Date: 20130219
Docket: IMM-6035-12
Citation:
2013 FC 170
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, February 19, 2013
PRESENT: The Honourable Mr.
Justice Boivin
BETWEEN:
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BERNADETTE DELARY PIARD
AUGERSON BERTHOLLET JOSEPH
LISBIRD SOPHONIE BERRY JOSEPH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application for judicial review is brought under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], and concerns a
decision of an immigration officer [the officer] dated May 28, 2012. In
that decision, the officer denied the application for permanent residence on
humanitarian and compassionate [H&C] grounds that the applicants had filed
under subsection 25(1) of the Act.
Factual background
[2]
Bernadette
Delary Piard (the applicant) is a Haitian citizen. Augerson Berthollet Joseph and
Lisbird Sophonie Berry Joseph (the minor applicants), also Haitian citizens, are
the applicant’s minor children and are also parties to this application for
judicial review. They are 15 and 11 years old, respectively. The Court will use
“the applicants” to designate both the applicant and her children, the minor
applicants.
[3]
When
they lived in Haiti, the applicant studied at the Institut Supérieur des Hautes
Études Paramédicales de la Caraïbe (Applicants’ Record, page 105), while her husband,
who is not a party to these proceedings, worked as a refrigeration and air
conditioning technician at the Canadian Embassy in Port-au-Prince (Applicants’
Record, Applicant’s Affidavit, page 12). Following the earthquake that ravaged
Haiti on January 12, 2010, the applicants left their country, entering
Canada on February 3, 2010 (Applicants’ Record, page 7). The three
(3) applicants were issued a temporary residence permit on the same day under
the Haiti Special Measures. This permit was renewed on February 2, 2011, and
again on May 18, 2012 (Tribunal Record, page 3). It will expire on
May 18, 2013 (Tribunal Record, page 2).
[4]
According
to the applicant, they would never have left Haiti had it not been for the
earthquake. The applicant’s husband initially remained in Haiti to assess
whether the situation was going to improve, in the hope of an eventual return.
He sent money to the applicants in Canada to help them meet their needs. The
applicant also states that she has worked since arriving in Canada in order to
meet her family’s needs, first working as a housekeeper in a hotel from March
to May 2010, and then as a personal care attendant from July 2010 to the
present (Applicants’ Record, page 40).
[5]
Wishing
to regularize their immigration status in Canada, the applicants filed an
application for permanent residence on H&C grounds on February 9, 2011
(Applicants’ Record, page 42). Seeing no signs of improvement in the
situation in Haiti anytime soon, the applicant’s husband arrived in Canada in
November 2011 and made a claim for refugee protection.
[6]
On
May 28, 2012, the immigration officer in charge of the file denied their
application for permanent residence on H&C grounds.
Impugned decision
[7]
The
officer considered their establishment, the country-of-origin information and
the best interests of the children before concluding that the applicants would
not face unusual and undeserved or disproportionate hardship if required to
apply for permanent residence from outside Canada, as prescribed by the Act.
[8]
The
officer concluded that the applicants had failed to establish that they would
face unusual and undeserved or disproportionate hardship if required to apply
for permanent residence from outside Canada, as prescribed by the Act. The
officer therefore denied their exemption request brought under subsection 25(1)
of the Act.
Issues
[9]
This
case raises the following issue: was the officer’s decision reasonable?
Statutory provisions
[10]
The
Act authorizes the Minister to waive any applicable criteria or obligations of
the Act on the basis of humanitarian and compassionate considerations,
including the requirement to apply for permanent residence before entering
Canada. This is the requirement from which the applicants are seeking an
exemption. It is important to note the wording of section 25, which
requires that the best interests of any children be taken into account. The
statutory provisions relevant to this application for judicial review are the
following:
PART 1
IMMIGRATION TO CANADA
Division 1
Requirements Before
Entering Canada and Selection
Requirements Before Entering Canada
Application
before entering Canada
11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
. . .
Division 3
Entering and Remaining in
Canada
. . .
Humanitarian
and compassionate considerations – request of foreign national
25. (1) Subject to subsection (1.2), the
Minister must, on request of a foreign national in Canada who applies for
permanent resident status and who is inadmissible or does not meet the
requirements of this Act, and may, on request of a foreign national outside
Canada who applies for a permanent resident visa, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly
affected.
. . .
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PARTIE 1
IMMIGRATION AU CANADA
Section 1
Formalités préalables à
l'entrée et sélection
Formalités préalables à l’entrée
Visa et
documents
11. (1) L’étranger doit, préalablement à
son entrée au Canada, demander à l’agent les visa et autres documents requis
par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
[…]
Section 3
Entrée et séjour au Canada
[…]
Séjour pour
motif d’ordre humanitaire à la demande de l’étranger
25. (1) Sous réserve du paragraphe (1.2),
le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande
le statut de résident permanent et qui soit est interdit de territoire, soit
ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada qui demande un visa de résident permanent, étudier le
cas de cet étranger; il peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
[…]
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Standard of review
[11]
The
Court is of the view that this case is reviewable on a standard of
reasonableness. It involves questions of mixed fact and law, regarding which
the Court must show deference to the officer. As a general rule, decisions of
officers examining applications for permanent residence on H&C grounds are reviewable
on a standard of reasonableness (Mudiyansele v Canada (Minister of
Citizenship and Immigration), 2012 FC 928 at paras 9-11, [2012] FCJ no 1061
(QL); Walker v Canada (Minister of Citizenship and Immigration), 2012 FC
447 at paras 31-32, [2012] FCJ no 479 (QL) [Walker]; Kisana v
Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18,
[2010] 1 FCR 360). The Court must therefore limit its review to “the existence
of justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v
Nouveau-Brunswick, 2008 CSC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
Analysis
[12]
The
applicants submit that the officer’s decision is unreasonable. They state that
no negative factors were raised with respect to their establishment and that
the officer had considered their submissions on establishment, country-of-origin
conditions and the best interests of the children in a vacuum.
[13]
First,
the Court notes that the exemption provided under subsection 25(1) is an
extraordinary and discretionary measure, and that the onus is on the applicants
to demonstrate that, in the circumstances, they would face unusual and
undeserved or disproportionate hardship if they were to return to Haiti (Adams
v Canada (Minister of Citizenship and Immigration), 2009 FC 1193 at paras
29-31 and 34, [2009] FCJ no 1489 (QL)). Moreover, in this context, deference is
required.
[14]
In
this case, the only evidence provided by the applicants relates to the
conditions in Haiti, as well as certain documents concerning the establishment of
the applicant (employment and involvement with her church) and minor applicants
(school activities) in Canada.
[15]
The
Court finds that it was reasonable for the officer to conclude that
establishment, one factor among others, was insufficient in this case to
justify granting the exemption. It was open to the officer to conclude that a
relatively short establishment period of two (2) years, combined with a few
expected establishment elements (employment and school attendance), does not
suffice to establish unusual and undeserved or disproportionate hardship in the
event that the applicants are required to apply for permanent residence from
outside of Canada.
[16]
The
applicants are asking this Court to give more weight to some evidence. However,
a long line of case law has established that it is not for this Court to
reweigh the evidence in the context of a judicial review. In this case, the
Court is of the view that the officer ignored neither the evidence nor the
arguments raised by the applicants.
[17]
With
respect to the conditions in Haiti, the applicants insisted on the need to
conduct a purely objective evaluation of hardship, citing this Court’s decision
in Damte v Canada (Minister of Citizenship and Immigration), 2011 FC
1212, 5 Imm LR (4th) 175 [Damte]. The Court notes that the comments on
which the applicants rely, found at paragraph 33
of Damte, above, were made in obiter and were not the basis of
the Court’s decision. The Court also notes that the original English version of
this passage states that “unusual hardship might only require an objective analysis” (Damte,
above, at para 33). [Emphasis added.]
[18]
It
does not follow that such an analysis must be conducted in a vacuum without
regard for the applicants’ personal circumstances, as the applicants seem to be
suggesting. In this regard, the Court notes the comments of Justice Shore in
Lalane v Canada (Minister of Citizenship and Immigration), 2009 FC 6 at
paras 38, 39 and 42, 338 FTR 224 [Lalane]:
[38] The allegation of risks made in an H&C application must relate to
a particular risk that is personal to the applicant. The applicant has the
burden of establishing a link between that evidence and his personal situation.
Otherwise, every H&C application made by a national of a country with
problems would have to be assessed positively, regardless of the
individual’s personal situation, and this is not the aim and objective of an
H&C application. That conclusion would be an error in the exercise of
the discretion provided for in section 25 of the IRPA which is delegated to, inter
alia, the PRRA officer by the Minister . . . .
[39] Moreover, . . . a temporary stay will be imposed
where return to a specific country or place presents a generalized risk that
the Minister of Public Safety and Emergency Preparedness considers dangerous
and unsafe to the entire general civilian population of that country or place. Individualized
risk is different from generalized risk and is assessed during IRB, H&C
and PRRA assessments . . . .
. . .
[42] The question is not when or to where the applicant will be removed. The
issue here is whether applying for a visa from outside Canada would cause
the applicant unusual and undeserved or disproportionate hardship. The
applicant has the burden of proving the particular facts of his personal
situation, which mean that applying for a visa from outside Canada would
cause him unusual and undeserved or disproportionate hardship. . . .
[Emphasis added.]
[19]
Therefore,
individuals seeking an exemption from a requirement of the Act may not simply
present the general situation prevailing in their country of origin, but must
also demonstrate how this would lead to unusual and undeserved or
disproportionate hardship for them personally. With respect to the issue of the
temporary stay of removals in effect for Haiti, it was found that a moratorium
on removals does not in and of itself prevent an application made on H&C
grounds from being denied (Nkitabungi v Canada (Minister of Citizenship and Immigration),
2007 FC 331, 74 Imm LR (3d) 159).
[20]
With
respect to the issues relating to the analysis of the best interests of the
children, the Court does not find the applicants’ arguments convincing. In his
evaluation, under the heading [translation]
“Best Interests of Children”, the officer dealt with the arguments raised by
the applicants, namely, the sleep problems that have since been resolved and
the difficult circumstances in their country of origin, Haiti.
[21]
Given
the evidence filed by the applicants, a large volume of objective documentation
and very little evidence directly relating to the applicants, the Court is
satisfied that the officer reasonably assessed the issue of the best interests
of the children, the minor applicants. The applicants’ limited submissions
regarding the children are contained in three (3) paragraphs (Tribunal Record,
page 119) and were not ignored by the officer. Faced with insufficient
evidence, the Court cannot find that the officer’s decision is unreasonable.
[22]
The
Court adopts the comments of Justice Gleason in Momodu v Canada (Minister
of Citizenship and Immigration), 2012 FC 793 at para 12, [2012] FCJ no 817
(QL) :
[12] It is trite law that the burden is on an applicant in an H&C
application to file evidence to support his or her claims . . . .
In the absence of any evidence from the applicant establishing any risk to
her child, the officer's determinations cannot be said to be unreasonable.
[Emphasis added; citations omitted.]
[23]
In
light of the evidence submitted by the applicants, the Court is not satisfied
that the officer erred in law, as the applicants allege. The officer’s decision
is reasonable, and his conclusions fall within a range of possible, acceptable
outcomes (Dunsmuir, above; Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). The
intervention of this Court is unwarranted.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for judicial review be dismissed. No
question of general importance is certified.
“Richard Boivin”
Certified true translation
Francie Gow, BCL, LLB