Toronto, Ontario, September 27, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SUE-ANN AILEEN WILLIAMS
Applicant
and
THE M INISTER OF
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of an Immigration Officer, dated November 16, 2005, which refused Ms. Sue-Ann Williams’ application for an exemption from visa requirements on humanitarian and compassionate grounds. The case turns on whether the officer's reasons for decision are adequate. As I am satisfied that they are and that there are no grounds to interfere with the decision, the application must be dismissed.
[2] Ms. Williams is a citizen of St. Vincent. She arrived in Canada on August 19, 1998 with visitor status, which remained valid until February 18, 1999. Ms. Williams stayed in Canada thereafter without status and filed a claim for refugee protection on February 5, 2001. The basis for that claim was abuse at the hands of her former common-law spouse and a risk to her life from the same man if she was to return to St. Vincent. The claim was rejected on June 2, 2003 on the grounds that the applicant's delay in making her claim did not support a finding of subjective fear and that state protection was available to her in St. Vincent.
[3] On December 20, 2003 Ms. Williams made an application for permanent residence from within Canada on humanitarian and compassionate (“H&C”) grounds based on the same underlying facts as her refugee claim. By letter dated January 13, 2005 an immigration officer (the officer) requested additional information from her. Among other things, the letter asked the applicant to explain why there might be special reasons to exempt her from the requirement to apply for permanent residence at a visa office outside of Canada and to explain what excessive hardship she would suffer if not permitted to apply from within Canada. The applicant was advised to provide evidence or documents in support of her statements.
[4] In response to this request, the applicant's immigration consultant submitted a letter dated February 7, 2005 which simply reiterated the facts alleged in the refugee claim and the December 20, 2003 application. Attached were letters of support from the applicant's friends, her Pastor, employer, and documents describing her education and bank savings.
DECISION
[5] On the information submitted, the officer identified the basis of the application for humanitarian and compassionate consideration as being "past abuse at the hands of her former common-law partner in St. Vincent" and noted that no new information had been submitted beyond that considered by the Refugee Protection Division. The officer stated that as the elements of risk put forward in the H&C application were the same as those in the applicant's refugee claim, the file would not be sent to a pre-removable risk assessment officer for a risk opinion.
[6] The officer noted that the applicant had an aunt and two cousins in Canada, had had a series of jobs here, had approximately $600 in savings and had volunteered with her church. The officer then stated that the applicant is however "not... so established in Canada that to require her to leave to make her application for permanent residence would constitute unusual and undeserved or disproportionate hardship". The officer further noted that the applicant had a mother and two sisters in St. Vincent and while it was recognized that there had been some difficulty in the relationship with the mother, they continued to have contact. Taking into account the applicant's age of 29, college education from St. Vincent and prior work record there, the officer concluded that he or she was "not satisfied that [the applicant] would be unable to return to St. Vincent, find employment and accommodation, and make her application for permanent residence".
ISSUES
[7] The issues in this application are whether the officer breached principles of fairness in failing to provide adequate reasons and, overall, whether the immigration officer made an unreasonable decision.
ANALYSIS
[8] It is settled that the standard of review for decisions of immigration officers in relation to H&C applications is, in general, reasonableness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. As discussed by Justice Iacobucci in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, a decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If the reasons are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere.
[9] With respect to the adequacy of the officer’s reasons, this involves a determination of the content of the duty of fairness that the officer owed the applicant to explain the decision. A pragmatic and functional analysis is not required. The standard of review is correctness: Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195, 2004 FCA 49.
[10] The applicant submits that the reasons given in the present case for the officer’s conclusions are insufficient. It is not clear from the reasons, she asserts, why her eight years of residence in Canada, educational upgrading and established work history did not constitute sufficient establishment and demonstrate that she would suffer undue hardship if required to make her application from St. Vincent.
[11] As stated by the Federal Court of Appeal in Via Rail Canada Inc. v. Canada (National Transportation Agency), [2001] 2 F.C. 25, (2000), 193 D.L.R. (4th) 357 the obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue and must reflect consideration of the main relevant factors. However, this assumes that the decision maker has been provided with the information necessary to conduct such an analysis.
[12] The difficulty for the applicant in this case is that no submissions were made to the officer on her behalf, despite the request made in the January 2005 letter, to support a finding of establishment or to explain why it would constitute undue hardship for the applicant to apply for permanent residence from St. Vincent. What was tendered was a recital of the risk factors that had been addressed in the decision of the Refugee Protection Division in 2003. The applicant submits that the officer should have revisited those elements and provide reasons for why they did not support a finding of undue hardship.
[13] I don’t agree. In my view, it was open to the officer to conclude that a further risk analysis was not required as no new risk information had been provided. Further, it was open to the officer to rely on the finding of the Refugee Protection Division that state protection was available to the applicant in St. Vincent. In those circumstances, there was little remaining before the officer to analyse. No case was made in the representations submitted on her behalf that the applicant's establishment in Canada was such that it would constitute undue hardship for her to make an application outside of the country or that she would be unable to do so from St. Vincent. The scant information tendered did not call for an explanation from the officer as to why it was not sufficient beyond that which was provided.
[14] In determining whether the applicant would suffer undue hardship if she was required to make her application for permanent residence from outside the country, the officer assessed and explored her connection to Canada and other relevant factors. In the result, the officer's reasons reflect an analysis of the information provided and can withstand a somewhat probing examination.
[15] I find, therefore, that there has been no breach of fairness and that the decision, as a whole, is reasonable. The application is dismissed. No serious questions of general importance were proposed and none will be certified.
JUDGMENT
IT IS HEREBY ADJUDGED that this application is dismissed. No questions are certified.
“Richard G. Mosley”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7201-05
STYLE OF CAUSE: SUE-ANN AILEEN WILLIAMS v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 26, 2006
APPEARANCES:
|
Ronald Poulton
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Leanne Briscoe
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SOLICITORS OF RECORD:
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Mamann & Associates Barristers & Solicitors Toronto, Ontario |
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John H. Sims, Q.C. Deputy Attorney General of Canada |
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