Fonseca v. Canada (Minister of Citizenship and Immigration), 2005 FC 709

Date:    20050517

Docket:    IMM-1172-04

Citation:    2005 FC 709

BETWEEN:

                                            CLEVER GIOVANNI DIAS FONSECA

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

MacKAY D.J.:

[1]                This is an application for judicial review of a decision dated January 13, 2004, denying an application made under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA" or the "Act"), for an exemption from the requirement to obtain an immigrant visa from outside Canada, on the basis of humanitarian and compassionate ("H & C") grounds. The applicant seeks an Order setting aside the decision and referring his application for reconsideration by a different officer of the respondent Minister's department.

[2]                Mr. Dias Fonseca, a 35-year-old citizen of Costa Rica, arrived in Canada as a visitor on June 21, 1999 and on August 4, 1999 he filed a claim for Convention refugee protection. In preparing his application he was assisted by Ms. Cardenas, a permanent resident. A departure order was issued against him in May 2000. Later his refugee application was heard, and it was refused in September 2001.

[3]                Earlier that year, in 2001, the applicant began dating Ms. Cardenas and on June 16, 2001 they were married, soon after she had divorced her husband. From June 2001 the applicant has been a caring stepfather to Ms. Cardenas' daughter and a caring father to a second daughter, born to the family in February 2002.

[4]                After the negative decision on his refugee application, the applicant filed a pre-removal risk assessment (PRRA) application. On May 30, 2002, he also completed his application for admission to Canada on H & C grounds.

[5]                At an interview on January 11, 2003 the applicant's PRRA application was refused and he was ordered to report for removal from Canada on February 11, 2003. When he failed to appear for removal a warrant for his arrest was issued.

[6]                In August 2003 the applicant and his family moved to the home of his brother-in-law. He did not advise immigration officials of his change of address, and his evidence is that he did arrange for his mail to be delivered to a post office box. On October 30, 2003, a letter was sent to him at his original address, requesting information with respect to his H & C application, but that was returned to immigration authorities marked "moved".

[7]                In January 2004 the applicant and his family moved again. On January 13, 2004 an immigration officer telephoned the applicant's place of employment and spoke briefly to the applicant who quickly handed the phone to his employer to assist him as a translator. When asked if he had moved, the applicant replied affirmatively, through his employer, but when asked for his new address and telephone number the applicant stated he did not know.

[8]                By letter dated January 13, 2004, received by the applicant at his place of employment three days later, his H & C request for exemption from the requirement to obtain a visa abroad was rejected. That decision is the subject of this judicial review.

The impugned H & C decision

[9]                The letter of January 13, 2004 expressed the refusal of his application in simple terms

On January 13, 2004, a representative of the Minister of Citizenship and Immigration reviewed the circumstances of your request and decided that an exemption will not be granted for your application.

[10]            No reasons were expressed in the letter. The record does include a summary of the applicant's circumstances and a "Decision and Rationale", by the representative of the Minister. The summary of circumstances notes, incorrectly, that "the applicant met his wife in February 2001." On his statement submitted with his H & C application the applicant stated that he met his wife in July 1999, shortly after his arrival in Canada. The Decision and Rationale also includes the following:

I make a negative decision in this case. Based on the information on file and from the interview with the applicant through his boss, I am not satisfied the couple are residing together in a bona fide relationship. I find it odd that a person does not know where they reside after living in a place for three months or their telephone number. I also find it hard to believe that the applicant's boss also did not know the applicant's address or telephone number.

It is my opinion that both the applicant and his boss deliberately wished to withhold this information from me.

I recognize and acknowledge that the couple have a child together and that Mr. Dias Fonseca has played some role in the raising of Ms. Cardena's daughter from a previous relationship.

[...]

Insufficient evidence has been provided to satisfy me that the couple are in a genuine marriage and not one entered into for the purposes of immigration. The subject has not demonstrated sufficient humanitarian and compassionate grounds or hardship to waive the requirements of subsection 11(1) of IRPA.

The issues

[11]            Two issues are raised by the applicant:

            i)          Did the officer err in consideration of the evidence concerning the genuine nature of the applicant's marriage?

            ii)         Did the officer fail to consider the best interests of the applicant's children?

I turn to the issues in turn.

            The applicant's marriage

[12]            In the reasons for the refusal the officer's notes err in fact in describing when the applicant met his wife, stating it was in February 2001 rather than in July 1999. In fact they married some 19 months after they met, not four months as the officer stated, though they only started dating in February 2001. That error, and the sequence of events perceived by the officer as set out in the third last paragraph of her "Decision and Rationale", i.e. a negative CR decision, a negative PRRA decision, an order to report for removal, his failure to do so and the issuance of a warrant, then referring to his marriage as "hastily" entered, appear as factors underlying the conclusion that the officer was not satisfied the marriage was bona fide. Those factors and the applicant's failure to provide his current address and telephone number during the telephone conversation through his employer led to the conclusions that the officer was "not satisfied that the couple are residing together in a bona fide relationship", and that there was insufficient evidence provided "that the couple are in genuine marriage and not one entered into for the purposes of immigration." In those circumstances the officer found there were not sufficient H & C grounds or hardship to waive the requirement under subsection 11(1) of IRPA to acquire a visa from outside Canada.

[13]            The "Decision and Rationale" makes no reference to any of the evidence filed by the applicant in support of his marriage as genuine, it errs in calculation of the time the applicant and his wife knew each other before their marriage, and it relies heavily on the failure of the applicant or his employer to provide a current address and telephone number when the officer thought it was reasonable for both to be able to provide that information. The latter failure, by the applicant and his employer, in my opinion is not relevant to the issue of whether the marriage was genuine, particularly when there is no record of any question asked by the officer during the telephone conversation concerning any doubt she may have had about the genuine nature of the marriage.

[14]            Failure to raise any question about that matter, in my opinion, was contrary to guidelines of the respondent's ministry that in assessing sponsored applications, the applicant and the sponsor should be given an opportunity to respond to any concerns. While the guidelines may not be law, in the circumstances of this case, failure to provide that opportunity resulted in a lack of fairness in the process, and a decision, in regard to the applicant's marriage, that was unreasonable. Guidelines may assist the Court in assessing whether "the decision was an unreasonable exercise of the H & C power" (per L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 72).

            Best interests of the children

[15]            The applicant urges that the brief reference to his children in the immigration officer's rationale, quoted earlier at paragraph 10 of these reasons, does not meet the obligation to be alert, sensitive and alive to the best interests of his children, as set out in Baker, supra, and now by statute (IRPA, subsection 25(1)). The respondent, relying upon the decision of the Court of Appeal in Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 (C.A.), urges that the onus is on the applicant to adduce evidence of the best interests of a child, and in this case it is said that was not done. In written "Details of Relationship" a statement the applicant included in his H & C application, he simply referred to his love of the children, without submissions indicating how their best interests would be adversely affected if he were not permitted to apply from within Canada for permanent residence.

[16]            At the conclusion of the hearing counsel were invited to file written submissions about the jurisprudence concerning "the best interests of a child" following Baker, supra, and in light of section 25 of IRPA, enacted after that decision, a provision different from that in the Immigration Act applicable before IRPA was enacted and in force. The previous legislation, which was applicable for purposes of the decision in Owusu, supra, had no provision specifically setting a statutory obligation of an immigration officer to consider the best interests of a child when considering an H & C application, as IRPA now does in subsection 25(1) in the following terms:

[17]            In Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), the Court of Appeal made clear that the best interests of the children are important factors, though not the determinative factor in an H & C decision. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.) that Court also affirmed that, in considering such an application, careful and sympathetic assessment must be given to the best interests of the children, and it is not sufficient merely to refer to those interests or the relationships with children involved. By its decision in Owusu, supra, that Court acknowledged that in considering an H & C application, the officer concerned must be alert, alive and sensitive to the best interests of the children when it is clear the applicant indicates that he or she relies on their best interests as a factor. The applicant has the burden of establishing that he relies on that factor, and of establishing a claim that their best interests would be adversely affected if the decision is not favourable to the applicant.

[18]            In Bolanos v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1331 (T.D.) (QL), Mr. Justice Kelen found that the immigration officer, when refusing a father's H & C application, had considered the best interests of a child, born in Canada of parents who, though separated, continued to share custody. In obiter dicta Kelen J. commented, in part,

15    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.

[19]            While subsection 25(1) may indicate no "more detailed assessment of the best interests of the child" is necessary than was required by the decision in Baker, supra, in my opinion it does clearly establish a statutory duty to consider those interests, even if the onus to provide evidence of those interests remains that of the applicant. In Richards v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 35 (T.D.) (QL), at para. 9, Mr. Justice Phelan, having found that the immigration officer concerned had not assessed the evidence about the child's interests, wrote in part:

[9]    While it is true that a stronger case might have been made out, the respondent had a statutory obligation to take account of the best interests of the child. The Court of Appeal in Owusu held that if there is no evidence of the best interests of the child, an immigration officer is under no obligation to ferret out such evidence. In this case, there was evidence to support a consideration of the best interests of the child.

[20]            In this case the applicant urges that there was information before the officer both about the genuine nature of the applicant's marriage, and about the interests of the children. It is submitted in the latter regard that the officer was made aware of the two children of the family, both born in Canada, of the applicant's relationship and attachment to them, that the applicant is a citizen of Costa Rica and his wife, a permanent resident of Canada, is a citizen of Ecuador, and that the applicant was working full time earning an income which was the sole financial support of the family. For the respondent it is urged the applicant did not provide any detailed submissions concerning the best interests of his child or his wife's first child, and no evidence indicating specifically what hardship would be experienced by the children should the applicant be removed from Canada. In those circumstances the respondent urges that the officer met her obligation to assess the children's interests by noting the existence of the applicant's own child and that the applicant played some role in raising the wife's first daughter.

[21]            In my opinion, there can be no doubt that the officer was aware of the applicant's children at the time of her decision, even if the applicant did not specifically set out his reliance on their best interests as a factor to be considered in his H & C application. That awareness clearly raised the statutory duty to consider those interests. In her rationale for the decision the only reference to the children, as set out in para. 10 above is brief, i.e. "I recognize and acknowledge that the couple have a child together and that Mr. Dias Fonseca has played some role in the raising of Ms. Cardenas' daughter from a previous relationship."

[22]            That statement in my opinion demonstrates no consideration of the best interests of the children. Though the evidence before her may not have been the best, clearly there was some evidence on which the children's best interests could be assessed. Failure to assess those interests constitutes an error in law, both in terms of subsection 25(1) of IRPA, and the standard set out by the Supreme Court of Canada in Baker, supra.

Conclusion

[23]            Since in my opinion the immigration officer in this case erred in considering the genuine nature of the marriage of the applicant and his wife, and also erred by failing to demonstrate that the best interests of the children were considered in refusing the application for consideration on H & C grounds, the application for judicial review is allowed and the impugned determinations are set aside.

[24]            Counsel are invited to consult and to advise the Court on or before May 27, 2005 whether they, or one of them, proposes a question pursuant to paragraph 74(d) of IRPA.

[25]            An Order will thereafter go, with or without a certified question, allowing the judicial review, setting aside the impugned decisions, referring the H & C application for reconsideration by a different representative of the respondent Minister, and setting out any question raised by counsel that may be considered by the Court to be a serious question of general importance.

                                                                         "W. Andrew MacKay"   

Deputy Judge

Ottawa, Ontario

May 17, 2005.

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-1172-04

STYLE OF CAUSE: Clever Giovanni Dias Fonseca

and

The Minister of Citizenship and Immigration

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   February 22, 2005

REASONS FOR ORDER

AND ORDER OF    The Honourable Mr. Justice W. Andrew MacKay

DATED:                     May 17, 2005

APPEARANCES:

Ms. Judy Welikovitch                                        FOR APPLICANT

Ms. Sally Thomas                                              FOR RESPONDENT

SOLICITORS OF RECORD:

West Toronto Community Legal Services

Toronto, Ontario                                               FOR APPLICANT

Mr. John H. Sims, Q.C.

Deputy Attorney General of Canada                  FOR RESPONDENT