Date: 20070607
Docket: IMM-4390-06
Citation: 2007 FC 600
Ottawa, Ontario, June 7, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
DENYSE
WALKER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision of an immigration officer dated July 21, 2006, which denied the
applicant’s application for permanent residence on humanitarian and
compassionate (H&C) grounds.
[2]
The
applicant seeks:
1. an order
quashing the decision that there were insufficient H&C grounds for
processing her application for permanent residence from within Canada; and
2. an order
requiring that the respondent process the application for landing from within Canada
in accordance with the policy provisions set out in IP 5 of the immigration
manual.
Background
[3]
The
applicant, Denyse Walker, is a citizen of Trinidad. She first
entered Canada with her
daughter in August 1988. In 1993, she was convicted of theft under $1000 and
fraud under $1000, contrary to paragraphs 334(b) and 380(1)(b) of the Criminal
Code, R.S.C. 1985, c. C-46. She was also convicted of assault on April 27,
1995, contrary to section 266 of the Criminal Code. The applicant was
deported after she failed to report for inquiries and for her criminal
convictions.
[4]
The
applicant obtained a visitor’s visa on October 17, 1995, and returned to Canada on October
21, 1995. She married Richard Walker, who was a permanent resident of Canada. The
applicant used her married name and failed to disclose her convictions and
previous deportation when she obtained her visa. She applied for permanent
residence on H&C grounds on June 25, 1996, and the application received
preliminary approval on July 8, 1996. However, information about the
applicant’s prior convictions and deportation came to light in January 2002,
and the application was denied on April 4, 2002.
[5]
The
applicant applied for a Minister’s permit in order to overcome her
inadmissibility, however, this application was refused. The applicant also
applied for a pardon for her criminal convictions in September 2002. She
received a letter from Pardons Canada indicating that the National Parole Board
required a valid immigration document in order to grant her pardon. The
applicant was advised that without this document, her pardon would become
dormant and would not be granted. The letter also stated:
You sent us a letter from Immigration
Canada suggesting you could have applied for your Minister’s Permit in 1998. We
have tried to encourage you several times to forward the up to date Minister’s
permit to our office, however, have not received it. The National Parole Board
can not complete your Pardon without this document.
[6]
A
deportation order was issued against the applicant on October 10, 2002, on the
basis of inadmissibility. She submitted an application for temporary residence
in November 2003, which was refused in February 2004, on the basis of
misrepresentation and criminality. The applicant applied for a Pre-Removal Risk
Assessment (PRRA) on March 18, 2004, which was denied on July 12, 2005. On
August, 3, 2005, she filed an application for judicial review, challenging a
removal officer’s decision not to defer removal. This application was
discontinued on August 8, 2005.
[7]
On
July 19, 2004, the applicant applied for permanent residence on H&C
grounds, and as a member of the spouse in Canada class. At
the time of the application, she had five children in Canada. Her eldest
daughter, Darcelle, was already a permanent resident of Canada. Her four
other children were born in Canada: Kerron (born in 1988), twins Brittany
and Tiffany (born in 1997) and Tyler (born in 1998).
[8]
The
immigration officer responsible for assessing the applicant’s H&C
application contacted Pardons Canada on July 17, 2006, in order to determine
whether the applicant had to provide a Minister’s permit in order to apply for
a pardon. Pardons Canada indicated that the applicant had been asked to
provide immigration documentation, such as an application for permanent
residence, but her file had been closed after she failed to contact the agency.
The applicant’s H&C application was denied by decision dated July 21, 2006.
This is the judicial review of the officer’s decision to deny the applicant’s
H&C application.
Officer’s Reasons
[9]
By
letter dated July 21, 2006, the applicant was advised that her application for
permanent residence on H&C grounds had been refused. The applicant’s
application for permanent residence under the spousal policy had also been refused.
She did not meet the requirement under paragraph 72(e)(i) of the Immigration
and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations), due
to inadmissibility. She had been convicted of theft, fraud and assault.
[10]
The
officer’s notes formed part of the reasons for the decision. The officer noted
that the applicant was married to a Canadian citizen. She also had four
children who were Canadian citizens, and one child who was a landed immigrant
in Canada. The
applicant claimed that if she left her children with her husband, who was the
family’s source of income, he would be unable to work.
[11]
The
officer telephoned Pardons Canada on July 17, 2006, and asked whether the
applicant had to provide a Minister’s permit in order to apply for a pardon. Pardons
Canada indicated
that the applicant had been asked to provide immigration documentation, such as
an application for permanent residence; however, she failed to do so and her
file was closed. The applicant had previously applied for permanent residence
on H&C grounds. She failed to report her criminal offences at the time and
was refused a Minister’s permit, which would have overcome her inadmissibility.
[12]
Given
that the applicant had family in Canada, there would be some
hardship should she be temporarily separated from them. However, the children
could accompany their mother outside the country if their father was unable to
care for them. In addition, the applicant was not well established in Canada. She had a
low-paying job and had not participated in academic upgrading. She had not
provided a pardon for her previous convictions and stated that she could not
get one without a Minister’s permit.
[13]
The
officer found that the applicant could have applied for a pardon and had not
followed through with the process. Although she may not have had knowledge of
the process, it was her responsibility to find out what she had to do. By
letter dated October 6, 2005, she was asked to provide the officer with certain
documents regarding her convictions, in addition to any pardons. She provided
two letters from the Pardons agency, which stated that more information was
required in order to proceed with the pardons. The court reports and police
records were never provided by the applicant.
[14]
Given
her past non-compliance with immigration legislation and the end result of
deportation, it was reasonable to believe that the applicant had some knowledge
of the immigration process and of the importance of complying with such
legislation. She chose to re-enter Canada after deportation by
failing to provide information regarding her inadmissibility, her previous
deportation, and by using her new married name. As a result, the officer found
that there were insufficient H&C factors to justify an exemption in her
case.
Issues
[15]
The
applicant submitted the following issues for consideration:
1. Did the
officer breach the principles of fairness by considering extrinsic evidence?
2. Did the
officer err in failing to properly assess the children’s best interests?
3. Did the
officer place too much emphasis on the applicant’s inadmissibility?
4. Should a
Minister’s permit have been issued?
Applicant’s Submissions
[16]
The
immigration officer contacted Pardons Canada and was advised that it would have
been sufficient for the applicant to provide a copy of her immigration
application in order to obtain a pardon. The officer then found that the
applicant had failed to properly execute the steps for seeking a pardon and had
to bear the consequences of her actions. This information was not shared with
the applicant. It was submitted that the officer breached the principles of
fairness by relying upon extrinsic evidence and failing to give applicant an
opportunity to respond to it (see Batica v. Canada (Minister of
Citizenship and Immigration), 2006 FC 762).
[17]
The
applicant submitted that the officer failed to consider the best interests of
her children, pursuant to subsection 25(1) of IRPA. The officer did not assess
how the children would be impacted by their removal from Canada, or by the
removal of their mother, should she go to Trinidad without
them. It was submitted that it was insufficient for an H&C officer to
simply state that the interests of the children had been considered (see Hawthorne
v. Canada (Minister of
Citizenship and Immigration), [2003] 2 F.C. 555, 2002 FCA 475).
[18]
The
applicant submitted that the officer erred by focusing upon her negative
immigration history and criminal convictions, to the exclusion of all other
factors (see Duong v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 192 (F.C.T.D.)).
[19]
The
applicant submitted that the officer failed to consider the possibility of
issuing her a Minister’s permit. Such a permit would have allowed the applicant
to complete the pardon process, thereby overcoming her inadmissibility. The
applicant submitted that she had a legitimate expectation that the officer
would exercise his or her discretion and follow the guidelines in this regard
(see Bendahmane v. Canada (Minister of Employment
and Immigration), [1989] 3 F.C. 16, (1989) 61 D.L.R. (4th) 313 (F.C.A.)).
Respondent’s Submissions
[20]
The
respondent submitted that the information obtained by the officer from Pardons
Canada on July 17, 2006 was not extrinsic evidence and that the principles of
natural justice were not breached. The letter from Pardons Canada included in
the applicant’s application indicated that: (1) she was required to provide the
agency with an immigration document (not necessarily a Minister’s permit); (2)
Pardons Canada made numerous efforts to contact the applicant and discuss the
processing of her pardon application; and (3) the pardon would not be granted
if she did not contact the agency. The respondent noted that the applicant did
not follow-up with Pardons Canada. It was submitted that it was therefore open
to the H&C officer to find that the applicant bore the onus of pursuing her
pardon application.
[21]
The
respondent submitted that the officer considered the best interests of the
applicant’s children. The officer noted that since the applicant was their
primary caregiver, they could accompany her back to Trinidad if their
father could not care for them. The respondent submitted that the interests of
the child did not outweigh all other factors to be considered in an H&C
application. It was submitted that so long as the officer weighed their
interests and did not minimize their best interests in a manner inconsistent
with the H&C tradition and the Minister’s guidelines, it was not open to
the Court to re-examine the weight assigned to this factor by the officer (see Legault
v. Canada (Minister of
Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125).
[22]
The
respondent submitted that the officer provided cogent reasons for the negative
decision, including: (1) the best interests of the applicant’s children; (2)
her negative immigration history; (3) her criminal convictions and
misrepresentations; (4) her level of establishment in Canada; and (5) the
hardship she would face if she returned to Trinidad. The respondent submitted
that where the applicant had no legal right to remain in Canada, and had done
so absent circumstances beyond her control, she should not be rewarded for
having accumulated time in Canada (see Chau v. Canada (Minister of
Citizenship and Immigration) (2002), 26 Imm. L.R. (3d) 100, 2002 FCT 107
(F.C.T.D.)).
[23]
The
respondent submitted that so long as the officer considered the relevant
factors from an H&C perspective, the Court should not interfere with the
weight attributed by the officer to the different factors. It was submitted
that an officer had discretion to deny landing to a non-Canadian parent of
Canadian-born children, even where such refusal may result in the parent and
child returning to a country where there were less favourable economic
prospects (see Gallardo v. Canada (Minister of Citizenship and
Immigration), (2003) 230 F.T.R. 110, 2003 FCT 45 (F.C.T.D.)).
[24]
The
respondent submitted that the officer was not obligated to assess whether a
temporary resident permit was appropriate in the applicant’s case. It aws
submitted that there was no indication that the officer would have made a
positive decision, but for the applicant’s inadmissibility (see subsection
24(1) of IRPA).
Analysis and Decision
Standard of Review
[25]
An
immigration officer’s decision with respect to an H&C application is
subject to review on the standard of reasonableness (see Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174
D.L.R. (4th) 193). It is well established that breaches of procedural fairness
are subject to review on the standard of correctness.
[26]
I
will first deal with Issue 2.
Did the officer err in failing to
properly assess the children’s best interests?
Pursuant to subsection 25(1) of IRPA, the best interests of
children affected by an H&C decision must be taken into account by
immigration officers. The applicant submitted that the officer was not alive to
the best interests of her children. The respondent submitted that the officer
had considered the best interests of the applicant’s children, and found that
they could accompany their mother to Trinidad if their father could not take
care of them.
[27]
In
the case at hand, the officer did not explicitly refer to the “best interests”
of the applicant’s children. The officer noted that the applicant had five
children in Canada, and noted
their ages and immigration status. The officer’s notes also state:
It is noted that the applicant has a
husband and children in Canada and that there would be some
hardship in being temporarily separated from them while immigration processing
takes place. It is however reasonable to believe that the young children could
accompany their mother while she is awaiting her immigration process if the
applicant’s husband is unable to care for them because he is working.
[28] In her H&C
application, the applicant listed the following reasons for seeking an
exemption from the requirement to apply for permanent residence from outside Canada:
[…] I have a husband and 5 children who
live here. My husband is a permanent resident and my 4 children are born here,
only 1 was born in Trinidad, and she has received her
permanent residence since 17th May 02. I would not like to leave
them for any long time.
[29]
The
applicant listed the following hardships that she would suffer should her
application for permanent residence be made from outside Canada:
I would have to leave my children, where
my husband is the sole provider for our family. He would not be able to go to
work. Also, I would not like to leave my family for any period of time. They
are young 7 yr old twin girls 6 yr old boy. My older ones are a girl 18 yrs old
and 15 yr old boy. Money is also in need.
[30]
The
best interests of children affected by an H&C decision are an important
factor and must be weighed properly against other factors (see Hawthorne above)..
[31]
While
the officer noted that the children could accompany their mother to Trinidad,
no mention was made of the impact of such a move upon their relationship with
their father, their education or overall well-being. I would note that there
was evidence on file that they were a close-knit family, and that the
applicant’s children were attending school in Canada; however
these issues were not addressed by the officer. In addition, the officer failed
to consider how the best interests of the children would be affected if they
did not accompany the applicant to Trinidad.
[32]
In
my view, the officer was not alive to the best interests of the children,
beyond acknowledging the fact that they could accompany their mother to
Trinidad should their father be unable to become their primary caregiver. While
it was open to the officer to weigh the children’s best interests against other
relevant considerations in the context of the H&C application, I do not
believe that the officer sufficiently addressed the children’s interests in the
case at hand.
[33]
The
application for judicial review is therefore allowed and the matter is referred
to a different immigration officer for redetermination.
[34]
Because
of my finding on Issue 2, I need not deal with the remaining issues.
[35]
Neither
party wished to submit a proposed serious question of general importance for
certification for my consideration.
JUDGMENT
[36]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27.:
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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 shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
24.(1) A
foreign national who, in the opinion of an officer, is inadmissible or does
not meet the requirements of this Act becomes a temporary resident if an
officer is of the opinion that it is justified in the circumstances and
issues a temporary resident permit, which may be cancelled at any time.
25.(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act 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.
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11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
24.(1) Devient résident
temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire
ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que
les circonstances le justifient, un permis de séjour temporaire — titre
révocable en tout temps.
25.(1) Le ministre doit, sur
demande d’un étranger interdit de territoire ou qui ne se conforme pas à la
présente loi, et peut, de sa propre initiative, étudier le cas de cet
étranger et peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
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