Docket: IMM-2381-17
Citation:
2017 FC 1072
Ottawa, Ontario, November 28, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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RUZHA
TOSUNOVSKA
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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 an application for judicial review of a
decision by a Senior Immigration Officer [the Officer] dated May 17, 2017,
refusing the Applicant’s request under s 25 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA], that she be allowed to apply for
permanent residence from within Canada on humanitarian and compassionate [H&C]
grounds [the Decision].
[2]
As explained in greater detail below, this
application is dismissed, because the Applicant has not demonstrated any
reviewable errors by the Officer which would support a conclusion that the
Decision is unreasonable. While the Officer could have weighed the factors applicable
to the H&C analysis differently, so as to reach a different conclusion on
the evidence and grant the H&C application, the nature of a reasonableness
review in administrative law does not allow the Court to substitute its own
assessment of the evidence for that of the decision-maker. The Decision is
reasonable and therefore cannot be disturbed by the Court.
II.
Background
[3]
The Applicant, Ms. Ruzha Tosunovska, is a
citizen of the Republic of Macedonia. In 1969, her brother Zlate emigrated from
Macedonia to Canada. Zlate then sponsored their mother and one of Ms.
Tosunovska’s daughters, Suzana, to come to Canada. Suzana married here, had two
Canadian-born children, Kristijan and Viktoria, and became a Canadian citizen. Ms.
Tosunovska’s other daughter, Violeta, immigrated to Canada in 2006 and has also
become a Canadian citizen. Violeta, Suzana, her husband, and her children, all
live together in Richmond Hill, Ontario.
[4]
While many of her family members were moving to
Canada, Ms. Tosunovska stayed in Macedonia with her husband, who died in 1995,
and then to care for her mother-in-law, who died in 2010. Since the death of
her mother-in-law, Ms. Tosunovska has visited her family in Canada repeatedly
and for extended periods of time. She last entered Canada in September 2015.
Ms. Tosunovska submitted an application for permanent residence from within
Canada in April 2016 and did not leave the country at the expiry of her visa in
September 2016.
[5]
Ms. Tosunovska asked to be permitted to apply
for permanent residence from within Canada based on H&C grounds. She argued
that, if removed to Macedonia, she would face significant hardship because of
the situation in that country generally, her age and status as a widow, and the
likelihood that she would encounter financial difficulty. She also submitted
that she had developed significant establishment in Canada. Despite having
lived in Macedonia for most of her life, the majority of Ms. Tosunovska’s connections
are now in Canada. She explained that, if removed to Macedonia, she would
suffer due to the separation from her grandchildren, other family members, and her
church community. She submitted that she would lose her sense of purpose as a
matriarch and become isolated and depressed. She also relied on the best
interests of her grandchildren, explaining her relationship with them and the
role she played in their upbringing and development.
III.
Impugned Decision
[6]
In the Decision, the Officer considered the
country conditions in Macedonia, Ms. Tosunovska’s financial circumstances if
she were to return to that country, the best interests of her grandchildren,
her level of establishment in Canada, and the emotional hardship she would
experience if separated from her family members in Canada.
[7]
The Officer found that the best interests of the
children weighed in favour of Ms. Tosunovska being allowed to remain in Canada,
but that the children would not be negatively impacted by her departure to an
extent that warranted H&C relief when considered with all the other
factors. The Officer also considered the steps that Ms. Tosunovska had taken to
be involved in the community in Canada and gave positive consideration to her
family ties in Canada. However, while noting that she may have greater ties to
Canada than Macedonia, given her family’s immigration to Canada over the years,
the Officer found that it had not been demonstrated that Ms. Tosunovska’s relationship
with her family in Canada was one of such interdependence that it carried
significant weight. The Officer further found that the weight accorded to this
factor was affected because Ms. Tosunovska could maintain this relationship
even if required to return to Macedonia, for example through correspondence and
phone calls, visits to Canada, or through taking advantage of other immigration
programs, and it was not inconceivable she could foster ties with her existing
family in Macedonia. The Officer found that her establishment and family ties
carried only moderate weight.
[8]
The Officer described Ms. Tosunovska as
presenting as a mature, socially active, adaptable, and relatively independent
woman who had lived most of her life in Macedonia. While recognizing that she
may face a period of adjustment and some hardship in resettling in Macedonia,
and stating sympathy for some aspects of her application, the Officer noted
that the H&C process is not intended to eliminate all hardship. Rather, the
process is designed to provide relief based on a global assessment of H&C
considerations, if those considerations justify an exemption. The Officer
concluded that granting the requested exemption was not justified by such
considerations in this case.
IV.
Issues and Standard of Review
[9]
The Applicant raises the following issues for
the Court’s consideration:
A.
Did the Officer improperly assess the best
interests of the minor children?
B.
Did the Officer improperly consider the
Applicant’s establishment in Canada?
C.
Is the Decision otherwise unreasonable?
[10]
The parties agree, and I concur, that the
standard of review applicable to the Officer’s decision is reasonableness.
V.
Analysis
A.
Did the Officer improperly assess the best
interests of the minor children?
[11]
Ms. Tosunovska submits that the Officer erred by
mischaracterizing her role in her grandchildren’s lives as primarily that of a
maid and babysitter. She argues that the Officer failed to consider the
evidence provided by several family members explaining that, beyond performing housework
and providing childcare, she nurtures the children and provides them with
emotional support. At the hearing of this application, the Applicant’s
counsel described her as the children’s primary caregiver, or at least one of
their primary caregivers, noting that the children’s parents both work full
time.
[12]
I disagree that the Decision demonstrates an
error of this nature. While noting Ms. Tosunovska’s contribution to household
duties and childcare, the Officer also noted her close emotional bonds with her
grandchildren, her assistance with their upbringing, and her involvement in
teaching them about their culture and heritage. Despite this, the Officer found
that there was insufficient evidence to conclude that either the children’s physical
or emotional welfare would be compromised if Ms. Tosunovska were required to
return to Macedonia.
[13]
Regarding their physical needs, the Officer
noted that the children already had the benefit of having both of their parents
and their aunt all living with them in the same household and that the
children’s parents had cared for them without Ms. Tosunovska’s assistance when
she was living in Macedonia and in the periods when she returned there after
her visits to Canada. The Officer observed that this was at a time when the children
would have required more care than they do now, at the ages of 9 and 14, but
also concluded that their parents could make alternate caregiver arrangements
if required.
[14]
With respect to their emotional well-being, the
Officer identified the value of Ms. Tosunovska’s presence to her grandchildren,
as well as publications submitted by Ms. Tosunovska on the importance of the
grandparent–grandchild relationship. The Officer acknowledged that separation
from their grandmother would have an emotional impact on the children. However,
the Officer observed that the children were familiar with such separation,
resulting from Ms. Tosunovska’s returns to Macedonia in the past, and was not
satisfied that the grandchildren could not maintain their relationship with their
grandmother through other means such as telephone, email, letters, or further
visits to Canada. The Officer concluded that there was insufficient evidence
that the children’s well-being, both physical and eemotional, would be
compromised by separation from Ms. Tosunovska.
[15]
In conclusion on the analysis of the best
interests of the children, the Officer noted the children’s relationship with
their grandmother and the potential impact on them if she was not granted an
exemption. The Officer gave this factor moderate weight but also concluded that
she is not the primary caregiver for the children and that there were other
means by which the relationship could be maintained. On this basis, the Officer
concluded that the children’s best interests would not be jeopardized if an
exemption was not granted.
[16]
In my view, the Decision demonstrates
consideration of the nature of Ms. Tosunovska’s relationship with her
grandchildren consistent with the evidence that was before the Officer. It is
not the Court’s role to interfere with the weight that the Officer chose to
give to the best interests of the children. The Officer’s conclusions are not
outside the range of reasonable outcomes.
[17]
Ms. Tosunovska relies upon the decision in Benyk
v Canada (Citizenship and Immigration), 2009 FC 950 [Benyk], which
she argues involve facts very similar to the present case. I agree that there
are similarities between the two cases, in that both involve an H&C
application by a grandmother wishing to remain in Canada with family members and,
in particular, grandchildren for whom she was a caregiver. However, there are
also differences between the cases, in that the applicant in Benyk had
lived with her grandchildren continuously for eight years. Also, Justice
Harrington’s decision in Benyk turned significantly on the fact that the
H&C officer in that case implied that the grandchildren’s mother
could get a different job to allow her to care for her children if the
applicant returned to the Ukraine. Every H&C application must be assessed
based on its own particular facts, and every application for judicial review
must take into account both the facts of the case and the reasoning of the
decision under review, applying deference to the decision-maker as required by the
standard of reasonableness. Benyk does not support a conclusion that the
decision of the Officer in the case at hand was unreasonable.
B.
Did the Officer improperly consider the
Applicant’s establishment in Canada?
[18]
Ms. Tosunovska submits that she has a meaningful
life in Canada. With many friends and all of her close family members residing
here, she has a vibrant social life in her community and a meaningful role as
the matriarch of her family. She contrasts this with her situation if she were
to return to Macedonia, where she submits she has no friends, close family, or
support system. Ms. Tosunovska argues that the Officer disregarded the evidence
to this effect, relating to her personal circumstances, and therefore failed to
properly assess her level of establishment in Canada.
[19]
In this portion of the Decision, the Officer
considered the level of Ms. Tosunovska’s integration into the community in
Canada and concluded that that aspect of her establishment was not beyond what
would normally be expected. The Officer also found that there was little
information that she would not be able to integrate similarly into the
community in Macedonia where she had resided for the majority of her life. Ms.
Tosunovska submits that it was unreasonable to conclude that she could become
involved in her community back in Macedonia, in the same manner as she had in
Canada, when her entire life revolves around her family members in Canada and
she has no social network in Macedonia.
[20]
I find no reviewable error in this portion of
the Decision. The Decision does not demonstrate that the Officer disregarded
the available evidence. Rather, Ms. Tosunovska disagrees with the Officer’s
assessment of the evidence, with which it is not the province of the Court to
interfere.
[21]
Ms. Tosunovska relies on the decisions in Klein
v Canada (Citizenship and Immigration), 2015 FC 1004, and Awgu v Canada
(Citizenship and Immigration), 2015 FC 1277, noting their reference to the
officers in those cases demonstrating a lack of sensitivity in evaluating the
applicants’ degree of establishment in Canada. However, both of those cases
involved applicants who had unconventional lives and were thus unable to achieve
the conventional markers of establishment. They have little application to the
present case. I accept that an H&C decision which demonstrates a lack of
sensitivity to the applicant’s circumstances can be subject to judicial review,
because it does not properly consider the degree of establishment the applicant
has achieved. However, I find no error of that sort in the Officer’s Decision.
[22]
Ms. Tosunovska also refers to Lauture v
Canada (Citizenship and Immigration), 2015 FC 336 [Lauture], arguing
that the Officer assessed her ability to establish herself if she were to
return to Macedonia based on her success in doing to in Canada, thereby
effectively using her degree of establishment in Canada against her. In Lauture,
the officer found the applicants to demonstrate a remarkable engagement in
society and to have formed significant community relations. However, because
such community involvement could also occur if they returned to their home
country of Haiti, the officer did not weigh the establishment factor in their
favour.
[23]
The analysis by the Officer in the present case
does not demonstrate this sort of error. While the Officer did consider the
possibility that Ms. Tosunovska could integrate into her community if she
returned to Macedonia, the Officer also assessed her degree of establishment in
Canada, found that it was not beyond what would normally be expected, and
afforded the establishment factor moderate weight in her favour.
[24]
Ms. Tosunovska also refers to El Thaher v
Canada (Citizenship and Immigration), 2012 FC 1439, and Anquilero v
Canada (Citizenship and Immigration), 2015 FC 140, cases in which the Court
held that the officer assessing an H&C application failed to properly
assess the degree of the applicant’s establishment in Canada. While I agree
that such a failure would represent a reviewable error, no such error is
demonstrated in the present case, where the Officer considered the evidence
relevant to establishment but concluded that the level of establishment was not
sufficient to warrant granting an exemption on H&C grounds.
[25]
Referring to Epstein v Canada (Citizenship
and Immigration), 2015 FC 1201 [Epstein], a case involving an
82-year-old woman who applied for an H&C exemption based on her close
connections to family members in Canada and lack of support in her country of
origin, Ms. Tosunovska notes that Justice LeBlanc overturned the negative
H&C decision on the basis that the officer failed to consider the
applicant’s age and dependency on her family in Canada. Ms. Tosunovska
emphasizes the Court’s finding that the officer in that case ignored the
applicant’s change in circumstances, namely that, because of her family’s
immigration to Canada, she would be significantly isolated if she were to
return to Israel. She also relies on Epstein to support an argument that
it was unreasonable for the Officer to rely on the fact that her family had
moved to Canada and not sponsored her to minimize the significance of their relationship.
[26]
As with some of the other authorities relied
upon by the Applicant, I agree that there are similarities between the facts in
Epstein and those in the present case. However, in Epstein, Justice
LeBlanc found that the officer had failed to grasp the essential point of the
H&C application, which was the plea of an elderly woman to remain with her
family in Canada as she waited for her permanent residence application to be
processed. The officer had failed to consider her financial, emotional, and physical
dependency on her family.
[27]
The same cannot be said of the Decision in the
case at hand. The Officer considered Ms. Tosunovska’s financial dependence on
her family and concluded that there was insufficient evidence to demonstrate
that she lacked the personal financial means to meet her needs in Macedonia or
that her family in Canada would be unable or willing to offer financial support
if she were to return. That finding has not been challenged in this application.
The Officer also recognized that Ms. Tosunovska was, to some degree,
emotionally dependent on her family, but concluded that the evidence did not
demonstrate that the emotional and physical impact of separation was such that
it carried sufficient determinative weight. In so finding, the Officer noted
that the relationship had been maintained in the past while the family was
geographically separated.
[28]
As with her submissions in relation to the best
interests of the children factor, I find that Ms. Tosunovska’s submissions on
the establishment factor ask the Court to reweigh the evidence, which is not
the Court’s role in a reasonableness review.
(1)
Is the Decision otherwise unreasonable?
[29]
Other arguments raised by Ms. Tosunovska relate
to findings made by the Officer which she submits were based on speculation rather
than the evidence. She alleges that the Officer speculated that her distant
relatives in Macedonia would be willing and able to support her if she was
forced to return there. She notes that her only remaining family members in
Macedonia are her late husband’s second cousins. Ms. Tosunovska and these cousins
live 5 km apart and do not communicate with any kind of regularity.
[30]
However, the Decision notes the submission of
Ms. Tosunovska’s counsel that the few family members she had in Macedonia are
not close to her and that there would be no one to check up on her if she moved
back home. This appears to be the full extent to which that point was addressed
in counsel’s written submissions to the Officer. Letters from two of Ms.
Tosunovska’s Canadian relatives similarly state only that they have few
relatives still living in Macedonia and that their family visits to that region
are rare.
[31]
The applicant in an H&C application has the
burden to establish the facts supporting the request for an exemption. The
Officer did not make a finding that Ms. Tosunovska’s relatives in Macedonia
would be willing to support her, but rather that there was insufficient
material before the Officer to establish the contrary. There is no basis for
the Court to interfere with this finding.
[32]
Similarly, Ms. Tosunovska argues that the
Officer engaged in speculation by concluding that she could establish a social
life upon returning to Macedonia. However, the Officer’s conclusion was that
there was little information showing that she would not be able to participate
in a religious community or enjoy friendships in Macedonia, where she had
resided for the majority of her life. Again, this is a finding related to the
sufficiency of evidence, which I cannot conclude to be unreasonable.
[33]
Finally, Ms. Tosunovska argues that the Officer
erred by referring to the possibility that her separation from her family could
be mitigated through other immigration avenues, such as visas like the Grandparent
Super Visa to allow further visits to Canada or an application for permanent
residence through the Family Class Program. She submits that visits to Canada
would not accomplish her objective, which is to live in Canada permanently with
her family, not to visit here, and she argues that the Officer erred by failing
to assess whether she was eligible for the Family Class Program and the
likelihood that an application under the program would be successful.
[34]
I find no error in the Officer’s reference to visa
programs which might permit further visits to Canada. While I recognize that
this would not fulfil Ms. Tosunovska’s goal of residing with her family
permanently, the Officer was not making any suggestion to that effect. Rather,
the Officer was commenting on how such avenues could allow Ms. Tosunovska to visit
over an extended period of time, reuniting her periodically with her family and
mitigating the hardship that might result from returning to Macedonia.
[35]
With respect to the Family Class Program, Ms.
Tosunovska states that this program is significantly different from what it had
once been, operating now as a sort of lottery system. However, as acknowledged
by her counsel in oral submissions, the Court must decide this application
based on the material that was before the Officer. Documentation provided to
the Officer in support of the H&C application included what the Officer
described as a series of working papers, research studies, and articles
published between 2003 and 2016 on the family reunification program, which
described changes to the program and in some cases critiques of immigration
policies.
[36]
These documents include references to changes to
immigration programs associated with family reunification, including elevated
financial criteria for the immigration of family members and a cap on the
number of applications per year. The Officer does not analyse the effect of these
changes to immigration policies on Ms. Tosunovska’s individual prospects of
accessing these programs, finding rather that that it is beyond the scope of an
H&C application to consider such public policy matters. I cannot conclude
that the Officer was required to conduct such an analysis in order to consider that
the possibility of family reunification through such programs was a factor mitigating
the hardship that would result from separation. The Officer found there was
insufficient evidence that she could not seek to apply under these programs.
VI.
Conclusion
[37]
In conclusion, I concur with the Respondent’s
submission that the circumstances presented by Ms. Tosunovska in her H&C
application could well have supported the grant of an exemption under s 25 of IRPA,
but that the nature of a reasonableness review in administrative law does not
allow the Court to substitute its own assessment of the evidence for that of
the decision-maker. Ms. Tosunovska has not identified any errors by the Officer
which would support intervention by the Court. Her application for judicial
review must therefore be dismissed.
[38]
Neither party proposed any question for
certification for appeal, and none is stated.
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