Docket: IMM-1519-15
Citation:
2015 FC 1320
Toronto, Ontario, November 26, 2015
PRESENT: The
Honourable Madam Justice Mactavish
|
BETWEEN:
|
|
LAVERNE SAMUEL
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Laverne Samuel seeks judicial review of the
decision of an Immigration Officer denying her application for permanent
residence on humanitarian and compassionate grounds. Ms. Samuel asserts
that the Officer’s decision was unreasonable, particularly as it relates to the
Officer’s assessment of the best interests of Ms. Samuel’s adult son,
Orlando.
[2]
For the reasons that follow, I have not been
persuaded that the Officer’s decision was unreasonable in light of the limited
information that was provided to the officer with respect to Orlando’s current
situation. Consequently, the application for judicial review will be dismissed.
I.
Preliminary Issue
[3]
Ms. Samuel has provided her own affidavit,
together with an affidavit from Orlando, in support of her application for
judicial review. Both affidavits contain extensive evidence that was not before
the Immigration Officer when he or she made the decision under review, and both
discuss events that post-date the decision.
[4]
Judicial review is ordinarily to be conducted on
the basis of the record that was before the original decision-maker. Additional
evidence may be admitted in limited circumstances where, for example, there is
an issue of procedural fairness or jurisdiction: see Ontario Assn. of
Architects v Assn. of Architectural Technologists of Ontario, 2002 FCA 218
at para. 30, [2003] 1 F.C. 331. Ms. Samuel has not, however, challenged
the decision of the Immigration Officer on procedural fairness grounds, nor has
she raised a question going to the Officer’s jurisdiction. Consequently, her
new evidence is not properly before the Court and will not be considered in
deciding the application.
II.
Analysis
[5]
Insofar as the merits of Ms. Samuel’s
application are concerned, several of her arguments (such as that relating to
the significance of her long stay in Canada) simply amount to an invitation to
reweigh the evidence that was duly considered by the Immigration Officer. It is
not, however, the role of this Court, sitting in review of a discretionary
decision of an immigration officer, to reweigh the factors cited in support of
the application.
[6]
Ms. Samuel’s principle argument is,
however, that the officer erred in failing to carry out a “best interests of the child” analysis with respect to
the impact that her removal would have on Orlando. I acknowledge that the
jurisprudence is divided as to whether a BIOC analysis needs to be carried out
where the child in issue is over the age of 18. I do not, however, need to
resolve this question in this case, as the submissions made with respect to
Orlando’s interests were extremely limited, and were adequately addressed by
the Officer.
[7]
While acknowledging that Orlando was over the
age of 18 at the time of the H&C decision, Ms. Samuel asserts that the
Immigration Officer should nevertheless have carried out a BIOC analysis in
this case, as Orlando met the definition of a “dependent
child” under section 2 of the Immigration and Refugee Protection
Regulations, SOR/2002-227. Section 2 of the Regulations provides that a “dependent child” is any child who is “19 years or over and has depended substantially on the
financial support of the parent since before the age of 19 and is unable to be
financially self-supporting due to a physical or mental condition”.
[8]
The problem with this submission is that Ms. Samuel
did not provide the Officer with any submissions or evidence to show that
Orlando was in fact financially dependent on her, either before or after he
turned 19. Her written submissions are entirely silent on this question, and
the only information in the record that could possibly have related to the
issue of financial dependency was a 2013 letter to Ms. Samuel from the
Canada Revenue Agency requesting additional information with respect to
unidentified individuals that she had claimed as dependents for her 2012
taxation year. There was simply no information before the Officer to show that
Orlando had depended substantially on Ms. Samuel’s financial support since
before he turned 19, or that he was currently unable to support himself
financially due to a physical or mental condition.
[9]
Moreover, Ms. Samuel’s submissions to the
Officer made only a cryptic reference to Orlando suffering from unidentified “medical issues” that required his mother’s assistance
in order for him to be able to obtain medical treatment. No details were
provided, and the only information in the record that was before the Officer
with respect to Orlando’s “medical issues” was a
one-line reference to the fact that he had been diagnosed with a “mild intellectual disability” contained in an
Individual Education Plan prepared by the Toronto District School Board for the
2009-2010 school year. This was part of a package of documents that were
provided by Ms. Samuel in support of her 2014 H&C application.
[10]
Ms. Samuel did not, however, provide the
Officer with any information with respect to Orlando’s current situation or
needs, nor did she provide the Officer with any information as to how her
removal would affect Orlando, beyond the bald assertion that it would be
emotionally upsetting for Ms. Samuel’s children if they were to be
separated from their mother.
[11]
As the Federal Court of Appeal observed in Owusu
v Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2
F.C.R. 635, the onus is on applicants for permanent residence on humanitarian
and compassionate grounds to put forward the facts that they wish the
Immigration Officer to consider in conjunction with their application. It is
not up to the Officer to seek out additional information from the applicant.
Moreover, applicants for H&C relief have no right or legitimate expectation
that they will be afforded a hearing in order to advance their claims. As a
consequence, they omit pertinent information from their applications at their
peril: Owusu, above at para. 8.
[12]
Having failed to adduce concrete evidence as to
how Ms. Samuel’s removal would affect Orlando, it follows that the
Officer’s brief analysis of Orlando’s interests was all that was required in
the circumstances. The Officer’s finding that Ms. Samuel’s circumstances
did not justify granting the exceptional remedy of H&C relief was one that
was reasonably open to the Officer on the limited record that Ms. Samuel
had provided. As a consequence the application for judicial review will be
dismissed.
III.
Certification
[13]
Ms. Samuel proposes the following question
for certification:
Given the definition of “dependent” as
amended on August 1, 2014 under section 2 of the IRPR, upon finding that
a child over the age of 19 years meets the definition of dependent, is an
officer then obligated to conduct a best interests of the child analysis
pursuant to section 25(1) of the IRPA?
[14]
As noted earlier, Ms. Samuel failed to
provide the Immigration Officer with evidence demonstrating that Orlando had in
fact depended substantially on her financial support before he turned 19, or
that he was currently unable to be financially self-supporting due to a
physical or mental condition. Consequently, Ms. Samuel has not established
the facts underlying her proposed question with the result that the answer
would not be dispositive of the application. As a result, no question will be
certified.
Email this Content