Date: 20080729
Docket: IMM-195-08
Citation: 2008 FC 924
Ottawa,
Ontario, July 29, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MUSSARAT
HABIB
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a sponsorship appeal decision of the Immigration
Appeal Division of the Immigration and Refugee Board (the Board), pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act), dated December 19, 2007. The Board dismissed the appeal on the
grounds that there were insufficient humanitarian and compassionate (H&C)
grounds upon which an exemption from the requirements of the Act could be
granted.
ISSUES
[2]
Two
issues are raised in the present application:
a) Did the Board
apply the proper criteria in determining the existence of H&C
considerations?
b) Did the Board
err by failing to respect the appellant’s right to family life and the right to
marry whom she wishes?
[3]
The
application for judicial review shall be dismissed for the following reasons.
FACTUAL BACKGROUND
[4]
The
applicant is a Canadian citizen. She seeks to sponsor her husband in his application
for permanent residence. The applicant arrived in Canada in 1994 from
Pakistan, and became
a permanent resident following a successful refugee claim. She was married to
her first husband from December 9, 1985 until April 7, 2002. She has three
daughters and a son from her first marriage, all of whom live in Canada.
[5]
The
applicant and her current husband were acquainted in Pakistan, prior to their
respective arrivals in Canada. He arrived in Canada in November
of 1994, approximately a week after the applicant; however, his asylum claim
was refused. The applicant and her current husband got in touch with each other
in Canada in 1995, but
were not married until January 26, 2003, four years following his departure
from Canada, when the applicant travelled to Pakistan.
[6]
A
departure order was issued against the applicant’s husband on February 2, 1995,
and his refugee claim was rejected on November 5, 1996. The applicant’s husband did
not leave Canada until
January 20, 1999. While in Canada, he worked illegally and received social
assistance, which the applicant has since repaid.
[7]
The
originating decision, which was appealed to the Board, was a refusal of the
sponsored application for landing in Canada for the applicant’s
husband. A refusal letter, dated June 13, 2005, indicated that the application
was denied because the appellant’s husband was inadmissible to Canada, pursuant to
subsection 52(1) of the Act, and subsection 226(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227, (the Regulations).
|
No
return without prescribed authorization
52. (1) If a removal order has
been enforced, the foreign national shall not return to Canada, unless authorized by an
officer or in other prescribed circumstances.
Deportation
order
226. (1) For the purposes of
subsection 52(1) of the Act, and subject to subsection (2), a deportation
order obliges the foreign national to obtain a written authorization in order
to return to Canada at any time after the deportation order was enforced.
|
Interdiction
de retour
52. (1) L’exécution de la
mesure de renvoi emporte interdiction de revenir au Canada, sauf autorisation
de l’agent ou dans les autres cas prévus par règlement.
Mesure
d’expulsion
226.
(1) Pour
l’application du paragraphe 52(1) de la Loi, mais sous réserve du paragraphe
(2), la mesure d’expulsion oblige l’étranger à obtenir une autorisation
écrite pour revenir au Canada à quelque moment que ce soit après l’exécution
de la mesure.
|
[8]
The
immigration program manager examined the applicant’s husband’s request for an
authorization to return to Canada, and it was denied. The legality of this
decision was never questioned by the applicant’s husband pursuant to paragraph
67(1)(a) or (b) of the Act; rather the decision was only appealed on the basis
of H&C grounds, pursuant to paragraph 67(1)(c) of the Act.
[9]
The
Board was seized of the appeal a first time, and rendered its decision on
September 5, 2006. In this decision, the Board determined that the marriage
between the applicant and her husband was not genuine, and therefore the Board
considered that it did not have jurisdiction to examine the appeal on H&C
grounds. A first application was made for judicial review. The application was
allowed by Justice Harrington on May 16, 2007, and sent back for
redetermination by another member of the Board.
[10]
It
is this second decision by the Board which is under review in the case at bar.
DECISION UNDER REVIEW
[11]
The
Board noted that in light of the reasons of the Court in Habib v. Canada (Minister of
Citizenship and Immigration), 2007 FC 524, [2007] F.C.J. No. 702, the
benefit of the doubt would be given to the applicant and her marriage would be
considered genuine or not entered into primarily for the purpose of acquiring
any status or privilege under the Act. The Board therefore concluded that the applicant’s husband was a member
of the family class, and consequently the Board had jurisdiction to consider
the appeal on H&C grounds, pursuant to section 65 of the Act, as was
confirmed in
Canada (Minister of Citizenship and Immigration) v. Mathew, 2007 FC 685,
at paragraphs 25-27, [2007] F.C.J. No. 930.
[12]
The
Board noted a number of factors which may be considered in assessing an appeal
on H&C grounds, including the relationship of the sponsor to the person
being sponsored, the strength of that relationship, the reasons for that
relationship, the overall situation of the sponsor and person being
sponsored, family support, dependency, the best interests of the children and
the objective of the Act. The Board considered the following factors:
a) The Board
examined the strength of the relationship between the applicant and her husband
and determined that it was not very great. The Board noted that the applicant
travelled to Pakistan from January
22, 2003 until March 29, 2003. She married her husband on this trip. However,
she has not since returned. She explained that traveling to Pakistan was expensive
and she did not wish to leave her daughters in Canada. The Board
did not accept this explanation in light of the fact that she sent two of her
daughters to Pakistan from September
5, 2006 to August 22, 2007. The Board noted that she did not offer the fear of
persecution as a reason for not travelling to Pakistan.
b) The Board
considered the interdependence between the applicant, her children and her
husband. The Board noted that the applicant did not bring her daughters to Pakistan when she got
married in 2003. It was also noted that the applicant’s husband sent money to the
applicant for a period of two years, but that none was sent since the interview
was held in September of 2004. The receipt of one money transfer, dated June
13, 2003, from the husband to the applicant was submitted. The applicant
testified that she spoke with her husband frequently by telephone; however, the
only evidence of contact was four internet communications in February and March
2004. On these bases, the Board determined that the applicant did not
demonstrate the existence of emotional or financial interdependence.
c) The Board
considered the applicant’s evidence that she had refunded her husband’s debt to
the social assistance office in Quebec. The Board considered
the fact that the husband received social assistance and not working to be a
negative factor in the assessment of H&C considerations.
d) The best
interests of the children were considered. The Board found that there was
insufficient evidence to demonstrate that the applicant’s husband and her
children were in a family relationship. The absence of financial support and
letters were noted. The only evidence of a relationship was the fact that the applicant’s
daughters spent the last month of their trip in Pakistan with their
stepfather, and he visited them while they were living with their mother’s
family. The Board was not satisfied that this amounted to dependence on the
stepfather, and therefore determined that the applicant had not established
that it would be in the best interests of the children to have her husband
return to Canada. The fact that
the daughters’ father lives in Canada was also noted. The Board mentioned that
the husband has two sons and one daughter from a previous marriage living in Pakistan. He claimed he
did not know where they lived, when asked. The Board attributed little
credibility to his explanation, because a document in the file indicated an
address where the children lived with their mother.
e) The Board
considered the objectives of the Act, namely that of family reunification, and
determined that the factor could not overcome the negative factors.
f)
The
Board assessed the reason for which the applicant’s husband was refused
re-entry into Canada. The Board
noted that the applicant’s husband left Canada without
appearing before an officer at the point of entry, and without obtaining a
certificate of departure. The Board concluded that he chose to stay in Canada illegally and
did not report his departure, which was a significant breach of the Act, and
therefore a negative factor.
[13]
The
Board therefore concluded that there were insufficient H&C reasons to
warrant special relief.
RELEVANT LEGISLATION
[14]
Immigration
and Refugee Protection Act, 2001, c. 27.
|
Humanitarian
and compassionate considerations
65. In an appeal under
subsection 63(1) or (2) respecting an application based on membership in the
family class, the Immigration Appeal Division may not consider humanitarian
and compassionate considerations unless it has decided that the foreign
national is a member of the family class and that their sponsor is a sponsor
within the meaning of the regulations.
Appeal
allowed
67. (1) To allow an appeal, the
Immigration Appeal Division must be satisfied that, at the time that the
appeal is disposed of,
(a) the decision appealed is wrong in
law or fact or mixed law and fact;
(b) a principle of natural justice has
not been observed; or
(c)
other than in the case of an appeal by the Minister, taking into account the
best interests of a child directly affected by the decision, sufficient
humanitarian and compassionate considerations warrant special relief in light
of all the circumstances of the case.
|
Motifs
d’ordre humanitaires
65.
Dans le cas
de l’appel visé aux paragraphes 63(1) ou (2) d’une décision portant sur une
demande au titre du regroupement familial, les motifs d’ordre humanitaire ne
peuvent être pris en considération que s’il a été statué que l’étranger fait
bien partie de cette catégorie et que le répondant a bien la qualité
réglementaire.
Fondement
de l’appel
67. (1) Il est fait droit à
l’appel sur preuve qu’au moment où il en est disposé :
a) la décision attaquée est erronée en
droit, en fait ou en droit et en fait;
b) il y a eu manquement à un principe
de justice naturelle;
c)
sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
|
ANALYSIS
Standard of Review
[15]
It
was held in Mathew, above, at paragraphs 22 and 23, that applying the wrong
test or ignoring a relevant factor in the exercise of discretion constitutes an
error reviewable on the standard of correctness. However, determinations of
fact or findings of credibility are reviewed according to the standard of
reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9). For a
decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, above at paragraph 47).
Did the Board apply the
proper criteria in determining the existence of H&C considerations?
[16]
The
applicant argues that the Board did not properly assess the H&C factors. Specifically,
she argues that the Board did not take into account the fact that the marriage
is genuine. The applicant essentially submits that this Court made a determinative
finding that the marriage between her and her current husband is genuine in the
previous application for judicial review, and that the Board erred by examining
factors such as the strength of the marriage and interdependence in the H&C
analysis. She takes the position that once the marriage is determined to be
genuine, the existence of interdependence is established.
[17]
In
making this argument, the applicant misreads the findings of the Court in Habib,
above, and Mathew, above. First, it must be noted that the Board did
not ignore the genuineness of the marriage; this was explicitly accepted at the
outset of the decision. The Board accepted the genuine character of the
marriage, and gave the applicant the benefit of the doubt in light of the
decision in Habib, above. However, in this decision, Justice Harrington did
not confirm the genuineness of the marriage, as the applicant alleges. The
Court found that the Board erred in its assessment of the character of the
marriage. Upon redetermination, it would have still been open to the Board to
conclude that the marriage was not genuine, provided that the error identified
by the Court was not repeated. Instead, the Board chose to accept the
genuineness of the marriage and conduct an analysis of the H&C factors.
[18]
In
doing so, the Board considered certain factors that overlap in part with
factors that inform the characterization of the marriage. It is clear from the
Court’s decision in Mathew, above, at paragraph 27, that such an overlap
is permitted:
[27] In coming to this conclusion I
do not say that elements of a genuine marriage cannot inform H&C factors;
it is evident they can. On the other hand, factors leading to the genuineness
of a marriage cannot be a complete substitute for relevant H&C factors justifying
an override of an otherwise valid visa officer's decision which is a different
purpose than the factors which test whether the marriage is genuine or not.
Support for this conclusion is that, in the Departmental Guidelines, the
factors for allowing an appeal on H&C considerations on a sponsorship
appeal are different than those which are used to test a genuine marriage.
Something more is required and that something more is not present here.
[19]
This
very paragraph is quoted by the applicant in her submissions. However, it is my
opinion that the Board’s consideration of factors such as interdependence and
the strength of the relationship fall squarely within what is permitted by Mathew.
It is noteworthy that the Board also considered the best interests of the
children, the objectives of the Act, and the applicant’s husband’s past history
of reliance on social assistance, and the reason for which his re-entry was
refused. These considerations clearly constitute “something more” than the
factors used to assess the genuineness of the marriage.
[20]
The
applicant alleges that cultural differences were not taken into account by the
Board in its decision. However, the applicant makes no specific allegations,
nor does she point to any evidence of differing cultural norms which might have
an impact on the outcome of the decision. I agree with the respondent that the
Board’s findings with respect to the quality of the relationship between the applicant
and her husband do not display a lack of cultural sensitivity. These findings
were open to the Board and fall within an acceptable range of outcomes
defensible in regard of the facts and law.
[21]
The
applicant asserts that the Board improperly assessed the best interests of the
children. The applicant submits that no importance was given to the fact that
the applicant’s children spent time with their stepfather in Pakistan, or the
testimony that they have a good relationship. The applicant essentially
requests that the Court reweigh the evidence that was presented to the Board,
and substitute the finding with one which she would prefer. It is not the role
of the Court to reweigh the evidence. Deference to the Board’s decision is
required with regard to findings of fact, and the Board’s finding with respect
to the best interests of the children is reasonable. It was open to the Board
to conclude that there was a lack of probative evidence demonstrating that the applicant’s
children would benefit from the physical presence of their stepfather.
Did
the Board err by failing to respect the appellant’s right to family life and
the right to marry whom she wishes?
[22]
The
applicant submits that her right to family life and right to marry whom she
wishes were not respected because the Board failed to give sufficient
importance to these fundamental rights. The applicant cites Article 16 of the Universal
Declaration of Human Rights, Article 23 of the International Covenant on
Civil and Political Rights and Article 6 of the American Declaration of
Rights and Duties of Man.
[23]
It
is clear from the facts of this case that the Board has not interfered with the
applicant’s right to marry whom she wishes. It is a fundamental principle of
the Canadian immigration system that there is no absolute right to immigrate. The
Board is not bound to render a decision favourable to the applicant simply
because a marriage is found to be genuine.
[24]
The
applicant submits that the Board did not give sufficient importance to her
marriage and the object of family reunification. The applicant again asks the
Court to interfere with the decision of the Board because of the weight
attributed to the evidence. The Board clearly considered that the object of the
Act was family reunification, but found that the negative H&C factors
outweighed the positive ones. This conclusion was justified, intelligible and
transparent based on the evidence.
[25]
The
applicant proposed the following question for certification:
Is there a legal presumption that a valid
marriage in good faith is generally sufficient to establish the existence of
humanitarian reasons and that any decision on a marriage sponsorship must
respect Canada's international obligations under the International Covenant for
Civil and Political Rights.
[25] The respondent opposed such a
question. The Court is of the opinion that this question is not determinative
in the case at bar.
JUDGMENT
THIS COURT ORDERS
that the application for judicial review is
dismissed. No question is certified.
“Michel
Beaudry”
Email this Content