Date:
20121214
Docket:
IMM-1833-12
Citation:
2012 FC 1479
Ottawa, Ontario,
December 14, 2012
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
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KOBITA
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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
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of a decision
rendered by an immigration officer at the High Commission of Canada in
Singapore (Immigration Section), dated January 3, 2012. The officer determined
that the applicant did not meet the requirements for a permanent resident visa
as a member of the family class pursuant to paragraph 117(9)(d) of the Immigration and Refugee
Protection Regulations,
SOR/2002-227 [the Regulations] and that the applicant had not provided sufficient
evidence of humanitarian and compassionate [H&C] grounds to overcome the
exclusion pursuant to subsection 25(1) of the Act.
Background
[2]
The
applicant, Ms Kobita, and her two sons, are citizens of Bangladesh. Her husband, Mr Maruf Ahmed, is a Bangladeshi citizen and a permanent resident
of Canada. Ms Kobita and her sons sought to join him here. The immigration
officer concluded that Ms Kobita and her children were not members of the
family class pursuant to paragraph 117(9)(d) of the Regulations because Mr Ahmed had
failed to declare them as dependants upon his arrival in Canada in 2005 and in his application for permanent residence, which was made in 1999.
[3]
The officer
also found that there was insufficient evidence of H&C grounds under
subsection 25(1) of the Act to overcome the exclusion.
[4]
Mr
Ahmed first sought permanent resident status in Canada in 1999, prior to
meeting the applicant. There is some confusing information about the history of
the relationship between Mr Ahmed and Ms Kobita. Both were interviewed
separately and indicated that they were married in 1999 in a religious ceremony
but that the marriage was not registered. The couple had two sons, born in
2001 and 2004. In 2006 they were again married and the marriage was registered.
There was some discrepancy in their description of the reasons for the two
marriages, which the officer pursued extensively in questioning.
[5]
Upon
his arrival in Canada in 2005, Mr Ahmed declared that he was not married and
did not have children. At the interview with the immigration officer in 2011,
he explained that he indicated that he was not married because the marriage was
not registered at the time. He also noted that he had advised his immigration
consultant of his change in status since his original application in 1999 and
the consultant advised him to say that he was not married. The consultant
allegedly told Mr Ahmed that he could sponsor his family later, as his marriage
was not registered at that time. There appears to be no satisfactory
explanation for the failure to disclose the fact that he had two children,
apart from the advice of the consultant.
[6]
Since
being granted permanent resident status, Mr Ahmed has returned to Bangladesh annually to visit his family. He supports them financially and is in frequent
contact with them. Ms Kobita and the two boys live with her sister in Bangladesh. Despite the challenges to the family relationship given the distance apart,
they are a family.
[7]
Since
Mr Ahmed did not declare his dependents upon arrival and they did not accompany
him at that time, they are excluded as members of the family class pursuant to
paragraph 117(9)(d) of the Regulations, which states:
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117. […]
Excluded
relationships
(9) A foreign national shall not be considered
a member of the family class by virtue of their relationship to a sponsor if
[…]
(d) subject to
subsection (10), 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.
[…]
Restrictions
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) sous réserve du paragraphe (10),
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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[8]
The
applicant does not dispute this exclusion finding.
[9]
The
immigration officer also found that there was a lack of sufficient evidence of
H&C grounds to justify overcoming the exclusion and a lack of compelling
evidence that the applicant and children were suffering undue hardship as a
result of this exclusion.
Preliminary Issue
[10]
As
a preliminary issue, the respondent, in his written submissions, argued that
the applicant was precluded from seeking judicial review because her sponsor
had not exhausted the right to appeal the decision determining that the
applicant and her sons were not members of the family class.
[11]
Subsection
63(1) of the Act provides a right of appeal to the Immigration Appeal
Division (IAD) against a decision not to issue a permanent resident visa.
However, section 65 makes it clear that in such an appeal, the IAD is precluded
from considering H&C grounds unless the applicant is a member of the family
class.
[12]
In
the present case, there is no dispute that the applicant and her children are
excluded from the family class. As such, an appeal to the IAD could not address
the issues to be decided, i.e. whether sufficient H&C grounds exist to
overcome the exclusion. This Court has determined that in such cases, a
judicial review should proceed: Phung
v Canada (Minister of Citizenship and Immigration), 2012 FC 585, [2012] FCJ No 599;
Huot v Canada (Minister of Citizenship and Immigration), 2011 FC 180,
[2011] FCJ No 242.
[13]
It
should be noted that the respondent did not pursue this issue in his oral
submissions.
Issues and Standard of Review
[14]
The
issue in this judicial review is whether the immigration officer’s decision
that there were insufficient H&C grounds was reasonable and whether the
officer’s analysis of the best interests of the children in its consideration
of these grounds was reasonable.
[15]
The
parties agree that the applicable standard of review is reasonableness.
[16]
In
Terigho v Canada (Minister of Citzenship and Immigration), 2006
FC 835, 2006 FCJ No 1061 at paras 6-7, Justice Mosley summarised the standard
of review for decisions made on H&C grounds:
[6] The appropriate standard of review for
decisions made under section 25 is reasonableness. Considerable deference
should be accorded to immigration officers exercising the powers conferred by
the legislation, given the fact-specific nature of the inquiry, its role in the
statutory scheme as an exception, the fact the decision-maker is the Minister,
and the wide discretion evidenced by the statutory language: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R.
(4th) 193.
[7] Reasonableness
is not about whether the decision maker came to the right
result. As stated by Justice Iacobucci in Canada(Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56, an unreasonable decision is
one that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion on
the reasonableness standard must look to see whether any reasons support it.
See also Law Society of New Brunswick v. Ryan, 2003 SCC 20
at paras 55-56.
[17]
The
jurisprudence continues to remind the Court of its role on judicial review. The Court should show
deference as long as the decision “falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paras 47, 53, 55; Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 89.
[18]
In
considering whether the decision is reasonable, in accordance with the guiding principles,
I have considered the extensive notes made by the officer, including those
relating to the interviews with the applicant and her sponsor.
[19]
The
applicant submitted that the decision was unreasonable and raised three issues:
that the officer fettered her discretion by excluding from the H&C grounds
the family’s desire to better themselves economically; that the officer
misconstrued the evidence of the sponsor, Mr Ahmed, regarding his failure to
disclose his wife and sons in the process of his application for permanent
residence in Canada; and that the officer failed to consider the best interests
of the children.
Did the officer fetter her
discretion by excluding economic factors from the H&C considerations?
[20]
The
applicant notes that section 25 of the Act provides wide discretion to
the officer to consider H&C grounds. The applicant submits that the officer
erred in determining that economic factors, particularly the applicant’s and
sponsor’s evidence that they would have better economic opportunities in
Canada, could not be considered as H&C grounds.
[21]
The
respondent submits that there was significant discussion about the better
economic situation for the family in Canada, and that the officer considered
this. However, the officer found that the economic prospects in Canada did not constitute an H&C consideration sufficient to overcome their exclusion.
[22]
The
record supports the respondent’s position. The officer noted the evidence of
the applicant and sponsor that their economic situation would be better. She
also noted the applicant’s evidence that she had a stable home in Bangladesh and concluded that they were not experiencing undue hardship. This finding was
open to the officer to make based on the weight she attached to the economic
factors and the overall assessment of undue hardship. I do not find that the
officer fettered her discretion or that her finding falls outside the range of
possible, acceptable outcomes.
Misrepresentations or
Non-Disclosure of the Marriage and Children
[23]
With
respect to the sponsor’s evidence concerning his failure to disclose his wife
and sons, the applicant notes that Citizenship and Immigration Canada conducted
an investigation of these misrepresentations and decided not to take any action
against the applicant. Therefore, the immigration officer’s focus on the
misrepresentations is not justified. While it is a factor to be considered, the
applicant offered an explanation: when he first applied, he did not have a wife
or children, and when he arrived in Canada in 2005 he did not disclose that he
was married because the marriage was not registered and because the immigration
consultant had advised him not to do so, apparently for the same reason (that
the marriage was not registered). The consultant also told Mr Ahmed that he
could seek to sponsor his family later. The applicant submits that his
explanations about his failure to disclose he was married were not
inconsistent.
[24]
The
respondent submits that a misrepresentation on an application for permanent
residence is a relevant public policy consideration in an H&C assessment: Li
v Canada (Minister of Citizenship and Immigration), 2006 FC 1292, [2006]
FCJ No 1613 at paras 32-33 [Li]; Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2009] FCJ No 173 [Kisana].
[25]
The
respondent also noted that in Pascual v Canada (Minister of Citizenship and
Immigration), 2008 FC 993, [2008] FCJ No 1233, Justice Zinn addressed a
similar issue and noted that officers are guided by operational guidelines (OP2
- Processing Members of the Family Class). These guidelines provide that where
there are compelling reasons for not having disclosed the existence of a family
member, it may be appropriate to take into account H&C considerations.
Examples of such compelling reasons include where the sponsor believed the
person was dead or his whereabouts were unknown or where disclosure would put
the family member at risk. An inadvertent omission to declare a family member
did not constitute a compelling reason in that case.
[26]
The
respondent submits that the misrepresentations in this case were not
inadvertent, but deliberate. This is, therefore, not a compelling case to
justify reliance on H&C grounds.
[27]
The
respondent also submits that in Kisana, the Federal Court of Appeal
noted that factors favouring family reunification will not always outweigh the
public policy concerns arising out of misrepresentation.
[28]
It
is important to consider the purpose of section 25 of the Act which is
to permit applicants who would otherwise be inadmissible to become admissible
based on H&C grounds.
[29]
On
the one hand, it appears to defeat the purpose of that section to dwell on the
fact that the applicant is inadmissible as part of the H&C considerations.
It is not disputed that the applicant is not a member of the family class and
is inadmissible. The only way to permit admissibility is to overcome the
exclusion on H&C grounds. Therefore, the immigration officer’s reliance on
the misrepresentations that resulted in the inadmissibility as a factor in the
H&C considerations appears to defeat the purpose of section 25 of the Act.
[30]
On
the other hand, the jurisprudence has established that such misrepresentations
should be considered.
[31]
As noted
above, the role of the Court is not to reweigh the evidence the officer
considered. However, it is appropriate to explore whether this factor was
determinative to the exclusion of other factors.
[32]
As
noted by Justice de Montigny in Sultana v Canada (Minister of
Citizenship and Immigration), 2009 FC 533, [2009] FCJ No 653 at para
25:
25 That being said, one must not forget that the presence of
s.25 in the IRPA has been found to guard against IRPA
non-compliance with the international human rights instruments to which Canada
is signatory due to s.117(9)(d): de Guzman v. Canada (Minister of
Citizenship & Immigration), 2005 FCA 436 (F.C.A.), at
paras. 102-109. If that provision is to be meaningful, Immigration officers
must do more than pay lip service to the H&C factors brought forward by an
applicant, and must truly assess them with a view to deciding whether they are
sufficient to counterbalance the harsh provision of s.117(9)(d). As my
colleague Justice Kelen noted in Hurtado v. Canada (Minister of Citizenship
& Immigration), 2007 FC 552 (F.C.), at para. 14,"...if the
applicant's misrepresentation were the only factor to
be considered, there would be no room for discretion left to the Minister under
section 25 of the Act." This is indeed recognized in the OP 4 Manual on
Overseas Processing, Appendix F, where officers are reminded that they should
ensure "that their H&C assessments go beyond an explanation as to why
applicants are described by R117 (9) (d) to consider the positive factors an
applicant has raised in support of his/her request for an exemption from R117
(9) (d)".
[33]
The officer’s
decision and CAIPS notes include a brief reference to the sponsor’s explanation
for his misrepresentation: that he received bad advice from an immigration
consultant and that he derived no benefit from failing to declare his
dependents. The officer then made extensive notes about the factors that
countered the claim on H&C grounds, all of which related to
the same misrepresentations and inconsistencies in the answers of the sponsor
and the applicant about the registration of their marriage.
[34]
After turning
to the best interests of the children, which the officer determined would be
best addressed by remaining in Bangladesh, the officer concluded that there
were insufficient H&C grounds to overcome the applicant’s exclusion.
Despite the reference to the insufficient H&C grounds, it appears that the
officer did not consider any other H&C grounds except the best interests of
the children and the misrepresentation, which, as noted above, works against
H&C considerations. The officer appears to dwell on the misrepresentation,
which is the reason for the exclusion and which was investigated – and not
pursued further– by Citizenship and Immigration Canada. The sponsor’s conduct
in not declaring his dependents, whether due to the bad advice of the immigration
consultant or to his view that an unregistered marriage was not a marriage,
seems to haunt him, to a disproportionate extent.
[35]
While the
misrepresentation is a relevant factor to be considered, it should not be the
only or the primary factor, as this would defeat the purpose of section 25 of
the Act.
[36]
As a result,
the officer’s decision with respect to the assessment of the H&C grounds is not reasonable.
Best Interests of the
Children
[37]
The
applicant submits that the officer failed to adequately consider the best
interests of the children and focussed only on the status quo, i.e. the
children’s life in Bangladesh, without considering the alternative of their
life in Canada in a reunited family. The applicant submits that the officer
relied on the fact that the children were doing well in school, had family
connections in Bangladesh, that their father visited them there annually, and
that they have limited knowledge of English, to conclude that it would be in
their best interests to remain with their mother in Bangladesh. The officer
failed to consider whether the best interests of the children would be served
by coming to Canada and being together.
[38]
The
applicant noted the decision of Justice Mactavish in Cordeiro v Canada
(Minister of Citizenship and Immigration), 2004 FC 1231, [2004] FCJ
No 179 at paras 21-24 [Cordeiro], where she reiterated the principles
set out in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] 2 SCJ No 39 [Baker], Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 FC 555 [Hawthorne]
and Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA
125, [2002] FCJ No 457. These cases establish that it is incumbent on
immigration officers to be alert, alive and sensitive to the interests of the
children in question. To do so, the officer must ensure that the child’s
interests are identified and defined. The officer must determine how much
weight should be given to the needs of the child in the circumstances of the
case.
[39]
In
Cordeiro, Justice Mactavish found that the officer focussed on
one part or one option and ignored the impact of leaving Canada on the child’s close relationship with his sister. The officer was entitled to weigh
the factors along with others, but it was an error to ignore the other option
or factor.
[40]
The
applicant submits that, just as in Cordeiro, the officer only considered
how the children’s best interests could be met in Bangladesh and did not
consider how the children’s best interests would be met in Canada with both parents together and with the opportunities for better education, better
economic stability and a more typical family life.
[41]
The
respondent submits that the officer was alert, alive and sensitive to the best
interests of the children and did consider the pros and cons of remaining in Bangladesh with their mother, which is the situation they were accustomed to, and moving to Canada to live together as a family.
[42]
The
record shows that the officer reviewed the applicant’s evidence that indicated
the children had lived all their lives in Bangladesh, had a close relationship
with family members there, were doing well in school and were happy. The
officer noted the applicant’s statement that the children missed their father,
as did the applicant. The officer also noted the applicant’s statement that she
had no fear in Bangladesh, despite some generalized violence, and that she had
no problems with the government.
[43]
The
officer appears to focus only on the situation in Bangladesh and made only one
observation or finding with respect to the option of moving to Canada. The officer noted, in the context of summarising her considerations of the best
interests of the children, that the applicant had indicated that the family
would be better off economically in Canada. Nothing more was noted about how
the best interests of the children would be met in Canada.
[44]
I
am mindful of the jurisprudence establishing that the officer is presumed to
know that living in Canada would offer the child opportunities that they would
not otherwise have (Hawthorne, above, at para 5) and that to compare a
better life in Canada to life in the home country cannot be determinative of
best interests as the outcome would almost always favour Canada (Li,
above).
[45]
The Supreme Court
of Canada’s decision in Baker set out the basic principles regarding a
decision-maker’s obligation to consider the best interests of the children when
making H&C decisions:
[F]or 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.
Baker, above, at para 75.
[46]
The Federal
Court of Appeal has also held that a mere statement that the best interests of
the child have been considered is insufficient:
[A]n officer cannot demonstrate that she has been "alert,
alive and sensitive" to the best interests of an affected child simply by
stating in the reasons for decision that she has taken into account the
interests of a child of an H & C applicant (Legault, at paragraph 12). Rather, the
interests of the child must be "well identified and defined" (Legault,
at paragraph12) and "examined ... with a great deal of attention" (Legault, at paragraph 31).
Hawthorne, above, at para 32.
[47]
The Federal
Court of Appeal also noted that determining the best interests of the child
should be the decision-maker’s starting point, as opposed to examining
different scenarios and working backwards to compare their impact on the child:
Hawthorne, above, at paras 41, 43.
[48]
This
Court recently held in Williams v Canada (Minister of Citizenship
and Immigration), 2012 FC 166, [2012] FCJ No 184 [Williams], at para 64,
that there is no ‘hardship threshold’ that must be ‘met’, but rather that the
best interests of the child is truly the starting point of the analysis:
There is no basic needs minimum which if "met" satisfies
the best interest test. Furthermore, there is no hardship threshold, such that
if the circumstances of the child reach a certain point on that hardship scale
only then will a child's best interests be so significantly
"negatively impacted" as to warrant positive consideration. The
question is not: "is the child suffering enough that his "best
interests" are not being "met"? The question at the initial
stage of the assessment is: "what is in the child's best interests?"
[49]
The Court in Williams
also set out a three-step approach that decision-makers are to follow when
assessing the best interests of the child:
When assessing a child's best interests an Officer must establish
first what is in the child's best interest, second the degree to which the
child's interests are compromised by one potential decision over another, and
then finally, in light of the foregoing assessment determine the weight that
this factor should play in the ultimate balancing of positive and negative
factors assessed in the application.
Williams, above, at para 63.
[50]
This
Court has more recently cautioned that not all cases will conform to the Williams
framework, but that it is a “useful guideline” for decision-makers. However, it
does not have the mandatory effect that a decision of the Supreme Court of
Canada or Federal Court of Appeal would have: Webb v Canada (Minister of Citizenship
and Immigration), 2012 FC 1060,
[2012] FCJ No 1147 at para 13.
[51]
In the
present case, the officer concluded that the best interests of the children
would be to continue to reside with their mother in Bangladesh as they do not
appear to be suffering undue hardship as a result of their exclusion.
[52]
Taking
into consideration the record of the decision and the principles noted above, I
find the officer’s assessment of the best interests of the children to be
unreasonable. The officer took the status quo as her starting point and determined
that the status quo was sufficient without considering other options, including
life in Canada with both parents. In addition, the officer focussed on the
fact that the children were not suffering “undue hardship” due to their
exclusion. For similar reasons as noted in Williams, there is no need to
find that the children are suffering undue hardship before considering if their
best interests could be met by moving to Canada.
[53]
Finally,
as noted in Cordeiro, the officer may weigh the pros and cons or the
impacts of different scenarios, but the officer should not ignore or fail to
consider one of those scenarios, i.e. how the best interests of the children
could also be addressed by reuniting the family in Canada. Given that the
family’s goal in pursuing the application was to be together in Canada, that scenario should have been considered to determine if the best interests of the
children could be met and then weighed or balanced against other scenarios.
Based on the record before the Court, the officer failed to consider the
alternatives in her assessment of the children’s best interests.
Conclusion
[54]
For
the reasons noted above, the judicial review is allowed and the application for
an exemption from inadmissibility pursuant to section 25 of Act should
be re-determined by another immigration officer.
[55]
No
certified question was proposed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The judicial review is
allowed and the application for an exemption from inadmissibility pursuant to
section 25 of Act should be re-determined by another immigration
officer.
2. No
certified question was proposed.
"Catherine M.
Kane"
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