Date: 20111214
Docket: IMM-1062-11
Citation: 2011 FC 1417
Ottawa, Ontario, this 14th
day of December 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
Amol
Devon TESHEIRA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
February 18, 2011, Amol Devon Tesheira (the “applicant”) filed the present application for judicial
review of the decision of R. Choo Quan, a Designated Immigration Officer at the
High Commission of Canada in Port-of-Spain, Trinidad and Tobago (the
“officer”), pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”). The officer rejected
the applicant’s visa application for permanent residence as a member of the
family class. Moreover, it should be noted at the outset that his brother Romario
Leonardo Tesheira’s application was also dismissed for the same reasons.
[2]
The
applicant was born on June 13, 1996, in St. Vincent and the Grenadines, where he is a citizen
and currently resides, allegedly with his aunt and brother Romario. His father resides
in St. Vincent as well, but claims to have never lived with his sons, the
applicant stating that they do not have a close relationship. The applicant’s mother
left St. Vincent in 1999 and became a permanent resident of Canada in 2002. The applicant
and his brother stayed in St. Vincent, supposedly with their grandmother,
because she could not bare the thought of being separated from all of her
grandchildren, the applicant’s three other siblings having gone to Canada with
their mother. However, his grandmother passed away in 2007, which he claims
left him and his brother under the care of his aunt who now suffers from
cervical cancer.
[3]
When
the applicant’s mother applied for permanent residence in Canada, in 2002,
sponsored by her husband at the time, from whom she divorced in 2006, she
failed to mention the applicant and her other son Romario, who remained in
St. Vincent, on her application. Having completed the application form on
her own and having a very limited education, she did not know that she needed
to mention all of her children as dependents: she only mentioned those with
her. As a result, she was unaware that she would lose the right to sponsor them
in the future.
[4]
In
his decision dated November 17, 2010, the officer assessed the applicant’s visa
application for permanent residence as a member of the family class
(subsections 12(1) of the Act and 117(1) of the Immigration and Refugee
Protection Regulations, SOR/2002-227, as amended [the “Regulations”]) and
based on humanitarian and compassionate grounds under section 25 of the Act.
[5]
The
officer rejected the applicant’s application as a member of the family class,
specifically as a dependent child of his mother, the sponsor, on the basis of
paragraph 117(9)(d) of the Regulations: “when [his mother] submitted her
application for landing in Canada, she did not declare [him] as her dependant
and [he] therefore, did not meet immigration requirements as her dependant”.
[6]
The
officer went on to consider the humanitarian and compassionate grounds raised
in the applicant’s application, specifically, his best interests as a child,
the reunification of his family, his close relationship with his mother, the
illness of his aunt and the lack of family to care for him in St. Vincent.
Nonetheless, the officer concluded that the applicant had not demonstrated
undue hardship would be incurred if he remained in St. Vincent and that it
was in the applicant and his brother Romario’s best interests to stay in St. Vincent
together with their father and other relatives: they never resided with their
mother in Canada and have been separated from her for the past eleven years,
having also been separated from their other siblings for five years.
[7]
The
relevant portions of the Act are as follows:
|
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.
Family
reunification
12. (1) A
foreign national may be selected as a member of the family class on the basis
of their relationship as the spouse, common-law partner, child, parent or
other prescribed family member of a Canadian citizen or permanent resident.
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.
|
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.
Regroupement
familial
12. (1) La sélection des
étrangers de la catégorie « regroupement familial » se fait en
fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
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.
|
[8]
The
relevant portion of the Regulations is as follows:
|
Member
117. (1) A
foreign national is a member of the family class if, with respect to a
sponsor, the foreign national is
(b) a
dependent child of the sponsor;
Excluded relationships
(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.
|
Regroupement familial
117. (1) Appartiennent
à la catégorie du regroupement familial du fait de la relation qu’ils ont
avec le répondant les étrangers suivants :
b) ses enfants à charge;
Restrictions
(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.
|
[9]
At
the hearing before me, counsel for the applicant essentially argued that the
appreciation of the facts made by the officer was sufficiently wrong to justify
the intervention of the Court. I do not agree, for the following reasons.
[10]
The
applicable standard of review to an officer’s factual determinations is
reasonableness (Canada (Citizenship and
Immigration) v. Khosa,
[2009] 1 S.C.R. 339 [Khosa]; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]).
This same standard of reasonableness applies to the officer’s assessment of the
best interests of a child, being a question of mixed fact and law (Legault
v. Canada (Minister of
Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358 at para 9 [Legault]).
Considerable deference is owed to such determinations made by the officer,
since visa applications are discretionary decisions (section 11 of the Act; Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]).
Therefore, the weighing of the relevant factors, whether it be in the
assessment of the visa application by the officer, or whether it be in
evaluating the best interests of a child, is not a function of this court: “a
reviewing court should not disturb a decision made based on a “broad
discretion” unless the [officer] has made some error in principle in exercising
[his] discretion or has exercised [his] discretion in a capricious or vexatious
manner” (see, for example, Legault at para 9; Suresh v. Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 9; Woldeselassie
v. The Minister of Citizenship and Immigration, 2006 FC 1540 at para 14).
Hence, it was the role of the officer to determine the appropriate weight to be
given to the humanitarian and compassionate grounds raised by the applicant and
the factors that go into this analysis (Suresh; Legault at para
9).
[11]
In
the case at bar, the officer’s analysis with respect to the humanitarian and
compassionate grounds, including the best interests of the child, appears in
the Computer Assisted Immigration Processing System (“CAIPS”) notes and reads
as follows:
.
. . I have considered all factors, including the positive H&C factors and
all arguments raised with respect to the best interests of a child, have given
them due weight and have considered the positive factors against the facts that
weight against granting an exemption under section 25 and have found the
following: - Mother (sponsor) left St. Vincent when applicant was 3yrs old.
Became a PR in 2002. The applicant was now 6yrs old. – Sponsor has never
returned to St. Vincent to visit or care for applicant since leaving for Canada. – Applicant was left in the care of his gr-mother as
stated by sponsor, no documentary evidence of same has been submitted. Gr-mother
is now deceased and sponsor states applicant now lives with his aunt, Janet
Adams who has since been diagnosed with cancer and can no longer care for the
applicant. The sponsor has submitted no satisfactory evidence to confirm that
the applicant in fact resides with Janet Adams. – Sponsor states that
children’s father cannot care for them as he is unemployed, however, the
applicant’s address listed on both the previous application of 2008 and the
current application, is the same as the address listed for the applicant’s
father. I am not satisfied that the applicant does not continue to reside with
his father in St. Vincent. – The sponsor states that she has continuously sent
financial support for the upkeep of her children since she left for Canada. It is noted that seven Western Union
money transfers were submitted in support of this claim for 2009 only. No other
evidence of financial support has been submitted. The recipient of these funds
is listed as Conrod Tesheira, the applicant’s father, which further compounds
the suggestion that the applicant remains in his care. – No other documentary
evidence has been submitted in support of a continued relationship between the
applicant and the sponsor. In the last 10yrs, the applicant has had two trips
to Canada in Jul2006 & 2008 for minimal
periods. The sponsor has not returned to St. Vincent. I find it unreasonable to
believe that any strong bond or parent child relationship could have been
established on these two visits. CONCLUSION: From the documents presented by
the sponsor’s lawyer in support of consideration under Sec25, I am satisfied
that I have sufficient documentation to make an assessment and that I find no
H&C factors exists. The applicant is now 14yrs old and continues to reside
in St. Vincent with his father, one sibling and other
family members. The applicant is currently attending High School and has not
demonstrated any undue hardship will be incurred by remaining in St. Vincent.
The applicant has never resided in Canada with his mother and has been separated
from his mother for the last 11yrs and his other siblings for the last 5yrs. I
am satisfied that remaining in St.
Vincent with his father, sibling
and other family members will be in the best interest of the child. Refused.
[12]
Upon
hearing counsel for the parties and upon reviewing the relevant evidence, I
conclude that the applicant has failed to satisfy me that the officer based his
decision on an erroneous finding of fact that he made in a perverse or
capricious manner or without regard for the material before him (paragraph
18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In my
view, the officer reasonably weighed the evidence, relying on the humanitarian
and compassionate factors specified in the Guidelines and mentioned in Hawthorne
v. Canada (Minister of
Citizenship and Immigration) (C.A.), [2003] 2 F.C. 555 [Hawthorne]. Rather,
the applicant merely did not provide sufficient evidence in support of his
application.
[13]
As
mentioned in his CAIPS notes, the officer concluded that the applicant had
failed to provide evidence in support of many of his allegations, specifically
his current residence and his current relationship with his mother. Hence, it
was reasonable for the officer to conclude that the applicant resided with his father:
the officer chose, as he is empowered to, to give more weight to the same
addresses of the applicant and his father and that the money transfers were
addressed to Conrod Tesheira, despite the applicant supposedly having a
very limited relationship with him. Therefore, the officer’s conclusion that it
was in the applicant and his brother’s best interests to remain in
St. Vincent with their father was reasonable, being based on the officer’s
assessment of the evidence before him.
[14]
Moreover,
it is trite law that the officer had an obligation to consider the best
interests of the applicant and to be sensitive, alert and alive to the latter’s
best interests (see Hawthorne and Legault). In my view, the
officer, in the present case, met this obligation and, in addition, his best
interest analysis was proportionate to the applicant’s submissions and the
evidence he provided (Pillai v. The Minister of Citizenship and Immigration,
2008 FC 1312). In the CAIPS notes, the officer specified that he considered all
factors, in addition to the best interests of a child, in refusing to grant the
applicant humanitarian and compassionate relief, and then went on to identify
which facts he relied on in making this negative decision, highlighting a lack
of evidence to support the applicant’s application. Therefore, the officer’s
assessment of the applicant’s best interests was reasonable and it is not for
this Court to reweigh the best interest factors.
[15]
Consequently,
I find that the officer’s conclusions fall within the “range of possible,
acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir
at para 47), and are, therefore, reasonable.
[16]
For
the above mentioned reasons, the application for judicial review is dismissed.
[17]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review is dismissed.
“Yvon
Pinard”
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