Date: 20090914
Docket: IMM-4558-08
Citation: 2009 FC 904
Ottawa, Ontario, September 14, 2009
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
Heather Lafleur TONEY
Aalyah Akeyba TONEY
Applicants
and
MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Carline Médée,
Immigration Officer (officer), refusing the applicants’ request for permanent
residence on humanitarian and compassionate (H&C) grounds. The decision was
rendered on September 12, 2008.
[2]
Leave
was granted by Madam Justice Hansen on April 8, 2009.
Facts
[3]
The
principal applicant Heather Toney (applicant) and her daughter, Aalyah, are
citizens of St.
Vincent.
[4]
In
1992, at the age of 13, the applicant came to Canada to live with
her aunt when her grandmother who was raising her passed away.
[5]
The
applicant is not close with her mother, who travels back and forth between the
British Virgin Islands and St. Vincent. She is very close with her father who
lives in Boston.
[6]
In
her affidavit, the applicant says that while she lived with her aunt in Kitchener, Ontario, her uncle
molested her. This forced her to move to Montreal. The
applicant lived in Montreal from 1994 to 1999 and did domestic work.
[7]
The
applicant dated Kelly Moses, Aalyah’s father, for 2 years. They broke up once
the applicant became pregnant. Mr. Moses wanted the applicant to have an
abortion, and when she refused, he left Montreal for Toronto.
[8]
In
November 1999, the applicant was deported to St. Vincent when she was
four months pregnant. The applicant gave birth to Aalyah on April 10, 2000 in
St. Vincent.
[9]
In
September 2002, the applicant tried to re-enter Canada but was sent
back to St. Vincent.
[10]
According
to the applicant, while in St. Vincent she was in a violent
relationship with her boyfriend. In order to protect Aalyah, in June of 2005
she sent her daughter to Montreal to live with her sister who is a permanent
resident in Canada.
[11]
The
applicant legally changed her name in St. Vincent and in December 2005, the
applicant returned to Canada with a passport in the name of Wendy
Laverne Adams. She was granted a six month visitor’s visa.
[12]
According
to the applicant, she returned to Montreal because she wanted
Aalyah to know her father, wanted to get child support from him, and wanted to
escape her abusive relationship in St. Vincent.
[13]
The
applicant notes that she has visited Toronto many times, but Mr.
Moses has refused to meet his daughter. However, “all of his family know and
love her”.
[14]
On
September 20, 2006, a removal order was issued against the applicant and her
daughter.
[15]
A
pre-removal risk assessment (PRRA) was conducted and, on February 15, 2007, a
negative decision was issued. The applicant applied for leave to commence
judicial review of the PRRA decision but leave was refused on June 8, 2007
(IMM-1437-07).
[16]
On
October 12, 2007, the applicant won a final judgment in the Superior Court of
Quebec against Mr. Moses that recognized his paternity and obligation to pay
child support.
[17]
In
October of 2007, the applicant filed an H&C application.
[18]
On
May 15, 2008, Mr. Jean Bellavance refused to defer the applicants’ removal. The
applicant filed an application for judicial review of Mr. Bellavance’s
decision.
[19]
On
May 24, 2008, Mr. Justice de Montigny granted a stay of removal pending the
hearing of the judicial review application on its merits.
[20]
On
September 10, 2008, the applicant discontinued her application for judicial
review of Mr. Bellavance’s decision. The CBSA undertook not to remove the
applicant until the H&C application was decided.
[21]
On
September 12, 2008, the H&C decision under review in this application was
issued.
[22]
On
December 18, 2008, Madam Justice Hansen granted the applicants a stay of
removal pending the resolution of the application for leave and judicial
review.
Relevant Statutory
Provisions
[23]
The
Immigration and Refugee Protection Act, S.C. 2001, c. 27:
Humanitarian and
compassionate 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.
|
Decision under review
[24]
At
the outset, the decision notes that it is incumbent on the applicant to prove
that the requirement of applying for permanent residence outside of Canada would cause
her undue hardship. The officer notes that the decision is based on the best
interests of her daughter who was born in St. Vincent.
[25]
The
officer noted that the applicant stated that her daughter’s father is a
Canadian citizen; however, the records indicate that Mr. Moses was not a
Canadian citizen at the time of Aalyah’s birth to the present.
[26]
The
officer recited the applicant claims that her will was to reunite her daughter
with Mr. Moses, and stressed the importance of the two staying in Canada so the
applicant could enforce a support order against Mr. Moses. The officer noted
that a DNA test was performed to determine paternity.
[27]
The
officer found that while the presence of a father can be important for a child,
in this case there was no evidence submitted to indicate the existence of a
significant and meaningful relationship between the father and daughter. There
was no mention of any visits between the two.
[28]
The
officer gave little significance to the documents presented by the applicant
that state the measures she has undertaken to prove paternity and to have the
father take financial responsibility of Aalyah. The only document signed by the
father was his formal demand to stop child support payments. Consequently, the
officer found that the best interests of the child were not a determinative
issue in this case.
[29]
The
officer then recited the applicants’ immigration history.
[30]
The
officer concluded that the fact the applicant changed her name in order to be
allowed into Canada and the fact that she was always working while in Canada
demonstrate that she wants to establish herself in the country.
[31]
The
officer noted that the applicant has made efforts to become financially
independent but has not shown respect for the law. She has not obtained the
necessary documents – a work permit and written authorization – to re-enter Canada after her
expulsion. Further, she only ever held one work permit and that was for the
period of September 1998 to January 2000, even though she has worked in Canada for several
years.
[32]
Given
all of this, the officer concluded that the case does not justify an exception
to the requirements imposed on all immigrants. The officer was not satisfied
that the applicant had shown the best interests of the child is determinative
in this case and that having to leave Canada to apply for permanent residence
abroad, which is what the law requires, would cause her undue and
disproportionate hardship.
Issues
[33]
The
applicant frames the issues as:
1.
Did
the Minister’s Delegate err when he did not take into account the best
interests of the child?
2. Did
the Minister’s Delegate err when he did not take into account Mrs. Toney’s establishment
in Canada?
3. Did
the Minister’s Delegate err when he did not give the applicants a reasonable
opportunity to update their file?
4. Would
deporting the applicants violate Canada’s national and
international human rights obligations?
[34]
The
respondent does not list issues, but does address the issues raised by the
applicant. The respondent also raises a preliminary objection to some of the
evidence in the applicant’s affidavit that the respondent submits was not
before the officer.
[35]
I
wish to re-frame the issues as follows:
1. Are
pages 30-31 and 35-52 of the Applicant’s Record inadmissible because they were
not before the decision-maker?
2. What
is the applicable standard of review?
3. Was
the officer’s decision on best interests of the child reasonable?
4. Was
the officer’s decision on establishment reasonable?
5. Did
the officer err by not giving the applicants reasonable time to update their
file?
6. Would
deporting the applicants violate Canada’s international and
national human rights obligations?
Position of the
Applicant
[36]
The
applicant did not reply to the respondent’s preliminary objection to the
affidavit evidence nor did the applicant discuss the applicable standard of
review.
Was the officer’s
decision on best interests of the child reasonable?
[37]
The
applicant states that Aalyah grew up in Montreal and her whole life is in Montreal. She attends
school and has many friends and a large family here. The applicant states that
Aalyah’s father is a Canadian citizen. If she were removed from Canada, Aalyah
would have to live in poverty and without the support of family and friends.
[38]
The
applicant alleges that the best interests of Aalyah were not taken into account
as required by Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. The applicant also
points to the United Nation’s Convention on the Rights of the Child and Arulraj
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 529 to help define what the
parameters of the best interests of the child are and what Canada’s
obligations are.
[39]
In
Arulraj, the Court noted that there is no legal basis for incorporating
a burden of irreparable harm into the consideration of the best interests of
the children.
[40]
The
applicant submits that the best interests of Aalyah are of “utmost importance”
in this case and the deportation of Aalyah would be devastating. According to
the applicant, if she and Aalyah are removed from Canada, Aalyah will
not be able to receive support payments from her father.
[41]
The
applicant submits that Aalyah has a right under international law to be with
her family: the UN International Convention on Civil and Political Rights,
articles 23 and 24 and the Universal Declaration of Human Rights at
paragraph 3 of article 16. According to the applicant, the only family Aalyah
has and has ever known is in Canada.
[42]
The
applicant also refers to the U.S. Department of State Country Report of 2007
for Saint‑Vincent and the Grenadines that discusses the problem of child
abuse, and a study by UNICEF in November 2006 entitled “A Study of Child
Vulnerability in Barbados, St-Lucia and St‑Vincent and the Grenadines” about
aspects of children’s lives such as poverty, education, and health care.
[43]
In
her written submissions, the applicant includes the following excerpt from Mr.
Justice de Montigny’s order to stay the applicants’ deportation in IMM-2365-08:
Mrs. Toney’s daughter enjoys a relatively
stable life in Canada, attends school and benefits
from an extended family and social network. Mrs. Toney herself is better able
to provide for her as a result of the child support order from the Superior
Court of Quebec directing the father to assist financially in her daughter’s
upbringing. All of this would likely be lost if the applicants were to be
removed to Saint-Vincent. In my respectful opinion, this would amount to
irreparable harm.
Was the officer’s
decision on establishment reasonable?
[44]
The
applicant submits the following in support of her claim that she is established
in Canada: she has lived in Canada for 10 years, her sister is in Canada and
she is not close with her mother who lives in St. Vincent, she is able to
support herself and her daughter, she has no criminal record, and she has
contributed to Canadian society. She filed letters of support from friends and employers.
The applicant has volunteered at church for the past two years and she
faithfully attends church with her daughter.
Did the officer err by
not giving the applicants a reasonable opportunity to update their file?
[45]
The
applicants filed an application for leave and judicial review on May 23, 2008
in IMM‑2365-08 to contest the Enforcement Officer’s decision not to defer
their deportation. On May 24, 2008, Justice de Montigny ordered that the
execution of their removal be stayed until a decision was made in their
application for leave and judicial review. That case was discontinued by the
applicant on September 10, 2008 on the condition that their pending H&C
application would be decided before any removal is contemplated.
[46]
According
to the applicant, the discontinuance was filed on the assumption that a
reasonable amount of time would be given for the applicants to update their
H&C file. However, no time was given and a decision on their application
was rendered two days later on September 12, 2008. The applicant submits the
IMM-2365-08 application had a reasonable chance of succeeding given that a stay
was granted and it never would have been discontinued had the applicants known
that a decision was going to be made so quickly.
Would deporting the
applicants violate Canada’s international and
national human rights obligations?
[47]
The
applicants submit that the officer’s decision and the consequent deportation of
the applicants violated their section 7 and 12 Charter rights. The decision is
said not to take into account Canada’s obligations not to deport the applicants
to a country where they will face a life of poverty and hardship.
[48]
The
applicant also cites the U.S. Department of State Country Report of 2007 on the
problem of violence against women in St. Vincent and submits that she will not
be protected if she were returned to St. Vincent.
[49]
The
applicant also submits the following rights that are protected under
international law are violated by the decision:
- The
right of a refugee not to be returned to a territory where his life or freedom
would be threatened on account of his race, religion, nationality, membership
in a particular social group or political opinion, as stated in the Convention
relating to the Status of Refugees;
- The
right to a simple, brief procedure whereby the courts will protect the
applicant from acts of authority that, to her prejudice, violate fundamental
constitutional rights, as required by article 18 of the American Declaration
of the Rights and Duties of Man; and
- The
right not to be deported except in pursuance of a decision reached in
accordance with law, as enshrined in article 13 of the International
Covenant on Civil and Political Rights.
Position of the
Respondent
[50]
The
respondent submits the style of cause should be amended to add the Minister of
Citizenship and Immigration as a respondent.
Are pages 30-31 and
35-52 of the Applicant’s Record inadmissible because they were not before the
decision-maker?
[51]
According
to the respondent, the applicants have filed additional evidence that was not
before the officer when the decision was made, specifically: pages 30 and 31 of
exhibit “A” and pages 35-52 of exhibit “B”. Such additional evidence cannot be
considered on judicial review. See for example: Asafov v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 713 and Franz v. Canada (Minister of
Employment and Immigration) (1994), 80 F.T.R. 79 (F.C.). As such, the pages
should not be considered by the Court.
What
is the applicable standard of review?
Was
the officer’s decision on best interests of the child reasonable?
[52]
The
respondent submits that the Court should not interfere with an officer’s
decision on an H&C application unless the decision is unreasonable. In an
H&C application, the applicant has the onus of establishing the hardship of
having to obtain a permanent residence visa outside of Canada would be
unusual and underserved, or disproportionate.
[53]
The
respondent says it is inaccurate to say the officer failed to take into account
the daughter’s interest. It is also inaccurate to say that Aalyah’s father is
Canadian since he does not have such status and there is no evidence to support
the applicant’s allegation to that effect.
[54]
The
evidence on child support and enforcing the support order was considered by the
officer and noted in her decision. With respect to paragraph 20 of the
applicant’s submissions, the respondent states that it is to be noted that no
support payments have been made since the judgment in 2007. As such, the
applicant’s reliance on an eventual financial contribution from Aalyah’s father
is purely speculative.
[55]
Contrary
to the submissions of the applicant, Aalyah did not grow up in Canada. She came to
Canada when she was
five years old on a visitor’s permit. Furthermore, the officer addressed the
relationship between the father and the child and the applicant did not file
any evidence in support of the existence of a relationship. Nor was there any
evidence filed with respect to Aalyah’s relationship with other members of her
family on her mother’s side or on her father’s side, contrary to paragraphs 9,
10, 15, 21, and 29 of the applicant’s submissions.
[56]
The
respondent submits that while the best interests of the child is an important
factor to consider when assessing H&C applications, it is not a
determinative factor: Legault v. Canada (Minister of Citizenship and
Immigration), 2002 FCA 125; Bolanos v. Canada (Minister of Citizenship
and Immigration), 2003 FC 1032; and Hawthorne v. Canada (Minister of
Citizenship and Immigration), [2003] 2 F.C. 555 (F.C.A.).
Was the officer’s
decision on establishment reasonable?
[57]
The
respondent submits that the immigration history of the applicant’s presence in Canada was properly
considered by the officer. The applicant has constantly expressed disregard for
Canadian immigration legislation and the officer was correct in concluding that
such conduct should not benefit the applicant: Buio v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 205.
[58]
The
respondent submits the test is not whether the applicant would be in a better
environment in Canada, it is whether having the applicant apply for permanent
residence outside of Canada would constitute undue, undeserved or
disproportionate hardship.
Did the officer err by
not giving the applicants reasonable time to update their file?
[59]
The
respondent submits that the allegations in paragraphs 31-34 of the applicant’s
submissions are unfounded. Furthermore, as can be seen from the Applicants’
Record, no extra proof or information was brought forward by them in order to
demonstrate that their request for landing could have been updated in a
significant manner. Moreover, no conditions were attached to the applicants’
discontinuance since the respondent was representing Canada Border Services
Agency (CBSA) who is not responsible for the processing of permanent residence
applications. Finally, the applicant had ample time to produce further
evidence because she filed her H&C application in October 2007 and the
matter was not decided until September 2008.
[60]
According
to the respondent, contrary to the applicant’s assertion, the officer is under
no obligation to give them an opportunity to update their file: Zambrano v. Canada (Minister of
Citizenship and Immigration) (2008), 326 F.T.R. 174. Consequently, there
are no procedural violations in this case.
Would deporting the
applicants violate Canada’s international and
national human rights obligations?
[61]
The
respondent submits that the Supreme Court of Canada has clearly established
that a removal after a risk assessment does not violate sections 7 and 12 of
the Charter: Chieu v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 84, Al Sagban v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 133. In this case, a
negative PRRA assessment was made and the decision was upheld by the Court.
Analysis
1. Are pages 30-31 and
35-52 of the Applicant’s Record inadmissible because they were not before the
decision-maker?
[62]
The
respondent asserts that pages 30 and 31 of the Applicants’ Record in exhibit
“A” and all the pages of exhibit “B” to Heather Toney’s affidavit were not
before the officer and therefore should not be considered on judicial review.
However, most of the impugned pages are in the Tribunal Record and are properly
before the Court. The table below lists the impugned page(s) in the left column
and the page(s) in the Tribunal Record where the document can be found.
|
Page
of Affidavit
|
Page
of Tribunal Record
|
|
30-31
|
18-19
|
|
36
|
85
|
|
37
|
Not in Tribunal Record.
|
|
38, 39
|
86, 87
|
|
40
|
116
|
|
41, 42, 43, 44,
|
69, 76, 75, 70
|
|
45
|
125
|
|
46
|
Not in Tribunal Record, but
there is a letter with identical content at page 81. The letter in the
Tribunal Record was sent to Immigration Canada while the one in the
Applicants’ Record was sent to Daniel Fougere at Quebec Immigration.
|
|
47, 48
|
111, 106
|
|
49
|
Not in Tribunal Record.
|
|
50
|
17
|
|
51-52
|
8-9
|
[63]
The
respondent correctly recites the law. It is a well-established principle that
only evidence that was before the decision-maker is relevant on judicial
review. In one of the cases cited by the respondent, Asafov v. Canada (Minister of
Employment and Immigration), [1994] F.C.J. No. 713 at paragraph 2 (T.D.),
Justice Nadon stated the following in response to evidence the applicant tried
to submit that was not before the decision-maker:
The purpose of the judicial review
process is to examine the tribunal's decision in the light of the evidence
adduced before it at the hearing and to decide whether or not there are grounds
for review. From that perspective, the evidence which the Applicants now seek
to introduce is irrelevant. By granting this application, I would be
transforming the judicial review process into that of an appeal.
[64]
Asafov has been
cited in agreement several times in subsequent cases, including recently in Jessamy
v. Canada (Minister of
Citizenship and Immigration), [2009] F.C.J. No. 47 at paragraph 55
(F.C.).
[65]
Therefore,
pages 37, 46, and 49 of the Applicants’ Record should not be considered in this
application for judicial review.
2. What is the
applicable standard of review?
[66]
The
decisions of immigration officers on H&C applications are subject to a
reasonableness standard of review. See for example: Ahmad v. Canada (M.C.I.),
[2008] F.C.J. No. 814 at paragraph 11 (F.C.) and Hansra v. Canada (Minister of
Citizenship and Immigration), [2009] F.C.J. No. 297 at paragraph 11
(F.C.).
[67]
Review
on the standard of reasonableness is "concerned mostly with the existence
of justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law." See: Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190 at paragraph 47.
[68]
A
reasonableness standard applies to issues 3 and 4, but issue 5 is a procedural
fairness issue and the standard of review analysis does not apply to procedural
fairness issues. See Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour),
[2003] 1 S.C.R. 539 at paragraph 100.
3. Was the
officer’s decision on best interests of the child reasonable?
[69]
The
respondent is correct that the onus is on the H&C applicant to satisfy the
immigration officer that he or she will suffer unusual, undeserved, or
disproportionate hardship if he or she has to apply for permanent residence
outside of Canada. For the
reasons articulated by the respondent, in my opinion the officer’s conclusion
that the applicant did not satisfy that onus was reasonable.
[70]
The
applicant states that the best interests of the child were not taken into
account by the officer. However, the officer analyzed the best interests of
Aalyah and then determined they are not determinative. The officer found that
there was no evidence of a meaningful relationship between Aalyah and Mr.
Moses. This conclusion is supported by the evidence of the applicant throughout
her immigration file that states the father has made no attempts to see Aalyah.
It is further supported by the evidence that Mr. Moses was trying not to pay
his court ordered child support payments.
[71]
The
applicant cites Arulraj for the proposition that it is an error for an
immigration officer to require an H&C applicant to satisfy the burden of
irreparable harm in terms of the best interests of the child. However, in my
opinion, the officer did not place such a burden on the applicant and the
applicant is unable to point to a part of the decision that suggests the
officer did.
[72]
In
her written submissions, the applicant again asserts that Aalyah’s father is a
Canadian citizen, but the officer determined he was not at the time of Aalyah’s
birth up until the time of the officer’s decision. The applicant does not
explicitly dispute that finding by the officer and does not point to any
evidence to support her claim that he is a citizen.
[73]
The
applicant also states that Aalyah grew up in Canada when in fact
the first five years of her life were spent in St. Vincent.
[74]
The
applicant submits that if she and her daughter are removed to St. Vincent, they will
not be able to enforce the court order and therefore will not receive the child
support payments that are “vital to her well-being”. However, the evidence
before the officer was that Mr. Moses was not making the required payments.
[75]
Furthermore,
there is nothing in the Tribunal Record to support the applicant’s claim that
Aalyah is close with her family in Montreal.
[76]
The
applicant cites the U.S. Department of State Country Report of 2007 for
Saint-Vincent and the Grenadines on the issue of child abuse and child vulnerability,
however, this document is not in the Tribunal Record. In any event, there is no
evidence to substantiate a claim that the likelihood of Aalyah being abused
would increase if she and her mother were removed to St. Vincent. Aalyah
would still be living with and cared for by the applicant, who by the evidence
before the officer is a caring and loving parent. Further, there was no
evidence before the officer to suggest that the applicants would suffer from
poverty if removed from Canada. All the evidence was that the applicant
was a hard worker who did not have trouble making ends meet. The documents
before the officer included documents from her former employer in St. Vincent.
[77]
The
reasons of Justice de Montigny on IMM-2365-08 dated May 24, 2008 were not
before the officer.
[78]
The
reasons of the officer on the best interests of the child are supported by the
evidence that was before the officer. The officer’s decision on this issue is
justifiable, transparent, and intelligible. The officer did not err as the
applicant alleges.
4. Was the
officer’s decision on establishment reasonable?
[79]
The
applicant does not point to a specific error on the part of the officer, but
instead recites the reasons she should have been found to be established in Canada.
[80]
The
officer acknowledges that the applicant really wants to establish herself in Canada and this is
evidenced from her changing her name and the fact she has always worked while
she was in Canada. While the
applicant notes she has no criminal record, the evidence is clear that she has
consistently disrespected Canadian immigration laws. The applicant was well
aware that she required a work permit and written approval to re-enter Canada after her
deportation in 1999. She tried to return in 2002 and was denied for not having
the proper documentation. Instead of obtaining the required documents before
returning again, the applicant legally changed her name in St. Vincent to
obtain a passport under a different name. She also worked throughout her two
stays in Canada, yet she
only had a valid work permit from September 1998 to January 2000.
[81]
It
is important to remember that the purpose of assessing establishment is to
determine whether the claimant is established to such a degree that removal
would constitute disproportionate hardship. The applicant states that she is
close with her sister in Montreal, but did not submit any
evidence from her sister or any friends. She did submit evidence from several
employers and evidence supporting her volunteer work at her church. However,
the officer noted her efforts and determined that they, in addition to the rest
of her application, did not justify an exception to the immigration rules.
[82]
The
applicant tried to establish herself while knowing that her immigration status
was not positive. In this way, she assumed the risk that she may have to return
to St.
Vincent
and apply for permanent residence abroad. Since she assumed the risk, the
hardship she will face as a result is not unusual, undeserved, or
disproportionate to the hardship that all individuals who apply from abroad
face. See for example: Obeng v. Canada (Minister of
Citizenship and Immigration), [2009] F.C.J. No. 57 at paragraph 45
(F.C.).
5. Did the
officer err by not giving the applicants reasonable time to update their file?
[83]
The
applicant claims that she discontinued her application in IMM-2365-08 on the
condition that she would be allowed to update her H&C application. However,
as the respondent points out, there is no evidence to substantiate that
condition and the respondent in IMM-2365-08 was the CBSA while the respondent
in this application should be the Minister of Citizenship and Immigration. The
CBSA is not responsible for permanent residence applications so it is unlikely
that the CBSA would guarantee something that it is not responsible for.
Finally, the H&C application was filed in October 2007 and the decision was
not rendered until September 2008. If the applicant wanted to update her file,
she had the opportunity to attempt to do so.
[84]
In
Zambrano, Madam Justice Dawson concluded that there is no obligation to ask
a PRRA applicant if they wish to make any further submissions, and the
applicant bears the burden of supplying all the documentation to support his or
her claim. Justice Dawson concluded that even if there was an obligation, the
applicant had not provided any evidence of significant, new information that
they could have provided that would have been material to the decision. Like in
Zambrano, the applicant has advanced no evidence to support the position
that the decision would have been different had she been afforded the
opportunity to update her submissions. Consequently, there was no breach of
procedural fairness.
6. Would deporting the
applicants violate Canada’s international and national human
rights obligations?
[85]
The
applicant submits the officer’s decision does not take into account Canada’s obligation
not to deport the applicants to a country where they will face a life of
poverty and hardship. The applicant points to the U.S. Department of State
Country Report for 2007 on the issue of domestic violence in St. Vincent. In my
opinion, these arguments are more properly suited for a review of the PRRA
decision.
[86]
Many
of the applicant’s submissions on this issue are not relevant. Her H&C application
did not deal with domestic violence. This was not a refugee application and the
focus on Canada’s
obligations not to deport refugees to a place where their life or freedom is
threatened is misplaced.
[87]
A
PRRA was completed for the applicants and the result was negative. An
application for leave to review that decision was denied. It is not contrary to
the Charter to remove the applicants to St. Vincent. In Choudhary
v. Canada (Minister of
Citizenship and Immigration), [2008] F.C.J. No. 583, Justice Lagacé
noted at paragraph 25 that:
It is well established that a deportation
order, with respect to a person who is not a Canadian citizen, is not contrary
to the principles of fundamental justice and that the execution of such order
is not contrary to sections 7 or 12 of the Charter (Canada (Minister of
Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711).
[88]
The
jurisprudence does not support the applicant’s broad accusations in regard to Canada’s human
rights obligations.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that for the above reasons, this application for
judicial review is dismissed. No question of
general importance has been submitted for certification.
The style of cause is hereby
amended to include the Minister of Citizenship and Immigration as a respondent.
“Louis
S. Tannenbaum”
AUTORITIES CONSULTED BY
THE COURT
1.
Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817
2.
Mount
Sinai Hospital Center v. Quebec (Minister of Health and
Social Services),
[2001] 2 S.C.R. 281, 2001 SCC 41
3.
Del
Cid v. Canada (Minister of
Citizenship and Immigration) 2006 FC 326
4.
Mughrabi
v. Canada (Citizenship and
Immigration)
2008 FC 900
5.
Griffith c. M.C.I., IMM-4543-98
6.
Franklyn
v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1249
7.
Fraser
v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1154
8.
Okoye
v. Canada (Citizenship and
Immigration) 2008
FC 1133
9.
De
Sousa v. Canada (Citizenship and
Immigration)2008
FC 1171
10.
Kolosovs
v. Canada (Citizenship and
Immigration)
2008 FC 165
11.
Arulraj
v. Canada (Minister of
Citizenship and Immigration) 2006 FC 529
12.
Simoes
v. Canada (M.C.I) (2000), 187 F.T.R. 219
13.
Toney et al v. Canada (Minister of Public Safety and Emergency
Prepardness),
IMM-2365-08
14.
Zambrano
v. M.C.I.,
2008 FC 481
15.
Zambrano
v. Canada (Minister of Citizenship and
Immigration)
(2008), 326 F.T.R. 174
16.
Chieu
v. M.C.I.,
2002 RSC 3
17.
Al Sagban v. M.C.I., 2002 RCS 4
18.
Idahosa v. the Minister of Public Safety and
Emergency Preparedness, 2008 FCA 418
19.
Asafov v. M.E.I., (May 18, 1994)
Imm-7425-93 (F.C.)
20.
Franz v. M.E.I. (1994), 80 F.T.R. 79
(F.C.)
21.
César v. M.E.I., A-72-93, October 8, 1993
(F.C.)
22.
Ferreya c. M.E.I. (1993), 56 F.T.R. 270
23.
Quintero c. M.C.I., IMM-3334-94, February 7,
1995, (F.C.)
24.
Quito c. M.E.I. (1990), 32 F.T.R. 222
25.
Owusu v. M.C.I. 2003 FCT 94
26.
Owusu v. M.C.I., A-114-03, January 26, 2004 (FCA)
27.
Law Society of New Brunswick v. Ryan, 2003 SCC 20
28.
M.C.I. v. Legault, 2002 FCA 125
29.
Legault v. Canada (Minister of Citizenship and
Immigration), 212 D.L.R.
(4th) 139, 2002 FCA 125
30.
Legault v. Canada (M.C.I.), [2002] 4 F.C. 358 (C.A.)
31.
Bolanos
v. M.C.I.,
2003 FC 1032
32.
Hawthorne
v. M.C.I.,
[2003] 2 F.C. 555 (F.C.A.)
33.
Buio v. M.C.I., [2007] F.C.J. No. 205
34.
Kawtharani v. Canada (M.C.I.), 2006 FC 162
35.
Monteiro v. Canada (M.C.I.), 2006 CF 1322
36.
Samsonov v. Canada (M.C.I.), 2006 CF 1158
37.
Hamzai v. Canada (M.C.I.), 2006 FC 1108
38.
Liniewska v. Canada (M.C.I.) 2006 CF 591
39.
Ruiz v. Canada (M.C.I.), 2006 CF 465
40.
Pashulya v. Canada (M.C.I.), 2004 FC 1275
41.
Asafov
v. Canada (Minister of Employment and
Immigration),
[1994] F.C.J. No. 713
42.
Franz
v. Canada (Minister of Employment and
Immigration),
(1994), 80 F.T.R. 79 (F.C.)
43.
Jessamy
v. Canada (Minister of Citizenship and
Immigration),
[2009] F.C.J. No. 47
44.
Ahmad
v. Canada (M.C.I.), [2008] F.C.J. No. 814
45.
Hansra
v. Canada (Minister of Citizenship and
Immigration),
[2009] F.C.J. No. 297
46.
Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190
47.
Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539
48.
Obeng
v. Canada (Minister of Citizenship and
Immigration),
[2009] F.C.J. No. 57
49.
Choudhary
v. Canada (Minister of Citizenship and
Immigration),
[2008] F.C.J. No. 583
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