Date: 20061017
Docket: IMM-1823-06
Citation: 2006 FC 1236
Toronto,
Ontario, the 17th day of October 2006
Present:
The Honourable Mr. Justice Harrington
BETWEEN:
SERGE KOUKA and
PATRICIA LOUPANGOU KOUKA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This
application for judicial review is based on the second application made by the
applicants to Citizenship and Immigration Canada on humanitarian and
compassionate grounds with risks claimed. The Koukas, Serge and Patricia, who
are husband and wife, arrived in Canada in March 2000 from their native
country, the Republic of Congo (RC), and both claimed refugee status on account
of their membership in the Lari ethnic group and their political involvement in
the Congolese Movement for Democracy and Integral Development (MCDDI).
[2]
Later that
year, the Refugee Division refused the claim. Following this refusal, the
Koukas did not file an application for leave and application for judicial
review of that decision. However, the legal steps taken by the applicants in
the hope of being granted status under Canadian law did not stop there. Mr. and
Mrs. Kouka both filed a pre-removal risk assessment application – PRRA
application – and an immigrant visa exemption application – H&C application
– with a view to obtaining permanent resident status in Canada.
[3]
While the
applicants were busy completing the administrative formalities regarding their
request to remain in Canada, a child was born of their union in December 2001.
[4]
In March
and April 2003, the Canadian authorities refused the two applications by Mr.
and Mrs. Kouka, namely, the PRRA application and the H&C application.
[5]
In January
2004, the Koukas persevered in their effort to be granted legal status in
Canada by filing a second PRRA application and a second H&C application.
The second H&C application was based on the following grounds: settling in
Canada, the best interests of the child and a real fear of returning to the
United States, the place of their point of entry to Canada, and to the RC.
[6]
Once
again, in June 2004, the applicants were met with a rejection by Canadian
authorities. Their second PRRA application was denied, and in August 2004 the
applicants had to leave Canada for the United States. Since then, the
applicants have lived in Buffalo, New York, and have another member of their
family following the birth of a new child on American soil in the fall of 2004.
[7]
The second
H&C application, which is the subject of this application for judicial review,
was denied by the immigration officer in March 2006.
ISSUES
[8]
The issues
are:
(a)
the
applicable standard of review;
(b)
did the
immigration officer breach the rules of procedural fairness and natural justice
in ruling on the disputed decision? and
(c)
did the immigration
officer exercise his discretion reasonably in making the disputed decision?
APPLICABLE STANDARD OF REVIEW
[9]
As set out
in subsection 11(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (IRPA), with regard to the issue of permanent resident status
in Canada, the state of the law is that a foreign national must obtain a
Canadian visa before coming to Canada. As a general rule, foreign nationals
must submit their visa applications at the Canadian immigration office in their
country of nationality, as indicated in paragraph 11(1)(b) of the Immigration
and Refugee Protection Regulations, SOR/2002-227.
[10]
In view of
the facts in the record, the applicants should ordinarily have filed a visa
application in the RC. However, as stated in subsection 25(1) of the IRPA, the
Minister may disregard the legal requirement if he or she believes that
humanitarian and compassionate considerations concerning the foreign national
require it, or if it is justified by public policy. In short, it is a case-by-case
assessment, which must be made on a discretionary basis. However, this
discretion is not unlimited. As the Supreme Court held in the leading case of Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
it must be exercised reasonably by the decision-maker. Consequently, in view of
the nature of the matter here, the applicable standard of review is
reasonableness simpliciter.
RULES OF PROCEDURAL FAIRNESS
AND NATURAL JUSTICE
[11]
The
applicants argue that in light of the decision, there is reason to doubt the
impartiality of the immigration officer in this matter. Firstly, this fear of
bias results from the fact that the immigration officer considered and ruled on
all the applications regarding the claim by the applicants for legal status in
Canada, namely, the PRRA applications and the H&C applications. Secondly,
they contend that the immigration officer did not properly perform his duties
when he assessed the second H&C application since, contrary to the
requirement that he assess the matter in view of all the evidence before him at
that time, the applicants maintain that the officer only dealt with the
correctness of the decisions he had already made.
[12]
Looking at
the record as a whole, I do not share that view. Before reaching a negative
conclusion on the second H&C application by Mr. and Mrs. Kouka, the
immigration officer was careful to review all aspects of the applicants’
situation since their arrival in Canada and inevitably referred to the
decisions previously made. It is true that the officer restated the decisions
rendered earlier in full in his text. On the other hand, it would be wrong to
say that his analysis of the second H&C application was based on past
inferences. The disputed decision was analyzed by the immigration officer, who
fully considered the new evidence put forward.
[13]
Furthermore,
in his reasons, the immigration officer referred to a comment he had made in an
earlier decision regarding the applicants, which unfortunately later proved to
be false. Despite this mistake, the officer was careful to make it clear in the
decision at issue here that this error had been corrected in a subsequent
decision involving the applicants. Consequently, it cannot be suggested that
the officer sought to justify himself when he made the decision on the second
H&C application, and that accordingly it breached the rules of procedural
fairness and natural justice, vitiating the decision that was rendered.
[14]
Although
foreign nationals are entitled to submit more than one H&C application and more
than one PRRA application in Canada, the most recent application must be based
on new facts; otherwise, what would be the point of submitting it? In short,
how would a new application be relevant? Such a procedure would undermine the
Canadian justice system, thereby breaching the spirit of the res judicata
rule, which prevails in judicial matters. In this case, the immigration officer
did not contravene any rule or principle when he restated findings already made
in an earlier decision or limited his assessment of the evidence to new
material before him. In that respect, the decision was correct, and the Court
should not intervene. It should be noted that in matters of natural justice and
procedural fairness, review of a disputed decision must be in accordance with
the correctness standard, as the Supreme Court held in C.U.P.E. v. Ontario
(Minister of Labour), [2003] 1 S.C.R. 539.
[15]
There is
also nothing wrong with the fact that it was the same immigration officer who
adjudicated at each stage of the applicants’ claim for legal status in this
country. In this regard, Mr. Justice Blais wrote the following at paragraph 16
of Nazaire v. Canada (Minister of Citizenship and Immigration), 2006 FC
416, [2006] F.C.J. No. 596 (QL): “In principle, the officer responsible for the
first PRRA application could be responsible for the second, but there are rules
to follow so that the officer does not fail to observe the principles of
natural justice and impartiality.” There is nothing in the record to indicate
that the immigration officer failed to comply with these rules. It should be
noted that the applicants did not establish that an informed person, viewing
the matter realistically and practically, and having thought the matter
through, would conclude that it was more likely than not that the
decision-maker would not decide fairly (Committee for Justice and Liberty et
al. v. National Energy Board et al., [1978] 1 S.C.R. 369).
[16]
After
reviewing the record, I find that the immigration officer did not deviate from
his duty to act with complete impartiality.
[17]
As regards
the issue of the best interests of the child, when an immigration officer
reviews a case based on humanitarian and compassionate grounds, he or she must
consider the interests of the
child directly affected, if
any, as stated in subsection 25(1) of the IRPA:
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 and compassionate considerations relating to them, taking
into account the best interests of a child directly affected, or by public
policy considerations.
[18]
In their
second H&C application, the applicants alleged that the risks threatening
the family, and in particular the lives of the children, had to do with health,
on account of the Ebola virus currently raging in the RC, and the inability of
the Congolese school system to offer suitable education for its nationals.
Further, they pointed to the high level of violence existing in their country
of origin. The region from which the applicants came, Pool in the RC, is known
as a particularly dangerous one.
[19]
Considering
the record, the immigration officer concluded that the Ebola virus and inadequate
educational services were not a situation unique to the applicants, but a
generalized one affecting the Congolese population at large. Furthermore, the
immigration officer ruled that it was possible for the applicants to find an
internal flight refuge in the RC and that, in the circumstances, this
alternative should be taken. It is worth noting here the exceptional nature of
the steps taken by Canada when it reviews the cases of foreign nationals
claiming permanent resident status on humanitarian and compassionate grounds.
[20]
As the
immigration officer indicated, the applicants appeared to have an alternative: [translation] “. . . it seems to me that
the applicants and their family are not obliged to live in the [Pool] area –
the applicants already lived in Pointe Noire, which, according to recent
information on the RC, is much less affected by violence.” In this case, the
possible protection offered to the applicants by their country of origin should
therefore be preferred.
[21]
As to the
violence raging in the RC, the immigration officer considered in his analysis
new documents submitted by the applicants on the socio-political situation in
their country of origin and sought to explain the weight which he gave them.
The immigration officer based his decision on a sound footing. Moreover, it is
worth noting that it appears from the disputed decision that the situation in
the RC is more peaceful since the last negative protection decision regarding
the applicants.
[22]
Consequently,
it is much more difficult for Mr. and Mrs. Kouka to claim the benefit of exceptions
available in Canada.
[23]
Baker,
supra, does
not hold that the presence of a Canadian child in a foreign family can, by
itself, justify admitting all the family members to Canada. On the contrary, as
Mr. Justice Décary wrote for the Federal Court of Appeal in Legault v.
Canada (Minister of Citizenship and Immigration) (C.A.), 2002 FCA 125,
[2002] 4 F.C. 358, [2002] F.C.J. No. 457 (QL):
[11] In Suresh,
the Supreme Court clearly indicates that Baker did not depart from the
traditional view that the weighing of relevant factors is the responsibility of
the Minister or his delegate. It is certain, with Baker, that the
interests of the children are one factor that an immigration officer must
examine with a great deal of attention. It is equally certain, with Suresh,
that it is up to the immigration officer to determine the appropriate weight to
be accorded to this factor in the circumstances of the case. It is not the role
of the courts [page 369] to reexamine the weight given to the different factors
by the officers.
[12] In short, the
immigration officer must be “alert, alive and sensitive” (Baker, para.
75) to the interests of the children, but once she has well identified and
defined this factor, it is up to her to determine what weight, in her view, it
must be given in the circumstances. The presence of children, contrary to the
conclusion of Justice Nadon, does not call for a certain result. It is not
because the interests of the children favour the fact that a parent residing illegally
in Canada should remain in Canada (which, as justly stated by Justice Nadon,
will generally be the case), that the Minister must exercise his discretion in
favour of said parent. Parliament has not decided, as of yet, that the presence
of children in Canada constitutes in itself an impediment to any “refoulement”
of a parent illegally residing in Canada (see Langner v. Minister of
Employment and Immigration (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to
appeal refused, [1995] 3 S.C.R. vii).
[24]
It appears
from the disputed decision that the immigration officer was alert, alive and
sensitive to the interests of the child when he reviewed the new evidence in
the record, taking the applicants’ arguments into account. Considering the case
law that the child’s interests are not conclusive in deciding an H&C application,
after weighing all the evidence in the record, the immigration officer
concluded that neither the children nor the parents in question would encounter
disproportionate hardship if they were to return to their country of origin and
file an application for a Canadian visa. Neither the Canadian Charter of
Rights and Freedoms nor the Convention on the Rights of the Child
were infringed.
[25]
There is
nothing in the applicants’ submissions or the documents filed with this Court
to indicate that there was any breach of the rules of procedural fairness or
natural justice in this case.
REASONABLENESS OF EXERCISE OF
DISCRETION BY IMMIGRATION OFFICER
[26]
First, it
is important to emphasize the following. It is well settled that before making
a decision, an immigration officer has a duty to review all the evidence in the
record. Nevertheless, that does not in any way mean that the officer must
reconsider evidence that was the subject of an earlier decision, as was
discussed somewhat earlier in this judgment.
[27]
When
dealing with a new H&C application, an immigration officer naturally takes
into account comments made in an earlier decision. On this point, Mr. Justice
Nadon wrote the following in Hussain v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 751 (QL):
[12] I should note that
before Mr. St. Vincent on their H&C application, the Applicants proceeded
on the basis that Mr. Hussain was a member of the MQM, notwithstanding the
clear findings made by the Refugee Board and by the PDRCC Officer to the
contrary. The Applicants seem to be of the view that if they
continue to add documents to the record, the credibility findings of the
Refugee Board are somehow going to be “reversed” or “forgotten”. In
my view, that is a mistaken view because the officer who hears an H&C
application does not sit in appeal or review of either the Refugee Board or the
PDRCC Officer’s decision. Thus, on the H&C application, Mr. St.
Vincent could not proceed on the basis that Mr. Hussain was an MQM member,
given the Refugee Board’s findings in that respect. In short, the
purpose of the H&C application is not to re-argue the facts which were
originally before the Refugee Board, or to do indirectly what cannot be done directly
– i.e., contest the findings of the Refugee Board.
[28]
The issue
that arises is whether the immigration officer reasonably assessed the new
evidence submitted by the applicants at the time of their second H&C application.
It should be pointed out that the immigration officer observed in his notes
that [TRANSLATION] “the representations made by the
applicants and their representative essentially set out the same basic facts as
the applicants put forward in their previous protection applications.”
[29]
The applicants
submit that the immigration officer made an error in determining the probative
value to be given to the specific arrest certificate involving Mr. Kouka. In
short, they allege that it should have been given more weight. However, it
should be noted that the immigration officer concluded that the certificate had
very little probative value in view of the following:
[TRANSLATION]
The document, alleged to be an
official document of the Congolese government, contains several spelling
errors. . . . The document asks each “citizen” to arrest the applicant, which
is unlikely since this type of document is ordinarily intended for peace
officers or law enforcement officers. It is unlikely that such a document would
be intended for ordinary citizens. . . . The applicant did not properly explain
how he obtained this document, and without any explanation of the many spelling
errors, I find that the document is unreliable and has very little probative
value.
Consequently, contrary to the
applicants’ allegations, the officer reached the conclusion he did for reasons
other than simply the spelling errors it contained. It should be borne in mind
that an immigration officer enjoys a measure of discretion. Accordingly, it is
up to the officer to determine the probative value to be given to material
submitted in evidence.
[30]
As appears
from the record in this case, I cannot conclude, as the applicants allege, that
the second H&C decision was unreasonable. The Court must show deference,
allowing the immigration officer the necessary latitude to assess the evidence.
Moreover, in the circumstances, there is no indication that the decision
dismissing the applicants’ application for an immigrant visa exemption is
unreasonable.
[31]
Mr.
Justice Joyal took this approach in a pertinent comment in Miranda v. Canada
(Minister of Employment and Immigration), (1993) 63 F.T.R. 81, [1993]
F.C.J. No. 437 (QL), which is reproduced at paragraph 18 of Carrillo v.
Canada (Minister of Citizenship and Immigration), 2004 FC 548, [2004]
F.C.J. No. 673 (QL):
[A]lthough one may isolate one
comment from the Board's decision and find some error therein, the error must
nevertheless be material to the decision reached. . . . It is true that artful
pleaders can find any number of errors when dealing with decisions of
administrative tribunals.
However, this does not ensure
that an application for judicial review will be granted and that the challenged
decision will be set aside.
[32]
Accordingly,
for all these reasons, the application for judicial review must be dismissed.
[33]
No serious
question of general importance was submitted to the Court for certification.
ORDER
THE COURT
ORDERS that the
application for judicial review be dismissed. There is no question for
certification.
“Sean Harrington”
M.J.Egan,
LLB
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