Date: 20071001
Docket: IMM-3766-06
Citation: 2007 FC 984
Ottawa, Ontario, October 1,
2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
SANDRA
MARIA DE SOUSA
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 by an immigration
officer dated June 20, 2006, which refused the applicant’s application for
permanent residence on humanitarian and compassionate (H&C) grounds.
[2]
The applicant seeks an
order setting aside the negative H&C decision and remitting the matter for
redetermination before another immigration officer.
Background
[3]
The applicant, Sandra
Maria De Sousa, is a citizen of Brazil. The
circumstances leading to the applicant’s application for permanent residence on
H&C grounds were set out in her affidavit. The applicant and her daughter
entered Canada as visitors in December 1996, and went to
live with the applicant’s sister and brother-in-law in Toronto. The applicant’s visa expired in June 1997; however, she and her
daughter remained in Canada. The applicant sought employment as a
housekeeper, and participated in volunteer activities. She was allegedly abused
by her sister and brother-in-law, in that they confined her to their home and
forced her to care for an elderly relative.
[4]
The applicant claimed
that in 1999, her sister expressed an interest in adopting her daughter. The
applicant did not want to give up the legal guardianship of her daughter;
however, she eventually became convinced that it would be in the child’s best
interest to do so. The applicant was assured by her sister that her
relationship with the child would not be affected by the adoption. The adoption
was finalized in 2002.
[5]
The applicant and her
daughter moved out of her sister’s home in 2003 and the applicant remained the
child’s primary caregiver. She claimed that the parent-child bond between herself
and her daughter was strong as the child received no financial or emotional
support from her adoptive parents. The applicant applied for permanent
residence on H&C grounds in May 2004.
Her application was denied by decision dated June 20, 2006. This is the
judicial review of the negative H&C decision.
Officer’s Reasons
[6]
By letter dated June
20, 2006, the applicant was advised that her application for permanent
residence on H&C grounds had been refused. The H&C narrative form
constituted the reasons for the officer’s decision. The officer acknowledged
that the applicant had been in Canada for ten years and might find it difficult
to leave. However, she had violated IRPA by remaining in Canada without legal status.
[7]
The officer also
considered the applicant’s level of establishment in Canada. The officer noted the applicant worked and volunteered at a senior’s
home, but felt that leaving Canada after having developed this level of
establishment would not be an unusual hardship for the applicant. The applicant
had a sister in Canada; however, there was evidence on file that
she was abusive toward the applicant. The officer was not satisfied that hardship
would be suffered if the applicant was forced to leave her sister. The
applicant had family in Brazil, and appeared capable of becoming
self-sufficient.
[8]
The applicant had a
biological daughter in Canada; however, the child had been adopted by
the applicant’s sister and brother-in-law in October 2002. The child became a
Canadian citizen in September 2005. The officer noted that while the applicant
no longer had any rights to the child, she was her caregiver. However, there
was no evidence as to how the child felt about her relationship with the
applicant. The officer was satisfied that the child’s adoptive parents had her
best interests at heart.
[9]
The officer concluded
that the applicant had not demonstrated that unusual and undeserved or
disproportionate hardship would be experienced if she was asked to apply for
permanent residence from outside Canada.
Issues
[10]
The applicant submitted
the following issues for consideration:
1. Did the
officer breach the duty of fairness?
2. Did the
officer fail to consider the best interests of the child?
3. Did the
officer make an unreasonable decision?
4. Did the
officer ignore evidence and make perverse findings concerning the hardship that
would be faced by the applicant and her biological daughter?
[11]
I would rephrase the issues as follows:
1. Did the
officer fail to properly consider the best interests of the applicant’s
biological daughter?
2. Did the
officer err in failing to request additional information regarding the best
interests of the applicant’s biological daughter?
Applicant’s Submissions
[12]
The applicant submitted
that the officer made the following unsupported assumptions: (1) that her
daughter was not neglected by her adoptive parents; and (2) that her daughter
was in the care of her adoptive parents. It was submitted that the evidence
demonstrated that the applicant was the only person who cared for her daughter.
The applicant submitted that the officer ought to have asked the applicant
questions about her daughter’s caretaking and living arrangements (see Del
Cid v. Canada (Minister of Citizenship and Immigration), 2006 FC 326). It was submitted
that the officer breached the duty of fairness by failing to both ask such
questions, and give the applicant an opportunity to respond.
[13]
The applicant submitted
that there was no evidence that the adoptive parents had her daughter’s best
interests at heart. The applicant noted that the Immigration Policy Manual IP5
states that an H&C applicant’s submissions may be considered in light of
international human rights standards, such as the United Nations’ Convention
on the Rights of the Child, which confirms the paramount importance of the
best interests of the child in all actions concerning children.
[14]
Policy Manual IP 5 also
states that the relationship between an H&C applicant and a child directly
affected by a decision need not necessarily be that of parent and child. One
factor to be considered in assessing a child’s welfare is the level of
dependency between the child and the applicant. The applicant submitted that
the officer failed to analyze the level of dependency between herself and her
daughter, and the effects of the decision on the child. In Williams v. Canada (Minister of Citizenship and Immigration) (2006), 54 Imm. L.R. (3d) 283, 2006 FC
576, the Federal Court found that the failure to perform any analysis of a
dependant child’s best interests was a reviewable error.
[15]
The applicant submitted
that the officer erred in failing to provide her daughter with an opportunity
to participate in the H&C application (see Convention on the Rights of
the Child, Articles 9 and 12). It was noted that in Cheema v. Canada
(Minister of Citizenship and Immigration) (2002), 220 F.T.R. 280, 2002 FCT 638, the
Court held that an adoption was not determinative for immigration purposes of
the relationship between the adopted child and his or her adoptive parents,
although it was a factor to be considered. The applicant submitted that the
officer erred in ignoring evidence of the hardship her daughter would suffer if
she were left alone with her adoptive parents.
[16]
The applicant submitted
that the officer erred in finding that the applicant could apply for permanent
residence from outside Canada. It was submitted that the purpose of an
H&C application is to allow applicants to apply for landing from within Canada, especially if they did not meet the criteria under
IRPA. The applicant submitted that she would not qualify under any prescribed
category for permanent residence other than through an H&C application,
given her low level of education, lack of a sponsor, and the best interests of
her child.
[17]
The applicant submitted
that the officer made a perverse finding in concluding that he “was not
satisfied that it would be considered a hardship to leave her sister based on
the submissions on file.” The officer accepted that the adoptive parents abused
the applicant. It was submitted that since they were her daughter’s legal
guardians, they would have the power to decide whether the child could leave Canada with the applicant. It was submitted that the
adoptive parents would not let the child go with the applicant; therefore, they
would both suffer undue hardship through separation.
[18]
Finally, it was
submitted that there was no evidence that the applicant could become
self-sufficient in Brazil. The applicant noted the high rate of
poverty and unemployment in Brazil, and submitted that the officer’s
conclusion was perverse in this regard.
Respondent’s Submissions
[19]
The respondent
submitted that the standard of review applicable to an H&C decision is
reasonableness (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R.
(4th) 193). The respondent noted that the crux of the applicant’s argument was
that the officer failed to conduct a further inquiry as part of his evaluation
of the best interests of the child. It was submitted that the onus was upon the
applicant to make her case, and that the officer did not have a duty to seek
out information that was not provided by the applicant (see Owusu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 172, 2003 FCT 94 (F.C.A.)).
[20]
The respondent
submitted that the officer considered the limited information provided by the
applicant about her relationship with her biological daughter. Contrary to the
applicant’s submission, it was submitted that the officer did not find that the
adoptive parents were the child’s sole caregivers, but found that the applicant
was a caregiver of the child. The respondent noted that there was no evidence
that the adoption was not genuine, that the child was at risk, or that the
adoptive parents did not have her best interests at heart. It was submitted
that a child’s interests could only be assessed insofar as there was evidence
of those interests (see Anaschenko v. Canada (Minister of Citizenship and Immigration), 2004 FC 1328).
[21]
The respondent submitted
that it was not the role of the H&C officer to question an adoption validly
enacted in Ontario (see Cheema above). It was
submitted that there was no evidence that the applicant was forced to give up
her daughter for adoption. The respondent submitted that the argument that the
officer erred in failing to consider the best interests of the child was
without merit. The respondent submitted that it was reasonable for the officer
to conclude that based upon the evidence, the best interests of the child would
be served if she stayed in Canada with her adoptive parents.
[22]
The respondent
submitted that the officer provided a reasonable explanation for refusing to
grant her H&C application. The officer found that while the applicant had
some degree of establishment in Canada, the loss of
these opportunities did not constitute undue hardship. It was submitted that
the fact that the applicant would have to leave her biological daughter was not
necessarily undue hardship, as it was a consequence of the risk she took in
staying in Canada without status. It was submitted that the
hardship faced by the applicant was no more than what was inherent in being
asked to leave Canada after having lived in the country for a period of time
(see Irmie v.
Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906 (QL)).
Applicant’s Reply
[23]
The applicant submitted
that Anaschenko above, did not apply to her case, since it concerned a
parent who had never resided with his child and with whom he had regular
visitation. It was submitted that there was evidence in the case at hand that
the applicant had been taking care of her daughter since she was born, and that
she had always resided with her.
Analysis and Decision
Standard of Review
[24]
A decision with respect
to an application for permanent residence on H&C grounds is reviewable on
the standard of reasonableness (see Baker above).
[25]
Issue
1
Did the officer fail to properly consider
the best interests of the applicant’s biological daughter?
Pursuant to subsection 25(1) of
IRPA, the best interests of a child directly affected by an H&C decision
must be taken into account by the officer responsible for the decision. The
applicant submitted that the officer failed to consider the best interests of
her daughter. The respondent submitted that the officer considered the evidence
provided by the applicant regarding the child’s best interests, and reached a
reasonable conclusion in finding that it was in the child’s best interests to
remain in Canada with her adoptive parents.
The applicant’s H&C application indicated that she had a daughter in Canada, and that they would
both suffer if the applicant’s application was refused:
So
not just I, but my daughter will suffer if I have to leave. I have been
taking care of her since she was born. I could not leave otherwise we will
suffer and it is not possible be apart from her…
I
have attached letters from the families that I have been working for as
housekeeper, and since I left my sister’s house I have support myself and my
daughter without any Financial Assistance from Government and in Brazil if
I have to leave, I won’t be able to support myself and my daughter.
(Emphasis
Added).
[26]
The
applicant also submitted a letter from a neighbour indicating that she had met
the applicant and her daughter in 2002 and noted that the applicant walked her
daughter to school and all other activities. The letter also indicated that
the applicant was forced to work for her sister and brother-in-law without pay.
[27]
The
officer’s consideration of the best interests of the child constituted the
following:
Ms.
De Sousa states that she has a daughter in Canada. It
is noted that Ms. De Sousa gave up her rights and allowed her daughter to be
sponsored by her Canadian citizen sister and brother-in-law. This adoption took
place under Canadian Federal Court Law in October 2002. The child was granted
permanent residence status on 12 Dec 2002. Their daughter, Amy Sita, became a
Canadian citizen 17 September 2005. Therefore, Ms. De Sousa has no rights to
the child. However, I note that there are still family ties. That she is a
caregiver for Amy. Her biological daughter is still in her life because of the
situation. I can understand that Ms. De Sousa is part of Amy’s life but she
is not the legal parent. There is no documents or information to state how
the child feels about the relationship between her and the
applicant.
I must consider that Mr. and Mrs. Sita are the legal guardians and that they
have the best interests of the child at heart.
(Emphasis
Added).
[28]
The
officer acknowledged that the applicant took care of her daughter, but noted
that there was a lack of evidence regarding the daughter’s relationship to the
applicant. The officer concluded that as the child’s legal guardians, her adoptive
parents had her best interests at heart. There was evidence on file that the
applicant was still in a parent-child type of relationship with her daughter;
that she had continually resided with her daughter, both at her sister’s home
and after she moved out of that home in 2003; and that she had supported her
daughter financially.
[29]
The
officer did not assess what would happen to the child if she were separated
from the applicant and left in the care of her adoptive parents. There was no
evidence on file that the daughter’s adoptive parents had cared for or
supported her, beyond being her legal guardians. In my view, the officer failed
to properly assess the best interests of the applicant’s biological daughter,
regardless of the fact that legal guardianship had been awarded to her adoptive
parents.
[30]
I am
of the opinion that the officer’s decision is unreasonable as she failed to
properly assess the best interests of the applicant’s biological child.
[31]
Because
of my finding on the first issue, I need not deal with the remaining issue.
[32]
The
application for judicial review is therefore allowed and the matter is referred
to a different officer for redetermination.
[33]
Neither
party wished to submit a serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT IS ORDERED that the application for judicial review is
allowed and the mater is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The relevant
statutory provisions are set out in this section.
The United
Nations’ Convention on the Rights of the Child:
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Article
9
1. States
Parties shall ensure that a child shall not be separated from his or her
parents against their will, except when competent authorities subject to
judicial review determine, in accordance with applicable law and procedures,
that such separation is necessary for the best interests of the child. Such
determination may be necessary in a particular case such as one involving
abuse or neglect of the child by the parents, or one where the parents are
living separately and a decision must be made as to the child's place of
residence.
2. In any
proceedings pursuant to paragraph 1 of the present article, all interested
parties shall be given an opportunity to participate in the proceedings and
make their views known.
3. States
Parties shall respect the right of the child who is separated from one or
both parents to maintain personal relations and direct contact with both
parents on a regular basis, except if it is contrary to the child's best
interests.
4. Where such
separation results from any action initiated by a State Party, such as the
detention, imprisonment, exile, deportation or death (including death arising
from any cause while the person is in the custody of the State) of one or
both parents or of the child, that State Party shall, upon request, provide
the parents, the child or, if appropriate, another member of the family with
the essential information concerning the whereabouts of the absent member(s)
of the family unless the provision of the information would be detrimental to
the well-being of the child. States Parties shall further ensure that the
submission of such a request shall of itself entail no adverse consequences for
the person(s) concerned.
Article 12
1. States
Parties shall assure to the child who is capable of forming his or her own
views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the
age and maturity of the child.
2. For this
purpose, the child shall in particular be provided the opportunity to be
heard in any judicial and administrative proceedings affecting the child,
either directly, or through a representative or an appropriate body, in a
manner consistent with the procedural rules of national law.
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Article
9
1.
Les Etats parties veillent à ce que l'enfant ne soit pas séparé de ses
parents contre leur gré, à moins que les autorités compétentes ne décident,
sous réserve de révision judiciaire et conformément aux lois et procédures
applicables, que cette séparation est nécessaire dans l'intérêt supérieur de
l'enfant. Une décision en ce sens peut être nécessaire dans certains cas
particuliers, par exemple lorsque les parents maltraitent ou négligent
l'enfant, ou lorsqu'ils vivent séparément et qu'une décision doit être prise
au sujet du lieu de résidence de l'enfant.
2.
Dans tous les cas prévus au paragraphe 1 du présent article, toutes les
parties intéressées doivent avoir la possibilité de participer aux
délibérations et de faire connaître leurs vues.
3.
Les Etats parties respectent le droit de l'enfant séparé de ses deux parents
ou de l'un d'eux d'entretenir régulièrement des relations personnelles et des
contacts directs avec ses deux parents, sauf si cela est contraire à
l'intérêt supérieur de l'enfant.
4.
Lorsque la séparation résulte de mesures prises par un Etat partie, telles
que la détention, l'emprisonnement, l'exil, l'expulsion ou la mort (y compris
la mort, quelle qu'en soit la cause, survenue en cours de détention) des deux
parents ou de l'un d'eux, ou de l'enfant, l'Etat partie donne sur demande aux
parents, à l'enfant ou, s'il y a lieu, à un autre membre de la famille les
renseignements essentiels sur le lieu où se trouvent le membre ou les membres
de la famille, à moins que la divulgation de ces renseignements ne soit
préjudiciable au bien-être de l'enfant. Les Etats parties veillent en outre à
ce que la présentation d'une telle demande n'entraîne pas en elle-même de
conséquences fâcheuses pour la personne ou les personnes intéressées.
Article
12
1.
Les Etats parties garantissent à l'enfant qui est capable de discernement le
droit d'exprimer librement son opinion sur toute question l'intéressant, les
opinions de l'enfant étant dûment prises en considération eu égard à son âge
et à son degré de maturité.
2.
A cette fin, on donnera notamment à l'enfant la possibilité d'être entendu
dans toute procédure judiciaire ou administrative l'intéressant, soit
directement, soit par l'intermédiaire d'un représentant ou d'une organisation
approprié, de façon compatible avec les règles de procédure de la législation
nationale.
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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.
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.
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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