Docket: IMM-3012-13
Citation:
2014 FC 680
Ottawa, Ontario, July 14, 2014
PRESENT: The
Honourable Madam Justice St-Louis
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BETWEEN:
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GHAZALA PERVAIZ AND MUMTAZ HUSSAIN
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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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JUDGMENT AND REASONS
[1]
This is an application for judicial review made
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA) of a decision of an Immigration Officer of the High
Commission of Canada in Islamabad (the Officer) refusing Ghazala Pervaiz (the
Principal Applicant) and her husband Mumtaz Hussain’s (together, the
Applicants) application for permanent residence as members of the Family class.
The Officer also refused to grant an exemption on humanitarian and
compassionate (H&C) grounds.
[2]
On the basis of the analysis set out below, this
application for judicial review ought to be dismissed.
I.
FACTS
[3]
The Applicants are citizens of Pakistan. The
Principal Applicant was born in 1955 and her husband was born in 1947. They
have no children and are now both retired. They are financially stable and own
personal and real property in Pakistan.
[4]
The Principal Applicant submitted an application
for permanent resident status under the Family class, sponsored by her brother,
including her husband as her dependant. By a letter dated January 8, 2010 sent
to Citizenship and Immigration Canada by their legal representative and
accompanying the afore-mentioned application, the Applicants also asked that
H&C grounds under subsection 25(1) of the IRPA be assessed and for that
purpose included a number of affidavits from their family members in Canada
stating that they would support the Applicants emotionally and financially,
including receiving them in their homes.
[5]
On February 20, 2013, the Officer rejected the
Principal Applicant’s application on the basis that she was not a member of the
Family class with respect to the sponsor pursuant to subsection 117(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRPR).
[6]
On April 25, 2013, the Applicants filed the
application for leave and judicial review of the Officer’s decision. Leave was
granted by Justice Mandamin on March 27, 2014.
[7]
As background information, the Principal
Applicant alleges that she assisted her siblings in raising their children, and
that the Applicants have strong ties with her family. After the death of her
father in 1994, the Principal Applicant’s mother moved in with the Applicants,
which led the Applicants’ home to become the central place for family
gatherings. The Applicants claim, on the other hand, not to have any connection
with her husband’s family.
[8]
The Principal Applicant’s siblings and their
children now live in Canada and are Canadian citizens or permanent residents except
for one brother who lives in the US. However, they regularly travelled to the
Applicants’ home in Pakistan to visit. The Applicants’ niece travelled to
Pakistan to celebrate her wedding with them. The Applicants also visited Canada
in 2003 and 2004 to participate in the weddings of their niece and nephew.
[9]
However, as the Applicants began aging, they
claim it has become difficult for them to travel. They also indicate that it
has become complicated for the Principal Applicant’s family to travel to Pakistan
from Canada because of their schedules and the costs. Furthermore, the
Applicants submit that the regional instability since 2010 makes it dangerous
for foreigners to travel to Pakistan.
[10]
The Applicants allege that they are isolated
from family members and that this imposes hardship on their emotional health
and wellbeing. The Principal Applicant also claims that her mother’s death in
2010 increased her loneliness. Since the Applicants are aging, they also state
they require the family’s presence and support.
II.
IMPUGNED DECISION
[11]
The Officer rejected the Principal Applicant’s
application on the basis that she was not a member of the Family class.
[12]
The Officer also indicated that there were
insufficient H&C grounds to grant an exemption under subsection 25(1) of
the IRPA.
[13]
The Computer Assisted Immigration Processing
System (CAIPS) notes further underline that although the Principal Applicant’s
family is willing to sponsor the Applicants and have the means to do so, “there [was] no factor raised in the material provided that
would suggest a particular hardship would be faced, by the Applicants or by
their family”. They also indicate that the Applicants “have visited and may still visit their family, and their
family can afford to visit them.” Consequently, there were insufficient
factors triggering an H&C exemption.
III.
ISSUES
[14]
The Officer’s conclusion that the Principal
Applicant is not a family member pursuant to subsection 117 (1) of the IRPR is
not contested. This application for judicial review turns on the following two
main questions:
a)
Did the Officer err in her analysis of the
H&C grounds underlying this application?
b)
Did the Officer fail to provide reasons for
refusing the application?
IV.
STANDARD OF REVIEW
[15]
It is well established that the reasonableness
standard applies to an application for judicial review of an H&C decision
(see Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18. See also Frank v Canada (Minister of
Citizenship and Immigration), 2010 FC 270 at paras 15-16 [Frank]). This
standard also applies to whether someone is a de facto family member (Da
Silva v Canada (Minister of Citizenship and Immigration), 2011 FC
347 at para 14 [Da Silva]).
[16]
As for the sufficiency of the Officer’s
reasons, the situation at bar is similar to the one in Nicolas v Canada
(Minister of Citizenship and Immigration), 2010 FC 452, where Justice
Pinard stated the following:
[11] […] The issue of the sufficiency of
the officer’s reasons involves procedural fairness, and so the applicable
standard of review, in theory, is correctness. However, because there is no one
form of reasons that is acceptable, and the function of reasons is primarily to
ensure that the administrative decision is justified, transparent and
intelligible, the standard for the sufficiency of the reasons is in fact more
similar to reasonableness than to correctness.
[17]
The analysis in the current case falls within
the assessment of intelligibility and reasonability of the Officer’s reasons.
Consequently, the applicable standard of review to the second issue at hand will
also be reasonableness.
V.
ARGUMENTS OF THE PARTIES
(a) Applicants’ Arguments
[18]
The Applicants first submit that the Officer
erred in ignoring the material in support of the H&C application as well as
the relevant guidelines. The Operational Manual concerning Overseas Processing
OP4 – The processing of applications that include a request for humanitarian
and compassionate or public policy consideration (the OP4 Manual) indicates at
Section 8.4 that some situations of dependence could give rise to the defining
of an individual as a de facto family member. This could include, for
example, a “brother or sister left alone in the country
of origin without family of their own” or “an
elderly relative such as an aunt or uncle”. Section 8.4 also provides
that dependency must be determined by assessing, among other factors, the level
of dependency, the stability and duration of the relationship, the impact of
separation, the financial and emotional needs of the applicant and the ability and
willingness of the family in Canada to provide support. The Applicants argue
that they have provided evidentiary documents proving the elements cited above,
and thus should have been considered as de facto family members. Furthermore,
they submit that because of their age and retirement, they fall within the
definition of elderly.
[19]
The Applicants submit that it is mandatory for
the Officer to follow the OP4 Manual guidelines, that it has been recognized
that an officer’s discretion has to be exercised within the context established
in these guidelines (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 72).
[20]
The Applicants are also of the view that by
rejecting their application, the Officer is going against one of the objectives
of the Canadian immigration scheme, namely the reunification of families, found
in paragraph 3(1)(d) of the IRPA.
[21]
According to the Applicants, the Officer has not
taken into account all the elements enumerated at section 5.9 of the OP4
Manual, such as ties to Canada, factors in the country of origin, health
considerations and consequences of the separation of relatives. It is trite law
that an officer must consider all the evidence before him or her for a decision
to stand. It is the Applicants’ view, however, that in the case at bar, the
Officer failed to assess the hardship that the Applicants would face. The
Officer ignored the affidavit of the family members indicating their concerns
about the Applicants’ state of loneliness and their own limited ability to
travel to Pakistan to visit them; it was also unreasonable to expect that the
family would continuously leave their life in Canada to go to Pakistan to
assist the Applicants. Furthermore, while the Officer considered financial
dependency, she failed to take into account the Applicants’ emotional and
physical dependency on their family in Canada, as well as the impact of a
rejected application on the Applicants.
[22]
Concerning the insecurity in Pakistan, the Applicants submit that while they did not provide documentation on the matter, this
information should have been known by the Officer since documents on country
conditions are publicly available and the Government of Canada has issued
travel warnings for Pakistan.
[23]
The Applicants also submit that the Officer
breached procedural fairness by failing to provide sufficient reasons
supporting the refusal. If the Officer had concerns about the application she
should have given them an opportunity to address these concerns.
[24]
In a further memorandum dated May 21, 2014, the
Applicants submit that the affidavit of Raymond Gillis, immigration officer in Islamabad, submitted by the Respondent and dated May 8, 2014 should be struck for
three reasons. First, this affidavit does not only state facts, but also the
opinion of the officer, in breach of subsection 81(1) of the Federal Court
Rules, SOR/98-106. Second, Mr. Gillis has made submissions on the merits of
the application, which is not acceptable in such an affidavit. Finally, Mr.
Gillis was not the officer who decided the case and has therefore no personal
knowledge of the matter.
(b)
Respondent’s Arguments
[25]
The Respondent first submits that, generally,
the Applicants did not identify the Officer’s errors, but rather restated the
merits of their visa application, which is irrelevant since a judicial review
is not an appeal.
[26]
The Respondent is also of the opinion that the
Officer referred to all of the Applicants’ submissions in the CAIPS notes and
that the Applicants do not identify any particular element that was set aside
erroneously or ignored. Moreover, the fact that officers do not refer to an
element in their notes or in the decision does not automatically mean this
element was ignored or not taken into consideration.
[27]
Specifically regarding the Applicants’ claim
that they are de facto family members, the Respondent argues that it should be
dismissed for two main reasons. First, the Applicants have not explained how or
why the Officer ignored the situation. Second, to be considered de facto family
members, applicants must demonstrate a high level of dependence. However, the
Applicants have stated on many occasions that they are independent, mainly
financially. The Applicants do not fall either within one of the categories
discussed at sections 6 and 8.4 of the OP4 Manual, such as “a son, daughter (over age 22), brother or sister left alone in
the country of origin without family of their own; an elderly relative such as
an aunt or uncle or an unrelated person who has resided with the family for a
long time.”
[28]
The Respondent submits that the other H&C
factors listed at section 8.4 of the OP4 Manual are not present or are not
significant. First, the Applicants submit that they have strong ties with their
family and have been involved in their nieces and nephews lives for many years,
a fact recognized by the Officer in the CAIPS notes. However, this, in itself,
does not mean that a separation would result in undue, undeserved or
disproportionate hardship. The Officer also recognized that the family would
offer a strong support to the Applicants if they were to come to Canada.
Second, the Officer recognizes that the cost of separation would not be a
hardship since both the Applicants and their family have claimed to have
financial means. The security situation in Pakistan is also irrelevant and
vaguely raised, since the Applicants’ family is Pakistani and should therefore
not have the same fears as foreigners visiting Pakistan. The fact that the
Applicants need people to look after them because they are aging is also purely
speculative and should not be considered as an H&C ground. Finally, the
Applicants do not show financial need and could fulfill their emotional needs
by travelling between Canada and Pakistan, something they seem to have been
doing since the family moved to Canada. The Respondent alleges that the
Applicants have been vague in their reasons as to why the travel between the
two countries would constitute undue, undeserved or disproportionate hardship
apart from stating that they are aging.
[29]
The Respondent also reminds that the objective
of family reunification in IRPA does not, in and of itself, raise a ground for
an H&C application. In the case at bar, it only seems to constitute an
alternative ground to grant the visa application.
[30]
The Respondent further argues that hardship in
general has not been demonstrated. Loneliness, aging, as well as time
constraints and financial burden do not constitute undue, undeserved and
disproportionate hardship. No medical evidence has been filed to the effect
that these elements resulted in a specific medical condition (e.g. depression,
anxiety, etc).
[31]
In a further memorandum dated June 9, 2014, the
Respondent reiterates that the Applicants are not de facto family members since
they do not fulfil the residency requirement indicated at Sections 6 and 8.4 of
the OP4 Manual, referring to “an elderly relative such as
an aunt or uncle or an unrelated person who has resided with the family for a
long time.” Moreover, the Respondent submits that the Applicants did not
even request that their claim be assessed as a de facto family members claim.
It is an applicant’s duty to make his or her case.
[32]
Finally, the Respondent claims that many
important statements contained in the Principal Applicant’s affidavit are
largely new and do not, as alleged by the Applicants, merely restate the family
members’ affidavits. Similarly, government travel warnings and other
documentation on country conditions should have been submitted by the
Applicants. The Officer was not bound to research this herself.
VI.
ANALYSIS
a) Did the Officer err in her analysis of the
H&C grounds underlying this application?
[33]
The Respondent’s analysis of the Applicants’
claim that they are de facto family members is convincing. First, it cannot be
said that the Officer failed to assess this issue since it had not been raised
by the Applicants in the first place (Sandhu v Canada (Minister of
Citizenship and Immigration), 2006 FC 1032 at para 20 [Sandhu]).
Second, such a characterization is part of the H&C assessment;
consequently, if an officer “considered all of the
aspects of the humanitarian and compassionate claim advanced […], there was […]
no need for a separate analysis of the claim against the backdrop of de facto
family members.” (Sandhu, supra at para 20) This idea has also
been expressed by Justice Martineau in Frank, supra (cited in Da
Silva, supra at para 24):
[30] I do not believe John, above created an
obligation for all immigration officers to explicitly consider the issue of de
facto family members in every case. It is clear in the present application that
the officer considered the applicant’s relationship with his family in Canada, and, without evidence that the officer failed to consider any other relevant
criteria in determining the H&C application, the Court should not intervene.
[34]
Furthermore, I agree with the Respondent that
the Applicants do not fall under the definition of de facto family members as
they fail to demonstrate the required level of dependency. As stated by Justice
Martineau in Frank, supra (cited in Da Silva, supra at para 27):
[29] What is clear from the foregoing is that
de facto family member status is limited to vulnerable persons who do not meet
the definition of family members in the Act and who are reliant on the support,
both financial and emotional, that they receive from persons living in Canada.
Therefore, de facto family member status is not normally given to independent
and functional adults who happen to have a close emotional bond with a relative
residing in Canada, as is the case in the present application.
[35]
The Applicants have demonstrated strong ties
with their family in Canada, and this indeed constitutes an important factor to
be considered (see e.g. Ramprashad-Joseph v Canada (Minister of
Citizenship and Immigration), 2004 FC 1715 at para 6 [Ramprashad-Joseph]:
“their degree of psychological and emotional support in
relation to each other, is a factor to be taken into consideration in deciding
an application for positive Humanitarian and Compassionate relief”).
While the Officer did acknowledge this element, she was correct in concluding
that this bond did not amount to dependency or that a separation would not
impose the undue, undeserved or disproportionate hardship to be assessed on
H&C grounds.
[36]
The Applicants claim to be limited by their
advanced age and that this fact could affect their ability to take care of
themselves in Pakistan and to travel to Canada. One must indeed be sensitive to
an applicant’s advanced age (see e.g. Lazareva v Canada (Minister of
Citizenship and Immigration), 2004 FC 1019 at para 15). However, the
Applicants were born in 1955 and 1947, thus not necessarily elderly yet, and
have not submitted evidence to the effect that their physical or psychological
situation would require frequent assistance from their family. The Applicants
are also financially independent, and they have each other. These three
elements allow us to distinguish the present case from Kaur v Canada (Minister
of Citizenship and Immigration), 2010 FC 805, where the applicant, an
elderly widow whose four children were in Canada, was left alone in her
country, isolated and without any resources. The present case can also be
distinguished from Ramprashad-Joseph, supra, where the applicant, on
whom her Canadian husband was completely dependant, was going to be separated
from him. Difficulties resulting from a separation cannot, in themselves, be
considered as a hardship that could justify the application of an H&C
exemption.
[37]
Similarly, the Applicants have not demonstrated
that the difficulties for the family members as a result of travelling would
amount to hardship.
[38]
On the issue of country conditions, the
Applicants submit that such conditions have not been taken into consideration
by the Officer in her assessment of H&C grounds. However, they had merely
stated that instability in Pakistan leads to safety and security concerns and
the Court cannot accept the new evidence on country conditions provided by the
Applicants in the present application.
[39]
Whereas general information on safety in
Pakistan might be publicly available, a decision maker does not have to look
for evidence that was not before it (see e.g. Sinnathurai v Canada (Minister
of Citizenship and Immigration), 2005 FC 515 at para 16). Further, the
Applicants had yet to prove how the situation in Pakistan creates an undue,
undeserved and disproportionate hardship in their particular circumstances. The
Officer’s conclusion on that issue was therefore reasonable.
[40]
It is trite law that an H&C application is
an exceptional remedy (see e.g. Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at para 15). While the objective
of reuniting family found at paragraph 3(1)(d) of the IRPA should be
considered, this objective is not absolute in and of itself. As stated by
Justice Phelan in Liu v Canada (Minister of Citizenship and
Immigration), 2013 FC 1090,:
[14] It is important to note that family
reunification is only one of many factors to be considered in an H&C
application. The Officer considered all the relevant factors applicable to this
case and reached a conclusion which is supportable on the evidence. The
decision was reasonable and does not justify judicial intervention.
[41]
In the case at bar, the Applicants have not
demonstrated that their situation can be considered as undue, undeserved or
disproportionate hardship. The Officer did underline the difficulty that this
situation could create, but her conclusion that this difficulty could not
amount to hardship was reasonable considering the evidence provided by the
Applicants.
b)
Did the Officer fail
to provide reasons for refusing the application?
[42]
Justice Mosley’s reasons in Donkor v Canada
(Minister of Citizenship and Immigration), 2006 FC 1089 illustrate the
reasoning that must be conducted when facing an issue of sufficiency of reasons:
[26] Reasons will be insufficient when they
simply consist of a review of the facts and the statement of a conclusion,
without any analysis to back it up. In essence, the applicant must be provided
with enough information to know why his claim has been rejected. Adu v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 693, 2005 FC 565
(at para. 14).
[43]
In the case at bar, the Officer’s decision is
intelligible and it is clear from the CAIPS notes that the facts and
circumstances underlying each conclusion have been taken into consideration.
Moreover, as stated above, a separate assessment of the de facto family member
characterization did not have to be conducted as it was included in the H&C
analysis. Consequently, the Officer did provide the reasons on which the
refusal is based.
•
The affidavit of Raymond Gillis
[44]
In its further memorandum, the Respondent does
not address the Applicants’ submissions to the effect that the affidavit of Mr.
Gillis should be struck, but he addressed it at the hearing. I agree with his
conclusion that it is not highly relevant on the issue of this case.
VII.
CONCLUSION
[45]
For the foregoing reasons, this application for
judicial review must be dismissed since the Officer’s conclusions fall within
the possible and acceptable outcomes. No question for certification was
proposed by the parties, and none is certified.
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