Date: 20090423
Docket: IMM-3957-08
Citation: 2009 FC 409
Montréal, Quebec,
April 23, 2009
PRESENT:
The Honourable Maurice E. Lagacé
BETWEEN:
LORENZO GERARDO GONZALES CASTILLO
and
MARIA SARA
DOMINGUEZ TREJO
applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review filed under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) of a decision made on August
18, 2008
by an immigration officer (officer) who denied the application for permanent
residency by the applicants based on humanitarian considerations (H&C) under subsection
25(1) of the Act.
I. Facts
[3]
On
January 1, 2007, the applicants came to visit their son Ricardo and his wife in
Canada, and
remained after their visitor status expired.
[4]
They
filed their H&C application on June 25, 2007, and were granted an extension
of their visitor permit until January 14, 2008. From that date, the applicants
lived in Canada without
status until June 5, 2008, at which time they were granted a new extension.
[5]
During
their visit to Canada, the applicants received financial assistance
from their son and daughter-in-law, who provided them with lodging and food.
[6]
In
support of their H&C application ,the applicants submitted only a letter
signed by their son and daughter-in-law, dated May 31, 2007, which indicated
that they relied on the moral support of the applicants. The letter reads as
follows:
I, Angela Lynn Mason and
Ricardo Gonzalez Dominguez, feel it is
extremely important for Sara Dominguez Trejo and
Lorenzo Gerardo Gonzales Castillo to reside in Canada. We rely on our parents for moral
support and we are a close and loving family. As we are planning to soon have
children, we feel it is very important for our children to know, and grow up
close to their grandparents.
We are willing to help and support
our parents in any way possible to enable them to stay in Canada. Feel free to contact us for
additional information.
[7]
On
July 10, 2008, the officer telephoned to update the applicants’ file; this was
when she was informed of the birth, on March 13, 2008, of their first
grandchild. The applicants added no other evidence to their file in support of
their request for an exemption.
II. Impugned decision
[8]
In
her decision, the officer found insufficient reasons in the evidence filed by
the applicants to grant them the requested exemption, and consequently concluded
that “[TRANSLATION] applying for residency abroad, as required under the Act,
would not expose the applicant and his spouse to unusual, undeserved or
disproportionate hardship”, and denied them the exemption.
III. Issues
[9]
This application for judicial review essentially raises two
issues: did the officer err in her assessment of the child’s best
interests;
and was the officer’s negative decision unreasonable having regard to the facts
and the law?
IV. Analysis
Standard of review applicable to H&C decisions
[10]
The standard of judicial review that
is applicable to the denial of an H&C application by an officer is that of
reasonableness, and has not changed since the Supreme Court’s decision in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
The law
[11]
It is only
in exceptional cases (Baker, supra; Legault v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 125, at paragraphs 16
and 17) that an immigration officer will use the discretionary authority
conferred under subsection 25(1) of the Act to allow a foreign national to file
an application for permanent residency in Canada. An applicant without status on Canadian
soil remains a foreign national under the Act. Consequently, without the
exemption sought in this case, such an applicant must apply from outside Canada, as required under the Act.
[12]
The onus
is on the foreigner seeking permission to apply within Canada to prove to the officer that the
requirement to apply from outside Canada
would cause him or her unusual, undeserved or disproportionate hardship (Legault, supra,
at paragraph 23).
Has the
applicant discharged his burden of proof?
[13]
The
applicants allege that their H&C application is based mainly on family
reunification and the best interests of their grandson. They claim that the
officer’s assessment of the documentary evidence and her decision contradict
the very aim of the Act, which is to promote family unification.
[14]
Moreover,
they maintain that the officer was not sufficiently “alert, alive and sensitive”
to the best interests of their grandson in failing to consider that his parents
rely on the moral support provided by the applicants and consider it very
important to have their grandson raised close to his grandparents. They refer
to Kolosovs v. Canada (Citizenship and
Immigration), 2008 FC 165, and stress the decision-maker’s obligation to
be alert, alive and sensitive to the child’s best interests. However,
the Court cannot ignore the fact that this decision nonetheless recognizes that
even though a great deal of weight is given to the child’s best interests,
based on the Federal Court of Appeal’s decision in Legault, supra,
these
interests are not necessarily the determining factor in every case. In other
words, mere mention of the child is not enough. The child’s interests remain
one of several factors to be carefully reviewed and weighed.
[15]
To expect
a different decision from the officer, she would have had to know in concrete
terms how and why the grandson’s best interests would be better served by the
continuous presence of his grandparents. It was not enough for the son and
daughter-in-law of the applicants to support their application and state that “We rely on our parents for
moral support and we are a close and loving family. As we are planning to soon
have children, we feel it is very important for our children to know, and grow
up close to their grandparents”. There should have
been some concrete demonstration of what this support entailed, which might
have allowed the officer to be more “alert, alive and sensitive” than she was
when presented with poorly substantiated evidence.
[16]
Other than
informing the officer of their civil status, their extended family, and very
little about their personal situation, the applicants were far from forthcoming
in explaining what their past, current and future contribution involved in
terms of providing “moral support” to their son Ricardo’s family. At the time
of reviewing their file, the officer contacted the applicants to give them the
opportunity to expand on it. That was when she learned of the birth of the
grandson. Had it not been for that phone call, the evidence would not even have
included the addition of a grandson to the applicants’ extended family.
[17]
In
her decision, the officer explained as follows:
[TRANSLATION]
… I note and understand the grandparents’
love for this baby. I have noted that the parents would like the grandparents
to remain close to him, but given the child’s current age, its significant
ties at this time are to his father and mother.
(Emphasis added)
[18]
To
what other evidence should the officer have been alert, alive and sensitive?
The applicants cannot reproach the officer for having failed to be alert, alive
and sensitive to nonexistent factual evidence when it was up to them to provide
the evidence in support of their claims (Bui v. Canada (Minister of
Citizenship and Immigration) 2005 FC 816, at paragraphs 11 and 12).
Limiting the evidence to the kind of general statement contained in the letter
reproduced above is not enough to justify the requested exemption.
[19]
The
applicants told the officer that they did not have any problems in Mexico, and
did not foresee any in terms of visiting Canada since they
did not require a visa. They will be able to maintain contact with their son,
daughter-in-law and grandson, who will be able to visit them.
[20]
Given
the facts submitted in evidence and the requirements of the Act, the Court does
not see how and why the applicants qualify the impugned decision as
unreasonable.
Family unit
[21]
The
applicants argue, furthermore, that the officer’s decision disregards the main
objective of their application, which is family reunification. Accepting this
rationale would amount to saying that all foreign nationals visiting Canada to keep in
touch with their children and grandchildren settled in Canada should be
admitted simply to provide moral support to their children and grandchildren,
without having to demonstrate that applying for permanent residency from abroad
would expose them to unusual, undeserved or disproportionate hardship. This is
certainly not the goal of the Act when it provides that in exceptional
circumstances and for very specific reasons, the officer may grant an exemption
from the requirement to make an application for permanent residency from abroad.
[22]
With
regard to the integration of the applicants, it should be noted that in her
decision the officer takes into consideration the fact that “[TRANSLATION] the
son and daughter-in-law help the applicant and his spouse by housing and
feeding them”. She also notes that “[TRANSLATION]… the couple speak no French
and very little English. Moreover, the couple do not work and they are not
involved in any community organization or volunteer or other
activity”. However, she does indicate that these factors did not influence
her decision.
V. Conclusion
[23]
In
short, the applicants got the decision that their application and evidence
warranted. Given the very limited evidence that the officer had before her, she
was as alert, alive and sensitive to the child’s best interests as the
evidence allowed. She could not be blamed for insufficient evidence, especially
since it was up to the applicants to prove their claims.
[24]
For
these reasons, the Court finds that the decision challenged in this case is
more than reasonable, and the application is therefore dismissed.
[25]
Since
no serious question of general importance was or should be proposed, none will
be certified.
JUDGMENT
FOR THESE REASONS, THE COURT DISMISSES the application for judicial
review.
“Maurice E. Lagacé”
Certified
true translation
Brian
McCordick, Translator
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