Dockets: IMM-5754-23
IMM-6299-23
Citation: 2024 FC 1795
Ottawa, Ontario, November 8, 2024
PRESENT: Madam Justice Sadrehashemi
BETWEEN: |
PATRICK CLAUDE CHAMBERS |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant, Patrick Chambers, is 61 years old and has been living in Canada for over thirty years. He has been in a common-law relationship with a Canadian citizen for over ten years and has six children, three of whom are minors and live in Canada. Mr. Chambers was a permanent resident of Canada but lost his status approximately seven years ago when he was found inadmissible due to criminal convictions in Canada.
[2] Mr. Chambers applied for permanent residence on humanitarian and compassionate grounds (“H & C Application”
) based on his establishment in Canada, the best interests of his children, and the hardship he would face in returning to Jamaica, his country of citizenship, after thirty years. Mr. Chambers also applied for a Pre-Removal Risk Assessment (“PRRA”
) claiming he would face persecution and risk in Jamaica as someone who would be treated as a “criminal deportee.”
An officer at Immigration, Refugees and Citizenship Canada [IRCC] refused both applications.
[3] Mr. Chambers challenges both refusals on their merits and raises no procedural issues. The parties agree, as do I, that I ought to review both matters on the standard of reasonableness.
[4] I heard the judicial reviews of both matters – the H & C Application and the PRRA – concurrently. These are my reasons for granting both judicial reviews.
II. Analysis
A. Request for Alternative Relief – Temporary Resident Permit
[5] The parties agree that the Officer failed to consider Mr. Chambers’ alternative request for relief – the request for a Temporary Resident Permit (“TRP”
) under section 24(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. This request was clearly made in Mr. Chambers’ submissions filed with the H & C Application but was not acknowledged or addressed by the Officer. The Respondent concedes that this is an error and asks that only the TRP request to be reconsidered.
[6] I agree with the parties that the Officer failed to consider the TRP request. As this Court has explained in several cases, the failure to address a TRP request, made as an alternative request for relief, is unreasonable (see Connell v Canada (Citizenship and Immigration), 2023 FC 1316 at paras 45-50; Mpoyi v Canada (Immigration, Refugees and Citizenship), 2018 FC 251 at paras 32-33, 36; Catindig v Canada (Citizenship and Immigration), 2018 FC 92 at para 36; and Shah v Canada (Citizenship and Immigration), 2011 FC 1269 at paras 77-79).
[7] As I explain below, I find sufficiently serious shortcomings in the Officer’s analysis that require the full H & C Application be redetermined, and not only the request for a TRP.
B. H & C Application
[8] Foreign nationals applying for permanent residence in Canada can seek discretionary humanitarian and compassionate relief from requirements in the IRPA. The Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], citing Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 IAC 338, confirmed that the purpose of this humanitarian and compassionate discretion is “to offer equitable relief in circumstances that ‘would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another’”
(Kanthasamy at para 21).
[9] Given that the purpose of humanitarian and compassionate discretion is to “mitigate the rigidity of the law in an appropriate case,”
there is no limited set of factors that warrant relief (Kanthasamy at para 19). The factors warranting relief will vary depending on the circumstances, but “officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them”
(Kanthasamy at para 25, citing Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 [Baker] at paras 74-75).
[10] On two factors raised by the Applicant, his financial stability and long employment in Canada and the conditions he would face in returning to Jamaica, I find the Officer misconstrued the evidence, was unresponsive to the relevant evidence or submissions in the record or did not explain in a transparent way the reasons for their conclusion.
[11] The Officer finds that Mr. Chambers has provided insufficient evidence that he has stable income, and further finds that he “appears to be currently unemployed.”
The Officer does not reference any of the evidence in the record about Mr. Chambers’ employment in Canada.
[12] The Officer’s comment that Mr. Chambers “appears to be currently unemployed”
finds no support in the record. It is contradicted by the evidence before the Officer. A letter from Mr. Chambers’ current employer in the record confirms that he has been a full-time employee since March 2021. Additionally, Mr. Chambers provided his Notice of Assessment for the 2021 tax year.
[13] Further, the Officer does not explain how Mr. Chambers’ evidence about his employment and financial support for his family was insufficient. Mr. Chambers’ affidavit described his 23-year employment at a metal finishing company in Canada. There was also a letter from this company confirming this lengthy employment. Mr. Chambers’ affidavit also explains that he lost this employment during the COVID-19 pandemic and now works at another company in St. Catharines, which, as noted above, also provided a confirmation letter. Mr. Chambers also provided a recent crane-operator license. Mr. Chambers’ affidavit and letters from his family members, including his common-law spouse, describe his financial support for his family in Canada.
[14] In light of the evidence in the record about Mr. Chambers’ long employment in Canada and financial support of his family, the Officer had to explain how they came to the conclusion that the evidence on financial stability and support was insufficient. Overall, the Officer’s reasoning on Mr. Chambers’ financial stability and employment is inconsistent and unresponsive to the evidence in the record.
[15] The Officer’s evaluation on conditions in Jamaica and the hardship Mr. Chambers would face on return is also not responsive to the evidence and submissions before them. Despite finding that the “violence”
and “precarious living conditions”
are “widespread and faced by the large population who live in the country,”
the Officer states that Mr. Chambers provided “little evidence that he is likely to be personally and directly affected by the general country conditions.”
If these are conditions that the Officer found to be widespread and faced by the population living in the country, it is unclear how Mr. Chambers would not be impacted by these same conditions upon return. Without more explanation, the Officer’s reasons suggest that these conditions were not taken into account because Mr. Chambers had not shown a personal or direct link to them. In my view, the link is apparent based on the Officer’s own evaluation of the conditions in the country.
[16] The Officer acknowledges that the Applicant argued as a criminal deportee to Jamaica “he will face severe discrimination and barriers to employment.”
The Officer then concludes by stating that while they “empathize”
with the Applicant, “the argument is not sufficiently persuasive to grant more than a modest degree of weight.”
The Officer’s finding on this key issue is neither transparent nor justified. The Officer only states their conclusion that the argument is “not sufficiently persuasive”
but provides no explanation for the basis on which they reached this conclusion.
[17] The Officer failed to “meaningfully grapple”
with the evidence and submissions on Mr. Chambers’ establishment in Canada and the conditions he would face returning to Jamaica, calling into question the Officer’s sensitivity and alertness to key issues in the application before them (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 128). This renders the decision unreasonable and requires its redetermination.
C. PRRA Decision
[18] In the PRRA decision, the Officer found that country condition evidence was “generalized in nature and do not establish a linkage directly to the applicant’s personal circumstances.”
Mr. Chambers provided evidence about the discrimination faced by criminal deportees in Jamaica; it was principally on this basis he was seeking protection in Canada. The Officer does not explain how the evidence about discrimination against criminal deportees is not directly linked to Mr. Chambers’ circumstances as is set out in the PRRA submissions.
[19] The Officer acknowledges Mr. Chambers’ submission that he would face “severe discrimination and barriers to employment”
as a criminal deportee. However, using the same language as was used in the H & C decision, finds “While I emphasize with the applicant on the basis of his concerns, I find the argument is not sufficiently persuasive to grant more than a modest degree of weight.”
The Officer then concludes that Mr. Chambers had not provided sufficient supporting evidence to find that he would face risk under section 96 or 97 of IRPA.
[20] The Officer does not explain how the claim of discrimination is assessed under section 96 or 97. The Officer’s statement that Mr. Chambers’ argument about discrimination is given “a modest degree of weight”
is not further explained. It is not clear what type of evaluation the Officer was conducting. This conclusion, finding Mr. Chambers’ discrimination claim is given “modest weight”
, is unintelligible in the context of an assessment about whether he faces section 96 or section 97 risk.
III. Disposition
[21] The applications for judicial review of the H & C decision and the PRRA decision are both granted. Neither party raised a question for certification in either matter and I agree none arises.
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