Date: 20000320
Docket: IMM-4800-99
BETWEEN:
EDUVIGES JAVIER DELFINADO
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario on
Monday, March 20, 2000)
McGILLIS J.:
[1] The applicant has challenged by way of judicial review the decision dated September 14, 1999 of an immigration officer refusing her application for humanitarian and compassionate relief.
[2] In her decision, the immigration officer stated, in part, as follows:
| The subject has been steadily employed since her arrival to [sic] Canada in 1992. She has never sought public assistance. She is close to her mother and other siblings living in Canada. Along with her husband and two children, she has 2 brothers and 2 sisters in the Philippines. |
| Her sponsor/sister is now a single parent and requires assistance in taking care of her 69 year old mother. Her mother requires medical care for her diabetes and high blood pressure. The subject and her mother are currently living together. She states she is extremely remorseful for having misrepresented herself to immigration. |
| It is noted that her mother is a diabetic and has high blood pressure. The subject"s care for her mother is limited as she is a full time employee. There is insufficient evidence to show that her removal from Canada would be detrimental to her mother. Furthermore, her other daughter, her sponsor, remains in Canada and is ultimately responsible for her. The undertaking of assistance is valid until September 2002. |
| Her establishment in Canada is limited to her employment and some community involvement. The subject has lived in Canada for 7 years. She speaks little English and required an interpreter for the interview. I am not satisfied that the subject would suffer undue or disproportionate hardship should she have to leave Canada to apply in the normal manner. |
[3] In support of her application, the applicant swore in her affidavit, among other things, that she emphasized various matters during the course of her interview with the immigration officer, including the role that she plays in caring for her mother. In that regard, the applicant stated that she and her sister live with and care for their mother who is extremely ill. The applicant works from 7:00 a.m. until 3:00 p.m., during which time her sister cares for their mother. The applicant cares for her mother during the afternoons and evenings when her sister works. On several occasions, the applicant has been required to take her mother to the hospital. Their mother is completely dependent on the applicant and her sister for care and financial support.
[4] The applicant"s evidence was not challenged by cross-examination and the immigration officer did not file an affidavit in response.
[5] Counsel for the applicant submitted, among other things, that the immigration officer erred by ignoring or misapprehending the evidence concerning the applicant"s role in caring for her mother. I agree with that submission. In my opinion, the uncontradicted and unchallenged evidence in the record indicates that the applicant plays a pivotal role in providing care and financial support for her mother. In the circumstances, the immigration officer either ignored or misapprehended the evidence in concluding that the applicant"s care for her mother was "limited" due to her employment and that there was "insufficient evidence" her removal would be detrimental to her mother. Given that the applicant"s role in caring for and in supporting her mother formed a central element of the application for humanitarian and compassionate relief, I am satisfied that the error made by the immigration officer in assessing that aspect of the application taints the entire decision. The decision is therefore unreasonable and cannot be permitted to stand.
[6] The application for judicial review is allowed and the decision of the immigration officer dated September 14, 1999 is quashed. The matter is remitted to a different immigration officer for redetermination. The case raises no serious question of general importance.
"D. McGillis"
J.F.C.C.
TORONTO, ONTARIO
March 20, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4800-99 |
| STYLE OF CAUSE: EDUVIGES JAVIER DELFINADO |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: MONDAY, MARCH 20, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McGILLIS J. |
DATED: MONDAY, MARCH 20, 2000
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. David Tyndale
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
Toronto, Ontario
M4P 1L3
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
| FEDERAL COURT OF CANADA |
Date: 20000320
Docket: IMM-4800-99
Between:
| EDUVIGES JAVIER DELFINADO |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER