Date: 20080521
Docket: IMM-4222-07
Citation: 2008 FC 632
Ottawa, Ontario, May 21, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
WAN SOO KIM, MI KYUNG LEE; DA HYUN KIM;
JU YOUNG KIM; HANNAH KIM
Applicants
And
THE MINISTER OF CITIZENSHIP
&
IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act) for judicial
review of a decision of a humanitarian and compassionate (H&C) officer (the
officer) dated September 24, 2007, which denied the applicants’ application for
permanent residence from within Canada on H&C grounds.
[2]
The
applicants requested that the decision be set aside and the matter referred
back to a new H&C officer for redetermination.
Background
[3]
Wan
Soo Kim (father), Mi Kyung Lee (mother), Da Hyun Kim (daughter), and Ju Young
Kim (daughter) (collectively the applicants) are all citizens of South Korea. The father
and mother have a third daughter, Hannah Kim, but she is a Canadian citizen
having been born in Canada.
[4]
The
applicants came to Canada in 2002. They applied for refugee protection,
but their application was rejected in July 2004. Subsequently, their
application for leave for judicial review to the Federal Court was rejected in
May 2005. The applicants then made the within request for special consideration
to remain in Canada based on
H&C grounds. The application was first referred to local immigration
officials in Oshawa, Ontario,
and was given a favourable consideration at the “first level” of assessment.
However, the application was then forwarded to immigration officials at
national headquarters on March 15, 2007 for a final determination. In a
decision dated September 24, 2007, the officer denied the applicants’
application.
Officer’s Decision
[5]
The
officer first considered the applicants’ establishment in Canada. The officer
acknowledged the documentary evidence provided by the applicants in support of
their establishment. The officer noted that the applicants were active
participants in their church community and agreed that this formed an important
part of their spiritual lives. However, the officer also stated that there was
no indication that the applicants could not engage in such activities in South Korea. The officer
acknowledged that the applicants were not in receipt of social assistance and
that the father was gainfully employed, earning sufficient money to provide for
the care, accommodation and maintenance of his family. The officer considered
that the applicants had purchased a home and that they volunteered about 20
hours a month. The officer accepted that the applicants were established in Canada, but also
stated that this did not, in and of itself, form sufficient grounds to justify
the granting of an exemption.
[6]
The
officer then considered the best interests of the children involved. The
officer stated that the children were enjoying their education in the Ontario school
system, but noted that there was no indication that being educated in South Korea would place
them at a disadvantage. The officer agreed that the two younger children had no
experience with the South Korean education system, but found that this was a
result of the father’s decision to leave South Korea. The officer
disagreed with the applicants’ submission that the children would have to
overcome great barriers to be able to assimilate back into the extraordinarily
different South Korean culture after being so long in Canada. The officer
suggested that there would undoubtedly be a period of adjustment, but this was
normal under the circumstances.
[7]
The
officer also considered the circumstances of the Canadian born child, Hannah,
who was found at a young age to have a heart condition known as “atrioventrical
septal defect”. The officer noted that the condition had required surgical
intervention in 2005, and that she was discharged from the hospital with no
other illnesses and was not on medication. The officer further noted that while
all the evidence indicated that Hannah was “doing very well from the cardiac
perspective”, there was a possibility of further need for medical treatment.
The officer then went on to consider the availability of medical services for
Hannah in South
Korea.
The officer noted that Canadian officials in the Canadian Embassy in Seoul were
contacted and had indicated that medical services in South Korea were “top
notch”, but treatment was more expensive. The officer then stated that they had
reviewed a number of websites with information on the issue, noting the
following information:
- a
reference in the U.S. Department of State publication entitled “Country
Reports on Human Rights Practices – 2006” for South Korea indicating that
“high quality health care was available to children”;
- a
website “Publmed.gov” outlining a number of advances in health care in South
Korea
over a period of time;
- the U.S.
Consular information sheet indicating that “hospitals in South Korea are
generally well-equipped with state-of-the-art diagnostic and therapeutic
equipment … Western style medical facilities are available in major urban
areas of Seoul, Busan, Daegu and a few other larger cities”; and
- a
publication from the U.S. Library of
Congress concerning South Korea and issues
surrounding health and social welfare indicating that the number of health
care professionals has increased dramatically over the past number of
years as has the number of hospitals.
[8]
In
conclusion, the officer was satisfied, that the level of care available to
Hannah in South
Korea
was sufficient.
[9]
The
officer also considered whether the applicants would face unusual, underserved
or disproportionate hardship. The officer noted that this was “intimately tied
to [the principal applicant’s] fear to return to South Korea as a result
of his being a victim of a money lending (fraud) scheme.” The officer noted
that the principal applicant claimed that if returned to South Korea, he would
not be able to secure employment due to the high level of unemployment. The
officer found that if true, this was a risk faced by all persons of the
principal applicant’s age and was not a personalized risk.
[10]
The
officer went on to consider the issues surrounding criminality noting that the
principal applicant had been convicted of the following offences in South Korea:
- a
“traffic road law violation” which is the equivalent to the offence under
section 225 of the Criminal Code of Canada – driving while
impaired;
- two
other “traffic road law violations”, one of which was the equivalent to
section 259 of the Criminal Code of Canada – driving while
disqualified; and
- a charge
of “falsifying private documents, fraud, exercising falsified private
documents” which is the equivalent to section 380 of the Criminal Code
of Canada – fraud over $5000.
[11]
The
officer noted that these convictions rendered the principal applicant
inadmissible to Canada as per subsections 36(1) and 36(2) of the Act.
The officer also stated that it was clear that the principal applicant had
deliberately failed to advise immigration officials and had concealed that he
was a criminal. The officer further noted that the principal applicant had four
and a half years to disclose this information and knew that he was indeed
required to do so during several of his immigration applications and
declarations. Moreover, the officer noted that the principal applicant’s wife
also knew of her husband’s convictions and did nothing.
[12]
In
conclusion, the officer found that while there may have been some grounds to
indicate that some H&C considerations were present, the decision to be made
was “whether the possible existence of these H&C grounds [justified] the
granting of the requested exemption.” In the officer’s opinion, having
considered the entirety of the evidence, there were insufficient grounds
present to justify granting an exemption. The officer stated that “part of this
decision [was] related to the deliberate pattern of misrepresentation
demonstrated by both the principal applicant and his wife to circumvent the
principal applicant’s criminality.” The officer acknowledged that the family
had spent a number of years becoming established in Canada. Moreover,
the officer stated that they were satisfied that medical care was available for
Hannah and that the applicants had family in South Korea who could
provide care and guidance during the readjustment period. The officer also
acknowledged the principal applicant’s fear of the “loan shark”, but found on a
balance of probabilities that there was insufficient reason to believe that the
family was at risk of death, torture or to cruel and unusual treatment.
[13]
In
closing the officer noted that there was a note on the file indicating that
local immigration officials would have refused the application had the
principal applicant’s criminal history been known prior to the positive assessment
at the “first level”. The officer acknowledged this comment, but stated that no
notice was taken of it and that it did not in any manner influence either the
content or the conclusion of the application.
Issues
[14]
The
applicants submitted the following issues for consideration:
1. Did the officer err
in law by failing to apply the proper test in determining the existence of
H&C reasons to grant the application for permanent residence pursuant to
section 25 of the Act?
2. Did the officer
breach the principles of procedural fairness by failing to provide the
applicant with proper reasons for the decision?
3. Did the officer
breach procedural fairness in failing to provide the applicants with an
opportunity to disabuse their concerns?
[15]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer err
in law in failing to apply the proper legal test in considering whether the
applicants would face undue, undeserved or disproportionate hardship?
3. Did the officer
breach procedural fairness in failing to provide adequate reasons for the findings
on establishment in Canada and the best interests of the children?
4. Did the officer
breach procedural fairness in failing to provide the applicants with the
opportunity to respond to documentary evidence relied on by the officer in
rendering the decision?
Applicants’ Submissions
[16]
The
applicants submitted that the officer clearly applied the wrong test in
determining that the applicants would not face a risk if returned to South Korea. The
applicants argued that the test for risk applied under sections 96 and 97 of
the Act is not the same as in H&C decisions. It was submitted that one
could be found not to be in need of protection pursuant to sections 96 and 97,
but could still be found likely to be subjected to undue, disproportionate, and
undeserved hardship due to the risk. The applicants relied on Melchor v.
Canada (Minister of Citizenship and Immigration), [2004] F.C.J.
No. 1600 to illustrate that the test applied under sections 96 and 97 is indeed
a higher standard than that applied in section 25 applications. The applicants
submitted that the officer applied the wrong test and as a result, the decision
should be set aside.
[17]
The
second argument raised by the applicants was that the officer breached
procedural fairness in failing to provide proper reasons for two findings,
namely, the officer’s findings on establishment in Canada, and the
best interests of the children. The applicants drew the Court’s attention to
passages from the Supreme Court of Canada’s decision in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 as to the importance
of the provision of reasons. Moreover, the applicants also drew the Court’s
attention to passages from the decision in Raudales v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 532 which spoke to the
requirement of adequate reasons. The applicants submitted that in the decision,
the officer merely listed the evidence and then stated a conclusion without
providing adequate reasons.
[18]
And
finally, the applicants submitted that the officer breached procedural fairness
by relying on extrinsic evidence in considering the availability of health care
for Hannah in South
Korea.
The applicants submitted that none of the information and documentation relied
upon was brought to the attention of the applicants prior to rendering the
final decision. It is trite law that in the circumstances it was an error not to
provide the applicants with an opportunity to reply to the evidence (Azarpajooh
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J.
No. 333; Chou v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 819; Haghighi
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 854; Huang v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 43).
Respondent’s Submissions
[19]
The
respondent began their submissions summarizing some general principles regarding
H&C applications. The respondent submitted that a decision made on H&C
grounds is an exception and discretionary measure (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125). H&C applications offer
applicants special and additional consideration for an exemption from
immigration laws and are only granted when the hardship caused is unusual and
undeserved or disproportionate. Such decisions cannot be used as a “back door
when the front door has, after all legal remedies have been exhausted, been
denied in accordance with Canadian law” (Mayburov v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J. No. 953 at
paragraph 39). The respondent also submitted that the appropriate standard of
review for H&C decisions is reasonableness (Baker, above). As such, H&C
decisions should not be interfered with as long as there are some reasons that
can stand up to a somewhat probing examination (Doudkina v. Canada
(Minister of Citizenship and Immigration), 2005 FC 858).
[20]
The
respondent submitted that the officer’s decision was adequately reasoned and
that the applicants are simply in disagreement with the officer’s overall
conclusion. The respondent submitted that the officer considered all the
evidence submitted by the applicants and came to a reasonable conclusion that
the Court should not interfere with. The respondent argued that it is clear
from the reasons that the officer recognized the degree of establishment and
the best interests of the children, but balanced these factors against the
criminal history and misrepresentation and in the end found that applying from
abroad would not amount to unusual, undeserved or disproportionate hardship.
[21]
The
respondent also submitted that the officer did not err by assessing risk using
the same criteria as in the PRRA assessment. The officer considered the risk
factor appropriately. “The onus rests on the applicant to satisfy the officer
that, in his/her personal and particular circumstances, the hardship of having
to obtain a permanent resident visa outside of Canada in the normal manner
would either be unusual and undeserved, or disproportionate” (Rafieyan v.
Canada (Minister of Citizenship and Immigration), 2007 FC 727 at
paragraph 40, citing Owusu v. Canada (Minister of Citizenship and Immigration),
2004 FCA 38 and Pinter v. Canada (Minister of Citizenship and
Immigration), 2005 FC 296). No error is committed when the officer relies
on the same set of factual findings in assessing an H&C and a PRRA
application, provided that these facts are applied against the appropriate test
for each context (Liyanage v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 1293; Ramirez v. Canada (Minister
of Citizenship and Immigration), [2006] F.C.J. No. 1763).
[22]
And
lastly, the respondent submitted that the officer committed no reviewable error
in relying on documentation concerning the availability of medical care in South Korea. It was
submitted that the Federal Court of Appeal has held that publicly available
documents, such as US Department of State Country Reports do not amount to
extrinsic evidence (Mancia v. Canada (Minister of Citizenship and
Immigraiton), [1998] F.C.J. No. 565 (FCA)).
Applicants’ Reply
[23]
The
applicants agreed that the appropriate standard of review for the officer’s
overall decision is reasonableness (Baker, above). However, it was
submitted that the appropriate standard of review for questions of law and
procedural fairness is correctness (Pushpnathan v. Canada (Minister
of Citizenship and Immigration), [1998] 1 S.C.R. 982). The applicants
reiterated that reasons cannot be said to be fulsome simply because they recite
and enumerate the parties’ submissions and render a conclusion; adequate
reasons must contain an explanation as to how the decision was arrived at. Moreover,
the applicants submitted that the test for risk for an H&C decision is
“unusual, undeserved and disproportionate hardship”; however, the officer
concluded that “on a balance of probabilities, there is no reason to believe
that Mr. Kim will be subject to a risk to his life, torture and unusual
treatment or punishment”. The applicants submitted that the officer incorrectly
applied the legal test for risk under sections 96 and 97 of the Act, not the
lower standard in section 25. And finally, the applicants submitted that the
information obtained through a “GOOGLE” search and the information from the
employees at the Canadian Embassy in Seoul clearly does not
constitute “publicly available documents”.
Analysis and Decision
[24]
Issue
1
What is the appropriate
standard of review?
Both parties
agreed that the appropriate standard of review for H&C decisions is
reasonableness based on the authority of Baker, above. While I agree
with this submission, the applicants are not challenging the officer’s overall
decision. The applicants have raised three arguments, one of which is a
question of law and two of which are questions of procedural fairness.
Therefore, in my opinion, the appropriate standard of review for all the issues
raised is correctness.
[25]
Issue
2
Did the officer err in law
in failing to apply the proper legal test in considering whether the applicants
would face undue, undeserved or disproportionate hardship?
The applicants submitted that
the officer erred in applying the incorrect legal test when assessing risk
under section 25 of the Act. The respondent submitted that it was open to the
officer to rely on the factual findings as in the PRRA application. The
relevant portion of the officer’s decision reads as follows:
I acknowledge that Mr. Kim has expressed
a fear of return to South
Korea due to the
actions of a “loan shark” who also was a participant in the scheme that led to
his conviction for fraud. To assess this fear, I have completed a risk
assessment (attached) and I find that on a balance of probabilities, there is
insufficient reason to believe that he or his family would be at risk of death,
torture or to cruel and unusual treatment or punishment.
[26]
The
relevant portion of the attached risk assessment reads as follows:
In conclusion, I find that the actions of
the criminal element which have threatened Mr. Kim and family do not rise to
the level of a well-founded fear of persecution. Further, I find that based on
a balance of probabilities, there is no reason to believe that Mr. Kim will be
subject to a risk to his life, to torture or to cruel and unusual treatment or
punishment.
[27]
In
Ramirez, above at paragraphs 42 and 43, Justice de Montigny of this
Court explored the correct legal test for hardship under section 25 of the Act
and stated the following:
[42] It is beyond dispute that the
concept of "hardship" in an H&C application and the
"risk" contemplated in a PRRA are not equivalent and must be assessed
according to a different standard. As explained by Chief Justice Allan Lutfy in
Pinter v. Canada (Minister of Citizenship and
Immigration),
[2005] F.C.J. No. 366, 2005 FC 296:
[3] In an application for humanitarian
and compassionate consideration under section 25 of the Immigration and
Refugee Protection Act (IRPA), the applicant's burden is to satisfy the
decision-maker that there would be unusual and undeserved or disproportionate
hardship to obtain a permanent resident visa from outside Canada.
[4] In a pre-removal risk assessment
under sections 97, 112 and 113 of the IRPA, protection may be afforded to a
person who, upon removal from Canada to their country of
nationality, would be subject to a risk to their life or to a risk of cruel and
unusual treatment.
[5] In my view, it was an error in law
for the immigration officer to have concluded that she was not required to deal
with risk factors in her assessment of the humanitarian and compassionate
application. She should not have closed her mind to risk factors even though a
valid negative pre-removal risk assessment may have been made. There may
well be risk considerations which are relevant to an application for permanent
residence from within Canada which fall well below the
higher threshold of risk to life or cruel and unusual punishment.
[Emphasis Added]
[43] Now, it is perfectly legitimate
for an officer to rely on the same set of factual findings in assessing an
H&C and a PRRA application, provided that these facts are analyzed through
the right analytical prism. This is precisely where the officer's assessment in
the present case falls short. While she did assess the risk factors the
applicants submitted, she did not assess them against the appropriate standard.
[28]
While
the present case is somewhat different in that the officer did not determine a
PRRA application, I am of the opinion that the principal articulated above
still applies.
[29]
The
above reproduced sections of the officer’s reasons clearly show that the
officer applied the standard of whether on a balance of probabilities the applicants
would be subject to a risk to their life or to a risk of cruel and unusual
treatment. This is not the appropriate standard for risk in a section 25
decision. The correct test is whether the risk amounts to unusual and
undeserved or disproportionate hardship. This was an error of law, and as such,
I would allow the judicial review on this ground.
[30]
I
need not deal with the other issues raised by the applicants because of my
finding on Issue 2.
[31]
The
application for judicial review is therefore allowed and the matter is referred
to a different H&C officer for redetermination.
[32]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[33]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different H&C officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Act, S.C. 2001, c. 27 (IRPA):
|
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.
36.(1)
A permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by a maximum term of imprisonment of at least 10 years,
or of an offence under an Act of Parliament for which a term of imprisonment
of more than six months has been imposed;
. . .
(2) A foreign national
is inadmissible on grounds of criminality for
(a) having
been convicted in Canada of an offence under an Act of
Parliament punishable by way of indictment, or of two offences under any Act
of Parliament not arising out of a single occurrence;
(b) having
been convicted outside Canada of an offence that, if committed in
Canada, would constitute an indictable offence under an Act of Parliament, or
of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;
(c) committing
an act outside Canada that is an offence in the place where
it was committed and that, if committed in Canada,
would constitute an indictable offence under an Act of Parliament; or
(d)
committing, on entering Canada, an offence under an Act of Parliament
prescribed by regulations.
|
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.
36.(1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction
à une loi fédérale pour laquelle un emprisonnement de plus de six mois est
infligé;
. .
.
(2)
Emportent, sauf pour le résident permanent, interdiction de territoire pour
criminalité les faits suivants :
a)
être déclaré coupable au Canada d’une infraction à une loi fédérale
punissable par mise en accusation ou de deux infractions à toute loi fédérale
qui ne découlent pas des mêmes faits;
b)
être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise
au Canada, constituerait une infraction à une loi fédérale punissable par
mise en accusation ou de deux infractions qui ne découlent pas des mêmes
faits et qui, commises au Canada, constitueraient des infractions à des lois
fédérales;
c)
commettre, à l’extérieur du Canada, une infraction qui, commise au Canada,
constituerait une infraction à une loi fédérale punissable par mise en
accusation;
d)
commettre, à son entrée au Canada, une infraction qui constitue une
infraction à une loi fédérale précisée par règlement.
|
Email this Content