Date: 20061026
Docket: IMM-4234-05
Citation: 2006 FC 1292
Ottawa,
Ontario, October 26, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
PENG
CHENG LI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of a visa officer stationed
at the Canadian Embassy in China, denying the applicant an exemption on humanitarian
and compassionate (H & C) grounds, from the requirements of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”)
and accompanying Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the
“Regulations”).
BACKGROUND
[2] Peng Cheng Li (the “applicant”) is a citizen of China who is currently 18 years old.
[3] In 1993, the applicant’s parents divorced and he remained with his father
who was granted custody. The applicant’s mother remarried in 1994 and moved
from Harbin, where the family resided,
to Beijing, but visited with her son
regularly. Then in 1998, the applicant’s mother and her new husband immigrated
to Canada.
[4] The applicant’s mother returned to China to visit with him in 2000, 2001, 2004 and 2005. She also kept in touch
with him through frequent telephone calls and occasional letters.
[5] Between her second and third visit, the applicant’s mother was awarded
custody and began the process to sponsor him to come to Canada under the family class in 2002.
[6] On November 8, 2002, the applicant’s application for a permanent resident
visa was received at the Canadian Embassy in Beijing (the “Embassy”).
[7] In a letter dated January 2, 2003, the Embassy advised the applicant that
he could be excluded from the family class because he was not officially
declared as a dependent by his mother and examined at the time of her
application. The applicant’s mother and stepfather have both stated that they
were advised by the immigration consultant they hired to help them with their
application process that they did not have to include her son because she did
not have custody. In the same letter, the applicant was therefore asked to
submit any humanitarian and compassionate reasons why his application should
not be refused.
[8] In response, a letter dated February 10, 2003 was submitted by the
representative of the applicant’s parents, together with supporting documentary
and photographic evidence of the applicant’s situation in China and the relationship with his mother. The information
provided focused on the difficult financial situation of the applicant’s
father; the applicant’s current living situation (since there is no school in
the rural area where his father resides, he has to live in the nearby city of
Harbin with his unemployed aunt and young cousin in a very small apartment);
the adverse effect of a denial of his application on his education; the
willingness and capacity of the applicant’s mother and stepfather to provide
financial and emotional support; as well as the close relationship between the
applicant and his mother.
[9] In a letter dated April 8, 2003, the applicant’s application for permanent
residence in Canada was denied.
[10]
An application for judicial review of that decision was subsequently
filed by the applicant. In Li v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 2055, Mr. Justice John A. O’Keefe allowed
the judicial review and ordered that the matter be referred to a different
officer for re-determination.
[11]
On January 7, 2005, visa officer Emmanuelle Gentile (the
“officer”) reviewed the applicant’s file and determined that an interview was
required.
[12]
On February 3, 2005, a letter was sent to the applicant,
requesting that he and his father attend an interview at the Embassy on April
5, 2005. The letter sent to the applicant also stated that the applicant’s
mother should accompany them to the interview if she was in China.
[13]
Both the applicant’s father and mother accompanied him.
They were all interviewed by the officer and the Computed Assisted Immigration
Processing System (the “CAIPS”) notes detail the questions and answers of the
interview. Additional documentary evidence supporting the relationship between
the applicant and his mother was also submitted, as requested by the Embassy.
The interview lasted one hour and thirty minutes and at the conclusion, the
officer informed the applicant and his parents that she had to review the file
with her manager because she could not make the final decision.
[14]
In a letter dated May 6, 2005, the applicant’s application
for a permanent resident visa was once again denied. It is this decision that
is the object of the current judicial review.
ISSUES FOR CONSIDERATION
[15]
The central issue in this application for judicial review
is whether the officer made a reviewable error in her assessment of the
humanitarian and compassionate considerations as pertains to the applicant.
More specifically:
1) Did the
officer take into consideration all relevant factors in her assessment of
humanitarian and compassionate considerations, in particular as relates to the
best interests of the child?
2) Did the
officer take into account any irrelevant factors in her assessment of
humanitarian and compassionate considerations?
PERTINENT LEGISLATION
[16]
The following sections from the Act and the Regulations are
relevant to this application.
Immigration and Refugee Protection Act
11. (1) A foreign national must, before entering Canada, apply to an
officer for a visa or for any other document required by the regulations. The
visa or document shall be issued if, following an examination, the officer is
satisfied that the foreign national is not inadmissible and meets the
requirements of this Act.
(2) The officer may not issue a visa or other document to
a foreign national whose sponsor does not meet the sponsorship requirements
of this Act.
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.
|
11. (1) L’étranger doit, préalablement à son entrée au
Canada, demander à l’agent les visa et autres documents requis par règlement,
lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas
interdit de territoire et se conforme à la présente loi.
(2) Ils ne peuvent être délivrés à
l’étranger dont le répondant ne se conforme pas aux exigences applicables au
parrainage.
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.
|
Immigration and Refugee Protection Regulations
117. [...]
(9) A foreign
national shall not be considered a member of the family class by virtue of
their relationship to a sponsor if
[…]
(d) subject to subsection (10), the sponsor
previously made an application for permanent residence and became a permanent
resident and, at the time of that application, the foreign national was a
non-accompanying family member of the sponsor and was not examined.
|
117. […]
(9) Ne sont pas
considérées comme appartenant à la catégorie du regroupement familial du fait
de leur relation avec le répondant les personnes suivantes :
[…]
d) sous
réserve du paragraphe (10), dans le cas où le répondant est devenu résident
permanent à la suite d’une demande à cet effet, l’étranger qui, à l’époque où
cette demande a été faite, était un membre de la famille du répondant
n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle.
|
STANDARD OF REVIEW
[17]
The decision in Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817, in which Justice Claire
L’Heureux-Dubé engages in a detailed pragmatic and functional analysis before
deciding on reasonableness simpliciter as the proper standard, remains the
leading case for the standard of review of decisions made on H & C grounds.
[18]
More
recently, in Terigho v. Canada (Minister of Citizenship and Immigration),
[2006] F.C.J. No. 1061, Justice
Richard Mosley discussed the standard of review for such decisions at
paragraphs 6 and 7:
The appropriate
standard of review for decisions made under section 25 is reasonableness.
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 in the statutory scheme as an exception, the fact the
decision-maker is the Minister, and the wide discretion evidenced by the statutory
language: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Reasonableness is not about whether the decision-maker came to the
right result. As stated by Justice Iacobucci in Canada
(Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at
paragraph 56, an unreasonable decision is one that, in the main, is not
supported by any reasons that can stand up to a somewhat probing examination.
Accordingly, a court reviewing a conclusion on the reasonableness standard must
look to see whether any reasons support it. See also Law Society
of New Brunswick v. Ryan, 2003 SCC 20 at paras 55-56.
[19]
Accordingly, the decision of the officer in this case must
be reviewed on a standard of reasonableness.
ANALYSIS
[20]
First, it is important to understand that subsection 25(1)
is an exceptional remedy for applicants who fail to meet the requirements of
the Act. The test for determining whether an exception should be made under H
& C grounds was articulated in Irimie v. Canada (Minister of Citizenship
and Immigration), [2000] F.C.J. No. 1906, at paragraph 26, where Justice Denis
Pelletier wrote that the humanitarian and compassionate exemption process “is not designed
to eliminate hardship; it is designed to provide relief from unusual,
undeserved or disproportionate hardship”.
[21]
Other
important factors to keep in mind are that first, the onus on an application for
an
H & C exemption, is on the applicant (Owusu
v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 139)
and second, it is not for this Court to re-weigh the relevant factors in
reviewing the exercise of ministerial discretion (Suresh v. Canada (Minister
of Citizenship and Immigration), [2002] 1 S.C.R. 3).
1. Did the officer take into consideration all relevant
factors in her assessment of humanitarian and compassionate considerations, in
particular as relates to the best interests of the child?
[22]
There is no question that, when a child is involved, the
‘best interests of the child’ are a key factor in the determination of H &
C grounds. The leading case on this point is Baker, above, where Justice
L’Heureux-Dubé wrote at paragraph 75:
[…]
The principles discussed above indicate that, for the exercise of the
discretion to fall within the standard of reasonableness, the decision-maker
should consider children's best interests as an important factor, give them
substantial weight, and be alert, alive and sensitive to them. That
is not to say that children's best interests must always outweigh other
considerations, or that there will not be other reasons for denying an H &
C claim even when children's interests are given this consideration. However,
where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the
Minister's guidelines, the decision will be unreasonable.
[23]
In Legault v. Canada (Minister of Citizenship and Immigration),
[2002] F.C.J. No. 457 (FCA), Justice Robert Décary pulled together the lessons
of Baker and Suresh, above, to suggest the following, at
paragraphs 11 and 12:
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 to reexamine the weight given
to the different factors by the officers.
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. […]
[24]
In proceeding with the analysis of the best interests of
the child, the applicant submits that the officer made an error in not properly
considering the applicant’s emotional relationship with his father and his
aunt, as well as his emotional dependency on his mother.
[25]
Having reviewed the transcripts of the interviews conducted
by the officer, as well as her CAIPS notes, I would have to agree with the
respondent that the officer did consider the applicant’s relationships with the
various adults in his life, even if she did not proceed with a detailed
analysis of the emotional significance of each. Whether she gave this
particular factor ‘sufficient’ weight is not for this Court to determine.
[26]
The applicant further submits that the officer erred in not
following the instructions of Justice O’Keefe, in the previous judicial review decision,
to proceed with a comparative analysis between the applicant’s situation in China and his potential situation in Canada.
[27]
The respondent suggests instead that a more proper
understanding of the best interests of the child analysis is found in the
decision of Deputy Judge Barry L. Strayer in Yue v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 914, where he notes at
paragraphs 9 and 10:
[…] With respect I do not
understand the decision [Li v. Canada (MCI)] to mean that, in such
circumstances, the determining factor in the child's best interests is the
comparative advantage of living abroad or living in Canada and that alone. I am
in respectful agreement with what Justice James Russell said in Vasquez v.
Canada (MCI), [2005] F.C.J. No. 96
at paras 41-43:
41. What the
Applicants are really saying in this case is that the children would obviously
be better off in Canada than in Mexico or Honduras and, because they would be
better off, Canada's international Convention obligations dictate that factor
be given paramountcy in an H&C Decision that involves both parents and
children.
42. I
do not think that law, logic or established authority dictates the result urged
upon the Court by the Applicants.
43. On
the facts of this case, there is nothing to suggest that the children would be
at risk or could not successfully re-establish themselves in Mexico or Honduras. The fact that the
children might be better off in Canada in terms of general comfort and future opportunities
cannot, in my view, be conclusive in an H&C Decision that is intended to
assess undue hardship.
I do not understand the jurisprudence to require that the
"best interests of the child" be assessed separate and apart from the
question of hardship nor that it should be determinative if it indicates that
the person in question would be more comfortable or have better opportunities in
Canada. […]
[28]
The respondent’s argument, and indeed Deputy Judge
Strayer’s decision, are further informed by the Federal Court of Appeal’s
decision in Hawthorne v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 1687, where Justice Décary wrote, at
paragraph 5, that the best interests of the child could not be assessed “in a
vacuum” and that an officer could be “presumed to know that living in Canada
can offer a child many opportunities” than they would not otherwise have.
Justice Décary further stated at paragraph 6:
To simply require that the officer determine
whether the child's best interests favour non-removal is somewhat artificial -
such a finding will be a given in all but a very few, unusual
cases. For all practical purposes, the officer's task is to
determine, in the circumstances of each case, the likely degree of hardship to
the child caused by the removal of the parent and to weigh this degree of
hardship together with other factors, including public policy considerations,
that militate in favour of or against the removal of the parent.
[29]
Having considered the relevant jurisprudence, I must concur
with the respondent that the officer was perfectly justified in considering the
applicant’s situation in China in comparison to other children in China. While the applicant might be ‘better off’ living with his mother in
Canada than he would be living with his father in China, such is not the relevant test, particularly since the result of such a
test would be almost a foregone conclusion. As Deputy Judge Strayer noted in Yue,
above, at paragraph 9:
Yet
it would be easy to assume that, because this applicant says she would like to
join her mother in Canada and, from what we know of the
comparative standards of living it would, in an ideal world, be
"nicer" for her to come to Canada. […]
[30]
While I have no doubt that the officer was aware of the
fact that the applicant’s standard of living would be much higher in Canada
than it would be in China, what she did not find was that his situation in China
amounted to unusual
or disproportionate hardship that would justify an exemption from the Act, as
per the requirements of subsection 25(1). Based on the evidence before me, I
cannot find such a conclusion to be unreasonable.
2. Did the officer take into account any irrelevant factors
in her assessment of humanitarian and compassionate considerations?
[31]
The applicant also submits that any mistake the mother may
have made in not declaring him is irrelevant to what is in the child’s best
interests, so that the failure of the applicant’s mother to declare him as a
dependent at the time of her application should not have been considered by the
officer in her determination of humanitarian and compassionate grounds.
[32]
In response, the respondent argues that the failure of the
mother to declare the applicant in her own application for permanent residence
is a relevant factor to be considered in a humanitarian and compassionate
assessment, as it falls within the realm of public policy considerations, as
indicated in Yue and Hawthorne, above.
[33]
I agree with the respondent that it was not improper for
the officer to include the failure of the mother to properly declare the
applicant as one public policy factor to be considered in the humanitarian and
compassionate assessment.
[34]
Therefore, this Court concludes that the officer did not
make a reviewable error in her assessment of humanitarian and compassionate
grounds as pertains to the applicant.
[35]
Counsel for the applicant proposed questions for
certification:
1.Given that
the reasons for judgment of O’Keefe J. were based on the finding of mixed law
and fact that the situation of the Applicant required a comparison between
Canada and China in terms of the Applicant’s future interest, and given that
the analysis of that comparison or a refusal to comply with the judicial
directive required to be, along with any other reasons, in the reasons of the
visa officer, did the visa officer in this case flout the Order of the Court by
carrying out neither duty and is that a reviewable error?
2. Was the
comparison referred by O’Keefe J. in his Reasons intended to be of an
artificial nature or one that truly represented the best interests of the child
regarding his future?
3. Given
the acknowledgement by the Minister’s Representative at the hearing that the
application had subject to a penumbral effect caused by the mother’s
misrepresentation under ss. 117(9)(d), was the inclusion of this factor a
matter of irrelevance with respect to the decision of the visa officer?
a) Whether
the inclusion of ss. 117(9)(d) creates an unreasonably high bar impossible to
overcome in the context of an H&C application assessed outside of Canada made by an
undeserving infant?
b) In
addition, whether the inclusion of implied misrepresentation by the sponsor as
a relevant factor in an overseas H&C application creates an undue advantage
for similar applicants with a history of misrepresentation who have applied
inland? In other words, whether the Applicant who applies for H&C
consideration outside of Canada enjoys a disadvantage which does not otherwise
burden those who apply inside Canada?
[36]
In my view, the three questions are referring to the
particular facts of this case and do not involve a question of general
importance. Therefore, no question will be certified.
JUDGMENT
1. The application
is dismissed;
2. No question
for certification.
“Pierre
Blais”