Ottawa, Ontario, August 11, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Liang is a citizen of China who applied for permanent residence in Canada and requested that his case be assessed on humanitarian and compassionate grounds because he is the last remaining member of his family in China. A vice consul at the Canadian Consulate in Hong Kong (officer) refused the request for special relief on humanitarian and compassionate grounds. On this application for judicial review of that decision I find that the officer’s analysis, as contained in his reasons, could reasonably have led the officer from the evidence to his decision to refuse Mr. Liang’s application. As such, the decision withstands a somewhat probing examination so that the application for judicial review should be dismissed.
BACKGROUND FACTS
[2] At the time the application was filed the following facts were put before the officer:
· Mr. Liang is a single 24 year-old Chinese national. He is the only member of his family left in China.
· Mr. Liang is attending a university in China, and he has never worked.
· Mr. Liang’s only sibling is a brother who was landed in Canada in 1997.
· Mr. Liang's parents came to Canada as members of the family class in 2000. At the time they left China, they left some money for Mr. Liang's daily expenses and tuition fees.
· Mr. Liang has been, and is, dependent on his parents for emotional and financial support. Accordingly, he is most anxious to be reunited with his family in Canada.
[3] Updated information later provided stated that:
· Mr. Liang has completed school and has obtained employment in China.
· Mr. Liang will have no problem establishing himself successfully in Canada, and his family has sufficient means to ensure that he will never become a burden on the Canadian taxpayer.
· Mr. Liang remains single.
[4] The submissions made in support of the humanitarian and compassionate application were as follows:
You may remember that the last remaining family member (and dependent remaining family member) were by policy deemed to be humanitarian and compassionate applications.
The essential ingredient of the two policy heads was financial or emotional dependency. In this case, we have both, although only one is necessary. In 1988, the J-88 policy of dependency made the last remaining family member policy unnecessary and the policy was deleted.
Amendments to the J-88 reversed the role of the last remaining family member but the same was not reinstated but rather was left to proof of dependency which exists here.
To put it another way, the dependency of a last remaining family member was for long years deemed to fit the humanitarian and compassionate definition under subsection 114(2).
It was there too long for anyone to be mistaken that the same situation does not exist today. Since the dependency/humanitarian and compassionate rule was subtended by section 3 of the Immigration Act requiring the facilitation of reunion between Canadian citizens and their close relatives from abroad, it follows that what was humanitarian and compassionate prior to 1988 for long years is still humanitarian and compassionate today.
The last remaining family member aspect simply is that there is no one to fill the family needed role of emotional support. Therefore, this should continue to be recognized as humanitarian and compassionate.
A second look at this case, falls into the definition of humanitarian and compassionate used by the Immigration Appeal Board when defining their jurisdiction under s. 77 of the Immigration Act. They defined humanitarian and compassionate in terms of the case of Chirwa. This definition of humanitarian and compassionate has been used over 300 times and is intended to relieve against the misfortunes of another based upon the feelings of a reasonable person.
The applicant was excluded as a dependent of his father under the Family Class Provisions because he was not under 19 year of age and was not a full-time student when his brother executed an Undertaking of Assistance to sponsor his parents as set out in the Immigration Regulations. The educational institution he attended was a self-taught collegiate and he was not continuously enrolled and in attendance as a full-time student when his parents migrated. He misses his parents very much and has no family in China.
It is hard to challenge that this indeed would not cause a reasonable person to relieve against the loneliness of this young dependent.
THE OFFICER’S DECISION
[5] In the letter which advised Mr. Liang of the negative decision, the officer wrote:
You have requested […] special relief under Humanitarian and Compassionate grounds and s. 25 of the Immigration and Refugee Protection Act. I have weighed the evidence on file and I am satisfied you do not qualify for special relief. I took into consideration the definitions of Chirwa v. MMC in your case. I found that there was proof of some dependence and a degree of closeness with your family in Canada. The proof does not, however, support to my satisfaction that this separation is the cause of misfortunes that “warrant the granting of special relief.” This is specifically because there were insufficient “facts, established by the evidence” that satisfied me that they would “excite in a reasonable man in a civilized community a desire to relieve the misfortunes of another.” The request for Humanitarian and Compassionate considerations is thus refused.
[6] The Computer Assisted Immigration Processing System (CAIPS) notes, which form part of the reasons for the decision, record that the officer considered the following:
· The fact that Mr. Liang is the last remaining member of his family in China is not in and of itself a sufficient basis for a positive decision.
· The fact that Mr. Liang is not an eligible member of the family class is not a ground, by itself, for a favourable decision.
· The application did satisfy the officer that Mr. Liang was close to his family; however, closeness to family and physical separation from family do not of necessity create a situation that ought to be relieved through a favourable humanitarian and compassionate decision. There was no evidence that Mr. Liang was depressed, suffered any psychological stress, or otherwise fell within the circumstances contemplated in the Chirwa decision relied upon by Mr. Liang.
· Mr. Liang's dependence upon his family "is only an issue so far as their separation induces difficulty in [the] provision of support". Mr. Liang remained able to live in the family home in China, the family called each other frequently, and Mr. Liang was able to receive his family as visitors.
· Mr. Liang had not provided proof that adequate funds for resettlement were available to him, therefore his application as a member of the federal skilled worker class could not be processed under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). In the years since his family had immigrated to Canada, Mr. Liang had done little to improve his application for immigration.
· The evidence provided did not establish undue strain, stress or sorrow that would warrant special relief under humanitarian and compassionate considerations.
STANDARD OF REVIEW
[7] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 the Supreme Court reviewed the decision of a delegate of the Minister of Citizenship and Immigration to reject an application for landing on the basis of humanitarian and compassionate grounds made under the previous immigration act (R.S.C. 1985, c. I-2). Having regard to the fact-specific nature of the inquiry, its role within the statutory scheme, the fact that the decision-maker is the Minister (or his delegate) and the considerable discretion conferred upon the Minister, the Court concluded that the appropriate standard of review was reasonableness simpliciter. That analysis is, in my view, equally applicable to the present legislative scheme.
[8] In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, the Supreme Court held that an unreasonable decision is one that "in the main" is not supported by reasons that can stand up to a "somewhat probing examination". Thus, a court reviewing a decision on the reasonableness standard must ascertain whether the reasons given by the decision-maker support the decision. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the decision-maker from the evidence to the conclusion. A decision may be reasonable "if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling". See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraph 55.
CONSIDERATION OF THE DECISION
[9] Mr. Liang argues that the officer erred in his assessment that there were insufficient humanitarian and compassionate considerations to warrant an exemption from the statutory requirements. Specifically, Mr. Liang submits that:
1. Under prior policies (specifically the Last Remaining Family Member policy and policy J-88) the Minister recognized that humanitarian and compassionate grounds existed in circumstances when a last remaining single son or daughter was left alone, abroad. What was humanitarian and compassionate then remains humanitarian and compassionate today, and family reunification remains a cornerstone of immigration legislation.
2. The officer was satisfied as to the existence of emotional dependency. Thus, Mr. Liang is a de facto family member in a situation of dependence.
3. The officer should have recognized that Mr. Liang would not have been excluded as a dependent from his parents’ application for landing but for the fact that the university he attended was not a school recognized under the regulations to the Act. The officer should also have considered that Mr. Liang would have qualified as a dependent if the legislation that changed the age of dependency had come into force at an earlier date.
4. The officer required the situation to be "so sorrowful or pitiable" that it must be remedied by an extraordinary measure. By doing so, the officer imported additional requirements and fettered his discretion.
[10] I begin consideration of these arguments by restating that review on the standard of reasonableness simpliciter does not permit the reviewing Court to lose sight of the fact that it is the Minister who is obliged to weigh the factors relevant to his decision. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 36, the Supreme Court explained that to the extent it had reviewed the exercise of the Minister’s discretion in Baker, the Court's decision "was based on the ministerial delegate's failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers".
[11] Mr. Liang is correct that one of the stated objectives of the Act, found at paragraph 3(1)(d) of the Act, is to see that families are reunited in Canada. However, as the Supreme Court noted in Suresh in the passage referred to above, a more important consideration for the officer was the published instructions from the Minister to immigration officers.
[12] Chapter 4 of the Overseas Processing Manual (Chapter 4), dealing with applications advanced on humanitarian and compassionate grounds, recognizes the existence of de facto family members. They are persons who do not fall within the family class but who, nonetheless, may merit humanitarian and compassionate considerations because of their situation of dependence. Section 8.3 of Chapter 4 provides the following guidance to officers:
De facto family members
De facto family members are persons who do not meet the definition of a family class member. They are, however, in a situation of dependence that makes them a de facto member of a nuclear family that is either in Canada or that is applying to immigrate. Some examples: a son, daughter, brother or sister left alone in the country of origin without family of their own; an elderly relative such as an aunt or uncle or an unrelated person who has resided with the family for a long time. Also included may be children in a guardianship relationship where adoption as described in R3(2) is not an accepted concept. Officers should examine these situations on a case-by-case basis and determine whether humanitarian and compassionate reasons exist to allow these children into Canada.
Consider:
• whether dependency is bona fide and not created for immigration purposes;
• the level of dependency;
• the stability of the relationship;
• the length of the relationship;
• the impact of a separation;
• the financial and emotional needs of the applicant in relation to the family unit;
• ability and willingness of the family in Canada to provide support;
• applicant’s other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support;
• documentary evidence about the relationship (e.g., joint bank accounts or real estate holdings, other joint property ownership, wills, insurance policies, letters from friends and family);
• any other factors that are believed to be relevant to the H&C decision.
[underlining added]
[13] Notwithstanding the existence of prior policies or guidelines, no argument was advanced on Mr. Liang's behalf that the Minister was precluded from revising the instructions given to officers. Section 8.3 of Chapter 4 continues to recognize that a relative such as a son left alone in the country of origin may be in a situation of dependence such that humanitarian and compassionate reasons exist to allow their entry into Canada.
[14] In the present case, the officer examined the evidence put before him, including that relating to the level of dependency, the impact of separation, the financial and emotional needs of Mr. Liang in relation to the family unit, and the ability and willingness of the family in Canada to provide support. The officer found the evidence did not support a positive decision and, in my view, the officer gave tenable reasons for that conclusion. This precludes intervention on judicial review by this Court.
[15] Turning to the specific arguments directed on Mr. Liang's behalf, it is apparently true that at one time the Last Remaining Family Member Policy provided that:
(3) Last Remaining Single Family Members
(a) Special consideration on humanitarian and compassionate grounds will be granted in all instances to the following last remaining family members:
(i) a last remaining single son or daughter, not sponsorable, who meets statutory requirements (health and background) and who can satisfy a visa officer that he or she is alone abroad and that the parents are in Canada as permanent residents or Canadian citizens or are in the process of receiving immigrant visas;
[16] There is no evidence to show that this policy remains in force.
[17] To argue that what amounted to sufficient humanitarian and compassionate considerations under prior guidelines must of necessity meet the current guidelines is to say that in every case where an officer finds a last remaining single son or daughter to be alone abroad when their parents are in Canada as permanent residents (or as Canadian citizens or the parents are in the process of receiving immigrant visas) an officer must find sufficient humanitarian and compassionate considerations to exist. In my respectful view this does violence to Parliament’s intent as evidenced in section 25 of the Act. It is inconsistent with the granting of a broad discretion to the Minister in that section to say that there are circumstances which in every case must lead to a positive exercise of that discretion.
[18] It is also true, as Mr. Liang submits, that the officer found the existence of an emotional dependency between Mr. Liang and his family. However, some dependency by itself is insufficient. Accordingly, the officer properly considered the level of dependency and other relevant factors in accordance with the ministerial guidelines.
[19] The fact that the maximum age of a dependent child changed is not a factor that the officer was obliged to consider. As the Minister argues, even if Mr. Liang's parents had awaited the coming into force of the Act, Mr. Liang would never have been of an age that allowed him to come within the definition of a dependent child.
[20] Finally, the officer did consider whether the situation was "so sorrowful or pitiable" as to require relief. However, in so doing the officer was turning his mind to the dicta in Chirwa, the case urged upon the officer by Mr. Liang. Thus, the officer did not fetter his discretion.
[21] Some time has elapsed since Mr. Liang's application was filed and I know of nothing that would preclude a fresh application. If Mr. Liang remains a single person it may be that with the passage of time a more compelling evidentiary record can be prepared to accompany a new application. I am satisfied, however, that on the record before him the officer's reasons withstand a somewhat probing examination.
[22] Counsel posed no question for certification and I am satisfied that no question arises on this record.
JUDGMENT
[23] THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5659-05
STYLE OF CAUSE: FU RONG LIANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 20, 2006
APPEARANCES:
CECIL L. ROTENBERG FOR THE APPLICANT
RACHEL ROTENBERG
SOLICITORS OF RECORD:
CECIL L. ROTENBERG FOR THE APPLICANT
BARRISTER & SOLICITOR
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA