Ottawa, Ontario, February 23, 2007
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Wing Fu Leung is a citizen of Hong Kong who came to Canada in 2003 on a visitor’s visa. Except for one brother, all of his close relatives – including his mother – have been in Canada for some time. He applied for permanent resident status in Canada on humanitarian and compassionate (H&C) grounds. In a decision dated March 21, 2006, an Immigration Officer denied his application. He seeks judicial review of this decision.
[2] The Officer’s decision is reviewable on a standard of reasonableness (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193). On this standard, a decision will not be overturned if it can withstand a somewhat probing examination.
[3] The basis of the submissions made to the Officer was simple. The Applicant alleged that:
- As the only single child, he bore responsibility for caring for his ailing 60-year old mother;
- Except for a brother from whom he is estranged, he has no family in Hong Kong.
[4] In support of his application, the Applicant submitted a letter from his mother’s medical doctor. The letter states that the mother has diabetes and hypertension and that she is on medication. There is no mention in the letter that the mother needs constant care. Indeed, the letter seems to imply that the mother’s medical condition is under control. On the basis of this evidence, the Officer concluded that the mother’s medical condition was “not so bad that requires constant medical attention”.
[5] The Officer also noted that the Applicant, who had been employed in Hong Kong, produced no explanation for the estrangement from his brother in Hong Kong or evidence to show that he had been living with his brother in Hong Kong.
[6] The Applicant submits that the Officer’s conclusions with respect to the mother’s illness and her need for ongoing care were purely conjecture. He further submits that any such concerns should have been put to the Applicant. I do not agree.
[7] The burden is on the Applicant to present the evidence necessary to support his application (Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635, 318 N.R. 300). There is no obligation on the Officer to address the shortcomings of the application with the Applicant (Carreiro v. Canada (Minister of Citizenship and Immigration), 2002 FCT 342 at para. 13 (F.C.T.D.); Kaur v. Canada (Minister of Citizenship and Immigration), 2005 FC 1192 at para. 22 (F.C.)). In this case, the medical condition of his mother was the foundation of his claim. The only support for that claim was a vague doctor’s letter that identified two common ailments and noted that she was on medication. It was reasonably open to the Officer to conclude as he did that the mother did not require constant care and attention from her son.
[8] In his decision, the Officer notes that the Applicant’s volunteering demonstrates that “his mother’s medical condition is well under control as Applicant doesn’t have to spend his time looking after her”. The Applicant submits that his volunteer work and the severity of his mother’s condition are unrelated. I agree with the Applicant. However, I find that this error was not central to the decision. As the Officer stated, he rejected the Applicant’s claim regarding the severity of his mother’s condition based on the fact that the medical note was vague and did not indicate that constant medical attention was required, as claimed by the Applicant.
[9] The other aspect of the Applicant’s claim is the connection to his family in Canada and his lack of support and ties to any family in Hong Kong. In his decision, the Officer noted:
· that there was no documentary evidence provided to substantiate the Applicant’s claims with respect to the family dispute that caused his brother in Hong Kong to be estranged from the family;
· that the Applicant was employed and self-supporting in Hong Kong; and,
· that separation of the family was anticipated in 1996 when the rest of the family decided to come to Canada.
[10] The Applicant submits that he should have been assessed as a de facto family member under Operation Manual IP-5 (Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds) [IP-5] which provides guidelines for immigration officers in their assessment of H & C applications. In this case, the Applicant argues that the Officer failed to take into account the factors as set out in IP-5. Section 6.1 of IP-5 states that:
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6.1. De facto family members
De facto family members are persons who do not meet the definition of a family class member. They are, however, in a situation of dependence that makes them a de facto member of a nuclear family in Canada. Some examples: a son, daughter, brother or sister left alone in the country of origin without family of their own; an elderly relative such as an aunt or uncle or an unrelated person who has resided with the family for a long time.
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6.1 Membres de fait de la famille
Les membres de fait de la famille sont les personnes qui ne répondent pas à la définition de membre de la catégorie du regroupement familial. Ils sont, par contre, dans une situation de dépendance qui les rend de fait membres d’une famille nucléaire au Canada. Voici quelques exemples : fils, fille, frère ou sœur laissés seuls dans le pays d’origine sans famille propre; un parent âgé, par exemple une tante ou un oncle ou une personne non apparentée qui a résidé avec la famille pendant longtemps.
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[11] Section 13.8 of IP-5 provides:
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13.8. De facto family members
An important consideration is to what extent the applicant would have difficulty in meeting financial or emotional needs without the support and assistance of the family unit in Canada. Separation of persons in such a genuine dependent relationship may be grounds for a positive decision.
Officers should consider the following factors:
· whether dependency is bona fide and not created for immigration purposes;
· the level of dependency;
· the stability of the relationship;
· the length of the relationship;
· ability and willingness of the family in Canada to provide support;
· applicant's other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support;
· documentary evidence about the relationship (e.g., joint bank accounts or real estate holdings, other joint property ownership, wills, insurance policies, letters from friends and family);
· whether there is a significant degree of establishment in Canada? (See Section 11.2, Assessing the applicant’s degree of establishment in Canada); and
· any other factors relevant to the H&C decision.
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13.8. Membres de la famille de fait
L’une des considérations importantes est la difficulté qu’aurait le demandeur de satisfaire à ses besoins financiers ou émotionnels sans l’aide de la famille au Canada. La séparation d’un parent de fait de ses proches peut constituer la base d’une décision CH favorable.
L’agent doit tenir compte des facteurs qui suivent :
· s’agit-il d’une dépendance authentique, qui ne vise pas à obtenir le statut de résidence permanente.
· le niveau de dépendance;
· la stabilité de la relation;
· la durée de la relation;
· la capacité et la volonté de la famille au Canada d’assumer le soutien;
· les autres recours du demandeur, par exemple sa famille (époux, enfants, parents et fratrie, etc.) à l’étranger, disposés à assumer le soutien et capables de le faire;
· documents qui prouvent la relation (p. ex., compte bancaire commun, biens immobiliers ou autres communs, testament, police d’assurance ou lettres d’amis ou de parents);
· existe-t-il un degré appréciable d’établissement au Canada? (Voir la Section 11.2, Évaluation du degré d’établissement au Canada); et
· tout autre facteur pertinent à la décision CH.
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[12] Clearly, the guidelines provide that a de facto family member must show that he is in a situation of dependence. In this case, the Applicant bases his claim of dependence on the fact that he is unable to maintain steady employment in Hong Kong and his need for emotional support from his family in Canada.
[13] While IP-5 sets out examples of factors that should be considered in determining the extent of financial or emotional needs, the list is neither mandatory nor exhaustive. These guidelines have been explained by the Supreme Court in Baker, above at para. 72, as follows:
72 [T]he guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
[14] However, the Federal Court of Appeal has made it clear that “the Minister and his agents are not bound by these guidelines” (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 at para. 20, 212 D.L.R. (4th) 139).
[15] The facts show, and as the Officer stated within his reasons, the Applicant is a 37 year old man who was able to obtain employment and was able to support himself in Hong Kong, and there is no reason why he is unable to do so when he returns to Hong Kong. In addition, loneliness due to the separation between family members, although unfortunate, is not sufficient in this case to constitute a situation of dependence. In my view, the decision of the Immigration Officer reflects that he took into account the factors that were relevant to the facts of this case. That he did not explicitly refer to each of the factors is not a grounds for review. Of far greater importance, is that the Officer dealt with the evidence before him and exercised his discretion in a non-arbitrary manner.
[16] The Applicant also submits that the Officer took irrelevant considerations into account by considering the voluntary separation of the family in 1996. In my view, the fact that the family, for whatever reason, left the adult Applicant behind in 1996 when they came to Canada is a relevant factor. In this case, the voluntary separation goes directly to the question of emotional dependence as argued by the Applicant. A family who has chosen separation is accountable for the results of their choice. A voluntary separation raises a rebuttable inference that the family member left behind is not dependent on the family. It may be that changed circumstances can overcome the applicability of this factor but that does not mean that it is irrelevant to the Officer’s decision.
[17] In sum, the decision of the Officer can stand up to a somewhat probing examination; it was not unreasonable. The Application for Judicial Review will be dismissed.
[18] Neither party proposed a question for certification. No question of general importance is raised in this case and, accordingly, no question will be certified.
ORDER
This Court orders that:
- The application for judicial review is dismissed; and
- No question of general importance is certified.
“Judith A. Snider”
__________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1973-06
STYLE OF CAUSE: WING FU LEUNG v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 20, 2007
DATED: February 23, 2007
APPEARANCES:
Ralph Dzegniuk FOR THE APPLICANT
Maria Burgos FOR THE RESPONDENT
SOLICITORS OF RECORD:
Green & Spiegel FOR THE APPLICANT
Barristers and Solicitors
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada