PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant seeks judicial review of a June 7, 2005 decision denying his humanitarian and compassionate application (H & C) that would allow the Applicant to apply for permanent residence from within Canada.
I. Background
[2] The Applicant is a citizen of Germany and Sri Lanka. Both his parents and two brothers reside in Canada and are Canadian citizens. Two other brothers live outside Canada.
[3] Both of the Applicant's parents have diabetes, hypertension, heart problems and other medical problems. They require a certain level of assistance. All of this evidence including the updated medical information on the parents' conditions (doctor's letter as of January 27, 2005) was before the officer.
[4] The Applicant claimed that neither of his brothers could care for the parents due to the medical problems affecting each of their respective wives. In support of this claim was a statutory declaration of one of the brothers attesting to all of the circumstances which prevented both of them from providing care for their parents. There was no evidence to the contrary.
[5] The officer, in rejecting the H & C application, made two key findings:
· that there was no updated information to confirm the current circumstances in respect of "them"; and
· that "I am not satisfied that need for the subject to be present still exists".
II. Analysis
[6] The parties agree that the standard of review in respect of an H & C application as a whole is reasonableness simpliciter. There is some suggestion that in respect of certain factual findings, the standard is patent unreasonableness. This case does not turn on the standard of review.
[7] The first finding as to updated medical evidence seems to turn on the reference to "them". Simply put, did it refer to the parents or to the medical condition of the brothers' wives? In the context of the case, it seems that "them" refers to the parents. In that case, the finding is plainly wrong as there was updated medical evidence. However, a case of this importance does not turn on the parsing of this single word.
[8] Even if the word "them" is a reference to the brothers' wives (in which case, it is a correct finding), the officer goes on to find that the need for the Applicant to be present to assist the parents does not "still exist". That finding attests to the fact that the need to be present existed at some time.
[9] In the face of the medical evidence and the brother's statutory declaration, the officer does not explain how that conclusion could have been reached. If the evidence was rejected, there is no explanation for its rejection. The finding flies in the face of the evidence and, as a finding of fact, it is patently unreasonable.
[10] The Respondent, quite properly, reminds the Court that, as held in Davoudifar v. Canada(Minister of Citizenship and Immigration), [2006] F.C.J. No. 431 (QL); 2006 FC 316, the officer is in a better position to assess the facts than the Court. However, the Court must be able to see how an officer went about that exercise and how the officer could reach a particular conclusion.
[11] The Supreme Court of Canada's decision in Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247, at paragraph 55, encapsulates the notion of the "reasonableness" standard of review:
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 any of the reasons that are sufficient to support the conclusion 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 (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[12] Under these circumstances, I can find no line of analysis which would reasonably lead to the officer's conclusion. It may well exist but it has not been sufficiently articulated.
[13] Therefore, this application for judicial review will be granted, the decision of Citizenship and Immigration Canada quashed, and the matter remitted for a new determination.
[14] There is no question to be certified.
JUDGMENT
IT IS ORDERED THAT:
1. The application for judicial review is granted, the decision of Immigration and Citizenship Canada quashed, and the matter remitted for a new determination.
2. There is no question for certification.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3709-05
STYLE OF CAUSE: EASPARAN RATHESWARA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Mr. Lorne Waldman
|
|
| Mr. Brad Gotkin
|
SOLICITORS OF RECORD:
| WALDMAN & ASSOCIATES Barristers & Solicitors Toronto, Ontario
|
|
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
|