Date:
20120926
Docket:
IMM-8343-11
Citation:
2012 FC 1133
Ottawa, Ontario,
September 26, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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MICHAEL ANTHONY PERSAUD
ZORINA PERSAUD
MICHAEL BRUCE ANTHONY PERSAUD
MARISSA ASHANA PERSAUD
MIRIAN ANN TRICIA PERSAUD
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of a Citizenship and Immigration Canada (CIC) immigration officer (the
officer), dated November 2, 2011, wherein the applicants’ permanent residence
applications were refused (the decision). This decision was based on the
officer’s finding that there were insufficient humanitarian and compassionate
(H&C) grounds to warrant an exemption under subsection 25(1) of the Act.
[2]
The applicants request that the officer’s
decision be quashed and the matter be referred back for redetermination by a
differently constituted tribunal.
Background
[3]
The
principal applicant is Michael Anthony Persaud. The other applicants are
related to the principal applicant as follows: his wife, Zorina Persaud; his
son, Michael Bruce Anthony Persaud; his daughter, Marissa Ashana Persaud; and
his daughter, Mirian Ann Tricia Persaud. The family is Indo-Guyanese by
ethnicity and Christian by religion. They are all citizens of Guyana.
[4]
The
applicants have an extensive family network in Canada. This includes the
principal applicant’s parents and siblings (and their families) and his wife’s
mother and siblings (and their families). The applicants do not have any close
relatives remaining in Guyana.
[5]
In
Guyana, the applicants were seriously affected by the rise in criminality in
the country. The principal applicant received death threats and he and his
family were attacked by criminals. The principal applicant approached the
police for help but they did not investigate his complaint. In fear of their
safety, the applicants left Guyana.
[6]
On
departure from Guyana, the applicants were first issued a visitor visa in the Port of Spain on December 14, 2000. Almost two months later, they came to Canada and entered as visitors on February 7, 2001.
[7]
On
October 26, 2002, the applicants filed a claim for refugee protection. This
claim was rejected on June 3, 2004. Leave to seek judicial review of the
refugee decision was denied. The applicants then filed H&C applications on February
1, 2008. These were refused on October 30, 2008.
[8]
On
December 15, 2008, the applicants filed their second H&C applications based
on the hardship that they would face in Guyana by Afro-Guyanese criminal gangs,
their successful establishment and integration in Canada, their close ties to Canada and the best interests of the children.
[9]
On
September 24, 2010, the applicants filed pre-removal risk assessment (PRRA)
applications. They were rejected on November 24, 2010.
Officer’s Decision
[10]
In
a letter dated November 2, 2011, the applicants were notified that their
H&C applications for permanent residence from within Canada were denied. The reasons were outlined in the H&C grounds, reasons for decision written
by the officer on the same day. These latter reasons form part of the decision.
[11]
In
rendering the decision, the officer considered the applicants’ allegations of
risk on return to Guyana, degree of establishment in Canada and best interests
of the children.
[12]
At
the outset, the officer noted that in a letter dated August 15, 2011, the
applicants were provided with thirty days to submit updated information. On
November 2, 2011, no response had yet been received to this request.
[13]
The
officer noted the applicants’ stated risks in Guyana. However, aside from their
statements that they were seriously affected by criminality, had been subject
to several threats and attacks and that the police would not investigate their
complaints, the officer noted that no specific details were provided. On review
of the record, the officer concluded that the applicants had not provided
sufficient evidence to support their fear of risk in Guyana. Thus, the officer
found that the hardship of returning to Guyana and applying for permanent
residence from there would not constitute unusual and undeserved or
disproportionate hardship.
[14]
The
officer then noted the applicants’ employment in Canada, the applicant
daughter’s school documentation and the evidence on community involvement. In
addition, the officer noted the principal applicant’s statement that his
parents rely on him for financial, emotional and moral support. The officer
considered this in light of the letter of support from the principal
applicant’s father. However, the officer observed that the principal
applicant’s father did not state that he and his wife relied on the applicants
as alleged by them.
[15]
The
officer also noted that the principal applicant had been charged with two
counts of assault and one count of forcible confinement under subsection 279(2)
of the Criminal Code, RSC 1985, c C-46. At the time of the decision,
these charges were outstanding.
[16]
The
officer acknowledged the applicants’ attempts to become established in Canada since their arrival. However, the officer was not satisfied that the applicants had a
reasonable expectation of being allowed to remain in Canada permanently. In
addition, the officer noted that there was insufficient evidence that the
applicants remained in Canada due to circumstances beyond their control.
Although the officer acknowledged the level of establishment made until
November 2008, the officer found that the applicants had not established that
severing these ties would have such a significant negative impact that would
constitute unusual and undeserved or disproportionate hardship.
[17]
In
addition, although the principal applicant’s father was supportive of the
family remaining in Canada and that the hardship of being physically separated
from the Canadian family would cause some dislocation, the officer found that
the applicants would be able to maintain contact with their family and friends
in Canada through internet, telephone and/or letters.
[18]
The
officer also noted the submissions on the applicant children. However, the
officer highlighted the lack of specific details or information on their best
interests. Thus, the officer was not satisfied that the applicants had
established that the general consequences of relocating and resettling back to
Guyana would have a significant negative impact on the best interests of the
applicant children.
[19]
In
summary, although the officer acknowledged that the applicants may face
difficulties in readapting to life in Guyana, the officer was not satisfied
that this hardship would be unusual and undeserved or disproportionate. The
officer therefore refused the applicants’ H&C application.
Issues
[20]
The
applicants submit the following points at issue:
1. Did the officer
err in law in her assessment of the applicants’ establishment and integration
in Canada?
2. Did the officer
err in law in the assessment of the best interests of the applicants’ children
and by applying the wrong standard?
3. Did the officer
breach the duty of procedural fairness?
[21]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in assessing the applicants’ establishment?
3. Did the officer
err in assessing the best interests of the children?
4. Did the officer
breach procedural fairness?
Applicants’ Written Submissions
[22]
The
applicants submit that the officer erred in the assessment of establishment and
the best interests of the children.
[23]
First,
the applicants submit that the officer failed to make any reasoned assessment
of establishment. Rather, the officer simply concluded that their establishment
was not sufficient to constitute undue hardship. The reasons did not indicate
how the officer came to this conclusion. Thus, the applicants submit that the
officer’s evaluation of the case was inadequate.
[24]
The
applicants submit that they described a number of positive establishment
factors that show that they have worked hard to establish and integrate
themselves into Canadian society. The principal applicant has been employed
since August 2001. In July 2005, he opened his own auto repair shop. He
currently works as an auto service manager. The principal applicant’s wife has
been employed as a quality controller since April 2004. The family has also
been active volunteers in their community and they are involved in various
church activities. Concurrently, the children have grown up in Canada and consider Canada as their home. Neither the principal applicant nor his wife have any
family in Guyana.
[25]
The
applicants submit that when considered cumulatively, these factors indicate
that they have successfully established themselves and integrated into the
Canadian community. The applicants submit that the officer failed to properly
apply the guidelines in Immigration Manual IP-5 (the IP-5 Manual) and
unreasonably concluded that the applicants would not suffer hardship if
returned to Guyana.
[26]
The
applicants also submit that the officer erred in law by making unreasonable
findings that were not supported by the evidence on the record. First, the
officer noted that the principal applicant had a father and mother outside Canada. This was a wrong finding of fact because the record showed that the principal
applicant’s parents are citizens of and reside in Canada. Second, the officer
erred in noting that in his letter of support, the principal applicant’s father
did not state that he and his wife depend on the applicants for financial,
emotional or moral support. The applicants cite portions of the letters from
the principal applicant’s father and sister that they submit do support their
statements.
[27]
Second,
the applicants submit that the officer inadequately assessed the best interests
of the three applicant children, especially those of the youngest daughter,
Mirian, who is seventeen years old. The applicants submit that the officer
completely failed to assess: the fact that the applicant children have been in
Canada for over a decade and have grown up and spent their years of maturity
here, their degree of establishment in Canada, their strong links to Canada
given that their entire extended family is here and the impact that removal
would have on them. The applicants note that as the best interests of the
children clearly mitigated in their favour, the officer was required to provide
cogent reasons why other factors led to a negative determination.
[28]
The
applicants submit that the officer minimized the interests of the children. The
officer provided brief reasons and failed to consider the various factors
relating to the children’s emotional, social, cultural and physical welfare and
the impact that removal would have on them. In addition, the applicants submit
that the officer erred by applying the undue and undeserved or disproportionate
hardship and the significant negative impact tests when assessing the best
interests of the children.
[29]
The
applicants also submit that the officer breached the duty of procedural
fairness by not granting them an extension of time to file updated submissions
in accordance with the opportunity provided in the officer’s letter dated
August 15, 2011. The applicants did not respond within the required timeline
because at that time, they had moved from the house owned by the principal
applicant’s sister (the address to which the letter was sent). The applicants
failed to immediately notify immigration officials about their change in
address. In addition, when the letter was sent, the principal applicant’s
sister and her family were abroad.
[30]
On
her family’s return, the principal applicant’s sister gave the letter to the
principal applicant and he immediately responded with a request for an
extension of time to submit updated documents. The applicants did not receive a
response to this request. The applicants submit that in their particular
circumstances, this refusal to grant a brief extension of time constitutes a
breach of fairness.
[31]
Finally,
the applicants note that the principal applicant’s criminal charges of assault
and forcible confinement were withdrawn in November 2011.
Respondent’s Written Submissions
[32]
The
respondent submits that non-citizens do not have an unqualified right to enter
or remain in Canada. The requirement for a foreign national to apply for a visa
before entering Canada is a cornerstone of Canada’s immigration law. Recourse
to an exemption from this requirement is exceptional. The IP-5 Manual also
provides guidelines on the meaning of H&C grounds: applicants must prove
that they would face unusual, undeserved or disproportionate hardship if
required to file permanent residence applications from abroad. Hardship
inherent in having to leave Canada is insufficient to constitute
disproportionate hardship.
[33]
The
respondent further notes that applicants bear the onus of satisfying the
decision maker that their personal circumstances are such that the hardship of
having to obtain a permanent resident visa from abroad would be unusual and
underserved or disproportionate. The decision maker is under no duty to request
further submissions or to highlight weaknesses in the applications.
[34]
The
respondent submits that this Court should not intervene with the officer’s
decision unless it does not fall within the range of possible acceptable
outcomes that are defensible in respect of the facts and the law. As long as
the officer considered the relevant and appropriate factors from an H&C
perspective, this Court should not interfere with the weighing of the different
factors. In addition, the reasons for the decision should not be read
microscopically but rather as a whole.
[35]
The
respondent submits that the officer’s finding on establishment was entirely
reasonable in light of existing jurisprudence that hardship, in the context of
an H&C application, should be something more than that which is inherent in
being asked to leave after having been in a place for a period of time. This
includes maintaining employment and integrating in the community.
[36]
The
respondent also submits that the officer’s assessment of the children’s
interests was reasonable. The respondent notes that the best interests of
children do not dominate an H&C assessment and officers must determine what
weight to grant these interests.
[37]
The
respondent notes that the best interests of the children analysis requires
evidence on the potential impact on the child, supported by proper
documentation. Here, the applicants’ submissions were cursory and unsupported
by cogent evidence. In addition, the applicants’ submission that the officer
used a significant negative impact test is not an arguable issue. The
respondent highlights that the reasons for the decision cannot be read
microscopically and that the applicants have not demonstrated that any evidence
was ignored or overlooked by the officer.
[38]
The
respondent also submits that the officer examined the risk factors presented by
the applicants under the lens of unusual and undeserved or disproportionate
hardship. However, the applicants’ statements on life in Guyana were vague and no details were provided on specific incidents that occurred to the
family there or their attempts to seek state protection. Thus, after thoroughly
reviewing the application, the officer was not satisfied that there was
sufficient evidence to support any fear of risk at any level.
[39]
Finally,
the respondent notes that there is no evidence in the CIC file of any request
for further time to respond to the officer’s August 15, 2011 letter.
Analysis and Decision
[40]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[41]
It
is well established that assessments of an officer’s
decision on H&C applications for permanent residence from within Canada is
reviewable on a standard of reasonableness (see Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2009] FCJ No 713 at paragraph
18; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193, [2009] FCJ No 1489 at paragraph 14; and Garcia De Leiva v
Canada (Minister of Citizenship and Immigration), 2010 FC 717, [2010] FCJ
No 868 at paragraph 13). The review of an officer’s assessment of establishment
and the best interests of the children are questions of fact or of mixed fact
and law that are also reviewable on a reasonableness standard (see Pierre v Canada (Minister of Citizenship and Immigration), 2010 FC 825,
[2010] FCJ No 1169 at paragraph 22).
[42]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59). It is not up to a reviewing
court to substitute its own view of a preferable outcome, nor is it the
function of the reviewing court to reweigh the evidence (see Khosa
above, at paragraphs 59 and 61).
[43]
Conversely,
it is well established that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798, [2008] FCJ No 995 at paragraph 13; and Khosa above,
at paragraph 43). No deference is owed to decision makers on these
issues (see Dunsmuir above, at paragraph 50).
[44]
Issue
2
Did the officer err in
assessing the applicants’ establishment?
The assessment of the degree
of establishment allows for a proper determination on whether an applicant
would suffer hardship if required to apply for permanent residence from abroad
(see Raudales v Canada (Minister of Citizenship and Immigration), 2003
FCT 385, [2003] FCJ No 532 at paragraph 19). This Court has quashed H&C
decisions where establishment has been assessed without adequate reference to
the particular circumstances of the applicant (see Singh v Canada (Minister
of Citizenship and Immigration), 2009 FC 1062, [2009] FCJ No 1322 at
paragraph 11; and Amer v Canada (Minister of Citizenship and Immigration),
2009 FC 713, [2009] FCJ No 878 at paragraphs 12 and 13).
[45]
In
this case, the officer considered the applicants’ employment, community
involvement and education in Canada. These factors were all relevant to the
assessment of the degree of establishment, as provided in the IP-5 Manual.
However, it is notable that maintaining employment and integrating into the
community does not necessarily constitute an unusually high degree of
establishment (see Ramotar v Canada (Minister of Citizenship and
Immigration), 2009 FC 362, [2009] FCJ No 472 at paragraph 33).
[46]
The
officer did acknowledge the letter of support from the principal applicant’s
father, but noted the absence of a statement therein on the parent’s dependence
on the applicants for financial, emotional or moral support. In his letter, the
principal applicant’s father described all his children as having done very
well and as “well established law abiding decent citizens of Canada”. He noted that all his children own their homes and vehicles. He also stated that:
Michael
and his family are of great assistance to our family especially myself and his
mom, he has chosen to live close by so he could help with our many doctor’s
appointments since we are advancing in age, he is most definitely our first
call in case of emergency.
Michael
has always been self-sufficient, dilegent [sic] and industriousl [sic] however
should he require assistance of any sort, be it financial or otherwise the
entire family is ready, willing, and able to render same.
[47]
The
applicants also submitted a letter from the principal applicant’s sister in
which she stated:
Michael
and his family have been very supportive to me and my family. They have
provided counselling and advice to help with conflict resolution and provide
encouragement to me on a daily basis.
[48]
This
evidence clearly indicates that the applicants have a strong support network in
Canada. The evidence also indicates that the applicants also support their
family by living close to the principal applicant’s parents and helping them with
their medical appointments and by counselling and advising the principal
applicant’s sister.
[49]
However,
recalling the deference owed to immigration officers on their assessment of the
evidence, I do not find that the officer erred in finding that the evidence
insufficiently supports the applicants’ alleged level of support. Notably, in
the letters from the principal applicant’s father and sister, these relatives
actually offered financial support to the applicants should they ever need
help.
[50]
An
applicant’s criminal record is also relevant to an assessment of establishment.
At the time of the decision, the officer noted that the principal applicant had
outstanding criminal charges against him. These were allegedly withdrawn in
November 2011. However, no evidence of the withdrawn charges was submitted to
the officer before the date of the decision.
[51]
The
officer also noted that there was insufficient evidence that the applicants had
remained in Canada due to circumstances beyond their control or based on a
reasonable expectation that they would be allowed to remain. This latter point
is clearly supported by the applicants’ immigration history, in which their
different applications have repeatedly been denied.
[52]
I
also note the applicants’ submission that the officer erred by stating that the
principal applicant’s parents resided abroad. Admittedly, on the first page of
the reasons for decision, the principal applicant’s parents are listed under
the heading of family members residing outside of Canada. However, the reasons
themselves clearly show that the officer understood that the principal
applicant’s parents reside in Canada. This is implicit in the officer’s
reference to the father’s letter and the physical separation that the
applicants’ removal would cause to the relationship between the father and the
applicant family.
[53]
It
is trite law that reasons should not be read microscopically but rather as a
whole. I therefore do not find that this error in a different section of the
decision renders the officer’s decision as a whole erroneous.
[54]
Based
on the amount of evidence filed in the H&C application, I find that the
officer reasonably concluded that the applicants had not established that
severing the ties they made in Canada would constitute unusual and undeserved
or disproportionate hardship. In addition, contrary to the applicants’
submissions, I find that the officer sufficiently conveyed the underlying
reasons for the establishment findings. Thus, I find that the officer conducted
a reasonable assessment of the establishment factor in reviewing the applicants’
H&C applications.
[55]
Issue
3
Did the officer err in
assessing the best interests of the children?
The applicants submit that
the officer inadequately assessed the best interests of the three applicant
children, especially those of the minor applicant, Mirian.
[56]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, [1999] SCJ No 39, Madame Justice L’Heureux–Dubé described an immigration
officer’s role in assessing the best interests of the children in an H&C
application (at paragraph 75):
[…]
The principles discussed above indicate that, for 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.
[57]
Examples
of factors to take into account in the assessment of the best interests of the
children include the following (see IP-5 Manual and Kolosovs v Canada (Minister of Citizenship and Immigration), 2008 FC 165, [2008] FCJ No 211 at
paragraph 9):
- the age of the child;
- the level of dependency
between the child and the H&C applicant;
- the degree of the child's
establishment in Canada;
- the child's links to the
country in relation to which the H&C decision is being considered;
- medical issues or special
needs the child may have;
- the impact to the child's
education; and
- matters related to the
child's gender.
[58]
It
is well established that the unusual, undeserved or disproportionate hardship
test has no place in the best interests of the child analysis (see Beharry v
Canada (Minister of Citizenship and Immigration), 2011 FC 110, [2011] FCJ
No 134 at paragraph 11). However, the mere use of the words unusual, undeserved
or disproportionate hardship does not automatically render an H&C decision
unreasonable (see Beharry above, at paragraph 12). What this Court must
determine on judicial review is whether the officer assessed the degree of
hardship likely to result from the removal of the children from Canada and then balance that hardship against other factors that might mitigate the
consequences of removal (see Beharry above, at paragraph 14).
[59]
In
this case, the officer noted at the outset the school documentation filed for
the minor daughter. The officer also noted that although there would be
hardships in being physically separated from the family in Canada, the applicants would be able to maintain contact with friends and family through
internet, telephone and letters. The officer stated the following specifically
on the best interests of the children:
The
applicant stated that his children were in school and they are excellent
students. He stated that if his children return to Guyana they suffer
emotional, mental and academic hardship and that they will be displaced in
school. Other than these statements, no specific details or information were
provided regarding the best interests of the child. I have considered the
statements made by the applicant and I am not satisfied that the applicant has
established that the general consequences of relocating and resettling back to
their home country would have a significant negative impact on the best
interests of these children.
[60]
The
applicants submit that this was an inadequate assessment of the best interests
of the children. Specifically, the applicants submit that the officer completely
failed to assess that the children have: been in Canada for over a decade,
grown up and spent their years of maturity here, a degree of establishment in Canada and strong links to Canada given their entire extended family is here. The applicants also
submit that the officer failed to consider the various factors relating to the
children’s emotional, social, cultural and physical welfare and the impact that
removal would have on them. In addition, the officer erred by applying the
wrong tests when assessing the best interests of the children.
[61]
At
the outset, I disagree with the applicants’ characterization of the officer’s
assessment as being an application of the undue and undeserved or
disproportionate hardship test. On review of the officer’s decision, I do not
find that the officer erred in applying that test to the best interests of the
applicant children.
[62]
Turning
to the officer’s assessment, I acknowledge the applicants’ criticism of it as being
very brief. However, this alone does not render the assessment unreasonable.
The question is whether the officer adequately assessed the degree of hardship
likely to result from the removal of the children from Canada based on the evidence on the record.
[63]
In
their H&C submissions, the applicants cited various well-established legal
principles intended to guide the assessment of the best interests of the
children. These have largely been incorporated in the discussion above.
However, as explained by the Federal Court of Appeal in Owusu v Canada
(Minister of Citizenship and Immigration), 2004 FCA 38, [2004] FCJ No 158,
an applicant bears the burden of adducing proof in support of an H&C claim
based on the best interests of the children (at paragraph 5):
An
immigration officer considering an H & C application must be “alert, alive
and sensitive” to, and must not “minimize”, the best interests of children who
may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 75.
However, this duty only arises when it is sufficiently clear from the material
submitted to the decision-maker that an application relies on this factor, at
least in part. Moreover, an applicant has the burden of adducing proof of any
claim on which the H & C application relies. Hence, if an applicant
provides no evidence to support the claim, the officer may conclude that it is
baseless. [emphasis added]
[64]
Applicants
must provide evidence regarding the adverse effects on the children should they
leave. Officers are then required to consider any such evidence submitted (see Liniewska
v Canada (Minister of Citizenship and Immigration), 2006 FC 591, [2006] FCJ
No 779 at paragraph 20). In Castillo v Canada (Minister of Citizenship and
Immigration), 2009 FC 409, [2009] FCJ No 543, Deputy Justice Maurice Lagacé
noted that sufficient evidence needed to be provided to allow the officer to
know in concrete terms how and why the applicants’ grandchild would be better
served by the continuous presence of his grandparents (at paragraph 15).
Reasons of family reunification alone are not sufficient. Applicants must
demonstrate that applying for permanent residency from abroad would expose them
to unusual, undeserved or disproportionate hardship (see Castillo, above
at paragraph 21).
[65]
In
their H&C application, the applicants stated that they feared hardships if
returned to Guyana. However, no details were provided on the specific events
that they had previously suffered or the risks they now faced. Several reference
letters were also submitted, however, aside from some support on their
establishment in Canada, these letters did not specifically pertain to the
interests of the applicant children.
[66]
Based
on this review of the evidence, I find that the officer made a reasonable
assessment of the best interests of the children. The scope of this assessment
was limited by the amount of evidence filed by the applicants. In light of this
evidence, I find that the officer made a reasonable assessment of the best
interests of the children.
[67]
Issue
4
Did the officer
breach procedural fairness?
The applicants also submit
that the officer breached procedural fairness by not granting them an extension
of time to file additional updated submissions. In a letter dated August 15,
2011, the officer did grant the applicants thirty days to file additional
submissions. However, when the letter was sent out, the applicants had moved
and not yet notified CIC of their change of address. The principal applicant’s
sister, to whose residence the letter was mailed to, was abroad at the time.
When she returned, she delivered the letter to the applicants. The applicants
allegedly wrote to CIC requesting an extension of time to make additional
submissions. However, the applicants did not provide evidence of this letter.
In the decision, the officer stated that on November 2, 2011, no response had
yet been received to the August 15, 2011 letter.
[68]
It
is well established that applicants bear the burden of establishing their case
(see Thandal v Canada (Minister of Citizenship and Immigration), 2008 FC
489, [2008] FCJ No 623 at paragraph 9). As a result, officers are under no duty
to request further submissions. As explained by the Federal Court of Appeal in Kisana
above, at paragraph 45:
It
is trite law that the content of procedural fairness is variable and contextual
(see: Baker, supra, para. 21; and Khan v. Canada (MCI), 2002
FCA 413). The ultimate question in each case is whether the person affected by
a decision “had a meaningful opportunity to present their case fully and
fairly”(see: Baker, supra, para. 30). In the context of H&C
applications, it has been consistently held that the onus of establishing that
an H&C exemption is warranted lies with an applicant; an officer is under
no duty to highlight weaknesses in an application and to request further
submissions (see, for example: Thandal v. Canada (MCI), 2008 FC 489 at
para. 9). In Owusu, supra, this Court held that an H&C
officer was not under a positive obligation to make inquiries concerning the
best interests of children in circumstances where the issue was raised only in
an “oblique, cursory and obscure way” (at para. 9). The H&C submissions in
that case consisted of a 7-page letter in which the only reference to the best
interests of the children was contained in the sentence: “Should he be forced
to return to Canada, [Mr. Owusu] will not have any way to support his family
financially and he will have to live every day of his life in constant fear”
(at para. 6).
[69]
In
the circumstances of this case, I do not find that the officer breached any
procedural fairness. As indicated, the officer is under no duty to request
further submissions. Nevertheless, the opportunity to file updated submissions
was granted to the applicants in mid-August 2011. Their lack of awareness of
this opportunity arose from their failure to notify CIC of their new address.
Although they alleged that they wrote to the officer when they eventually did
received the August 15, 2011 letter, no evidence of this correspondence was
filed with this judicial review application. Concurrently, the officer
explicitly noted that no responses were received to the August 15, 2011 letter.
I therefore do not find that there was a breach of procedural fairness in the
circumstances of this case.
[70]
In
summary, I do not find that the officer’s weighing of the different H&C
factors was unreasonable or that the officer erred in the assessment of
establishment or the best interests of the children. I find that the officer’s
decision was transparent, justifiable and intelligible and within the range of
acceptable outcomes based on the limited evidence on the record. I also do not
find that there was any breach of procedural fairness. For these collective
reasons, I would dismiss this judicial review application.
[71]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document
may be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible or
does not meet the requirements of this Act, and may, on request of a foreign
national outside Canada who applies for a permanent resident visa, 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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement. L’agent peut les délivrer sur preuve,
à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et
se conforme à la présente loi.
25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire, soit ne se conforme pas à la présente loi, et
peut, sur demande d’un étranger se trouvant hors du Canada qui demande un
visa de résident permanent, 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.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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