Date: 20070404
Docket: IMM-7573-05
Citation: 2007 FC 363
Ottawa, Ontario, April 4,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
HELLIVELTON DE ARAUJO,
WILMARIA SALDAN MOREIRA,
PATRICK
KEVIN MOREIRA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicants are a family of failed refugee claimants from Brazil, who sought
a Humanitarian and Compassionate exemption allowing them to stay in Canada. This
request was refused, as the H&C officer considering the matter determined
that the family would not suffer undue, undeserved or disproportionate hardship
if they were required to leave Canada.
[2]
The
applicants now seek judicial review of that decision, asserting that the
H&C officer erred in failing to consider the “public policy” features of
their application, having regard to Mr. de Araujo’s skill in the construction
trades, and the shortage of such skilled workers in Canada.
[3]
The
officer further erred, the applicants say, in ignoring evidence, in failing to
give due consideration to the evidence, in improperly considering the best
interests of the applicants’ children, and in basing her conclusion on material
that was not provided, rather than on the material before her.
[4]
For
the reasons that follow, I am not persuaded that the officer erred as alleged.
As a consequence, the application for judicial review will be dismissed.
Background
[5]
The
applicants, a mother, father and young child, have been in Canada since 2001
or 2002. There is some question as to when it was that Mr. de Araujo came to Canada. There is
no dispute that the rest of the family arrived in this country in 2002.
Nothing turns on precisely when it was that Mr. de Araujo arrived here.
[6]
There
is now an additional Canadian-born child in the family.
[7]
Mr.
de Araujo comes from a large family. His widowed father currently lives in the Toronto area, as do
his sister and three brothers. All of his brothers and sister in Canada are
permanent residents, except for one brother, who is under a removal order as a
failed refugee claimant. Mr. de Araujo’s father came to Canada by means of
his daughter’s sponsorship under the Family Class.
[8]
Mr.
de Araujo also has five other brothers and sisters who live in Brazil. Ms. Moreira’s
parents still live in their home country.
[9]
Since
coming to Canada, Mr. de
Araujo has supported himself by working for his brother’s business as a ceramic
tile installer.
[10]
After
the family’s refugee claims were rejected by the Immigration and Refugee Board,
the family submitted an H&C application on April 27, 2004. As part of the
Officer’s consideration of that application, a risk assessment was carried out,
which was negative. The PRRA Officer determined that there was insufficient
evidence to demonstrate that Mr. de Araujo and his children would face a
personalized risk to their life or their general safety. No issue is taken
with respect to that finding on this application.
[11]
The
H&C officer determined that the family would not suffer undue, undeserved
or disproportionate hardship if they were required to leave Canada. They take
issue with this aspect of the decision.
Standard of Review
[12]
It
is common ground that the general standard of review governing decisions of
immigration officers in relation to H&C applications is reasonableness simpliciter:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817.
[13]
That
is, the decision must be able to withstand a "somewhat probing
examination": Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1
S.C.R. 748.
[14]
I
am, however, satisfied that the applicants’ “public policy” argument involves a
question of law relating to the jurisdiction of the H&C officer, and should
therefore be reviewed against the standard of correctness.
The “Public Policy”
Argument
[15]
The
applicants point to section 25 of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 and, in particular to the statement that H&C applications
may be granted “if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to them, taking into
account the best interests of a child directly affected, or by public policy
considerations”. [My emphasis.]
[16]
According
to the applicants, the officer erred by failing to consider the “public policy”
arm of section 25, given Mr. de Araujo’s skill in a construction trade in high
demand in Canada.
[17]
The
officer was obliged to do so, say the applicants, in light of the objectives
articulated in section 3 of IRPA. In particular, the applicants point
to the stated objectives of permitting Canada to pursue the maximum social,
cultural and economic benefits of immigration, supporting the development of a
strong and prosperous Canadian economy, and seeing that families are reunited
in Canada.
[18]
There
are several difficulties with the applicants’ argument. The first of these is
that nowhere in the submissions made to the officer by the family was there any
request that their application be assessed on “public policy” grounds.
[19]
Moreover,
this Court has previously determined that as the term “public policy” as it is
used in section 25 of IRPA has no objective content, it must therefore be
defined by those constitutionally entrusted with the power to set policy: see Aqeel
v. (Ministre de la Citoyenneté et de l'Immigration), [2006] A.C.F. no.
1895, 2006 CF 1498, Vidal v. Canada (Minister of Employment and Immigration)
(1991), 41 F.T.R. 118 and Dawkins v. Canada (Minister of Employment and
Immigration) (1991), 45 F.T.R. 198.
[20]
Indeed,
in Dawkins, the Court noted that allowing immigration officers to make
exceptions to definitions adopted in the formulation of public policy would in
effect amount to the immigration officer usurping the legislative role.
[21]
One
way that public policy can be articulated is through the promulgation of
guidelines. In this case, the Minister has developed guidelines which identify
a number of categories of individuals whose applications may be considered for
processing under section 25 of the Immigration and Refugee Protection Act
on “public policy” grounds. The most recent of these categories relates to
spousal sponsorships for spouses in Canada without status.
[22]
The
Guidelines do not currently identify members of skilled construction trades as a
category of individuals whose applications may be considered for processing
under the “public policy” ground in section 25.
[23]
As
a consequence, I cannot give effect to the applicants’ “public policy”
argument.
The Officer’s Treatment
of the Evidence
[24]
The
applicants’ remaining arguments all relate to the officer’s treatment of the
evidence. In this regard, they say that the officer erred in ignoring
evidence, in failing to give due consideration to the evidence before her, in
improperly considering the best interests of the applicants’ children, and in
basing her conclusion on material that was not provided by the applicants,
rather than on the material that was before her
[25]
I
would start by observing that the applicants contend that the officer’s reasons
should be viewed as consisting solely of the one page of text that appears in
the officer’s Notes to File under the heading “Decision and Reasons”. I do not
agree. In the pages preceding that portion of the officer’s notes, the officer
goes through a lengthy and detailed review of the evidence before her, in the
course of which she assesses, discusses and weighs that evidence. This
exercise clearly forms part of the officer’s analysis, and must be considered
in determining whether the officer gave due consideration to the evidence
before her.
[26]
The
jurisprudence is clear that H&C applicants have the onus of establishing
the facts on which their claim for an exemption rests. Applicants have no
right or legitimate expectation that they will be afforded a hearing in order
to advance their claims. As a consequence, applicants omit pertinent
information from their applications at their peril: Owusu v. Canada (Minister of
Citizenship and Immigration) [2004] 2 F.C.R. 635, 2004 FCA 38.
[27]
In
this case, the officer paid close attention to the information before her
regarding the applicants’ family situation, specifically noting that Mr. de
Araujo’s widowed father is currently living in Canada. The
officer also observed that no details had been provided regarding the frequency
of visits or the role played by the grandfather in the children’s lives.
[28]
The
officer also noted that Mr. de Araujo’s father had four other children already
living in Canada, who could
provide him with comfort and solace. In particular, the officer noted that as
Mr. de Araujo’s sister had sponsored her father, she was the child responsible
for his support.
[29]
The
officer further noted that none of Mr. de Araujo’s siblings in Canada had provided
any letters of support, or other indications of the closeness of their
relationship. Nor was there any evidence that any of Mr. de Araujo’s siblings
attempted to submit an assisted relative sponsorship on his behalf, before the
implementation of the Immigration and Refugee Protection Act.
[30]
On
the other hand, the officer observed that Mr. de Araujo still had five siblings
residing in Brazil. There was
no evidence to suggest that these siblings would not provide Mr. de Araujo with
the support that he and his family might require upon their return.
[31]
Furthermore,
the officer noted that the children’s maternal grandparents remained in Brazil, along with
other extended family members who could provide emotional support and
assistance in re-establishing themselves in Brazil.
[32]
In
the officer’s view, this re-adaptation would also be eased by the relative
youth of the children.
[33]
Insofar
as the best interests of the children were concerned, the officer also noted
that there was no information before her with respect to the children’s degree
of integration into Canadian society. She further noted that the older child
still listed Portuguese as his mother tongue, suggesting that he would not face
a major difficulty reintegrating into the Brazilian school system.
[34]
The
officer was also not persuaded that Mr. de Araujo had demonstrated any strong
ties to Canada through
employment or community involvement. There were no identifiable long term ties
to the country, and no attempts at academic upgrading, other than the
registration in an ‘English as a Second Language’ course. Although Mr. de
Aruajo insists that he provided the officer with a certificate of completion of
the course, it does not appear in the certified tribunal record.
[35]
The
officer was also not satisfied with the documentation provided by Mr. de Araujo
with respect to his business interests. Having reviewed that documentation
myself, I am satisfied that the officer’s comments regarding the deficiencies
in the documentation were entirely reasonable.
[36]
The
officer further observed that Mr. de Araujo and his wife had been gainfully
employed in Brazil, and there
was no indication that they could not find work there again.
[37]
As
is clear from the above comments, the officer carefully considered the
applicants’ application for a humanitarian and compassionate exemption, and
provided a clear and well-reasoned explanation for her decision not to grant
that exemption. In essence, what the applicants are seeking is to have me
reweigh the information provided to the officer. That is not the task of this
Court on judicial review.
Conclusion
[38]
For
these reasons, the application for judicial review is dismissed.
Certification
[39]
Counsel
for the applicants proposes the following questions for certification:
1. Are the
“humanitarian and compassionate” and “public policy” arms of s. 25 of the IRPA
disjunctive and distinct?
2. If the answer to 1.
is Yes, then are “public policy” considerations and criteria:
(a) for the Minister
alone to formulate at his sole
discretion? or
(b) to emanate and be
nourished from s. 3, et seq,
of the IRPA
and IRPA Regulations; or
(c)
“both (a)
and (b), in that the Minister can only
devise public policies
consistent with the IRPA and its Regulations, but not ignore nor close
the door to the public policy considerations in IRPA, thus not fettering
discretion in either sense, of either exceeding or refusing to exercise
jurisdiction?
[40]
I
do not understand there to be any disagreement between the parties in relation
to the first question, as the respondent accepted that the humanitarian and
compassionate and public policy aspects of section 25 of the Immigration and
Refugee Protection Act are disjunctive, and the case was argued on that
premise. As a consequence, no question arises in this regard for
certification.
[41]
Insofar
as the second question is concerned, I am of the view that the question does
not arise in this case, as the humanitarian and compassionate officer was never
asked to consider the application under the “public policy” provisions of
section 25. Moreover, there is no inconsistency in the jurisprudence on this
point, such that clarification from the Federal Court of Appeal would be
helpful.
[42]
As
a consequence, I decline to certify either question.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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