Tuesday, September 25, 2012

Westmore—reasoning not transparent

Westmore v. Canada (Citizenship and Immigration), 2012 FC 1023 (CanLII)

Judge: Justice Russell; Date heard: June 27, 2012; Date decided: August 28, 2012; Counsel for Westmore: Michael F. Battista; Counsel for Minister: Michael Butterfield; Place of Hearing: Toronto, Ontario.

The applicant was a 70-year-old citizen of the UK, who had been with his same-sex partner since 1983. They lived common-law, splitting their time between UK and Canada on the basis of repeated renewals of visitors visas, between 1983 and 2003. At that time, the Immigration and Refugee Protection Act provisions allowing sponsorship of same-sex partners came into force, so the applicant and his partner married and submitted a sponsorship in June 2004.

Tragically, the applicant’s partner died in October 2004. The applicant was no longer a sponsored spouse, but asked the Minister to process his application on humanitarian and compassionate grounds. The application was converted into an H&C, and the applicant was granted approval in principal in August 2005: “The immigration officer reviewing that application found that there was strong evidence of community support and ties to Toronto. The Applicant had also shown that he would not be in financial difficulty if he were granted permanent residence” (para. 4).

At that point in time, the Respondent requested an updated medical exam, but for some reason there was a breakdown in communication and the applicant was not aware of this request. His H&C was therefore denied in March 2008.

The applicant filed a new H&C in November 2009, which included information on his reliance on the services of the Canadian National Institute for the Blind (CNIB), as well as the other grounds (establishment and significant connections to Canada) relied on in the first application. This application was refused in September 2011.

Justice Russell concurred with the applicant that there were two grounds of review:

… the Decision lacks transparency and intelligibility because the Officer failed to explain why she came to a negative conclusion when the Applicant’s previous H&C application was positive, and that the Officer’s various conclusions regarding insufficient evidence about support systems in the UK, and his ability to replace what he has at CNIB in the UK, are simply unreasonable given the evidence that was before the Officer. (para. 38)

Justice Russell goes on to state:

[42] A significant portion of the Officer’s reasoning relates to her finding that “there is insufficient evidence showing whether [the Applicant] has any other family in the United Kingdom or that he may have friends or acquaintances from his previous travels home that may be able to provide support.” Had the Applicant established to the Officer’s satisfaction that he had no one to return to, the outcome of the Decision might well have been different.

[43] I think the Officer’s treatment of the evidence establishing his support system, or lack thereof, was unreasonable. She found there was insufficient evidence that other family in the UK – the Officer accepted that his mother and brother were both deceased – could support the Applicant. However, it seems the Officer ignored the evidence in the Applicant’s H&C application form. Part C of the application form called on the Applicant to list his family members who were living in Canada. He listed no one. He also wrote in his Supplementary Information Form that “I have no family or friends remaining in my country of citizenship, the United Kingdom.” Further, the Applicant said that “All of my friends and support networks are in Canada,” which necessarily implies he has no support network in the UK. On both of these forms, the Applicant declared that the information he gave was true and correct.

[44] The Officer had before her sworn evidence which established a crucial aspect of the Applicant’s request for an H&C exemption. However, she concluded there was insufficient evidence to establish the lack of support. In doing so, the Officer failed to give the Applicant’s sworn statement the presumption of truthfulness which Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 establishes.

Since the Court could not determine how the Officer arrived at the decision, the decision was overturned.


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