Date: 20060928
Docket: IMM-5883-05
Citation: 2006 FC 1154
Ottawa, Ontario, September 28,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
OLGA VAKRUCHEV
VITA
VAKRUCHEV
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicants’ request that they be allowed to process their application for
permanent residence from within Canada (an “H&C”
application) was denied. This is the judicial review of that negative decision.
II. Facts
[2]
The
principal Applicant, Olga Vakruchev, and the minor Applicant, her daughter
Vita, are Russians who moved to Israel. Olga Vakruchev became
pregnant and allegedly suffered abuse at the hands of the future father of her
daughter Roberta. For this reason, the Applicants fled to Canada claiming
that Israeli police were of no assistance.
[3]
The
Applicants entered Canada in 1999 and applied for refugee protection.
Olga Vakruchev had her daughter Roberta on March 8, 2000. Roberta is a Canadian
citizen.
[4]
Olga
Vakruchev withdrew the refugee claim because she feared that the Israeli
government would consider that her refugee claim was a denunciation of the
state of Israel.
[5]
Olga
Vakruchev then submitted an H&C application based upon the risk that she
and her children would face upon a return to Israel and upon the
best interests of the children to remain in Canada. The
children were both doing well in school.
[6]
The
H&C Officer requested a Risk Opinion as to the risk if the Applicants were
returned to Israel. The Officer
was, after considering the Risk Opinion and the rebuttal submission of the
Applicants, satisfied that the Risk Opinion (which held that they would not be
subjected to risk) was reasonable. The Officer found that the principal
Applicant had provided insufficient evidence on this issue.
[7]
The
H&C Officer was satisfied that, considering the children’s age and exposure
to the language and culture of Israel through their mother, they would not
suffer unusual, undeserved or disproportionate hardship if returned to Israel.
[8]
The
H&C Officer also addressed the issue that the Israeli Consulate would not
renew Olga Vakruchev’s passport because she had filed a refugee claim. The
Applicants had requested that the H&C Officer contact the Greater Toronto
Enforcement Centre for information on her file and for information regarding
the Israeli Consulate’s actions. The Officer found that she did not need the
file and that the onus to establish the H&C grounds rested with the
Applicants.
III. Analysis
[9]
The
standard of review on an H&C application has been well established in Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 as being
reasonableness simpliciter.
[10]
The
Applicants raise four (4) issues which they say justifies a quashing of the
H&C decision:
·
failure
to perform an independent risk assessment;
·
failure
to consider other risks;
·
failure
to consider the best interests of the children; and
·
failure
to consider Establishment factors presented which were out of the Applicants’
control.
A. Risk
Assessment
[11]
An
H&C application is an exception to the normal rule governing applications
for permanent residence. It is also not an alternative to a refugee claim nor
can it be used as an “end run” on the refugee process. In this case it is
important to bear in mind that the principal Applicant had withdrawn her
refugee claim and then filed for an H&C citing some of the same concerns as
in her refugee claim.
[12]
The
H&C Officer is not an expert in risk assessment; that is the function of a
PRRA Officer who provided the Risk Opinion. The H&C Officer fulfilled her
duty by considering the Risk Opinion and the Applicants’ rebuttal. There is no
basis for finding that this was a “rubber stamp” exercise.
B. Other
Risks
[13]
While
the Applicants made allegations about the Israeli Consulate which they say the
H&C Officer failed to consider, there is no objective evidence to support
those allegations. The Officer quite properly held that the obligation to
establish H&C grounds rested on the Applicants. While it may be that in
some cases it would be incumbent on the Officer to examine files within the
Respondent’s system, there is no evidence that this was necessary in this case.
[14]
The
issue of Russian women in Israel experiencing domestic abuse was not
ignored. That issue was raised in the Risk Opinion and was reviewed by the
H&C Officer.
C. Best
Interests of the Children
[15]
While
the Applicants criticize the H&C Officer for failure to assess the impact
on the children of leaving Canada, the Applicants failed to produce any
compelling evidence or make submissions which would undermine the Officer’s
conclusions.
[16]
Other
than evidence that the children were doing well in school, the Applicants did
not show some disproportionate, unusual or undeserved impact by moving to Israel. The fear
that the father might harm one or both of the children was not reasonably
established.
D. Establishment
Factor
[17]
The
Applicants claim that the Officer failed to consider that they were in Canada longer than
they might otherwise be because of events beyond their control – the refusal of
Israel to renew
their passports. The Applicants somehow think that this is a factor in their
favour.
[18]
There
is no merit to this argument. It suggests that the Applicants would have
otherwise left Canada sooner when, in fact, their actions are all
designed to stay here permanently.
[19]
For
all of these reasons, this application for judicial review will be dismissed.
There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review will be dismissed.
“Michael
L. Phelan”
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