Date: 20080317
Docket: IMM-2643-07
Citation: 2008 FC 350
Ottawa, Ontario, March 17,
2008
PRESENT: The Honourable Mr. Orville Frenette
BETWEEN:
ENRIQUETA
RAMOS TARAYAO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Enriqueta
Ramos Tarayao (the Applicant) seeks Judicial Review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2002, c. 27
(the Act) of a decision made June 20, 2007 by an Immigration Officer (Immigration
Officer) which denied the Applicant’s application for permanent residence from
within Canada on humanitarian and compassionate grounds (H&C Application)
under subsection 25(1) of the Act (the Decision).
I. Background
[2]
The
Applicant is a citizen of Philippines who came to Canada in October
2001 under the Live in Caregiver program, a prescribed class. However, because
she did not work for the minimum two years as a Live in Caregiver during the
three-year term of her visa, she did not qualify for a permanent residency visa
under paragraph 113(1)(d) of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (the Regulations). She then made a refugee
claim which was denied. In December 2006 she made her H&C Application which
is the basis for this Judicial Review.
[3]
The
Applicant has three children. Her oldest child, a boy, is a citizen of the Philippines and resides
there with his grandparents although the Applicant provides financial support.
The Applicant also has two children, both girls, born in Canada and hence
are Canadian citizens. The older of these two children was born in September
2003 and the younger was born in November 2005. The Applicant is the sole
caregiver and provider for these two children.
[4]
The
Applicant had been in a common-law relationship in Canada. However,
her partner abused her verbally, physically and mentally. Initially, the
Applicant was afraid to leave her partner or complain as she feared she would
be deported if the police became involved. After she finally told the police on
March 23, 2005, her partner was charged and subsequently pleaded guilty to two
counts of assault. He was sentenced to one day imprisonment and one year
probation. He was also forbidden to communicate with the Applicant or to be
near her. He has not had provided any support to the Applicant’s children and
has refused to recognize the two younger children as his own.
[5]
The
Applicant has been employed as a building administrator since May 2006. From
this income, she provides for herself and her Canadian-born children as well as
sending money to support her son in Philippines. The Applicant claims
that if she is sent back to the Philippines she will be unable to
earn enough money to support her family. She says that her relatives there are
not able to support her and that single mothers in the Philippines are
particularly vulnerable due to human rights abuses, high crime and limited
employment opportunities.
[6]
On
June 20, 2007, the Immigration Officer made the Decision which denied the
Applicant’s H&C Application. In the reasons supporting the Decision, the Immigration
Officer noted that the Applicant had no family ties in Canada other than her
two daughters and that her degree of establishment in Canada is nothing
beyond the normal establishment that one would expect under the circumstances.
[7]
The
Immigration Officer also considered the best interest of the children:
[The Applicant] has one son in the Philippines and 2 children born in Canada. Counsel has made arguments
stating the best interest of the Canadian born children would be met if the
mother was to remain in Canada. Counsel has noted separation
between the children and their mother should she decides to leave them in Canada and the resulting hardship it
would be for the family. I note the children will retain their Canadian
citizenship regardless of where they reside. I note the children are 3 ½ and 1
½ young enough that the hardships associated with relocation to another country
will be minimal. With respect to separation between the mother and children, I
find this is a decision left to the applicant should she decide to leave her
children in Canada. Although children residing
in Canada may enjoy better social and economic opportunities than they would in
the Philippines, there is little evidence before me to suggest these children
cannot attend school or be allowed legal entry in the Philippines.
[8]
Furthermore,
the Immigration Officer discussed the Applicant’s prospects if she was
returned:
I also noted the applicant’s extended
family members particularly father, mother live in the Philippines. [The Applicant] worked in her country
as an insurance coordinator for a number of years. It would be reasonable to
expect that with the skills acquired in Canada she can find similar type of
employment in the Philippines.
I now turn to the economic situation in
the Philippines. I recognize that social and
economic conditions in the Philippines may not be favorable, but
they are a common factor that affects the general population as a whole.
II. Issues and standard
of review
[9]
The
Applicant submits that the Immigration Officer erred by failing to properly
assess the best interest of the Applicant’s children. The Applicant also argues
that the Immigration Officer erred in her assessment of the Applicant’s establishment
and integration into Canadian society. The Supreme Court of Canada determined
in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 that the standard of
review for H&C decisions is reasonableness simpliciter.
III. Analysis
A.
Best interests of the child
[10]
The
Applicant submits that the Immigration Officer was not alive, alert and
sensitive to the children’s best interests. I disagree. The Immigration Officer
accepted without challenge the hardship of separation if the children stayed in
Canada and then
went on to consider the hardship of accompanying their mother to Philippines. The
Immigration Officer did not need to discuss at length the hardship of
separation especially given the limited evidence provided by the Applicant. The
Immigration Officer “may be presumed to know that living in Canada can offer a
child many opportunities and that, as a general rule, a child living in Canada
with her parent is better off than a child living in Canada without her parent”
(Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA
475 at para. 5).
[11]
The
Immigration Officer did focus on the hardships the children would suffer if
they accompanied their mother to the Philippines. In my view, the
Immigration Officer could reasonably rely on the young age of the children and
conclude that pre-school children could adapt without great difficulty. The
Applicant did not submit any evidence that would contradict this finding,
including evidence that the children would not be admitted to the Philippines or be able
to attend school there.
[12]
The
Immigration Officer rightly accepted that the family, including the children,
would face social and economic hardships in the Philippines. However,
the Applicant’s own evidence was that she had worked as an insurance
coordinator in the Philippines and so it was reasonable to conclude that she
would be able to find work there. In addition, the Immigration Officer
reasonably took note of the fact that the Applicant’s extended family
(including her parents who were already caring for her son) were in the Philippines.
[13]
There
is no issue that the Immigration Officer accepted there would be hardship. The
question was whether the hardship was sufficient to justify an exemption under
humanitarian and compassionate considerations. This is a weighing of evidence
best left to the Immigration Officer and I see no reason to overturn the
Decision on that basis.
B.
Applicant's Establishment and Integration in Canada
[14]
The
Immigration Officer concluded that “the degree of establishment is nothing
beyond the normal establishment that one would expect the applicant to have
accomplished in the circumstances” and that there is nothing to suggest that
she would suffer unusual, undeserved or disproportionate hardship if those ties
were severed.
[15]
The
Applicant argues that the Immigration officer did not consider the appropriate
factors to determine the degree of establishment, as proposed by Justice Pierre
Blais in Jamrich v. Canada (Minister of Citizenship and Immigration) (2003),
29 Imm. L.R. (3d) 253, 2003 FCT 804, (see also Raudales v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 385. The Respondent submits that
the usual criteria were applied here.
[16]
In
my view, there is no error in the Immigration offcier’s conclusions. As noted
in relatively recent decisions such as Ruiz v. Canada (Minister of
Citizenship and Immigration), 2006 FC 465 and Lee v. Canada (Minister of
Citizenship and Immigration), 2005 FC 413, the fact that
there is some degree of establishment is not sufficient. The Immigration
Officer considered the evidence the Applicant put forward and weighed it.
Whether or not I agree with the Decision, it is reasonable and thus should
stand.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the application
for judicial review is dismissed.
"Orville
Frenette"
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