Date: 20050125
Docket: IMM-5324-04
Ottawa, Ontario, this 25th day of January, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
JANICE EILEEN LELLO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASON FOR ORDER AND ORDER
[1] Canada may have no greater fan than Janice Lello. She learned of her late grandfather's experiences in our great land at her grandmother's knee. After leaving school she worked for a short while at the Canadian High Commission in London. She came here in the 1960s, married a Canadian and her daughter Sandy was born here. Unfortunately, that marriage unravelled and she returned to England. She came back here in the 1970s with a new English husband in tow. However, Canada was not to his liking and they returned to England. When that marriage ended she and Sandy returned here again, but went back to England in 1983 because of her sense of duty to her parents, both of whom needed her care. Apart from the odd visit, twenty years went by before she decided to settle in Canada once again. She was influenced by Sandy's decision to come here to, among other things, reconnect with her father's family, and so that Sandy's young son could be educated here. The three of them currently live together.
[2] Janice Lello thought that she was still a permanent resident. She never read the fine print. The law requires a permanent resident, unlike a citizen, to physically reside here two years of every five in order to maintain status. There are exceptions which do not apply here.
[3] The law allows a visa officer to waive the residency requirements on Humanitarian and Compassionate (H & C) considerations. The officer did not. Her appeal to the Immigration Appeal Division of the Immigration and Refugee Board was rejected. This is a judicial review of that decision. Ms. Lello's counsel asserted at least fourteen errors of fact and law, backed up by extensive references to the Tribunal record. Not to be outdone, counsel for the Minister said I was being invited to embark upon a microscopic examination of the evidence, which I should not do. However, if I were to so embark, for each and every one of the alleged errors cited by Ms. Lello, he referred me to other pages of the Tribunal record which, he submitted, showed the findings of the Board were justified on the basis of the evidence then before it. The only clear error admitted, which I do not think is germane, is whether the daughter came to Canada a month before the mother, or vice versa.
The Law
[4] Section 28 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 imposes a residency obligation on a permanent resident with respect to every five year period. The obligation is to be physically present here at least 730 days in that period. There are equivalents such as working outside Canada for a Canadian business or accompanying a Canadian spouse. These equivalents have no application here. Nevertheless paragraph 28(2)(c) provides:
|
....
(c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. |
....
c) le constat par l'agent que des circonstances d'ordre humanitaire relatives au résident permanent -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- justifient le maintien du statut rend inopposable l'inobservation de l'obligation précédant le contrôle. |
[5] There are two children here, Ms. Lello's daughter Sandy, who is well into her thirties, and Sandy's young son who is nine. There was some debate as to whether either could be considered a child within the context of that section.
[6] It would be inappropriate, and it is not necessary, to embark upon a minute line by line examination of the evidence.
[7] I believe Martineau J. correctly stated the law in Singh v. Canada (Minister of Citizenship and Immigration) 2002 F.C.T. 347, [2002] F.C.J. 461, where he said at paragraph 18:
The standard of judicial deference that applied to findings of fact and to the weight given to the evidence by the Appeal Division is quite high. Unless the contrary is shown, the Appeal Division is assumed to have considered all the evidence presented to it. The Appeal Division's decision in this regard must be interpreted as a whole and it should not be subject to microscopic examination. Accordingly, the reviewing Court should refuse to interfere with decisions which assess credibility, provided that the explanations given are rational and reasonable, or that the evidence on the record permits the Appeal Division to reach, as the case may be, a negative inference as to the credibility of an applicant or a witness.
The Decision
[8] The decision really turns on the motives to be ascribed to Ms. Lello in not returning to Canada earlier. The major reason was the health of her parents. However, her father died in 2001 and following that her mother's humour improved. There were other factors as well. The fact that she attended to her parents was corroborated by her daughter Sandy. Ms. Lello provided other corroborative evidence covering more recent years. The Board said:
Given that the appellant gives the sole reason for her residence in England instead of Canada since 1983 the health of her parents, in particular that of her mother, I would expect her to have made earlier efforts to obtain the medical information which would have supported her claim --
I believe the evidence is more in keeping with the fact that following her return to England in 1983, the appellant made the conscious choice of establishing and living her life there. She raised her daughter there, earned a living, and, included as part of her life in England, was assisting her parents as and when they required assistance. I do not believe that it has been established on the evidence provided that her parents required her assistance on a continuous and on an ongoing basis over the past twenty years.
I believe that the Appellant's recent, renewed interest in returning to Canada and maintaining her status of permanent resident, comes about as a result of her daughter's decision to move back to Canada, and the appellant's desire to remain close to her daughter and her grandson. I accept that the appellant is close to both --
[9] These comments leave me wavering as to whether the Board member made reasonable inferences from the stated testimony, and why she thought that further corroboration in the form of twenty year-old medical records was needed.
[10] The Board did not take into account that following the break-up of Ms. Lello's second marriage she returned to Canada as a single mother with her young daughter, and that both testified they returned to England in 1983 because of Ms. Lello's mother's health problems. Yes she chose to return to England, but her sense of duty has almost been ignored.
[11] However, I do not have to reach a final conclusion on that point. As far as I am concerned the Board made a fatal error when it said:
The appellant's daughter testified that if her mother is unable to stay in Canada, she will simply stop working, go on social assistance, to which, as a Canadian citizen she feels she has a right, and have the state support her and her son.
I perceive this assertion, that she will quit work and go on social assistance, to have been offered as a form of threat, an indication that if her mother is not allowed to stay with her in Canada, the appellant's daughter will then choose to become a burden on the state.
The appellant's daughter wished to give the impression that without her mother's support here in Canada she will have no choice but to apply for social assistance.
[12] That is a patently incorrect conclusion. What her daughter said was:
No, only that without my mom's support, I won't be able to exist the way I'm existing now, and my son will suffer. I will suffer. All three of us will suffer because we won't be together. And I may have to go on welfare, which will be a drain on -on Canada's resources, until I can actually find myself a better job. I don't want to be. That's one thing I really don't want to be.
[13] In the same paragraph in which she said the daughter wished to give the impression that she would have to go on social assistance she said:
[W]hile I accept that the appellant shares a strong relationship and much love with her daughter and grandson, and that separation from them will cause all of them some hardship and dislocation, --such separation need only be temporary in nature, given that the appellant's daughter, if she chooses to do so, would be able to sponsor her mother to join her in Canada --.
[14] I am left with the conclusion that what the Board Member is saying is this "if you go on the dole, you will never be able to sponsor your mother". The evidence shows that, although Sandy wishes to improve her situation, she currently has a very low paying job, and might never have the wherewithal to sponsor her mother. The Board is not a puppet mistress and the people appearing before it are not marionettes. The question which should have been considered was whether Sandy was able to sponsor her mother right now, and, if not, whether the failure to maintain the required number of days in Canada should have been waived. The Board had completely the wrong mind- set. In the context of this case, sponsorship fettered the member's discretion.
[15] Counsel for the Minister submitted that sponsorship was not relevant and should not be considered as it was only raised in argument after Ms. Lello changed counsel. I do not quite see it that way. Sponsorship was tied in with the Board's perception that social assistance was being raised as a threat, a point which had been strenuously denied throughout.
[16] Ms. Lello's counsel also proposed questions for certification. Those questions will have to be left for another day as they could not be used to support an appeal, in the case by the Minister.
ORDER
UPON the application for judicial review of the decision of the Immigration Appeal Division, Immigration and Refugee Board file number VA3-01394-E.
THIS COURT ORDERS THAT the application is granted and the matter is sent back to be redetermined before a differently constituted panel.
"Sean Harrington"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5234-04
STYLE OF CAUSE: JANICE EILEEN LELLO
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: JANUARY 18, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: JANUARY 25, 2005
APPEARANCES:
Shirish P. Chotalia FOR APPLICANT
W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Pundit & Chotalia
Edmonton, Alberta FOR APPLICANT
John H. Sims, Q.C.
Deputy Minister of Justice and
Deputy Attorney General of Canada FOR RESPONDENT