Date:
20120621
Docket:
IMM-8859-11
Citation:
2012 FC 795
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, June 21, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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ANA CECILIA PINTO
OLIVEROS
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Applicant
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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
I. Introduction
[1]
This
is an application for leave and for judicial review of a decision, dated
October 14, 2011, by which an immigration officer refused to grant the applicant
an exemption, on humanitarian and compassionate grounds, from the requirement
of applying for permanent residence from outside Canada, submitted under
subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 (IRPA).
II. Facts
[2]
The
applicant, Ana Cecilia Pinto Oliveros, was born on September 6, 1960, and is a
citizen of Colombia.
[3]
The
applicant arrived in Canada on March 21, 2008, on which date she claimed
refugee protection alleging, in particular, a fear of the Revolutionary Armed
Forces of Colombia (FARC).
[4]
That
refugee claim was denied on July 30, 2010. The application for leave to
commence an application for judicial review of that decision was dismissed by
this Court on November 15, 2010.
[5]
On
April 18, 2011, the applicant submitted an application for a Pre-Removal Risk
Assessment (PRRA), which was denied.
[6]
The
applicant lives with her daughter and son-in-law, who are Canadian citizens,
and looks after their three children.
III. Decision under review
[7]
With
respect to the applicant’s establishment and her family circumstances, the
officer questioned why the applicant’s daughter had not initiated family
reunification procedures earlier.
[8]
The
officer further noted the lack of evidence with respect to the applicant’s
financial resources and her integration into Canada.
[9]
The
officer determined that the applicant’s separation from her family in Canada would not cause her unusual and undeserved hardship.
[10]
The
officer stated that he had taken the best interests of the children into consideration.
He nonetheless found that the applicant’s separation from her grandchildren
would not adversely affect their best interests. In this regard, the officer
noted the lack of evidence supporting the applicant’s claims. In addition, the
officer gave little weight to this factor because he was of the view that the
children’s parents would help them overcome any hardship related to their
grandmother’s departure.
[11]
The
officer determined that the applicant, having spent most of her life in Colombia, would not suffer any unusual hardship from having to file an application for
permanent residence from her country of origin.
[12]
The
officer also relied on the PRRA application as a basis for determining that the
alleged risks had already been assessed.
IV. Issue
[13]
Was
the officer’s decision refusing to grant the applicant an exemption, on
humanitarian and compassionate grounds, from the requirement of applying for
permanent residence from outside Canada reasonable?
V. Relevant statutory provisions
[14]
The
following provisions of the IRPA apply to this case:
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Humanitarian
and compassionate considerations — request of foreign national
25. (1) The
Minister must, on request of a foreign national in Canada who is inadmissible
or who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligations of this Act if
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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VI. Positions of the parties
[15]
The
applicant is claiming that the officer did not pay sufficient attention to the
evidence that was submitted showing the important role she played in the lives
of her only daughter, her son-in-law and her grandchildren.
[16]
The
respondent maintains that the decision is reasonable. The importance of family
ties was taken into consideration by the officer and was weighed along with
other criteria.
VII. Analysis
[17]
The
discretion provided under section 25 of the IRPA calls for deference on the
part of this Court (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR
190; Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC
1, [2002] 1 S.C.R. 3).
[18]
In
this regard, the Federal Court of Appeal explained that “[i]t is not the
role of the courts to re-examine the weight given to the different factors by
the officers” (Canada (Minister of Citizenship and Immigration) v
Legault, 2002 FCA 125, [2002] 4 FC 358 at para 11).
[19]
The
Court cannot agree with the applicant’s main argument that family ties were not
given sufficient consideration. On the one hand, this Court has recognized that
the separation of the family, in and of itself, is insufficient to warrant a
favourable decision (Williams v Canada (Minister of Citizenship and Immigration),
2006 FC 1474).
[20]
On
the other hand, upon reading the officer’s decision it is clear the applicant’s
relationship with her family was fully taken into consideration. However, the
officer determined that the family circumstances were insufficient having
regard to the applicant’s establishment and integration, as he was entitled to
do.
[21]
Similarly,
the officer analyzed the potential hardship that would result from the
applicant’s departure. The record shows that she is a 53-year old woman with a
university education who has spent most of her life in Colombia. In addition, the applicant’s parents, brother and sister still live in Colombia.
[22]
Furthermore,
it is well established that the best interests of the child must be taken into
consideration. However, in the circumstances, this cannot be determinative (Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475,
[2003] 2 FC 555).
[23]
In
this case, it appears from the officer’s decision that he did not fail to apply
the “best interests of the child” test:
[translation]
I do not question the children’s attachment to their
grandmother, or the love she has shown towards them. It is only that there
is no evidence to indicate the degree to which the emotional, social, cultural
and physical wellbeing of these children would be affected by the applicant’s
potential departure. I have also taken into consideration their young age,
and above all the fact that they are not dependent upon the applicant but
rather, upon their own parents, who can remain in Canada. There is a strong
likelihood that the departure of this important member of the family would
create a void in the children’s lives and cause them sadness, but I am
confident that their parents will be there for them and will help them overcome
such difficulties. Accordingly, I am not convinced that the best interests
of these children would be compromised by their grandmother’s departure, and
for these reasons, I give little weight to this factor. [Emphasis added.]
(Immigration officer’s decision at p.
4.)
[24]
It
should be noted that section 25 of the IRPA provides for discretion to allow
for an exception to the rule that permanent residence applications be made from
outside Canada. It has not been demonstrated that the officer erred in any way in
the exercise of his discretion, which includes analyzing the evidence in its
entirety (Ahmed v Canada (Minister of Citizenship and Immigration), 2009
FC 1303, 372 FTR 1).
[25]
In
the present case, as the officer pointed out, the applicant’s daughter has
begun the process of sponsoring her mother.
[26]
The
relationship between grandparents and their grandchildren is more than simply a
matter of genealogy. It enriches the family and bridges generations; it is
invaluable on a social/emotional level, both for the child and the grandparents.
Although the Court is sensitive to the fact that the applicant’s departure will
cause some hardship to the family, it cannot, in this proceeding, substitute
its own reasoning for that of the officer.
VIII. Conclusion
[27]
For
all the reasons set out above, the intervention of this Court is not warranted.
The applicant’s application for judicial review is therefore dismissed.
JUDGMENT
THE
COURT ORDERS that the applicant’s
application for judicial review be dismissed. There is no question of general
importance to certify.
“Michel M.J. Shore”
Certified
true translation
Sebastian
Desbarats, Translator
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