Toronto, Ontario, October 19, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
and
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] “Can you heare a good man grone And not relent, or not compassion him?” so it was said in Shakespeare’s Titus Andronicus, Act IV, Scene I. Compassion has been defined as including suffering together with another, participation in suffering; fellow-feeling, sympathy, the feeling or emotion when a person is moved by the suffering or distress of another and by the desire to relieve it.
[2] The Ministry showed little compassion in its decision to deny Ms. Espino the opportunity of applying for permanent residence status from within Canada. The normal rule is one must apply from one’s home country, in this case the Philippines. However, under section 25 of our Immigration and Refugee Protection Act, upon request the Minister shall examine circumstances concerning a foreign national and may grant him or her permanent residence status from within Canada or an exemption from any applicable criteria if “...of the opinion that it is justified by humanitarian and compassionate considerations...”.
[3] Ms. Espino came to Canada in 1991 under a valid employment authorization as a live-in caregiver. When she completed the first phase of that program in 1993, she was entitled to and did submit an inland application for permanent residence. That application took nine, yes nine, years to process before it was refused in January 2003. In the interim she was given unrestricted work permits. She has bettered herself and has built a career with a prominent Canadian bank.
[4] She has not been in the Philippines for over fifteen years. She is currently 51 years of age. She has six children in the Philippines, five of whom are now adults. The sixth, who is still young enough to be sponsored, is mentally handicapped and would normally not be accepted here as being a drain on the public purse. Ms. Espino, who once tried to sponsor him, now must accept that decision.
[5] However, a good part of her earnings go back to the Philippines, particularly to help her handicapped child. The officer handling the application was of the view that there would be only minimal adjustments to allow her to resettle, to find a job and to be self-supporting in the Philippines. The officer made no analysis as to why it took the Minister nine years to come to a final decision with respect to her initial application for permanent residence filed pursuant to the live-in caregiver program.
[6] The officer made no analysis to contradict Ms. Espino’s assertion that a 51-year-old single woman who has not been in the Philippines for fifteen years would have difficulty finding a suitable job. How easy is it for a 51-year-old who relocates in Canada to find a suitable job?
[7] It should also be noted that Ms. Espino never claimed to be a refugee, and never sought a pre-removal risk assessment.
[8] The standard of review in matters such as this one is reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[9] In reality, the officer did not give reasons for his decision. He set out the facts and concluded: “I am satisfied that applicant has new skills now, it’s reasonable to expect that minimal adjustment is required to resettle and find a job and be self-supporting should she return to the Philippines.” Although it is true she has new skills, the rest is surmise and conjecture, not an inference from facts in the record. The same holds true with his conclusion: “I am satisfied that applicant will not face any hardship or sanctions upon returning to her home country.”
[10] Although the rules of evidence are more relaxed before administrative tribunals, there must be findings of fact to justify conclusions. There are none in this case. As to the difference between inference and conjecture, this is what Mr. Justice MacGuigan, speaking for the Federal Court of Appeal, had to say in Canada (Minister of Employment and Immigration) v. Satiacum 99 N.R. 171, [1989] F.C.J. No. 505 (QL) (F.C.A.):
The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, at 45, 144 L.T. 194, at 202 (H.L.):
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“The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference”. |
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In R. v. Fuller (1971), 1 N.R. 112 at 114, Hall J.A. held for the Manitoba Court of Appeal that "[t]he tribunal of fact cannot resort to speculative and conjectural conclusions". Subsequently a unanimous Supreme Court of Canada expressed itself as in complete agreement with his reasons: [1975] 2 S.C.R. 121 at 123; 1 N.R. 110 at 112.
[11] A recital of facts with the conclusion not based on any analysis does not constitute a reasoned decision. Although decided in a criminal context, R. v. Sheppard, [2002] 1 S.C.R. 869, [2002] S.C.J. No. 30 (QL), is à propos. Mr. Justice Binnie said at paragraphs 15 and 18:
[15] Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render. The courts frequently say that justice must not only be done but must be seen to be done, but critics respond that it is difficult to see how justice can be seen to be done if judges fail to articulate the reasons for their actions. Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts.
[…]
[18] In Canadian administrative law, this Court held in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43, that:
... it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required.
[12] The decision was unreasonable and so judicial review will be allowed.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed. The matter is to be referred to a different officer for a fresh determination.
FEDERAL COURT
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET NO.: IMM‑6669-05
STYLE OF CAUSE: MARIA LOUISA ESPINO v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 17, 2006
REASONS FOR ORDER
AND ORDER BY: Harrington J.
DATED: October 19, 2006
APPEARANCES:
Mrs. Mary Lam FOR THE APPLICANT
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mrs. Mary Lam
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT