Docket: IMM-6657-10
Citation:
2011 FC 831
Toronto, Ontario, July 7, 2011
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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SYLVIA CRISPINA LEONCE
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Applicant
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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
[1] The Applicant, a citizen of St. Lucia, came to Canada in December 1995 and has
remained here without status since that time. The Applicant never sought
refugee protection nor did she make any other attempts to acquire status before
she applied for permanent residence from within Canada on humanitarian and compassionate
[H&C] grounds in 2004. In her H&C application, as updated in 2006, 2008
and 2009, the Applicant claims the following:
·
The
Applicant left St.
Lucia to escape
an abusive step father;
·
In 2009,
the Applicant gave birth to a Canadian-born daughter but does not live with the
father of the child;
·
The
Applicant’s mother in St.
Lucia lives with
the step-father, a violent, alcoholic man; and
·
The
Applicant has worked in Canada, has never received social
assistance and has well-established links to her Canadian community.
[2] In a decision dated October 1, 2010, a
pre-removal risk assessment officer [the Officer] refused her application. The
Applicant seeks judicial review of that decision, raising the following issues:
- Did the Officer err by failing to
interview the Applicant?
- Did the Officer fail to consider the
best interests of the Applicant’s child?
- Is the decision reasonable?
Standard of review
[3] The standard of review applicable to the
first issue – a question of procedural fairness – is correctness, whereas the
decision with respect to the best interests of the Applicant’s child and the
H&C decision in general are reviewable on the reasonableness standard (see,
for example, Abu Laban v Canada (Minister of Citizenship & Immigration),
2008 FC 661, 167 ACWS (3d) 975; Inneh v Canada (Minister of Citizenship and
Immigration), 2009 FC 108, [2009] WDFL 3284).
Issue #1: Need for an interview
[4] It
must be remembered that the Applicant was seeking an exception from the
requirements that a foreign nation obtain a visa before coming to Canada (Immigration and Refugee Protection Act, SC 2001, c
27, s 11 [IRPA]). Section 25 of IRPA permits an exemption from
that requirement where admission from within Canada
is justified by H&C considerations relating to the foreign national, taking
into account the best interests of any child who is directly affected by the decision.
[5] In
the decision, the Officer reviewed all of the submissions made by the Applicant
and concluded that the Applicant had failed to provide “sufficient objective
evidence” to establish that she would face unusual and undeserved or
disproportionate hardship if forced to apply for permanent residence from
outside Canada. The Applicant submits that, in effect, the Officer made a
negative credibility finding and that, as such, the Officer should have held a
hearing or, at a minimum, requested further information.
[6] H&C
applications do not generally require an interview (Baker v Canada (Minister of
Citizenship & Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193). Applicants, making
H&C applications, know that the application will almost always be dealt
with on the basis of the written record. Whether the issue is the best
interests of a child or an allegation of risk, they must put forward sufficient
material to support their claims. As stated by Justice Evans in Owusu v Canada (Minister of Citizenship and
Immigration),
2004 FCA 38, [2004] 2 FCR 635 at para 8:
H&C applicants have no right or
legitimate expectation that they will be interviewed. And, since applicants
have the onus of establishing the facts on which their claim rests, they omit
pertinent information from their written submissions at their peril.
[7] Exceptions to this general rule have been made in
cases where an officer’s decision is clearly based on a credibility finding.
Two cases relied on by the Applicant - Duka v Canada (Minister of
Citizenship & Immigration), 2010 FC 1071, 92 Imm LR (3d) 255 and Shpati
v Canada (Minister of Public Safety
& Emergency Preparedness), 2010 FC 1046, 93 Imm LR (3d) 117 – illustrate the
exceptions.
[8] In this case, I am not persuaded that the Officer
made credibility findings. Nor was the Officer obliged to advise the Applicant
of the deficiencies in her application.
[9] In spite of three follow-up submissions, the
Applicant simply failed to provide sufficient information or corroborating
documents to support her claims. Even if the Officer believed every word in the
meagre submissions, the point is that there was not enough evidence upon which
a positive determination could be made. For example, she did not provide any
evidence from the child’s father to explain the extent of his involvement in
his daughter’s life. The Applicant could have provided evidence from her
daughter’s father of their relationship or documentary evidence about the
difficulty of finding employment in St. Lucia
after a lengthy absence. Further, the letters from her mother were vague and
unsubstantiated. The Applicant’s failure to provide detailed, specific
submissions and objective evidence does not create a reviewable error on the
part of the Officer.
[10] The Applicant’s reliance on Duka is
misplaced. Duka can be distinguished, as the risk alleged in that
decision had not been mentioned in an earlier decision, and the officer doubted
the credibility of the allegation because of the applicant’s failure to raise
it earlier. Further, Justice Martineau’s conclusion about the supporting
letters in Duka is tied to his finding about the Officer’s credibility
determination. In this instance, there is no prior application in which the
Applicant failed to raise the alleged risk, and the Officer did not disbelieve
her claim because of a failure to raise the claim earlier. Duka is of no
assistance to the Applicant.
[11] Similarly, Shpati is irrelevant to this
application. Shpati dealt with an applicant who had filed several
previous applications which mentioned his spouse, only to later be rejected on
the basis that there was no evidence that he had close ties to his family in
the United States. The decision was set aside,
in part, because the officer failed to allow Mr. Shpati to address concerns
that had not arisen in his previous applications and that therefore could not
have been anticipated. In contrast, this is the Applicant’s first contact with Canada’s immigration system, and she
does not have any prior decisions in which her claims were accepted.
[12] In sum, there was no breach of procedural fairness
by the Officer either in not convoking a hearing or in not requesting
additional information. Quite simply, the Applicant failed to submit sufficient
information to establish the facts on which her claim for H&C relief rests.
Issue #2: Best Interests of the Child
[13] There is no question that an officer, in the
context of an H&C application must be alert, alive and sensitive to the
best interests of children affected by the decision (IRPA, s 25(1); Baker,
above; Hawthorne v Canada (Minister of Citizenship
& Immigration),
2002 FCA 475, 222 DLR (4th) 265). However, the burden is on an applicant to put
forward sufficient information to support a claim regarding a child (Owusu,
above). Finally, it is also important to remember that the best interest of a
child, while an important consideration in the H&C decision, is not
determinative of an H&C application. The officer’s task is to weigh the
interests “together with other factors, including public policy considerations,
that militate in favour of or against removal of the parent” (Hawthorne,
above, at para. 6).
[14] The Applicant asserts that the Officer erred in
two ways: (a) by failing to be “alert, alive and sensitive” to the interests of
the Applicant’s daughter; and (b) by incorrectly applying the test of “unusual
and undeserved and disproportionate hardship” to the analysis of the interest
of the child.
[15] With respect to the first assertion, I see no
reviewable error in the decision. The Officer carefully analyzed the evidence
put forward by the Applicant. The
Applicant’s submissions on the subject of her daughter’s best interests
consisted of little more than bald assertions that she has a relationship with
her father and that she and her daughter would be at risk in St. Lucia. The Officer considered the benefit to the daughter
remaining in Canada, as well as the difficulty she would face in St. Lucia. In light of the Applicant’s failure to provide sufficient
objective evidence as to either of these issues, the Officer’s analysis was not
unreasonable.
[16] In support of her second alleged problem with the
Officer’s analysis, the Applicant relies on Beharry v Canada (Minister of
Citizenship & Immigration), 2011 FC 110, [2011] WDFL 2136, in which
decision Justice Mactavish set aside an H&C decision because of the
officer’s consideration of whether the child would suffer unusual, undeserved
or disproportionate hardship. The Applicant argues that the Officer committed a
similar error in the decision under review. I disagree. In Beharry, at
para 11, Justice Mactavish describes the error that she observed as follows:
At various points in the analysis the
Officer discusses the best interests of the children in terms of whether the children
would suffer “unusual, undeserved, or disproportionate hardship” if they were
required to return to Guyana. However, the unusual,
undeserved or disproportionate hardship test has no place in the best interests
of the child analysis.
[17] A similar error is not found in the decision
before me. During a lengthy analysis of the interests of the child, the Officer
reviews all of the evidence before her and acknowledges that socio-economic
conditions in St.
Lucia for the
child “may not be favourable relative to those in Canada” and that she “may
enjoy better social and economic opportunities in Canada.” Nothing was ignored. The Officer did
not, as alleged by the Applicant, assess the best interest of the child using
the test of “unusual, undeserved or disproportionate” hardship. Those words are
not used until the very end of the section where the Officer looks at how those
interests are to be weighed. As I read this section of the decision, the
Officer weighs the interests of the child against the “personal circumstances
of this family” and concludes that resettling in St. Lucia would not have such a significant
negative impact to her child that would amount to unusual and undeserved or
disproportionate hardship to the Applicant. Perhaps the decision could have
been clearer on this point. However, I am not persuaded that the Officer
applied the test of “unusual, undeserved or disproportionate” to an assessment
of the child’s interest; rather, she was weighing the interests of the child as
one of the factors.
Issue
#3: Reasonableness of the Decision
[18] The Applicant submits that the Officer’s analysis
of her potential life in St.
Lucia is
perverse. The Applicant argues that the decision was unreasonable because:
- The Officer minimized the hardship
that her mother continues to face in St. Lucia;
- The Officer failed to address the
fact that the Applicant is currently supporting her mother financially and
that neither of them will have the means to support themselves or the
child if the applicant is removed from Canada;
- The Officer held the Applicant to an
impossibly high threshold in respect of the possibility of employment in St. Lucia;
- The Officer erred by failing to give
more weight to the mother’s letters on the basis that they were not from a
disinterested party.
[19] The Applicant submitted two one-paragraph letters
from her mother (one in 2006 and a second in 2010) describing the difficult
situation that the mother faced in St. Lucia.
The mother states that her husband is an alcoholic and violent. She states that
“My granddaughter [will] suffer in my husbands house”. The Applicant argues
that these letters were improperly dismissed by the Officer as not being from a
disinterested party. I appreciate that letters of support from family members
cannot always be dismissed as “self serving” or “not from a disinterested
party” (see, for example, Ahmed v Canada (Minister of Citizenship and
Immigration),
2004 FC 226, 40 Imm. LR (3d) 50 at para 31; Kaburia v Canada (Minister of Citizenship and
Immigration),
2002 FCT 516, 2002
CarswellNat 1042
at para 25). However, in this case, the letters from the Applicant’s mother
were not only from a family member but they were vague and general in nature;
these short letters failed to identify specific risks. It was not unreasonable
for the Officer to give little weight to this evidence. In any event, the
Officer did not dismiss the letters for that reason. Rather, as stated by the
Officer, the letters do not support or corroborate any of the assertions of the
Applicant.
[20] In sum, all of the arguments go to the weight
given by the Officer to the evidence; in effect, the Applicant is seeking to have the Court
re-weigh the evidence that was before the Officer. The key problem for the
Applicant is that she failed to provide sufficient evidence to meet her burden.
On the basis of the evidence provided by the Applicant, the Officer reasonably
determined that the Applicant had failed to discharge her evidentiary burden. I
conclude that the decision the Applicant would not face unusual and undeserved
or disproportionate hardship that would warrant an exception to s 11 of IRPA,
“falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 at para 47).
Conclusion
[21] For
these reasons, I would dismiss the application for judicial review. The parties
do not propose a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
the
application for leave and judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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