Date: 20090707
Docket: IMM-4516-08
Citation: 2009 FC 706
Ottawa, Ontario, July 7, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
KELLY
PALUMBO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision of an immigration officer (the officer) dated October 3, 2008, where
the officer refused the Applicant’s request for an exemption from the permanent
resident visa requirements on humanitarian and compassionate (H&C) grounds.
Issues
[2]
This
application raises the following issue: did the officer err in fact and in law
in deciding the Applicant's case?
[3]
For
the following reasons, the application shall be dismissed.
Impugned Decision
[4]
Generally,
an application for permanent residence must be made from outside Canada. However,
taking into account H&C reasons, subsection 25(1) of the Act authorizes the
Minister to issue a permanent residence permit from within Canada.
[5]
In
the case at bar, the Applicant has been residing in Canada since 1990
but she has not been employed for longer than 8 months while residing here. The
Applicant stated that she did some volunteer work for over a year in 2007 and
2008 but she has not provided any documents to indicate that she has assets in Canada. Although the
Applicant has resided in Canada for an extensive amount of time, the officer
accorded significant weight to the fact that she is not contributing to
Canadian society by way of employment, but drawing from it in the form of
welfare benefits which she is still receiving. Since the Applicant is an
American citizen, the officer found it was reasonable to believe that should
she be required to return to the United States (US), she would be able to
continue to receive social service benefits from her country of nationality.
[6]
The
Applicant has three Canadian children; two of them have US citizenship.
The officer noted that there is a possibility that the youngest child could
also have American citizenship given that his mother is an American citizen and
by meeting certain criteria and registration requirements.
[7]
The
Applicant stated that her two older sons ran away because of conflicts with
their father. She also indicated that although the father does not want custody
of the children, he maintains a good relationship with their youngest son. She
states the father will not allow her “to move that far away with them”. However,
given the fact that the two oldest children are over the age of 18, it is
reasonable to believe that custody is no longer an issue with them.
[8]
With
respect to separation between the youngest child and his father, the officer
noted that this is a decision to be left with the parents and/or the courts. According
to the officer, relationships are not bound by geographical location and there
are several methods by which the youngest child could maintain a relationship with
his father should the parents determine that he would accompany the Applicant
to the United
States.
[9]
The
information provided for the two oldest sons indicate that they are not in
secondary school, they are not working and they are in receipt of social
assistance. Given their age and their Canadian citizenship, it is reasonable to
believe that they could engage in some form of employment, full time or part
time, in order to assist the family financially. Since these two oldest
children also have American citizenship, it is reasonable to believe they could
find employment in the United States should they decide to
accompany their mother if she were to return to her country of origin. The
officer also notes that all three children will maintain their Canadian
citizenship regardless of where they reside.
[10]
Having
considered all the information regarding the application, the officer was not
satisfied sufficient humanitarian and compassionate grounds exist to approve
the exemption requested.
Relevant Legislation
[11]
The
relevant
legislation can be found at Annex A at the end of this document.
Standard of Review
[12]
In
light of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
standard of review of an H&C decision is reasonableness and the decision is
owed considerable deference (Lee v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1152, [2008] F.C.J. No. 1632 (QL) at paras. 16-17;
see also Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paras. 17 and 62).
Analysis
[13]
There
is a presumption that the immigration officer has considered all the evidence.
Although the officer is not obliged to recite all the facts in its decision,
the relevant facts should be mentioned and these facts must be considered and
discussed. A general statement to the effect that the officer considered all
the evidence may be sufficient to meet this requirement (Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration)
(1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 (F.C.T.D.); Bains v. Canada (Minister of Employment and
Immigration),
63 F.T.R. 312, 40 A.C.W.S. (3d) 657 (F.C.T.D.).
[14]
In
the case at bar, the immigration officer has considered the evidence and has
provided relevant and sufficient reasons to justify her refusal to grant the
Applicant’s application considering the little information that was available
to her. It has to be noted that the Applicant was provided assistance in
filing her H&C claim.
[15]
Regarding
the best interests of the children, the officer considered the factors found at
section 5.19 of the Operational Manual.
[16]
However,
the best interests of a child will not necessarily be the determining factor in
all cases (Legault v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 125, [2002] 4 F.C. 358). Once the immigration
officer has identified and defined the best interests of a child and has been
alert, alive and sensitive, she can give the appropriate weight in relation to
the circumstances of the case that she has to decide and it is not for this
Court to reconsider the value that the officer assigned to these factors (Legault,
above at paras. 11-12).
[17]
In
the present case, the Court does not find that its intervention is warranted.
[18]
The
Applicant submits the following questions for certification:
Does the Minister of Citizenship and
Immigration's delegate have a duty to obtain further information concerning the
best interests of the Canadian born children if the delegate believes the
information presented by the applicant to be insufficient to assess the best
interests of the children?
[19]
The
Respondent opposes such a question because it is not determinative. Also, the
Federal Court of Appeal recently declined to answer a very similar certified
question in Kisana v. Canada (Minister of Citizenship
and Immigration),
2009 FCA 189.
[20]
Even
though the Court of Appeal in Kisana wrote at paragraph 62
"… However, I do not rule out the possibility that there may be occasions
where fairness may or will require an officer to obtain further and better
information. Whether fairness so requires will therefore depend on the facts of
each case", the present Court is of the opinion that such is not the case
here.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
ANNEX A
Relevant Legislation
Section 25 of the Act governs applications
for permanent residence based on humanitarian considerations:
|
25. (1)
The Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or 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 obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
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, de sa propre initiative ou
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
Operational Manual IP 5
– Immigration Applications in Canada made on Humanitarian
and Compassionate Grounds (Operational Manual) provide the following
guidelines:
5.19. Best interests of the
child
The Immigration and Refugee Protection Act
introduces a statutory obligation to take into account the best interests of a
child who is directly affected by a decision under A25(1), when examining the
circumstances of a foreign national under this section. This codifies
departmental practice into legislation, thus eliminating any doubt that the
interests of a child will be taken into account.
Officers must always be alert and sensitive to
the interests of children when examining A25(1) requests. However, this
obligation only arises when it is sufficiently clear from the material
submitted to the decision-maker that an application relies, in whole or at
least in part, on this factor. An applicant has the burden of proving the basis
of their H&C claim. If an applicant provides insufficient evidence to
support the claim, the officer may conclude that it is baseless. As with all
H&C decisions, the officer has full discretion to decide the outcome of a
case.
It is important to note that the codification
of the principle of best interests of a child into the legislation does
not mean that the interests of the child outweigh all other factors in a
case. The best interests of a child are one of many important factors that
officers need to consider when making an H&C or public policy decision that
directly affects a child.
In reaching a decision on an H&C
application, officers must consider the best interests of any child directly
affected by the decision. "Any child directly affected" in this
context could mean either a Canadian or foreign-born child (and could include
children outside of Canada).
The relationship between the applicant and
"any child directly affected" need not necessarily be that of parent
and child, but could be another relationship that is affected by the decision.
For example, a grandparent could be the primary caregiver who is affected by
the immigration decision, and the decision may thus affect the child.
The outcome of a decision under A25(1) that
directly affects a child will always depend on the facts of the case. Officers
must consider all evidence submitted by an applicant in relation to their
A25(1) request. Thus, the following guidelines are not an exhaustive list of
factors relating to children, nor are they necessarily determinative of the
decision. Rather, they are meant as a guide to officers and illustrate the
types of factors that are often present in A25(1) cases involving the best
interests of the child. As stated by Madame Justice McLachlin of the Supreme
Court of Canada, "... The multitude of factors that may impinge on the
child's best interest make a measure of indeterminacy inevitable. A more
precise test would risk sacrificing the child's best interests to expediency
and certainty... ." (Gordon v. Goertz, [1996] 2 S.C.R. 27).Generally,
factors relating to a child's emotional, social, cultural and physical welfare
should be taken into account, when raised. Some examples of factors that
applicants may raise include:
- 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;
- matters related to the child's gender.
The facts surrounding a decision under A25(1)
may sometimes give rise to the issue of whether the decision would place a
child directly affected in a situation of risk. This issue of risk may arise
regardless of whether the child is a Canadian citizen or foreign-born. In such
cases, it may be appropriate to refer to sections 13.1 to 13.6 of this chapter
for further guidance.
12.4 Factors related to links
with family members
- Officers should consider the following
factors:
- what are the effective links with family
members (children, spouse, parents, siblings, etc.) in terms of ongoing
relationship as opposed to simple biological fact of relationship;
- where the applicant is residing in relation
to the family members, particularly their children;
- if there has been any previous period of
separation, what was the duration and the reason;
- if the applicant and their spouse are
separated or divorced, was there a court order in relation to custody
arrangements;
12.10 Separation of parents and children
The removal of an individual without status
from Canada may have an impact on family members who do have the legal
right to remain (i.e., permanent residents or Canadian citizens). Other than a
spouse or partner, family members with legal status may include children,
parents and siblings, among others. The lengthy separation of family members
could create a hardship that may warrant a positive H&C decision.
In evaluating such cases, officers should
balance the different and important interests at stake:
- Canada's interest (in light of the legislative
objective to maintain and protect the health, safety and good order of Canadian
society);
- family interests (in light of the legislative
objective to facilitate family reunification);
- the circumstances of all the family members,
with particular attention given to the interests and situation of dependent
children related to the individual without status;
- particular circumstances of the applicant's
child (age, needs, health, emotional development);
- financial dependence involved in the family
ties; and
- the degree of hardship in relation to the
applicant's personal circumstances (see Definitions, Section 6.6, Humanitarian or
compassionate grounds).
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