Date: 20110705
Docket: IMM-5518-10
Citation: 2011 FC 803
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, July
5, 2011
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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EMMANUEL CASTOR RUIZ
and
FRANC CASTOR LINARES
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Applicants
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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
Judicial procedure
[1]
This
is an application for judicial review, submitted by Emmanuel Castor Ruiz and
Franc Castor Linares in accordance with subsection 72(1) of the IRPA, of the
decision by the Second Secretary, Immigration Section of the Canadian Embassy
in Port-au-Prince (Second Secretary), dated November 30, 2010, refusing
the application for permanent residence in Canada based on humanitarian and
compassionate grounds made by Emmanuel Castor Ruiz, the child of Franc Castor
Linares, on the ground that the humanitarian and compassionate considerations
raised in his case do not justify the application for an exemption sought under
section 25 of the IRPA.
Facts
[2]
On
April 7, 1993, the sponsor, Mr. Linares, who was born on January 13,
1965, submitted an application for permanent residence in Canada as a dependant
of his mother, who was herself sponsored by one of her other sons.
[3]
The
principal applicant, Mr. Ruiz, who was born in the Dominican Republic on June 12, 1994,
is Mr. Linares’s son; Mr. Linares admitted his paternity.
[4]
On
December 12, 1995, Mr. Linares arrived in Montréal and his sister-in-law,
that is, his brother’s spouse, completed a record of landing, which indicated
that the applicant had no dependants (Respondent’s Record and affidavit, page
9). In that regard, Mr. Linares alleges that he tried to declare the
existence of his son, Emmanuel, to the immigration officer at the point of
entry, but that the officer did not speak Spanish. Mr. Linares was granted
landing; he stated that he tried to seek the assistance of an interpreter, but
in vain.
[5]
On
July 17, 1998, Mr. Linares submitted a sponsorship application by a parent
in favour of his son, Mr. Ruiz (Respondent’s Record and affidavit, page
11).
[6]
On
May 26, 2003, the applicant’s application for permanent residence,
supported by the sponsor’s sponsorship, was refused by the Immigration Section
of the Canadian Embassy in Port‑au-Prince on grounds that he was not a
member of the family class under paragraph 117(9)(d) of the IRPR. Mr. Linares
was then informed of the decision and of his right to appeal the decision to
the Immigration Appeal Division (IAD) (Decision dated May 26, 2003, Applicants’
Record, pages 141‑142).
[7]
On
January 23, 2007, Mr. Linares appealed the decision dated May 26,
2003, before the IAD. The appeal was dismissed and Mr. Linares filed an
application for judicial review of the IAD’s decision with the Federal Court.
[8]
On
November 26, 2007, Justice Pierre Blais dismissed the application for
judicial review, specifying that an application for an exemption on
humanitarian and compassionate grounds would be a more appropriate remedy (Decision
of the Federal Court in docket IMM-1896-07, Applicants’ Record, pages 144 et
seq., at page 154).
[9]
On
November 11, 2008, Mr. Ruiz submitted an application for permanent
residence in Canada in the family class based on humanitarian and compassionate
grounds and appealed the decision dated May 26, 2003. This application was
sponsored by Mr. Linares.
[10]
On
May 2009, the two applicants were allegedly informed that the Second
Secretary wished to interview Mr. Ruiz and his mother.
[11]
On
August 6, 2009, Mr. Ruiz met with the Second Secretary in Santo Domingo in
the presence of his paternal aunt (Applicants’ Record, pages 20 to 23).
[12]
On
November 18, 2009, the Second Secretary refused the application after
examining Mr. Ruiz’s file and finding that his case did not justify the exemption
sought (Applicants’ Record, page 23).
[13]
On
November 30, 2009, the Second Secretary sent a decision to Mr. Ruiz, refusing
his application for permanent residence based on humanitarian and compassionate
grounds (Letter of refusal to the applicant, Applicants’ Record, page 8).
[14]
On
December 2, 2009, the Second Secretary sent a letter to Mr. Linares concerning
the undertaking of assistance presented in support of the application for a permanent
residence visa submitted by his son (Letter of refusal to the sponsor, Applicants’
Record, pages 10-11).
[15]
On
January 21, 2010, the sponsor signed a waiver of his right to appeal in
order to obtain a refund of fees (Applicants’ Record, page 10).
[16]
On
January 29, 2010, the sponsor filed a notice of appeal against the Second
Secretary’s decision (Respondent’s Record, pages 28-29).
[17]
On
April 9, 2010, the Border Services Agency hearing advisor filed a motion
to have the appeal dismissed for want of jurisdiction.
[18]
On
April 28, 2010, the sponsor responded to the motion to dismiss the appeal
by filing arguments and exhibits in support of his arguments and by asking the
IAD to allow the sponsor’s appeal.
[19]
On
June 15, 2010, the IAD dismissed the applicant’s appeal dated January 29,
2010.
[20]
On
September 22, 2010, the principal applicant and the sponsor filed an
application for leave and judicial review of the Second Secretary’s decision
dated November 30, 2009, before the Federal Court, accompanied by a motion
for an extension of time.
Decision under review
[21]
The
Second Secretary rendered a decision on the principal applicant’s humanitarian
and compassionate application. According to her, the humanitarian and
compassionate grounds raised by the applicant did not justify an exemption from
some or all of the applicable criteria and obligations of the Act:
[translation]
I
arrived at this conclusion because, in light of the documents submitted and
also further to an interview with you and your aunt in Santo Domingo on August
6, 2009, I am not convinced that you and your sponsor have been in constant
contact since he immigrated to Canada in 1995.
In
fact, your sponsor returned only five times to the Dominican Republic since he
left for Canada and the few photos taken with him date back to your childhood. Only
one was taken in 2006.
The evidence of the
contact between you is weak. Your
sponsor deliberately left the Dominican Republic leaving you there. In total,
you lived with your sponsor for only one year.
Issue
[22]
Was
the Second Secretary’s decision that the humanitarian and compassionate grounds
raised in Mr. Ruiz’s case do not justify an exemption from some or all of the
applicable criteria and obligations of the Act reasonable?
Relevant legislative
provisions
[23]
Section
25 of the IRPA provides for the following:
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Humanitarian
and compassionate considerations — request of foreign national
25. (1) The Minister must, on
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, 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 obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
Payment
of fees
(1.1)
The Minister is seized of a request referred to in subsection (1) only if the
applicable fees in respect of that request have been paid.
Exceptions
(1.2)
The Minister may not examine the request if the foreign national has already
made such a request and the request is pending.
Non-application
of certain factors
(1.3)
In examining the request of a foreign national in Canada, the Minister may
not consider the factors that are taken into account in the determination of
whether a person is a Convention refugee under section 96 or a person in need
of protection under subsection 97(1) but must consider elements related to
the hardships that affect the foreign national.
Provincial criteria
(2) The Minister may not grant
permanent resident status to a foreign national referred to in subsection
9(1) if the foreign national does not meet the province’s selection criteria
applicable to that foreign national.
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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
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, sur demande d’un étranger
se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui
octroyer le statut de résident permanent ou lever tout ou partie des critères
et obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
Paiement
des frais
(1.1)
Le ministre n’est saisi de la demande que si les frais afférents ont été
payés au préalable.
Exceptions
(1.2)
Le ministre ne peut étudier la demande de l’étranger si celui-ci a déjà
présenté une telle demande et celle-ci est toujours pendante.
Non-application
de certains facteurs
(1.3)
Le ministre, dans l’étude de la demande d’un étranger se trouvant au Canada,
ne tient compte d’aucun des facteurs servant à établir la qualité de réfugié
— au sens de la Convention — aux termes de l’article 96 ou de personne à
protéger au titre du paragraphe 97(1); il tient compte, toutefois, des
difficultés auxquelles l’étranger fait face.
Critères
provinciaux
(2)
Le statut de résident permanent ne peut toutefois être octroyé à l’étranger
visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la
province en cause qui lui sont applicables.
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[24]
Paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002‑227
(IRPR) is also relevant to this matter:
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117. (1) A foreign national is
a member of the family class if, with respect to a sponsor, the foreign
national is
…
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. (1) Appartiennent à la
catégorie du regroupement familial du fait de la relation qu’ils ont avec le
répondant les étrangers suivants :
[…]
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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Position of
the parties
[25]
The
applicant states that the Second Secretary misled the applicants by writing in her
letter of refusal that the IRPA permitted them to appeal the IAD’s decision, especially
since the Second Secretary’s letter included a “Notice of Appeal” and a
document entitled [translation]
“Important instructions”. The applicants followed this suggestion and appealed
the Embassy’s decision to the IAD, which dismissed the applicants’ appeal
because it did not have jurisdiction to hear it.
[26]
The
applicants argue that the Second Secretary erred in assessing the sponsor’s
conduct that led to the exclusion under paragraph 117(9)(d). The
applicants also claim that the Second Secretary erred in law by failing to
consider the best interests of the child and by failing to support her decision
with sufficient reasons. Furthermore, the applicants also claim that the Second
Secretary erred in law by failing to consider the best interests of the child
and by failing to support her decision with sufficient reasons.
[27]
In
reply, the applicants added to their principal arguments that the case law and
the Operational Manual acknowledge the need to proceed with a second assessment
of “all of the evidence and submissions put forth by the client and all other
factors relevant to the assessment of H&C, including BIOC.”
[28]
The
respondent contends that the sponsor has no standing and that his name should therefore
be struck from the style of cause. The respondent also claims that the
applicants did not adequately justify their delay in filing their application
for leave and judicial review. Furthermore, the respondent argues that the Second
Secretary was not required to examine the decision by the Adjudication Division
dated July 11, 2000, or that of Justice Blais dated July 28, 2007, to
decide on the application for an exemption on humanitarian and compassionate grounds
submitted by the principal applicant. The respondent also mentioned that if the
sponsor had declared his child, he would not have been able to obtain permanent
residence as a dependant of his mother. According to the respondent, the Second
Secretary examined the humanitarian and compassionate considerations argued by the
applicants and it is not up to this Court to weigh the relevant factors. The
respondent also maintains that the officer fulfilled her duty of examining the
interests of the child pursuant to the principles of case law, according to
which this factor is not, in immigration law, determinative.
Standard of review
[29]
In
Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189,
179 A.C.W.S. (3d) 181, Justice Marc Nadon of the Federal Court of Appeal
confirmed that the jurisprudence has already determined in a satisfactory
manner that the standard that applies to humanitarian and compassionate
decisions is reasonableness (at paragraph 18, see also Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190, 2008 SCC 9). It is up to the Second Secretary to weigh
the factors and not the Court responsible for the judicial review of the
humanitarian and compassionate decision.
Analysis
[30]
First,
the Court must examine the two preliminary issues submitted by the respondent,
that is, the issue of direct standing and that of the extension of time by the
Federal Court.
Style of cause
[31]
The
respondent is asking the Court to strike the name Franc Castor Linares, father
of the principal applicant and sponsor, from the style of cause because he does
not have standing in this case pursuant to subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7. The
applicants object to this request (Reply Memorandum, at paragraphs 3 to 5). The
respondent cites the following decision, among others: Apotex Inc. v. Canada
(Governor in Council), 2007 FC 232, 155 A.C.W.S. (3d) 1080:
[19] No person may seek judicial
review in this Court unless that person is “directly affected by the matter in
respect of which relief is sought”. (s.18.(1), Federal Courts Act,
above. The only exception occurs where an Applicant has public interest
standing, discussed below). Plainly, the rationale for this requirement has at
least two elements: to ensure that appropriate parties are brought before the
Court, and to ensure that no matter is brought before the Court until it actually
has an effect to be examined.
[20] For an Applicant to be
considered “directly affected”, the matter at issue must be one which adversely
affects its legal rights, impose legal obligations on it, or prejudicially
affect it directly. (Reference is made to: Rothmans of Pall Mall Canada Ltd.
v. Canada (Ministry of National Revenue – M.N.R.), [1976] 2 F.C. 500 (C.A.); Kwicksutaineuk/Ah-kwa-mish
Tribes v. Canada (Minister of Fisheries and Oceans), 2003 FCT 30 (T.D.),
[2003] F.C.J. No. 98 (QL), at para. 8, aff’d on other grounds 2003 FCA 484,
[2003] F.C.J. No. 1893 (C.A.) (QL), leave to appeal to S.C.C. refused
[2004] S.C.C.A. No. 55).
[32]
The
sponsor is the applicant’s father. As the sponsor, he received a letter from
the Second Secretary, further to the decision. He is directly affected by the matter
in the application.
Application for an
extension of time
[33]
The
applicants asked the Court to grant an extension of time. The applicants state
that the Second Secretary misguided them by writing in the letter of refusal
that the IRPA permitted them to appeal the decision to the IAD. The applicant
cites Huot v. Canada (Citizenship and Immigration), 2010 FC 973, in
which the criteria for an extension of time are stated:
[14] The
applicant must satisfy the Court (a) that she had a continuing intention
to pursue her application for judicial review; (b) that the application
for judicial review deserves consideration; (c) that there is a reasonable
explanation for the delay; and (d) that an extension of time will not
prejudice the respondent.
[34]
As
in Huot, above, the Court fails to see how granting the applicants an
extension of time to hear this matter could prejudice the respondent. There are
particular circumstances in this case and the interests of justice will be
better served if the extension of time is granted.
Analysis
[35]
First,
the burden of proof rests on the person who submits an application based on
humanitarian and compassionate considerations (Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, 128 A.C.W.S. (3d) 1175) at
paragraph 5; Akinbowale v. Canada (Minister of Citizenship and Immigration),
2007 FC 1221, at paragraph 14). The jurisprudence has also established that the
best interests of the child are certainly an important factor, but are not
determinative (Hawthorne v. Canada (Minister of Citizenship and Immigration)
(CA), 2002 FCA 475, at paragraph 2; Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125; Kisana, above, at paragraph
37). In this case, the Second Secretary was not alert, alive and sensitive enough
to the interests of the child. Moreover, in her notes, she failed to expressly
refer to the best interests of the child. She considered the child’s situation
as follows:
[translation]
With
respect to the applicant’s mother, she deliberately left the DR for Spain
leaving her son behind. The reasons stated by the applicant and the aunt for
him to join his father in CDA are more for economic and educational reasons. The
child has not been abandoned because his aunt looks after him as well as his
grandmother and other family members. Application refused.
(CAIPS notes, Applicants’ Record, page 23)
[36]
Given
the paternity in question, the arguments on the interests of the child were not
assessed in a reasonably adequate manner.
[37]
The
Court agrees with the written and oral arguments from the memorandum of fact
and law by both of the applicants’ counsel.
[38]
Finally,
the Court accepts the applicant’s position that it was up to the Second
Secretary to judge the evidence according to the interests of the child given the
exceptional situation; this was stated by the Court further to the evidence demonstrating
that the father had wanted to emphasize the existence of his son for several
years; this is understood by his initial and continuous statements, which were
not considered false or fraudulent further to the evidence in that regard.
Furthermore, the evidence does not seem to have been reasonably considered or assessed
in the decision concerning the child.
Conclusion
[39]
The
Second Secretary should have attached more weight to certain elements essential
to the child’s interests for the decision to be considered reasonable.
Consequently, the application for judicial review is allowed.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review be allowed and the matter be returned to
another decision-maker for redetermination.
2. No question
for certification was raised.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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