Toronto, Ontario, December 11, 2006
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an Immigration Officer (Officer) dated April 19, 2006 denying the Applicant’s request for an exemption on humanitarian and compassionate (H&C) grounds from the requirement under subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001 c. 27 (IRPA) that a foreign national must apply for permanent resident status from outside Canada.
[2] The Applicant is a 27-year-old citizen of St. Vincent. She entered Canada as a tourist on March 1, 1999. Her tourist status expired on August 31, 1999. However, she has remained and worked in Canada without status since that date. On May 24, 2005 she applied for permanent resident status on H&C grounds.
[3] The Applicant relied principally on her close relationship with her family to support her H&C application. She has been an orphan since her mother died in May 1990. She has one brother and two sisters residing in Canada as permanent residents. Her brother has been in Canada since October 1994, and her sisters have been in Canada since August 1991 and December 1993, respectively. Three other sisters and three other brothers reside in St. Vincent. Her brother and his spouse in Canada have been like her parents. The family she has in Canada continues to support her and wants to help her financially to continue her studies in Canada. She lives with one of her sisters, Judita (whom she also claims she helps financially by sharing living expenses and rent). The Applicant insisted also on the fact that she has become established and integrated into Canadian society and has been employed as a babysitter and a domestic worker. In her supporting documents, she also submitted letters of support from members of her Church congregation attesting to her participation in that community.
[4] In the impugned decision, the Officer notes that the Applicant has three brothers and three sisters in St. Vincent. While the applicant was between the age of 13 and 16 when her other siblings left for Canada, she did not demonstrate either that there was any particular attachment between herself and her departing siblings, or that they had taken control of her life to support her and her needs. She completed her secondary studies and finished two years of post-secondary education. Although the Applicant has some degree of attachment to her family, she has not demonstrated that a temporary separation would create any prejudice for her or her family members. She is not the sole provider for her family in Canada and has no dependents in Canada. Although she shares expenses with her sister, the lease and household expenses are in her sister’s name. The Officer also notes that since the Applicant has been in Canada, she has taken steps to integrate into Canadian society. However, the reasons for her stay in Canada were not out of her control and she never took steps to regularise her situation with Citizenship and Immigration Canada. The Applicant has not submitted that she would be exposed to any risk were she to be returned to St. Vincent. Finally, the Officer states that she has reviewed the entire file to verify that there did not exist other humanitarian grounds to support an H&C application. Accordingly, the Officer concludes that the Applicant does not meet the requisite test that making an application for permanent residence from outside of Canada would result in “unusual, undeserved or disproportionate hardship” for the Applicant.
[5] The Applicant raises essentially two arguments in support of her application for judicial review. First, she submits that the Officer’s conclusions regarding the Applicant’s degree of attachment to her family members in Canada and the impact of a separation from them is unsupported by the evidence and is arbitrary, perverse, and capricious. In her submissions, the Applicant assesses the Officer’s findings against the standard of whether a reasonable person would “desire to relieve the misfortunes of another”: Garceau v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 288 (Immigration Appeal Division). The Applicant argues that the evidence clearly establishes that she is an orphan and that her brother took responsibility for her and continued to support her even when he left for Canada. The Applicant claims she has no parents, no home, no support and little to return to in St. Vincent. Second, the Applicant submits that the risk of return is not a requirement to establishing H&C grounds and it was an error for the Officer to mention it in her decision.
[6] The Respondent submits that the appropriate standard of review is reasonableness and that it is not the role of the Court to re-examine the weight given to the various factors considered by the Officer when deciding whether or not to grant the H&C application. The Respondent argues that the decision is reasonable. Indeed, the Officer’s reasons clearly demonstrate she turned her mind to all of the relevant factors and carefully considered them before ultimately concluding that the Applicant had not satisfied the onus of demonstrating sufficient H&C grounds. Furthermore, the Court has held that the H&C process is designed to provide relief from “unusual, undeserved, or disproportionate hardship” if one had to leave Canada to apply for permanent residence. Leaving behind a job, a family, and a home does not necessarily rise to this standard. Finally, the Respondent notes with respect to the Applicant’s argument that the Officer erred in relying on the lack of risk facing the Applicant upon return to St. Vincent that the Officer never suggested a risk was required, but merely referenced the fact that this consideration did not arise in this instance.
[7] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193, the Supreme Court held that the standard of review applicable to decisions rendered pursuant to subsection 25(1) of IRPA is reasonableness simpliciter. The weight to be attached or assigned to particular factors or indicators of attachment is discretionary. On a standard of reasonableness, a reviewing court must examine the evidence to determine whether any reasons support the impugned decision. Therefore, it is not our role to re-examine the weight given to the different H&C factors by the Immigration Officer. This Court cannot set a decision aside even if it would have weighed the factors differently and arrived at a different conclusion (Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125 at paras. 9-12; Singh v. Canada (Minister of Citizenship and Immigration), 2005 FC 718 at para. 7; Saliaj v. Canada (Minister of Citizenship and Immigration) (2004), 39 Imm. L.R. (3d) 249, 2004 FC 499 at paras. 6 and 7). Applying this standard to the impugned decision, I have come to the conclusion that the present application cannot succeed.
[8] I will start by stating that an applicant bears the onus of establishing that he or she has met the standard required to succeed in an H&C application (Owusu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 172, 2003 FCT 94 at para. 11). A successful H&C application usually requires an applicant to demonstrate that an “unusual, undeserved or disproportionate hardship” would arise should he or she be required to apply for permanent resident status from outside Canada. See in this regard Section 6.5 of the Inland Processing Manual, Chapter IP-5, “Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” published by Citizenship and Immigration Canada. Accordingly, the test is not, as stated by counsel for the Applicant, whether there are factors that may raise in a reasonable person the “desire to relieve the misfortunes of another.” Garceau, above, is not a decision that helps the Applicant as it relates to a decision of the Immigration Appeal Division rendered in the context of an appeal pursuant to subsection 77(3) of the Immigration Act, R.S.C. 1985 c.I-2, now repealed. According to that provision, an appeal lies from a failed sponsorship application by the sponsor on the ground that there exist compassionate or humanitarian considerations warranting the granting of special relief. Furthermore, the test of “unusual, undeserved or disproportionate hardship” has been affirmed and applied consistently by this Court, the Federal Court of Appeal and the Supreme Court of Canada.
[9] The Officer’s evaluation of the Applicant’s relationship with her family members in Canada should not be disturbed in the present case. An applicant in an H&C application is entitled to present any facts he or she believes to be relevant. The Applicant in this matter relied heavily on her relationship with her family members in Canada in support of her application. First, the law is clear that some hardship accruing to a separation from family will not necessarily satisfy the requirements of an H&C application. The fact that one leaves behind friends or family, employment or a residence, as well as the cost or inconvenience of having to return home to apply in the normal manner would not generally be enough to constitute hardship and thus warrant a positive H&C determination (Irimie v. Canada (Minister of Citizenship and Immigration), (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.) at para. 12). As stated by Justice Russell in Pashulya v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 143, 2004 FC 1275 at paragraph 43, an applicant has a high threshold to meet when requesting an exemption from the IRPA: “That the Applicant must sell a house or car or leave a job or family is not necessarily undue or disproportionate hardship; rather it is a consequence of the risk the Applicant took by staying in Canada without landing […]”
[10] The Officer clearly considered the fact that the Applicant is employed in Canada. Moreover, the Officer was entitled to make note of the fact that although the Applicant has become established in Canada, her failure to regularize her status was not related to factors beyond her control. This is an appropriate consideration to weigh. The jurisprudence of this Court supports this as well. See for instance Chau v. Canada (Minister of Citizenship and Immigration) (2002), 26 Imm. L.R. (3d) 100, 2002 FCT 107 at paras. 15 and 16. In relation to other factors of establishment raised by the Applicant, the Officer was entitled to consider, inter alia, whether the Applicant had employment or relatives in St. Vincent (see Kawtharani v. Canada (Minister of Citizenship and Immigration), 2006 FC 162 at para. 17).
[11] I have also reviewed the evidence submitted by the Applicant to the Officer. Most of the statements and letters are offered in support of the Applicant’s good character, which is not in dispute. The evidence does identify that she wishes to pursue her studies in Canada, that she has a close relationship to her family in Canada, that she is employed and hard-working and that she contributes to the household expenses and rent with her sister. She has also demonstrated that she is a respected member of her Church community. However, none of the evidence submitted by the Applicant to the Officer allows me to find here that it was unreasonable for the Officer to conclude that the Applicant did not meet the threshold necessary for her to be exempted from the general requirements of IRPA that she make her application for permanent residence from outside Canada. On the evidence, it was reasonably open to the Officer to conclude that the Applicant had not demonstrated the necessary degree of financial or emotional support between the Applicant and her family members and that she would not suffer significant prejudice if required to leave Canada to make her application.
[12] In the case at bar, the Applicant is essentially asking the Court to attribute more weight to her relationship with her family in Canada than the Officer did. The reasons clearly demonstrate that in rendering the decision, the Officer reviewed the totality of the evidence and assessed all relevant factors relating to the Applicant’s relationship to her family and other factors regarding her establishment in Canada. The Officer explicitly addressed the relationship and degree of support, both emotional and financial, between the Applicant and her family. As mentioned above, the Officer also factored in the fact that the Applicant has family members in St. Vincent. In reaching the decision, the Officer simply was not convinced by the evidence provided by the Applicant that the prejudice associated to making her application from outside of Canada met the requisite standard of hardship.
[13] As for the second ground of review, the availability of risk to an Applicant upon return to their country of origin is a factor that is often assessed in the context of H&C applications. The way in which it is raised in the Officer’s reasons does not suggest that the Officer considered that the absence of risk in any way negated the Applicant’s claim. The Officer merely identified that the factor does not arise in this case for consideration.
[14] No question of general importance is raised in this case.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed. No question is certified.
“Luc Martineau”
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2250-06
STYLE OF CAUSE: Williams, Elicia Natasha v. Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 6, 2006
APPEARANCES:
Marc Gruszczynsky FOR THE APPLICANT
Suzanne Trudel FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marc Gruszczynsky FOR THE APPLICANT
Montréal, Québec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada