Rosenberry v. Canada (Citizenship and Immigration)

Rosenberry v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2012-05-03
Neutral citation
2012 FC 521
File numbers
IMM-5788-11, IMM-5790-11
Decision Content
Federal Court
Cour fédérale
Date: 20120503
Docket: IMM-5788-11
IMM-5790-11
Citation: 2012 FC 521
Ottawa, Ontario, May 3, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GORDON ROSENBERRY;
MURIEL ROSENBERRY
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] These reasons deal with two applications under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review of two decisions of an immigration officer (Officer), dated 6 July 2011, which refused the Applicants’ request for permanent residence on humanitarian and compassionate (H&C) grounds under subsection 25(1) of the Act (H&C Decision) and refused their application for Temporary Residence Permits (TRP Decision).
BACKGROUND
[2] The Applicants are both citizens of the United States of America (USA) who currently live in Edmonton without status. The Male Applicant is 85 years old and the Female Applicant is 87 years old. Before coming to Canada, the Applicants lived in Albany, California. Their daughter (Janice), a permanent resident of Canada, also lives in Edmonton, while their two sons live in the USA.
[3] Janice filed a Family Class sponsorship application to bring the Applicants to Canada on 18 December 2007 (Family Class Application). Shortly after this application was received, Citizenship and Immigration Canada (CIC) advised her that the Family Class Application would likely take a long time to process. As of 23 February 2011, CIC was still processing the Family Class Application.
[4] While the Family Class Application was still pending, the Applicants sold their home in California, bought a house in Edmonton, and shipped their belongings there. In May 2008, the Applicants twice attempted to enter Canada through Kingsgate, British Colombia. On their first attempt, the Male Applicant told an officer of the Canada Border Services Agency (CBSA) that he and his wife wanted to live with Janice in Edmonton and they had no intention of returning to the USA. The CBSA officer telephoned Janice, who said her parents could live with her brothers in California. The CBSA officer found the Applicants were not genuine visitors to the USA and so he denied them entry.
[5] On their second attempt to enter Canada, the Male Applicant told another CBSA officer they had nothing to return to in the USA and it would be impossible for the Applicants to re-establish themselves there. The second CBSA officer also denied them entry, finding they were not genuine visitors. After they were refused entry on this occasion, the Applicants travelled to Seattle and went to the Canadian Consulate (Consulate) there. Although they sought assistance in entering Canada at the Consulate, none was forthcoming. The Applicants then went to California, stayed there for ten days, and returned to Seattle. The Applicants sold their car in Seattle because it seemed prudent at the time.
[6] After selling their car, the Applicants had a friend drive them across the border into Canada sometime in June 2008. When they crossed the border, the CBSA officer present asked to see their passports, admitted them to Canada as visitors, and told them to have a nice trip. Once in Canada, the Applicants travelled to Vancouver, where they booked flights to Edmonton. The Applicants flew to Edmonton and remain there to this day.
[7] The Applicants applied to extend their stay in Canada on 17 November 2008. An immigration officer in Edmonton interviewed the Applicants on 9 July 2009 (2009 Interview). The immigration officer conducting the interview (Korzenowski) noted that the Female Applicant was incoherent, smiled, and moaned. Korzenowski said in her notes it appeared the Female Applicant had major health and medical issues which the Applicants had not disclosed in their application to extend their stay. She excused the Female Applicant from the interview room when it became apparent she could not participate.
[8] After the interview, Korzenowski denied the Applicants’ request to extend their stay in Canada. In a refusal letter, dated 14 July 2009, she noted she had considered the reasons for their original entry and request for an extension, their financial means for return and an extended stay in Canada, their ties to the USA, and the probability they would leave Canada at the end of their authorized stay. Korzenowski found there were insufficient grounds to extend their stay. She informed the Applicants they were required to leave Canada immediately and issued them voluntary departure confirmation certificates.
[9] The Applicants respondent to Korzenowski’s decision by letter dated 21 July 2009. They noted they had filed an application for H&C relief prior to asking an extension of their stay, which was still outstanding (see below). They also said they could not return to Canada and that “if Canadian immigration law related to sponsoring parents worked properly, this situation would not have developed.” They informed Korzenowski they would make every attempt to block their removal through the judicial process.
[10] As a result of the 2009 Interview, Korzenowski issued inadmissibility reports against the Applicants under subsection 44(1) of the Act. These reports led a Minster’s delegate to issue removal orders against the Applicants on 31 July 2009. They applied for judicial review of the decision to issue exclusion orders against them. Justice John O’Keefe dismissed their application for judicial review on 8 September 2010 (see Rosenberry v Canada (Minister of Citizenship and Immigration) 2010 FC 882).
[11] On 8 July 2009, CIC received the Applicants’ application for permanent residence on H&C grounds (H&C Application). At the same time, Janice filed an Application to Sponsor and Undertaking – form IMM 1344 – and a Sponsorship Agreement – form IMM 1344 B – to support the H&C Application. The Applicants also made written submissions in which they said they did not have a support system in place in the USA and Janice was the only one of their children who was interested in taking care of them. They also said their stay in Canada underlined the failings of the Canadian immigration system, in that the delay in processing their Family Class Application drove them to come to Canada and live here without status.
[12] With their written submissions, the Applicants provided a letter from Dr. Robert Carter – the Applicants’ family physician in Edmonton (Carter Letter). The Carter Letter said the Female Applicant suffers from advanced Alzheimer’s disease and that, though she required care from the Male Applicant and Janice, Canada’s health care system had not borne any of the costs for her care. The Carter Letter also indicated that the Female Applicant’s medical needs exerted a significant burden on her family and she would eventually require institutionalized care. The Carter Letter concluded that the Female Applicant would require increased health care and could become a burden on Canada’s health care system.
[13] The Applicants provided additional submissions to the Officer on 2 October 2009. At this time, they submitted a report from Bonnie Patterson-Payne, a social worker practicing in Edmonton (Social Worker Report), and a letter from Jeanne Hackama, the Director of Care at Open Arms Family Care Ltd. – the private care home to which the Female Applicant had been admitted (Hackama Letter). The Hackama Letter indicated the Female Applicant is unable to speak for herself and needs total physical care.
[14] The Social Worker Report indicated that Janice was concerned about the Female Applicant’s condition and that the cost of the Female Applicant’s care in Canada was approximately $2900 per month, where the same level of care would cost $8000 per month in the USA. The Social Worker Report also noted that in Edmonton the Male Applicant had the support of a group of Plymouth Brethren – a Christian sect of which he is a member.
[15] A medical officer at CIC (Quevillon) issued a Medical Notification to the Female Applicant on 4 November 2009. The Medical Notification indicated that if she were permitted to enter Canada, the Female Applicant might reasonably be expected to cause excessive demands on Canada’s health or social services. Quevillon found the Female Applicant had advanced Alzheimer’s disease and her condition would deteriorate over time so that she would eventually require 24 hour care. Quevillon also found the Female Applicant’s condition might reasonably be expected to require services which would cost more than the average Canadian per-capita cost over five years. Quevillon concluded the Female Applicant was inadmissible under paragraph 38(1)(c) of the Act.
[16] The Applicants applied for TRPs on 22 September 2010 (TRP Application). In the Male Applicant’s submissions, he noted the Female Applicant was in a nursing home under 24-hour care. He said there was no prospect for improvement, so the Applicants could not relocate. He also said they posed no danger to Canada and would not place a burden on Canada’s health care system because they were paying for their own care. The Male Applicant said he had not yet received word on the Family Class Application. The Female Applicant’s application form indicated the Applicants wished to stay in Canada until the Family Class Application was considered. The Applicants also made written submissions in support of their TRP Application in which they said they had little support to return to in the USA and Janice was the only child who would be able to care for them. They said a TRP was the fairest way for Canada to address their circumstances. According to the Applicants, to march the 80-year-old Male Applicant out of Canada with his wife carried on a stretcher behind him would demonstrate a complete collapse in Canadian humanity and reasonableness.
[17] The Officer informed the Applicants on 27 April 2011 that the TRP Application would be processed along with the H&C Application. He also informed them he believed the Female Applicant was inadmissible to Canada under subsection 38(1) of the Act and invited them to make submissions on this issue. In submissions dated 24 May 2011, the Applicants gave the Officer financial information to show their ability to pay for the services the Female Applicant would require. They noted they were currently paying for her medical attention and said they had sufficient resources to continue to fund her care. The Applicants also provided the Officer with a Declaration of Ability and Intent, dated 15 May 2011, in which the Male Applicant declared he would not hold provincial authorities responsible for the cost of social services. He also declared he would assume responsibility for arranging the provision of the required social services. The Applicants asked the Officer to exercise discretion in their case and give significant weight to their ability to pay for the Female Applicant’s continuing needs.
[18] The Officer considered the Applicants’ submissions on the H&C Application and made the H&C Decision on 6 July 2011. He was not satisfied unusual and undeserved or disproportionate hardship would result to the Applicants if their H&C Application were denied, so he refused their application.
[19] After considering the Applicants’ H&C Application, the Officer considered whether to grant them a TRP under subsection 24(1) of the Act. On 6 July 2011, he wrote a memorandum (Memorandum) to the Director of CIC (Director) in which the Officer decided against granting the Applicants TRPs. The Officer’s supervisor agreed with his findings and endorsed the Memorandum on 14 July 2011. The Director concurred with the TRP Decision and endorsed the Memorandum on 21 July 2011.
[20] The Officer notified the Applicants of the TRP Decision and H&C Decision by letter dated 21 July 2011. The Applicants applied for leave and judicial review of both decisions on 25 August 2011. Justice Michael Kelen granted leave on 30 December 2011 and ordered that the applications be heard together.
DECISIONS UNDER REVIEW
H&C Decision
[21] The H&C Decision consists of the letter the Officer sent to the Applicants on 21 July 2011 (Refusal Letter) and his Reasons for Decision (H&C Reasons), signed 6 July 2011. The Refusal Letter indicates the Officer considered and rejected both the H&C and TRP applications.
[22] The Officer began by reviewing the Applicants’ biographical information and their history with CIC. He then reviewed the factors they put forward in their claim. The Officer noted the Applicants relied on their establishment in Canada related to the home they have here, the proximity to their daughter, and the Female Applicant’s medical condition. They also put forward the Male Applicant’s connection to the Plymouth Brethren community in Ottawa, their sons’ practical inability to care for them, and their financial situation.
[23] The Officer briefly reviewed the impact of his Decision on any children directly affected, finding the Applicants had not put forward any information to show how their grandchildren would be affected by the H&C decision. The Officer also reviewed concerns about the Applicants’ health. He noted Quevillon’s finding the Female Applicant was medically inadmissible because of her advanced Alzheimer’s disease. He also noted the Applicants submissions on this issue made in response to the Fairness Letter. The Officer said the Male Applicant underwent an immigration medical examination, after which he was designated M3. An M3 designation meant the Male Applicant had a condition for which the potential demand on health or social services is not sufficient to exclude him under paragraph 38(1)(c) of the Act.
Analysis
[24] The Officer found he was not satisfied there were sufficient H&C grounds in the Applicants’ case to grant them an exemption under section 25 of the Act.
Immigration History
[25] The Officer noted the Applicants entered Canada in June 2008 after twice being refused entry because they were not genuine visitors. He noted they had disposed of their home in California and moved their assets to Canada before coming here in 2008. Further, he noted Janice was notified about the lengthy delays in processing parental sponsorship applications. The Officer said the letter CIC sent Janice after she filed her sponsorship application informed her about processing times, but did not suggest the Applicants should come to Canada before their application was processed. The Officer also referred to the 2009 Interview in which the Male Applicant described their repeated attempts to get into Canada.
[26] The Officer found the Applicants’ efforts to get into Canada indicated persistence and a willingness to do whatever it took to get into Canada. They continued trying to get into Canada even though they were aware, from their refusals at the border, that they were not qualified to enter. He also found that, even if they initially tried to enter Canada in ignorance of the requirements on them, their entry in June 2008 appeared to have been planned to circumvent the immigration process. The Officer found they should have known in June 2008 that they would have to clarify their intentions at the border, but they did not do so.
[27] The Officer then noted that, after the 2009 Interview, CIC issued removal orders against them and they had applied for judicial review of the process for issuing the removal orders. The Officer found the Applicants chose to remain in Canada instead of making other arrangements for their care in the USA. The Officer found the Applicants were determined not to follow the standard route for immigration but had done whatever it took to stay in Canada.
[28] The Officer also analysed the Applicants’ motivation for coming to Canada. He found they have several family members in the USA and the Social Worker Report did not indicate any abuse at the hands of their American family. He also found there was insufficient evidence the Applicants could not move within the USA to be closer to their sons. The Officer noted the Applicants do not live with their daughter in Canada; the Male Applicant lives on his own and the Female Applicant lives in a care facility. In their submissions, the Applicants raised the Male Applicant’s connection to the Plymouth Brethren community in Edmonton and the Social Worker Report said the support of this community was not available to him in the USA. However, the Officer questioned how the Male Applicant managed to get by without this support while he was in the USA and what had made it necessary to have the support of the community in Canada.
[29] The Officer found there was no justifiable reason for the Applicants to have rushed their move to Canada. He also found there was no reason they could not return to the USA pending the outcome of their Family Class Application.
[30] The Officer also found the motivating factor behind the Applicants move to Canada seemed to be the Female Applicant’s medical condition. He said information before him clearly showed the Female Applicant was diagnosed with Alzheimer’s disease as early as 2005. The Officer found that, by the time the Applicants came to Canada in 2008, the Female Applicant’s condition had progressed to the point that the Officers noted her dementia when they attempted to enter Canada. Further, at the 2009 Interview, Korzenowski mentioned that the Female Applicant was incoherent, moaned, and smiled quite a bit. The Officer also referred to the Medical Notification, and noted he had sent the Applicants a fairness letter. Although the Applicants made submissions on the Female Applicant’s medical inadmissibility, the Officer found the information they submitted did not modify her medical inadmissibility.
[31] The Officer also noted the Applicants advised him they were paying for the Female Applicant’s medical care and had sufficient funds to pay for her care. The Officer said he chose not to pursue the medical inadmissibility issue; he said his purpose in reviewing it was to show how the Female Applicant’s condition was a significant, underlying motivation in the Applicants’ decision to come to Canada. He questioned why, even though the Applicants were currently paying for the Female Applicant’s care, they should get into Canada ahead of others by jumping the queue. The Officer also noted that, independent of the medical inadmissibility, the Applicants were subject to outstanding removal orders.
Conclusion
[32] The Officer found the Female Applicant’s family knew about her condition two to three years before the Applicants came to Canada. He found their actions prior to coming to Canada showed a willingness to bypass the rules when it was expedient and in their best interests to do so. Although it was understandable they had anticipated her condition might deteriorate to the point she would be clearly inadmissible to Canada, the Officer found that the option of coming to Canada became more attractive as the Female Applicant’s condition deteriorated. Given the Applicants’ financial resources, he found they had not shown they could not avail themselves of adequate medical care and housing in the USA.
[33] Given the way they had pursued immigration to Canada, the Officer was not satisfied the Applicants were credible or trustworthy. The means by which they sought immigration to Canada and an extension of their visitor status appeared to be an attempt to reduce the impact of the Female Applicant’s condition. Further, the plan the Applicants submitted to show how they would pay for the Female Applicant’s care did not contain details of any future care. The Officer was not convinced that the Male Applicant would be both willing and able to follow through on his commitment to cover the costs of the Female Applicant’s care. Although the Applicants said CIC’s lengthy processing times were to blame for their circumstances, the Officer found they were advised of these processing times and their circumstances were of their own making.
TRP Application
[34] The TRP Decision consists of the Refusal Letter and the Memorandum in which the Officer gave reasons for his Decision.
[35] The Officer said in the Refusal Letter he had carefully and sympathetically reviewed the TRP Application, but concluded there were insufficient grounds to merit the issue of a TRP. The Officer then informed the Applicants that CBSA would contact them to make arrangements for their removal.
[36] In the Memorandum, the Officer noted the Male Applicant’s statement in the TRP Application that the Applicants posed no danger to Canada and would not be inadmissible.
[37] The Officer also noted that he had considered and refused the H&C Application. He said the H&C Application presented no reason for the Applicants to stay in Canada. The Officer also noted their Family Class Application was still outstanding and no action had been taken on the file since 23 February 2011. He said the length of time the Family Class Application would take was not relevant because the Female Applicant’s medical inadmissibility was a major factor in refusing the H&C Application.
[38] As in the H&C Decision, the Officer found the information they Applicants’ submitted in response to the Fairness Letter did not change the Female Applicant’s medical inadmissibility. He found she is in need of 24-hour care but found no reason why a suitable means of returning her to the USA could not be arranged. The Officer also noted the Male Applicant’s previous immigration medical exam had expired and said that, given the Male Applicant’s age, there was a reasonable possibility he might be medically inadmissible.
[39] The Officer concluded that, given the timing and means by which the Applicants came to Canada, their circumstances were of their own making. He said there was no likelihood of permanent residence any time soon and that prolonging their stay in Canada could end up making their situation even worse. The Officer recommended the Director not issue TRPs to the Applicants.
[40] Beside his endorsement, the Supervisor wrote “medically inadmissible. Inadmissibility still outweighs any H&Cs that may exist. Deliberate circumvent [sic] the law. [exclusion orders] exist.”
ISSUES
[41] The Applicants raise the following issues in this case:
a. Whether the Officer properly considered all the evidence;
b. Whether the Officer properly assessed hardship in the H&C Application;
c. Whether the Officer’s reasons are inadequate;
d. Whether the Officer breached their right to procedural fairness;
e. Whether the Officer improperly applied CIC’s manual IP-5 – Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (H&C Guidelines) or IP1 – Temporary Resident Permits (TRP Guidelines);
f. Whether the Officer was biased.
STANDARD OF REVIEW
[42] The Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[43] In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada held that, when reviewing an H&C decision, “considerable deference should be accorded to immigration Officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language” (paragraph 62). Justice Michael Phelan followed this approach in Thandal v Canada (Minister of Citizenship and Immigration) 2008 FC 489, at paragraph 7. The Federal Court of Appeal found at paragraph 18 of Kisana v Canada (Minister of Citizenship and Immigration) 2009 FCA 189 that the standard of review on H&C determinations is reasonableness.
[44] In Vidakovic v Canada (Minister of Citizenship and Immigration) 2011 FC 605, Justice Yvon Pinard held at paragraph 15 that the standard of review on the decision to issue a TRP is reasonableness. Justice Michel Shore found that a TRP decision is highly discretionary and was subject to the patent unreasonableness standard of review in Farhat v Canada (Minister of Citizenship and Immigration) 2006 FC 1275. The standard of review on the first two issues is reasonableness.
[45] In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” The third issue in this case, whether the Officer provided adequate reasons, is to be analyzed along with the reasonableness of the Decision as a whole.
[46] The fifth issue in this case touches on the Officer’s application of a legal test to the evidence in front of him. This is a question of mixed fact and law, to which the applicable standard of review is reasonableness (see Dunsmuir, above, at paragraph 51).
[47] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[48] The Applicants raise several breaches of procedural fairness, including the Officer’s decision not to interview them. The Federal Court of Appeal held in Sketchley v Canada (Attorney General) 2005 FCA 404 at paragraph 53 that the “procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.” Also, in Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of Labour) 2003 SCC 29, the Supreme Court of Canada held at paragraph 100 that “It is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” The standard of review in on the fourth issue is correctness.
[49] In Committee for Justice and Liberty v Canada (National Energy Board), [1978] 1 SCR 369, [1976] SCJ No 118, Justice de Grandpré wrote at page 394 that the test for bias is that
[...] the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?”
[50] Though Justice de Grandpré was in dissent, this formulation of the test was later approved by the Supreme Court of Canada in R v RDS, [1997] 3 SCR 484, [1997] SCJ No. 84. In that case, Justice Cory held at paragraph 114 that
The onus of demonstrating bias lies with the person who is alleging its existence. [...] Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
[51] Whether the Officer was biased is a question of fact within the jurisdiction of the reviewing court (see also Martinez v Canada (Minister of Citizenship and Immigration) 2005 FC 1065 at paragraph 5).
STATUTORY PROVISIONS
[52] The following provisions of the Act are applicable in this proceeding:
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
[…]
24. (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
[…]
(3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make.
[…]
25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
[…]
42. A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
(a) their accompanying family member or, in prescribed circumstances, their non- accompanying family member is inadmissible; or
(b) they are an accompanying family member of an inadmissible person.
11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
[…]
24. (1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que les circonstances
le justifient, un permis de séjour temporaire — titre révocable en tout temps.
[…]
(3) L’agent est tenu de se conformer aux instructions que le ministre peut donner pour
l’application du paragraphe (1).
[…]
25. (1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente
loi, et peut, sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives
à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.
[…]
42. Emportent, sauf pour le résident permanent ou une personne protégée, interdiction de territoire pour inadmissibilité familiale les faits suivants:
a) l’interdiction de territoire frappant tout membre de sa famille qui l’accompagne ou
qui, dans les cas réglementaires, ne l’accompagne pas;
b) accompagner, pour un membre de sa famille, un interdit de territoire.
[53] The following provision of the Federal Courts Rules SOR/98-106 (Rules) is applicable in this case:
56. Non-compliance with any of these Rules does not render a proceeding, a step in a proceeding or an order void, but instead constitutes an irregularity, which may be addressed under rules 58 to 60.
56. L’inobservation d’une disposition des présentes règles n’entache pas de nullité
l’instance, une mesure prise dans l’instance ou l’ordonnance en cause. Elle
constitue une irrégularité régie par les règles 58 à 60.
[54] The following provision of the Federal Courts Immigration and Refugee Protection Rules SOR/ 93-22 (Immigration Rules) is also applicable in this case:
22. No costs shall be awarded to or payable by any party in respect of an application for leave, an application for judicial review or an appeal under these Rules unless the Court, for special reasons, so orders.
22. Sauf ordonnance contraire rendue par un juge pour des raisons spéciales, la demande d’autorisation, la demande de contrôle judiciaire ou l’appel introduit en application des présentes règles ne donnent pas lieu à des dépens.
ARGUMENTS
The Applicants
[55] The Applicants note that a TRP is a means by which people who are otherwise inadmissible can enter Canada. They acknowledge that applicants bear the onus of establishing why they should be granted a TRP and point out that H&C considerations are often raised in this type of application. They also note that CIC’s Manual the TRP Guidelines instruct officers on how to exercise the discretion given to them under subsection 24(1) of the Act.
Officer Ignored H&C Guidelines
[56] The Applicants say the Officer ignored the H&C Guidelines when he made the H&C Decision before their Family Class Application was complete. At page 10, the H&C Guidelines say:
If an H&C applicant also has a pending application for permanent residence in another category (e.g. live-in caregiver, spouse or common-law partner in Canada, protected person etc.), the application that was received first normally takes precedence although certain types of cases may have priority (e.g. spousal application). Multiple permanent resident applications should be consolidated. Processing of the H&C application should not begin until a decision is made on the first application.
[57] This shows the Officer should not have made the H&C Decision until the Family Class Application was complete.
Officer Ignored Evidence
[58] The Applicants also say the Officer did not examine evidence which was central to their claim. In the H&C Reasons, the Officer only recited facts gleaned from the documents they submitted, without appreciating how these facts were important. They say the Refusal Letter does not mention the Social Worker Report or the Family Class Application. The Officer does not say why he rejected the findings set out in the Social Worker Report, which clearly describes the ties between them and their family in Canada. The Refusal Letter also does not mention the support the Applicants have from family and their religious community in Canada, the Female Applicant’s inability to leave Canada, or the fact the Applicants are paying for the Female Applicant’s care in Canada. The Officer ignored this same evidence when he considered the TRP Application.
[59] Following Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425, the Applicants say the Court can infer that the Officer did not consider these pieces of evidence from his failure to mention them in either the H&C or TRP Decision. They also point to Kaur v Canada (Minister of Citizenship and Immigration) 2010 FC 805, where Justice Marie-Josée Bédard said the “immigration officer has discretion as to the weight to be given to the personal circumstances raised by an applicant, but he cannot fail to have regard to the applicant’s personal circumstances.”
Reasons Inadequate
[60] The Officer’s H&C Reasons do not show why the factors they put forward were not sufficient to grant an H&C exemption in their case. The Memorandum does not show why he did not grant their TRP Application.
H&C Application
[61] The Applicants point to Ventura v Canada (Minister of Citizenship and Immigration) 2010 FC 871, where Justice Yves de Montigny had this to say at paragraphs 29 and 30
I agree with the Respondent that the onus is on the Applicant to satisfy the officer that, in the Applicant’s personal circumstances, the requirement to obtain a visa from outside Canada in the standard manner would cause unusual and undeserved or disproportionate hardship. That being said, once an applicant has put forward the positive factors militating in favour of granting his H&C application, the officer must explain why he does not find these factors sufficient to grant the application. An applicant is entitled to know why he failed to convince the officer of the cogency of his case, especially when there is so much at stake as his future in this country.
In the case at bar, the officer did not meet this standard. He merely recited the allegations of the Applicant, only to dismiss them without any kind of explanation or analysis. Counsel for the Respondent countered that the Applicant, through his counsel, had not elaborated as to how and why the factors submitted would constitute undue hardship in the first place. I do not find this argument convincing. The implications of severing the Applicant’s establishment in Canada, as evidenced by his family relations, his community involvement, his work and his studies are obvious without the necessity of stating how and why, from his point of view, his return to Angola would constitute undue hardship. On the basis of the record before him, the officer had more than sufficient evidence not only to determine whether unusual and undeserved or disproportionate hardship had been made out, but as importantly to give his reasons as to why he came to his conclusion.
[62] The Officer in the present case did not adequately explain his conclusions and engaged in speculation.
Officer did not Consider Hardship
[63] The Officer did not assess whether the hardship the Applicants would face if their H&C Application were denied was disproportionate in their circumstances. They note the H&C Guidelines set out unusual and undeserved or disproportionate hardship as an acceptable test for an H&C exemption. Hardship should be assessed globally by weighing all the H&C considerations applicants submit. The Applicants also note that, in Hinzman v Canada (Minister of Citizenship and Immigration) 2010 FCA 177, the Federal Court of Appeal held at paragraph 40 that officers assessing H&C applications have a duty to consider applicants’ personal circumstances. However, the Officer did not examine the disproportionate hardship the Female Applicant would experience in her personal circumstances.
Establishment
[64] The Applicants note the H&C Guidelines instruct officers examining H&C applications to consider establishment in Canada as a factor in the H&C Application.
Medical Condition
[65] When the Officer was assessing was assessing the H&C Application, he did not appropriately treat the information about the Female Applicant. He did not say why he rejected their submission that an individualized assessment of their case meant non-medical evidence should be accepted. The Officer did not consider the Applicants’ financial resources or the plan they submitted to pay for the Female Applicant’s needs. The Officer only listed the documents they submitted and said “the new information does not modify the current assessment of medical inadmissibility.” Even though the Applicants provided submissions in response to the 27 April 2011 Fairness Letter, the Refusal Letter did not mention their plan to overcome the Female Applicant’s medical inadmissibility. The H&C Reasons also do not show how the Officer considered the instructions on health inadmissibility in the H&C Guidelines.
Family Relationship
[66] The H&C Reasons do not show that the Officer adequately considered the relationship they have with their family in Canada. They note the H&C Guidelines direct officers to consider links to family m