Date: 20071022
Docket: IMM-5738-06
Citation: 2007 FC 1088
Ottawa, Ontario, October 22, 2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
MI SOOK KIM
BORA OH
YOON HWAN OH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of an immigration officer’s decision
dated October 5, 2006, which denied the applicants’ application on humanitarian
and compassionate grounds to process their permanent residence application from
within Canada.
FACTS
[2]
The
principal applicant, Mi Sook Kim, is a 48 year old citizen of South Korea. Her two
children, Bora Oh, age 24, and Yoon Hwan (“Roy”) Oh, age
14, are also citizens of South Korea. The principal
applicant is divorced from the children’s father.
[3]
The
applicants arrived in Canada in November 1996 on visitor visas to visit
the principal applicant’s parents, who are both Canadian citizens. In April
1997, the applicants obtained work and study permits from an immigration
consultant. The principal applicant began working at a coffee shop owned by her
brother, while the children began attending school. Immigration officials later
determined that the work and study permits were fraudulently obtained. The
applicants submit that they were not aware that the documents were fraudulent
and that they had no reason to distrust the immigration consultant.
[4]
In
April 1997, the applicants filed an application for permanent residence at a U.S. visa post. That
application was refused on December 8, 1998.
[5]
In
February 1999, the principal applicant opened a business in Toronto, which
provided massage and aromatherapy services. She operated this business until the
summer of 2000 when she was charged with operating a common bawdy house in contravention
of the Criminal Code, R.S.C. 1985, c. C-46. The principal applicant pled
guilty and received a conditional discharge with six months probation and was
required to make a $250 charitable donation.
[6]
On
January 19, 2000, prior to the principal applicant’s arrest, the applicants
filed an application for landing in Canada on humanitarian and
compassionate grounds. The application was refused on August 21, 2001. On
October 2, 2001, the applicants filed an application for leave and judicial
review of that decision. Leave was granted on February 20, 2002. The judicial
review was dismissed: see Oh v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 161, [2003] F.C.J. No. 245 (QL).
The applicants’ current
status in Canada
[7]
On
March 5, 2001, a deportation order was issued against the applicants. An appeal
of that order to the Immigration Appeal Division of the Immigration and Refugee
Board was denied. On May 22, 2006, after her application for a Pre-Removal Risk
Assessment (PRRA) was refused, the applicant Bora Oh was removed to South Korea. She
returned to Canada four months
later on September 8, 2006. The principal applicant and her son filed PRRA
applications on February 23, 2006, but these applications were refused. The
Canadian Border Services Agency has deferred the removal of the principal
applicant and her son until a final decision is reached in this application.
Decision under review
[8]
In
December 2004, the applicants submitted another application on humanitarian and
compassionate grounds (the H&C application). That application, which seeks
an exemption from the requirement that permanent resident visa applications
must be filed from outside Canada, was received by Citizenship and
Immigration Canada on April 13, 2005.
[9]
On
October 5, 2006, the applicants’ H&C application was denied. The
immigration officer decided that the applicants would not be subject to
“unusual, undeserved or disproportionate” hardship by being required to apply
for permanent residence at a visa post outside Canada.
RELEVANT LEGISLATION
[10]
The
legislation and provisions relevant to this application are subsections 11(1)
and 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c.
27, which state:
|
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 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.
[…]
Humanitarian and
compassionate considerations
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.
|
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, 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.
[…]
Séjour pour motif
d’ordre humanitaire
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.
|
ISSUE
[11]
The
issue is whether the immigration officer erred in refusing the applicants’
application for an exemption on humanitarian and compassionate grounds.
STANDARD OF REVIEW
[12]
In Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, the Supreme Court of Canada established that
reasonableness is the appropriate standard of review to be used for H&C
application decisions. As the Court stated at paragraph 62:
¶ 62 … I conclude that
considerable deference should be accorded to immigration officers exercising
the powers conferred by the legislation, given the fact-specific nature of the
inquiry, its role within the statutory scheme as an exception, the fact that
the decision-maker is the Minister, and the considerable discretion evidenced
by the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court – Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as “patent unreasonableness”. I conclude, weighing all
these factors, that the appropriate standard of review is reasonableness simpliciter.
[Emphasis added.]
An
officer’s decision is unreasonable only if there is no line of analysis within
the given reasons that could reasonably lead the officer from the evidence
before him or her to the conclusion at which they arrived. As such, a decision is
reasoanble if it is supported by a tenable explanation, even if that explanation
is not one the reviewing court finds compelling: Law Society of New
Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247.
ANALYSIS
Issue: Did the
immigration officer err in refusing the applicants’ application for an
exemption on humanitarian and compassionate grounds?
[13]
The
applicants argue that the immigration officer erred by not properly accounting
for the best interests of the principal applicant’s son when considering their
H&C application. The applicants rely on the Supreme Court of Canada
decision in Baker, above, which requires that immigration officers be
“alert, alive and sensitive” to the children’s best interest when considering
an H&C application. As the Court stated at paragraph 75:
¶ 75 … The principles
discussed above indicate that, for the exercise of the discretion to fall
within the standard of reasonableness, the decision-maker should consider
children’s best interests as an important factor, give them substantial weight,
and be alert, alive and sensitive to them. That is not to say that children’s
best interests must always outweigh other considerations, or that there will
not be other reasons for denying an H & C claim even when children’s
interests are given this consideration. However, where the interests of
children are minimized, in a manner inconsistent with Canada’s humanitarian and
compassionate tradition and the Minister’s guidelines, the decision will be
unreasonable.
[Emphasis added.]
[14]
The
applicants argue that the immigration officer was not alert, alive and sensitive
to the many difficulties that the principal applicant’s son would face if sent
back to South Korea after spending eleven years in Canada. In support
of this argument, the applicants refer to a psychological report by Dr. Peter
Mallouh, who conducted clinical interviews and observations on the applicant child
on August 29, 2005. Dr. Mallouh states that returning the child to South Korea would
represent “a very stressful event” that could lead to “psychological conditions
such as adjustment or anxiety disorder or even depression.” Further, Dr.
Mallouh suggests that such conditions could have “far-reaching consequences”
affecting his “cognitive development and future academic achievement.”
[15]
The
applicants also argue that the immigration officer was not alert, alive and
sensitive to the language difficulties that the applicant child would face if returned
to South
Korea.
The applicant child has been in Canada since the age of four.
In two separate letters to immigration officials, the child states that he cannot
speak Korean well and that he has no ability to read or write Korean. The
applicants argue that the immigration officer’s failure to consider adequately
these language barriers constitutes a “serious error” justifying the
intervention of this Court.
[16]
The
respondent, however, submits that the immigration officer did consider all of
the relevant evidence respecting the best interests of the child. The
respondent states that it was open to the immigration officer to assess all the
relevant factors and determine the weight to be accorded those factors, and
that it is not for this Court to “re-examine the weight assigned to this factor
by the Immigration Officer.”
[17]
It
is clear from the record that the immigration officer considered the statements
contained in Dr. Mallouh’s psychological report concerning the stress the
applicant child may face in returning to South Korea. The officer
states what while the “[i]nitial adjustment to a new environment may be
stressful,” the child’s age and the fact that he would be returning as a “family
unit” would offset against any such detriment. I believe that such a conclusion
is reasonable on the evidence.
[18]
However,
the immigration officer failed to consider the language difficulties that the child
would face upon return to South Korea. The applicant child
first arrived in Canada at the age of four and, since that time, has
integrated into Canadian society and learned English as his primary language.
The applicant child stated that he “cannot speak Korean well,” and that he cannot
“read or write Korean.” Nowhere in the decision does the immigration officer
address the impact that these language and communication barriers may have on
the applicant child’s immediate and long-term educational development.
[19]
Further,
when the immigration officer states that the applicant child “is still young
and is at an age where [children] generally have a higher level of
adaptability,” I take this to refer to the applicant child’s ability to adapt
to the stress caused by leaving the friends and extended family that he has in
Canada, and not to refer to his ability to re-integrate into the South Korean
education system. In relation to education, the immigration officer states
merely that a return to South Korea will not prohibit the
applicant child from being able to continue his education in Canada upon
acquiring a student visa. In my opinion, this consideration fails to address
the significant and profound challenges that the applicant child will face as
an adolescent in a high school education system where he is unable to
communicate with the non-English-speaking population or write the language.
[20]
Mr.
Justice McKeown made a similar finding in Gurunathan v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1155, 212 F.T.R. 309, where he stated
at paragraph 7 that the failure of an immigration officer to account for a
child’s inability to speak the home state’s language is an error:
¶ 7 … In my view, I do not have to choose
between these approaches in this case, since under either approach the
failure of the Officer to take into account the children’s inability to speak
the Tamil language is an error. It is certainly something that should have been
taken into account in considering the best interests of the children. The
Immigration Officer looked at the risks to the children and, since their risk
was the same as the parents’ risk, concluded that there would be no risk to the
children. However, an analysis of the best interests of the children requires
an officer to look at more than just the risk to the children….
[Emphasis added.]
[21]
The
respondent argues that even though an immigration officer has an obligation to
consider the best interests of a directly-affected child when making an H&C
decision, that obligation does not require that the interest of the child
outweigh all other factors considered on the application. In support of this
contention, the respondent points to Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555, where
Mr. Justice Décary states at paragraph 6:
¶
6 To simply
require that the officer determine whether the child’s best interests favour
non-removal is somewhat artificial – such a finding will be a given in all but
a very few, unusual cases. For all practical purposes, the officer’s task is
to determine, in the circumstances of each case, the likely degree of hardship
to the child caused by the removal of the parent and to weigh this degree of
hardship together with other factors, including public policy considerations,
that militate in favour of or against the removal of the parent.
[Emphasis added.]
[22]
While
I agree that the best interests of the child are not determinative as to
whether the H&C application should be granted, in this case the immigration
officer erred in not adequately considering the impact that removal to South
Korea would have on the applicant child’s immediate and long-term educational
development. It would be exceedingly difficult for the applicant child to continue
his educational development in a society where he is unable to effectively
communicate. As such, the decision of the immigration officer is unreasonable
and must be set aside.
[23]
The
applicants also argue that the immigration officer failed to provide adequate
reasons based on the evidence with respect to the decisions regarding the
principal applicant and her daughter. They state that with respect to the
applicant daughter, the immigration officer merely “summarized what had
happened to her” and then concluded that the daughter’s return to Korea would not
represent undeserved hardship. The applicants submit that the immigration
officer erred by not providing any analysis as to how the conclusion was
reached.
[24]
Despite
having already found that the immigration officer’s decision must be set aside,
I agree with the applicants’ argument on this ground as well. In Bajraktarevic
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 123, 52 Imm. L.R. (3d) 5, Mr.
Justice Beaudry found that the simple restatement of considered factors
followed by a conclusion does not constitute a proper assessment of an
application. As he succinctly states at paragraphs 18-20:
¶ 18 Despite
the respondent’s counsel’s capable submissions to the contrary, I find that the
Officer’s reasons were clearly insufficient, and that a simple restatement
of the considered factors followed by a conclusion cannot be deemed to
constitute proper assessment and analysis of an application.
¶ 19 In
Adu v. Canada (Minister
of Citizenship and Immigration), 2005 FC
565 (F.C.), Justice MacTavish wrote at
paragraph 14:
In
my view, these ‘reasons’ are not really reasons at all, essentially consisting
of a review of the facts and the statement of a conclusion, without any
analysis to back it up. That is, the officer simply reviewed the positive
factors militating in favour of granting the application, concluding that, in
her view, these factors were not sufficient to justify the granting of an
exemption, without any explanation as to why that is. This is not sufficient,
as it leaves the applicants in the unenviable position of not knowing why their
application was rejected.
¶ 20 Justice
Russell came to a similar conclusion in Jasim v. Canada (Minister of
Citizenship and Immigration), 2003 FC
1017 (F.C.), where he found that a summary
restatement of the factors considered by an Officer followed by a conclusion
did not constitute sufficient analysis, and that the Officer had committed a
reviewable error in failing to provide reasons for her refusal of the applicant’s
application.
[Emphasis added.]
[25]
In
my opinion, the immigration officer in this case did not review the positive
factors in favour of granting the application. In this case, the officer merely
stated that the applicant daughter completed her high school studies and
commenced university in Canada, and then briefly reviewed her May 2006
removal from Canada. While the
officer admits that the applicant daughter “may have established [a] certain
degree of ties to this country,” no mention is made of any hardship that would
be suffered if she were removed to South Korea and forced to discontinue her
university studies in Canada. Such a conclusion is unreasonable and, as
a result, the officer’s decision must be set aside.
[26]
With
respect to the principal applicant, the applicants argue that the immigration officer
erred in concluding that she was of an employable age and that her
entrepreneurial ability would be an asset for resettlement in South Korea. I am not
persuaded that the officer’s decision was unreasonable in this regard; however,
based on the fact that the officer erred in failing to consider the best
interests of the applicant child, and erred in failing to provide a proper
assessment of the applicant daughter’s application, I conclude that the officer
was unreasonable in assessing the applicants’ H&C application,
necessitating that the decision be set aside.
CERTIFIED QUESTION
[27]
Neither
party proposed a question for certification on appeal. The Court agrees that
this case does not raise such a question so that no question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
This
application for judicial review is allowed. The H&C decision is set aside,
and the matter is referred to another H&C officer for re-determination. No
question is certified.
“Michael
A. Kelen”
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