Date: 20081003
Docket: IMM-4985-07
Citation: 2008 FC 1118
Ottawa, Ontario, October 3,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
YUN HEE LEE,
CHU JA PARK, and
JAE YANG LEE,
JAE BOK LEE, and
JAE PIL LEE,
by their litigation guardian,
YUN HEE LEE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicants are a family of South Korean citizens, who received a
negative decision in relation to their application for permanent residence in Canada
based on humanitarian and compassionate grounds. The applicants assert that
this decision was unreasonable, in that the officer failed to properly consider
the evidence regarding the family’s establishment in Canada. The H&C officer
further erred, the applicants say, in failing to adequately assess the best
interests of the family’s three children.
[2]
For the reasons that follow, I am not persuaded that the officer erred
as alleged. As a consequence, the application for judicial review will be
dismissed.
Background
[3]
The applicants are failed refugee claimants, who have already had one
application for an H&C exemption refused. The negative decision in
relation to the applicants’ first H&C application was upheld by Justice
Shore, who concluded that nothing in the applicants’ situation suggested that
it fit within the special category of cases in which a positive decision might
be made. In Justice Shore’s view, the applicants were simply would-be
immigrants whose H&C application was based on the existence of minor
children and the fact that they had been in Canada for a few years: see Lee
v. Canada (Minister of Citizenship and Immigration) 2008 FC 368, at para.
16.
[4]
The applicants’ second H&C application is based upon essentially the
same factors as their first: namely, their establishment in Canada, and the
best interests of the minor children. According to the applicants’ counsel,
the second H&C application was filed in order to correct the record, and to
address gaps in the evidence provided in connection with the first H&C
application. However, much of the material filed by the applicants in support
of their second H&C application is the same material as was filed in
connection with their first such application, although some additional
information was provided to the officer with the second application.
[5]
At the time that the decision under review was rendered, Mr. Lee had
been in Canada for some five and a half years. The rest of the family had been
in this country for four years. One child was almost 15, and the other
children were 12-year-old twins.
[6]
With respect to the issue of establishment, the applicants submit that
Mr. Lee’s home renovation business benefits not just the applicants, but also
its employee, clients, subcontractors and potential investors.
[7]
Mr. Lee has evidently been very involved with his church, and intends to
use his expertise in construction to assist the church with a building project,
for the benefit of all of the members of the congregation.
[8]
According to the applicants, the construction industry in South Korea is
very competitive, and Mr. Lee would not be able to generate the same level of
income for his family as he does in Canada.
[9]
As relates specifically to the best interests of the children, the applicants
assert that it would be very difficult for the children to re-adapt to the
highly competitive Korean school system. Moreover, the applicants say that the
children’s Korean language skills are limited, and that they would be
particularly vulnerable to bullying, which is allegedly a serious problem in
the South Korean school system.
Analysis
[10]
It is common ground that a discretionary decision such as that in
issue here is to be reviewed against the standard of reasonableness. That is, the Court must consider the justification, transparency and
intelligibility of the decision-making process, and whether the decision falls
within a range of possible acceptable outcomes which are defensible in light of
the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47.
[11]
In assessing an H&C application, section 25 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27, requires that the personal circumstances of applicants be considered in
determining whether they will experience unusual, undeserved or
disproportionate hardship if required to apply for landing from outside Canada.
[12]
However, in order to justify the positive exercise
of discretion, the hardship should be something other than that which is
inherent in leaving the life that applicants have established for themselves in
Canada: see Irimie v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1906, and Ahmad v. Canada (Minister of Citizenship and Immigration),
2008 FC 646, at para. 49.
[13]
Insofar as the issue of establishment is concerned,
the applicants argue that the H&C officer’s decision in this case is
unreasonable, as the officer failed to carry out any meaningful evaluation of
the establishment factors. Instead, the applicants say that the officer chose
to assign no weight whatsoever to the evidence of the applicants’ establishment
in Canada.
[14]
A review of the officer’s decision discloses that
this is not what the officer did. What the officer actually said was that no
weight would be given to the fact that the applicants had been in Canada for several years. The officer explained
that all of the time spent by the applicants in Canada was taken up with
pursuing the various avenues that the applicants have followed in trying to
gain status in Canada.
[15]
The officer explicitly recognized, however, that
the applicants had formed ties and a measure of establishment during this
period. At the same time, the officer also noted that the family had lived in Korea, spoke the language and had familial ties
in that country. The officer therefore concluded that the length of the
applicants’ time in Canada, by
itself, was not such that they would experience unusual, undeserved or
disproportionate hardship if they were to return to Korea.
[16]
The officer then went on to specifically address
the establishment factors identified by the applicants in relation to the issue
of hardship. These included the establishment of Mr. Lee’s business, and the
employment that the business provided to a Canadian citizen.
[17]
In addressing these factors, the officer was not
satisfied that the employee in question would not be able to obtain employment
elsewhere. While it is true that the employee did provide a letter expressing
the concern that he might have difficulties finding other employment due to his
age, this evidence had to be considered in light of the applicants’ own
evidence as to the serious shortage of workers in the construction trades in
Canada. In the circumstances, the officer’s conclusion on this point was one
that was reasonably available on the record.
[18]
Insofar as the damage to investors in Mr.Lee’s
business was concerned, the officer noted that the letters provided by the
applicants in this regard were nothing more than expressions of interest by
potential investors, who would presumably be able to invest their money
elsewhere.
[19]
The officer also addressed the applicants’
submission as to the competitiveness of the construction business in Korea, and the fact that Mr. Lee had been out of
the country for five years, concluding that this was an insufficient basis for
finding unusual, undeserved or disproportionate hardship.
[20]
In this regard, the officer noted that Mr. Lee had
chosen to give up his business and leave Korea. Given that he had been employed in the construction industry prior
to leaving Korea, the officer was not persuaded that Mr. Lee would be unable to
become re-employed if he were to return to Korea. Once again, these are conclusions that were reasonably open to the
officer on the evidence.
[21]
It is true that the officer did not address the
consequences that Mr. Lee’s departure would have for his church. This is,
however, a relatively minor establishment factor, especially in light of the
fact that there is no suggestion by church officials that it could not obtain
construction expertise elsewhere. In my view, the failure of the officer to
specifically address this factor does not, by itself, provide a sufficient
basis upon which to set aside the officer’s decision.
[22]
Insofar as the best interests of the children are
concerned, the applicants submit that the officer was not sufficiently alert,
alive and sensitive to the children’s needs. According to the applicants, the
best interests of the children are served by having them remain in Canada, where they have settled into the Canadian
school system.
[23]
The best interests of children involved in an
H&C application are a factor that must be examined and weighed by the
officer. While it is an important factor, it is not, however, determinative:
see, for example, Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125.
[24]
Indeed, in most cases, the interests of the
children will be best served by them remaining in Canada: see Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, at para. 6.
[25]
In this case, the applicants say that it would be
difficult for the children to reintegrate into the Korean school system
because, even though the children can speak, read and write in the Korean
language, their academic Korean language skills have not progressed. The
applicants also submit that because the Korean school system is very different
to the Canadian system, it would be difficult for the children to adjust.
[26]
Moreover, the applicants say that the children
would be particularly vulnerable to the intense peer pressure and ostracism
that is prevalent in Korean schools. Finally, the applicants say that the
children would suffer the loss of the family’s financial stability if they were
returned to Korea.
[27]
Each of these factors was addressed in the
officer’s analysis. The officer was clearly well aware of the competitive
environment in Korean schools, observing that no educational system is
perfect. The officer also pointed out, however, that enrollment rates are very
high in Korean schools, that a high percentage of children complete high
school, and opportunities exist in that country for young people to pursue
university studies.
[28]
The officer also addressed the applicants’
submission that the children had become accustomed to the Canadian school
system, observing that they would nevertheless have the support of their
parents as they make the transition back to the country of their birth. As the
officer noted, this would be the same support that assisted the children in
adjusting to life in Canada – a
country where they had no friends or family, and where the children did not
speak the language.
[29]
The officer further observed that the children have
previous experience with the school system in Korea, and that they also have an extended family network in that country to
help them with the adjustment.
[30]
The applicants also argued that the children would
be at risk of corporal punishment in the Korean school system, which is
evidently practiced in some, but not all Korean schools. This point was not
directly addressed in the H&C officer’s decision. However, in the absence
of evidence that the children would be forced to attend a school that actually
utilizes corporal punishment, I am not persuaded that the failure of the
officer to specifically address this point has the effect of rendering the
decision unreasonable.
[31]
As was noted earlier, while some additional
evidence regarding the best interests of the children was adduced before the
H&C officer in this case, essentially the same arguments were advanced by
the applicants as had been put forward in the context of their first H&C
application.
[32]
As Justice Shore
observed at paragraph 49 of his decision dismissing the application for
judicial review of the first H&C decision, allegations regarding the
difficulties that children may encounter in adjusting to a new school system
can be advanced in virtually any case where children are returning to their
homeland.
[33]
In this case, the officer was aware of the arguments being advanced by
the applicants in relation to the best interests of the children. These
arguments were considered, and reasons were provided for the officer’s
conclusion that these considerations did not justify a favourable decision.
Conclusion
[34]
Having regard to the exceptional nature of positive H&C decisions, and
despite the very able submissions of their counsel, the applicants have not
persuaded me that the officer’s decision in this case falls outside of the range of possible acceptable outcomes which are defensible in light of the
facts and the law. As a consequence, the application for judicial review
is dismissed.
Questions for Certification
[35]
The applicants propose two questions for certification. The first is
“whether establishment which is done without status can be considered in an
H&C assessment”. Given that the H&C officer clearly considered the
establishment factors put forward by the applicants, the question does not
arise in this case.
[36]
The second question proposed for certification by the applicants is
“whether it is appropriate for an officer to speculate about the availability
of future opportunities to return to Canada in assessing the best interests of
children”. In my view, this is not an appropriate question for certification
for two reasons.
[37]
First of all, the officer specifically stated that no consideration was
being given to this possibility, as the availability of a student visa was a
matter that would have to be determined down the road by a visa officer.
Secondly, to the extent that the matter was addressed at all in the officer’s
analysis, the officer simply observed that while it may be difficult for the
children to obtain such a visa in the future, it was nevertheless an option
that was potentially available to the applicants. This is a statement of fact,
and not a matter of speculation.
[38]
As a consequence, I decline to certify either of the proposed questions.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general importance is certified.
“Anne
Mactavish”
Email this Content