Date: 20041208
Docket: IMM-7765-03
Citation: 2004 FC 1715
Toronto, Ontario, December 8th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
KATHLEEN RAMPRASHAD-JOSEPH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present application is a review of an Immigration Officer's decision denying Humanitarian and Compassionate relief to a 72 year old citizen of Guyana who, on the basis of the decision, would be separated from her 81 year old Canadian husband. The decision requires the Applicant to return to Guyana to apply for permanent resident status. For the reasons which follow, I find that the decision rendered is unreasonable.
[2] The most essential feature of the Applicant's application for Humanitarian and Compassionate consideration is contained in the following brief, but infatic, statement:
"If I was to apply from outside of Canada and my husband needs me to be with him. We are not young couple and all we wanted is to be with each other. I depend on my husband and my husband depend on me."
(Emphasis added)
(Tribunal Record, p. 26)
[3] The issue for determination before the Immigration Officer was whether undue hardship will be caused by requiring the Applicant to apply for landing from outside of Canada. There can be no doubt that an application for Humanitarian and Compassionate consideration calls for understanding and sensitivity on the part of an immigration officer in judging hardship in a particular life situation presented. Some cases do not need full description to appreciate the potential level of hardship; for example, in the case of the separation of elderly people, I would think that understanding and sensitivity would generate a most cautious approach to rendering a decision. In my opinion, a reasonably expected level of sensitivity, understanding, and caution does not exist in the decision rendered in the present case.
[4] In the present case, Counsel for the Applicant argues as follows:
THE LAW
INTERESTS OF THE ELDERLY
3. In the case at bar, the tribunal was considering an application on humanitarian and compassionate grounds in which the spouse of a Canadian citizen was requesting an exemption from the requirement to apply for a visa outside of Canada. The applicant and her husband are very elderly. The applicant is currently 73 and her husband is 82. They stated in their applications that they would be subject to extreme emotional and financial hardship if they were required to separate. They also stated that they are not a young couple and that they depend on each other. For example, the applicant stated in the application forms:
"I could not imagine our lives without being with each other, we depend on each other and support each other." (Emphasis added)
Application Record, p. 26
Tribunal Record, p. 29
"If I was to apply from outside of Canada and my husband needs me to be with him. W are not young couple and all we wanted is to be with each other. I depend on my husband and my husband depend on me." (Emphasis added)
Application Record, p. 53
Tribunal Record, p. 26
4. Based on these statements, it is apparent that the applicant and her husband rely on each other for assistance in the day-to-day tasks which become very difficult for elderly persons to do by themselves, raising the question of whether if separated, the applicant or her husband would be able to take care of themselves alone. With regard to this further evidence of hardship, the officer stated in the reasons:
"Client states it would be an emotional and financial hardship if they are separated. I acknowledge an emotional hardship would exist, but marriage is one factor to consider and insufficient evidence has been provided to state why it should be the sole factor. Insufficient evidence has been provided to state a temporary separation would be detrimental and that they would not have fruitful years together in the future, due to their age."
Application Record, pp. 12-13
Tribunal Record, pp. 10-11
5. With respect, this statement is nonsensical. The couple is very elderly and therefore it is clear they do not have many years left together. There is no basis for the officer to conclude they would have "fruitful years" together should the applicant have to leave Canada and be sponsored back from her home country. It is therefore submitted that the officer ignored or failed to appreciate the other major hardship the applicant and her husband would face if separated, which is deprivation of the mutual assistance they provide to each other due to the fact they depend on each other due to their old age. It is submitted that by failing to appreciate this important aspect of the case the officer rendered the decision unreasonable since there is clearly a significant hardship in separating two elderly people who rely on each other for mutual assistance.
6. It is submitted that by failing to take into consideration the evidence of the applicant that she and her husband rely on each other because they are elderly, the officer erred by not being sensitive to the special needs and vulnerabilities of the elderly. In this regard, it is submitted that elderly people constitute a vulnerable group within Canadian society which should be approached with a heightened sensitivity. This is because elderly people are often not able to function as well as other adults and are therefore more reliant on external assistance.
(Applicant's Supplementary Written Arguments, para. 3-6)
[5] Counsel for the Respondent responds that the following paragraphs from the Federal Court of Appeal's decision in Owusu v. Canada (Minister of Citizenship and Immigration), [2004] FCA 38 (F.C.A.) place an onus on Applicants to produce adequate evidence:
¶ 5 An immigration officer considering an H & C application must be "alert, alive and sensitive" to, and must not "minimize", the interests of children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.
.....
¶ 8 H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. In our view, Mr. Owusu's H & C application did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them.
[6] With respect to the test in Owusu, each case should be dealt with on its own merits, and with an eye towards the guidelines which immigration officers are asked to follow. As pointed out by Counsel for the Applicant, the guidelines with respect to the conduct of Humanitarian and Compassionate applications state that, for procedural fairness, an immigration officer might request any additional information needed. In addition, by guideline 12.4, the effective links between family members, and their degree of psychological and emotional support in relation to each other, is a factor to be taken into consideration in deciding an application for positive Humanitarian and Compassionate relief. Indeed, the latter factor was taken into consideration with respect to elderly persons by Justice Phelan in Lazareva v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1245 where he says at para. 15:
The Supreme Court in Baker requires in H & C type decisions that there be a consideration of the impact on dependents and family. That requirement applies to elderly dependents as much as it does to young children..
[7] As cited above in the argument presented by Counsel for the Applicant with respect to the impact of a separation of the Applicant from her husband, there is no question that the dependency statement made by the Applicant required the Immigration Officer to pause and give it a particularly careful consideration. Counsel for the Respondent argues that, since no details of the level of dependency are provided by the Applicant, the Immigration Officer was under no obligation to go further than the statement.
[8] I agree that no obligation exists but, instead of going further and asking questions which might have provided greater contextual detail, I find that the Immigration Officer speculated on the information provided. There is no evidence upon which the Immigration Officer could draw the conclusion that, if the Applicant is required to go outside of Canada to be landed, she and her husband would have "fruitful years together in the future, due to their age". It is agreed that an application for landing made from Guyana would take at least one year. Given the notorious fact that the Applicant's husband is already passed his expected longevity, and given the fact that the Applicant herself is approaching her longevity, I find that it is unreasonable for the Immigration Officer to speculate on their future life together.
[9] I agree completely with the argument presented by Counsel for the Applicant as quoted above. As a result, I find the Immigration Officer's decision was made in reviewable error.
ORDER
Accordingly, I set the Immigration Officer's decision aside and refer this matter to a different immigration officer for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-7765-03
STYLE OF CAUSE: KATHLEEN RAMPRASHAD-JOSEPH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 7, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: DECEMBER 8, 2004
APPEARANCES BY:
Mr. Matthew Jeffery
FOR THE APPLICANT
Mr. Marcel Larouche
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Matthew Jeffery
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041208
Docket: IMM-7765-03
BETWEEN:
KATHLEEN RAMPRASHAD-JOSEPH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER