Date: 20030905
Docket: IMM-6539-02
Citation: 2003 FC 1032
Ottawa, Ontario, this 5th day of September, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
JONATHAN CHRISTIAN BOLANOS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Immigration Counsellor D. Araujo, dated December 4, 2002, denying an application for an exemption from the requirement to obtain an immigrant visa in subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") on humanitarian and compassionate grounds ("H & C application").
[2] The sole issue in this application is whether Immigration Counsellor Araujo erred by failing to take into account the best interests of the applicant's Canadian-born child as required by subsection 25(1) of the IRPA, which states:
Humanitarian and compassionate considerations
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.
[Emphasis added.]
Séjour pour motif d'ordre humanitaire
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.
FACTS
[3] The applicant is a 25 year-old Mexican citizen who arrived in Canada in 1998 and, along with other members of the Bolanos family, claimed refugee status. His claim was denied and leave for judicial review was denied. The applicant and his family members applied for membership in the Post-Determination Refugee Claimants in Canada class ("PDRCC") under the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act"). Their applications were converted to Pre-Removal Risk Assessment ("PRRA") applications when the IRPA came into force and were outstanding at the date of the Immigration Counsellor's decision.
[4] In November 1998 the applicant met Ms. Mandy Atfield, a Canadian citizen, and the two began a relationship. The couple had a son on December 28, 1999 and were married in January 2001. Ms. Atfield was not eligible to sponsor the applicant for permanent residence at that time because she was under 19. Instead the applicant elected to file an H & C application under subsection 25(1) of the IRPA.
[5] The applicant and Ms. Atfield were interviewed by the Immigration Counsellor in connection with the application on May 15, 2002. Counsellor Araujo later learned from Ms. Atfield's father and the British Columbia Ministry of Children and Families that the couple had separated. She brought them in for a second interview on November 28, 2002, during which the couple confirmed they were no longer co-habiting, but stated they had no plans to divorce. They reached a verbal agreement to share custody of their son, who resides with the applicant and his family. Ms. Atfield is responsible for taking the child to pre-school each morning. Afterwards, she spends time with the child before returning him to the Bolanos' home.
[6] In a letter dated December 4, 2002, the Immigration Counsellor informed the applicant of her decision to deny his H & C application. In her Report to File, the Immigration Counsellor summarized the key points of the application and the rationale for her decision. She noted the interests of the applicant's child favoured a waiver of subsection 11(1), but also considered several factors that did not support a waiver of subsection 11(1). Those factors were listed at page 3 of her decision:
· Applicant has received due process under the refugee program.
· Applicant is currently separated from his Canadian wife.
· Applicant's parent's care for their grandchild while the applicant is working.
· No known medical problems that would impede his return to Mexico.
[11] Counsellor Araujo's report also included a one and half page description of the rationale for her decision. The majority of her analysis focussed on the applicant's relationship with his wife and child. In her report, Counsellor Araujo stated that marriage alone is not a sufficient ground for granting an H & C application and noted the couple's separation. While Ms. Atfield considered herself the sole contributor to the problems in the marriage, Counsellor Araujo indicated that she was "not satisfied that Mr. Bolanos is making a concerted effort to mend his marriage." With respect to the couple's child, the Immigration Counsellor described the verbal agreement between the applicant and Ms. Atfield and noted that the applicant's parents and extended family help care for the child. She then assessed the hardship that would be suffered by the applicant's son if the applicant were removed at page 4 of her report:
It is accepted that both Mr. Bolanos, his family and Ms. Atfield have a strong emotional bond with their son/grandson. They have all shared in parenting and meeting all the child's everyday needs. I have considered the impact on the applicant's son, if his father's application for permanent residence from within Canada is refused. I note that it is the parents who must decide what the best interest of the child. The applicant's son is approximately three years old and not yet of an age where he would recognize or experience ties to any country at this time. I am satisfied that he is young enough and that he would be able to adjust with little difficulty to a move to Mexico if his parents so choose. If the decision is made by the applicant to have his son remain in Canada, I am satisfied that the child will still receive the loving, caring and nurturing environment from his mother with which he is familiar.
ANALYSIS
[12] The applicant argues the Immigration Counsellor committed a reviewable error by failing to be "alert, alive and sensitive" to the best interests of his child as required by subsection 25(1) and the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The relevant portion of Baker is found at paragraph 75, where L'Heureux Dubé J. stated:
[F]or 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.
[13] According to the applicant, the Immigration Counsellor's analysis was flawed because she assumed that he would be removed to Mexico and did not consider the possibility that it is in the best interests of his child for him to remain in Canada. Moreover, he claims the decision was unreasonable as there is nothing to support the Immigration Counsellor's finding that his son will continue to receive a "caring and nurturing environment from his mother" if the applicant is removed. He notes Ms. Atfield told the Immigration Counsellor that she was seeing a therapist, is on welfare and admitted to having a "short fuse".
[14] The respondent submits that while the applicant is trying to couch it differently, his challenge to the Immigration Counsellor's decision is really with respect to the weight she accorded to the evidence before her. The respondent contends that as it is not the function of this court to re-examine the weight given to the evidence by Counsellor Araujo, there is no basis upon which this decision can be set aside.
[15] It is agreed upon by the parties that the applicable standard of review for discretionary decisions on H & C applications is reasonableness simpliciter, as stated by L'Heureux-Dubé J. in Baker, supra at paragraph 62. This means the Court will not set aside the decision of Counsellor Araujo simply because it would have reached a different conclusion. To succeed, the applicant must demonstrate the Immigration Counsellor failed to consider relevant evidence or reached an unreasonable conclusion.
[16] Applying these principles to the case at bar, it is apparent the applicant is in essence asking the Court to re-weigh the evidence. There is no legal basis to the applicant's claim that Counsellor Araujo erred by not explicitly discussing the possibility that it is in the best interests of his child for him to remain in Canada. It can be safely assumed that officers are aware that a child is generally better off living in Canada with both of his or her parents than living in Canada without one of his or her parents. To require this fact to be mentioned explicitly in every decision would elevate form
above substance, precisely what Décary J.A. warned against in Hawthorne v. Canada (Minister of Citizenship and Immigration), 24 Imm. L.R. (3d) 34, 2002 FCA 475 at paragraphs 3-6 when he stated:
[T]o insist as a matter of law that an immigration officer spell out expressly that she had considered the best interests of the child before examining the degree of hardship to which the child would be subject, is to elevate form above substance.
The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
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.
[17] Counsellor Araujo's analysis of the best interests of the applicant's child complied fully with the guidance provided by Décary J. in Hawthorne. She analysed the degree of hardship the child would suffer if the applicant were removed, and considered both the possibility of the child remaining in Canada and the possibility of him accompanying the applicant to Mexico. Not surprisingly, she concluded the child's best interests favoured the non-removal of the applicant. Nonetheless, she was of the opinion that the degree of hardship the child would suffer would be relatively low and when weighed together with other factors was not enough to warrant a waiver of subsection 11(1) of the IRPA. It is apparent from her extensive analysis of the issue that Counsellor Araujo was "alert, alive and sensitive" to the best interests of the applicant's child and did not minimize the child's interests in a manner inconsistent with Canada's humanitarian and compassionate tradition. Nothing in the law required Counsellor Araujo to accord greater weight to the best interests of the applicant's son than to the other factors she considered. While it is an important part of the analysis, this factor is not a trump card and will not always be decisive. As Décary J.A. stated in Legault v. Canada (Minister of Citizenship and Immigration), 212 D.L.R. (4th) 139, 2002 FCA 125 at para. 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 [at the Trial level], 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), 184 N.R. 230 (F.C.A.), leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740, August 17, 1995). [Emphasis added.]
[18] Therefore, while I may have weighed the relevant factors differently, this alone is not a ground upon which I could justifiably intervene.
[19] The applicant argues the case at bar should be distinguished from Hawthorne because that case dealt with subsection 114(2) of the former Act, which had substantially different wording than subsection 25(1) of the IRPA. According to the applicant, the law now requires a more detailed assessment of the best interests of a child directly affected by an H & C application than was expressed in the decisions made in the wake of the decision in Baker, supra. I am inclined to disagree with the applicant. Subsection 25(1) is a codification of the decision in Baker and nothing in its wording indicates that Parliament intended to require a more detailed assessment of the best interests of the child than the one set out by the Supreme Court in that case. As such, cases concerning subsection 114(2) of the former Act that post-date Baker remain applicable to H & C applications made under the IRPA.
[20] The only remaining issue is the reasonableness of the Immigration Counsellor's finding that the applicant's son will continue to receive a "caring and nurturing environment from his mother" if the applicant is removed. This determination was made by Counsellor Araujo after two interviews with Ms. Atfield and a review of the relevant circumstances. She was aware of Ms. Atfield's problems and specifically mentioned some of them in her report. Even so, she obviously felt Ms. Atfield was in a position to offer her son a caring and nurturing environment regardless of the applicant's removal. The Court does not have first-hand access to Ms. Atfield and is not in a position to second-guess the Immigration Counsellor's assessment of her parenting abilities.
[21] For these reasons, this application for judicial review is dismissed. No questions were submitted for certification by either party and this application does not raise any questions suitable for certification. No question will be certified.
ORDER
THIS COURT HEREBY ORDERS THAT:
This application for judicial review be dismissed.
"Michael A. Kelen"
Judge
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6539-02
STYLE OF CAUSE: JONATHAN CHRISTIAN BOLANOS v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: AUGUST 12, 2003
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE KELEN
DATED: September 5, 2003
APPEARANCES:
Mr. Christopher Elgin FOR THE APPLICANT
Mr. Keith Reimer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon FOR THE APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20030905
Docket: IMM-6539-02
BETWEEN:
JONATHAN CHRISTIAN BOLANOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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