Date: 20020418
Docket: IMM-3084-01
Neutral citation: 2002 FCT 443
Ottawa, Ontario, Thursday the 18th day of April 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
SAFA VARGHAEI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mrs. Varghaei brings this application for judicial review from the May 7, 2001 decision of an Immigration Counsellor that Mrs. Varghaei not be exempted on humanitarian and compassionate ("H & C") grounds from the requirement found in subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 ( the "Act") that she apply for, and obtain, an immigrant visa from outside Canada before appearing at a port of entry.
THE FACTS
[2] Safa Varghaei is a citizen of Iran and Spain. She came to Canada from Spain as a visitor on April 26, 1996. In August 1996, Mrs. Varghaei made a claim for Convention refugee status on the basis of persecution in Iran and Spain on account of her Baha'i religious beliefs. Her claim was denied by the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") on August 22, 1997.
[3] Mrs. Varghaei then applied for membership in the Post-Determination Refugee Claimants in Canada Class, and was denied on December 22, 1999, after consideration of her claim by a Post Claim Determination Officer ("PCDO").
[4] On January 17, 2000, Mrs. Varghaei applied for landing from within Canada on H & C grounds, sponsored by a daughter who lives in Vancouver. Her H & C application was refused on May 7, 2001.
[5] In her H & C application, Mrs. Varghaei advised that she was 81 years old, a widow, and that it was impossible for her to travel alone. She stated that she had lived in Canada since 1996 and had no connection or ties to any other country. She stated that she had no residence or assets outside Canada, but had four children and 11 grandchildren in Canada who were willing to support her emotionally and financially. She noted a language barrier if she had to return to Spain and submit her application at a Visa office outside Canada, and said that if she were to leave Canada she would suffer emotional devastation.
THE H & C DECISION
[6] The officer set forth her decision as follows:
The applicant has been in Canada for five years. During this period of time she has been in receipt of social assistance and remains on social assistance to date. While she states on her application she is receiving financial support from her daughter there is insufficient evidence to support that statement.
I note that she lists three daughters in Canada, who are residing in the lower mainland. I also note that she has been residing by herself since shortly after her arrival. There is insufficient evidence to show that a strong emotional bond exists between the applicant and her children. As the applicant has relied on social assistance since her arrival in Canada, there is insufficient evidence to show that her children have assisted in her support.
The applicant states in her application that she is completely dependant [sic] on her children. However, based on the information provided in her application, the applicant has not lived with her children, with the exception of a brief period of time just after her arrival in Canada. It would appear that the applicant is able to live her life independently of her children. I am not satisfied that the interdependency between the applicant and her children is such that she would be unable to be separated from them.
[...]
The applicant states in her application that it is impossible for her to travel alone. Insufficient evidence was submitted to substantiate this statement. I note that she has been issued a Canadian visitor visa at least once in the past and that she has travel[l]ed to Canada to visit. The applicant also states that she does not have a residence outside Canada. I note that she had been residing with a daughter in Spain prior to her arrival in Canada. It would appear that this daughter is now residing in New Mexico. It is not known when the daughter moved to New Mexico but the departure of her daughter from Spain is insufficient grounds to warrant special consideration. I am satisfied that her children could assist financially in obtaining accommodation and in her support while she awaits immigrant processing from outside Canada.
[...]
Insufficient evidence was submitted to show that the applicant has established strong ties in Canada. There is also insufficient evidence to show that she has established herself in the Canadian community. I am not satisfied that her personal circumstances are such that the hardship of having to obtain an immigrant visa from outside Canada in the normal manner would be unusual and undeserved or disproportionate.
I recognize that the applicant is happy in Canada and has ties to her children and grandchildren here. I also make note that the applicant is eighty one years old and has a number of medical ailments. I also sympathize with her statements that she would suffer emotional devastation and that she would be lonely should she be required to leave. While I recognize that the separation may be difficult, this is not in itself sufficient to warrant special consideration for processing in Canada. I am satisfied that the family reunification that they are seeking could be accomplished by applying for permanent residence in the normal manner.
The applicant states that she does not have any connections or ties to any other country but I note that she has two children living in the USA. She indicates that the language barrier would be a hardship in applying for permanent residence outside Canada. I note that she lived in Spain for many years prior to her arrival in Canada. I also note that she has applied for a Canadian visitor visa at least once in the past and was successful in obtaining the visa. I am satisfied that she would be able to submit an application for permanent residence outside Canada.
[...]
The applicant has not satisfied me that her circumstances are such that the hardship of having to obtain an immigrant visa from outside Canada in the normal manner would be unusual and undeserved or disproportionate.
THE ISSUES
[7] Mrs. Varghaei asserts two reviewable errors. First, that the officer's decision was unreasonable. Second, that the officer erred in disregarding Mrs. Varghaei's fear of harassment in Spain.
[8] At the hearing before me, Mrs. Varghaei's counsel withdrew the argument contained in her written representations that the immigration officer erred in concluding that her sponsor failed to meet the applicable income requirements.
THE STANDARD OF REVIEW
[9] It is settled law that the standard of review applicable to H & C decisions made under the Act is reasonableness simpliciter.
[10] This intermediate standard of review was explained by the Supreme Court of Canada in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56, in the following terms:
[...] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
[11] The Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1 confirmed, particularly at paragraphs 34 to 38, that in conducting a review of a discretionary decision a court is not to re-weigh the relevant factors and consider whether the court would have reached the same conclusion. Rather, a court is to supervise the exercise of discretion in the sense of ensuring that relevant factors were considered, the irrelevant factors excluded, and that the decision is supported by the evidence and not based upon invalid inferences.
ANALYSIS
[12] I dismiss at the outset the suggestion that the immigration officer committed a reviewable error by disregarding Mrs. Varghaei's fear of being harassed in Spain. I do so because Mrs. Varghaei expressed no such fear and provided no information about that alleged fear in her H & C application. Further, the CRDD had found such stated fear to have no objective basis, and the PCDO had found no compelling evidence to indicate that anyone would be interested in pursuing or targeting Mrs. Varghaei if she were removed to Spain.
[13] In my view, this application turns upon whether the officer's conclusion was reasonable that removing Mrs. Varghaei to Spain so she could apply for landing from outside of Canada would not constitute an unusual and undeserved or disproportionate hardship.
[14] In so concluding, the officer considered:
i) Mrs. Varghaei had essentially lived by herself since coming to Canada.
ii) There was insufficient evidence to substantiate the statement that Mrs. Varghaei could not travel alone. Mrs. Varghaei had travelled to Canada and obtained a visitor's visa before.
iii) The departure of Mrs. Varghaei's daughter from Spain did not warrant special consideration.
iv) Her children could assist Mrs. Varghaei in obtaining accommodation and support her in Spain while she awaited processing of her application for landing.
v) Mrs. Varghaei had lived in Spain before.
[15] With respect to those findings, while undeniably Mrs. Varghaei had travelled to Canada before, had obtained a visitor's visa before, and had lived in Spain before, the immigration officer's reasons do not reflect consideration of the fact that Mrs. Varghaei had left Spain at age 77 in April of 1996, five years prior to her H & C application. The relevance of that period of time is that while a five-year period may not bring significant changes in one's faculties and ability to cope when one is young, as one ages the passage of five years may bring significant changes.
[16] The immigration officer gave no reason for her conclusion that the departure from Spain of Mrs. Varghaei's only relative there was insufficient to warrant special consideration, in circumstances where Mrs. Varghaei had indicated that she had a language barrier in Spain, and where medical records before the immigration officer described Mrs. Varghaei to suffer from cardiac abnormalities, scoliosis of the spine, a blind right eye and poor hearing acuity.
[17] The immigration officer was correct in noting that Mrs. Varghaei did not live with her children. However, the immigration officer appears to draw no distinction between whether Mrs. Varghaei lived in an apartment in Abbottsford in the lower mainland of British Columbia or lived in Spain, notwithstanding that Mrs. Varghaei had three daughters living in the lower mainland of British Columbia, but no relatives in Spain.
[18] To the extent the officer relied upon her children to assist Mrs. Varghaei financially in Spain, the evidence supporting their ability to do so is lacking. The evidence was found by the officer to be insufficient to show that the children had assisted Mrs. Varghaei financially in Canada, and the sponsorship application filed by one daughter did not meet the low income cut-off for sponsorship, showing the daughter to have, at best, $2,220.19 available annually after all expenses to assist her mother.
[19] Throughout the officer's reasons, reference is made to the insufficiency of the evidence before the officer. This is a fair comment, as the application claimed specific hardship, but was short on articulation of detail.
[20] While the onus is on an applicant to persuade an immigration officer of his or her entitlement to special consideration, the Inland Processing Manual in Chapter 5 gives guidance to officers processing H & C applications in that circumstance.
[21] Officers are directed in section 14.3 that:
You do not have to elicit H & C factors; the onus is on the applicants to put forth any H & C factors that they feel exist in their case. Although you are not expected to delve into areas that are not presented, you should clarify possible H & C grounds if these are not well articulated. [underlining added]
[22] Officers are further directed in section 6.3 of Chapter 5 that "[i]f you require more information, request it".
[23] The significance of the guidelines was explained by the Supreme Court of Canada in Suresh, supra, at paragraph 36, where it noted that its prior decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 was based upon the officer's failure to comply with self-imposed ministerial guidelines, as reflected most importantly in the published instructions to immigration officers.
[24] I am mindful that it is not for the Court to re-weigh the relevant factors considered by an officer exercising the Minister's discretion.
[25] However, and to summarize, having taken a hard look at the reasons of the immigration officer, I find that:
1. Faced with an application that raised possible H & C grounds, the officer did not request further clarifying information as directed by the Inland Processing Manual. While the officer did write, on January 16, 2001, offering an opportunity to provide further information if Mrs. Varghaei's circumstances had changed in the year since her application was submitted, or if she wanted to provide further information, the officer requested no information to clarify the application and instead determined that there was no need for an interview.
2. The officer relied upon the existence of financial support from the children to support Mrs. Varghaei in Spain, while at the same time relying upon the absence of that same financial support in Canada to conclude that there was insufficient evidence to show interdependence between Mrs. Varghaei and her children. Moreover, there was no evidence before the officer that the children had the ability to provide that financial support.
3. The officer did not otherwise appear to consider the support available to Mrs. Varghaei in Spain, as the officer was required to do by virtue of sections 8.4.1 and 8.4.2 of Chapter 5 of the Inland Processing Manual.
4. The officer gave no reason for her conclusion that the departure from Spain of Mrs. Varghaei's only relative there, a daughter, was insufficient to warrant special consideration in circumstances where Mrs. Varghaei is a 82 year-old partially blind, hearing-impaired widow who claimed language difficulties in Spain.
[26] In that circumstance, I conclude that the officer's decision, as expressed by her, was unreasonable.
[27] It follows that the application for judicial review will be allowed, and the matter remitted to a different officer for redetermination.
[28] Counsel posed no question for certification, and no question is certified.
ORDER
[29] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision dated May 7, 2001, is hereby set aside. The matter is remitted for redetermination before a different officer.
2. No question is certified.
"Eleanor R. Dawson"
Judge