Date: 20080422
Docket: IMM-3244-07
Citation: 2008 FC 527
Ottawa, Ontario, April 22, 2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
EVGENY SHCHEGOLEVICH
(aka EVGUENI CHTCHEGOLEVITCH)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Evgeny Shchegolevich from a negative
humanitarian and compassionate (H & C) decision made by an Immigration
Officer (Officer) on July 26, 2007. Mr. Shchegolevich asserts that the Officer
made several critical errors in his factual and legal analysis which warrant
the re-determination of his application for relief.
I.
Background
[2]
Mr.
Shchegolevich entered Canada from Russia on July 5, 2000 and he
applied for refugee protection in early 2001. In late 2002, he was found not
to be a Convention Refugee and his subsequent application for leave to
challenge that decision in this Court was dismissed.
[3]
On
July 19, 2003, in Canada, Mr. Shchegolevich married Ms. Irina Kuritsona and
over the following four years he seems to have developed a strong parental
relationship with her young son. On the basis of their marital relationship,
Ms. Kuritsona applied to sponsor Mr. Shchegolevich for permanent residency as
her spouse. Although Mr. Shchegolevich was approved in principle, the spousal
application from within Canada was refused for inadmissibility. Mr.
Shchegolevich is inadmissible pursuant to section 36(2)(a) of the Immigration
and Refugee Protection Act S.C. 2001 c. 27 because he was convicted in 2005
for impaired driving in Canada.
[4]
The
Officer then considered Mr. Shchegolevich for landing based on H & C
grounds. The evidence tendered in support of H & C relief was somewhat
lacking in detail but it did disclose that Mr. Shchegolevich had become well
established in Canada during his seven years of residency. In
addition to his family relationships, he was and remains employed in the
construction industry with an annual income exceeding $70,000.00. In contrast,
the evidence submitted to the Officer disclosed that Ms. Kuritsona was employed
in the retail trade at an income level varying between $10,390.00 and $18,000.00
per year.
II. The
Impugned Decision
[5]
The
Officer's Notes to
File provide considerable insight into the reasons for the decision to deny H &
C relief to Mr. Shchegolevich. One of the principal factors for the refusal
was based on an assumption that the separation of Mr. Shchegolevich from his wife
and step-son would only be temporary. This is reflected in the following
passage from the Officer's reasons:
I further note if the applicant's spouse chooses to sponsor the applicant
(under the family class category in the normal matter [sic]) through the visa
office oversees any resulting separation from his family would be a temporary
situation.
[6]
It
is also apparent that the Officer gave some consideration to the interests of
Mr. Shchegolevich's Canadian family including those of his young stepson.
That aspect of the decision is contained within the following passage:
I recognize that the family in Canada may experience some personal
difficulty if their relationship were temporarily severed from the applicant,
however I am not satisfied that this difficulty amounts to hardship that is
unusual and undeserved or disproportionate.
I note the applicant has an 11-year-old
step-son who is a Canadian citizen. I note the applicant married into this
family in 2003. I note the applicant states he is a father figure to his
step-son. In an interview dated August 24, 2006 the applicant's spouse stated that her son's biological
father resides in Estonia. While I am satisfied that
the applicant has a relationship with his step-son, I find there is
insufficient evidence that the removal of the applicant from Canada would cause his step-son long
term emotional or physical harm. I acknowledge that no child should be
separated from a caring (step) parent and I recognize that a separation may
cause a period of adjustment for this child; however, the relationship between
the applicant and his step-son does not have to be severed. If the applicant
were to leave Canada, this child can maintain
their relationship by communicating with the applicant through telephone calls,
letters and email. It is also noted that this child is a Canadian citizen and
he has the option to visit his step-father overseas without jeopardizing his
Canadian status.
[7]
The
Officer also acknowledged that Mr. Shchegolevich was the main financial
provider for his family and the Officer further observed that there was "disparity"
between the applicant's income and the income of his wife.
Nevertheless, the Officer discounted this evidence by concluding that
insufficient evidence had been provided to establish that the loss of Mr. Shchegolevich's
financial contribution to the household would cause "significant financial
hardship or that their basic amenities cannot be fulfilled" if he was
removed from Canada.
III. Issues
[8]
(a) Did
the Officer err in the assessment of the evidence bearing on the best interests
of the child?
IV. Analysis
[9]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, the
Supreme Court of Canada recently altered the standard of review analysis in
judicial review proceedings reducing the three standards of review to two –
reasonableness and correctness. However, as the majority noted in that case,
this does not inherently change the standard of review for all judicial review
proceedings. Where a thorough pragmatic and functional analysis has already
been undertaken, there is no inherent need to repeat it post-Dunsmuir
(para. 20). It is also relevant to the case at bar to note that at para. 51,
Justice Michel Bastarache and Justice Louis LeBel held that questions of mixed
fact and law where the legal issues cannot easily be separated from the facts
should continue to be considered on the standard of reasonableness.
[10]
The
case at bar contains a strong legal component, but it is still fundamentally a
question of mixed fact and law. Given the strength of the precedents on this
issue, it is clear that the standard of review for the issue raised in this
case should be that of reasonableness.
[11]
The
points advanced on behalf of Mr. Shchegolevich in support of this
application are fundamentally evidence-based. Mr. Shchegolevich asserts
that the Officer ignored important evidence and drew adverse inferences that
were unsupported by the evidence. Much of this criticism is directed at the
Officer’s assessment of the best interests of Mr. Shchegolevich’ young
stepson. These arguments are summarized in the following passages from the
Applicant’s Memorandum of Argument:
33. It is submitted that the
Immigration and Refugee Protection Act sets out under the heading Objectives –
Immigration, Paragraph 3(1)(d) that among the objectives with respect to
immigration is to see families united in Canada. It is submitted that spousal
separation is not in accordance with the provisions and objectives of the Act,
but rather takes a position and reaches a conclusion contrary to the objectives
of this legislation.
34. It is submitted that the Applicant
has provided copious relevant evidence to satisfy the Immigration Officer that
there were sufficient humanitarian and compassionate grounds to warrant an
exemption. It is submitted that if the Officer had regard to the totality of
the evidence and examined the application sympathetically, keeping in mind the
best interests of the child, by considering the benefits to the child of the
parent’s non-removal from Canada as well as the hardship the child would suffer
from the parent’s removal from Canada, as he/she is required to do, the Officer
would reach a positive determination.
[…]
37. It is submitted that the
hardship to be suffered by Daniel, being a situation of family dependency, goes
far beyond mere inconvenience and costs associated with leaving Canada. Children should not be
required to have their lives broken up because of rules, which were never
intended to be hard and fast and unfair.
38. It is submitted that unusual
and undeserved hardship, as used in the legislation, is only in relation to
others who would be asked to leave Canada.
It is an attempt to provide guidelines in exercising an officer’s discretion.
It is not tangible items, such as a home or a business or chattels of any kind,
but rather a relationship between a husband, a wife and a child that would
bring it within the exception and justify an exercise of discretion.
Ordinarily these types of assertions would
not prevail because they amount to no more than an invitation to the Court to
reweigh the evidence. However, in this case I am satisfied that the Officer’s
decision was unreasonable. I have concluded that the Officer erred by adopting
an incorrect test for considering the best interests of Mr. Shchegolevich’s
young stepson, and by speculating about the prospects for Mr. Shchegolevich’s
return to Canada following a renewed spousal sponsorship application from
overseas.
[12]
It
is clear that the Officer erred by requiring that Mr. Shchegolevich
establish that the adverse effects of his removal upon his spouse and his
stepson would be unusual, undeserved, or disproportionate. This standard is
only to be applied to the assessment of hardship experienced by an applicant from
having to apply for admission to Canada from overseas ; it does
not apply to the assessment of the best interests of a child affected by the
removal of a parent. This was a point I made in an earlier case, Arulraj v.
Canada (Minister of
Citizenship and Immigration), 2006 FC 529, 148 A.C.W.S. (3d) 305, where
I held at para. 14:
It is apparent that the Visa Officer felt
that, in considering the best interests of the two Canadian children, it was
necessary to find that they would be irreparably harmed by their father's
"temporary" removal from Canada.
This was an incorrect and, therefore, unreasonable exercise of the officer's
discretion. There is simply no legal basis for incorporating a burden of
irreparable harm into the consideration of the best interests of the children.
There is nothing in the applicable Guidelines (Inland Processing 5, H & C
Applications (IP5 Guidelines)) to support such an approach, at least insofar as
the interests of children are to be taken into account. The similar terms found
in the IP5 Guidelines of "unusual", "undeserved" or
"disproportionate" are used in the context of considering an
applicant's H & C interests in staying in Canada and not having to apply for landing from
abroad. It is an error to incorporate such threshold standards into the
exercise of that aspect of the H & C discretion which requires that the
interests of the children be weighed. This point is made in Hawthorne v. Canada (Minister of Citizenship and
Immigration)
[2003] 2 FC 555, 2002 FCA 475 (F.C.A.) at para. 9 where Justice Robert Décary
said "that the concept of 'undeserved hardship' is ill-suited when
assessing the hardship on innocent children. Children will rarely, if ever, be
deserving of any hardship".
[13]
It
was also an error for the Officer in this case to have assumed that the
separation of Mr. Shchegolevich from his family would only be temporary. It
was largely on the strength of this supposition that the Officer discounted the
adverse effects of the resulting family separation. Mr. Shchegolevich was
inadmissible to Canada because of his impaired driving conviction and there is
nothing in the record to establish that his re-entry to Canada would be a
mere formality or that the family separation would be “temporary”. This, too,
was an issue I addressed in the Arulraj decision in the following
passage:
17 In making a determination that the
Applicant be removed to Germany to apply for a visa and
re-admission, the Visa Officer seems to have concluded that re-entry would be a
virtual certainty because she refers to the negative impact of separation on
the youngest child as temporary. If the granting of a visa to the Applicant
would be little more than a formality, one wonders why the officer simply did
not allow him to stay in Canada. Presumably, the H & C
considerations would not materially change in the meantime. On the other hand,
if the Applicant was unsuccessful in obtaining a timely visa, the entire
foundation of the Visa Officer's decision concerning the best interests of the
children would be undermined.
18 The Visa Officer's speculation
about the outcome of a future application for re-entry to Canada as part of the consideration
of the children's interests constitutes a defect in the logical process by
which the officer's conclusions were drawn: see Baker, above at para. 63. While
the issue of re-entry may be a factor to consider, the Visa Officer should not
have proceeded on the basis that early re-entry was a certainty: see Malekzai
v. Canada (Minister of Citizenship and
Immigration)
[2005] F.C.J. No. 1956, 2005 FC 1571 at para. 20.
[14]
These
two errors by the Officer are sufficient to require a redetermination of Mr. Shchegolevich’s
application. I would add, though, that the Officer’s analysis of the financial
impact upon the family resulting from Mr. Shchegolevich’s removal to Russia is cursory
and questionable. The reduction in combined family income of approximately
$85,000.00 per year to a level below the poverty line is hardly insignificant.
Indeed, the possibility that Canadian taxpayers would be obliged to support
this family because of the loss of Mr. Shchegolevich’s considerable
financial support is more likely than is the Officer’s speculation that
Mr. Shchegolevich would find sufficiently lucrative interim employment in Russia to
adequately support two households. Hopefully when this application is
reconsidered, this issue will receive more attention than it received in this
instance, both from Mr. Shchegolevich’s counsel and from the Officer who
decides the matter.
[15]
In
the result, this application for judicial review is allowed with the matter to
be redetermined on the merits by a different decision-maker.
[16]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is allowed with the
matter to be redetermined on the merits by a different decision-maker.
“ R. L. Barnes ”
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