Date: 20110321
Docket: IMM-3198-10
Citation: 2011 FC 347
Ottawa, Ontario, March 21, 2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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RUTE PEREIRA DA SILVA
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Applicant
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and
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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 of the decision of Officer Jerome
Trottier (the Officer) dated May 6, 2010, wherein the Applicant’s request
for permanent residence from within Canada on humanitarian and compassionate
(H&C) grounds pursuant to section 25 of the Immigration and Refugee
Protection Act, RS 2001, c 27 [IRPA] was denied.
[2]
Based
on the reasons below, this application is dismissed.
I. Background
A. Factual
Background
[3]
Rute
Pereira Da Silva (the Applicant) is a citizen of Brazil. She came to Canada on April 1, 2002
on a temporary resident permit and has remained here without status since that
time. She submitted her H&C application on October 7, 2005.
[4]
The
Applicant came to Canada in search of a better
life for her orphaned nieces, Shirley and Vanessa do Vale Pereira. Shirley came
to Canada on December 30, 2002,
and Vanessa joined her on December 11, 2003; both of the nieces were adults by
the time they came to Canada. Both of the nieces
married Canadian citizens and Shirley gave birth to a son, Daniel. Shirley has
received permanent resident status, and Vanessa has been approved in principle
for permanent residency as a member of the family class.
[5]
At a
young age, the nieces lost three primary caregivers in a span of three years –
their mother, father, and then grandmother. They were taken in by the
Applicant’s brother, but suffered verbal and emotional abuse at the hands of
his wife. Throughout this ordeal, the Applicant kept in touch with the nieces
and she eventually took them in after they left their uncle’s home. The
Applicant claims that she has been like a mother to the nieces and a
grandmother to Daniel. The Applicant never married and has no children of her
own.
[6]
The
Applicant is an active member of her church, and she also volunteers at a soup
kitchen for the homeless. The Applicant has been employed as a housekeeper
since her arrival in Canada. Neither she nor her
nieces have required social assistance since arriving in Canada. The Applicant has
never been charged with a criminal offence.
[7]
The
H&C application was based on establishment and the Applicant’s relationship
with the nieces and Daniel.
B. Impugned
Decision
[8]
The
Officer considered the evidence of establishment, but found that the Applicant
had not demonstrated a high level of integration that warranted H&C relief.
The Officer also found that it was unclear whether she was financially
self-sufficient because there was no clear evidence as to how many hours she worked
or what her income was.
[9]
The
Officer considered the Applicant’s relationship with her nieces and with
Daniel, but was not satisfied that the relationship could not be maintained if
the Applicant was returned to Brazil. The Officer also noted that the Applicant still had family
in Brazil, and that it would not
be a hardship for her to return there. The Officer acknowledged that hardship
would result from the Applicant’s separation from Daniel, but concluded that
such hardship would not be unusual and undeserved or disproportionate.
[9]
II. Issues
[10]
The
Applicant challenges the Officer’s consideration of her establishment, and
argues that the Officer failed to appreciate the hardship that would result
from her removal because he failed to consider her as a de facto family
member. The Applicant also makes procedural fairness arguments. The Respondent
argues that the Applicant is really challenging the weight given to the
evidence, and submits that the Applicant is not a de facto family member.
[11]
I
characterize the issues as:
(a) Is
the Officer’s conclusion on establishment supported by the material in the
record?
(b) Did the
Officer err in assessing Daniel’s best interests?
(c) Is the
Applicant a de facto family member?
III. Standard
of Review
[12]
The
Applicant did not make submissions about the standard of review. The Respondent
submits that H&C decisions are reviewable on the standard of
reasonableness.
[13]
The
Officer’s determination regarding establishment was a factual one, and attracts
deference. The Supreme Court held at paragraph 46 of Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 that
questions of fact are reviewable on a standard of reasonableness.
[14]
More
generally, the standard of review on H&C applications is reasonableness
(see Kisana v Canada (Minister of
Citizenship and Immigration), 2008 FC 307, 2008 CarswellNat 671, aff’d 2009
FCA 189). This standard has been applied to determinations about the best
interests of the child (see Benyk v Canada (Minister of Citizenship and
Immigration), 2009 FC 950, 84 Imm LR (3d) 35) and about whether someone is
a de facto family member (see John v Canada (Minister of Citizenship
and Immigration),
2010 FC 85, 2010 CarswellNat 126).
[15]
As
set out in Khosa, above, and in Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 SCR 190, reasonableness requires consideration of the
existence of justification, transparency, and intelligibility in the
decision-making process. It is also concerned with whether the decision falls
within a range of acceptable outcomes that are defensible in respect of fact
and law.
IV. Argument
and Analysis
A. The Officer’s
Conclusion on Establishment is Supported by the Material in the Record
[16]
The
Applicant submits that the Officer misconstrued the evidence about her
establishment and that the conclusion on this issue is therefore unreasonable.
The Applicant argues that the bank statements she provided demonstrate her
financial independence and refute the Officer’s finding that she had not
established her income and self-sufficiency. The Applicant relies on two
refugee decisions of the Federal Court of Appeal in support of this argument,
neither of which is relevant because both dealt with situations where the Board
ignored evidence in the record. The Applicant further submits that the Officer
set the threshold for establishment warranting a positive H&C decision unreasonably
and unattainably high.
[17]
The
Officer did not ignore any evidence of the Applicant’s establishment. The
Officer expressly considered the employment letters and the letter from her
church. Although the Officer did not mention her bank statements in the
decision, the Respondent correctly notes that bank statements do not establish
the source of funds, but rather the balance of a particular bank account, and
so they are insufficient to establish the Applicant’s income. The Applicant has
failed to demonstrate that the Officer exercised his discretion unreasonably or
in bad faith in considering her establishment in Canada.
B. The
Officer Did Not Err in Assessing Daniel’s Best Interests
[18]
The
Applicant argues that the Officer erred in assessing Daniel’s best interests.
The Officer’s consideration of Daniel’s best interests is confined to one
paragraph:
I
am also aware that the older niece has a baby boy in Canada named Daniel. The applicant stated to have developed a very
strong relationship with the child and considers him to be like her
grand-child. I have considered the best interest of the child involved in this
case and I am sensitive to it. I am conscious that some levels of hardship will
necessary (sic) result from a physical separation from the child as well as
from both nieces and gave the argument some weight. However, I am not of the
opinion that the hardship suffered would be of an unusual and undeserved or
disproportionate nature based on the evidence before me.
[19]
The
Applicant submits that the Officer failed to consider her relationship with
Daniel and the fact that she considers him to be her grandson. The Applicant
argues that the hardship is compounded by the fact that she is not eligible for
sponsorship by her nieces.
[20]
The
Applicant relies on Kolosovs v Canada (Minister of Citizenship and Immigration) (2008 FC 165, 323
FTR 181). In that decision, Justice Douglas Campbell described the requirement
that Officers be “alert, alive and sensitive” to the best interests of children
affected by a decision.
[21]
The
Officer’s analysis of Daniel’s best interests is brief and does not set out the
factors identified in Kolosovs, above, and found in the IP-5 manual.
However, the Applicant has not provided any evidence that she is Daniel’s
primary caregiver or even one of his primary caregivers, and so such a detailed
analysis of Daniel’s interests seems unnecessary. This Court imposed an
obligation to consider the interests of a grandchild in Benyk, above,
but the grandmother in that case was one of two primary caregivers for the
children and the children were dependent on their grandmother’s care because
their mother worked nights.
[22]
Daniel’s
mother is a permanent resident in Canada and there is no question that he will remain in
Canada regardless of whether
the Applicant is removed. The Officer considered the emotional bond between the
Applicant and Daniel and acknowledged that their separation would cause
hardship. This emotional bond is the only factor that the Officer was required
to consider in assessing Daniel’s interests, and the Applicant has failed to
identify any other factors that the Officer should have considered.
[23]
Contrary
to the Applicant’s submission, the Officer explicitly acknowledged the
Applicant’s claim that Daniel is like a grandson to her. Although the Applicant
may disagree with the Officer’s analysis of Daniel’s best interests, she has
not demonstrated that it was unreasonable.
C. The
Applicant is Not a De Facto Family Member
[24]
I
agree with the comments of Justice Luc Martineau in Frank v Canada (Minister of
Citizenship and Immigration), 2010 FC 270, 2010 CarswellNat 525, where he
stated at para 30 of the decision:
[30] I
do not believe John, above created an obligation for all immigration
officers to explicitly consider the issue of de facto family members in
every case. It is clear in the present application that the officer considered
the applicant’s relationship with his family in Canada,
and, without evidence that the officer failed to consider any other relevant
criteria in determining the H&C application, the Court should not
intervene.
[25]
In
the present application it is clear to me that the officer considered the Applicant’s
relationship with her family in Canada.
[26]
The
Applicant relies on Koromila v Canada (Minister of Citizenship and Immigration) (2009 FC 393, 2009
CarswellNat 1167), and claims that emotional dependence is sufficient to render
someone a de facto family member. Koromila is of little
assistance in this application, as it dealt with a decision by a visa officer
overseas on a skilled worker application. In considering whether there were
H&C factors, the officer in Koromila ignored evidence of emotional
dependence and refused to consider whether the applicant was a de facto
family member left behind. In the decision under review, although the Officer
did not explicitly examine whether the Applicant is a de facto family
member, he did consider the emotional bond between the Applicant and her
nieces. Further, there is no evidence that the Applicant would be isolated in Brazil, unlike in Koromila,
where there was evidence of significant isolation.
[27]
However,
a review of John and of Frank, above, makes it clear that the Applicant
is not a de facto family member. In Frank, Justice Martineau
held at paragraph 29 that:
[29] What
is clear from the foregoing is that de facto family member status is
limited to vulnerable persons who do not meet the definition of family members in
the Act and who are reliant on the support, both financial and emotional, that
they receive from persons living in Canada. Therefore, de facto
family member status is not normally given to independent and functional adults
who happen to have a close emotional bond with a relative residing in Canada, as is the case in the present application.
[Emphasis
added]
[28]
Similarly,
Justice Sean Harrington discussed the concept of de facto family members
at paragraph 12 of John, above:
[12] In
speaking of de facto family members, paragraph 13.8 of the Guidelines
suggests that an important consideration is to what extent the applicant would
have difficulty meeting financial or emotional needs without the support and
assistance of the family unit in Canada.
[29]
The
Officer’s failure to consider whether the Applicant is a de facto family
member is reasonable because it is clear from these two passages and from the
evidence in the record that the Applicant is not a de facto family
member. Although the Applicant certainly has a close emotional bond with her
nieces, de facto family member is a defined concept in the immigration
context and the Applicant simply does not meet the definition. The Applicant
claims to be financially self-sufficient, and she has not demonstrated emotional
dependence on the nieces that would render her a de facto family member.
The Applicant is an independent and functional adult, as was the applicant in
Frank, above, and so is not a de facto family member.
V. Conclusion
[30]
No
question was proposed for certification and none arises.
[31]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT is
that this application for judicial review is dismissed.
“ D. G. Near ”
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