Docket: IMM-1641-13
Citation:
2014 FC 382
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 28, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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DICKENS CHERY
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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
I.
Preliminary remarks
[1]
It appears for a second time, from a second
judgment of this Court reflecting the initial judgment, that a preoccupation
with an exclusion from the family class under paragraph 117(9)(d) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], has
prevented an officer, in the Court’s view, from assessing the relevant
humanitarian and compassionate factors as specified previously.
[2]
The Court recognizes that the adequacy of
reasons must be assessed in context and that an officer’s reasons need not
mention every detail or fact taken into consideration (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708). However, in this case, the officer’s decision and CAIPS
(Computer Assisted Immigration Processing System) notes contain no analysis of
the humanitarian and compassionate factors raised by the applicant. It is
impossible to determine what motivated the officer to find that these factors
did not justify an exemption.
II.
Introduction
[3]
This is an application for judicial review
brought pursuant to subsection 72(1) of the IRPA against a decision,
rendered by a visa officer on December 12, 2012. The officer rejected the
applicant’s application for permanent residence on humanitarian and
compassionate grounds as a member of the family class.
III.
Facts
[4]
The applicant, Dickens Chery, is a citizen of
Haiti. His father, Pierre-Louis Chery, immigrated to Canada in 1988.
[5]
On January 6, 2005, the latter filed an
application to sponsor the applicant.
[6]
This sponsorship application was rejected on
April 18, 2005, on the grounds that the applicant was excluded from
membership in the family class under paragraph 117(9)(d) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations], his father
having failed to declare him on his permanent residence application.
[7]
The decision was appealed to the Appeal Division
of the Immigration and Refugee Board [Board]. The Board dismissed the appeal, holding
that it lacked jurisdiction to consider the application of humanitarian and
compassionate considerations.
[8]
On July 30, 2009, the applicant’s father
filed a second application for a permanent resident visa for the applicant, based
strictly on compassionate and humanitarian grounds.
[9]
On December 1, 2009, the applicant filed a
permanent residence application on his own behalf and wrote [translation] “other: humanitarian
immigration” in response to the question [translation]
“Under which category are you applying?”
[10]
On March 2, 2010, the applicant received a
letter indicating that he met the eligibility criteria. After receiving a
positive paternity test [DNA test], the immigration authorities began to
analyze whether he met the other requirements.
[11]
The applicant was called to an interview at the
Canadian Embassy in Haiti on August 2, 2010. The officer conducting the
interview told him that his application had been refused because he had not
received a DNA test or evidence proving dependence. There was no mention of
humanitarian and compassionate considerations in the officer’s CAIPS notes or
the letter.
[12]
After realizing that it had in fact received the
DNA test, the Embassy asked the officer to reconsider the matter. The officer
noted in his CAIPS notes that his decision was to be upheld because there was
still no evidence of dependence and the applicant was excluded from the family
class under paragraph 117(9)(d) of the Regulations. The officer
also indicated that he had considered the humanitarian and compassionate
considerations even though no request in that respect had been made. The
applicant was informed of that decision on August 24, 2010.
[13]
On August 31, 2010, the decision was
appealed to the Board, which dismissed the appeal on the grounds that it was res
judicata.
[14]
On July 20, 2012, the Federal Court quashed
the decision and remitted the matter to an officer of the Canadian Embassy in
Haiti for reconsideration. The Court held that the matter was not res
judicata, since the applicant’s visa application was entirely based on
humanitarian and compassionate grounds. The Court held that the issue of
whether a person is excluded in accordance with paragraph 117(9)(d) of
the Regulations is completely separate and independent from the issue of
humanitarian and compassionate considerations” (Chéry v Canada (Minister of
Citizenship and Immigration), 2012 FC 922, 416 FTR 14 at para 21).
[15]
In early December 2012, the applicant was called
in for a new interview at the Canadian Embassy in Haiti.
[16]
On December 12, 2012, the applicant’s
application for permanent residence was again rejected. The applicant is
seeking a judicial review of that decision.
IV.
Decision under review
[17]
In his letter dated December 12, 2012, the
officer begins his decision by determining that the applicant is excluded from
the family class under paragraph 117(9)(d) of the IRPA.
[18]
The officer then addressed the applicant’s
humanitarian and compassionate grounds. He assessed the humanitarian and
compassionate considerations as follows:
[translation]
Having considered and assessed all of the
factors relating to your application, following your interview, I have
concluded that there are no humanitarian and compassionate considerations justifying
an exemption from any applicable criteria or obligations under the Act.
V.
Issue
[19]
Is the officer’s decision rejecting the
application for permanent residence reasonable?
VI.
Relevant legislative provisions
[20]
Section 25 of the IRPA applies in this case:
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25. (1) Subject to subsection (1.2), the
Minister must, on request of a foreign national in Canada who applies for
permanent resident status and who is inadmissible — other than under section
34, 35 or 37 — or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada — other than a foreign national
who is inadmissible under section 34, 35 or 37 — who applies for a permanent
resident visa, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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[21]
Paragraph 117(9)(d) of the
Regulations also applies to this case:
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117.
(9) A foreign national shall not be considered a member of the family class
by virtue of their relationship to a sponsor if
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117.
(9) Ne sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes
suivantes :
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…
(d) subject to
subsection (10), the sponsor previously made an application for permanent
residence and became a permanent resident and, at the time of that
application, the foreign national was a non-accompanying family member of the
sponsor and was not examined
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[…]
d) sous réserve du paragraphe (10), dans le cas où le répondant est
devenu résident permanent à la suite d’une demande à cet effet, l’étranger
qui, à l’époque où cette demande a été faite, était un membre de la famille
du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un
contrôle.
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VII.
Standard of review
[22]
The standard of review for a decision rendered
under subsection 25(1) of the IRPA is reasonableness (Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360).
VIII.
Analysis
[23]
The applicant submits that the officer committed
a reviewable error in failing to analyze or consider the humanitarian and
compassionate factors applicable to his situation by providing inadequate
reasons.
[24]
The Court agrees with the applicant that the
officer provided inadequate reasons with respect to the humanitarian and
compassionate factors.
[25]
The jurisprudence makes it clear that, in some
cases, section 25 of the IRPA can mitigate the harshness of the requirements
of the Act, including any harshness resulting from paragraph 117(9)(d)
(Liu v Canada (Minister of Citizenship and Immigration), 2013 FC 917).
[26]
Justice Yves de Montigny stated the
following in Sultana v Canada (Minister of Citizenship and Immigration),
2009 FC 533, [2010] 1 FCR 175:
[25] . . . one must not
forget that the presence of s.25 in the IRPA has been found to guard
against IRPA non-compliance with the international human rights
instruments to which Canada is signatory due to s.117(9)(d): De Guzman v.
Canada (Ministar of Citizenship and Immigration), 2005 FCA 436, at paras.
102-109. If that provison is to be meaningful, Immigration officers must do
more than pay lip service to the H&C factors brought forward by an
applicant, and must truly assess them with a view to deciding whether they are
sufficient to counterbalance the harsh provision of s.117(9)(d). . . . [Emphasis
added.]
[27]
It was therefore not sufficient for the officer
to state that [translation] “there
are no humanitarian and compassionate considerations justifying an exemption
from any applicable criteria or obligations under the Act”. The officer had to
explain why the circumstances did not justify an exemption.
[28]
The Court addressed a similar situation in Bernard
v Canada (Minister of Citizenship and Immigration), 2011 FC 1121:
[18] In this case, the female applicant
did indeed raise humanitarian and compassionate considerations. Among other
things, she mentioned in her affidavit that she would suffer emotionally from
her father’s absence, that she could not expect to continue her studies without
his support and that she would be deprived of many opportunities for personal,
social and academic development if she were to remain in Haiti rather than
joining her father in Canada. It is true that Mr. Bernard’s submissions to the
immigration officer could have been more thorough. However, the fact remains
that the officer completely disregarded elements raised by the female applicant
and was content to find that the female applicant’s situation was not different
from that of all Haitians. This is clearly insufficient.
[19] The officer needed to give more
details for his decision, if only to indicate that he had truly taken into
account the female applicant’s specific situation, particularly the extreme
deprivation of her mother and her emotional relationship with a father whom she
had just discovered. The officer’s terse comments do not make it possible to
find that he carefully considered Fabiola’s best interests and do not meet his
obligation to give sufficient reasons in support of his decision (VIA
Rail Canada Inc. v. National Transportation Board (CA), [2001] 2 F.C. 25,
[2000] F.C.J. No.1685 (FCA)(QL). [Emphasis added.]
[29]
The Court reaches a similar conclusion in this
case. The officer’s “terse” comments in no way make it possible to find that he
considered the humanitarian and compassionate factors raised by the applicant.
[30]
The Court recognizes that the adequacy of
reasons must be assessed in context and that an officer’s reasons need not
mention every detail or fact taken into consideration (Newfoundland and
Labrador Nurses’ Union, above). However, in this case, the officer’s
decision and CAIPS notes contain no analysis of the humanitarian and
compassionate factors raised by the applicant. It is impossible to determine
what motivated the officer to find that these factors did not justify an
exemption.
[31]
The Court is of the view that the officer’s
reasons, even when read together with the outcome, do not allow the Court to
determine whether the result fell within the range of possible, acceptable
outcomes. They do not show the applicant why his application was rejected or
allow the Court to determine whether the officer’s decision was justified (Via
Rail Canada Inc. v National Transportation Office, [2001] 2 FC 25 (CA)). Accordingly,
the decision is set aside.
IX.
Conclusion
[32]
For all of the above reasons, the applicant’s
application for judicial review is allowed and the matter referred back for
redetermination by a different officer.
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