Docket: IMM-2235-16
Citation:
2016 FC 1390
Ottawa, Ontario, December 19, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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KAM FA WONG
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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
I.
Overview
[1]
This is a judicial review of a decision by an
officer [the Officer] of Citizenship and Immigration Canada, dated May 9, 2016,
which refused the Applicant’s application for permanent residence from within
Canada on humanitarian and compassionate [H&C] grounds under s. 25(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
As explained in greater detail below, this
application is dismissed, as the Officer’s decision is reasonable, falling
within the range of possible, acceptable outcomes on the facts of this case.
II.
Background
[3]
The Applicant, Kam Fa Wong, is a citizen of Hong
Kong. She entered Canada in 2008 and met Mr. Chi Heng Anthony Chin, a Canadian
citizen, whom she subsequently married in March 2010, after living together
since September 2009. In November 2010, Ms. Wong submitted a permanent
residence application as a member of the spouse in Canada class. Mr. Chin
passed away in September 2014, and Ms. Wong subsequently requested that her
spousal sponsorship application be converted to an application for permanent
residence on H&C grounds.
[4]
In making the decision refusing Ms. Wong’s
application, the Officer was not satisfied that there were sufficient H&C
considerations in the application to warrant an exemption from applicable
legislative requirements, so as to allow her application for permanent
residence to be processed from within Canada. The Officer acknowledged that Ms.
Wong has been living in Canada since 2008 and that it was her wish, along with that
of her deceased husband, that she live in Canada permanently. The Officer also
noted that Ms. Wong’s husband is buried in Toronto, that she wishes to continue
to visit him, that Ms. Wong has many friends in Canada who are willing to help
her financially or otherwise, and that Ms. Wong considers Canada her home and
is confident she can find a job here once she obtains a work permit. The
Officer acknowledged that Ms. Wong has received financial support through her
late husband’s life insurance policy and that she appears to be able to support
herself independently.
[5]
However, the Officer found that Ms. Wong had not
demonstrated that her establishment in Canada was to such a degree that
returning to Hong Kong to apply for permanent residence status would cause a
hardship. The Officer noted that, since Ms. Wong arrived in Canada in 2008, she
had returned to Hong Kong approximately every 4-6 months, that she has no
history of employment in Canada, volunteer work, or upgrading of skills, and
that she has no family connections in Canada. On the subject of family
relationships, the Officer gave more weight to Ms. Wong’s relationships in Hong
Kong, noting that she has a 23 year old daughter with whom she lived before her
most recent return to Canada, that her parents were born in China, and that
there was no indication they were deceased.
[6]
Finally, the Officer noted that Ms. Wong has a
criminal conviction in Hong Kong dated August 13, 1997 and stated that, while
the convictions were almost 20 years ago, a criminal record does not weigh in
her favour.
[7]
The Officer referred to having considered Ms.
Wong’s establishment, her desire to remain close to her deceased spouse, her
family in Hong Kong, and her criminal record. However, the Officer was not
satisfied that Ms. Wong had presented sufficient H&C considerations to
warrant an exemption.
III.
Issue and Standard of Review
[8]
The issue raised by the parties’ arguments is
whether the Officer’s decision is reasonable, including consideration of the
adequacy of the Officer’s reasons.
[9]
The standard of review applicable to an
officer’s findings of fact in assessing an H&C application is
reasonableness (see Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2015 SCC 61 [Kanthasamy], at para 44; Taylor v
Canada (Minister of Citizenship and Immigration), 2016 FC 21, at para
16).The adequacy of reasons is also to be determined on a standard of
reasonableness, as inadequacy of reasons is not a stand-alone basis for judicial
review. Rather, reasons must be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible outcomes
(see Newfoundland and Labrador Nurses Union v Newfoundland and Labrador (TB),
2011 SCC 62, at para 14).
IV.
Analysis
[10]
Ms. Wong states that the issue of establishment
is essential to her application. Her counsel describes her as a “housewife”, explaining that she has established her
life in Canada based on her relationship with her husband. He supported her
before his death, and since his death she has been supported by the resulting
life insurance. As such, it has not been necessary for her to seek paid
employment or to upgrade her language skills. Ms. Wong argues that
establishment for someone in her circumstances assumes a different complexion
than that of an applicant whose establishment is a function of integration into
the Canadian economy, and that the Officer was obliged to consider her
application from that perspective.
[11]
I agree with Ms. Wong’s submission that s. 25(1)
of IRPA is intended to respond flexibly to the equitable goals of the provision
and that immigration officers have the ability to consider and give weight to
all relevant humanitarian and compassionate considerations in a particular case
(see Kanthasamy, at para 33). As such, an applicant is certainly not
precluded from succeeding in an H&C application because he or she does not
have paid employment. Rather, each H&C application will turn on the
applicant’s particular circumstances and immigration officers’ consideration of
various factors, including but not limited to establishment in Canada and the
other factors set out by the Supreme Court of Canada in paragraph 27 of
Kanthasamy.
[12]
In the case at hand, Ms. Wong’s application was
based on establishment and her desire to remain in Canada. However, she did not
satisfy the Officer that her particular circumstances demonstrated a degree of
establishment sufficient to warrant an H&C exemption. I have considered the
various arguments Ms. Wong has raised in challenging the Officer’s decision but
do not find the Officer’s assessment of her application to be unreasonable.
That assessment was not restricted to Ms. Wong’s lack of paid employment. It
also considered that she had no history of volunteer work or upgrading of
skills since her arrival in Canada, as well as the fact she has no family
connections in Canada. As noted by the Respondent, the case law establishes
that, even where an applicant has maintained employment and integrated into the
community, this does not necessarily constitute an unusually high degree of
establishment such as would warrant the granting of an H&C exemption (see Persaud
v Canada (Minister of Citizenship and Immigration), 2012 FC 1133, at para
45).
[13]
Ms. Wong notes the Officer’s conclusion that it
would not be a hardship for her to apply for permanent residence from Hong
Kong. She argues that it is not reasonable to expect her to return to Hong Kong
to apply, particularly as it is not clear on what basis she would then qualify.
I agree with the Respondent that the fact an applicant may not be successful in
a permanent residence application submitted from abroad does not make such an
analysis unreasonable (see Lionel v Canada (Minister of Citizenship and
Immigration), 2009 FC 236, at para 21).
[14]
Ms. Wong also refers the Court to factual errors
made by the Officer in the decision. The Officer referred to Ms. Wong returning
to Hong Kong approximately every 4 to 6 months since 2008, with her last return
being in December 2014 until April 2015. In fact, Ms. Wong returned to Hong
Kong only twice since arriving in 2008, the second occasion being the trip
between December 2014 and April 2015 when her mother was ill and ultimately
passed away. The decision also states that there is no indication Ms. Wong’s
parents are deceased, when in fact her mother passed away in 2015.
[15]
The Respondent acknowledges these errors by the
Officer but argues that they are not material to the decision. Ms. Wong refers
the Court to B’Ghiel v Canada (Minister of Citizenship and Immigration), IMM-2545-97,
July 8, 1998 (F.C.T.D.) [B’Ghiel], in which Justice Hugessen identified
factors that were improperly considered in a visa officer’s decision and set
aside the decision on the basis that it was impossible to know what weight the
officer gave to those factors.
[16]
My conclusion is that the concern expressed by
Justice Hugessen in B’Ghiel does not apply in the present case. The
Officer’s conclusion was that Ms. Wong had not demonstrated that her
establishment was to such a degree that returning to Hong Kong to apply for
permanent residence would cause a hardship. In reaching this conclusion, the Officer
referred to Ms. Wong’s return trips to Hong Kong, her lack of history of
employment in Canada, the lack of volunteer work, the absence of any upgrading
of her skills, and having no family connections in Canada. Ms. Wong did make
return trips to Hong Kong during the periods she has been living in Canada. In
the context of the Officer’s overall decision, considering several factors, I
cannot conclude that the Officer’s error in identifying the number of trips to
Hong Kong materially impacted the decision.
[17]
Similarly, in relation to Ms. Wong’s parents,
the Officer afforded weight to her family relationships in Hong Kong. While
only one of her parents was living, both that parent and her adult daughter
live in Hong Kong, and she has no family in Canada. Again, I cannot conclude
that this factual error materially impacted the Officer’s decision.
[18]
Ms. Wong also argues that the Officer erred in
the treatment of the 1997 convictions in Hong Kong. Her convictions were for
driving a motor vehicle with alcohol concentration above the prescribed limits
and for careless driving. She takes the position that the careless driving
conviction is equivalent to a provincial traffic offense, not a criminal offense,
and that, although the other conviction is the equivalent of a Canadian
criminal conviction, she is deemed rehabilitated under s. 18(2) of the Immigration
and Refugee Protection Regulations [IRPR], as the offense occurred more
than 10 years ago.
[19]
The effect of s. 18(2) of the IRPR is to
eliminate inadmissibility to Canada under s. 36 of IRPA. However, Ms. Wong has
cited no authority for the proposition that the deemed rehabilitation also has
the effect of making it an error for an immigration officer to consider the
convictions in the context of an H&C application. I also note the
particular manner in which the Officer treated the convictions in the present
case, stating that, while the convictions were almost 20 years ago, a criminal
record does not weigh in Ms. Wong’s favour. The Officer acknowledged how long
ago the convictions occurred, and I cannot conclude it to be an error for the
Officer to have found that this portion of her history was not a positive
factor in her H&C application.
[20]
Finally, I find no merit to the argument that
the Officer’s reasons were inadequate. The Officer considered the evidence and
Ms. Wong’s submissions, recounted the factors that weighed for and against her
application, afforded particular weight to her family relationships which were
in Hong Kong rather than Canada, and concluded that she had not demonstrated
sufficient establishment or hardship to warrant an exemption. The reasons are
intelligible and the result falls within a range of possible outcomes, making
the decision reasonable and affording no basis for the Court to interfere.
[21]
The application for judicial review is therefore
dismissed. No question was proposed for certification for appeal, and none is
stated.
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