Docket: IMM-7588-23
Citation: 2024 FC 1933
Ottawa, Ontario, November 29, 2024
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN: |
IAN WAYNE DEMETRI CLARKE |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Ian Wayne Demetri Clarke is a citizen of Jamaica. He seeks judicial review of a decision by an officer [Officer] with Immigration, Refugees and Citizenship Canada to refuse his request to apply for permanent residence from within Canada on humanitarian and compassionate [H&C] grounds.
[2] Mr. Clarke’s arguments amount to disagreements with the weight attributed by the Officer to the evidence submitted in support of his request for H&C relief. However, it is not the role of the reviewing Court to re-weigh the evidence and substitute its view for that of the decision maker.
[3] The application for judicial review is dismissed.
II. Background
[4] Mr. Clarke is 56 years old. He has a daughter and two sons, all of whom reside in Jamaica. He first came to Canada as a Temporary Foreign Worker [TFW] on July 24, 2002. He returned to Canada in 2003, and again in 2011. His most recent entry was in 2015. His seasonal farm work visa expired in September 2015, and an extension of his work permit was refused in January 2016.
[5] In 2019, Mr. Clarke submitted a refugee claim. This was refused by the Refugee Protection Division of the Immigration and Refugee Board [IRB] on May 21, 2021. He appealed the decision to the Refugee Appeal Division [RAD] of the IRB, which dismissed the appeal on September 20, 2021. The RAD found that Mr. Clarke had not established a risk that was particular to him, and the risk he identified was faced generally by all people who are perceived as wealthy in Jamaica.
[6] On June 30, 2022, Mr. Clarke submitted a request to apply for permanent residence status from within Canada pursuant to s 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. Mr. Clarke said the following in support of his request:
(a)he had spent roughly 15 years working in the Canadian Agricultural sector, paying taxes with deductions for CPP and EI. Two letters from his employers corroborated his employment in Canada from February 2012 to 2015, and from May 6, 2019 to the date of the H&C request. He also included a letter from a pastor confirming his local community involvement.
(b)his children in Jamaica were dependant on his financial assistance. Letters from his two sons stated that they relied on Mr. Clarke’s financial support to pay university tuition. One of the sons said he would be unable to complete his education without this support. Mr. Clarke also included a letter from his cousin and receipts for money orders.
(c)he had a brain bleed in 2013 and spent two weeks in the hospital. Mr. Clarke suffers from high blood pressure and periodic migraines. He said he would struggle to find employment in Jamaica due to his medical condition.
(d)the uncertainty in his life was causing him great distress, and he was seeing a psychologist.
(e)he worked for the benefit of the Canadian economy, and sacrificed time he could have spent with his children while they were growing up. He was exposed to pesticides without adequate hazardous materials raining, and performed arduous labour in poor living conditions.
(f)he feared the rise in violence in Jamaica, and would be vulnerable to attack as a returnee who would be perceived as wealthy.
[7] The Officer refused the H&C request on May 31, 2023. Reasons were provided on July 18, 2023.
III. Decision under Review
A. Establishment
[8] The Officer assigned some positive weight to the length of time Mr. Clarke had been in Canada. However, aside from the letters from employers and work permits, there was little evidence to support the majority of Mr. Clarke’s employment, particularly “the periods of employment prior to February 2012 when Mr. Clarke was in Canada, and from October 2015 to April 2019”
. The Officer assigned only moderate weight to Mr. Clarke’s history of employment in Canada.
[9] The Officer assigned little weight to the letter from the pastor. While the letter mentioned that Mr. Clarke had prepared meals for other people on two occasions and regularly attended religious services, there were only vague references to volunteer activities and little information about Mr. Clarke’s integration into his community.
[10] The Officer attributed little weight to Mr. Clarke’s relationships in Canada. The evidence was limited to his work and church attendance, and did not describe his relationships or community connections more broadly.
B. Financial Support of Children
[11] The Officer found that money orders and statements from family members established that Mr. Clarke had sent money to his sons and provided them with financial support. This was given some positive weight.
[12] However, the Officer observed that the supporting documents indicated that (a) one son had already completed the academic program mentioned in his letter; and (b) the other son was in his penultimate year of studies. There was an inconsistency between the letters from the cousin and the sons regarding the extent of Mr. Clarke’s financial support: the cousin said that the two sons depended solely on Mr. Clarke for everything, while the sons stated only that they received financial support to complete their education. The Officer assigned only moderate weight to Mr. Clarke’s provision of financial assistance to his children.
C. Medical Considerations
[13] The Officer considered the medical information provided and found there was no evidence of residue hemorrhage following Mr. Clarke’s brain bleed. The paperwork was roughly a decade old. The more recent medical documents were from 2019 and indicated that Mr. Clarke sought medical assistance for headaches and neck pain. He was prescribed Ibuprofen.
[14] The Officer acknowledged that Jamaica’s healthcare system is sometimes under-resourced, but noted that this is also true in Canada. There was little evidence of how shortcomings in medical services in Jamaica applied to Mr. Clarke personally. It appeared that Mr. Clarke might be eligible for subsidized medical care under the National Health Fund Program. The Officer therefore assigned little weight to Mr. Clarke’s medical conditions.
D. Mental Health Concerns
[15] The Officer acknowledged that Mr. Clarke was stressed and apprehensive about his possible return to Jamaica. However, there was little evidence of Mr. Clarke’s mental health, or his efforts to obtain professional assistance. The Officer assigned little weight to this consideration.
E. Adverse Country Conditions
[16] The Officer found that the newspaper articles Mr. Clarke submitted suggested the targets of violence in Jamaica were primarily returnees who had built new homes there. Mr. Clarke indicated that he intended to rent a home if he returned to Jamaica.
[17] Mr. Clarke’s children and cousin asserted that returnees were extorted, but they did not say they personally knew of anyone who had been targeted. There was no evidence that Mr. Clarke would be affected personally.
[18] The Officer acknowledged that Mr. Clarke might have trouble finding work in Jamaica, owing to the tendency of “younger more physically adept workers”
to engage in agricultural employment. However, this was also true in Canada. While Mr. Clarke’s absences from Jamaica might complicate his job search, the Officer reasoned that his experience in the TFW program and as a woodcutter with H&H Wood Products Inc could mitigate those challenges.
[19] The Officer noted that Jamaica continues to struggle with crime and gang violence, and the police are underfunded. However, Mr. Clarke did not sufficiently link the country conditions to his personal circumstances. The Officer assigned only moderate weight to adverse country conditions in Jamaica.
F. Work in the TFW Program
[20] The Officer found insufficient evidence to corroborate Mr. Clarke’s allegations of mistreatment in the TFW program, but nevertheless assigned some positive weight to his participation in the program and his contributions to the Canadian economy. The Officer accepted that work on a farm can be difficult, but noted the voluntary nature of the TFW program and Mr. Clarke’s multiple applications to participate in it.
[21] The Officer therefore concluded that an exemption under s 25(1) of the IRPA was not warranted.
IV. Issue
[22] The sole issue raised by this application for judicial review is whether the Officer’s decision was reasonable.
V. Analysis
[23] The Officer’s decision is subject to review by this Court against the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10). The Court will intervene only if “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100). These criteria are met if the reasons allow the Court to understand why the decision was made, and determine whether the decision falls within the range of acceptable outcomes defensible in respect of the facts and law (Vavilov at paras 85-86, citing Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[24] An exemption under subsection 25(1) of the IRPA is an exceptional and discretionary remedy (Legault v Canada (Minister of Citizenship and Immigration)(CA), 2002 FCA 125 at para 15). The onus was on Mr. Clarke to adduce sufficient evidence to justify his H&C request (Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 35; Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 5).
[25] Mr. Clarke’s arguments consist of disagreements with the Officer’s conclusions respecting the evidence. He has not demonstrated that the Officer misconstrued or failed to consider relevant evidence in a material way.
[26] Mr. Clarke claims that the Officer gave insufficient weight to the approximately 15 years he had spent in Canada, and should have given more weight to his participation in the TFW program, particularly given the arduous nature of the work and the deplorable conditions. He does not dispute the factual findings that underlie the Officer’s conclusions.
[27] Nor does Mr. Clarke dispute the factual findings that gave rise to the Officer’s conclusion that his sons are not solely dependent on him for financial assistance, particularly given the completion or near completion of their university studies. He only disagrees with the weight ascribed by the Officer to these considerations.
[28] Mr. Clarke argues that the Officer minimized his medical conditions and the challenges he will face in obtaining adequate health care if he returns to Jamaica. In Fatt Kok v Canada (Citizenship and Immigration), 2011 FC 741, the applicant made a similar argument regarding the poor availability of medications and treatment in his country of origin. Justice Richard Mosley held that this amounted to a dispute about the weighing of evidence, which is not the function of the Court when conducting judicial review (at para 23).
[29] The news articles submitted by Mr. Clarke described in general terms the dangers of living in Jamaica, and the particular danger for returnees who had built their “dream homes”
. In some of the articles, the impetus for the violence was unclear. It was open to the Officer to conclude that there was insufficient evidence to establish that all returnees to Jamaica are likely to be perceived as wealthy or face a corresponding risk of being targeted.
[30] In her submissions to the Court, counsel for Mr. Clarke repeatedly said that the Officer’s conclusions did not “add up”
: having ascribed positive weight to a number of considerations, the Officer’s analysis could not reasonably have resulted in a negative decision. I disagree.
[31] Denial of H&C relief will be unreasonable only where this outcome is “simply unacceptable to decent, fair-minded Canadians”
. While aspects of Mr. Clarke’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 108, 122).
VI. Conclusion
[32] The application for judicial review is dismissed. Neither party proposed that a question be certified for appeal.
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