Docket: IMM-2443-16
Citation:
2017 FC 108
Ottawa, Ontario, January 27, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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MA. THERESA
MADERA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Ms. Madera, the applicant, is a citizen of the
Philippines who arrived in Canada in October 2010 under the Live-in Caregiver
Program. Her work permit required that she work for the employer identified in
the permit. She did not. She subsequently changed employers and, in 2012, she applied
for a new work permit to reflect her current employer. The 2012 application was
refused due to non-disclosure of criminal charges, information that was
requested on the application form. In May 2013, she again applied and at that
time, was ordered to leave Canada. She did not leave as ordered. In May 2014,
she submitted an application for permanent residence from within Canada on
Humanitarian and Compassionate [H&C] grounds.
[2]
Her H&C application was initially refused,
but on agreement, the application was returned for redetermination. In May 2016,
the H&C application was again refused. It is this second refusal decision
that is the subject of the Application before me.
[3]
Ms. Madera submits that the decision should be
quashed and the matter again returned for redetermination. She argues that the Immigration
Officer’s [Officer] assessment of her degree of establishment in Canada was
unreasonable and that the Officer failed to conduct an analysis of the best interests
of her sister’s daughter in the Philippines.
[4]
The Application requires that I address the
following issues:
A. Was the analysis of establishment unreasonable?
B.
Were findings made directly contradictory to the
evidence? and
C.
Was there a failure to consider the best
interests of the child?
[5]
Having considered the oral and written
submissions of the parties, I am unable to find any basis upon which to
intervene. I am of the opinion that the Officer’s decision was reasonable. The
Application is dismissed for the reasons that follow.
II.
Standard of Review
[6]
An Officer’s
decision rendered under subsection 25(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] is reviewable on a standard of reasonableness (Walker
v Canada (Citizenship and Immigration), 2012 FC 447 at paras 31-32 and Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 18). A reviewing
court is to recognize that the decision is highly discretionary and is entitled
to deference (Ngyuen v Canada (Citizenship and Immigration), 2017 FC 27
at para 17).
III.
Analysis
A.
Was the analysis of establishment unreasonable?
[7]
In considering Ms. Madera’s establishment in
Canada, the Officer recognized her employment and that she had declared income between
2010 and 2014. The Officer was empathetic to the fact that Ms. Madera may have
been overwhelmed by administrative requirements on her arrival in Canada but
noted that she had never worked legally in Canada. The Officer further noted
that Ms. Madera had plead guilty to charges of theft, that she had not disclosed
these charges in her 2012 work permit application, and she now claimed she was
not guilty of theft but plead to the charges on the recommendation of her
lawyer. The Officer further noted that Ms. Madera did not respect the 2013
order to leave Canada. The Officer recognized that she had some family members
in Canada, had established friendships and was involved with church and
community organizations. The Officer then concluded that Ms. Madera’s establishment
was undermined by her failure to comply with Canadian laws. The Officer found
that Ms. Madera acted in bad faith by failing to make the necessary efforts to
regularize her status in a reasonable amount of time.
[8]
The applicant argues that in reaching this
conclusion, the Officer was preoccupied by her lack of legal status in Canada
and unreasonably concluded that this fact negated the positive factors
evidencing her establishment. She argues that the Officer did not consider her
attempts to obtain a work permit but focussed on her delay in attempting to
regularize her status in a reasonable time. She relies on Fidel Baeza v
Canada (Citizenship and Immigration), 2010 FC 362 [Fidel Bazea] at
paras 16-18 to argue that working without authorization is a minor
transgression that does not justify a total disregard of an H&C applicant’s
establishment. She submits that the Officer did not engage in an analysis to
determine if her establishment was sufficient to warrant an H&C consideration.
I am not convinced.
[9]
Ms. Madera takes issue with the fact that the
Officer drew negative inferences from her continuous lack of valid status in
Canada. However, the jurisprudence has recognized that “…
applicants cannot and should not be “rewarded” for accumulating time in Canada,
when in fact, they have no legal right to do so. In a similar vein,
self-sufficiency should be pursued legally, and an applicant should not be able
to invoke his or her illegal actions to subsequently claim a benefit such as a
Ministerial exemption.” (Tartchinska v Canada (Minister of Citizenship
and Immigration), [2000] FCJ No 373 (FC) at para 22).
[10]
While an Officer may well act unreasonably where
the question of legal status results in an Officer failing to consider the
question of unusual or disproportionate hardship (Klein v Canada (Citizenship
and Immigration), 2015 FC 1004) this is not what happened here. The Officer’s
analysis did not cease with the determination that Ms. Madera had failed to
regularize her legal status. Instead, in determining no unusual or
disproportionate hardship warranting an H&C exemption, the Officer
undertook an analysis of the economic situation in the Philippines, addressed
Ms. Madera’s claim that she was supporting her parents, sister and niece in the
Philippines and considered her employment opportunities in the Philippines.
[11]
The Officer’s establishment analysis was
influenced by a number of factors including Ms. Madera’s denial of responsibility
for previously acknowledged criminal conduct and her prior failure to disclose
that conduct to immigration officials. This case differs from the circumstances
in Fidel Bazea where the Court found that the Officer’s findings were
unsupported by the evidence and a minor discrepancy related to work history
reflected a clerical error, not an attempt to mislead. It was in this context
that the Court held that working for periods without a work permit was a “relatively minor transgression”.
[12]
In this case, I am not convinced that the
Officer misconstrued the evidence or reached findings unsupported by the
evidence. Instead, the Officer allowed for “… some
flexibility regarding the applicant’s legal deviations …” but found that
the absence of good faith was determinative in all the circumstances. The conclusion
was not unreasonable and the reasons provided reflect the requirements of
justifiability, transparency and intelligibility.
B.
Did the Officer reach findings directly
contradictory to the evidence?
[13]
Ms. Madera argues that the Officer ignored
evidence of post removal hardship on the basis that she had failed to establish
continued support of her family. She submits that this conclusion is contrary
to her sworn evidence and letters from her parents and sister. I disagree.
[14]
The Officer noted Ms. Madera’s evidence that she
“…currently supports the needs of her parents and her
sister’s children.” In assessing this evidence, the Officer also noted
that she had provided evidence in the form of money transfers from 2011 and
2012 but had furnished no additional evidence to establish that this support continued
after 2012.
[15]
Ms. Madera takes issue with the Officer’s
failure to reference the June 2013 and July 2013 letters of her parents and
sister indicating that financial support had been provided. While the letters do
make reference to financial support they provide no detail of that support and
do not contradict the Officers conclusion that the applicant had not
established continued support after 2012. While I may have preferred that the
Officer had expressly addressed this evidence, the general statements of
support are not directly contradictory of the Officer’s conclusion. It is trite
to note that a decision-maker is not obligated to address all the evidence and
arguments advanced by an applicant (Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16).
[16]
The Officer’s conclusion was that Ms. Madera had
failed to place sufficient evidence on the record to establish ongoing
financial support to family members in the Philippines. This conclusion was not
directly contradictory of the evidence before the Officer and was reasonably
available to him/her.
C.
Was there a failure to consider the best
interests of the child?
[17]
Ms. Madera argues that the Officer failed to
address the best interests of her niece to whom she claimed to be providing
financial support to allow her to continue her studies in the Philippines. I
disagree.
[18]
Ms. Madera provided sparse evidence of the
impact of her return to the Philippines on her niece. The evidence advanced
spoke to financial support to attend school but was inconsistent in respect of
the number of nieces and the degree, if any, of the support being provided to
those nieces. The evidence also failed to establish the provision of any
financial support after 2012. The Officer’s consideration of the best interests
of the child was reasonable in the circumstances of this case.
IV.
Conclusion
[19]
I find that the Officer’s conclusions were
reasonable and that there is no basis upon which to intervene with the finding
that the H&C considerations presented by Ms. Madera failed to justify an
exemption under subsection 25(1) of the IRPA.
[20]
The parties have not identified a question of
general importance, and none arises.
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