Momcilovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 79

Date: 20050120

Docket: IMM-5601-03

Citation: 2005 FC 79

BETWEEN:

                                                      KOSANKA MOMCILOVIC

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), which challenges the decision of an immigration officer (the "officer") dated July 15, 2003, wherein he found insufficient humanitarian or compassionate grounds to warrant exempting Kosanka Momcilovic (the "applicant") from the requirements of subsection 11(1) of IRPA.

[2]                The applicant requested that the officer's decision be quashed and the matter referred back to a different officer for re-determination.

Factual Background

[3]                The applicant is a citizen of Croatia who came to Canada in December 1997 on a visitor's visa to stay with friends. Her visa was extended until June 30, 1998, after which her request for a second extension was denied on August 26, 1998. The applicant was given a voluntary departure notice to leave Canada but failed to do so.

[4]                On April 16, 1999, the applicant made a claim for Convention refugee status. That claim and later the applicant's judicial review application were subsequently denied. The applicant's Post-Determination Refugee Claimants in Canada ("PDRCC") class application, which was filed under the former legislative regime, was denied on February 1, 2002.

[5]                On November 6, 2002, the applicant applied for a Pre-Removal Risk Assessment ("PRRA"), which was denied on June 13, 2003.

[6]                On May 24, 2002, the applicant submitted a humanitarian and compassionate ("H & C") application, seeking an exemption from the statutory requirement that she apply for permanent residence from outside of Canada. Her application was based on her establishment in Canada and her close ties to the family she works for and lives with in Canada, which is comprised of a father and two children, who were aged thirteen and twenty-three at the time of her H & C application. In her affidavit, the applicant stated that the mother of the family died in 1994 of cancer, the father travels a great deal as part of his job, and she has played a central role in the upbringing of the children, especially the youngest one, named Nadja. The applicant stated that she is Nadja's primary caregiver and over the past six years of living with the family, she has become an integral part of Nadja's emotional and everyday life. The applicant stated that Nadja has no immediate family who can care for her, as her brother does not have the time and her father travels for at least one week out of every month. The applicant stated that she has a mother-daughter relationship with Nadja and being removed from Canada would cause severe emotional distress for both her and Nadja.

[7]                In a letter dated March 5, 2003, Citizenship and Immigration Canada ("CIC") wrote to the applicant, advising her that her H & C application would be considered under the IRPA scheme, and asking for an updated application to be submitted within 30 days.

[8]                Along with a cover letter dated April 30, 2003, the applicant filed an updated application and written submissions setting out her grounds for H & C consideration. In addition to the relationship with Nadja and her employer's family, the applicant stated that her family members in Yugoslavia are very poor and struggling to make ends meet. She stated that they would be unable to support her or even provide a place to live, should the applicant be removed to that country. The applicant also emphasized how difficult it would be for her employer to find replacement help, given the difficulty he had in finding someone to help care for his family before the applicant came to Canada.

[9]                On July 15, 2003, the applicant's counsel faxed a letter to the officer asking him to refrain from making a final decision regarding the applicant's file before reviewing a psychological report that was being prepared to document the potential impact on Nadja of being separated from the applicant. The letter stated that the report was expected to be completed shortly after July 23, 2003.

[10]            The same day that the applicant's counsel advised CIC about the preparation of a psychological report, the officer reviewed the applicant's file and decided to refuse her H & C application. A letter to that effect, dated July 15, 2003, was drafted and sent to the applicant. The officer never saw the letter from the applicant's counsel regarding the psychological report.

[11]            After receiving the refusal letter, the applicant's counsel wrote to the officer on July 17, 2003, explained that his earlier letter had crossed with the officer's refusal letter, and asked the officer to reopen the applicant's file until after the psychological report was received and considered.

The Immigration Officer's Decision

[12]            The officer determined that the applicant had not demonstrated that she would face hardship which is unusual, undeserved or disproportionate if she was required to leave Canada and obtain a permanent resident visa from outside Canada in the normal manner.

[13]            The reasons for refusing the applicant's H & C application are found in the officer's Field Operating Support System ("FOSS") entry dated July 15, 2003.   

[14]            The officer acknowledged the applicant's claim that she plays a mother-figure role in Nadja and her brother's lives, and that she has demonstrated some connection to her community here. In the officer's view, however, although it would be difficult to replace the applicant, there are commercially available services for looking after children and a home. The officer also noted that the children's father is alive and lives with them.

[15]            Further, the officer noted that the applicant has family in Yugoslavia and a son in Belgrade and concluded that insufficient information had been submitted to show that she would not have a place to return to or that her relatives would be unable to assist her. In the officer's view, based on the applicant's personal characteristics and her experience, she would have very little difficulty in becoming reacquainted with Croatian culture.

[16]            Finally, the officer stated that he had considered the best interests of the children involved, and noted that they would still have support from their closest living blood relative, their father.

[17]            The officer concluded that the applicant's H & C request should be denied.

[18]            The applicant filed an application for leave and for judicial review of the officer's decision on July 22, 2003. Leave was granted on May 7, 2004 and on July 30, 2004, O'Reilly J. ordered that the applicant's removal from Canada be stayed pending final determination of her judicial review application.

Applicant's Submissions

[19]            The applicant submitted that the officer erred by failing to properly consider and by minimizing the best interests of Nadja, the young girl cared for by the applicant during the last six years. The applicant contended that her lack of biological relationship to Nadja is irrelevant, as she has developed a mother-daughter-like relationship with the child.

[20]            It is submitted that the officer's statement that the applicant can be replaced because her services are commercially available minimize and ignore Nadja's best interests. In the applicant's view, it is not in Nadja's best interests to lose the only mother figure she has known, after losing her natural mother to cancer at age 3. Given that Nadja is at a critical age and stage of development, the applicant submitted that it would be unusual, undeserved and disproportionate hardship to separate her from the applicant. The applicant further submitted that the officer's failure to address any of these considerations establish that he was not alive, alert or sensitive to Nadja's best interests, which is the standard required by the jurisprudence.

[21]            Further, the applicant submitted that by stating that her services were commercially available, the officer ignored evidence that it had been extremely difficult for the applicant's employer to find someone to care for the home and children before the applicant took on her current role in the household.

[22]            The applicant submitted that the officer's reasoning that since Nadja's father is alive and lives with her, separation from the applicant would not impact her best interests demonstrates that the officer failed to closely examine the best interests issue in the particular circumstances of this case. Furthermore, the applicant submitted that the officer completely ignored evidence that Nadja's father travels a lot for work, leaving Nadja in the applicant's sole care.

[23]            The applicant submitted that the officer erred by refusing to reconsider his H & C decision on the basis of the psychological report obtained by the applicant. The applicant argued that immigration officers are not functus officio and have the authority to reconsider their decisions on the basis of new evidence. In this case, the new evidence was a psychological report prepared by Dr. J. Pilowsky, dated July 22, 2003, which concluded that separating the applicant from Nadja would cause significant psychological hardship and would lead to Nadja developing depression and feeling abandoned. The applicant submitted that the report goes beyond a factual description of her relationship with Nadja, and it concluded in professional terms that separation would cause Nadja tremendous hardship and a psychological breakdown.

[24]            Finally, the applicant argued that the officer erred by ignoring evidence before him when he concluded there was insufficient information to show that the applicant would not have a place to return to or that her relatives were unable to assist her if she returned to Yugoslavia. The applicant stated that the written narrative which accompanied her H & C application stated that her relatives were very poor and unable to assist her financially and had no room for her to live with them. The applicant alleged that the officer had an obligation to interview the applicant or request further information if he had concerns about the sufficiency of the evidence on this issue.

Respondent's Submissions

[25]            The respondent submitted that the officer's reasons clearly show that he considered in detail the H & C factors outlined by the applicant and reached a reasonable conclusion, namely that the applicant would not face unusual, undeserved or disproportionate hardship if she were required to apply for a visa from outside Canada.

[26]            The respondent submitted that the H & C exemption is intended to be an extraordinary and discretionary measure. In the respondent's view, the applicant had failed to establish that the officer exercised discretion in an improper manner or made a decision contrary to law.

[27]            In the respondent's view the officer's FOSS notes entry demonstrated that the officer properly assessed the best interests of Nadja. The officer acknowledged that the applicant was viewed as a mother figure, that the family lost its mother tragically, but in the end concluded that the care and services provided by the applicant are commercially available. The respondent submitted that it was open to the officer to conclude that the underlying relationship between the applicant and the family was not filial.

[28]            The respondent emphasized that the applicant has no parental or custodial rights to Nadja, and consequently, argued that the principles established in Baker v. Canada (Minister of Citizenship and Immigration), _1999_ 2 S.C.R. 817 do not apply to this case.

[29]            The respondent submitted that the officer did not err in refusing to reopen the applicant's file in light of Dr. Pilowsky's psychological report. First, the respondent stated that the officer was functus officio and the cases relied on by the applicant do not establish that an immigration officer's negative H & C decision can be reopened in light of new evidence. Second, the respondent submitted that the report was prepared outside the window of time provided to the applicant to update her H & C application, therefore the officer was not obliged to consider it. In March 2003, CIC requested further information from the applicant, which was provided on April 30, 2003. The applicant does not explain why Dr. Pilowsky's report was prepared at such a late stage. The respondent emphasized that an applicant bears the onus of providing all relevant evidence in support of their request, and the lateness of the report failed to meet this obligation.

[30]            Looking at Dr. Pilowsky's report, which was not before the officer but was put before the Court, the respondent submitted that it merely confirmed applicant counsel's submissions regarding Nadja's best interests and does not add any new information. In the respondent's view, the contents of the report is not evidence of unusual, undeserved or disproportionate hardship.

[31]            The respondent submitted that the officer did not ignore evidence regarding the applicant's family's ability to support or assist her in Yugoslavia, but merely found the evidence insufficient to establish that an H & C exemption was warranted.

[32]            The respondent requested that this application be dismissed.

Relevant Statutory Provisions

[33]            Subsection 11(1) of IRPA requires that application for permanent residency be made outside of Canada:

[34]            Subsection 25(1) of IRPA provides for an exemption of this requirement on H & C grounds as follows:

Issues

[35]            The issues are:

1.          Did the officer err by failing to properly consider the best interests of the child involved?

2.          Did the officer err by refusing to reconsider his decision on the basis of new evidence?

3.          Did the officer err by ignoring relevant evidence before him?

Analysis and Decision

[36]            Preliminary Issue: Standard of Review

The standard of review applicable to decisions of immigration officers regarding H & C applications is reasonableness simpliciter: Baker, supra.

[37]            The reasonableness simpliciter standard was explained by Iacobucci J. in Law Society of New Brunswick v. Ryan, [2003]1 S.C.R. 247, 2003 SCC 20">2003 SCC 20 as follows (at paragraphs 48 to 49):

Where the pragmatic and functional approach leads to the conclusion that the appropriate standard is reasonableness simpliciter, a court must not interfere unless the party seeking review has positively shown that the decision was unreasonable (see Southam, supra, at para. 61). In Southam, at para. 56, the Court described the standard of reasonableness simpliciter:

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. [Emphasis added.]

This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and "look to see" whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons . . .

[38]            Issue 1

Did the officer err by failing to properly consider the best interests of the child involved?

In my view, this issue is best analyzed as two sub-issues. First, the threshold question of whether, given the lack of family relationship between the applicant and the child she alleges would be negatively affected by her removal from Canada, the officer's duty to assess the child's best interests was engaged. Second, if the officer was obliged to take into account Nadja's best interests, whether that analysis was reasonable, given the standard set out in Baker, supra, and the cases that follow it.

[39]            Was the duty to examine Nadja's best interest engaged in this case?

The applicant is not the parent of the child (Nadja) affected in this case, but is

a substitute for Nadja's natural mother who died from cancer. The applicant had been in this role for the past six years.

[40]            Baker, supra, dealt with the best interests of Ms. Baker's Canadian born children, and a review of the Baker, supra, decision establishes that the Court in that case was directing its mind to an applicant's Canadian born children.

[41]            There are some passages in Baker, supra, that can be read more broadly than referring only to the impact of removal on parent/child relationships. For example, at paragraph 67, which reads in part:

. . . In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself.

[42]            Further, at paragraph 73:

The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. . . .

[43]            I would note, however, that despite these passages, the Baker, supra, decision has a relatively narrow holding which does not directly assist the applicant.

[44]            However, it must be remembered that the Baker, supra, decision led to a drafting of IRPA's H & C provision so as to include an explicit legislative direction that H & C decision-makers must take into account the best interests of directly-affected children. For ease of reference, I will repeat subsection 25(1) of IRPA:

[45]            A plain reading of subsection 25(1) indicates that subsection 25(1) is broader than the best interests of a parent's own child. The section does not use wording such as "child of the marriage" or "the applicant's child". It refers to the best interests of a "child directly affected".

[46]            It must now be determined whether Nadja is a "child directly affected". The applicant has cared for Nadja for approximately the past six years and is her primary caregiver. The applicant is the only mother Nadja knows. The applicant lives in the home and is there for Nadja before she goes to school, is there when she returns, does her laundry and takes her on outings. There is no one else who cares for Nadja as her brother is twenty-three years of age and her father travels a great deal for work. The applicant states that Nadja is now thirteen years of age and is very dependent on her.

[47]            A letter written by Nadja which accompanied the H & C application speaks of her relationship with the applicant. It reads in part as follows:

Five years ago Kosanka came to Canada to help my family with the cooking and cleaning our house. She came and did just that but also while spending her time in my family she grew to be a family member. I think she knows me the best out of my whole family and knows my habits and personality.

[48]            On the facts of this case, I am of the opinion that Nadja is a "child directly affected" and hence, her best interests must be properly assessed.

[49]            Was the officer's analysis unreasonable?

What constitutes a reasonable H & C assessment was summarized by Evans J. in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, 2002 FCA 475 (in minority reasons concurring in the result) at paragraphs 31 and 32:

Counsel agreed that, under the legal test established by Baker and Legault for reviewing officers' exercise of discretion, the refusal to grant Ms. Hawthorne's H & C [humanitarian and compassionate grounds] application could be set aside as unreasonable if the officer had been "dismissive" of [the child's] best interests. On the other hand, if the decision-maker had been "alert, alive and sensitive" to them (Baker, at para. 75), the decision could not be characterized as unreasonable.

It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at para. 13). Rather, the interests of the child must be "well identified and defined" (Legault, at para. 12) and "examined ... with a great deal of attention" (Legault, at para. 30). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at para. 75) in the exercise of discretion under subsection 114(2) [of the Immigration Act].

[50]            The task of the officer making an H & C decision was described by Décary J.A., for the majority, at paragraph 6 of Hawthorne, supra, as follows:

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.

[51]            The portions of the officer's FOSS notes which could possibly relate to his "best interests" analysis read as follows:

Subj works in Cda as a care giver for a family in Canada and counsel states that she has become like a 'mother' to the children whom she looks after. Counsel states that these children lost their mother in a very tragic way and that subj is a major female figure to these children. Counsel states that these children will suffer hardship if subject has to leave Cda...While I acknowledge that finding a suitable replacement for Kosanka Momcilovic will be difficult, it is known that there are commercially available services that can provide a similar line of assistance and care to children and look after a home. In addition it must be remembered that these children have their father who is alive and lives with them...I have considered the best interests of children it is noted that these children have their closest living blood relative, their father, in Cda. Subject request for waiver of s.s. 11(1) of IRPA is refused . . .

[52]            Applying the wording in Hawthorne, supra, to this case, the officer's decision was reasonable if he was alert, alive and sensitive to Nadja's best interests by well-identifying and defining the likely degree of hardship that would be caused by the applicant's removal.

[53]            It is my opinion that the officer's decision was not reasonable. The officer's analysis refers to "the children" without identifying their separate interests, needs or relationship to the applicant. There is no analysis done of Nadja's young age and her view of the applicant's role in the home and no mention is made of the father's extensive travelling and that the applicant is Nadja's primary caregiver. There was no recognition that the degree of hardship to be suffered by Nadja will far exceed that of her brother. Without recognizing and analysing these facts, it cannot be said that the officer was "alert, alive and sensitive" to Nadja's interests, since the nature of these interests and the likely degree of hardship she would suffer was not defined. In my view, on the facts of this case, it is not simply a situation where the solution is to go and find another suitable caregiver. The relationship between the applicant and Nadja should have been analyzed. I am of the view that the officer's decision with respect to the best interests of Nadja was unreasonable and must be set aside.

[54]            Because of my finding on Issue 1, I need not deal with the other issues raised by the applicant.

[55]            The application for judicial review is therefore allowed and the matter is referred back to a different officer for re-determination.

[56]            The parties shall have one week from the date of this decision to submit any proposed serious question of general importance for my consideration for certification and five days for any submissions in reply.

                                                                               "John A. O'Keefe"                

J.F.C.                     

Ottawa, Ontario

January 20, 2005

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-5601-03

STYLE OF CAUSE: KOSANKA MOMCILOVIC

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   August 5, 2004

REASONS FOR ORDER OF                      O'KEEFE J.

DATED:                     January 20, 2005

APPEARANCES:

Lorne Waldman

FOR APPLICANT

Matina Karvellas

FOR RESPONDENT

SOLICITORS OF RECORD:

Lorne Waldman

Toronto, Ontario

FOR APPLICANT

John H. Sims, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT