Date: 20081203
Docket: IMM-1024-08
Citation: 2008 FC 1345
Toronto, Ontario, December
3, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
LUCENE
CHARLES
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review made pursuant to section 72
of the Immigration and Refugee Protection Act (IRPA), S.C. 2001,
c. 27 of a decision of an Immigration Officer, dated February14, 2008, refusing
the applicant’s application for permanent residence on Humanitarian and
Compassionate (H&C) grounds.
[2]
In
view of the unexplained absence of the respondent’s counsel at the hearing and
of the presence of the applicant with the children affected by the impugned
decision, the applicant’s counsel insisted to proceed with the hearing. The
hearing therefore proceeded in the absence of the respondent’s representative
who had however filed extensive written arguments and authorities in support of
the respondent’s position.
II. Facts
[3]
The
applicant, Lucene Charles, is a citizen of Saint-Vincent. While visiting Canada in 1995, she
met Joseph Michael Polk, whom she married in 1997. They both lived in Canada between the
years 1997-1999. In 1999 the family left for Gambia, Africa
where the applicant’s mother was on a contract with the United Nations.
[4]
Three
children were born to the marriage: Ajahla Abib on June 7, 1997, and Aksum Abib
on June 24, 1998, both in Brampton, Ontario, and Amlicar
Abib on July 17, 2000, in Gambia. Unfortunately, this marriage ended with a
divorce in 2006. Subsequently, the applicant had a fourth child born in Gambia from another
relationship.
[5]
After
her mother’s contract ended in Gambia, the applicant decided to return to
Canada where she arrived with her children on September 1, 2007. As a Saint-Vincent
national, the applicant did not require a visa before entering and was entitled
to stay in Canada for a six
month period.
[6]
On
November 1, 2007, the applicant applied for: (1) a work permit on H&C
grounds, (2) an extension on her Temporary Resident Permit, which was to expire
by March 31, 2008 and (3) an exemption from visa requirement on H&C grounds
so that she could apply for permanent residence in Canada. All three
requests having been refused, the applicant sought and was refused leave to
review the refusal of her request for a work permit and the refusal of an extension
of her Temporary Resident Permit.
[7]
The
present recourse concerns only the third request. The applicant submits now
that the decision to reject her request exemption from visa requirement on
H&C grounds is patently unreasonable since, in
her view, the Officer did not consider the
significant humanitarian and compassionate factors present in this case.
[8]
Other
than her stating that the father of her youngest child is paying for his
support, the applicant has not provided any proof of support in Canada. True, the applicant
obtained in Gambia an order for
alimentary support from the father of the three Canadian children, but her ex
spouse has failed in his obligations so far. The applicant has been living with
an aunt since her arrival in Canada, while her parents and relatives reside in
Saint-Vincent and the applicant has offered no proof that she would not be able
to obtain proper support in her home country for herself and her children. The
applicant has offered no proof either that the children’s interest would be for
them to remain in Canada and that they would not receive in Saint-Vincent the
proper care, attention, love and education they need.
[9]
It
is also noted that the applicant remains unemployed and a stay-at-home-mom since
her arrival in Canada, and she has offered no proof that she could
not obtain support from her parents if she were to return to her country of origin. The evidence seems
to indicate that the applicant received support from her mother during her stay
in Gambia, and there
is no reason to believe that similar support would not be available in Saint-Vincent.
Aside from being the mother of three Canadian born children, the applicants did not offer any proof of her
establishment in Canada, nor of her children’s establishment here as
well. The applicant holds a valid passport issued by Saint-Vincent that she has
used to travel freely so far.
[10]
The
applicant has to show how she would face unusual, undeserved or
disproportionate hardship if she were to return to her country of origin and
apply for a permanent resident visa from outside
Canada.
III. Issues
[11]
The
central issues in this case are as follows:
a.
Did
the Officer err in finding that the applicant failed to demonstrate any undue
hardship in being required to apply for permanent residence from abroad?
b.
Did
the Officer err when assessing the best interest of the children?
c.
Did
the Officer err when assessing the issue of establishment from the wrong
perspective?
IV. The Impugned Decision
[12]
After
considering the information provided by the applicant and assessing her degree
of establishment in Canada, the Officer determined that she could not be
granted the exceptional relief sought since she had not demonstrated that
separation from her relatives in Canada would qualify as undue
hardship if required to apply from abroad as in the normal course.
[13]
The
Officer considered also all the information adduced in respect of the children
and noted that they were young enough to adapt if the applicant was required to
leave Canada so that they
would not experience any undue hardship.
V. Analysis
A. Standard of Review
[14]
The
Officer’s finding is to be reviewed on a
reasonableness standard. Consequently the decision must be justifiable,
transparent and intelligible within the decision-making process (Dunsmuir v.
New
Brunswick,
2008 SCC 9).
B. Finding of Undue Hardship
& Best Interest of the Child
[15]
The
applicant asserts that the Officer’s determination is unreasonable. She states
that the finding has no evidentiary basis and is inconsistent with the
overwhelming weight of the evidence. She alleges that the Officer disregarded
the existence of undue hardship which was made apparent in her submissions.
[16]
Further,
she insists that the best interest of her children was not assessed.
[17]
Applications
for permanent residence must, as a general rule, be made from outside Canada. One of the
exceptions to this is when admission is facilitated owing to the existence of
compassionate or humanitarian considerations. While a person may obtain special
permission on H&C grounds to apply for permanent residence from within Canada, that person
must demonstrate that such relief is warranted due to the compelling circumstances
of the case.
[18]
Furthermore,
while the existence of undue hardship and best interests of children are basis
on which H&C relief can be granted, the existence of both must be
demonstrated and they are not to be presumed.
[19]
While
the applicant alleged she would suffer undue hardship if she were required to
apply for landing from abroad as the law requires and that the best interests
of her children warrant H&C relief, she adduced no evidence in support of
her allegations that the children’s best interests would be furthered were she
allowed to apply for permanent residence from within Canada, nor did she
canvass how their interests would be harmed if she were not allowed to do so,
except for mentioning that her three Canadian children are entitled as of right
to remain in Canada.
[20]
While
the applicant made numerous assertions in her arguments as to what she or the
children might face should she be required to return to Saint-Vincent to apply
for permanent residence, she submitted however no evidence in support of these
assertions.
[21]
True,
an H&C Officer must be “alert, alive and
sensitive” to, and must not “minimize”, the best interests of children who may
be adversely affected by a parent’s deportation (Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para.75). However,
this duty arises only when it is sufficiently clear from the material submitted
to the decision-maker that an application relies on this factor, at least in
part. Moreover, an applicant has the burden of adducing proof of any claim on
which the H&C application relies. Hence, if an applicant provides no
evidence to support the claim, the Officer may conclude that it is baseless (Samuel
Kwabena Owusu and The Minister of Citizenship and Immigration 2004 FCA 38,
at para. 5),
without being taxed without any ground,as he was here, of not being
sufficiently “alert, alive and sensitive” to and to have “minimize” the best
interests of the children who may be adversely affected by their mother’s
deportation.
[22]
While
lacking any legal status in Canada, the applicant insists that the simple
fact of being the mother of three Canadian born children suffice in itself to
warrant an H&C relief. The Court disagrees with this proposition. To be
granted the exceptional relief sought, the
applicant had also to demonstrate that she would suffer undue hardship if
required to apply from abroad as in the normal course.
[23]
The
applicant argues that she explained in a January 25, 2008 letter, in response
to the rejection of her work permit application, what the situation of her Canadian
born children in Canada was, and that
this should have triggered more fulsome assessment of the children’s best interests. However this submission is
unacceptable for two reasons: Firstly, this letter was addressed to the
Immigration Officer who rejected the applicant’s request for a work permit, and
there is no proof that this letter was directed to the H&C Officer seized
of her request to waive the requirement to apply for permanent residence from
abroad. Secondly, this letter makes only passing reference to the best
interests of the Canadian born children, let alone canvass the benefits to the
children of allowing their mother to apply for landing from within Canada, how
they might be adversely affected if their mother were required to apply for
landing from abroad, or why, on balance, the best interests of the children
would warrant exceptional relief in view of their short term establishment in
Canada.
[24]
Again
the H&C Officer cannot be faulted for failing
to consider a letter which had not been submitted to him and for failing
to assess the best interests, considerations put forward in a letter
addressed to another officer, and this without sufficient explanation or
supporting evidence.
[25]
Finally,
it may very well be that in Canada, where the applicant currently resides,
her children do not pay for their school books and tuition fees. While in Gambia, the evidence reveals they were receiving their education
in private schools where, in all probability, the applicant’s children had to pay
for their school books and tuition fees. But we still do not know what would be
the situation in Saint-Vincent in this regard.
[26]
However
the question is not whether Canada is more advantageous than the applicant’s country,
but rather whether the likely degree of hardship resulting from requiring her to
leave Canada with or without the children, in order to apply for permanent residence, qualify as
undue hardship warranting the H&C application (Hawthorne v. Canada
(Minister of Citizenship and Immigration) [2002] 1 F.C.). The applicant has not
established whether any of her children would have to leave Canada with her, should
she be required to apply for landing from abroad, and what any adverse results
or undue hardship they would suffer as a consequence.
[27]
The
applicant cannot fault the H&C Officer for considering the age of the
children, their corresponding adaptability, and their short term establishment
in Canada since their return from Gambia. The age and adaptability considerations are relevant when
assessing the best interests of children, more
particularly here, when considering the
children had little contact with the Canadian society (Qureshi v. Canada (Minister of
Citizenship and Immigration) (2000) 195 FTR 9). However, while the best
interests of the children may be a significant factor, they are not
determinative (Canada (Minister of Citizenship and Immigration.)
v. Legault,
2002 FCA 125) to support the applicant’s request. In light of the applicant’s
failure to provide evidence to support her request, the applicant’s argument
would, if accepted, make the case of the best interest of her Canadian children
determinative of her H&C application. This proposal is unacceptable.
[28]
As
the Immigration Officer could not assume the hardship that the applicant
alleged, and as the applicant adduced no evidence in support of her
allegations, the Court cannot see how the Officer erred in deciding that the applicant
had not demonstrated that the undue hardship in her case warranted H&C
relief or that the best interests of her
children warranted H&C relief. Without diminishing the important role of
the applicant as a mother of four children, and
in the absence of any contrary evidence, who knows if the
best interests of the children would not be better served in the
closeness of the grand-mother’s affection they benefited from during their stay in Gambia, rather than being
here in Canada? In the absence of any evidence in this regard the Court cannot
speculate and will not try to answer this question; the same reasoning applies
to the Officer.
[29]
The
applicant demonstrated her ability to secure employment and to provide for her
family while living in Gambia. Recognizing that the applicant’s parents
and siblings remain in Saint-Vincent the Court does not see how requiring that
she apply for
permanent residence from outside Canada would constitute hardship for herself
or for her children.
[30]
In
brief, the
impugned decision falls within a range of possible and acceptable outcomes which are defensible in
respect of the facts and the law, and therefore deserves deference from this
Court. For these reasons, this Court concludes that the Officer did not commit
a reviewable error and that his decision is reasonable. Therefore the judicial
review application will
be dismissed.
[31]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed.
“Maurice E. Lagacé”
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