Date: 20121005
Docket: IMM-9524-11
Citation: 2012
FC 1173
Ottawa, Ontario,
October 5, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
|
|
DENISE MILLER
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
Applicant seeks judicial review of the November 29, 2011 decision of a
Citizenship and Immigration Canada (CIC) Immigration Officer (“the Officer”)
refusing the Applicant’s application for an exemption on humanitarian and
compassionate (H&C) grounds to allow her to apply for permanent residence
from within Canada.
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant is a Saint Vincentian citizen who came to Canada in July 2001 on a
visitor visa. She did not maintain or renew her status when it expired in
January 2002, and has been in Canada since she first arrived.
[4]
The
Applicant left her eldest son with her parents in Saint Vincent when she came
to Canada, and has since had two Canadian-born children. She works as a
childcare provider and sends money home to her ailing parents and her son every
month.
[5]
The
Applicant submitted an H&C application in December 2010.
II. Decision
under Review
[6]
The
Officer’s decision focused on three areas: the Applicant’s establishment in
Canada, the best interests of her children, and the factors related to her
return to Saint Vincent and the Grenadines.
[7]
The
Officer recognized that the Applicant had worked in Canada since her arrival,
sent money home to her parents and son in Saint Vincent, and is involved in her
community before concluding the following:
While I find the applicant’s
establishment and integration are admirable, in consideration of the evidence
before me, I do not find the applicant has demonstrated a level of
establishment and integration in Canada that warrants a positive visa
exemption. Furthermore, while [sic] that the applicant has taken
positive steps in establishing and integrating herself in Canada, I place
little weight on this demonstration of establishment and integration as she did
so without having immigration status to allow her [sic] remain in
Canada, with the exception of the six months of visitor status granted her upon
her initial entry to Canada. The settlement that resulted and the hardship of
now uprooting her children and herself was entirely within her control and do
not constitute undue and undeserved hardship. I also do not consider the
hardship caused by voluntary establishment to be disproportionate. All
foreigners must weigh the pros and cons of lengthy settlement in a country in
which they do not benefit from permanent status.
[8]
With
respect to the best interests of the Applicant’s children, the Officer
considered the emotional and financial ties between her Canadian-born children
and their father, concluding that there are “limited grounds on which to
conclude that the children would be negatively impacted by the separation from
their father.” The Officer noted that the children are young, and that it is
reasonable to believe that they would be able to adapt to life in Saint Vincent.
[9]
The
Officer considered the differences in education, health care and standard of
living between Canada and Saint Vincent and, while remarking that the standards
are lower in Saint Vincent, nonetheless concluded that they did not
constitute disproportionate hardship.
[10]
The
Officer further considered the interests of the Applicant’s eldest child in
Saint Vincent, and concluded that reunification with his mother and
step-siblings would be beneficial for him.
[11]
Finally,
the Officer considered the effect of the Applicant’s return to Saint Vincent on
the financial support she provided to her parents and her son. While
recognizing that the Applicant sent money home every month, the Officer
determined that there was “little documentary evidence that the applicant’s
parents are financially dependent on her to the extent they would not be able
to afford their own medications, if required, and basic amenities should the
applicant return.”
[12]
The
Officer addressed counsel’s argument that the Applicant would not qualify for
permanent residence from outside Canada by stating that this is not a factor
that is to be taken into account in the current H&C application, “which was
not meant to circumvent Canada’s immigration program.”
III. Issues
[13]
This
application raises the following issues:
(a) Was the Officer’s assessment
of the Applicant’s establishment in Canada reasonable?
(b) Did the Officer use the
incorrect test in assessing the best interests of the children?
(c) Was
the Officer’s evaluation of the hardship that might be faced by the Applicant’s
family should she return to Saint Vincent reasonable?
IV. Standard
of Review
[14]
The
appropriate standard of review for the questions of mixed fact and law relating
to H&C applications is that of reasonableness (see Bichari v Canada
(Minister of Citizenship and Immigration), 2010 FC 127, [2010] FCJ No 154
at para 25; Laban v Canada (Minister of Citizenship and Immigration),
2008 FC 661, [2008] FCJ No 819 at para 14). Reasonableness is concerned with
the justification, transparency and intelligibility of the decision-making
process, but also with whether the decision falls within a range of possible,
acceptable outcomes defensible in respect of the facts and law (Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
[15]
Whether
the Officer applied the correct legal test is a legal question, to be reviewed
on the standard of correctness. The Officer’s conclusions, however, on the
best interests of the children will be reviewed on a standard of
reasonableness.
V. Analysis
[16]
Subsection
11(1) of IRPA sets out the general visa requirement for foreign nationals
wishing to come to Canada:
|
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.
|
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.
|
[17]
Section
25 of IRPA provides, however, for an exemption from the general requirement to
apply for permanent residence from outside of Canada in certain circumstances:
|
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.
|
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.
|
[18]
The
H&C decision-making process foreseen by subsection 25(1) of IRPA is highly
discretionary, and calls for a fact-specific weighing of factors in order to
determine whether the special grant of an exemption to the general visa requirements
is warranted (Kawtharani v Canada (Minister of Citizenship and Immigration),
2006 FC 162, [2006] FCJ No 220 at para 15; Mirza v Canada (Minister of
Citizenship and Immigration), 2011 FC 50, [2011] FCJ No 259 at para 18). Indeed,
in assessing the level of hardship that would be faced by an applicant were the
exemption not granted, the Officer is directed to consider, inter alia,
an applicant’s level of establishment and the best interests of children
affected by the decision. The factors are to be assessed as a whole, and no
one factor is determinative.
[19]
This
Court and the Federal Court of Appeal have both made it clear that the
“weighing of relevant factors remains the domain of the Minister or his
delegate, and that the court’s role is not to examine the weight given to them
by the officer” (Laban, above, at para 18; Legault v Canada (Minister
of Citizenship and Immigration), 2002 FCA 125, [2002] FCJ No 457 at para
11).
A. Establishment
[20]
In
this case, the Applicant submits that the Officer erred in assigning little
weight to her establishment in Canada by virtue of her lack of status. She
points to CIC’s Operation Manual for Inland Processing, IP 5 -- Immigration
Applications in Canada made on Humanitarian or Compassionate Grounds (“the
Manual”), to argue that there is nothing in the guide that states that one may
not apply for an exemption from the requirement to apply for permanent
residence from outside of Canada if one is in Canada illegally.
[21]
The
Manual describes, however, that in order for an application to succeed on
H&C grounds, applicants must demonstrate that they would face unusual and
undeserved or disproportionate hardship if forced to apply for permanent
residence from outside of Canada. It describes that the hardship must be both
unusual - that is, “a hardship not anticipated or addressed by the Act
or Regulations” - and undeserved - that is, “in most cases, the
result of circumstances beyond the person’s control” (emphasis added)
(Manual, section 5.10). It defines “disproportionate hardship” in cases where
the “unusual and undeserved” criteria are not met, but “where the hardship of
not being granted the requested exemption(s) would have an unreasonable impact
on the applicant due to their personal circumstances” (Manual, section 5.10).
[22]
The
Officer specifically considered the Applicant’s establishment and, while
recognizing that it was “admirable”, was ultimately entitled to decide what
weight to give this factor in the particular circumstances of the case. As the
Manual points out, unusual and undeserved hardship generally arises from
circumstances that are beyond the applicant’s control. Indeed, in many of the
cases cited by the Applicant, the individuals concerned had established
themselves while waiting on a determination on an H&C or refugee protection
or other type of application (see, for example, Lin v Canada (Minister
of Citizenship and Immigration), 2011 FC 316, [2011] FCJ No 395 in which
the applicant’s H&C application was pending for seven years). By contrast,
the Applicant here was not awaiting a decision on any application. The
Officer’s decision with respect to the Applicant’s establishment falls within a
range of possible, acceptable outcomes defensible in respect of both the facts
and the law and is thus reasonable.
B. The
Best Interests of the Child
[23]
The
Applicant submits that the Officer applied the incorrect test with respect to
his analysis of the best interests of the child. Specifically, the Applicant
posits that the Officer conflated the best interests of the child test with the
test of unusual and undeserved or disproportionate hardship that is more
appropriate for the overall assessment of the H&C application.
[24]
This
Court has established that “what is required when conducting a best interests
of the child analysis in an H&C context is an assessment of the benefit the
children would receive if their parent was not removed, in conjunction with an
assessment of the hardship the children would face if their parent was removed
or if the child was to return with his or her parent” (Segura v Canada
(Minister of Citizenship and Immigration), 2009 FC 894, [2009] FCJ No 1116
at para 32; Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475, [2002] FCJ No 1687 at para 4). The obligation of officers
to be “alert, alive and sensitive” to the best interests of the children has
further been described as demonstrating “an awareness of the child’s best
interests by noting the ways in which those interests are implicated” (Segura,
above, at para 34; Kolosovs v Canada (Minister of Citizenship and
Immigration), 2008 FC 165, [2008] FCJ No 211 at para 9). Form is not to be
elevated above substance when reviewing an officer’s determination of the best
interests of the child.
[25]
In
this case, I am satisfied that the Officer was sufficiently alert, alive and
sensitive to the best interests of the Applicant’s children. The Officer noted
several ways in which the children’s interests were implicated, including the
relationship the Applicant’s Canadian children have with their father, the
children’s enrolment in school, as well as concerns for their health, safety,
and economic well-being. While noting that living in Canada offers more
opportunities for the children, the officer found that the hardship related to
not having access to those opportunities was not, when weighed against other
factors, hardship that amounted to the level of unusual and undeserved or
disproportionate.
C. Hardship
[26]
The
Applicant further contends that the Officer erred in his assessment of the
hardship the Applicant would face by returning to Saint Vincent. Specifically,
the Applicant points to the Officer’s assessment of the financial support the
Applicant provides to her parents and son, positing that the evidence submitted
demonstrates clearly that the Applicant is the sole source of financial
provision for her parents and her eldest son. The Respondent takes the
position that the letter relied upon by the Applicant does not demonstrate this
clearly at all. Both parties rely on the following excerpt from the letter:
she
is very honest and hard working and very helpful to the family. My husband and
I are diabetes and also … and if it was not for our daughter who help us to buy
our treatment and also supply us with food and clothes, because we are old and
not working.
[27]
The
Officer is entitled to significant deference on such questions of fact. I find
nothing unreasonable with the Officer’s assessment of the evidence on this
point.
VI. Conclusion
[28]
The
Officer considered the entirety of the application and weighed the various
factors in a reasonable manner.
JUDGMENT
THIS COURT’S
JUDGMENT is that
this application for judicial review is dismissed.
“ D. G. Near ”
Email this Content