SHIRLEY-ANN MONICA DOWERS Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 889

Date: 20180905 Docket: IMM-5634-17 Citation: 2018 FC 889 Toronto, Ontario, September 5, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:SHIRLEY-ANN MONICA DOWERSApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Ms. Shirley-Ann Monica Dowers (the Applicant) seeks judicial review of the decision of an Officer (the “Officer”), refusing herapplication for permanent residence on Humanitarian and Compassionate (“H&C”) grounds, pursuant to

section 25 of the Immigrationand Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). [2] The Applicant is a citizen of St. Vincent and the Grenadines. She came to Canada in 1999 and has remained here since. [3] The Applicant has worked during her time in Canada and has contributed to the support and maintenance of family members,including minor children, in St. Vincent. [4] An application for H&C relief was refused by a representative of the Minister of Citizenship and Immigration (the “Respondent”) bya decision dated November 1, 2016.

Upon application for leave and judicial review, that refusal was set aside by Reasons andJudgement of Justice Campbell in case number IMM-4902-16. The Judgement provided that the matter was to be re-determined by adifferent decision-maker. [5] The Applicant filed further submissions in support of her application, including a request that if the H&C application were refused,that a Temporary Resident Permit (“TRP”) be issued to her.

The H&C application was refused in a decision dated December 7, 2017. [6] The Applicant now argues that the Officer unreasonably failed to consider the Reasons of Justice Campbell in re-determining herapplication.

She also submits that the Officer unreasonably assessed her establishment in Canada and the best interests of minor children.Finally, the Applicant argues that the Officer erred by failing to address her request for a TRP. [7] The Respondent, in reply, submits that the decision of the Officer meets the applicable standard of review, that is reasonableness,and no error was made in refusing the Applicant’s application. [8] The decision of the Officer, relative to the H&C application, is reviewable on the standard of reasonableness; see the decision inKisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 , [2010] 1 F.C.R. 360 (F.C.A.) at paragraph 18. [9] According to the decision in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, that standard requires that adecision be transparent, justifiable and intelligible, falling within a range of possible acceptable outcomes that is defensible on the lawand the facts. [10] The failure to address the Applicant’s request for a TRP had been considered to be an error of law or of procedural fairness,reviewable on the standard of correctness; see the decision in Shah v Canada (Minister of Citizenship and Immigration), 2011 FC 1269, 399 F.T.R. 146 (F.C.) at paragraph 36. [11] Having reviewed the Certified Tribunal Record, the affidavit of the Applicant, the decision of the Officer and the submissions ofCounsel for the parties, I am satisfied that the application for judicial review should be allowed. [12] In the first place, the Officer apparently misunderstood the evidence submitted about the Applicant’s support for her nieces andnephews in St.

Vincent. The evidence was submitted to address the best interests of children, otherwise known as “BIOC”. The Officer’streatment of that evidence is contrary to the guidance given by the Supreme Court of Canada in its decision in Kanthasamy v Canada(Citizenship and Immigration), 2015 SCC 61 , [2015] 3 S.C.R. 909 at paragraphs 34–40. [13] Second, I agree with the submissions of the Applicant that the Officer erred by failing to deal with her request for a TRP. TheOfficer was not entitled to ignore that request.

The submission of the Respondent that the TRP is an “inherent” part of a H&Capplication is not persuasive. [14] In the result, the application for judicial review is allowed, the decision of the Officer will be set aside and the matter remitted to adifferent Officer for re-determination. There is no question for certification arising. JUDGMENT IN IMM-5634-17

JUDGMENT IN IMM-5634-17 THIS COURT’S JUDGMENT is that this application for judicial review is allowed, the decision is set aside and the matter remitted to a different Officer for re-determination. There is no question for certification arising. “E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-5634-17 STYLE OF CAUSE: SHIRLEY-ANN MONICA DOWERS v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 4, 2018 JUDGMENT AND REASONS: HENEGHAN J.

DATED: September 5, 2018 APPEARANCES : Samuel Loeb For The Applicant Nicholas Dodokin For The Respondent SOLICITORS OF RECORD : Samuel Loeb Barrister & Solicitor Refugee Law Office Toronto, Ontario For The Applicant Attorney General of Canada For The Respondent