Date: 20060828
Docket: IMM-514-06
Citation: 2006 FC 1032
Ottawa, Ontario, August 28, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
BALJIT KAUR SANDHU, RAVSHER
SINGH SANDHU and
HARLEEN KAUR SANDHU
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mrs. Baljit
Kaur Sandhu is a citizen of India. Ravsher Singh Sandhu and Harleen Kaur
Sandhu are her son and daughter. After the death of her husband, Mrs. Sandhu
and her children applied for permanent residence status in Canada. Her
application was sponsored by her brother, a permanent resident of Canada. As
Mrs. Sandhu did not meet the requirements of the family class in relation to
her brother, she applied for consideration on humanitarian and compassionate
grounds. A visa officer at the Canadian High Commission in New Delhi refused
the application on the ground that insufficient humanitarian and compassionate
considerations existed to justify exempting Mrs. Sandhu and her family from the
applicable criteria under the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act). On this application for judicial review of that
decision I find that the officer's decision withstands a somewhat probing
examination and was not unreasonable. The application for judicial review is
therefore dismissed.
[2] Two
issues are raised on Mrs. Sandhu's behalf; first, it is alleged that the
officer failed to consider properly the best interests of her children, Ravsher
and Harleen. Second, it is said the officer fettered her discretion by
requiring Mrs. Sandhu to demonstrate "overwhelming" humanitarian and
compassionate factors in order to overcome her inadmissibility.
Did the Officer Reasonably
Consider the Best Interests of the Children?
[3] It
is well settled law that the decision of an officer to exempt an applicant from
criteria or obligations contained in the Act is discretionary. The exercise of
that discretion is to be reviewed on the standard of reasonableness simpliciter.
A reasonable decision is one that can stand up to a somewhat probing
examination. The inquiry to be made is whether the reasons given for the
decision as a whole reveal a line of reasoning that could reasonably lead the
decision-maker from the evidence to the decision.
[4] I
begin my consideration of this issue by setting out a number of settled
principles of law.
[5] First,
subsection 25(1) of the Act provides:
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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.
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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.
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[6] Thus,
when considering a request made pursuant to subsection 25(1) of the Act, an
officer delegated to exercise the Minister’s discretion is legally obliged to
take into account the best interests of a child directly affected by the
decision.
[7] Second,
the officer must be "alert, alive and sensitive" to the best
interests of the child and must not minimize their interests. However, it is
up to the officer to determine the weight to be given to the best interests of
a child. It is not for the Court to re-examine the weight to be given to the
factors considered by the officer. The presence of children and their
interests do not mandate a favourable decision. See: Legault v. Canada
(Minister of Citizenship and Immigration), [2002] 4 F.C. 358 at paragraphs
11 and 12; Owusu v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 at paragraph 5.
[8] Third,
the applicant bears the onus of satisfying the officer that the humanitarian
and compassionate factors identified by the applicant are sufficient to warrant
an exemption. If no evidence is provided to support the claim for such relief,
an officer may determine the claim to be baseless. There is no legitimate
expectation that an applicant will be interviewed, so all pertinent information
should be contained in the written application. See: Owusu, cited
above, at paragraphs 5 and 8.
[9] Fourth,
it is not fatal to a decision if the officer does not expressly state that he
or she considered the best interests of a child. In the words of the Federal
Court of Appeal, that would elevate form over substance. See: Hawthorne v.
Canada (Minister of Citizenship and Immigration), [2003] 2
F.C. 555 at paragraph 3.
[10] Finally,
the best interests of a child are not assessed in a vacuum. An officer may be
presumed to know that living in Canada can offer a child many opportunities.
The officer's task is to consider the circumstances of each case, and determine
the likely degree of hardship caused by refusing the exemption. The officer
then weighs any hardship together with all other relevant factors. See: Hawthorne,
cited above, at paragraphs 5 and 6.
[11] In
the present case, the submissions made by counsel in the humanitarian and
compassionate application were brief:
1. Baljit’s
parents and brother, Gursharan Singh Chohan, are residents and citizens of Canada.
Gursharan, his family and his parents reside at 797 Martindale Blvd. N.E., Calgary,
Alberta. He has one other brother, Jatinder Singh Chohan, in India.
2. Baljit
Kaur Sandhu is a citizen of India. She was recently widowed as her husband,
late Bhupinder Singh Sandhu, passed away on January 12, 2004 as a result of a
brain tumour. As a consequence, Baljit is residing alone in India with her 2
children, Ravsher Singh Sandhu (D.O.B. October 14, 1992) and Harleen Kaur
Sandhu (D.O.B. January 30, 1994).
3.
While Baljit has one other brother, Jatinder, remaining in India, he is
not financially able, as a farmer, to support his widowed sister. He resides
at Sultan Wing Pind Amritsar and she is at Village Bhanier Ludher. The family
in Canada is in better financial circumstances as Gursharan Singh Chohan works
at IKO Industries Ltd. as a machine operator and grosses over $80,000.00 per
annum on taxable income. Collectively, he and his wife earn in excess of
$100,000.00 per annum.
4.
Equally important to the financially [sic] needs of Baljit and
her children, are the social needs as well. With the death of their father,
the children are suffering without having other relatives to help with the
burden of parenting. Such parenting would be done by the grandfather (Jaswant
Singh), grandmother (Jasbir Kaur), and Gursharan, all of whom reside together
at their own home at 797 Martindale Blvd. N.E., Calgary, Alberta. Nor are the
grandparents able to spend significant time in India as they are working in Canada
to also send money home to Baljit. Although all of the family member can send
money back to support Baljit, they cannot be there personally.
5.
The family is very close to each other and they have significant
concerns with the emotional and psychological well being of Baljit and the
children after the loss of Bhupinder. They would like the family to be
together to share the burden of the loss. As a family unit operating in Canada
in one household they could share the burdens of life together.
6.
We would also note that the late Bhupinder Sandhu has already applied
for immigration under the independent selection process in late 2001. He has
applied as a skilled electrical supervisor and had received a file number
B043572502. With his passing in January, 2004 the application is no longer
capable of being accepted as the principal applicant has died.
[12] No
more specific information was provided with respect to the emotional and
psychological well-being of the children. For example, there were no statements
from their relatives in Canada as to the closeness of their relationship, no
copies of correspondence exchanged between family members were provided and no
evidence of any specific difficulty the children were encountering was
provided.
[13] Mrs.
Sandhu was interviewed by the visa officer. The Computer Assisted Immigration
Processing System (CAIPS) notes record that after reviewing Mrs. Sandhu's
financial situation in India the following was discussed:
Why does she need to go to Cda?
Needs to go for the financial status as she sees no future for her children
here. There they can do well. Why is it different now than when her husband
was alive? He could work and earn more than she but she is only running a
grocery store. She also needs to be at home for her children. Her parents
were sending money when her husband was alive and they are sending money now.
What is different now? Now she is really dependent on them before they sent
money for special functions. If she goes to Cda, her parents will have to
support her fully and their financial burden will be much higher than before.
She will also work – but at least they will be there to help her. Her brother
in India is not financially very sound, he can only support his own family.
She will work at any job – she has matriculation but has no work experience.
She speaks a little English. She states that she can understand very well but
she can overcome her lack of English. If she is not allowed to go to Cda, she
doesn’t know she wants to go because of the children. Why is it better for her
children in Cda? If you work there, you are paid better. The children will be
able to go to better schools.
[14] The
officer filed an affidavit in which she swore that the CAIPS notes were
accurate and true. I accept that to be the case, and indeed counsel for Mrs.
Sandhu did not raise any issue with respect to the correctness of matters that
are recorded in the CAIPS notes. However, counsel for Mrs. Sandhu did observe
that the notes may not be exhaustive of everything that was discussed.
[15] In
rejecting the application, the officer considered the degree of establishment
in India of Mrs. Sandhu and her children, their family in India and Canada, and
the financial concerns raised by Mrs. Sandhu. The officer noted that those
financial concerns, combined with some concern for her children's education,
appeared to be Mrs. Sandhu's primary concerns. The officer wrote, "[t]he
applicant did not express any emotional or social needs by being separated from
her family. She only expressed financial concerns and also concerns for the
educational future of her children". The officer then noted that Mrs.
Sandhu owned a grocery store (to provide some independent income for herself)
and that she has "a brother and family in India as well as paternal and
maternal aunts, uncles and their families".
[16] The
officer's reasons are admitted by counsel for the Minister to be
"sparse". However, the reasons noted that no emotional or social
needs warranting a humanitarian and compassionate exemption were identified by
Mrs. Sandhu. The officer’s reasons also noted that Mrs. Sandhu's concerns were
financial in nature and that her children would receive a better education in
Canada.
[17] In
my view, the officer's reasons are tenable (barely) to support her conclusion
that insufficient humanitarian and compassionate circumstances were identified
and established to warrant an exemption from the requirements of the Act. The
material establishing humanitarian and compassionate factors put before the
officer was itself scant, and the presence of children who would benefit from
more advantages in Canada did not trump all other factors so as to require a
positive decision.
[18] Mrs.
Sandhu also argued that the officer failed to consider whether Mrs. Sandhu is a
de facto family member.
[19] Section
8.3 of Chapter 4 of the Overseas Processing Manual (OP 4) directs officers as
follows with respect to de facto family members:
8.3 All other classes
The following guidelines describe
some situations where positive consideration might be warranted. They may be
helpful when deciding whether the circumstances presented by the applicant are
sufficiently compelling to warrant an exemption from R70(1)(a), (c), and (d).
They will not answer all eventualities, nor can they be framed to do so. These
guidelines are to assist officers in assessing H&C situations. Officers
cannot be restricted by guidelines; they are obliged to consider all the
information they have.
_______________________________________________________
Note: Where it is decided
by the visa office to proceed with such cases on H&C grounds, the category
MUST be changed to HC1 at the selection (step 2) stage, to satisfy the
requirement that the Minister report to Parliament annually on the processing
of cases under A25(1).
_______________________________________________________
De facto family members
De facto family members
are persons who do not meet the definition of a family class member. They are,
however, in a situation of dependence that makes them a de facto member
of a nuclear family that is either in Canada or that is applying to immigrate.
Some examples: a son, daughter, brother or sister left alone in the country of
origin without family of their own; an elderly relative such as an aunt or
uncle or an unrelated person who has resided with the family for a long time.
Also included may be children in a guardianship relationship where adoption as
described in R3(2) is not an accepted concept. Officers should examine these
situations on a case-by-case basis and determine whether humanitarian and
compassionate reasons exist to allow these children into Canada.
Consider:
• whether
dependency is bona fide and not created for immigration purposes;
• the level of dependency;
• the stability of the
relationship;
• the length of the
relationship;
• the impact of a
separation;
• the
financial and emotional needs of the applicant in relation to the family unit;
• ability
and willingness of the family in Canada to provide support;
• applicant’s
other alternatives, such as family (spouse, children, parents, siblings, etc.)
outside Canada able and willing to provide support;
• documentary
evidence about the relationship (e.g. joint bank accounts or real estate
holdings, other joint property ownership, wills, insurance policies, letters
from friends and family);
• any
other factors that are believed to be relevant to the H&C decision.
[20] In
my view there are three answers to the submission concerning de facto
family members advanced on Mrs. Sandhu’s behalf. First, the issue was not
raised before the officer and I do not believe the officer can be faulted for
failing to have specifically considered this argument. Second, the failure of
Mrs. Sandhu to raise before the officer any emotional need or dependency is
inconsistent with a de facto family relationship. Mrs. Sandhu and her
children are a nuclear family in India. The children have, living in the same
state with them, a grandmother, at least two aunts, an uncle and two cousins.
Their situation lacks the isolation and level of dependency indicated by the
examples cited in section 8.3 of OP 4. Finally, the concept of a de facto
family member is simply one manifestation of circumstances that may merit
humanitarian and compassionate relief. The officer considered all of the
aspects of the humanitarian and compassionate claim advanced and there was, in
my view, no need for a separate analysis of the claim against the backdrop of de
facto family members.
Did the Officer Fetter her
Discretion?
[21] The
officer’s reasons do refer to there being "no overwhelming humanitarian
and compassionate circumstances" to overcome inadmissibility. On Mrs.
Sandhu's behalf it is argued that by requiring demonstration of
"overwhelming" circumstances, the officer violated both the letter
and the spirit of section 25 of the Act.
[22] I
agree that the use of the word "overwhelming" was unfortunate.
However, the officer was required to determine whether the circumstances were
sufficiently compelling to warrant the exceptional remedy of an exemption from
the requirements of the Act. From a full reading of the officer’s reasons I am
not persuaded that the officer held the applicants to an unfairly high standard
of proof. It would, in that circumstance, be microscopic to set aside the
officer's decision because of the use of a single, inappropriate word.
[23] For
these reasons, the application for judicial review will be dismissed. Counsel
did not pose any question for certification and I agree that no question of
general importance arises on this record.
[24] In
closing, I wish to acknowledge that the situation of Mrs. Sandhu and her
children is one that attracts sympathy. There is nothing in the Act or
Regulations that prevent them from filing a new application for permanent
resident status, and supporting that application with better evidence that may
attract a positive decision.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The
application for judicial review is dismissed.
“Eleanor R. Dawson”
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