreasonable
(Baker, above, at para 75).
[29]
The
foregoing indicates that while the best interests of affected children, which
include grandchildren (Walker, above, at para 38; Afocha v Canada
(Minister of Citizenship and Immigration), 2008 FC 240 at para 7), is an
important factor to consider in H&C decisions, there is no prima facie presumption
that the children’s considerations should outweigh other factors (Legault,
above at para 31; and Walker, above, at paragraph 41). Furthermore, the
onus is on the applicant to provide evidence on adverse effects to the children
should the applicant leave (Walker, above, at para
39; and Liniewska v Canada (Minister of Citizenship and Immigration),
2006 FC 591, at para 20).
[30]
In
this case the Officer’s analysis of the best interests of the children was
brief, making up only three small paragraphs of the Decision. On the other
hand, the Applicant, through her counsel’s submissions dated February 26, 2011,
provided limited evidence on the best interests of her grandchildren. Further,
the submissions made in support of this application for judicial review assert
only that the officer was not alert, alive and sensitive to the best interests
of the children in this matter because there was a failure to taken into
account the financial consequences if an alternate child care arrangement had
to be implemented, that is, a reduction in family income otherwise available
for child care and education purposes.
[31]
The
Officer acknowledged that the Applicant’s daughter may have to stay at home to
care for her children if the Applicant returned to Bangladesh. The record
before the Officer included the 2009 Notices of Assessment for the Applicant’s
daughter and her husband. Impliedly then, the Officer recognized that if the
Applicant’s daughter was required to stay home to care for her children, or if
a third party care giver was retained, then the family income would be reduced
which could impact the children. The fact that the Officer did not explicitly state
this does not mean that he was not alert, alive and sensitive to the best
interests of the children. Rather, it was one factor that he considered in
arriving at his conclusion that it would not be against the children’s best
interests if their grandmother had to submit her application for permanent
residence outside of Canada.
[32]
While
the consideration of the best interest of the grandchildren was not lengthy or
detailed, the Decision was based on the record then before the Officer.
Unfortunately, this contained little evidence of the emotional relationship
between the Applicant and her grandchildren or of any adverse effects, other
than financial, that would be suffered by the grandchildren should the
Applicant leave. On the evidence before him, the Officer took into account the
best interest of the grandchildren as required by section 25 of the IRPA, there
was no reviewable error.
The Reconsideration
C. Treatment of the Evidence
[33]
The
Applicant argues that the Officer failed to consider the emotional dependency
between the Applicant and her daughter’s family in Canada which became more
important upon the death of the Applicant’s husband. The Applicant further
argues that the Officer did not take into account the significant factual
difference between her remaining in Canada with her only nuclear family or
returning to Bangladesh. Accordingly, the Officer’s determination that the
death of the Applicant’s spouse would not have such a significant impact on her
that it would constitute unusual, undeserved or disproportionate hardship
should she leave Canada is unreasonable.
[34]
This
Court has held that there is no obligation on an immigration officer to
reconsider an application for permanent residence but that “on
the basis of fairness and common sense, a visa officer should reconsider a file
if, within days of a negative decision, new evidence that confirms a material
fact is presented” (see Mansouri v Canada (Minister of Citizenship
and Immigration), 2012 FC 1242 at para 8, citing Marr v Canada
(Minister of Citizenship and Immigration), 2011 FC 367, at para 57).
In this
case the Officer did reconsider the Decision in response to the February 29,
2012 request and submission of the Applicant’s immigration consultant.
[35]
That
submission included representations made on behalf of the Applicant by her
consultant, the death certificate of the Applicant’s husband and statutory
declarations of both her daughter and son-in-law. The daughter’s declaration
states, amongst other things, that the death of the Applicant’s husband made it
substantially more difficult for the Applicant to return to Bangladesh. As she is the Applicant’s only child, there is now no immediate family
remaining in Bangladesh. Further, that her mother has no property in Bangladesh, no savings, no inheritance or pension from her husband and would be unable to
work and destitute if she were to return. To survive, her daughter would have
to send money to the Applicant which would further reduce the family’s
financial resources. The declaration states that the Applicant depends on her
daughter’s household to live, that the Applicant takes care of her three
granddaughters while the daughter and husband work, and no one could be more
trusted than the Applicant to look after the grandchildren, and, that the grandchildren
are much attached to the Applicant and would be devastated were she to leave.
The declaration of the son-in law contains similar statements and also adds
that his daughters have become very close to their grandmother. As the youngest
are five and six years old, the Applicant has lived and taken care of them for
most of their lives and is another parent to them to whom they have become
attached.
[36]
The
Reconsideration refers to the Applicant’s February 27, 2012 request for
reconsideration including the submissions of her immigration consultant, the
statutory declarations and the death certificate. It notes that the information
contained in the submission concerning the Applicant’s financial situation is
not consistent with that provided by the Applicant in her Personal Information
Form (PIF) and the disclosure made during her refugee intake interview. In the
PIF the Applicant states “I’m a citizen of Bangladesh and live there
permanently along with my husband. A homemaker by profession, I’m economically
solvent and have regular earnings from family real estate and land”, and in her
Record of Examination, the Applicant’s own words were that “[m]y father left
some properties for me…”. Based on this inconsistent information the Office
found that there was insufficient evidence to support the Applicant’s
submission that she has no place to live if she returns to Bangladesh.
[37]
In
the Reconsideration the Officer also notes that the Applicant had lived in Dhaka, Bangladesh, for nearly sixty years before coming to Canada, still has siblings
there and, on the balance of probabilities, should know that community very
well. The Officer stated that having thoroughly reviewed the additional
submission requesting reconsideration that he did not find that the death of
the Applicant’s husband would have a significant impact on her circumstances
such as to cause unusual and undeserved or disproportional hardship if she has
to leave Canada and return to Bangladesh.
[38]
The
Applicant submits that the Officer failed to consider the evidence as to the
“emotional dependency” between the Applicant and her daughter’s family.
However, the Applicant herself made no submissions as to a mutual emotional
dependency with her daughter’s family nor did she distinguish or otherwise
address the nature of the relationship that she has with her siblings in Bangladesh. The only evidence speaking to this issue included in the submission seeking reconsideration
was the declarations described above which the Officer referenced in the
Reconsideration.
[39]
The
Applicant cites Yu v Canada (Minister of Citizenship and Immigration),
2006 FC 956 [Yu] to support her argument that the Officer did not take
into account the significant factual difference between the Applicant remaining
in Canada with her remaining nuclear family and her return to Bangladesh. In Yu,
above, the issue was whether
the immigration officer erred in finding that the applicant, Ms. Yu, was not a de
facto family member of her sixty one year old twin sister’s family. Ms. Yu
had a close and dependant emotional relationship with her twin and had resided
for most of her life with her twin sister’s family before they immigrated to Canada and had sought to be reunited with her since that time.
[40]
Yu is distinguishable as it
concerns the issue of de facto family members and because there the
evidence established the very close emotional dependency between the siblings
which evidence had been ignored by the immigration officer. The court noted
that there is a “significant factual difference”
between living together and sharing day-to-day life and an occasional visit,
but its conclusion was founded on its finding that the officer did not consider
the relevant humanitarian and compassionate factors in finding that Ms. Yu was
not a de facto family member.
[41]
As
noted above, an H&C decision is reviewable on the standard of
reasonableness. Further, when reviewing an H&C decision considerable deference should be accorded to the immigration officer (Baker, above,
at paragraph 62). Accordingly, the Officer in this case is owed considerable
deference in the absence of any misinterpretation or ignoring of the evidence.
I am satisfied that the Officer reviewed and considered the Applicant’s
February 27, 2012 request for reconsideration, including what evidence there was of the
emotional dependency asserted by the Applicant.
[42]
Further, I am satisfied that the Officer reasonably afforded little or
no weight to the statutory declarations of the Applicant’s daughter and
son-in-law concerning the financial circumstances of the Applicant as they
appear to be contradicted by her own prior representations.
[43]
Finally, it should be noted that the Applicant submitted an
affidavit dated May 20, 2012 in support of her application for judicial review
of the Reconsideration. This affidavit did address her changed financial
circumstances and other matters and included statements from her grandchildren
as to the impact that separation from her would have on them. However, that
evidence was not on the record before the Officer when he made his
Reconsideration on March 9, 2012. For that reason it also cannot be considered
by this Court (see Saifee
v Canada (Minister of Citizenship and Immigration), 2010 FC 589 at para 28 [Saifee]).
D. Procedural Fairness
[44]
The Applicant submits by her counsel’s submissions to this
Court, and in her May 20, 2012 affidavit made in support of the application for
judicial review of the Reconsideration, that her brother has taken over the
family properties and, as a result, she no longer derives an income from them. She
argues that she
should have been given an opportunity to address any concerns the Officer had
about the discrepancy between what she reported in her PIF and
during her refugee intake interview, and what was stated in the statutory
declarations submitted by her daughter and son-in-law in support of her request
for reconsideration of the H&C Decision.
[45]
As noted above, the evidence regarding the Applicant’s brother having
taken over the family properties is new evidence that was not before the
Officer. Further, this evidence was apparently available prior to the
Applicant’s husband’s death, as she states in her affidavit that her brother
“stopped providing an income to [her] or [her husband] while he was alive”.
This Court has repeatedly held that a judicial review application is to be
determined on the basis of the record before the decision-maker (Saifee, above at paragraph
28). Accordingly, the Applicant may not now rely on that affidavit evidence to
challenge the Reconsideration.
[46]
Moreover, the onus was on the Applicant to place before the Officer all
information available to support her H&C application (Mann v Canada (Minister of Citizenship and Immigration), 2002 FCT 567). As held in Kisana,
above, at paragraph 45:
26 In the case of visa
applicants, the minimum degree of procedural fairness to which they are
entitled is at the low end of the spectrum (Chiau v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 297, at para. 41 (C.A.); Khan v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C.
413, at paras. 30-32; Patel v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 55, 23 Imm. L.R. (3d) 161, at para. 10).
27 In general, the onus is on
a visa applicant to put his best foot forward by providing all relevant
supporting documentation and sufficient credible evidence in support of his
application. The onus does not shift to the visa officer and there is no
entitlement to a personal interview if the application is ambiguous or
supporting material is not included (Silva v. Canada (Minister of
Citizenship and Immigration), 2007 FC 733, at para. 20).
28 In addition, a visa
officer has no legal obligation to seek to clarify a deficient application (Sharma
v. Canada (Minister of Citizenship and Immigration), 2009 FC 786, at para.
8; Fernandez v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 994, at para. 13; Dhillon v. Canada (Minister of Citizenship
and Immigration), [1998] F.C.J. No. 574, at para. 4), to reach out and make
the applicant's case (Mazumder v. Canada (Minister of Citizenship and
Immigration), 2005 FC 444, at para. 14), to apprise an applicant of
concerns relating to whether the requirements set out in the legislation have
been met (Ayyalasomayajula v. Canada (Minister of Citizenship and
Immigration), 2007 FC 248, at para. 18), or to provide the applicant with a
"running-score" at every step of the application process (Covrig
v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No.
1413, at para. 21). To impose such an obligation on a visa officer would be
akin to requiring a visa officer to give advance notice of a negative decision,
an obligation that has been expressly rejected (Ahmed v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 940 (QL); Sharma,
above).”
[47]
Here
the Officer was entitled to refer to the information previously provided by the
Applicant and was under no obligation to give notice to the Applicant that the
information concerning her financial situation submitted by way of the
statutory declarations contradicted the information that she had previously
given by way of her PIF and her refugee intake interview and to offer her an
opportunity to address the contradiction. There was no breach of procedural
fairness.
VI. Conclusion
[48]
The
Officer did not ignore or misinterpret any of the evidence. The Decision and
Reconsideration were reasonable as they fell within the range of acceptable
outcomes that are defensible in fact and law. As the Officer considered the
relevant H&C factors, this Court cannot enter into an exercise of
reweighing them, even though I may have weighed them differently. The burden
was on the Applicant to put forward all available evidence to support the
original H&C application and the request for reconsideration. The Officer
had no duty to advise the Applicant of the discrepancy in the financial
evidence and did not breach the duty of fairness owed to the Applicant.
[49]
In
the result, the applications for judicial review must be dismissed.
[50]
Neither
party wished to submit a proposed serious question of general importance for my
consideration nor does one arise.
JUDGMENT
THIS
COURT’S JUDGMENT is that the applications for judicial review are
dismissed. No question of general importance for certification has been
proposed and none arises.
"Cecily Y.
Strickland"
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