Date : 20031110
Docket : IMM-5807-02
Citation : 2003 FC 1321
BETWEEN :
NORMA VALDIVIA IRIAS
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for a judicial review of the decision of Immigration Officer M. Correia ("the Immigration Officer"), dated November 5, 2002, wherein she denied the applicant's request pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for a humanitarian and compassionate exemption from the requirement under section 11(1) that the applicant apply for a visa prior to entering Canada.
[2] Norma Valdivia Irias ("the applicant") is a sixty-three year-old citizen of Nicaragua. Her son, Marlon Hooker, is a permanent resident of Canada, living in Canada with his wife and their two year-old child.
[3] On August 18, 1999, the applicant arrived in Canada to visit her son and his wife, and has since remained.
[4] On August 3, 2001, the applicant applied for an exemption from the requirement that she obtain an immigrant visa prior to entering Canada, based on humanitarian and compassionate ("H & C") grounds. The H & C application was premised on the fact that she was retired, that she had no one to live with in Nicaragua, and that her son in Canada, whom she was living with, needed her to continue looking after his child so that his wife could return to work. Documents were sent to the Immigration Officer in support of the H & C application. The application was also supported by the sponsorship of the applicant's son.
[5] On September 17, 2002, the Immigration Officer requested the applicant provide updated information, and specifically asked with whom the Applicant was living in Nicaragua before arriving in Canada. The applicant replied to the question by responding that she had lived alone in Nicaragua. The applicant further added that she had come to Canada because she had reached retirement age, and that she could not live in Nicaragua with her only other child, her daughter, because she did not get along with her daughter's husband.
[6] On November 5, 2002, the Applicant's request for an H & C exemption was denied.
[7] The Immigration Officer's notes regarding her decision are as follows:
"The applicant's main point of hardship is the fact that she would live alone in Nicaragua if she had to return. The applicant states that she would not be alone in Canada since she lives with her Permanent Resident son and his family here. I have noted and considered this factor with sympathy. However, the applicant has written that she has a daughter back home. She also states that she lived alone previously before coming to live with her son here. I am not satisfied that the applicant could not live alone once again after her return to her homeland. Also, the presence of another adult child in her home country is also a point that cannot be ignored. I note that she does not get along with her son in law in Nicaragua but her daughter still lives there. Hence, I do not find this to be a major hardship.
At the time of the initial submissions the applicant states that since she is a 62 year old woman, her visa exemption should be favorable. However, the application does not go on to explain what the applicant's age has to do with the fact that this is a hardship. Hence, I cannot consider it.
The application goes on to state that the applicant's son and daughter in law require her to remain with them since her baby grandson needs daycare while his parents work. I am not satisfied that there is sufficient evidence to demonstrate that both the parents are employed. I have seen in the submissions that the son is working for New Centre Ice Arenas but any evidence to show that the daughter in law has a job is lacking. Hence, I cannot consider this to be a hardship as it appears that the child is, and can be taken care of by his own mother.
I have also noted and considered the applicant's establishment in Canada. The applicant arrived in Canada in August, 1999. There is insufficient evidence that the applicant has been employed here. I note that the applicant has not demonstrated that she is part of the community or has attempted to upgrade her skills or language abilities. I also see that she is being supported by her son and does not have any of her own money. Therefore, since the applicant does not have much establishment in Canada, I am not satisfied that it would be a hardship if she were to leave it behind and return to her home country.
In conclusion, after reading and assessing all of the information on file for the applicant, I am not satisfied that sufficient humanitarian and compassionate grounds exist to warrant waiving the normal legislative requirements of the Immigration and Refugee Protection Act."
[8] The central issue in this case is whether the Immigration Officer's conclusion that insufficient H & C grounds existed to allow an exemption from the requirements of IRPA was unreasonable. The applicant submits that:
(1) The decision is unreasonable in light of the evidence and applicable criteria; and,
(2) The decision-maker violated the rules of fairness and natural justice by basing her decision on the lack of certain information which she had not requested of the Applicant.
[9] The relevant portions of IRPA are as follows:
11.(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
[10] The Immigration Inland Processing Manual ("the Manual"), at Chapter 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds, states:
5.25 Onus on applicant
Officers do not have to elicit information on H & C factors and are not required to satisfy applicants that such grounds do not exist. The onus is on applicants to put forth any H & C factors that they feel exist in their case.
Although officers are not expected to delve into areas that are not presented, officers should attempt to clarify possible H & C grounds if these are not well articulated by the applicants.
12.11 Parents and grandparents (sponsored or not)
Family members may submit an H & C application either with or without the support of a sponsorship undertaking. Officers should consider the following factors:
- proof of relationship;
- what hardship would occur if the application for a visa exemption were refused;
- information the applicant provided to a visa office when obtaining a temporary resident visa, if applicable;
- the level of interdependency;
- support available in home country (other family members);
- whether the applicant is able to work; and
- if there is significant degree of establishment in Canada (see Section 11.2, Assessing the applicant's degree of establishment in Canada).
[11] First, the applicant submits that the Immigration Officer failed to consider that she was unable to support herself without her son's help, and had no place to live, other than with her son in Canada; that this is contrary to section 12.11 of the Immigration Department's Manual. The applicant recognizes that although the Manual is not binding, it does represent what Citizenship and Immigration Canada considers to be relevant to immigration policy. It is further agreed that a decision which fails to consider such factors, with no explanation, cannot be said to be reasonable.
[12] Second, the Applicant submits the decision is also unreasonable in that the Immigration Officer concluded that there would be no disproportionate hardship involved if the applicant left the financial and family support she had here and returned to Nicaragua where she has none.
[13] It is the respondent's position that the Immigration Officer took notice of the fact that the applicant had a daughter in Nicaragua, and that she lived on her own before coming to Canada. There was no evidence submitted to show that the applicant would not be able to live on her own once returned to Nicaragua (i.e. due to health reasons).
[14] The respondent submits that the applicant's assertion that she would suffer by reason of her age was not accompanied by any evidence. Applicants who are close to retirement age are not automatically granted an exemption in an H & C application. As such, the Immigration Officer's comment that the applicant's age was not a factor, without having been given any reason why it should be a factor, is entirely reasonable.
[15] Third, the Immigration Officer concluded that there would be no hardship if the applicant returned to Nicaragua because she was not established in Canada. Her rationale, as provided above, was that the applicant had not been employed in Canada, had not attempted to upgrade her skills or language abilities, had not demonstrated that she was part of the community, and was dependent on her son.
[16] In reply, the applicant finds this is not reasonable since the Immigration Department's procedures contemplate that persons such as the applicant are by definition dependant. The sponsorship agreement that the applicant and her son signed stated that "parents or grandparents who are sponsored are not expected to look for a job or care for themselves. Thus, the applicant's's lack of financial independence cannot be said to indicate a lack of establishment. The Immigration Officer essentially turned the applicant's dependency on her son (a factor that should be an indicator of hardship) into a negative factor to show a lack of establishment, and therefore that no hardship would be suffered if the Applicant returned to Nicaragua. The applicant submits that this conclusion is unreasonable.
[17] The respondent counters that the applicant has failed to demonstrate that the Immigration Officer did not take into account the Manual when making her decision. There was no evidence before the Immigration Officer that the applicant was unable to work. She was providing childcare for her grandson in Canada, and was employed in Nicaragua until 1998. The applicant's assertions that her age should have indicated to the Immigration Officer that she could not work would have required highly speculative reasoning on the part of the Immigration Officer.
[18] Further, the respondent submits that there was no evidence to show that her son and daughter-in-law would not continue to support her if she returned to Nicaragua and applied for immigrant landing from there. The fact that parents or grandparents who are sponsored by permanent residents are presumed to be financially dependent on their sponsors does not mean that an immigration officer cannot look at the normal indicia of establishment when assessing H & C applications.
[19] I cannot conclude that the Immigration Officer's assessment of the evidence in this application was unreasonable. The conclusions she reached regarding the issues of hardship and establishment were reasonably open to her. The Immigration Officer did not ignore relevant evidence, nor did she fail to follow the Immigration Manual guidelines in making her decision. In fact, she considered every one of the factors listed in section 12.11 of the Manual.
[20] I now turn to the final issue in this case, that is the applicant's allegation that the Immigration Officer's decision was not fair and breached natural justice, as she based her decision on a lack of information that she did not request from the applicant.
[21] As mentioned, the Immigration Officer requested the applicant provide updated information, and specifically asked for a written explanation of who the applicant was living with prior to arriving in Canada. In reply, the applicant submits that the Immigration Officer clearly had questions about other matters, to which she did not request clarification from the applicant. Specifically, regarding whether both the applicant's son and wife were currently employed, and what the applicant's age had to do with the hardship she claimed she would face if she returned to Nicaragua.
[22] The respondent submits that the onus is on the applicant to provide the decision maker with all of the pertinent information in an application. The fact that the applicant did not explain what her age had to do with her application, and that her daughter-in-law's employment status was unclear, did not place a burden on the Immigration Officer to contact the applicant in order to obtain this information.
[23] I cannot agree with the position of the applicant. As was stated by Heald D.J. in Patel v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 54 (F.C.C.):
The applicant submits that he is entitled to have all relevant evidence considered on a humanitarian and compassionate application. I agree with that submission. However, the onus in this respect lies with the applicant. It is his responsibility to bring to the visa officer's attention any evidence relevant to humanitarian and compassionate considerations.
[24] The onus of providing all relevant evidence considered on an H & C application clearly lies with the applicant, in accordance with section 5.25 of the Manual and the statement by Heald D.J. in the Patel case. I agree with the respondent's suggestion that an insufficient submission on the part of an applicant does not result in an onus on an immigration officer to elicit further information.
[25] In this case, the applicant was given the opportunity to provide information about her situation in support of her application, and the Immigration Officer even asked the applicant to provide further information. Thus, I cannot conclude that the Immigration Officer erred in not making a second request for additional information from the applicant.
[26] Having carefully reviewed the submissions of both parties, as well as the Immigration Officer's reasons for her decision, I hereby conclude that the decision was reasonable in light of the evidence, and applicable legislation and guidelines. In making her decision, the Immigration Officer did not violate the rules of fairness and natural justice. For these reasons, this application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
November 10, 2003
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET : IMM-5807-02
STYLE OF CAUSE : NORMA VALDIVIA IRIAS v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 29, 2003
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: November 10, 2003
APPEARANCES:
Ms. Patricia Wells FOR THE APPLICANT
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Patricia Wells
344 Dupont Street
Suite 306
Toronto, Ontario
M5R 1V9 FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General
of Canada FOR THE RESPONDENT