Docket: IMM-1577-15
Citation:
2015 FC 1097
Montréal, Quebec, September 21, 2015
PRESENT: The
Honourable Mr. Justice Martineau
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BETWEEN:
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SHIRLON VITALIS
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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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JUDGMENT AND REASONS
[1]
The applicant seeks judicial review of a
decision by a Senior Immigration Officer [Officer], dated March 12, 2015,
refusing her application for permanent residence from within Canada on
humanitarian and compassionate [H&C] grounds. The applicant requests that
the Court set aside the decision of the Officer and send the matter back for
redetermination. The present application must fail.
[2]
The applicant is a citizen of Saint Lucia. She has two daughters – aged 9 and 17 – who are also citizens of Saint Lucia and reside in that country. The applicant arrived in Canada on March 5, 2010,
and was allowed to remain in Canada as a visitor for six months. She did not leave
Canada at the end of her authorization period. Since that time, the applicant
has been working as a caregiver, and affirms that this employment allows her to
send money back to Saint Lucia to support her daughters. On May 27, 2014, the
applicant filed an H&C application, which she updated in January 2015.
[3]
After having analyzed the applicant’s file as a
whole, the Officer concluded that the applicant had not demonstrated, on the
balance of probabilities, that the refusal of her request would cause unusual
and undeserved or disproportionate hardship.
[4]
First, while taking account of the role the applicant
played in the lives of those families for whom she worked as a caregiver, as
well as the social network she built during her time in Canada, the Officer noted that the applicant’s establishment in Canada was not significant and gave
little weight to this factor.
[5]
Second, the Officer noted that there is
legislation in Saint Lucia protecting women against discrimination, and that
the wage inequality mentioned by the applicant as being a negative factor could
exist in Canada as well. While the Officer acknowledged the elevated incidences
of sexual violence against women in Saint Lucia, as demonstrated by the
evidence submitted by the applicant, he noted that the government was taking
measures to address this issue, and that recourse was available to victims. Regarding
high rates of domestic violence in the country, the Officer determined that
this evidence was not relevant, as the applicant had indicated her marital
status as single, and had not mentioned having a spouse or partner. Finally, in
relation to higher rates of poverty amongst single mothers in Saint Lucia, the Officer noted that the applicant had previously worked as a teacher in her country
of origin, and currently worked in Canada as a caregiver. The Officer thus
concluded that the applicant could draw on these two skillsets in obtaining
employment if she were to return to Saint Lucia.
[6]
Third, in terms of the best interests of the
applicant’s children, the Officer stated that the applicant did not describe
the current situation of her children, nor did she describe the role of their
father in their lives. The Officer noted that the applicant’s mother is the
person designated as the children’s guardian in Saint Lucia. The Officer also
acknowledged that the applicant submitted two receipts showing that she had
transferred money via MoneyGram, as evidence that she was providing financial
support to her daughters in Saint Lucia. One of these receipts names neither
the sender nor the recipient, while the other indicates the applicant as the
sender and the father of the applicant’s children as the recipient. The applicant
supplied two other receipts for money transfers with InstaChèque, also
indicating the father as the recipient, along with two other bills and four
receipts. The Officer found this evidence inconclusive. In addition to these
receipts and bills, the Officer referred to a letter from the applicant`s
mother, dated April 2014, which states that “[t]he money
that is received helps the children with food, education and other amenities”,
but found the evidence in this regard to be insufficient, in the absence of
further corroboration. Thus, while the Officer accepted that the applicant had
sent money on some occasions to her daughters, she had not demonstrated that
she was taking care of all their needs, or that their interests would be
adversely affected if the applicant did not receive the relief sought. In
addition, the Officer noted that it was apparent that the father continued to
be present in the lives of the applicant’s daughters. Finally, the Officer
acknowledged the evidence provided by the applicant that there is a risk of
child labour and sexual exploitation in Saint Lucia, due to the high levels of
poverty. Nevertheless, the Officer stated that the applicant had not expressed
fear that her daughters would fall victim to ill treatment or exploitation, nor
had she demonstrated the link between the exploitation of children in the work
force in Saint Lucia and the situation of her own children.
[7]
Did the Officer made a reviewable error?
[8]
Firstly, the applicant submits that the Officer
treated the statements she made in her affidavit as mere allegations rather
than as evidence, noting that the Officer “rejected
several facts that were presented within the sworn affidavit”. The
applicant goes on to suggest that if the truthfulness of statements was at
issue, the Officer should have given the applicant the chance to respond to his
doubts during an interview since in the absence of a determination as to
credibility, an applicant’s evidence is presumed to be true. Thus, the
applicant submits that the present case raises concerns of procedural fairness,
for which the appropriate standard of review is that of correctness.
[9]
The respondent, by contrast, frames the issue as
being a question of whether the Officer’s decision was based on the sufficiency
of the evidence, and addresses this matter under the general umbrella of
whether or not the Officer`s decision was reasonable. I agree with the
respondent. It is apparent that the Officer’s findings of fact were all related
to the sufficiency of the evidence presented by the applicant, rather than her
credibility, and that the applicant attempts to qualify the Officer’s
conclusion on the lack of evidence as a conclusion related to her credibility. The
Officer simply stated for each factor – the applicant’s degree of
establishment, the country conditions, and the best interests of the children –
that the evidence provided was insufficient. As such, the standard of
reasonableness applies to the determinations of fact made by the Officer.
[10]
Secondly, the applicant submits that in making
his decision, the Officer relied on speculation and that the findings made are otherwise
unreasonable and not supported by the evidence. In particular, the applicant
notes that the Officer made inappropriate assumptions relating to her capacity
to find work as a “teacher” or a “cleaning person” in Saint Lucia, despite the documentary evidence presented by the applicant of high rates of
poverty and unemployment in the country, particularly amongst female-headed
households. The applicant also clarifies that she was a day care worker, rather
than a teacher, in Saint Lucia. Furthermore, the applicant claims that the
Officer took insufficient account of the fact that in Saint Lucia, “incomes are very minimal and “teaching” not a real
work option for her”, given that her experience is as a daycare teacher
and her level of education is minimal. The applicant also submits that the
Officer drew unreasonable conclusions relating to the arguments presented on
the condition of women in Saint Lucia, including the evidence provided relating
to gender-based discrimination and violence. The applicant states that the Officer’s
conclusions constitute a ““hopeful” analysis of a hard
reality lived by many women in Saint Lucia”, and do not make proper
reference to the evidence provided. Finally, the applicant submits that the
Officer erred in not giving sufficient weight to the evidence showing that she
was supporting her daughters by sending money to Saint Lucia, and that it is in
the best interests of the children for their mother to continue to work in Canada.
[11]
I find all these arguments unconvincing. It is not
the role of the Court to reassess the evidence and come to its own conclusions
of fact. It is apparent that all the evidence presented by the applicant was
duly considered and analyzed by the Officer, as can be seen from the Officer’s
notes. On each of the three grounds of the applicant’s application – her
establishment in Canada, the conditions in Saint Lucia, and the best interests
of her children – the Officer’s notes demonstrate that he considered and
weighed the evidence. The Officer stated that this evidence indeed established
that women in Saint Lucia are frequently the victims of violence, discrimination
and poverty, and noted that, consequently, a certain weight was accorded to
this evidence. However, he determined that this evidence was not directly
relevant. Furthermore, while the Officer apparently confused the applicant’s day
care work as being that of a teacher, this error was not determinative. The
fact is that the applicant was employed in Saint Lucia. It was incumbent upon
the applicant to provide further corroborative evidence if she wished the
Officer to conclude that she would not be able to earn a living in her home
country. The applicant’s failure to provide such evidence did not shift the
burden to the Officer to verify whether or not the applicant would, in fact, be
able to make a living based on the work experience she had. The Officer was
permitted to draw inferences based on common sense and logic, according to the
evidence on record. The Officer also considered the evidence that the applicant
was sending money for her daughters in Saint Lucia. The Officer was entitled to
give little weight to this evidence, which did not conclusively establish that the
daughters depended entirely on the applicant’s financial support. The applicant’s
mother’s letter is also written in very general terms. It was open to the
Officer to infer that the applicant was not the sole financial supporter of the
children in view of the lack of other receipts or further details in this respect.
[12]
Overall, I find that there has been no breach of
natural justice and that the outcome reached by the Officer is within the range
of acceptable outcomes that are defensible in fact and law. Accordingly, the
present application shall be dismissed. Counsel agree that this case raises no
question of general importance.
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