Date: 20060512
Docket: IMM-5572-05
Citation: 2006 FC 591
Ottawa,
Ontario, May 12, 2006
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
HELENA
LINIEWSKA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review of the decision by Sophie Bisaillon (the
immigration officer) dated August 8, 2005, denying the application for visa
exemption for humanitarian and compassionate considerations under
subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2]
The
applicant is a 79-year-old Polish citizen. She visited Canada three times,
namely from September 1993 to April 1994, from November 1994 to April 1997 and
from January 2001 to date.
[3]
The
applicant entered Canada on January 17, 2001 with a visitor’s visa, valid until
March 2006. She applied for a visa exemption based on humanitarian and
compassionate considerations. She was sponsored by her daughter, a Canadian
citizen.
[4]
The
applicant’s established family in Canada is composed of her daughter, her
daughter’s husband and their two children ages 9 and 12, all Canadian citizens.
The applicant has three other children and grandchildren who live in Poland.
ISSUES
[5]
1. Did the
immigration officer err in assigning too much importance to financial factors?
2. Was the interest of the
children taken into consideration?
3. Did the immigration officer err in
failing to take relevant facts into consideration?
ANALYSIS
[6]
The
applicant requires a visa exemption on the basis that her Canadian daughter
wants to sponsor her and that given her age and her ties with her family in
Canada, it would be unusual, undeserved and disproportionate
to require her to
wait for the result of that application from her residence in Poland. However,
the immigration officer held the contrary and denied the applicant’s
application.
[7]
The Act
requires that a foreign national seeking permanent residence in Canada must
apply for and obtain a permanent residence visa before entering Canada.
However, pursuant to subsection 25(1) of the Act, the Minister may grant a
foreign national a visa exemption on the basis of humanitarian and
compassionate considerations. Subsection 25(1) of the Act reads as follows:
|
25. (1) The Minister
shall, upon request of a foreign national who is inadmissible or who does not
meet the requirements of this Act, and may, on the Minister’s own initiative,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25. (1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
[8]
In Adu
v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J.
No. 693,
Madam Justice Anne L. Mactavish states that the appropriate standard
of review for decisions made pursuant to subsection 25(1) of the Act is
that of reasonableness simpliciter:
The general standard of
review governing decisions of immigration officers in relation to H&C
applications is reasonableness simpliciter: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817.
[9]
In
Pashulya v. Canada (Minister of Citizenship and Immigration), 2004 FC 1275, [2004]
F.C.J. No. 1527, Mr. Justice James Russell discusses the purpose
of applications based on humanitarian and compassionate considerations:
This Court has repeatedly
held that the H&C process is designed not to eliminate the hardship
inherent in being asked to leave after one has been in place for a period of
time, but to provide relief from “unusual, undeserved and disproportionate
hardship” caused if an applicant is required to leave Canada and apply from
abroad in the normal fashion.
1. Did the immigration officer
err in assigning too much importance to financial factors?
[10]
The
applicant claims that the immigration officer erred in assigning too much
importance to the financial circumstances of her daughter, who wanted to
sponsor her. The applicant submits that financial factors are not relevant
factors for the purposes of assessing an application for permanent residence in
Canada based on humanitarian and compassionate considerations.
[11]
In reply,
the respondent states that the immigration officer did not assign any
importance to the financial considerations of the matter. Further, he observes
that in the notes of the application for humanitarian and compassionate
considerations, the financial aspect is mentioned only under “Humanitarian or
compassionate factors invoked by applicant”, but she does not mention it again
later under “Decision and reasons”.
[12]
The
applicant had received a letter calling her to an interview to determine
whether she could obtain a visa based on humanitarian and compassionate
considerations. The letter reads as follows:
This refers to your
application for permanent residence from within Canada on humanitarian and
compassionate grounds. This is a two step decision making process.
First, humanitarian and
compassionate factors are assessed to decide whether to grant an exemption from
the requirement of having to obtain a permanent resident visa before coming to
Canada [A11(1)]. Second, you and the members of your family, if applicable must
meet all other statutory requirements of the Immigration and Refugee
Protection Act (IRPA) [A21], for example, medical, security and passport
requirements as well as arrangements for your care and support and obtaining
a “Certificat de Sélection du Québec (CSQ). This second decision will only
be taken if you have been exempted of the permanent residence visa requirement.
INTERVIEW REQUIRED
Before making a decision
on the visa requirement exemption, you will have the opportunity to submit any
information at an interview.
Therefore, you must
report for an interview and bring the documents indicated on the
attached list.
(Letter sent to the applicant, July 4,
2005, record at page 54.)
[13]
The
applicant had been asked to bring some documents with her to the interview,
including financial documents. At the interview, the immigration officer had
noted:
SB: I have asked you
for some documents. Please show me all of the documents.
Daughter
is providing documents:
Income
tax declaration shows approximately 6000 for husband and 13000 for the sponsor.
(see photocopies on file). Advise that this might be insufficient to be
accepted for a CSQ from Quebec.
(Interview notes, record at
page 9)
[14]
It appears
from the documents filed and from the affidavits of the applicant and her
daughter that the financial documents filed at the interview did not reflect
the applicant’s actual income. It was not unreasonable to offer the applicant
the opportunity to bring her file up to date and to file financial documents
reflecting reality which, furthermore, favoured the applicant, since the income
was much higher than the income appearing in the documents filed the first
time. Further, the officer feared that the income, initially, could be
insufficient according to the applicable standards.
[15]
As
indicated in the letter sent to the applicant, the application for a visa based
on humanitarian and compassionate considerations has two stages. The
immigration officer tried to help the applicant by warning her that the
financial resources were perhaps insufficient to meet the requirements of the
second stage, namely to receive a CSQ from Quebec. The fact that the officer
had given advice to the applicant for a future assessment does not mean that the
financial factors influenced the decision as to whether the applicant met the
conditions for humanitarian and compassionate considerations (first stage).
Reviewing the notes in the record and the immigration officer’s decision, I am
persuaded that the officer did not err in assigning too much importance to
financial factors in making a decision at the first stage of the assessment of
an application for permanent residence in Canada based on humanitarian and
compassionate considerations. Furthermore, there is no reference to financial
documents in her decision.
2. Was
the interest of the children taken into consideration?
[16]
The
applicant claims that the immigration officer erred in failing to assign
sufficient importance to the interest of the children and grandchildren and to
the hardships they would suffer if the applicant were forced to leave.
[17]
The
respondent submits that the obligation to consider the best interests of the
children was clearly respected in this case. The applicant did not document her
involvement with the two grandchildren living in Canada. Further, the best
interests of the child will not always override all of the other
considerations. The Canadian grandchildren would not find themselves without
their principal support if their grandmother were to return to Poland.
[18]
In Dias
Fonseca v. Canada (Minister of Citizenship and Immigration), 2005 FC 709,
[2005] F.C.J. No. 930, at paragraphs 17 and 19, Mr. Justice W.
Andrew MacKay discusses the requirement to submit evidence for assessing the best
interests of the child:
In Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(C.A.), the Court of Appeal made clear that the best interests of the children
are important factors, though not the determinative factor in an H&C
decision. In Hawthorne v. Canada (Minister of Citizenship and Immigration),
[2003] 2 F.C. 555 (C.A.) that Court also affirmed that, in considering such an
application, careful and sympathetic assessment must be given to the best interests
of the children, and it is not sufficient merely to refer to those interests or
the relationships with children involved. By its decision in Owusu, supra,
that Court acknowledged that in considering an H&C application, the officer
concerned must be alert, alive and sensitive to the best interests of the
children when it is clear the applicant indicates that he or she relies on
their best interests as a factor. The applicant has the burden of establishing
that he relies on that factor, and of establishing a claim that their best
interests would be adversely affected if the decision is not favourable to the
applicant.
. . .
While
subsection 25(1) may indicate no “more detailed assessment of the best
interests of the child” is necessary than was required by the decision in Baker,
supra, in my opinion it does clearly establish a statutory duty to consider
those interests, even if the onus to provide evidence of those interests
remains that of the applicant. In Richards v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 35 (T.D.) (QL), at para. 9,
Mr. Justice Phelan, having found that the immigration officer concerned had not
assessed the evidence about the child’s interests, wrote in part:
[9] While it is true
that a stronger case might have been made out, the respondent had a statutory
obligation to take account of the best interests of the child. The Court of
Appeal in Owusu held that if there is no evidence of the best interests
of the child, an immigration officer is under no obligation to ferret out such
evidence. In this case, there was evidence to support a consideration of the
best interests of the child.
[19]
In her
decision, the immigration officer addressed the issues involving the interests
of the grandchildren:
Applicant also states
that she could be of a help for their children. She states twice in her form
IMM 5283 that she could be of a help. Applicant does not document what is her
involvement with her Canadian grandchildren neither in the forms neither during
the interview.
. . .
I note that the Canadian
grandchildren are of a school age (9 and 12) and that the sponsor is working
two hours per day at home for her husband company.
. . .
Sponsor has already been
alone from April 1997 until jan2001 raising by herself her children of a much
younger age and who were not attending school, her husband being away as well
as he started his occupation as a truck driver eight years ago.
(Decision of the immigration officer,
August 8, 2005, at pages 5 and 6 of the record)
[20]
The
applicant has the onus of providing evidence regarding the adverse effects on
the children if she were forced to leave. The immigration officer has an
obligation to take that evidence into consideration. It is not sufficient for
the applicant to simply state that the officer did not take the children’s best
interests into consideration, she must establish that the officer did not take
into consideration the evidence bearing on the best interests of the children.
In this case, the applicant did not submit any evidence regarding what she did
for her grandchildren and how they would be adversely affected if she were no
longer in Canada. It is not the immigration officer’s responsibility to uncover
such evidence. The interview notes establish that the officer asked many
questions on the relationship between the applicant, her daughter, her
son-in-law and her grandchildren in Canada; the officer had to form an
impression after reviewing the evidence. On that point,
Madam Justice Judith A. Snider states in Anaschenko v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1328, at paragraph 13:
Simply, there was
little, if any, evidence of hardship to Alexander. I do not doubt for a minute
that the Applicant loves his child and that the loss – even temporarily – of
the opportunity to visit with his son will be difficult for the Applicant.
However, with respect to the analysis of the best interests of Alexander, this
is irrelevant. There was nothing before the H & C Officer that focused on what
hardship would be suffered by Alexander. In light of the separation of his
parents, the lack of evidence of financial support from the Applicant and
failure to provide details of the role played by the Applicant in the child’s
life, a conclusion that the separation would not cause excessive hardship was
not unreasonable.
[21]
Based on
the evidence that was in the record, I am satisfied that the immigration
officer was receptive, attentive and sensitive to the best interests of the
children.
3. Did the immigration officer
err in failing to take relevant facts into consideration?
[22]
The
applicant is of the opinion that the immigration officer erred in failing to
take into consideration relevant facts, especially the fact that the
applicant’s children in Poland are unable to take care of her.
[23]
In Nazim
v. Canada (Minister of Citizenship and Immigration), 2005 FC 125,
Mr. Justice Paul Rouleau discusses the applicant’s burden of proof:
The onus is on the
applicant to satisfy the officer about a particular situation that exists in
their country and that their personal circumstances in relation to that
situation make them worthy of positive discretion.
[24]
The
applicant alleges that the immigration officer did not attempt to obtain
particulars regarding the reasons why the applicant would have difficulty if
she were to return to Poland. On reviewing the decision and the notes in the
record, it is my opinion that the officer took into account the applicant’s
potential problems in returning to Poland, contrary to the applicant’s
allegation. However, she determined that there was insufficient evidence to
support that claim. That finding is reasonable given that the burden of proof
was on the applicant, who had to establish that it was warranted to give her an
exemption based on humanitarian and compassionate considerations. The applicant
could have easily provided evidence in support of her claim.
[25]
With
respect to the burden of proof, Mr. Justice Frederick E. Gibson
states in Mann v. Canada (Minister of Citizenship and Immigration), 2002
FCT 567, paragraph 16:
. . . as in Sadeghi,
I am satisfied that the burden borne by an applicant for permission to seek
landing from within Canada on humanitarian and compassionate grounds is to put
his or her “best foot forward” by placing before the Immigration Officer all
information available to support the application. In such circumstances, I am
satisfied that the obligation on an Immigration Officer to advise such an
applicant, as a matter of procedural fairness, of whatever concerns the visa
officer may have about the merits of the application is reduced.
[26]
The
applicant had not established the existence of unusual, undeserved and
disproportionate hardship based only on the fact that she was not authorized to
stay in Canada.
That finding is reasonable in view of the facts of this case. The applicant did
not establish that the officer disregarded evidence.
[27]
The
applicant also suggests that the officer took into account irrelevant evidence
in her analysis, namely the existence of other grandchildren in Poland, the
financial documents, and the fact that she remained in Canada illegally and
that, on that basis alone, the decision should be set aside.
[28]
With all
due respect, it is my opinion that the consideration of the interests of the
children and grandchildren in Canada and in her native country are a part of
her life circumstances and that it was not unreasonable to take this into
account in her overall assessment.
[29]
As for the
financial documents, I have already discussed them and the officer only did her
duty in suggesting to the applicant to better reinforce her file for her
subsequent application in Quebec.
[30]
With
respect to the period that she remained unlawfully in the country, it is a fact
and it was not unreasonable to examine the periods of time spent in Canada and
in Poland to examine inter alia why the application to come live in
Canada was not made when the applicant was in Poland and why she waited until
she was in Canada to apply to be exempted from the rule.
[31]
The
applicant’s counsel suggest that Mohamed (Nargisbanu) v. Minister of
Employment and Immigration, [1986] 68 N.R. 220, has the effect of
prohibiting, for all practical purposes, the officer from considering in her
decision the interests, if not the very existence, of the applicant’s
grandchildren in Poland.
[32]
I do not
share that opinion. In Mohamed, supra, the Court considered the
officer’s insistence that the family could never be unified with a brother
residing in India as a ground, among others, for dismissing the application for
permanent residence; the Court held that this was an error.
[33]
Since Mohamed,
the Court has on many occasions ruled on the importance to be given to the
interests of children when assessing applications based on humanitarian and
compassionate considerations: including Baker v. Canada, [1999] 2 S.C.R.
817; Legault v. Canada (Minister of Citizenship and Immigration), [2002]
4 F.C. 358 (C.A.); Hawthorne v. M.C.I., [2002] F.C.J. No. 1687.
[34]
I do not
hesitate to find that the most recent case law has never supported, even
remotely, the argument advanced by the applicant. I consider that it would be
rather the absence of a reference to the existence of applicant’s children and
grandchildren residing outside of Canada which could raise concern, as though
we could disregard such an important fact in a person’s life.
[35]
I also
agree with this passage from Baker at paragraph 62:
I conclude that
considerable deference should be accorded to immigration officers exercising
the powers conferred by the legislation, given the fact-specific nature of the
inquiry, its role within the statutory scheme as an exception, the fact that
the decision-maker is the Minister, and the considerable discretion evidenced
by the statutory language. . . .
[36]
The applicant
has proposed five questions for certification:
1. Was the use of the Polish
grandchildren to counterbalance the Canadian grandchildren irrelevant evidence
based on Re Mohamed (Nargisbanu) v. Minister of Employment and
Immigration,
[1986] 68 N.R. 220?
[37]
In my
opinion, the officer did not, as the question suggests, “use . . . the Polish
grandchildren to counterbalance the Canadian grandchildren”. To make that
determination, the applicant is clearly disregarding a significant part of the
decision; the decision-maker simply referred in her decision to the fact that
the applicant had grandchildren in Canada just as she had them in Poland, but
in no way referred to this fact as a ground at the heart of this decision.
Furthermore, the Honourable Mr. Justice Hugessen in Mohamed,
discusses the relevance of relying on the inability to unify the family, be it
in India or in Canada, as a ground for dismissing an application, while in the
case before us, that issue is not even raised. The question will therefore not
be certified, since it is clearly not of general importance.
2. Are the financial factors
irrelevant considerations?
[38]
With
regard to the second question, it is clear from the immigration officer’s
decision that the financial factors did not play any role in her
decision-making and indeed again as I explained in my decision, it was
primarily the irregularity of the financial documents filed by the applicant
that led the immigration officer to suggest to the applicant that she update
her financial information in order to have a file which reflected reality.
While these are errors that arose from the fault of the applicant herself, it
is incongruous that the same applicant could use the correction of her own
errors as a ground for raising a question which is clearly not of general
importance. The question will therefore not be certified.
3. Was the applicant’s illegal
stay in Canada in 1997 an irrelevant consideration?
[39]
As stated
by the respondent’s counsel, this aspect of the applicant’s illegal stay was noted
briefly in her decision, specifically with reference to the applicant’s ability
to duly file her permanent residence application from her native Poland, as is
the norm, rather than waiting to be in Canada before doing so. In any event, it
is an undeniable fact that does not appear to be a determinative element in the
decision. This is not a question of general importance and it will not be
certified.
4. Was the decision contrary
to the instructions of Baker v. Canada (Minister of Citizenship), [1999]
2 S.C.R. 817, in particular, in that:
(a) Only humanitarian
considerations must be assessed;
(b) The hardships on the children must be
assessed, (Hawthorne v. Canada (Minister of Citizenship and Immigration)
(C.A.), where they are not mentioned in this case.
[40]
The Court
cannot, at the time of the judicial review of an immigration officer’s
decision, reassess the principles underlying Baker. The respondent’s
counsel is correct to point out that the assessment of humanitarian
considerations is an issue that is within the exclusive power of the
immigration officer who has the discretion to do so. As I said in my decision,
the applicant did not persuade me that the Federal Court’s intervention was
justified in this matter, since no error by the immigration officer justified
such intervention. It is indeed very clear on reading the decision that the
immigration officer examined the children’s best interests when she made her
decision. Humanitarian considerations are assessed on a case-by-case basis and
in no way can the proposed question be considered to be of general importance.
The question will therefore not be certified.
5. Did the failure to ask
additional questions to specify the “children” aspect in this matter amount to
a breach of the duty to act fairly in that the individual had not been informed
of the true grounds for the refusal and did not have the opportunity to
respond?
[41]
In my
opinion, the case law is very clear with regard to the applicant’s obligation
to establish the facts before the immigration officer, there is no uncertainty
in the case law with respect to the burden of proof which still applies to the
applicant. There is no minimum or maximum number of questions which must be
asked regarding the grounds for humanitarian and compassionate considerations.
It was the applicant’s obligation to set out clearly to the immigration officer
the intricate reasons underlying her wish to obtain a permanent resident visa
and how her specific relationship with her grandchildren could justify an
exception to the general rule. It is not the immigration officer’s
responsibility to bombard the applicant with questions so that she can
establish her right, but rather to ask questions to ensure that the applicant
can set out her reasons clearly. My review of the interview notes did not
persuade me, once again, that the immigration officer had erred. It was a
purely factual question and not one of general importance and the question will
therefore not be certified.
JUDGMENT
- The application
for judicial review is dismissed;
- No question will be certified.
“Pierre Blais”
Certified
true translation
Kelley
A. Harvey, BCL, LLB
Email this Content