Date: 20110721
Docket: IMM-7078-10
Citation: 2011 FC 918
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 21, 2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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SARA JOSÉ MONTESUMA
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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]
This
is an application for judicial review, submitted by the applicant, of a
decision by an immigration officer (officer) dated November 2, 2010, rejecting
her application for permanent residence based on humanitarian and compassionate
grounds pursuant to section 25 and subsection 72(1) of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (Act).
[2]
For
the following reasons, this application for judicial review is dismissed.
I. FACTUAL
BACKGROUND
[3]
The
applicant, a Haitian girl who is 15 years of age, filed an application for
permanent residence on September 7, 2003. This application was under the family
class because she was sponsored by her biological father, Orismond Montesuma (sponsor).
[4]
The
sponsor was landed in Canada, sponsored by his spouse. In his application,
however, he failed to declare the applicant as a non-accompanying dependant.
[5]
On
May 24, 2004, the applicant’s application for permanent residence was refused.
[6]
On
March 2, 2005, the Immigration Appeal Division (IAD) dismissed the appeal from
this decision.
[7]
On
January 25, 2010, the applicant filed a new application for permanent residence
based on humanitarian and compassionate considerations, supported by the sponsor’s
application for sponsorship and undertaking. This application was received in Port-au-Prince
on January 27, 2010.
[8]
On
April 13, 2010, the sponsorship application was refused by the Case Processing
Centre in Mississauga on the
ground that the applicant was not a member of the family class pursuant to
paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (Regulations).
[9]
On
May 21, 2010, the counsellor at the Embassy in Port-au-Prince (officer) refused
the applicant’s application for permanent residence.
[10]
On
November 2, 2010, the officer signed a second letter of refusal. The officer
wrote computerized notes (CAIPS notes) in May 2010.
[11]
The
letter dated November 2, 2010, specified that the applicant is not a member of
the family class pursuant to paragraph 117(9)(d) of the Regulations. It
also indicated that the applicant does not meet the requirements for granting
special humanitarian and compassionate considerations by virtue of subsection
25(1) of the Act. The officer found that the humanitarian and compassionate
circumstances raised by the applicant did not justify an exemption from some or
all of the criteria and obligations of the Act.
[12]
This
finding was based on the following reasons:
a. Her
biological mother lives and resides in Haiti.
b. She has
resided with her female cousin, Iphose, since the age of four. Her cousin treats
her like a daughter.
c. She is well
looked after and her life does not seem to be in danger.
d. She goes to
school and has friends.
e. She does not
seem to know her sponsor well and is not able to speak at length about him. No emotional
or monetary ties seem to exist between him and her.
[13]
On
December 2, 2010, the applicant filed, through the sponsor and his counsel,
this application for judicial review. She is challenging the decision in the
letter of refusal dated November 2, 2010, and is focusing exclusively on the
refusal to grant her an exemption based on humanitarian and compassionate grounds.
II. PRELIMINARY
MOTIONS
[14]
The
respondent argues that this application for judicial review must be dismissed
because it was filed late, on December 2, 2010, that is, more than six months
after the copy of the letter of refusal was received in May 2010.
[15]
The
Court notes that, notwithstanding the CAIPS notes, which show a refusal recorded
on May 21, 2010, the date that appears on the letter of refusal to the
applicant is November 2, 2010. If we start the time from this date,
the applicant did comply with the deadline for challenging a decision rendered
abroad. Under paragraph 72(2)(c) of the Act, the Court may also extend
the time for filing for special reasons.
[16]
This
Court’s jurisprudence is clear. The time begins to run on the date the
applicant in this proceeding becomes aware of the refusal (see Chen v.
Canada (Minister of Citizenship and Immigration), 2010 FC 899 at paragraphs
19 and 20). Her claim was filed late. However, the progression of events
surrounding this file favours an extension of time. This is why the Court is dismissing
the respondent’s motion and hearing the applicant’s application for judicial
review.
[17]
The
respondent is also asking the Court to redact from the applicant’s record the
documents in Annex 1 of the sponsor’s affidavit and in the affidavit of the immigration
consultant, Timothy Morson. He maintains that these documents were not before
the officer when he rendered his decision. These were documents attesting to
the transfer of funds to the applicant over the course of 2005 and 2006. The
applicant claims the opposite.
[18]
The
Court allows the respondent’s motion and redacts from the record the documents
in Annex 1 of the sponsor’s affidavit and in Annex 3 of Timothy Morson’s
affidavit. It has been clearly established by this Court that, on judicial
review, the Court may only examine the evidence that was adduced before the
initial decision-maker (see Isomi v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1394 at paragraphs 6 and 7).
III. ISSUE
[19]
This
application for judicial review raises only one issue:
i.
Did
the officer err by not granting the applicant the exemption sought on
humanitarian and compassionate grounds?
A. Applicable
standard of review
[20]
A
visa officer’s decision of whether to grant an exemption based on humanitarian
and compassionate grounds by weighing the various relevant factors must be
reviewed on the standard of reasonableness (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 at paragraph 12 (Legault);
Lalane v. Canada (Minister of Citizenship and Immigration), 2009 FC 6 at
paragraph 47).
B. Position of
the parties
[21]
The
applicant argues that the officer erred in assessing the best interests of the
child and did not give them sufficient weight. He lacked compassion. His
findings were weak and imprecise, and few reasons were given. The officer interpreted
subsection 25(1) of the Act too narrowly. In doing so, he went against
Parliament’s intention of facilitating the reunion of family members.
[22]
The
applicant also emphasizes the unreasonableness of the reasons given by the
officer to justify his decision. In his decision, the officer’s first argument
was that [translation] “you have
lived with your cousin, Iphose, since you were four years old, and she treats
you like her daughter”. The applicant claims that the officer must consider her
biological father as her real family. His refusal to encourage a reunion with her
father is likely to lead to devastating consequences in her life.
[23]
The
officer also stated the following: [translation]
“you are well looked after and your life is not in danger”. According to the
applicant, this demonstrates that he [translation]
“was not alert, alive and sensitive” with respect to her best interests. Later
on, the officer wrote: [translation]
“your life does not seem to be in danger”. This was also, according
to the applicant, a misinterpretation of the facts because newspapers report
that minor girls are victims of rape, assault and child trafficking.
[24]
The
applicant also rebuts the officer’s statement that the she goes to school and has
friends. Again, she believes that the officer did not take her best interests
into consideration.
[25]
Finally,
the applicant contends that the following statement is erroneous: [translation] “You do not seem to know
your sponsor very well and cannot say much about him; also, there does not seem
to be any emotional and financial connection between you and him”. Her father is
also in regular contact her and has come to visit her in Haiti.
[26]
The
applicant also criticizes the officer for not considering all of the
documentary evidence in the record, including her cousin’s affidavit, which
specifies that she can no longer take care of her.
[27]
In
short, the applicant relies on Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). She also
alleges that the officer did not carry out a bona fide inquiry. The purpose
of the questions asked of the applicant during the interview was not to determine
the danger she faces in Haiti or to discover the depth and quality of her
relationship with her biological father.
[28]
The
respondent maintains that a reading of the CAIPS notes demonstrates that the
officer “was alert, alive and sensitive” to the best interests of the child and,
in particular, to the current situation in Haiti. He did not lack compassion.
The applicant is asking the Court to weigh the factors stated in the officer’s
decision differently, which is not its role in this case.
[29]
The
respondent also submits that the Court cannot exclusively rely on the letter of
refusal dated November 2, 2010, because the CAIPS notes are part of the reasons
for a visa officer’s decision. He cites the Court’s jurisprudence, which
specifies that visa officers need not give as many reasons for their decisions as,
for example, the Immigration and Refugee Board.
[30]
The
respondent further states that, in challenging the reasonableness of each
finding, the applicant is asking the Court to weigh each of the factors stated differently,
which is not the role of the Court. It is up to the decision-maker to assess
the documentary evidence and the testimony of the various persons in question. The
officer in this case properly exercised his duty. He assessed the evidence and
found it insufficient to prove the existence of an emotional and economic connection
between the applicant and her sponsor. An assessment of the CAIPS notes
establishes that the officer took into consideration all of the factors raised
by the applicant. He met with the applicant, considered her situation in Haiti
and made his decision using the evidence in the record.
[31]
Finally,
the respondent notes that the evidence establishing the relationship of economic
dependency between the applicant and her sponsor was not in the record when the
decision was made. Consequently, this element cannot be considered by the Court
in this case.
IV. ANALYSIS
[32]
By
virtue of subsection 25(1) of the Act, when a person cannot obtain permanent
residence under other provisions in the Act, the Minister’s delegate has the
discretionary power to grant an exemption based on humanitarian and
compassionate grounds if the Minister’s delegate is of the opinion that it is
justified:
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Humanitarian
and compassionate
Considerations
— request of foreign national
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Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
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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.
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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.
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[33]
The
officer faced with an application under this section must consider all of the
relevant factors to decide whether they justify granting an exemption. The role
of the Court is not to reassess the evidence presented, but to ensure that all
elements have been taken into consideration (Baker, above,
at paragraphs 54-56, 68, 73-75; Suresh v. Canada (Minister of Citizenship
and Immigration), 2002 SCC 1 at paragraphs 34 to 38; Legault, above,
at paragraph 11; Mpula v. Canada (Minister of Citizenship and Immigration),
2007 FC 456 at paragraph 26).
[34]
The
officer must take into consideration the best interests of the children
directly involved or affected by the decision. The officer must be “alert,
alive and sensitive”. The exercise of the officer’s discretionary authority
requires him or her to weigh all of the evidence and facts in Legault,
above, at paragraph 12:
12 In short, the immigration officer
must be "alert, alive and sensitive" (Baker, supra, at paragraph
75) to the interests of the children, but once she has well identified and
defined this factor, it is up to her to determine what weight, in her view, it
must be given in the circumstances. . . .
[35]
In
this case, the reasons for the decision under judicial review can be found in
the letter dated November 22, 2010, and the CAIPS notes
written by the officer (Nodijeh v. Canada (Minister of Citizenship
and Immigration), 2007 FC 1217, at paragraph 6).
[36]
Reading
them convinces us that the officer took the applicant’s best interests into account.
He found that there was a strong emotional, financial and educational connection
between the applicant and her cousin:
[translation]
The applicant states that Iphose takes
good care of her, that she drives her to school every morning and that, after
school, the applicant goes to Iphose’s business to find her. The applicant
states that Iphose is like a mother to her and that if she left for Canada, she
would miss Iphose. There is a strong relationship of economic/social/emotional dependency
between the applicant and Iphose. (CAIPS notes)
[37]
The
CAIPS notes also mention that the probability of the
applicant becoming a victim of a crime is no different from that of a large portion
of the population. The applicant is not particularly targeted.
[38]
In
analyzing the decision, the Court finds that the officer took the applicant’s current
life in Haiti into consideration, which is reasonable and justified. See Yue
v. Canada (Minister of Citizenship and Immigration), 2006 FC 717 at paragraph
10. It would be inappropriate for the Court to substitute its own assessment or
weigh the factors assessed by the officer differently. Even considering that
the evidence of the sponsor’s financial support was not before the officer does
not change the Court’s finding because the notes in the record establish that
the applicant is not very emotionally connected to her biological father. The
officer’s decision is reasonable and is one of the possible outcomes.
V.
CONCLUSION
[39]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
2. There
is no question of general interest to certify.
“André
F.J. Scott”
Certified
true translation
Janine
Anderson, Translator
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