Docket: IMM-626-11
Citation: 2011 FC 1243
Ottawa, Ontario, November 1, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SALIM TAFADZWA ZINGANO
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of the Designated Immigration Officer (Officer) at the High Commission
of Canada in Pretoria, South Africa, dated 16 November 2010 (Decision). In the
Decision, the Officer refused the Applicant’s application for a humanitarian
and compassionate (H&C) exemption from the operation of paragraph 117(9)(d)
of the Immigration and Refugee Protection Regulations SOR/2002-227
(Regulations) under subsection 25(1) of the Act and denied the Applicant
permanent resident status.
BACKGROUND
[2]
The
Applicant is an eighteen-year-old citizen of Zimbabwe. His sponsor
and litigation guardian is his father, Lameck Zingano, a Canadian citizen
(Sponsor). The Sponsor’s wife, the Applicant’s step-mother, was the Co-sponsor
on his application for permanent residence (Co-sponsor). The Applicant currently
lives in Zimbabwe with his
paternal grandmother.
[3]
In
1999, the Sponsor left Zimbabwe to study in the Netherlands. He met the
Co-sponsor online in 2000 and that year they met in person in the United
States.
They were married in 2001. After the Co-sponsor had her first child by the
Sponsor, the Co-sponsor sponsored the Sponsor as a member of the family class. The
Sponsor was granted permanent resident status in Canada in 2002 and
became a Canadian citizen in September 2005.
[4]
The
Sponsor did not list the Applicant as his son on his application for permanent
residence though the Applicant was nearly ten years old at that time. This
would later ground the denial of a Temporary Resident Visa (TRV) and the
Permanent Resident Visa. The Applicant was not examined as part of the
Sponsor’s permanent residence application in 2002. Since 2003, the Sponsor has
sent money to his family members in Zimbabwe. Since 2005, he has
made regular phone calls to Zimbabwe to speak with the
Applicant. The Sponsor visited Zimbabwe from December 2006 to
January 2007.
[5]
In
2007, the Applicant was interviewed by Citizenship and Immigration Canada (CIC)
staff in Harare, Zimbabwe in
relation to his application for a TRV. At this time, he said that he had
contact information for his biological mother, who was living in Mozambique.
[6]
In
2006, the Sponsor made his first application to sponsor the Applicant as a
member of the family class. This application was denied because the Applicant
is permanently excluded from the family class by paragraph 117(9)(d) of
the Regulations. No appeal of that decision was taken, nor was an application
for judicial review filed. The Sponsor applied for a TRV for the Applicant in
2007, which was also denied. In 2008, the Sponsor again applied for permanent
resident status on behalf of the Applicant. When this application was denied,
again because of the operation of paragraph 117(9)(d), the Applicant
requested an H&C exemption under subsection 25(1) of the Act. This
application was referred to the High Commission in Pretoria for
processing.
[7]
The
Officer assessed the H&C application on 16 November 2010. On that date, she
refused the application for an exemption based on her conclusion that the H&C
considerations were not sufficiently compelling to justify granting the
Applicant an exemption from paragraph 117(9)(d) of the Regulations. The
Applicant was notified by letter dated 16 November 2010.
DECISION
UNDER REVIEW
[8]
The
Decision in this case consists of the Officer’s letter of 16 November 2010 and
the CAIPS notes on the file.
[9]
The
Officer first noted that the Applicant was permanently excluded from the family
class under paragraph 117(9)(d) of the Regulations because the Sponsor did
not declare him on his 2002 Application. The Applicant was permanently excluded
“regardless of the reasons why the Sponsor never declared him.” The Officer
found that the Sponsor’s explanation as to why he had not included the
Applicant were not credible, though the reasons why he was not included on the
2002 Application did not change the fact that the Applicant was permanently
excluded.
[10]
The
Officer denied the H&C exemption under subsection 25(1) because she did not
“find the [humanitarian and compassionate] considerations put forward on this
case sufficiently compelling to justify granting [the Applicant] an exemption
from any applicable criteria or obligation under the Act.” The Sponsor had
based his submissions in support of the H&C application on the political
instability in Zimbabwe, the lack of adequate health care, and the poor
educational opportunities available to the Applicant.
[11]
The
Officer found that the Applicant had not demonstrated a sufficiently close
relationship with the Sponsor to justify an H&C exemption. She noted that
the Sponsor had left the Applicant in Zimbabwe in 1999, when the
Applicant was only five years old. She also found that the Sponsor had only
visited the Applicant once in the ten years since he left Zimbabwe, from
December 2006 to January 2007. She was concerned that there were no photos of
the Sponsor and the Applicant together during this visit and she could not be
certain that they had actually seen one another at that time.
[12]
The
Officer also found that there was no explanation as to why the Sponsor had
waited until 2006 to file the first application for permanent resident status
for the Applicant. She noted that the Sponsor had been granted permanent
resident status and was thus able to sponsor the Applicant in 2002. She also
found that the remittances the Sponsor sent to Zimbabwe beginning in
May 2003 were small.
[13]
The
Officer also found that the Sponsor’s family in Canada had not met
the Applicant, nor had they made any effort to do so. Although, in the
experience of the Officer, many other Zimbabweans had travelled to neighbouring
countries to meet family from abroad – being driven to do so by the political
situation in Zimbabwe – the
Sponsor’s family had not done so. In the mind of the Officer, there was no
excuse for the Canadian family not to have met the Applicant in person.
[14]
The
Officer found that, though the Sponsor said that the Applicant’s biological
mother was not available to support him, there was no evidence to show this.
She noted that the Applicant had provided contact information for his
biological mother when he was interviewed in relation to his TRV application in
2007.
[15]
Finally,
the Officer found that the best interests of the Applicant favoured his
remaining in Zimbabwe with his
paternal grandmother. The Applicant had known his grandmother his whole life,
so it was better for him to stay with her, than to be with a family in Canada he had never
met. Further, though the situation in Zimbabwe was not ideal, the Officer
said that it had improved and was not an impediment to the Applicant remaining
there in the care of his grandmother.
ISSUES
[16]
The
Applicant formally raises the following issues:
a.
Whether
the Officer unreasonably emphasized the Sponsor’s non-disclosure of the
Applicant in the 2002 Application;
b.
Whether
the Officer’s conclusion that the Sponsor and Applicant did not have a close
relationship was reasonable;
c.
Whether
the Officer’s conclusion that the Applicant’s had a suitable living situation
in Zimbabwe was
unreasonable.
[17]
The
Applicant also raises the following issue in his pleadings:
a.
Whether
the Applicant’s right to procedural fairness was breached.
STATUTORY
PROVISIONS
[18]
The
following provisions of the Act are applicable in his written argument:
Objectives — immigration
3. (1) The objectives of this Act with respect to
immigration are
…
(d) to see that families are reunited in Canada;
…
Application before entering Canada
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document required
by the regulations. The visa or document may be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
…
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.
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Objet en matière
d’immigration
3. (1) En
matière d’immigration, la présente loi a pour objet :
…
d) de veiller à la réunification des familles au Canada;
…
Visa et documents
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi. Séjour pour motif d’ordre
humanitaire à la demande de l’étranger
…
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.
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[19]
The
following provisions of the Regulations are applicable in this proceeding:
Family class
116. For the purposes of subsection 12(1) of
the Act, the family class is hereby prescribed as a class of persons who may
become permanent residents on the basis of the requirements of this Division.
Excluded relationships
117. (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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Catégorie
116. Pour l’application du paragraphe 12(1) de la Loi, la
catégorie du regroupement familial est une catégorie réglementaire de
personnes qui peuvent devenir résidents permanents sur le fondement des
exigences prévues à la présente section.
Regroupement Familial
117. (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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STANDARD OF
REVIEW
[20]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
SCJ No. 9, held that a standard of review analysis need not be conducted
in every instance. Instead, where the standard of review applicable to a
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[21]
In Baker
v Canada, [1999] 2 S.C.R. 817 at paragraphs 61 and 62, the Supreme
Court of Canada held that the standard of review with respect to H&C
determinations was reasonableness simpliciter. This approach was
followed by the Federal Court of Appeal in Kisana v Canada (Minister
of Citizenship and Immigration) 2009 FCA 189. (See also Lee v Canada (Minister
of Citizenship and Immigration) 2005 FC 413). Specifically
with respect to the first issue, the Supreme Court of Canada held in Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph
61 that it is not the function of the reviewing court to re-weigh the evidence
before the decision-maker. This approach was followed by Justice Michel Shore
in Lupsa v Canada (Minister of Citizenship and Immigration) 2009 FC 1054
at paragraph 4 where he held that “the Court cannot lightly interfere
with the manner in which an immigration officer exercises his or her discretion
and it is not for the Court to re-weigh the relevant fact-driven factors of the
case.” As the first three issues deal with the Officer’s discretion on the
H&C application, the standard of review with respect to these issues is
reasonableness.
[22]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Khosa, above, at paragraph 59. Put another way, the
Court should intervene only if the Decision was unreasonable in the sense that
it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
[23]
With
respect to the fourth issue, the Applicant raises both the opportunity to
respond and the adequacy of reasons. Both of these issues raise questions of
procedural fairness. (See Malveda v Canada (Minister of
Citizenship and Immigration) 2008 FC 447, Rafieyan v Canada
(Minister of Citizenship and Immigration) 2007 FC 727, and Adil v Canada (Minister of
Citizenship and Immigration) 2010 FC 987). In Canadian Union of
Public Employees (C.U.P.E.) v Ontario (Minister of Labour), 2003
SCC 29, [2003] 1 S.C.R. 539, the Supreme Court of Canada held that
the standard of review with respect to questions of procedural fairness is
correctness. Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review
with respect to the fourth issue is correctness.
ARGUMENTS
The Applicant
The
Applicant’s Right to Procedural Fairness was Breached
The Applicant
was Denied the Opportunity to Respond
[24]
The
Applicant argues that the conclusions the Officer reached were unreasonable because
they were based on a breach of his right to procedural fairness. The Officer
failed to ask him for explanations of the evidence that he presented or to fill
in the holes in evidence on issues she was concerned about.
[25]
The
Applicant relies on Hassani v Canada (Minister of
Citizenship and Immigration) 2006 FC 1283 for the proposition that an officer
has a duty to seek clarification where her concerns do not emanate directly
from a requirement of the Act. Where an officer does not seek clarification, as
occurred in this case, the Applicant’s right to procedural fairness will be
breached through a denial of the right to respond.
[26]
The
CIC manual OP-4 Processing of Applications under section 25 of IRPA
states under the heading “The ‘Case to be Met’” that “it is good practice to
clarify possible H&C grounds if these are not articulated.” Further, Baker,
above, shows that a high level of participatory rights is called for where the
interests of a child are at stake. The Applicant says that Del Cid v Canada (Minister of
Citizenship and Immigration) 2006 FC 326 teaches that an officer should
request further evidence where he or she perceives a lack of evidence for a
submission with respect to the best interest of a child. Taken together, these
authorities show that the Officer in this case was under a duty to inquire into
the areas where she perceived a lack of evidence.
[27]
The
Applicant says he was denied the opportunity to respond in this manner when the
Officer relied on the evidence that the Sponsor waited until 2006 before filing
an application for permanent residence on his behalf. He says that this posed a
question that the Sponsor had not anticipated and which did not emanate from a
requirement of the Act. The Officer’s duty to inquire was therefore engaged.
She breached the Applicant’s right to respond when she did not ask for
clarification of the reasons for the delay. Had he been asked to explain the delay,
the Sponsor says he would have explained that he received bad advice from an
immigration consultant.
[28]
The
Applicant’s right to respond was also breached when the Officer failed to put
her concerns about the lack of visits to Zimbabwe to the
Applicant or the Sponsor. Had she done so, the Sponsor was ready and willing to
give further evidence of visits. He was precluded from doing so because he did
not know that this was something the Officer was concerned about.
[29]
The
Officer also failed to put her concerns about the lack of pictures from the
Sponsor’s visit in December 2006 – January 2007 to Zimbabwe to the
Applicant or the Sponsor. This denied the Applicant the opportunity to respond
to the Officer’s concerns. The Officer had a duty to put this to the Applicant
as he could not reasonably foresee that the lack of pictures would be a
concern. Counsel had advised the Sponsor that the focus of the inquiry was on
demonstrating ongoing support and contact, which he had attempted to do through
evidence of visits, phone calls, and remittances to family in Zimbabwe.
[30]
The
Officer also failed to put to the Applicant’s concerns about the sufficiency of
the amounts remitted by the Sponsor to family members in Zimbabwe, which again
denied the Applicant the opportunity to respond. Had the Officer done so, the
Applicant says he would have explained that the amounts were actually quite
large, given the rate of inflation Zimbabwe was experiencing at the time.
Further, he would have shown that Zimbabwe had imposed
restrictions on foreign remittances and, to compensate, the Sponsor had bought
groceries for the Applicant on-line. He also would have shown that his expenses
were low because he lives with his grandmother. The Applicant says the Officer’s
concern here was not well-founded and could have been resolved if she had asked
the Applicant for an explanation.
[31]
The
Applicant was also denied the opportunity to respond when the Officer failed to
put to him her concerns about the lack of a meeting between him and his Canadian
step-family. Had she put this concern to him, he would have adduced evidence
that the Sponsor was stateless until 2006, the airfare for the family was
approximately $10,000, and that the family elected to send what resources they
had available to the Applicant as remittances, rather than spending money on
travel.
[32]
Finally,
the Officer failed to put her concerns about the Applicant’s contact with his
biological mother to him. Had she done so, he would have explained the
situation to the Officer.
The
Reasons Given Were Inadequate
[33]
The
Applicant also argues that his right to procedural fairness was breached when
the Officer failed to provide adequate reasons. The reasons were inadequate
because they did not disclose how the Officer concluded, in the face of evidence
of political instability and deprivation in Zimbabwe, that the
Applicant’s living situation was adequate. The Officer failed to engage in a
meaningful way with the evidence on the conditions in Zimbabwe. By not
engaging with the evidence, the reasons provided by the Officer fell below the
requirement that she be alert, alive, and sensitive to the best interests of
the Applicant.
The Decision was Unreasonable.
The Officer’s Finding That the Applicant
and the Sponsor Did Not
Have a Close Relationship was Unreasonable
[34]
The
Applicant argues that the Officer’s conclusion about the relationship between
him and the Sponsor was unreasonable on several grounds.
[35]
First,
the Officer failed to account for, or was in error concerning the evidence that
was before her. The Applicant says that when she analyzed their relationship,
the Officer did not take into account the phone calls and letters which had
been exchanged between him and the Sponsor. Also, when she looked at the time
between when the Sponsor was granted permanent residence and when he first
applied for permanent residence on behalf of the Applicant, the Officer failed
to take into account the evidence that the Sponsor would have led, had he been
asked.
[36]
Second,
the Officer based her conclusion about the relationship on an erroneous
conclusion that the Sponsor and the Applicant had not visited enough. This
conclusion was based on the denial of procedural fairness discussed above. Had
the Applicant been given an opportunity to respond, the Sponsor would have
given evidence of passport stamps and visas showing visits to the Applicant in
1999-2000 and 2008-2009. The Officer ignored this evidence, as well as evidence
the Sponsor would have introduced which showed he could not have travelled to Zimbabwe. Had the
Officer asked for an explanation, these concerns would have been addressed.
[37]
Third,
the Applicant says that the Officer’s conclusion about his relationship with
the Sponsor was in error because it ignored evidence of ongoing contact between
them. This included evidence that the Sponsor has attempted to gain entry visas
to Canada for the
Applicant in 2006, 2007, and 2008. Further, the conclusions as to the strength
of the relationship placed too much emphasis on the fact that there were no
photos from the Sponsor’s visit in December 2006. As the Applicant was denied
the opportunity to respond, he did not have the opportunity to adduce evidence;
to ignore the evidence that would have been adduced makes the Officer’s
conclusion unreasonable.
[38]
Fourth,
the conclusion that the relationship was not close enough was unreasonable because
it was based on the unreasonable conclusion that the amounts of money the
Sponsor remitted to Zimbabwe were relatively small. The Applicant says there
was no evidence to support this conclusion, though he submitted a list of
remittances in support of his application. This conclusion also ignored
evidence in the Sponsor’s letter which noted that the levels of inflation in Zimbabwe were very
high.
[39]
Fifth,
the Officer’s conclusion about the Applicant’s relationship with the Sponsor
unreasonably emphasized the fact that the Applicant had not met his Canadian step-family
and that there would be no hardship from their continued separation. This
conclusion ignores the deprivation that both the Applicant and his step-family
have suffered from his absence. This conclusion also ignores the affidavit
evidence of the Sponsor and Co-Sponsor attesting to the hardship their
continued separation would cause. Relying on Pedro Enrique Juarez Maldonado
v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302 at page 305, the Applicant
says that these affidavits were entitled to a presumption of truth. It was
therefore unreasonable for the Officer to ignore them. For the Officer to
conclude that the family would suffer no hardship does not fit with the
Sponsor’s repeated attempts to bring the Applicant to Canada. The
Applicant says the Officer also ignored evidence of financial limitations on
the family which prevented them from visiting him in Zimbabwe. This
evidence included records of their income, the need to care for the children of
the Sponsor and Co-sponsor in Canada, and affidavit evidence that the Sponsor
was unable to work for a time because of health problems.
[40]
In
all the above ways, the Officer fundamentally misapprehended the strength of
the ongoing relationship between the Applicant and his Sponsor in Canada by ignoring
the evidence before her and failing to put her unanticipated concerns to the
Applicant.
The Officer’s Conclusion That The
Applicant Had a Suitable Living Situation in Zimbabwe Was Unreasonable
[41]
The
Applicant also argues that the Officer’s conclusion that he had a suitable
living situation in Zimbabwe was unreasonable because it was based on
conclusions that the country conditions in Zimbabwe had improved, that his
biological mother was involved in his life, and that it was in his best
interests to remain in Zimbabwe, all of which were
unreasonable.
[42]
The
conclusion that country conditions in Zimbabwe had improved did not
engage in any meaningful way with statements in the Sponsor’s submissions in
support of the H&C application about the unemployment rate, inflation,
health care situation, and sanitation standards. This conclusion was also
unreasonable because the Officer was not sufficiently alert, alive, or
sensitive to the best interests of the Applicant.
[43]
The
only evidence on the role of his biological mother in his life that was before
the Officer was the contact information for his mother which the Applicant
provided at his interview for the 2007 application for a TRV. The Officer
ignored affidavit evidence of the Sponsor that the Applicant’s biological
mother was not available to care for him. The Sponsor’s affidavit is more
recent than the contact information so it should have been preferred. Further,
the Applicant has been living with his paternal grandmother. All the evidence
points to his biological mother abandoning him. Rather than relying on the
evidence that the Applicant could contact his biological mother, what should
have mattered to the Officer was whether his mother was able and wiling to
provide adequate care, which clearly she was not. The Applicant also says that
the Officer imposed an impossibly high evidentiary burden – to prove his mother
was not involved in his life – so this conclusion was unreasonable.
[44]
The
Applicant also says it was unreasonable for the Officer to conclude that it was
in his best interests to remain in Zimbabwe with his extended
family rather than live with his step-family in Canada who he has
never met. This conclusion relied on the gross generalization that it its
common in Zimbabwean culture for children to live with their grandparents. The Applicant
notes that I said in Ponniah v Canada (Minister of
Citizenship and Immigration) 2003 FC 1016 at paragraph 10 that
“[assumptions] based on cultural generalizations, particularly those relating
to ancillary issues, are not relevant considerations.” This cultural stereotype
was not based on any evidence before the Officer and further, had she put this
to him, the Applicant would have explained that neither the Sponsor nor his
wife were Zimbabwean, so this generalization does not apply to them anyway.
[45]
The
conclusion that it was in the Applicant’s best interests to remain with his
extended family was also unreasonable because there was no evidence before the
Officer as to who that extended family was or how they could support him. In Ebonka
v Canada (Minister of Citizenship and Immigration) 2009 FC 80 at paragraph
25, Justice Michael Kelen held that it was unreasonable for an officer to rely
on a relationship for which there is little evidence as proof that the
applicant would not suffer hardship from separation from a relationship which
is well established on the evidence. The Applicant says that his is such a
case. Further, to hold that it is in the Applicant’s best interests to remain
in Zimbabwe does not accord with paragraph 3(1)(a) of the Act, which
says that one of the objectives of the Act is the reuniting of families in Canada.
The Officer Unreasonably Emphasized the
Sponsor’s Non-Disclosure of the Applicant in his 2002 Application for Permanent
Residence
[46]
As
noted above, the Applicant is permanently excluded from the family class by
paragraph 117(9)(d) of the Regulations. He says that subsection 25(1) of
the Act can be used to grant an exemption from paragraph 117(9)(d).
Further, following De Guzman v Canada (Minister of Citizenship and
Immigration) 2005 FCA 436, the Applicant says that, when considering an H&C
exemption from that paragraph, the Officer must assess all H&C factors,
including the best interests of the child. He also notes that an officer
considering such an application must be alert, alive, and sensitive to the best
interests of the child.
[47]
The
Applicant says that it is an error for an officer assessing an H&C
exemption from paragraph 117(9)(d) to place undue emphasis on the
non-disclosure of a child over the H&C considerations or the paragraph
3(1)(d) objective of reuniting families in Canada. For this
proposition, he relies on David v Canada (Minister of Citizenship and
Immigration) 2007 FC 546, Hurtado v Canada (Minister of Citizenship and
Immigration) 2007 FC 552, Sultana v Canada (Minister of Citizenship and
Immigration) 2009 FC 533 and Krauchanka v Canada (Minister of
Citizenship and Immigration) 2010 FC 209.
[48]
The
Applicant also says that the refusal of an H&C application is unreasonable
where the non-disclosed child is not otherwise inadmissible to Canada. Where a
non-disclosed child is not inadmissible, the non-disclosure is immaterial to
the non-disclosing parent’s application. In these cases, the policy rationale
behind paragraph 117(9)(d) – ensuring that applicants do not later
sponsor inadmissible family members – does not hold. An H&C exemption in
this type of case is normally warranted and a denial of the application will
normally be unreasonable.
[49]
In
his case, the Applicant was not inadmissible when the Sponsor applied for
permanent residence in 2002. As such, an H&C exemption was warranted in his
case and the denial of the same was unreasonable.
[50]
The
Officer’s undue emphasis on the non-disclosure by the Sponsor of the Applicant
is shown by her statement that “[The Applicant] remains permanently excluded
from being sponsored as member of the family class regardless of the reasons
why [the Sponsor] never declared him.” The Applicant says the undue emphasis is
also shown by the dismissive attitude that the Officer displayed toward the
relationship between the Applicant and his father and his circumstances in Zimbabwe, borne out
by the unreasonableness of her conclusions on those issues.
The
Respondent
[51]
The
Respondent says that the onus is on applicants in H&C applications to
provide all relevant facts in support of their applications. In this case, the
Officer provided the Applicant with all required procedural entitlements,
considered all the facts that were before her, and drew reasonable conclusions
from the evidence.
There
Was no Breach of Procedural Fairness
[52]
The
Respondent says that the ultimate question, when examining the issue of
procedural fairness, is whether the person subject to a decision had a
meaningful opportunity to present his case. The Respondent argues that the
Applicant’s right to procedural fairness was not breached, as he had every
opportunity to put evidence before the Officer, yet chose not to do so. Here,
the onus was clearly on the Applicant to demonstrate that an H&C exemption
was warranted in his case.
[53]
Relying
on Kisana, above, the Respondent says that there was no duty on the
Officer to highlight the weaknesses in the Applicant’s case. There was no duty
to point out the holes in the evidence concerning the relationship between the
Applicant and his Canadian step-family; the Applicant had all the evidence in
his hands. It was for the Applicant to draw a clear picture of the relationship
and there was nothing to prevent the Applicant from submitting additional
material to be considered by the Officer. The Respondent says, based on Owusu
v Canada (Minister of
Citizenship and Immigration) 2004 FCA 38 that, where an applicant fails
to present his case, as occurred here, he does so at his own peril.
The Officer Did Not Improperly Emphasize
the Sponsor’s Non-Disclosure of the Applicant in 2002
[54]
The
Officer did not unreasonably overemphasize the non-disclosure of the Applicant
by the Sponsor in his 2002 application for permanent residence. Non-disclosure
of a child is a relevant policy consideration in an H&C application, so it
was proper for the Officer to consider it in her analysis. For this
proposition, the Respondent relies on Li v Canada (Minister of
Citizenship and Immigration) 2006 FC 1292.
[55]
The
Respondent says that the Officer’s statement in the Decision that “the
[Applicant] remains permanently excluded as a member of the family class
regardless of the reasons why [the Sponsor] never declared him” is not a major
part of her reasons. This is only one of a number of factors she considered.
The Officer simply noted that the Sponsor’s explanation was not convincing;
this was not conclusive of the determination.
[56]
The
Respondent also says that the reasonableness of an H&C exemption from
paragraph 117(9)(d) is independent of whether the non-disclosed child is
inadmissible. The failure to declare dependants is a relevant policy
consideration whether or not the non-disclosed dependants are admissible. In
this case, the Officer properly considered the non-disclosure of the Applicant
on the Sponsor’s 2002 Application.
There Was no Error in Assessing the Relationship
Between the Sponsor and the Applicant
[57]
The
Officer’s conclusion that the relationship between the Applicant and the
Sponsor was not sufficiently close to merit an H&C exemption was reasonable,
as it was based on all the evidence that was before her. The relationship
between the Applicant and the Sponsor was central to the H&C determination
in this case. When the Officer looked at the delay in applying for status for
the Applicant, she was considering relevant evidence.
[58]
The
Applicant has attacked the reasonableness of the Officer’s conclusion that the
remittances sent by the Sponsor to Zimbabwe were relatively small, but
there was evidence before her that the Sponsor and Co-sponsor had a combined
household income of $130,000. She also had before her a list of the remittances
sent by the Sponsor to Zimbabwe, none of which was more
than $544.00. Further, though the Applicant could have provided further
evidence on the remittances to the Officer, he cannot now attempt to do so on
judicial review.
[59]
The
Respondent further says that it was open to the Officer to consider the lack of
a visit by the Sponsor and the Canadian family to the Applicant in Zimbabwe in examining
the relationships of the parties. The Officer addressed the fact that the
Co-sponsor and her children had not visited the Applicant due to extenuating
circumstances when she noted that the family could have met in a neighbouring
country. In addition, the relatively high income of the family does not support
the Applicant’s contention that there were financial obstacles preventing the
Canadian family from visiting the Applicant in Africa.
The Officer’s Conclusion on the
Applicant’s Circumstances in Zimbabwe was Reasonable
[60]
Finally,
the Respondent argues that the Officer’s conclusion with respect to the
Applicant’s situation in Zimbabwe was reasonable and was based
on all the evidence before her. The Officer considered all the evidence before
her and referred in the Decision to the Sponsor’s submission on the economic
situation, political instability, and the availability of education and medical
care. The Officer was not required to compare the situation in Zimbabwe with
that in Canada and “the
fact that [the Applicant] might be better off in Canada in terms of
general comfort and future opportunities cannot, […], be conclusive in an
H&C Decision that is intended to assess undue hardship.” (Vasquez v Canada (Minister
of Citizenship and Immigration) 2005 FC 91 at paragraph 43). The
Respondent also says that it is not for the Court to examine whether the
Officer gave this factor sufficient weight.
[61]
Overall,
the Officer adequately addressed the issue of hardship. She considered the
length of time the Sponsor had been absent from the Applicant’s life, the
amount of contact between them, the size of the remittances from the Sponsor to
Zimbabwe, and the
Applicant’s residence with his paternal grandmother. Following Yue v Canada (Minister of
Citizenship and Immigration) 2006 FC 717, the Respondent says that these
are the kinds of factors which have been found by this Court not to warrant
judicial intervention.
ANALYSIS
[62]
The
Applicant complains that, if only the Officer had asked more questions or
alerted him to concerns, he could have provided more information that would
have fundamentally changed the picture of the relationship he had with his
family in Canada. He says
that it was procedurally unfair for the Officer not to have alerted him to
concerns about his application and not to have given him an opportunity to
address those concerns.
[63]
I
think that this complaint misconceives the nature of the process. As the Respondent
points out, in the H&C context, the onus is on an applicant to demonstrate
that an exemption is warranted and an officer is under no duty to highlight
weaknesses in an application and request further submissions. See Kisana,
above, at paragraph 45. Many of the issues raised by the Applicant in this
review application are no more than a request to the Court that the law be
changed and the onus placed upon the Officer. This cannot be done. The facts to
support the relationship were in the hands of the Applicant and his family. It
was up to the Applicant to establish the nature of the relationship he had with
his Canadian family. This required him to show how that relationship was
nurtured and maintained, the nature of the emotional and psychological
connection he had with his father, and any barriers they faced in making use of
the resources available to them for communication, connection, and support.
[64]
There
were no limits on the information that the Applicant was able to adduce to
substantiate the nature of the relationship, and he was at liberty to go on
providing additional material at any time prior to the final decision. The
Applicant and his family now wish they had provided the Officer with more
material and they have attempted to lay before the Court what they could have
said and done, blaming the Officer for not allowing them the opportunity to
provide that information to him. This aspect of their application has to be
dismissed. As the Court of Appeal has said, if an applicant fails to present a
fulsome case, he or she does so at their peril. See Owusu, above, at
paragraph 8.
[65]
In
Owusu v Canada (Minister of Citizenship and Immigration) 2003 FCT 94,
Justice Frederick Gibson had the following to say on point at paragraph 11:
The onus on an application for humanitarian or
compassionate relief lies with the applicant. In Prasad v. Canada (Minister
of Citizenship and Immigration), in the context of judicial review of a visa
officer decision, Justice Muldoon wrote at paragraph 7:
The onus
is on the applicant to satisfy the visa officer fully of all the positive
ingredients in the applicant’s application. It is not for the visa officer to
wait and to offer the applicant a second, or several opportunities to satisfy
the visa officer on necessary points which the applicant may have overlooked.
In Patel v. Canada (Minister
of Citizenship and Immigration), Justice Heald, once again in the context of
judicial review of a visa officer’s decision, but dealing with the issue of
humanitarian or compassionate grounds, wrote at paragraph 9:
The
applicant submits that he is entitled to have all relevant evidence considered
on a humanitarian and compassionate application. I agree with that submission.
However, the onus in this respect lies with the applicant. It is his
responsibility to bring to the visa officer’s attention any evidence relevant
to humanitarian and compassionate considerations.
[66]
I
realize there are situations where an officer would have an obligation to make
further inquiries and seek clarification. Justice Richard Mosley provided
guidance on this issue at paragraph 24 of Hassani, above:
Having reviewed the factual context of the cases cited above, it
is clear that where a concern arises directly from the requirements of the
legislation or related regulations, a visa officer will not be under a duty to
provide an opportunity for the applicant to address his or her concerns. Where
however the issue is not one that arises in this context, such a duty may
arise. This is often the case where the credibility, accuracy or genuine nature
of information submitted by the applicant in support of their application is
the basis of the visa officer’s concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan,
above.
[67]
On
the facts of the present case, I do not believe that any such exception arises.
Also, I do not think that any of the points relied upon by the Officer for her
conclusions concerning the family relationship could not have been anticipated
by the Applicant. The Federal Court of Appeal has established the basic
principles applicable to a case such as this in Kisana, above:
33 Many
of the factors which an officer is required to consider in determining an
H&C application can be found in the guidelines issued to immigration
officers by the Minister, to which Décary J.A. refers in paragraph 7 of his
Reasons in Hawthorne, supra, and which can be found at paragraph 30 of
Evans J.A.’s concurring Reasons in that case. These factors include hardship
arising from the geographical separation of family members. In examining this
factor, the officer should consider: the effective links with family members,
i.e. in terms of ongoing relationship as opposed to the simple biological fact
of relationship; has there been any previous period of separation and, if so,
for how long and why; the degree of psychological and emotional support in
relation to other family members; options, if any, for the family to be
reunited in another country; financial dependence, and; the particular
circumstances of the children.
…
45 It
is trite law that the content of procedural fairness is variable and contextual
(see: Baker, supra, para. 21; and Khan v. Canada (MCI), [2002] 2
F.C. 413). The ultimate question in each case is whether the person affected by
a decision “had a meaningful opportunity to present their case fully and fairly”
(see: Baker, supra, para. 30). In the context of H&C applications,
it has been consistently held that the onus of establishing that an H&C
exemption is warranted lies with an applicant; an officer is under no duty to
highlight weaknesses in an application and to request further submissions (see,
for example: Thandal v. Canada (MCI), 2008 FC 489 at para. 9). In Owusu,
supra, this Court held that an H&C officer was not under a positive
obligation to make inquiries concerning the best interests of children in
circumstances where the issue was raised only in an “oblique, cursory and
obscure way” (at para. 9). The H&C submissions in that case consisted of a
7-page letter in which the only reference to the best interests of the children
was contained in the sentence: “Should he be forced to return to Canada, [Mr.
Owusu] will not have any way to support his family financially and he will have
to live every day of his life in constant fear” (at para. 6).
…
56 There
can be no doubt that the officer could have asked more questions in order to
obtain additional information with regard to the twins’ situation in India,
but, as we shall see, she was under no duty to do so in this case. It may be
that the pointed and narrow questions disclosed by the CAIPS notes probably did
not constitute the most effective manner of obtaining information from these
applicants, particularly in light of the lack of documentary evidence provided
by them. However, the vacuum, if any, was created by the appellants’ failure to
assume their burden of proof. In these circumstances, the officer’s poor
interviewing techniques, if that be the case, are, in my view, insufficient to
justify intervention on our part.
[68]
Paragraph
33 of Kisana provides a checklist of what an H&C officer has to
consider. The Officer in this case dealt with the matters referred to in this
paragraph. Paragraph 33 also provides the Applicant with a checklist for what
should be addressed in his application. The Applicant had legal advice in the
preparation of his H&C application. The package of information provided to
the Officer was not the information that has now been placed before this Court.
I do not think the Officer can be faulted for not taking into account facts and
explanations that were not placed before her.
[69]
There
are other aspects of the Applicant’s arguments that are just not accurate when
the Decision is read in its entirety. For example, there is really no indication,
in my view, that the Officer improperly emphasized the Sponsor’s failure to
declare the Applicant in the Sponsor’s earlier 2002 application. I think the
Respondent is correct on this point.
[70]
It
was open to the Officer to consider the failure of the Sponsor to properly
declare the Applicant as it is one public policy factor to be considered in the
H&C assessment. See Li, above, at paragraph 33 and Kisana,
above, at paragraph 27.
[71]
A
review of the Decision concerning the assessment of H&C factors does not support
the Applicant’s allegation that the Officer overemphasized the Sponsor’s
failure to declare his son when the Sponsor landed in Canada.
[72]
The
Applicant’s only example of the Officer placing “particular emphasis on the
fact of the non-disclosure” was the statement that
PA remains permanently excluded from
being sponsored as a member of the family class, regardless of the reasons why
sponsor never declared him…
[73]
This
statement does not form a major part of the Oficer’ reasons concerning the
H&C factors. Further, the Officer simply notes that the explanation for
non-disclosure provided by the Sponsor is not convincing. This comment is one
of many which review the evidence presented by the Applicant. It is not a
conclusive statement on the strength of the H&C application and does not
override the other factors, which determined the final result.
[74]
Further,
the fact of the Applicant’s admissibility does not determine the reasonableness
of the Officer’s assessment of H&C factors. The failure to declare raises a
public policy concern, regardless of the Applicant’s status. See Li,
above, Yue, above, and Sandhu v Canada (Minister of
Citizenship and Immigration), 2007 FC 156.
[75]
That
being said, there are some aspects of the Decision that this Court finds
troubling, and I think they need to be examined to determine whether they
render the Decision unreasonable. I am particularly concerned by the Officer’s
consideration of the best interests of the child (Applicant). It is obvious
from the Decision that the Officer took into account the situation in Zimbabwe when dealing
with this issue. Her final conclusions on point read as follows:
While the situation in Zimbabwe is not ideal, it has
improved. While PA’s representative states that it is in PA’s best interest to
be with his father in CDA, I do not agree, as I believe that it is in PA’s best
interest to in fact be with his extended family in Zimbabwe who he knows and
who has taken care of him most of his life rather than a family in CDA, who he
has had limited contact with for most of his life with 3 members whom he had
never even met in person.
[76]
Counsel
for the Respondent conceded to the Court that she knows of no evidence before
the Officer that would support a conclusion that the situation in Zimbabwe has
improved. Reviewing the record myself, it seems to me that the Officer’s
conclusions or statements about Zimbabwe are totally inaccurate
and perverse. It is not only that the situation in Zimbabwe “is not
ideal”; the reality is that it could not be worse. There is no evidence that it
has improved or that improvement is likely anytime soon. The picture is one of
increasing international concern over ever declining socio-economic conditions,
a collapsing education system, and increasing violence.
[77]
I
realize that, in conducting an assessment of the situation of the Applicant,
the Officer is not required to make a comparative analysis between the
Applicant’s situation in Zimbabwe and his potential situation in Canada. As I pointed
out in Vasquez, above, at paragraph 43,
The fact that the children might be
better off in Canada in terms of general comfort
and future opportunities cannot, in my view, be conclusive in an H&C
Decision that is intended to assess undue hardship.
[78]
I
also realize that whether the Officer gave this factor sufficient weight is not
for the Court to decide.
[79]
What
concerns me is that the Officer provides no basis for her conclusion that the
situation in Zimbabwe has improved
(and Respondent’s counsel cannot point to any), and she appears to be unaware
of the evidence before her that reveals the real situation in Zimbabwe.
[80]
The
Officer herself makes the situation in Zimbabwe a
significant factor in her analysis and, of course, it ought to be when
assessing the best interests of the Applicant. I think her incorrect analysis
of the situation is a highly material error that renders the Decision
unreasonable. I cannot say that the Officer would have come to the same
conclusion regarding the best interests of the Applicant if she had taken into
account what the evidence does say about declining conditions in Zimbabwe and the
prospects for the Applicant if he has to remain there. Consequently, I believe
this matter requires reconsideration.
[81]
I
am also concerned by the Officer’s assessment that “it is possible that [the Applicant]
does have contact with his [biological] mother.” The evidence from the Sponsor
is clear that there is no such contact and there is nothing in the record to
suggest this is not true. The fact that the Applicant may have had a contact
address for his biological mother does not mean that she plays, or will play,
any role in his life. If the Officer felt that the Sponsor could not be
believed on this issue, then she should have interviewed him to test his
credibility. Her failure to do this renders her suggestion that the biological
mother could be available to the Applicant unreasonable. Once again, this
renders the Decision unsafe regarding the Officer’s analysis of the Applicant’s
best interests. The finding was highly material and there is no evidence to
support the Officer’s conclusion.
[82]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
3.
The
Style of Cause is amended to show the Applicant as “Salim Tafadzwa Zingano by
his litigation guardian Lameck Zingano”.
“James
Russell”