Date: 20080306
Docket: IMM-1092-07
Citation: 2008 FC 307
Ottawa, Ontario, March 6,
2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
SUSHIL KISANA, SEEMA KISANA
and
SUBLEEN KISANA by her Litigation Guardian
Sushil Kisana
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This
is an application for judicial review of a determination by a visa officer made
overseas whether permanent residence in Canada should be granted on humanitarian and
compassionate grounds. Subleen Kisana and Lovleen Kisana are the twin daughters
of Sushil Kisana and his wife Seema Kisana. The facts of this application, relating to Subleen Kisana, are
substantively the same as those in court file IMM-1094-07 concerning Lovleen.
The two matters were heard together and these reasons for judgment will deal
with both applications. A copy will be placed in the second file.
[2]
The adult applicants were not married when the girls were born in
India in August 1991. Sushil Kisana immigrated to Canada in February 1993 with
his parents as an unmarried dependent. He married Seema in India in January
1994 and sponsored her admission as his spouse. Seema was landed in April 1999.
Sushil and Seema are now Canadian citizens. Both denied having children when
they immigrated to Canada.
[3]
Since their mother’s departure, the girls
have been cared for in India by Mr. Kisana’s sister who is married to Seema’s
brother. The aunt is effectively raising them on her own as her husband lives
and works in another city. The
parents attempted unsuccessfully to sponsor the girls in 2003. They applied
again in December 2005.
[4]
There
is no dispute between the parties that Subleen and Lovleen could not be
considered as members of the family class, sponsorable by their Canadian
parents, by virtue of s. 117 (1) (d) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) because they
had not been declared and examined as dependent children at the time their
parents applied to immigrate to Canada. In the 2005 application the parents also
requested consideration on humanitarian and compassionate (H&C) grounds. This
request was forwarded to the visa post in India.
[5]
On
October 11th, 2006, the girls and their aunt were each interviewed separately
in New
Delhi
in Hindi, their native language. As indicated in the visa officer’s
computerized notes (“CAIPS notes”), submitted as part of the certified tribunal
record for each file, the officer asked questions about the contact that the
twins had with their parents by way of visits and phone calls, the parents’
employment in Canada and their plans for their children, how the girls were
supported and their relationship with their aunt. The officer noted that the
twins brought only their birth certificates and passports to the interview. No
other supporting documentary evidence was submitted.
DECISION UNDER REVIEW:
[6]
In
letters dated November 7, 2006 the officer advised the applicants that their
requests for permanent residence on humanitarian and compassionate grounds had been
refused. While a separate explanation was provided for each application, the
officer's reasons, as reflected in the letters and CAIPS notes, draw on all
three interviews and are essentially the same. The reasons may be summarized as follows:
- There were
insufficient reasons for the adult applicants to have failed to declare
their children on their own residency applications;
- There were
inadequate efforts on the part of the adult applicants to reunite with
their children;
- There was
insufficient evidence of the expected regular communication between the
parents and their children;
- There was
insufficient evidence of financial support of the children by their
parents;
- Insufficient
information had been provided to the girls about Canada, and insufficient
plans had been made for their future here; and,
- The
evidence on file and at the hearing does not show difficulties or undue
hardship faced by the girls in living in India with their paternal aunt.
ISSUES:
[7]
The
issues raised by the parties in these proceedings and argued at the hearing are
as follows:
1.
Should overseas H&C decisions be accorded greater deference than
inland decisions?
2.
Did the officer fail to be attentive or sensitive to the best interests
of the children?
3.
Did the officer ignore evidence or take irrelevant factors into
consideration?
4.
Did the officer make patently unreasonable findings of fact?
RELEVANT STATUTORY AND OTHER PROVISIONS:
[8]
The
authority to grant foreign nationals an exemption from the requirements of the
Act and to obtain permanent residence status is set out in section 25:
|
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.
|
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.
|
[9]
Paragraph 3(1) (d) of the Act provides:
|
3. (1) The objectives of this Act with
respect to immigration are
...
(d) to see that families are reunited in Canada;
|
3. (1) En
matière d'immigration, la présente loi a pour objet :
...
d) de
veiller à la réunification des familles au Canada;
|
[10]
In
making decisions under section 25, Immigration Officers may be guided by the
principles set out in Chapter 4 of the Overseas Processing (OP) Manual
published by the respondent, which relates to H&C applications from outside
Canada. Although these
guidelines are not law and accordingly not binding, they are of assistance to
the Court in reviewing discretionary decisions: Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457, at paragraph
20.
[11]
Under
the heading " Processing humanitarian and compassionate cases" the
following appear in the manual as considerations to be taken into account with
dealing with de facto family members who do not otherwise come within
the family class:
Consider:
-
whether dependency is
bona fide and not created for immigration purposes;
-
the level of
dependency;
-
the stability of the
relationship;
-
the length of the
relationship;
-
the impact of a
separation;
-
the financial and
emotional needs of the applicant in relation to the family unit;
-
ability and
willingness of the family in Canada to provide support;
-
applicant's other
alternatives, such as family (spouse, children, parents, siblings, etc.)
outside Canada able and willing to provide support;
-
documentary evidence
about the relationship (e.g., joint bank accounts or real estate holdings,
other joint property ownership, wills, insurance policies, letters from friends
and family);
-
any other factors
that are believed to be relevant to the H&C decision.
ANALYSIS:
Standard of Review for
Overseas H&C Decisions;
[12]
It is well established that the
standard of review for H&C decisions, overall, is reasonableness: Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39. Although Baker
arose from an application for landing from within Canada, this standard has
been held to be equally applicable to H & C applications from outside
Canada: Nalbandian v. Canada (Minister of Citizenship and Immigration),
2006 FC 1128, [2006] F.C.J. No. 1416 at paragraph 12.
[13]
On questions of fact, paragraph
18.1(4)(c) of the Federal Courts Act, R.S.C. 1985, c. F-7,
provides that the Court can
intervene only if it considers that the board “based its decision or order on
an erroneous finding of fact that it made in a perverse or capricious manner or
without regard for the material before it”: Mugesera v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 39 at
paragraph 38. This standard has been equated with that of patent
unreasonableness: Canadian Pasta Manufacturers’ Assn. v. Aurora Importing & Distributing
Ltd., (1997), 208 N.R. 329, [1997] F.C.J. No. 115
at paragraphs 6-7 (F.C.A.).
[14]
The respondent submits that
overseas H&C applications should be subject to a more deferential standard
than inland applications, as a negative finding in the latter is more likely to
be disruptive than the former: Khairoodin v. Canada (Minister of Citizenship
and Immigration), (1999), 2 Imm. L.R. (3d) 275, [1999] F.C.J. No. 1256 and Za'rour
v. Canada (Minister of Citizenship and Immigration), 2007 FC 1281, [2007] F.C.J. No. 1647.
[15]
I
note that in both Khairoodin and Za'rour, the discussion of the appropriate
standard for overseas H&C decisions was not necessary for the determination
of the issues before the court. In Khairoodin, Justice Marshall
Rothstein, sitting in his capacity as an ad hoc member of the Federal
Court Trial Division shortly after the Baker decision, framed it as a
question to be further considered. The respondent contends, however, that the
proposition was confirmed by the Federal Court of Appeal in Owusu v. Canada
(Minister of Citizenship and Immigration), 2004 FCA 38, [2004] F.C.J. No. 158 and cites statements to that effect
at paragraphs 2 and 17 in Za'rour in support.
[16]
The statements by my colleague Justice Michel Shore in Za’rour
refer to the following comments in Owusu, which appear in paragraph 12
of Justice John Evans’ reasons for the Court:
In the absence of a reviewable error by
the immigration officer in rejecting Mr. Owusu’s H&C application, the court
cannot intervene. It is not the function of the court in judicial review
proceedings to substitute its view of the merits of a H&C application for
that of the statutory decision-maker, even though, on the record, Mr. Owusu’s
in-country claim to be granted permanent resident status on H&C grounds
might well have merit.
[17]
Justice
Evans’ comments reflect the Supreme Court of Canada’s jurisprudence with
respect to the role of a Court applying the reasonableness standard on judicial
review. An unreasonable decision is one that is not
supported by any reasons that can stand up to a somewhat probing examination. It
is not about whether the tribunal came to the right result: Canada (Director of Investigation
and Research) v. Southam, [1997] 1 S.C.R. 748, [1996]
S.C.J. No. 116 at paragraph 56; Law Society of New Brunswick v. Ryan, 2003
SCC 20, [2003] 1 S.C.R. 247 at paragraphs 48-56.
[18]
The
Court of Appeal upheld the dismissal of the application in Owusu on the
ground that the claim that the best interests of the applicant’s children had
been ignored was not supported by the evidence. Justice Evans, speaking for the
Court, emphasized that the decision was not to be seen as an affirmation of the
Application Judge’s view that the duty to consider children’s best interests is
engaged where the children in question are not in, and have never been to, Canada. The Court of
Appeal left that question to be determined in another case where it arose for
decision on the facts. In this instance, the children’s interests are clearly
engaged as it is their application for H&C consideration which is at issue.
[19]
I do not read Owusu to
suggest that the reasonableness standard should be more deferential when the
H&C decision is made overseas rather than inland. It is unclear how the
Court could apply a greater or lesser degree of deference depending on where
the decision was made when the test developed by the Supreme Court for the
standard of review is whether the reasons provided can stand up to a somewhat
probing examination. Presumably that standard applies equally to decisions made
in Canada and abroad. That is not to say, however, that the circumstances in which
H&C decisions are made abroad will not vary according to local conditions.
What may be expected of an Immigration Officer in Canada may not
be reasonable at a foreign post.
Did the officer fail to be
attentive or sensitive to the best interests of the children?
[20]
The applicants submit that the
officer’s assessment of the twins’ best interests was pro forma, and
that she conducted the interview in such a manner as to build a case for
rejection rather than assisting the teenagers in presenting their
circumstances. Cited as examples were a lack of questions about their feelings
about being separated from their parents and the failure of the officer to ask
more than one question of each girl about Canada before deciding that they had little knowledge of
conditions in this country. In the applicants’ view, the officer’s approach was
consistently negative, displaying a desire to reject the girls rather than
keeping an open and sensitive mind to their interests, as was required for the
assessment to be reasonable: Baker, above, at paragraph 75.
[21]
With regard to the lack of
documentary evidence provided, the applicants submit that the call-in notice
for the interviews gave them little indication that they would be expected to
provide documents to support their claims of a continued relationship with
their parents such as phone records or photographs. Their responses to the
officer’s questions that they spoke regularly to their parents by phone and
that the parents had visited them on several occasions should have been
sufficient in as much as there was no issue as to their credibility.
[22]
The applicants point to the
importance accorded family reunification in the statement of objectives for the
Act and to the obligation to respect the best interests of children recognized
in the international instruments to which Canada is a signatory, such as the Convention on the Rights
of the Child and the Covenant on Civil and Political Rights. They note that the
exclusion set out in paragraph 117 (9)(d) would not be compliant with
those instruments but for the fact that section 25 of the Act allows it to be
administered in a compliant manner: De Guzman v. Canada
(Minister of Citizenship and Immigration), 2005 FCA 436, [2005] F.C.J. No. 2119 at paragraph 105. While the
interests of the children may not be the sole factor to be considered in
deportation cases, in this instance, as it is the children’s application to be
reunited with their parents, family reunification should be the dominant
factor.
[23]
The
respondent’s position is that it was open to the officer, on the information
before her, to conclude that the children would not suffer undue hardship if
they remained together in India with their aunt. There was insufficient
evidence of frequent contact and communication among the applicants to
demonstrate that undue hardship would result from a refusal of their
application. There is no evidence on the record that the officer rushed to
judgment or that she was not alive and sensitive to the best interests of the
children in this case or showed negativity towards them. The onus was on the
applicants to bring forward all relevant evidence necessary to make their case
and they failed to do so.
[24]
The
Court’s analysis must start from the
point that decisions on H&C applications are discretionary, meant to
relieve disproportionate hardship: Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.), 2002 FCA 475, [2002] F.C.J. No. 1687. The onus is
on the applicant to provide the visa officer with sufficient evidence to show
that exceptional relief is warranted: Owusu, above. Moreover, it is not
for the Court to re-weigh the relevant factors in reviewing the exercise of
ministerial discretion: Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3.
[25]
Recent cases involving undeclared
children left behind by their parents include Li v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1292, [2006] F.C.J. No. 1613; Sandhu v. Canada (Minister of Citizenship
and Immigration), 2007 FC
156, [2007] F.C.J. No. 204; Yue v. Canada (Minister of Citizenship and
Immigration), 2006 FC 717, [2006] F.C.J. No. 914; and, David v. Canada
(Minister of Citizenship and Immigration), 2007 FC 546, [2007] F.C.J. No.
740.
[26]
What I derive from these decisions
is that an H&C determination will be adequate if the officer can be shown
to have considered all of the relevant factors in the circumstances of the
particular case. Whether she gave sufficient weight to each factor is not for
the Court to determine. On that basis, the officers’ decisions in Li, Sandhu
and Yue were upheld. In David, the officer had failed to provide
adequate reasons disclosing findings of fact on the relevant H&C
considerations.
[27]
In
this case, the officer’s CAIPS notes provide an adequate record of the
interviews conducted and her reasons for concluding that there were
insufficient H&C considerations to grant an exemption from the requirements
of the Act. I do not agree with the applicants that the record of the
interviews suggests that the officer approached her task in a negative manner
seeking to reject the applications. The record indicates that she conducted the
interviews in a professional manner. In her reasons, the officer noted the
misrepresentations by the parents but went on to consider the nature of the
girls’ relationships with their parents and their aunt and their lives in India based on the
evidence before her. I cannot conclude that she failed to consider all of the
relevant factors.
[28]
The
officer did not need to conduct a detailed analysis of the girls’ emotional
response to the separation from their parents. It could be presumed that they
would want to be reunited with their parents in Canada. What was
primarily at issue, however, was whether they were suffering undue hardship by
reason of the separation and their lives in India. The
applicants failed to provide sufficient evidence of that hardship and cannot
now complain that the officer did not delve deeply enough to fill the void left
by that failure.
Did the
officer ignore evidence or take irrelevant factors into considerations?
[29]
The applicants submit that the
officer ignored the evidence provided during the interviews about the frequency
and purpose of the parents’ visits to India and gave disproportionate weight to the parents’ misrepresentations.
[30]
As noted previously, no
documentary evidence was submitted to the officer to demonstrate a continuing
close relationship between the girls and their parents. In their interviews,
the girls spoke of regular contacts by telephone and periodic visits but no
phone or other records were offered to corroborate. The applicants submit that
they had been led to believe that all that would be required were their birth
certificates to establish the relationship. But that does not appear to be
supported by the interview call-in letters or an email sent to their Canadian
consultants. These made it clear they were to bring with them “proof of
communication with sponsor”. The officer did not err in concluding that
insufficient evidence had been provided.
[31]
The applicants acknowledge that
misrepresentation is a relevant factor to be considered under the public policy
rubric in section 25, but argue that the parents’ actions should not be held
against the twins. Furthermore, they contend that the fact that the Minister
and officials chose to take no enforcement action against the parents is also
relevant.
[32]
The
parents’ misrepresentations engage public policy considerations involving the
integrity of the immigration system. Children
who were not declared or examined have been expressly excluded from membership
in the family class by paragraph 117(9)(d) of the Immigration and
Refugee Protection Regulations, SOR/2002-227. As stated by my colleague Justice Michel Shore in Za’rour above at paragraph 22, while
misrepresentation does not preclude a positive finding in a subsequent H&C
application, the regulation would be rendered meaningless if all such
applications were given special dispensation and approved because of family
separation and hardship. Whether enforcement action is taken or not is
immaterial, in my view, absent evidence as to the exercise of ministerial
discretion.
[33]
While it is true that in this
instance the twins did not make the misrepresentations which precluded their inclusion
in the family class, the fact that they were made by their parents remained relevant
to the determination of their applications. The officer did not err in
considering this in the context of all of the evidence before her.
Did
the officer make patently unreasonable findings of fact?
[34]
The
applicants’ argument under this heading relates to the officer’s findings that
the twins had little knowledge about Canada and that their parents
had not properly prepared for their arrival. The officer based the first
finding on the girls’ short answers to specific questions, and did not ask
follow up questions to determine what else they knew. Similarly, in response to
questions about their parents’ plans for them, the twins indicated only that
they were going to be put in school.
[35]
On the evidence before
her, the officer reasonably concluded
that she would have expected more effort on the part of the adult applicants to
inform the children more fully about Canada. I agree with the applicants that it is unlikely that
the parents would have had any well-defined plans for the twins other than to
put them in school but that is not an error significant enough to vacate the
officer’s conclusions and return the matter for reconsideration.
CONCLUSION:
[36]
Considering
the issues raised by the applicants, I must conclude that the officer’s
decision, overall, was reasonable based on the material submitted to her.
[37]
The
parties shall have seven days from the date of issuance of these reasons to
submit any questions which they wish the Court to consider for certification,
with copies to the opposing party, and three days thereafter to reply before
judgment is issued.
“Richard G. Mosley”
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