Federal Court Decisions

Date: 20051110

Docket: IMM-9206-04

Citation: 2005 FC 1533

Toronto, Ontario, November 10, 2005

Present:         THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN                          

BETWEEN:

                                                       JUAN ISIDRO MIRANDA

                                                                                                                                          Applicant

and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                     Respondent

                                           REASONS FOR ORDER AND ORDER

[1]                The Applicant, Juan Isidro Miranda, is from the Dominican Republic and arrived in Canada on October 10, 1995. He made a refugee claim in November, 1995 which was deemed abandoned in December, 1997 when he failed to appear at the hearing. He married Isidra Miranda in September 1998. On February 9, 1999 he made an application for Permanent Residence status as the spouse of a Canadian citizen, which was subsequently converted into an application on humanitarian and compassionate grounds (AH & C application@). An interview regarding his application was conducted on May 31, 2001. A negative Pre-removal Risk

Assessment (APRRA@) decision was rendered on May 31, 2004 and on October 21, 2004 his H & C application was denied.

[2]                The Officer reviewed the PRRA officer=s negative risk opinion and decided it was reasonable. The Officer determined that although the Applicant=s spouse may require him for financial and emotional support, there is insufficient evidence to show that his absence would worsen her condition. The Officer noted there is evidence the spouse is being treated by a psychiatrist, but noted that there was no evidence why the wife=s adult children, who reside in Canada, could not provide the necessary support for her.

[3]                Finally, the Officer then examined the Applicant=s level of establishment in Canada. The Officer accepted the evidence that he has been employed in Canada and attends church but also found that there was no evidence that the Applicant had taken courses in Canada or any savings in Canada. Thus, the Officer determined the Applicant would not suffer unusual, undeserved or disproportionate hardship if returned to the Dominican Republic.

[4]                There is no dispute that the applicable standard of review is reasonableness simpliciter. (Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436; Baker v. Canada (Minister of Citizenship and Immigration), [1997] 2 S.C.R. 817.

[5]                The Applicant argues that the decision of the H & C officer is not reasonable as:

a)         it is illogical to assume the wife=s condition will not worsen without the                                       husband=s emotional and financial support, given the fact that she does not work                            and is under psychiatric care;

b)         there is absolutely no evidence that the wife=s children are willing and able to                              support her, yet the officer evidently assumes that to be the case; and

c)         the failure to save or attend course is not indicative of a lack of establishment. Thousands of Canadians citizens do not do this either. Here, the Applicant had 14 years of education, had been gainfully employed throughout his time in Canada, was supporting his wife, and was regularly attending church.

[6]                The case law is clear that the Federal Court is reluctant to interfere with an H & C determination. Nazim v. Canada (Minister of Citizenship and Immigration), 2005 FC 125 described the H & C process at paragraph 15:

The humanitarian and compassionate process is designed to provide relief from unusual, undeserved or disproportionate hardship. The test is not whether the applicant would be, or is, a welcome addition to the Canadian community. In determining whether humanitarian and compassionate circumstances exist, immigration officers must examine whether there exists a special situation in the person's home country and whether undue hardship would likely result from removal. The onus is on the applicant to satisfy the officer about a particular situation that exists in their country and that their personal circumstances in relation to       that situation make them worthy of positive discretion.

[7]                The Officer in her decision stated:

The applicant states he is married to a permanent resident and she requires him for financial and emotional support. There is some evidence that the spouse is being treated by a psychiatrist. I am not satisfied however, that sufficient evidence has been provided to demonstrate that his absence would make her condition worse or not. I also note that the spouse has grown children in Canada, whom she has a relationship with. I am not satisfied that sufficient evidence has been shown that she could not get support from them

[8]          Conscious of the reminder expressed in Nazim, supra, I still find that these observations are not reasonable. Evidently the wife=s position will worsen if her husband cannot give her financial and emotional support. Admittedly, there may be a question to what degree her position would worsen but there can be no question that it would worsen.

[9]                Similarly, there is absolutely no evidence whatsoever that her grown children can and will support her. However the officer proceeds from the assumption that they can and will support her and expects the Applicant to rebut that presumption. Clearly the Applicant would have been wise to introduce evidence as to the children=s ability and willingness to support their mother. However, that being said, it was not reasonable for the officer to proceed from the presumption that the children are able and willing to do so. They could be living elsewhere, they might be indigent, incapacitated, or incarcerated.

[10]          Accordingly, for the reasons set out above, this application will be granted.

ORDER

THIS COURT ORDERS that the decision of the H & C officer dated October 21, 2004 be set aside and the matter be referred back to another officer for reconsideration.

AK. von Finckenstein@

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-9206-04