Santiago v. Canada (Citizenship and Immigration)

Santiago v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2020-02-05
Neutral citation
2020 FC 198
File numbers
IMM-3144-19
Decision Content
Date: 20200205
Docket: IMM-3144-19
Citation: 2020 FC 198
Ottawa, Ontario, February 5, 2020
PRESENT: Mr. Justice Russell
BETWEEN:
LUZ MARIA NATAD SANTIAGO
ROMAN ROY BALDOVINO SANTIAGO
ZAKE DYLAN NATAD SANTIAGO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of the decision of an Immigration Officer [Officer], dated March 21, 2019 [Decision] wherein the Officer denied the Applicants’ application for permanent residence on humanitarian and compassionate [H&C] grounds.
II. BACKGROUND
[2] Ms. Luz Maria Natad Santiago and her spouse, Mr. Roman Roy Baldovino Santiago, are citizens of the Republic of the Philippines. The couple have two children together: Zake Dylan Natad Santiago, born in the Philippines on September 17, 2007; and Zhia Alexa Santiago, born in Canada on February 28, 2017.
[3] Ms. Santiago first came to Canada in 2013 as a temporary resident on a work permit, which expired on November 30, 2015. Ms. Santiago’s work permit was renewed until February 4, 2017. During this time, Ms. Santiago worked for Glory of India, a restaurant in Calgary.
[4] On June 4, 2016, Ms. Santiago travelled to the Philippines for over a month to visit her family. Upon her return to Canada, she discovered that she was pregnant with her daughter Zhia. Ms. Santiago gave birth to Zhia in Canada on February 28, 2017.
[5] Shortly after the birth of Zhia, Ms. Santiago’s Alberta Immigrant Nominee Program [AINP] application was refused on March 28, 2017, for failing to include an underlying Labour Market Impact Assessment [LMIA]. Ms. Santiago states that her immigration consultant erroneously advised her that she did not require a LMIA for an AINP application. Ms. Santiago was subsequently refused a work permit in May 2017 for not providing a LMIA and since the restaurant for which she worked had since closed down.
[6] On June 30, 2017, Ms. Santiago was issued a study permit, thus maintaining her temporary resident status. However, despite being accepted into a Designated Learning Institute, Ms. Santiago was unable to pursue her studies given the cost of child care for her newborn daughter. Ms. Santiago was subsequently issued a work permit valid until February 5, 2019, after securing employment at Marble Slab Creamery.
[7] Unfortunately, Ms. Santiago was diagnosed with breast cancer in May 2018. It was discovered that she carried a genetic mutation known as TP 53, which makes cancer much more likely. Ms. Santiago underwent a double mastectomy in October 2018 and has since continued to undergo treatment. Her doctors expect she will make a full recovery with continued monitoring and follow-up.
[8] Before Ms. Santiago’s surgery, Mr. Santiago entered Canada on October 7, 2018, with a multiple entry work visa expiring February 5, 2019. The Applicants state that Mr. Santiago came to Canada in order to care for Ms. Santiago and their daughter while Ms. Santiago recovered from her surgery. Their son Zake remained in the Philippines with extended family.
[9] In December 2018, the Applicants submitted an application for permanent residency on H&C grounds. The application was denied on March 21, 2019. However, the Applicants only became aware of the Decision on April 2, 2019 and did not receive the Officer’s reasons until May 8, 2019. An Application for Leave and Judicial Review with a request for an extension of time was filed with this Court on May 17, 2019. On August 29, 2019, Justice Ahmed granted leave as well as the request for the extension of time.
III. DECISION UNDER REVIEW
[10] The Applicants contest the Decision rejecting their application for permanent residency on H&C grounds pursuant to s 25(1) of the IRPA.
[11] In essence, the Officer was of the opinion that, upon considering the H&C factors in this case, the granting of permanent residence was not justified on H&C grounds. The Officer noted that applying for H&C considerations is an exceptional measure and not simply another means to apply for permanent residence from within Canada.
[12] The Officer began by listing the relevant H&C factors for consideration. The Officer noted that the Applicants’ establishment in Canada, the best interests of the children, Ms. Santiago’s breast cancer, and the refusal of Ms. Santiago’s AINP application, were relevant factors to consider in this case.
A. Establishment in Canada
[13] The Officer outlined Mr. and Ms. Santiago’s history in Canada, acknowledging that Ms. Santiago has worked in Canada since 2013 and has friends here. However, the Officer noted that Mr. and Ms. Santiago have provided little reason as to why they would be unable to return to the Philippines. The Officer noted that Ms. Santiago returned to the Philippines to visit in 2016 and that Mr. Santiago lived there until October 2018 working for the Philippine government. Moreover, the Officer noted that they are educated individuals with Canadian work experience.
B. Best Interests of the Children
[14] The Officer noted that Mr. and Ms. Santiago have two children together. With regard to Zhia, the Officer found that, given her age and level of dependency on her parents, her best interests would be served by remaining in the care of both of her parents. The Officer acknowledged that she could return to Canada in the future given the fact that she is a Canadian citizen but, in the meantime, she would have her parents to help her adjust to her new life in the Philippines. The Officer noted she would even have the benefit of meeting her older brother Zake.
[15] Concerning the best interests of Zake, the Officer noted that he would benefit from his parents returning to the Philippines as well as from meeting his younger sister Zhia.
[16] The Officer assigned little weight to the best interests of Ms. Santiago’s nieces, who she had supported financially through university, as they have now graduated and are most likely over the age of 18.
C. Ms. Santiago’s Illness
[17] The Officer gave little weight to Ms. Santiago’s cancer, double mastectomy, and recovery. The Officer took notice of the note from Dr. Rene Lafrenière confirming her diagnosis, her surgery, and her inability to work. The Officer also took notice of the letter from Dr. Carey Johnson, who in addition to confirming the information stated by Dr. Lafrenière, noted that Ms. Santiago requires follow-up and further management throughout the year.
[18] However, the Officer noted that both doctors indicated that the surgery was successful in removing the cancer and they did not indicate when Ms. Santiago would be able to return to work. They are also silent on whether she could travel, and whether she would be able to access the healthcare she requires in the Philippines. Consequently, the Officer was of the opinion that Ms. Santiago was able to return to the Philippines despite her previous breast cancer diagnosis, surgery, and need for recovery.
D. Previous Refusal of AINP Application
[19] Finally, the Officer found that the Applicants’ previous refusal of their AINP application did not bar them from reapplying. Moreover, the Officer noted that the Applicants could apply from the Philippines as the chances of obtaining permanent residence are no greater if the Applicants were to apply within Canada.
IV. ISSUES
[20] The issues raised in the present matter are the following:
Did the Officer err in applying the legal test in weighing the best interests of the children?
Should this Court find that the Officer applied the appropriate legal test, did the Officer err in their assessment of the best interests of the children?
Did the Officer erroneously ignore critical evidence relating to the Applicants’ financial hardship?
Did the Officer properly assess the Applicants’ establishment in Canada?
V. STANDARD OF REVIEW
[21] This application was argued prior to the Supreme Court of Canada’s recent decisions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. This Court’s judgment was taken under reserve. The parties’ submissions on the standard of review were therefore made under the Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework. However, given the circumstances in this matter, and the Supreme Court of Canada’s instructions in Vavilov at para 144, this Court found that it was necessary to ask the parties to make additional submissions on the standard of review. I have applied the Vavilov framework in my consideration of the application. Although it has changed the applicable standard to this Court’s review of whether the Officer erred in applying the test for weighing the best interests of the children, it has not changed my conclusion.
[22] In Vavilov, at paras 23-32, the majority sought to simplify how a court selects the standard of review applicable to the issues before it. The majority did away with the contextual and categorical approach taken in Dunsmuir in favour of instating a presumption that the reasonableness standard applies. However, the majority noted that this presumption can be set aside on the basis of (1) clear legislative intent to prescribe a different standard of review (Vavilov, at paras 33-52), and (2) certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, at paras 53-64).
[23] Prior to the Supreme Court of Canada’s decision in Vavilov, the Respondent submitted that the standard of reasonableness applied to all of the issues in this case. The Applicants appeared to agree in their Memorandum of Argument, although they also appeared to suggest in their Reply that the standard of correctness applied to the issue of whether the Officer erred in applying the legal test for assessing the best interests of the children.
[24] On January 16, 2020, the parties were asked to make written submissions on the applicable standard of review in light of the Vavilov decision. Both the Applicants and the Respondent submitted that the standard of reasonableness applies to this Court’s review of all the issues in this case.
[25] I agree with both parties that the standard of reasonableness should be applied to this Court’s review of all the issues at bar as there is nothing to rebut the presumption that the standard of reasonableness applies.
[26] In the past, courts have often found that the standard of correctness applies to questions concerning whether a decision-maker applied the correct legal test. See, for example, Apura v Canada (Citizenship and Immigration), 2018 FC 762 at para 21, and Mohammed v Canada (Citizenship and Immigration), 2019 FC 271 [Mohammed]. However, following the Supreme Court of Canada’s decision in Vavilov, a decision-maker’s application of a legal test does not fall into any of the listed exceptions to the presumption of reasonableness, baring a constitutional dimension to the legal question, or a generality or “central importance to the legal system as a whole.” However, clear language in a governing statutory scheme and a significant body of jurisprudence establishing a certain applicable legal test will impose strict constraints on a decision-maker’s discretion, and a departure from such would generally be considered unreasonable in the absence of explicit persuasive reasons for this departure. See Vavilov, at paras 105-114, 129-132, and notably para 111:
[111] It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Minister of Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98.
[27] As for this Court’s review of the remaining questions, the application of the standard of reasonableness to these issues is also consistent with the existing jurisprudence prior to the Supreme Court of Canada’s decision in Vavilov. See Ibabu v Canada (Citizenship and Immigration), 2015 FC 1068 at para 26; Damian v Canada (Citizenship and Immigration), 2019 FC 1158 at para 22.
[28] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with whether it “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para 99). Reasonableness is a single standard of review that varies and “takes its colour from the context” (Vavilov, at para 89 citing Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59). These contextual constraints “dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt” (Vavilov, at para 90). Put in another way, the Court should intervene only when “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). The Supreme Court of Canada lists two types of fundamental flaws that make a decision unreasonable: (1) a failure of rationality internal to the decision-maker’s reasoning process; and (2) untenability “in light of the relevant factual and legal constraints that bear on it” (Vavilov, at para 101).
VI. STATUTORY PROVISIONS
[29] The following statutory provision of the IRPA is relevant to this application for judicial review:
Humanitarian and compassionate considerations — request of foreign national
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, 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.
25 (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent, 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.
VII. ARGUMENTS
A. Applicants
[30] The Applicants argue that the Decision is plagued with numerous reviewable errors. Specifically, the Applicants argue that the Officer: (1) applied an incorrect elevated hardship test for assessing the BIOC; (2) unreasonably assessed the BIOC by failing to be “alert, alive and sensitive” to the best interests of Zake and Zhia; (3) unreasonably ignored critical evidence concerning Ms. Santiago’s role as the financial provider for her siblings and mother; and (4) unreasonably ignored critical evidence of the Applicants’ establishment in favour of speculative assertions. For these reasons, the Applicants submit that this judicial review should be allowed and the matter be remitted for review by a different officer.
(1) Legal Test for BIOC Analysis
[31] The Applicants argue that the Officer applied the wrong legal test when assessing the best interests of Zake and Zhia. The Officer imported an elevated hardship test into the BIOC analysis in coming to the conclusion that neither of the children’s best interests would be “severely affected” if their parents were removed from Canada.
[32] Instead, the Applicants state that the Officer failed to engage in a proper BIOC analysis, as set out by the Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 34-41, which requires a decision-maker to give the BIOC substantial weight and to be “alert, alive, and sensitive” to the best interests of the children.
[33] The Applicants cite this Court’s decision in Etienne v Canada (Citizenship and Immigration), 2014 FC 937 at paras 8, 9 and 11 where it was held that it was incorrect for the officer in that case to introduce an elevated hardship test by requiring evidence of “severe harm” in the context of a BIOC assessment.
(2) Assessment of BIOC
[34] Should this Court find that the Officer applied the proper legal test when assessing the best interests of the children, the Applicants say that the Officer inadequately analyzed the children’s best interests. Although the Applicants admit that their H&C application included limited BIOC submissions, they state that the Officer still had a duty to conduct an analysis that was “alert, alive, and sensitive” to the interests of Zake and Zhia. They submit that the Officer’s analysis was entirely inadequate as it contained several statements of fact but little analysis besides a general statement that they would not be “severely affected.”
[35] The Applicants state that the Officer: (1) was not alert to the children’s interests and failed to even identify the best interests factors at play; (2) was not alive in assessing the BIOC and failed to articulate whether or not allowing the Applicants to stay in Canada was in the best interests of the children; and (3) was not sensitive in assessing the BIOC as the Officer failed to consider how Ms. Santiago’s medical condition would impact the best interests of the children should they be forced to return to the Philippines.
(3) Financial Hardship Assessment
[36] The Applicants argue that the Officer also erred by failing to consider relevant evidence regarding the financial hardship the Applicants and their family would face should they be forced to return to the Philippines. The Applicants state that it was unreasonable for the Officer not to explicitly consider the fact that Ms. Santiago’s Canadian income is key in supporting her mother and siblings in the Philippines, especially since her mother’s heart attack.
[37] The Applicants state that it is trite law that a failure to mention evidence that is central to an applicant’s claim supports a conclusion that the evidence was simply ignored or overlooked. The Applicants cite in support Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] 157 FTR 35 at para 17 as well as Salguero v Canada (Citizenship and Immigration), 2009 FC 486 at para 13.
(4) Assessment of Establishment in Canada
[38] The Applicants further argue that the Officer undertook a cursory and selective analysis of the Applicants’ establishment in Canada and failed to consider relevant factors based on the evidence. This Court has provided specific direction regarding the H&C factors a decision-maker must consider when assessing an applicant’s establishment in Canada. See Brar v Canada (Citizenship and Immigration), 2011 FC 691 at paras 63-68 [Brar].
[39] The Applicants submit that the Officer failed to meaningfully assess Ms. Santiago’s close community ties in Calgary given the fact that the Applicants provided several letters demonstrating the close friendships Ms. Santiago has cultivated in Canada. They also highlight the Officer’s failure to assess the Applicants’ conduct in Canada and their diligent respect for Canada’s immigration laws.
[40] Moreover, the Applicants submit that the Officer improperly disregarded their establishment in Canada based on the Officer’s own opinion that other immigration options existed for the Applicants which they could apply for from abroad. The Applicants submit that this is not only speculative but also misleading, as Ms. Santiago would likely not be successful in obtaining any future work permits or temporary resident status in Canada as her cancer diagnosis and her double mastectomy raise the issue of potential medical inadmissibility.
B. Respondent
[41] The Respondent submits that the Officer did not commit a reviewable error in this case. An exemption under s 25(1) of the IRPA is an exceptional and discretionary measure which imposes on an applicant a high threshold to meet. As the onus was on the Applicants to put forward sufficient evidence to establish their request for exceptional relief, it was reasonable for the Officer to reject the Applicants’ claim for exceptional relief given the evidence and submissions put forward by the Applicants. As such, the Respondent submits that this judicial review should be dismissed.
(1) Legal Test for BIOC Analysis
[42] The Respondent argues that the Officer applied the correct legal test in assessing the best interests of the children in this case. The Respondent states that the use of the term “severely affected” does not demonstrate that the Officer used an improper test. This Court has stated that there are no “magic words” that must be used when assessing the BIOC. Instead, the emphasis must be on whether a decision-maker’s reasons demonstrate that they were “alert, alive, and sensitive” to the BIOC factors raised (Jaramillo v Canada (Citizenship and Immigration), 2014 FC 744 at paras 69-74).
(2) Assessment of BIOC
[43] The Respondent submits that the Officer’s assessment of the best interests of the children was reasonable in this case in light of the lack of submissions on this point by the Applicants. In fact, the Respondent points to the fact that the Applicants did not even mention the best interests of Zake in their application, and only made a general statement regarding the best interests of Zhia. In the absence of any meaningful submissions on this point, the Respondent notes that the Officer was not required to consider all future contingencies and possibilities.
[44] The Respondent argues that this case is distinguishable from Francois v Canada (Citizenship and Immigration), 2019 FC 748 and Mohammed, above, as the decision-makers in those cases erred by failing to address more extensive evidence and submissions than can be found in this case. Indeed, the Respondent submits that the general statement regarding the best interests of Zhia, and the absence of submissions regarding the best interests of Zake, makes this case analogous to Owusu v Canada (Citizenship and Immigration), 2004 FCA 38 where the Federal Court of Appeal noted that a decision-maker cannot be faulted for not being “alert, alive, and sensitive” to factors that an applicant failed to raise.
(3) Financial Hardship Assessment
[45] The Respondent states that the Officer did, in fact, consider the financial impact the Applicants’ return would have on their family and submits that the Officer was not required to list every piece of evidence submitted. Nevertheless, the Respondent notes that the letters provided by the Applicants are “relatively vague and contain very little detail with respect to any financial support her extended family continues to require.” The Respondent highlights the fact that Ms. Santiago even indicated that she had stopped sending money to her family at the time of the application. Consequently, the Respondent submits that the Applicants failed to provide sufficient evidence of financial hardship justifying the granting of an exemption on H&C grounds pursuant to s 25(1).
(4) Assessment of Establishment in Canada
[46] The Respondent submits that the Officer’s assessment of the Applicants’ establishment in Canada was reasonable and complete. The Respondent notes that the Officer did, in fact, consider the Applicants’ work history and friendships, as well as Ms. Santiago’s medical history and previous AINP application. However, the Officer was not required to list every piece of evidence submitted.
[47] The Applicants cannot now argue that the Officer was required to consider factors like financial management, community integration, studies, or the Applicants’ civil record when there were no evidence or submissions on these matters before the Officer. The Respondent cites this Court’s decision in Brar, above, at para 66 where this Court stated that “the assessment of the application must be in accordance with the evidence before the officer.”
VIII. ANALYSIS
[48] In the recent case of Huang v Canada (Citizenship and Immigration), 2019 FC 265 [Huang], Chief Justice Crampton provided the following summary of the purpose and scope of s 25 of the IRPA:
[17] Section 25 of the IRPA provides exceptional relief from what would otherwise be the ordinary operation of the IRPA. To obtain such relief, an applicant bears the onus of establishing circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61, at para 21 [Kanthasamy], quoting from Chirwa v Canada (Minister of Citizenship and Immigration) (1970) 4 IAC 338, at 350.
[18] To meet this test, it is not sufficient to simply establish the existence or likely existence of misfortunes, relative to Canadian citizens and permanent residents of Canada. This is something that one would expect could be readily established by most persons facing removal to, or currently living in, a country where living standards are significantly below those in Canada. As the Supreme Court of Canada has recognized, “[t]here will inevitably be some hardship associated with being required to leave Canada”: Kanthasamy, above, at para 23. Similarly, there will inevitably be some hardship associated with being an unsuccessful applicant for H&C relief from outside Canada.
[19] Section 25 was enacted to address situations in which the consequences of deportation “might fall with much more force on some persons … than on others, because of their particular circumstances …”: Kanthasamy, above, at para 15 (emphasis added), quoting the Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12. Accordingly, an applicant for the exceptional H&C relief provided by the IRPA must demonstrate the existence or likely existence of misfortunes or other H&C considerations that are greater than those typically faced by others who apply for permanent residence in Canada.
[20] Put differently, applicants for H&C relief must “establish exceptional reasons as to why they should be allowed to remain in Canada” or allowed to obtain H&C relief from abroad: Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3, at para 90. This is simply another way of saying that applicants for such relief must demonstrate the existence of misfortunes or other circumstances that are exceptional, relative to other applicants who apply for permanent residence from within Canada or abroad: Jesuthasan, v Canada (Citizenship and Immigration), 2018 FC 142, at paras 49 and 57; Kanguatjivi v Canada (Citizenship and Immigration), 2018 FC 327, at para 67.
…
[22] In the absence of any requirement to demonstrate the existence or likely existence of misfortunes or other H&C considerations that are greater or more significant in nature than those typically faced by persons who apply for permanent resident status in this country, s. 25 would risk becoming the alternative immigration scheme that the Supreme Court of Canada explicitly sought to avoid: Kanthasamy, above, at para 23. To the extent that this would also increase both the degree of subjectivity in the application of s. 25 and the divergence across decision-makers, it could also be expected to reduce certainty, predictability, and eventually public confidence in the IRPA.
[Emphasis in original.]
[49] In the present case, besides evidence, the Applicants’ entire submissions in their application for H&C relief read as follows:
Dear Visa Officer,
Please find attached complete H&C application by LUZ MARIA NATAD SANTIAGO
Luz Maria Natad Santiago landed in Canada as a temporary worker on Sep 10, 2013. She was so excited & had a lot of dreams while coming to Canada because she was the only earning daughter of her family. She started her job in a restaurant & worked really hard for 3.5 years. She also applied for her permanent residency under AINP. Unfortunately, her status got expired while she was waiting for the result from AINP & her application got refused.
She restored her status as a student & also during that period she had given birth to a baby girl in Canada. She was alone here & it was really hard for her to take care of her baby & to manage her study at the same time so she couldn’t continue her study. Also, she was not stable financially & she started looking for a LMIA to get the work permit.
She got a LMIA in 2018 & also applied for her work permit. She started her job again after finishing her maternity leave. Everything was going well, she was doing her job & was also managing her baby by herself but life is not that easy. One day, she came to know that she is suffering from breast cancer. She was broken. Her dreams shattered & she started counting her days. She was diagnosed with 3rd stage of breast cancer & doctor advised her to get her surgery done asap.
She was alone in Canada & was the only one to take care of her baby so she was blank. It was not easy for her to manage these things by herself & also when you are suffering from a life threatening disease you need someone to support you emotionally.
She applied for her husband’s open work permit so he could come here to support her during the dark phase of her life. Her husband got the visa & joined her soon. He is working now.
She went through the surgery & now she is recovering her health day by day.
As per doctors, she can not work for the time being. Letter from Alberta health attached.
She is a very hard-working woman. She has worked all times when her health allowed. NOA and T4 are attached.
In the light of above and keeping best interest of Canadian child, we are requesting you to please grant her Permanent Residency so that she can raise her Canadian child in Canada.
Hope foregoing is satisfactory.
Please let us know of if you need anything else
[Emphasis in original.]
[50] The best that one can say about these submissions made by the Applicants’ immigration consultant is that they are sparse. My own description of them is that they are woefully inadequate and make no attempt to explain or establish why, if the H&C relief is not granted, the Applicants will face “misfortunes or other circumstances that are exceptional, relative to other applicants who apply for permanent residence from within Canada or abroad…,” or misfortunes that could be readily established “by most persons facing removal to … a country where living standards are significantly below those in Canada.”
[51] The gist of the submissions is that Ms. Santiago’s dreams of coming to Canada have been shattered because she has, in the recent past, gone through a serious illness and had difficulty maintaining employment and has not been stable financially, but is normally “a very hard-working woman.” Nothing at all is said about the child who lives in the Philippines and nothing of significance is said about the Canadian child except that Ms. Santiago would like to raise her in Canada.
[52] Ms. Santiago deserves considerable sympathy for her struggles to provide financially for her Canadian family and her extended family in the Philippines. But, as the submissions and the record show, Mr. Santiago was granted a visa so that he could come to Canada to support her through the “dark phase of her life.” And if returned to the Philippines, there is nothing to suggest Mr. Santiago will not be returning with her and will not be providing his support there.
[53] The main thrust of the Applicants’ claim is that Ms. Santiago will be able to achieve better financial stability in Canada to support her family than if returned to the Philippines. This can hardly be called an exceptional claim or one that places the Applicants in a more unfortunate position from other applicants who come from other countries where standards of living are significantly below those in Canada.
[54] Sympathy and congratulations Ms. Santiago deserves. But this does not, without more, translate into a convincing basis for an H&C claim.
[55] With little assistance from the Applicants’ submissions, the Officer attempted to pick his or her way through some rather sparse and inconclusive evidence to try to identify possible grounds for granting an H&C claim.
[56] In this Application for Judicial Review, the Applicants now fault the Officer for his/her failure to address a range of considerations that the Applicants did not place before him/her, thus forgetting that the onus was upon the Applicants to provide the submissions and the evidence to support their application. In Reply submissions, the Applicants tempered their initial accusations somewhat and conceded that there were, indeed, some deficiencies in their own submissions. At the hearing before me, the Applicants’ main grounds of review related to the Officer’s treatment of:
(a) Financial hardship if required to return to the Philippines;
(b) A deficient BIOC analysis; and
(c) The failure to consider establishment.
[57] It is notable that in the Applicants’ submissions to the Officer these issues can hardly be said to be addressed at all. In addition, the Applicants now say that Ms. Santiago has friends and community support in Canada, while their submissions to the Officer say that, before Mr. Santiago arrived to assist her, “She was alone in Canada …” and it was “not easy for her to manage these things by herself and also when you are suffering from a life threatening disease you need someone to support you emotionally.”
[58] The Applicants’ assumption is still very much that, notwithstanding the scant evidence they provided, the Officer was obliged to consider a range of possible scenarios that could result from the Applicants’ removal. In addition, the Applicants still do not say why, Ms. Santiago’s personal circumstances warrant the exceptional relief that s 25 is intended to provide. As the Court pointed out in Garas v Canada (Citizenship and Immigration), 2010 FC 1247:
[46] An H&C application is not a mathematics formula that is applied in a vacuum. The officer does not have the responsibility to consider all possible scenarios that could possibly result from the applicant’s removal, nor does she have to address issues that are purely speculative. The officer’s role is to assess the special circumstances that the applicant raises and to determine whether they warrant the application of an exceptional exemption.
[Emphasis in original.]
[59] The law is clear that the onus was upon the Applicants to put forward the factors that they wanted the Officer to consider, and to provide sufficient submissions and evidence to establish that they require exceptional relief under s 25 of the IRPA. See Daniels v Canada (Citizenship and Immigration), 2019 FC 469 at para 32.
[60] Notwithstanding the absence of any meaningful submissions, the Decision shows that the Officer made what he/she could of the evidence provided.
A. Financial Support of Extended Family in the Philippines
[61] The Applicants say that the Officer failed to consider how Ms. Santiago’s family in the Philippines would be affected if she returns there, and the Officer ignored evidence of their financial dependence on Ms. Santiago. She says that she continues to support them and is the breadwinner of the family.
[62] There is no mention at all of such financial dependency in the Applicants’ submissions to the Officer, so that the Officer could not know that this factor was of particular importance to the Applicants from their submissions.
[63] In Ms. Santiago’s personal letter to the Officer which she calls “My Journey to Canada,” she speaks of her poor family and how, after she acquired an education, she provided financial support to her family.
[64] In 2007, Ms. Santiago says she got married and gave birth to her eldest son. Mr. Santiago was working but she says that she “wanted to help him and to help and fulfill my dreams for my mother as well.” So she went to Dubai and worked as a domestic help but she says “[m]y salary in Dubai was not enough to support my family, mother and my niece who was in college at that time.”
[65] Mr. Santiago’s cousin found Ms. Santiago a job in Canada and she arrived here in September 2013. She says she wasn’t able to save money because she “used to send all my salary to my family.” She does not provide any information as to whom in her family she provided support, or the extent and reasons for any such support, except that she says:
My own family didn’t have a house yet, we live in my parents’ in-laws house, honestly, I don’t have plan to have our own house in Philippines coz I want them to be with me here in Canada.
[66] She also says that once she arrived in Canada, “I fulfilled my mother’s wish to have a decent house, my 2 nieces graduated in University and support my husband’s monthly allowance.”
[67] This suggests that Mr. Santiago’s parents are able to house “her own family,” and that Ms. Santiago has provided a decent house for her mother and assisted her two nieces to graduate through university, no less.
[68] As to the situation at the time of the H&C application she says that, after she became ill with breast cancer and could not work:
… I don’t have any income from the government. I got only my baby Zhia allowance worth 541 a month and I am paying everything but despite of this I and my baby still survived. But I stop sending money to everybody