Toronto, Ontario, February 23, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
EUN-KYUNG KIM, JONG MIN KIM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The primary issue in thisapplication for judicial review is whether the officer's reasons for refusing an exemption from visa requirements on humanitarian and compassionate grounds are adequate. As I have concluded they are not, this application will be granted for the following reasons.
[2] Seon Yang Kim and his wife Jong Hee Kim and their two children Jong Min-Kim and Eun-Kyung Kim are citizens of South Korea who came to Canada in July 1999 as visitors. While here, they were granted a one year visa for Mr. Kim to accept a contract as a pastor at a Toronto evangelical church. When an extension was refused, the family remained without status. Mr. Kim currently operates a cleaning business and his wife is employed as a cashier. Eun-Kyung (Ellen), 22, is a student in health sciences at the University of Toronto. Jong-Min (Brian), 20, is also a student. All are actively involved in the life of their church and the community.
[3] On June 19, 2002 the applicants were called in to receive a departure order, at which time they claimed refugee status. In the proceedings before the Immigration and Refugee Board ("IRB") they candidly admitted that they came to Canada solely for economic reasons and that the claim was filed to gain a reprieve from deportation. The claim was denied on March 26, 2003. An application for leave and for judicial review of the decision was dismissed on July 7, 2003.
[4] The applicants then submitted an application for landing from within Canada on humanitarian and compassionate grounds (H & C) which was considered and denied on November 4, 2004. The applicants claim was based on establishment and integration in Canada.
DECISION UNDER REVIEW
[5] The reasons for decision are brief. The officer says that in making the decision, the submissions made by the applicants and their counsel were reviewed along with information available in the Field Operating Support System ("FOSS"). The officer concluded that the evidence provided by the applicants failed to establish sufficient grounds to warrant an exemption from the normal requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[6] The officer states that much of the material provided deals with the family's efforts to establish and integrate into the community. The officer notes that:
Although establishment can be a factor to consider in assessing hardship for this family...the subjects have provided insufficient evidence to satisfy me that their establishment is such that asking them to apply oversea [sic] would present an excessive hardship.
They have demonstrated that they are highly motivated and dedicated. They all appear to be deeply involved in their church and the community through that church.
The subject came to Canada as a visitor and was granted an extension based on a contract as a pastor at a church. However he commenced unauthorized employment outside the church. When his request to stay was refused and he was asked to leave he made a refugee claim which was refused. He and his family are now subject to effective removal orders.
The subject has not demonstrated that there are sufficient humanitarian and compassionate grounds to warrant an exemption to subsection 11(1) of IRPA.
Based on the evidence provided I am not satisfied that the subject would suffer unusual, undeserved or disproportionate hardship if the subject were to apply for permanent residence from outside of Canada. This application is refused.
ISSUES
[7] As noted above, the principal issue in this application is whether the officer failed to provide sufficient reasons for the decision. The applicants have also raised as a secondary issue whether the officer breached procedural fairness by relying upon the FOSS notes.
[8] As I have concluded that the application must succeed on the primary ground, I do not propose to analyse the procedural fairness issue. However, I will note for the guidance of the next officer to review the file that based on my review of the record, I would not find in this case that the officer did anything incorrect in reviewing the FOSS notes prior to making his decision. There is nothing in the notes filed as part of the certified record that consists of extrinsic evidence improperly considered by the officer. Counsel's submissions in that respect are purely speculative.
STATUTORY FRAMEWORK
[9] The applicable provisions 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.
|
11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi. |
ARGUMENT & ANALYSIS
Standard of Review
[10] My colleague Justice Carolyn Layden-Stevenson prepared a useful summary of the principles applicable to the judicial review of H & C decisions in Agot v. Canada (Minister of Citizenship and Immigration)(2003), 232 F.T.R. 101, 2003 FCT 436 at para.8 which I would adopt and incorporate in these reasons:
...The decision of the ministerial delegate with respect to an H & C application is a discretionary one: Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H & C exemption, is on the applicant: Owusu v. Canada(Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada(Minister of Citizenship and Immigration)(1996), 34 Imm.L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada(Minister of Citizenship and Immigration)(1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh); Legault v. Canada(Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H & C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).
[11] Considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role in the statutory scheme as an exception, the fact the decision-maker is the Minister and the wide discretion evidenced by the statutory language: Baker, above; Legault, above, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 220.
[12] Accordingly, I will apply the standard of reasonableness to my overall review of the officer's decision. The nature of the reasonableness standard was discussed by Justice Iacobucci in
Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 where he stated at paragraph 55:
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... 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 ...(citations omitted).
Were the officer's reasons sufficient?
[13] The applicants submit that the officer's reasons do not disclose a thorough and reasonable examination of the voluminous documentation provided in support of the application for landing. While the officer recognized that establishment was the primary focus of the application, he failed to examine the establishment of the applicants in any depth. Such short reasons, made in generic terms, make it difficult to ascertain whether there has been a reasonable and thorough examination of the application. The reasons do not offer a transparent look at the reasoning of the officer and therefore cannot withstand a probing examination.
[14] The respondent submits that the officer clearly had regard to the material presented and makes direct reference to the fact that the applicants are highly motivated individuals who are deeply involved in their church and church community. The officer also makes reference to the
father's work history in Canada. The applicants have not demonstrated that there is any evidence that was ignored by the officer.
[15] The Ministerial guidelines require that an applicant demonstrate that s/he would suffer "undue, undeserved or disproportionate hardship" if forced to leave Canada: IP-5 Guidelines for Immigrant Applicants in Canada on Humanitarian and Compassionate Grounds , s.12.1.The guidelines define unusual or disproportionate hardship as hardship not anticipated by IRPA or the Immigration and Refugee Protection Regulations, S.O.R/2002-227 (IRPR), the result of circumstances beyond the applicant's control and cannot be justified by the conduct of the applicant: Hawthorne v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1041 (T.D.) aff'd [2003] 2 F.C. 555, 2002 FCA 475.
[16] The respondent submits that, other than establishment, there are no compelling factors argued by the applicants with regard to why it would constitute "undue, undeserved or disproportionate hardship" if they were to apply from South Korea. The applicants failed to provide sufficient evidence or argument that their establishment is such that asking them to apply from overseas would present an excessive hardship.
[17] As stated by Mr. Justice Sexton, writing for the Court of Appeal in Via Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25, 193 D.L.R. (4th) 357 at para.21, the duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. As a general rule, Justice Sexton noted, adequate reasons are those that serve the functions for which the duty to provide them was imposed.
[18] At paragraph 22 of his reasons in Via Rail, Justice Sexton stated as follows:
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. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors. [footnotes omitted]
[19] This statement has been cited with approval by this Court on numerous occasions: Abdollahi-Ghane v. Canada (Attorney General) (2004), 259 F.T.R. 9, 2004 FC 741; Alexander v. Canada (Solicitor General), 2005 FC 1147, [2005] F.C.J. No. 1416 (QL); Demirovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560 (QL).
[20] In a recent decision, Adu v. Canada (Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 164, 2005 F.C. 565, my colleague Justice Anne Mactavish found that an H & C officer's reasons were insufficient and could not withstand a somewhat probing analysis where they consisted simply of a recital of the facts and a conclusion. The applicants were unable to know why their application was rejected or how the officer came to her conclusion.
[21] In Adu, Justice Mactavish referred to several decisions of the Court in which the officer's reasons were found to be sufficient. In each of those cases, the applicants had raised issues in their H & C submissions as to why a return to their country of origin would cause them unusual, undeserved or disproportionate harm, which the officer had addressed.
[22] In Irimie v. Canada(Minister of Citizenship and Immigration)(2000), 10 Imm. L.R. (3d) 206, [2000] F.C.J. No.1906 (F.C.T.D.) (QL), for example, the applicants had argued that their son would have difficulty adjusting to a new school if he was forced to return. In Nazim v. Canada(Minister of Citizenship and Immigration) (2005), 137 A.C.W.S. (3d) 405, 2005 FC 125, the applicant had family in Pakistan and none in Canada, which the officer took into consideration. In Mohammed v. Canada(Minister of Citizenship and Immigration) (2000), 100 A.C.W.S. (3d) 121, [2000] F.C.J. No. 1508 (F.C.T.D.) (QL), the officer's reasons dealt with the applicant's fear of an abusive ex-spouse and the tender ages of the children.
[23] In the present case, submissions were made by counsel in support of the H & C application on April 1, 2003 and an update was provided on July 14, 2004 regarding the applicants' establishment in Canada. With respect to the question of what hardship the applicants would suffer if required to apply for a visa from outside Canada, the April 2003 submissions refer to the applicants' personal information form (PIF) submitted in support of the refugee claim and to the IRB's decision. The submissions state further
...after approximately six years in Canada it would be difficult for the family as a whole, but the children in particular to reintegrate into Korean society. While the applicants have made a positive contribution to Canadian society this application represents their only opportunity to apply for permanent residence. Please note that the loss of such an opportunity has been found to be irreparable harm by the Federal Court of Canada.
[24] While the concluding remarks are, in my view, inaccurate in so far as they describe the opportunities to apply for permanent residence from abroad, the submission was sufficient to draw
the attention of the decision-maker to the hardship issue and to where evidence could be found to support such a finding. There was a considerable amount of evidence before the officer regarding the establishment of the Kim family in Canada. Included in the record is evidence of employment and economic activity, education and social integration.
[25] Mr. Kim's PIF dated July 16, 2002 recounts how the family came to Canadaand the reasons why they wanted to remain here, in particular to access educational opportunities for the children. He wanted his children to learn more creatively and to be exposed to different ways of thinking rather than from simply memorizing the textbook. He says that his children had successfully adapted to the educational system in Canada and that his son in particular, who was just 9 years old when they came here, would find it difficult to adjust to the Korean educational system. Mr. Kim refers to his own difficulties in finding employment in Korea and says he would find it hard to begin again. The IRB decision found that his evidence was credible and candid about his economic prospects.
[26] It was open to the H & C officer to conclude that notwithstanding this evidence, the applicants would be able to re-adapt to life in Korea while making an external application for permanent residence. Indeed the IRB arrived at that conclusion in its analysis, albeit it was made three years ago when the family were perhaps, less established than they are now.
[27] I am very conscious that the onus was on the applicants to demonstrate they would experience "undue, undeserved or disproportionate hardship" if required to return to Korea. Also, the H & C officer's duty to provide reasons does not require that they be as extensive as those expected of an adjudicative tribunal. Nevertheless, the applicants deserved better from this officer than the bald statements denying the application that were offered as reasons in this case.
[28] I conclude, therefore, that the reasons do not withstand a somewhat probing scrutiny. There is no line of analysis that could lead the reader from the evidence to the conclusions reached by the decision maker and no tenable explanation that satisfies the reasonableness standard.
[29] Accordingly, the application will be granted and the matter remitted for reconsideration by another officer. No questions of general importance were proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is granted and the matter remitted for reconsideration by a different officer. No questions are certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: Imm-9780-04
STYLE OF CAUSE: SEON YANG KIM, JONG HEE KIM, EUN-KYUNG KIM, JONG MIN KIM
Applicants
and
The Minister of Citizenship and Immigration
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: February 21, 2006
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
APPEARANCES:
| Wennie Lee |
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| Gordon Lee |
SOLICITORS OF RECORD:
| Wennie Lee, Toronto, Ontario |
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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