r v. New Brunswick, 2013 FC 482

[2014] 4 F.C.R. 265 IMM-1594-12 2013 FC 482 Jasmattie De Coito (Applicant) v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (Respondents) Indexed as: De Coito v. Canada (Citizenship and Immigration) Federal Court, Gleason J.—Toronto, December 6, 2012; Edmonton, May 7, 2013. Citizenship and Immigration — Status in Canada — Permanent Residents — Humanitarian and Compassionate Considerations —Judicial review of decision by immigration officer denying application for humanitarian and compassionate (H&

C) consideration underImmigration and Refugee Protection Act (IRPA), s. 25 — Applicant, citizen of Guyana, arriving in Canada after attack — Arguingofficer’s treatment of hardship unreasonable because officer copying from other file, assuming facts foreign to applicant’s situation —Decision unreasonable because officer using reasons from another matter to justify rejection of application — Factual errors at veryheart of officer’s reasoning — Officer not accurately appreciating, analysing situation — Conclusion also falling outside range ofreasonable outcomes — Difficult to reconcile with purpose of H&C provisions in IRPA, Canada’s humanitarian tradition — Case hereinwhat Parliament had in mind when providing discretion to waive compliance with IRPA — Application allowed.

This was an application for judicial review of a decision by an immigration officer denying the applicant’s application for humanitarianand compassionate (H&

C) consideration under

section 25 of the Immigration and Refugee Protection Act (IRPA). The applicant, a citizen of Guyana, arrived in Canada following a brutal attack on her and her family. The applicant argued, inter alia,that the officer’s treatment of the hardship that she would suffer if returned to Guyana was unreasonable because the officer copied fromanother file and assumed facts that were wholly foreign to her situation. At issue was whether the officer’s treatment of the issue of hardship was unreasonable. Held, the application should be allowed.

The decision was unreasonable because the officer cut and pasted from reasons in another matter and used those reasons to justifyrejecting the applicant’s claim that she would suffer unusual, undeserved or disproportionate hardship if she returned to Guyana. Factualerrors were at the very heart of the officer’s reasoning. The failure to accurately appreciate and analyse the applicant’s situation renderedthe officer’s decision unreasonable. While the above was determinative of the application, it was also noted that the conclusion reached by the officer fell outside the rangeof reasonable outcomes.

The purpose of H&C discretion as discussed in Citizenship and Immigration Canada’s Inland Processing (IP),Chapter IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds “is to allow flexibility to approvedeserving cases not covered by the legislation” and “to uphold Canada’s humanitarian tradition”. The result reached in this case wasdifficult to reconcile with the purpose of the H&C provisions in the Act and the notion that consideration needed to be given to Canada’shumanitarian tradition. The applicant has no real roots in Guyana and experienced significant trauma in that country.

Her case is whatParliament had in mind when it provided the respondent Minister of Citizenship and Immigration discretion to waive compliance withIRPA. The officer’s decision was set aside and the matter remitted to the respondent, the Minister of Citizenship and Immigration, forreconsideration. STATUTES AND REGULATIONS CITED Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25, 74. CASES CITED applied: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Newfoundland and Labrador Nurses’ Union v.

Newfoundland andLabrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. considered: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Doré v. Barreau du Québec, 2012 SCC 12, [2012]1 S.C.R. 395; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174D.L.R. (4th) 193. referred to: Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 F.C.R. 360; Canada (Attorney General) v.Abraham, 2012 FCA 266, [2013] 1 C.T.C. 69; Diabate v.

Canada (Citizenship and Immigration), 2013 FC 129, 427 F.T.R. 87; Suresh v.Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Maple Lodge Farms Ltd. v. Government of Canada,

(SCC), [1982] 2 S.C.R. 2, (1982), 137 D.L.R. (3d) 558. AUTHORS CITED Citizenship and Immigration Canada. Inland Processing (IP).

Chapter IP 5: Immigrant Applications in Canada made on Humanitarian orCompassionate Grounds, online: <http://www.cic.gc.ca/english/resources/manuals/ip/ip05-eng.pdf>. APPLICATION for judicial review of a decision by an immigration officer denying the applicant’s application for humanitarian andcompassionate consideration under

section 25 of the Immigration and Refugee Protection Act. Application allowed. APPEARANCES Robin L. Seligman for applicant. Margherita Braccio for respondents. SOLICITORS OF RECORD Robin L. Seligman Professional Corporation, Toronto, for applicant. Deputy Attorney General of Canada for respondents. The following are the reasons for judgment and judgment rendered in English by [1] Gleason J.: The applicant, Ms. De Coito, is 59 years old and a citizen of Guyana of Indian ethnicity. She has lived in Canada withmembers of her family for over a decade.

She left Guyana as a result of a brutal attack on her, her husband, daughter and niece. Thugsbroke into their home, assaulted the applicant’s husband and gang-raped Ms. De Coito, her daughter and niece. The applicant’s husbanddied as a result of the attack. Tragically, this was the second instance of a similar attack; several years earlier, the applicant’s firsthusband was also attacked and killed in Guyana. [2] Ms. De Coito applied for refugee status in Canada based on her past experience and the risk to the Indo-Guyanese in Guyana, andher claim was denied.

She also sought and was granted a pre-removal risk assessment, which was likewise denied. She made anapplication for humanitarian and compassionate (H&

C) consideration under

section 25 of the Immigration and Refugee Protection Act,S.C. 2001, c. 27 (the IRPA or the Act), which was denied on January 13, 2012 by a senior immigration officer of Citizenship andImmigration Canada. The H&C decision is the subject of the present application for judicial review. Ms. De Coito argues that inrendering a negative decision in her application, the officer committed several reviewable errors, namely that: 1. The officer failed to give adequate consideration to the best interests of Ms. De Coito’s step-grandson, with whom she is very close; 2.

The officer ignored critical pieces of submitted evidence, including a CD of news clips from Guyana, describing the attack on Ms. DeCoito and her family and supplementary submissions from her counsel, containing additional information regarding the alleged hardshipher step-grandson would experience if the applicant is removed; and 3. The officer’s treatment of the hardship that the applicant would be likely to suffer if returned to Guyana is unreasonable because theofficer’s reasons show she copied from another file and assumed facts that were wholly foreign to Ms.

De Coito’s situation and becausethe result reached is unreasonable. [3] I need only address the final point as in my view the officer’s treatment of the issue of hardship in this case is unreasonable anddemands intervention by this Court. [4] In coming to this conclusion, I recognize that the reasonableness standard of review applies to the officer’s decision and that, inthe context of a discretionary decision like the present, the reasonableness standard mandates that considerable deference be given to thedecision so that I cannot substitute my views for those of the officer (Kisana v.

Canada (Minister of Citizenship and Immigration), 2009FCA 189, [2010] 1 F.C.R. 360, at paragraphs 18 and 20). To borrow the words of Justice Binnie, writing for the majority in Canada(Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 62, whether I agree with the officer’s decisionis “beside the point” because Parliament entrusted the officer to make the decision. Put another way, the range of permissible outcomesfor a discretionary decision is large (see Canada (Attorney General) v. Abraham, 2012 FCA 266, [2013] 1 C.T.C. 69, at paragraph 42;Diabate v.

Canada (Citizenship and Immigration), 2013 FC 129, 427 F.T.R. 87, at paragraph 24). [5] That said, discretionary decisions are not immune from review if the results reached are unreasonable nor is the range ofpermissible outcomes without bounds. The Supreme Court of Canada’s recent jurisprudence elucidating the content of thereasonableness standard makes clear that a reviewing court must examine both the reasoning process and the outcome reached inevaluating whether an administrative tribunal’s decision is reasonable. As noted by the majority in Dunsmuir v.

New Brunswick, 2008SCC 9, [2008] 1 S.C.R. 190, at paragraph 47, “A court conducting a review for reasonableness inquires into the qualities that make adecision reasonable, referring both to the process of articulating the reasons and to outcomes.” Similarly, in Newfoundland and LabradorNurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paragraph 14, Justice Abella,writing for the Court held that, “[T]he reasons must be read together with the outcome and serve the purpose of showing whether theresult falls within a range of possible outcomes.” Justice Abella recently confirmed in Doré v.

Barreau du Québec, 2012 SCC 12, [2012]1 S.C.R. 395, that the requirement of a reviewing court to assess both reasons and outcome applies to discretionary decisions. [6] The instances where review is warranted due to the unreasonable nature of the result reached by a tribunal in making adiscretionary decision will be few and far between because it is not for the reviewing court to reweigh the factors considered by thetribunal, provided the factors it considered are the relevant ones (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC1, [2002] 1 S.C.R. 3, at paragraph 37).

Where, however, the tribunal fails to consider the relevant factors or considers irrelevant ones in

coming to its decision, the case law has long recognized that such failure will provide the basis for intervention ( see e.g. Maple LodgeFarms Ltd. v. Government of Canada, (SCC), [1982] 2 S.C.R. 2). [7] In addition, if a tribunal merely lists a key relevant consideration but then ignores that factor so as to effectively denude it ofcontent, review may be warranted. This, in fact, is what occurred in Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, where the Supreme Court set aside an H&C decision, in part because the officer who made thedecision so diminished the interests of the affected children that he in effect ignored them. Writing for the majority in that case, JusticeL’Heureux-Dubé wrote, at paragraph 66: The wording of s. 114(2) and of Regulation 2.1 requires that a decision-maker exercise the power based upon “compassionate orhumanitarian considerations” (emphasis added).

These words and their meaning must be central in determining whether an individual H& C decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister todetermine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’sintention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court hasfound that it is necessary for the Minister to consider an H & C request when an application is made ….

Similarly, when considering it,the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations.[Emphasis in original.] [8] Here, the officer’s decision is unreasonable because she cut and pasted from reasons in another matter and used those reasons tojustify rejecting Ms. De Coito’s claim that she would suffer unusual, undeserved or disproportionate hardship if she were returned toGuyana.

The officer wrote as follows: … I find that should the applicant need to re-establish herself in Guyana, it would be reasonable to assume that she would have thesupport and assistance of their other son and the principal applicant’s siblings, and be able to apply their restaurant entrepreneur skillsand/or their Canadian work experience to assist them in obtaining employment. Thus, I find that should he return to Trinidad, theelements assessed here would not contribute to a hardship that is unusual and undeserved or disproportionate. [9] Ms.

De Coito is a woman, is not from Trinidad, has never worked in a restaurant and does not have a son in Guyana. Thus,nothing in the preceding paragraph applies to her situation. The respondents argue that these are merely clerical errors as the officerelsewhere accurately set out the facts pertaining to Ms. De Coito’s claim. The respondents therefore assert that the errors made by theBoard do not warrant intervention. [10] I disagree.

Contrary to the respondents’ position, these factual errors are at the very heart of the officer’s reasoning in this case.The failure to accurately appreciate and analyse the applicant’s situation renders the officer’s decision unreasonable. [11] While the latter conclusion is determinative of this application, I would also note that the conclusion reached by the officerappears to fall outside the range of reasonable outcomes. The purpose of H&C discretion is discussed in the respondents’ InlandProcessing (IP) manual,

Chapter IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds, whichprovides (at

Section 2): The purpose of H&C discretion is to allow flexibility to approve deserving cases not covered by the legislation. This discretionary tool isintended to uphold Canada’s humanitarian tradition.

Use of this discretion should not be seen as conflicting with other parts of the Act orRegulations but rather as a complementary provision enhancing the attainment of the objectives of the Act. [12] This purpose has likewise been recognized by Justice L’Heureux-Dubé in Baker where she noted, at paragraph 15: Applications for permanent residence must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of the Act. One of theexceptions to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations.

In law,pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in thename of the Minister by immigration officers …. In addition, while in law, the H & C decision is one that provides for an exemptionfrom regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canadabut does not have status can stay in the country or will be required to leave a place where he or she has become established.

It is animportant decision that affects in a fundamental manner the future of individuals’ lives.

In addition, it may also have an important impacton the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since theymay be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and haveconnections. [Emphasis in original.] [13] The result reached in this case is difficult to reconcile with the purpose of the H&C provisions in the Act and the notion thatconsideration needed to be given to Canada’s humanitarian tradition.

If the applicant is not deserving of this exceptional treatment, it ishard to see who would be. As counsel for the applicant noted, if Ms. De Coito is not granted H&C consideration, she will not likely beable to return to Canada except, perhaps, on a temporary basis and thus will be required to live in Guyana, where she has no real rootsand experienced significant trauma.

It is difficult to imagine someone more deserving of compassionate consideration than a 59-year-oldgrandmother who lost two husbands in brutal murders, experienced gang-rape and witnessed her daughter and niece being gang-raped,and would be forced to return to the country these events occurred, where she has not lived for over 10 years and has few remainingconnections.

This would appear to be exactly the sort of case Parliament had in mind when it provided the Minister of Citizenship andImmigration discretion to waive compliance with the IRPA. [14] For these reasons, the officer’s decision will be set aside and the matter remitted to the respondents for reconsideration inaccordance with this decision. No question of general importance under

section 74 of the IRPA was proposed and none arise in this case. JUDGMENT THIS COURT’S JUDGMENT is that: 1. This application for judicial review of the officer’s decision is granted and the officer’s decision of January 13, 2012 is set aside;

2. The applicant’s H&C claim is remitted to the respondent, Minister of Citizenship and Immigration, for redetermination by a different officer; 3. No question of general importance is certified; and 4. There is no order as to costs.