Dockets: IMM-5046-11
IMM-5047-11
IMM-5048-11
Citation: 2012 FC 437
Ottawa, Ontario, April 16,
2012
PRESENT: The Honourable Madam Justice Gleason
BETWEEN:
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LUIS ENRIQUE GARCIA RODRIGUEZ
JOSE MIGUEL GARCIA RODRIGUEZ
JAIME GARCIA RODRIGUEZ
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
These
files involve judicial review applications made by Pedro Jose Garcia Obispo
[Mr. Obispo] and his three adult children, Luis Enriqué, José Miguel and Jaime
Garcia Rodriguez [the Applicants] in which they seek to have the Court review
and set aside the decisions of the immigration officer [the Officer] at the
Canadian Immigration Section in Santo Domingo, Dominican Republic dated June
26, 2011, in which the Officer refused to grant the Applicants permanent
resident status as members of the family class [the Decisions].
[2]
Mr.
Obispo sought to sponsor his sons as members of the family class. Mr. Obispo
was born in the Dominican Republic and is now a Canadian citizen. He was
sponsored by his ex-wife in 1995. At that time, he did not declare that he had
dependent children in his application for permanent residence. Consequently,
none of the Applicants was examined for application purposes. Pursuant to
section 117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations], this failure precluded the Applicants from
later being considered as members of the family class. That provision provides
in relevant part:
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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)
… 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.
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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) …
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.
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[3]
The
Applicants applied under section 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the IRPA] for a discretionary exemption from
the requirements of section 117(9)(d) of the Regulations on a humanitarian and
compassionate [H&C] basis. The Officer rejected their H&C requests in
the Decisions that are the subject of these applications for judicial review.
[4]
The
Decisions consist of three letters and the Officer’s Computer Assisted Immigration
Processing System [CAIPS] notes. The Officer sent three separate but identical
letters to the Applicants, rejecting their applications. In the letters, the
Officer concluded that H&C considerations did not justify granting an
exemption because the Applicants’ responses to questions concerning their
father “did not demonstrate an ongoing relationship with him.” The Officer also
stated that in coming to his decision, he took into consideration the
established relationships the Applicants had with their mother, grandparents
and siblings in the Dominican Republic.
[5]
In
the CAIPS notes, the Officer underlined the inconsistencies in the answers
given by the three Applicants in relation to when their father immigrated to
Canada, how often he visited them in the Dominican Republic (one brother saying
it was every year, another every four years and the third only once in the last
nine years) and regarding whether Mr. Obispo lives in a house or an apartment.
The Officer also noted that the only photos presented were from a visit by Mr.
Obispo to the Dominican
Republic
in 2010 and then from many years prior. The Officer further pointed to the
Applicants’ difficulty in providing details about their father's life and the
length of time he waited to sponsor them. He referred to the evidence before
him regarding monies provided by Mr. Obispo to his sons. He also stated that he
considered the Applicants’ current living situation in the Dominican
Republic,
referred to the fact they were employed or in school, noted the strength of
their relationships with family members in the Dominican Republic and
concluded that there was no evidence to suggest any duress.
[6]
The
Applicants and Mr. Obispo argue that the Decisions should be set aside,
submitting that they are unreasonable. They assert principally two reasons in
support of this contention: first, they claim the Officer failed to consider
the purpose of section 117(9)(d) of the Regulations and, second, they argue
that the Officer failed to appropriately consider the evidence before him. The
Respondent, on the other hand, argues that the Decisions are reasonable, that
the Officer properly exercised the discretion he possessed under section 25(1)
of the IRPA, considered the evidence and came to a conclusion that was open to him.
The Respondent also requests that Mr. Obispo be struck from the style of cause,
asserting he lacks standing to bring these applications for judicial review.
Standing of Mr. Obispo
as an Applicant
[7]
Dealing
first with the standing issue, subsection 18.1(1) of the Federal Courts Act,
RSC 1985, c 41 [FCA] provides that anyone “directly affected by the matter in
respect of which relief is sought” may bring an application for judicial
review. The Respondent argues that because Mr. Obispo was not an applicant before
the Officer and because the Decisions were not addressed to him, he is not
appropriately named as an applicant in this application for judicial review.
The Respondent cites Douze v Canada (Minister of Citizenship and
Immigration), 2010 FC 1337, [2010] FCJ No 1680 [Douze] and Carson
v Canada (Minister of Citizenship and Immigration), (1995), 95 FTR 137 [Carson]
in support of the proposition that individuals who sponsor family members for
landing on H&C grounds lack standing to bring judicial review applications
in respect of decisions made on the H&C applications. Mr. Obispo and the
Applicants argue that Mr. Obispo is a proper applicant as it was his failure to
list the Applicants in 1995 that gave rise to their disqualification and to the
need for an H&C exemption from the requirements of section 117(9)(d) of the
Regulations. They cite no authority in support of their position.
[8]
In
my view, the decisions in Douze and Carson are persuasive
authority, and should be followed. As Justice Tremblay-Lamer noted in Douze at
para 15, the test for determining whether parties are directly affected, within
the meaning of subsection 18.1(1) of the FCA, is “whether the matter at issue
directly affects the party’s rights, imposes legal obligations on it or
prejudicially affects it directly”. None of the foregoing may be said of Mr.
Obispo in respect of the Decisions at issue in this judicial review
application. His rights and obligations are not directly affected as it is only
his sons who sought an exemption from the requirements of the Regulations.
Accordingly, the Respondent’s request to strike Mr. Obispo’s name from the
style of cause in these matters will be granted.
Standard of Review
[9]
Both
parties assert that the standard of review to be applied by this Court in the
present applications is that of reasonableness. I concur. The recent decision
of the Federal Court of Appeal in Kisana v Canada (Minister of Citizenship
and Immigration), 2009 FCA 189 at para 18, [2010] 1 FCR 360 [Kisana]
is dispositive in this regard and confirms that the reasonableness standard
applies to the review of decisions of immigration officers on H&C
applications made in the context of family sponsorship applications.
[10]
The
reasonableness standard is a highly deferential one and necessitates that the
reviewing court not intervene unless it is satisfied that the reasons of the
tribunal are not “justified, transparent or intelligible” and that the
result does not fall “within the range of possible, acceptable outcomes which
are defensible in respect of facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
Did
the Officer commit a reviewable error in misinterpreting the requirements of
section 117(9)(d) of the Regulations?
[11]
Turning
to the merits of these applications, the Applicants’ first argument is that the
Decisions should be set aside as unreasonable because the Officer failed to
consider the purpose of section 117(9)(d) of the Regulations. They argue in
this regard that Mr. Obispo did not list the Applicants as dependents in his
1995 application for permanent residence through inadvertence. Counsel for the
Applicants suggested that this inadvertence was likely attributable to Mr.
Obispo’s lack of fluency in English in 1995 and to the fact that it was his
ex-wife (who perhaps did not want the sons in Canada) who filled out forms for
Mr. Obispo’s 1995 application. The Applicants further argue that this
inadvertence should have been considered as a compelling reason in favour of
granting the Applicants’ H&C application. They suggest that the policy
consideration behind section 117(9)(d) of the Regulations is to ensure that
those who are inadmissible cannot later gain permanent residency status and
argue that this policy consideration should have militated in favour of granting
the Applicants’ H&C consideration as they were not ineligible to enter Canada in 1995.
[12]
There
are several problems with this argument. First, it was not made to the Officer,
nor is it borne out by the evidence. The only evidence before the Officer
concerning the reasons for the Applicants not having been listed as dependents
by their father in 1995 was the explanation that Mr. Obispo was not certain why
he had omitted the Applicants and that it was possibly because they were not
going to be living with him in Canada. There was simply no evidence to suggest
that the Applicants were left out of the 1995 application due to Mr. Obispo’s
inadvertence. Similarly, there is no such evidence before the Court. Indeed,
in his affidavit filed in support of this application, Mr. Obispo deposes
merely that he did “not remember exactly why [his] children were not included
in [the 1995] application.” The lack of evidentiary foundation for this
argument is sufficient to dispose of it.
[13]
The
argument also fails on a principled basis. While an Officer may provide relief
from the effect of section 117(9)(d) of the Regulations where there are
“compelling reasons” to do so, the case law recognises that mere inadvertence
does not normally constitute a compelling reason. For example, in Pascual v Canada (Minister of
Citizenship and Immigration, 2008 FC 993, [2008] FCJ No 1233, the
immigration officer had held that inadvertence similar to that claimed by Mr.
Obispo was not a compelling reason to relieve from compliance with section
117(9)(d) of the Regulations; the officer’s conclusion was upheld by this Court
on review (see para 19). Indeed, as the Federal Court of Appeal held in Kisana
at para 27, misrepresentations, like the present, are a relevant public policy
consideration in an H&C assessment which may well reasonably lead an
officer to reject an H&C application for relief from the requirements of
section 117(9)(d) of the Regulations.
[14]
Thus,
there is nothing unreasonable in the way in which the Officer treated the reasons
for the Applicants’ omission from Mr. Obispo’s 1995 permanent residency
application. Nor did the Officer fail to understand the policy behind section
117(9)(d) of the Regulations. Accordingly, the first argument advanced by the
Applicants does not provide any basis for granting the relief sought in these
judicial review applications.
Did the Officer commit a
reviewable error in his consideration of the evidence?
[15]
The
same is true of their second argument. The Applicants argue in the second place
that the Officer erred in finding insufficient H&C grounds to grant the
Applicants permanent residence status. More specifically, they contend that in
assessing the factors under section 25(1) of the IRPA, the Officer relied only
on the answers given during the interviews, failed to review the totality of
the evidence before him, including the desire of the family to be together, and
focused too much on the Applicants’ ability to remain in the Dominican
Republic.
Further, they argue that the Officer erred in the conclusion that the
inconsistencies in the Applicants’ interview answers demonstrated a lack of
ongoing relationship with their father, suggesting that it is to be expected
that young men in their early 20s or teenage years might not be aware of the
details of their father's employment or domestic situation. The Applicants also
state that the Officer improperly ignored the reasons for the relatively few
visits by Mr. Obispo to the Dominican Republic in recent years and for the
delay in seeking to sponsor the Applicants. They note that the evidence before
the Officer demonstrated that Mr. Obispo had not been to the Dominican Republic
for several years prior to 2010 as he no longer worked for an airline, which
had previously allowed him to travel there free of charge. They also claim that
Mr. Obispo could not have sponsored the Applicants earlier because he did not
then have custody of them.
[16]
The
Respondent, for its part, argues that Decisions must be viewed and assessed in
their totality, that the Officer appropriately assessed all the relevant
factors and that his Decision is reasonable. The Respondent also asserts that
it was not necessary for the Officer to list all the evidence he considered and
that the Applicants seek to have this Court re-weigh the evidence, which ought
not be the function of a court on a judicial review application, particularly
where the reasonableness standard is applicable.
[17]
In
my view, the Officer did not commit a reviewable error in his treatment of the
evidence. He considered the relevant factors, his conclusions were reasonable,
and he was under no obligation to refer specifically in the Decisions to any
particular piece of evidence.
[18]
In
Kisana at para 33, the Federal Court of Appeal summarized the various
matters which should be considered in connection with geographical separation
of family members. These include:
… the effective links with family
members, i.e. in terms of ongoing relationship as opposed to the simple
biological fact of relationship; has there been any previous period of
separation and, if so, for how long and why; the degree of psychological and
emotional support in relation to other family members; options, if any, for the
family to be reunited in another country; financial dependence, and; the
particular circumstances of the children.
[19]
A
review of the letters and of the CAIPS notes indicates that each of the
relevant factors was considered and weighed by the Officer. In the CAIPS notes,
the Officer stated that he had:
[…] carefully reviewed all evidence in
[each] case in preparation for the interview[s] … [and] concluded that the
focus of the interview[s] would be to review H&C elements, establish parent
child relationship between [A]pplicant[s] and [Mr. Obispo] as well as parent
child relationships between [A]pplicant[s] and [their] mother / grandparents /
siblings in the Dominican Republic. The assessment will then establish whether
sufficient H&C elements exist to overcome exclusion resulting from [Mr.
Obispo] not declaring [A]pplicant[s] when he immigrated to Canada.
[20]
Following
the interviews, the Officer concluded that the Applicants had not demonstrated
a sufficient degree of ongoing relationship with Mr. Obispo to warrant H&C
consideration and that conversely, the strength of the Applicants’ relationships
with their family members in the Dominican Republic meant that refusing the
applications would not leave the Applicants without support.
[21]
The
Officer’s conclusions are amply supported by the evidence that was before him.
While he did not refer to any particular piece of evidence (apart from what was
discussed during the interviews), it was not necessary for him to do so. As
Justice Abella recently wrote for a unanimous Supreme Court in Newfoundland
and Labrador Nurses Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16:
Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (S.E.I.U., Local 333 v. Nipawin
District Staff Nurses Assn. (1973), [1975] 1 S.C.R. 382 (S.C.C.), at p.
391).
[22]
With
respect to the Officer's conclusion regarding the degree of relationship
between Mr. Obispo and the Applicants, I tend to agree with the Applicants that
teenage boys and young men might not have detailed knowledge of their parents’
work and living arrangements if they live in a different city and that this
does not necessarily mean that there might not be an ongoing deep relationship
between these sorts of young men or teenage boys and their parents. That said,
there was sufficient other evidence before the Officer regarding the lack of
relationship between Mr. Obispo and the Applicants to support the Officer’s
conclusion. Such other evidence included the fact that Mr. Obispo had emigrated
to Canada and left the Applicants behind, that he had relinquished custody of
them, and that, in recent years, he had visited the Applicants only
infrequently, regardless of what the reason for this might have been. Thus, it
cannot be said that the Officer’s conclusion regarding the lack of a sufficient
relationship was unreasonable.
[23]
In
terms of the Officer's conclusion regarding the strength of the relationship
between the Applicants and their family in the Dominican Republic, all the
evidence before the Officer pointed to this conclusion. Each of the Applicants
indicated in the interviews that their relationships with their family members,
including their mother, in the Dominican Republic were strong.
Accordingly, this conclusion is likewise reasonable.
[24]
In
light of the foregoing, the Decisions were eminently reasonable and, therefore,
these applications for judicial review will be dismissed.
[25]
No
question for certification under section 74 of IRPA was presented and none
arises in this case.
[26]
In
accordance with Prothonotary Aalto’s Order in Court Docket: IMM-5046-11 dated
September 8, 2011, Court Dockets: IMM-5046-11, IMM-5047-11 and IMM-5048-11 are
consolidated. A copy of these Reasons for Judgment and Judgment will be placed
on each file.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
Applicant, Pedro Jose Obispo, is struck from the style of cause in files
IMM-5046-11, IMM–5047-11 and IMM-5048-11;
2.
These
applications for judicial review are dismissed;
3.
No
question of general importance is certified; and
4.
There
is no order as to costs.
"Mary
J.L. Gleason"
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