Date:
20130124
Docket:
IMM-3484-12
Citation:
2013 FC 66
Ottawa, Ontario,
January 24, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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FELIX LEONARDO HERDOIZA
MANCHENO
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY
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Respondents
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], s 72(1), of a reconsideration
decision maintaining a refusal of an exemption from having to apply for
permanent residence from outside Canada for humanitarian and compassionate [H&C]
reasons.
I. Background
[2]
The
applicant, Leo Herdoiza, was born in 1963 in Ecuador. He worked as a welder until
1999 and had four daughters, all over the age of 18 at the date of the
underlying H&C application by the applicant and at the date of
reconsideration. He and his wife Patricia Pinta separated after 14 years of
marriage, in about 1997. He opened a restaurant in July 1999, then moved to
the U.S. in March 2000 and lived there without status. In 2002 he received
notice that his wife had started divorce proceedings. She then married a
Canadian citizen and moved with him to Canada in November 2005. After two
years, this second marriage ended. Mr. Herdoiza then decided to reunite with
his family; and the two ex-spouses decided to cohabit and co-parent their
children, and subsequently, a grandchild. In 2008, Mr. Herdoiza submitted an
H&C application.
[3]
For
the last six years, Mr. Herdoiza has worked in construction, gardening, and
cleaning jobs for under-the-table cash and has helped to support the family,
who are all now Canadian citizens, except him. His evidence is that he contributed
$20,000 to buying the current family house in Toronto, however there is no
corroborative evidence in support of this fact. He is a primary care-giver for
his infant granddaughter. None of the daughters are, or were, at any relevant
time in respect of this matter, children under the age of 18, nor were they
able to financially support sponsorship for their father for residency in Canada.
[4]
The
applicant’s ex-wife and daughters have all provided letters of support. They
all say that Mr. Herdoiza went to the U.S. to earn money to support them, he is
important to their emotional support and he acts as a father figure to his
granddaughter. The applicant stated in a letter dated November 18, 2008
regarding the H&C application for permanent residence that: “THIS IS
NOT/NOT a case of divorce/re-marriage/sponsorship/divorce and reconciliation of
first husband for the purpose of Canadian immigration.”
[5]
Within
days after Mr. Herdoiza received the negative H&C decision of October 27,
2011, CIC stopped accepting sponsorship applications for parents. The pause began
on November 5, 2011 and is planned to last up to two years. The applicant’s
counsel therefore asked for reconsideration of the H&C decision. On March
21, 2012, the Officer notified Mr. Herdoiza that her initial decision to refuse
the H&C application remained unchanged.
[6]
While
the respondent argues the only decision before the Court should concern the
reconsideration of the applicant’s H&C application dated March 21, 2012 and
not the underlying October 27, 2011 decision refusing the applicant’s H&C
application, it is worthwhile to note the October 2011 reasons for the
decision. The Officer noted that the applicant was seeking permanent residence
based on establishment, family ties to Canada, and best interests of the
child. She acknowledged that he said he had been in Canada for 5 ½ years, had
contributed $20,000 to the purchase of a family home, and was co-parenting his
children with his ex-wife, as well as caring for his granddaughter.
[7]
In
refusing the applicant’s H&C application, the Officer observed: 1) he
provided no documentation to show that he had worked for cash; 2) he provided
insufficient evidence to prove that he contributed to buying the family house;
3) he provided little evidence of community involvement or volunteer activity;
4) he provided little evidence of his relationship with his granddaughter; 5) although
the other daughters were old enough to submit family class sponsorship
applications, they had not done so; 6) the family's letters of support were
very subjective and the Officer gave them little weight. The Officer concluded any
hardship from the separation of the applicant and his family members would not
be unusual, undeserved, or disproportionate even though the Officer was
satisfied that he had close ties to his family.
[8]
On
reconsideration, the Officer’s March 21, 2012 letter indicated that the H&C
application was considered on its substantive merits and that the refusal was
maintained. The Officer held that while the temporary pause in accepting new
sponsorship applications for parents was not in place when she made the initial
H&C decision, it is at any rate temporary and does not preclude submitting
an application in the future, once the pause is lifted. She also found that the
applicant can apply for a two-year “Super Visa” as an option in the interim.
II. Issues
[9]
The
applicant raises two issues in the present application:
A.
Did
the Officer err in law in her reconsideration decision by failing to address
the issue of hardship raised by the request for reconsideration and by drawing
factual conclusions unsupported by the evidence?
B.
Did
the Officer err by dismissing the interests of the children and undue hardship
with respect to the applicant’s separation from his four Canadian daughters,
giving little weight to the evidence before her, and particularly in failing to
consider the best interests of the applicant’s infant granddaughter?
III. Standard
of review
[10]
The
standard of review in respect of these issues is reasonableness. In Fernandez
v Canada (Minister of Citizenship and Immigration), 2012 FC 1131 at paras
40, 42, Justice John A. O’Keefe stated:
40 Where previous jurisprudence has determined
the standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[. . .]
42 In reviewing the officer's decision on the
reasonableness standard, the Court should not intervene unless the officer came
to a conclusion that is not transparent, justifiable and intelligible and
within the range of acceptable outcomes based on the evidence before it (see Dunsmuir
above, at paragraph 47; and Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 59). It is not up to a reviewing
Court to substitute its own view of a preferable outcome, nor is it the
function of the reviewing Court to reweigh the evidence (see Khosa
above, at paragraphs 59 and 61).
Further, in Bhattal v Canada (Minister of Citizenship and Immigration), 2012 FC 989 at para 3, considering
the standard of review in H&C cases, Justice Luc Martineau held that:
3 The determination made by the officer as to
whether H&C considerations exist is essentially factual. Since Dunsmuir v
New Brunswick, 2008 SCC 9 [Dunsmuir], the appropriate standard of review
for such a decision as a whole has consistently been held to be that of
reasonableness, while the standard of correctness applies to issues of
procedural fairness. Considerable deference should be accorded (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 62) to the
officer's findings and the Court should refrain from re-evaluating the weight
given to the different factors considered by the officer, including the best
interests of any child directly affected (Legault v Canada (Minister of
Citizenship and Immigration) 2002 FCA 125 at para 11).
IV. Analysis
A. Did
the Officer err in her reconsideration decision?
[11]
The
applicant argues that when the Officer maintained the H&C refusal by
dismissing the suspension of parental sponsorships as a factor, she missed the
point of the request for reconsideration. The application had been refused on
the basis that no hardship would be suffered by the applicant in applying from
outside the country. However, the situation was that the applicant would not
be able to apply at all for an indefinite time, possibly up to two years or
even more.
[12]
The
Officer also suggested the “Super Visa” application process as an alternative, but
the applicant submits that he was ineligible for this, as he had clearly
indicated his intention to immigrate, not just visit. While I accept the
applicant’s long term goal of permanent residency, I also accept this super
visa process as a possible interim option.
[13]
The
applicant also states that the Officer’s criticism that none of the daughters
had sponsored the father prior to November 4, 2011, was without any valid basis
- I agree. None of the daughters qualified on a financial basis to do so.
[14]
The
applicant argues that the Officer was obliged to consider the daughters’
interests even though they are now young adults. He submits that rejecting
their letters of support as subjective was unwarranted, and that the point of
the letters was to express their attachment to their father and the undue hardship
they would feel at being separated from him.
[15]
The
applicant relies on Naredo v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1250, 187 FTR 47 at para 20 as authority that
the relationship must not be ignored even if the children are no longer minors
(see also Baker v Canada (Minister of Citizenship and Immigration),
[1999] SCJ No 39, [1999] 2 S.C.R. 817):
20 Without going further, I conclude, against the
requirements set out in Baker, that the analysis reflected in the reasons for
the immigration officer's decision, as they relate to the interests of the
applicants' children, is entirely insufficient; and I reach this conclusion
bearing in mind the ages of the applicants' children, only one of whom was 18
or under at the date of the decision under review. Indeed, at that time, he was
very close to 19 years of age. The two sons of the applicants, whatever their
ages, remained "children" of the applicants who could reasonably be
expected to be dramatically affected by the removal from Canada of their parents.
[16]
Finally,
the applicant submits that the Officer failed to consider the evidence
concerning the applicant’s granddaughter’s best interests. She focused on his
failure to indicate how many hours per week he spent caring for this child and
why he could not maintain a long distance relationship from Ecuador. The applicant argues that the Officer ignored the evidence of a close and caring
relationship with his granddaughter towards whom he plays a parental role.
Therefore, the Officer was not really “alive, alert, or sensitive” to the
child’s best interests.
[17]
The
applicant’s counsel acknowledged that the applicant cannot challenge the
original decision, only the refusal to reconsider, but that to the extent that
the Officer’s original reasoning is carried into the refusal to reconsider, it
is subject to consideration and review.
[18]
The
respondent’s position is that the Officer’s only obligation was to consider
whether to exercise her discretion to reconsider (Kurrukal v Canada (Minister of Citizenship and Immigration), 2010 FCA 230 at para 5):
[…] While the judge correctly concluded that the
principle of functus officio does not bar a reconsideration of the
negative section 25 determination, the immigration officer's obligation, at
this stage, is to consider, taking into account all relevant circumstances,
whether to exercise the discretion to reconsider.
[19]
As
well, the respondent submits that the applicant should not be permitted to
challenge the original refusal (Medina v Canada (Minister of
Citizenship and Immigration), 2010 FC 504 at para 32):
I agree with the Minister that a decision refusing
to reopen an H&C application is a distinct decision from the actual
decision on the H&C application decision, and may thus be challenged as a
distinct decision in a judicial review proceeding. Here the Applicant only
sought leave pursuant to subsection 72(1) of the Act with respect to the May
11, 2009 decision, and leave was granted solely in regard to that decision.
Consequently, I am not called upon to undertake any judicial review of the
subsequent refusal to reopen the matter.
[20]
In
the respondent’s Further Memorandum filed on January 3, 2013, the respondent relies
on Justice Marie-Josée Bédard’s decision in Garas v Canada (Minister of
Citizenship and Immigration), 2010 FC 1247 at para 64, supporting the view
that there does not have to be some probability of the alternative route to
permanent residence succeeding in order for the Officer to properly consider
such a factor:
The applicant has not offered any authority to
suggest that, in order for an immigration officer's decision on an H&C
application to be reasonable, that officer must include an analysis of the
applicant's ultimate likelihood of not being granted permanent resident status
on a subsequent application for residence from abroad.
[21]
Further,
respondent’s counsel relies on R v Wilson, [1983] 2 S.C.R. 594 at 599, as
the basis to reject any collateral attack on the Officer’s reconsideration
decision; “an order may not be attacked collaterally and a collateral attack
may be described as an attack made in proceedings other than those whose
specific object is the reversal, variation, or nullification of the order or
judgment”.
[22]
As
well, in Mpampas v Schwartz Levitsky Feldman Inc, [2007] OJ No 3105 at
para 16 the Court stated “the responding party chose not to appeal or otherwise
challenge the decision of Registrar Nettie and it is not now open to him, indirectly,
to impugn that decision”.
[23]
In
the alternative, the respondent’s position is that, if the Court considers the
original refusal to be validly at issue, that decision was also reasonable. An
H&C decision-maker has broad discretion (Gautam v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 686 at paras 13-15, 167 FTR 124):
13 The broad discretion conferred by this
provision has not been limited by the enactment of a statutory definition of
the term "compassionate or humanitarian considerations". However, in
order to reduce inconsistencies among decision-makers and to provide assistance
for claimants when making their submissions, Immigration Canada has published
Guidelines that structure the exercise of discretion under subsection 114(2).
14 As the Guidelines themselves make clear, they
are neither legally binding, nor exhaustive of the facts that an officer may
take into account when discharging the legal obligation of considering the
entirety of a claim by reference to the statutory standard, "the existence
of compassionate or humanitarian considerations."
15 Conversely, the Guidelines do not directly
create any legal entitlement in claimants who believe that they have satisfied
them, although the rejection of a claim may be set aside as an abuse of
discretion if it is based either on a patently unreasonable interpretation or
application of an applicable provision in the Guidelines, or on a provision
that was clearly not relevant.
[24]
Moreover,
the respondent submits that the Officer did not have to consider the interests
of the applicant’s daughters as children’s interests, when they are actually
young adults (Citizenship and Immigration Canada, Operational Manual IP5;
Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds)
(webpage updated 8 February 2012) online at http://www.cic.gc.ca/english/resources/manuals/ip/ip05-eng.pdf
[IP5 Manual] at para 5.12, states that only children under 18 are considered:
5.12. Children – Best interests of a child
In an examination of the circumstances of a foreign
national under A25(1), IRPA introduces a statutory obligation to take into
account the best interests of a child who is directly affected by a decision
under this section. This codifies departmental practice into legislation,
eliminating any doubt that the interests of a child will be taken into account.
This applies to children under the age of 18 years as per the Convention on the
Rights of the Child.
[. . .]
Children 18 years and over
BIOC must be considered when a child is under 18
years of age at the time the application is received. There may, however, be
cases in which the situation of older children is relevant and should be taken
into consideration in an H&C assessment. If, however, they are not under 18
years of age, it is not a best interests of the child case.
[25]
See
also Cha v Canada (Minister of Citizenship and Immigration), 2006 FCA
126 at para 15:
15 It is trite law that these debates, testimony
and governmental guidelines are not binding on government institutions and even
less so on the courts, but it is accepted that they can offer useful insight on
the background, purpose and meaning of the legislation. (Canada (Information Commissioner) v. Canada (Minister of Citizenship and Immigration),
[2002] F.C.J. No. 950, 2002 FCA 270, at paragraph 37; Hernandez at
paragraphs 34 and 35.
[26]
Several
decisions of this Court have indicated that children aged 18 and over are not
entitled to a best interests of the child assessment (Leobrera v Canada (Minister of Citizenship and Immigration), 2010 FC 587 at para 63):
63 These reasons
support the proposition that the best interests of the child analysis is
intimately tied to the Convention on the Rights of the Child and, because of
that link, the best interests of the child analysis cannot be performed after a
person reaches the age of 18 because that is the limit placed by that
instrument.
See also Massey v Canada (Minister of Citizenship and Immigration), 2011 FC 1382 at paras 48:
48 In addition, recent jurisprudence of this
Court has held that there is no need to consider the best interests of a person
over the age of 18 as a "child directly affected" in an application
brought under s 25 of IRPA. In Leobrera v Canada (Minister of Citizenship and
Immigration), 2010 FC 587, Justice Michel Shore relied on domestic legislation,
international instruments and the jurisprudence of the Federal Court of Appeal
and Supreme Court to reach the conclusion that "childhood is a temporary
state which is delineated by the age of the person, not by personal characteristics"
(at para 72).
[27]
In
my view, Ramsawak v Canada (Minister of Citizenship and Immigration),
2009 FC 636 at paras 17-23 puts this issue in proper context:
17 All of these arguments put forward by the
respondent were recently canvassed by my colleague Justice Mandamin in the case
of Yoo v. Canada (Minister of Citizenship and Immigration), 2009 FC 343. Noting
that Mr. Justice Gibson had already decided that adult age children were
entitled to receive the benefit of "the best interests of the child"
analysis in Naredo v. Canada (Minister of Citizenship and Immigration), [2000]
F.C.J. No. 1250, Mr. Justice Mandamin felt compelled to apply the same
reasoning on the basis of judicial comity. I would also add, for the sake of
completeness, that Justice MacKay followed the Naredo decision in Swartz v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 268, [2002] F.C.J.
No. 340.
18 While I may have some misgivings about these
decisions, I find that it would be most inappropriate to unsettle the state of
the law. With the exception of one contrary decision relied upon by the
respondent, which itself was rendered in the context of a motion for a stay of
removal (Hunte v. Canada (Minister of Citizenship and Immigration),
IMM-3538-03), there appears to be no conflicting case law on this issue. Nor
can it be said that relevant statutory authority or binding jurisprudence has
been overlooked in coming to that conclusion. As a result, I am prepared to
accept that the mere fact a "child" is over 18 should not automatically
relieve an officer from considering his or her "best interests" along
the lines suggested in Baker.
19 That being said, the assessment of the best
interests of the children must take into account the relevant facts of each
case. The best interests of a two year-old infant, for example, will most
certainly differ from those of a grown up young adult of 21. For example, it is
clear from a reading of Mme Justice L'Heureux-Dubé's decision in Baker that
what she had in mind were the interests of minor children (see, for example,
paras. 71 and 73, where she refers to the UN Convention on the Rights of the
Child and to the importance and attention that ought to be given to children
and "childhood").
20 Similarly, if one is to look at the hardship
that a negative decision would impose upon the children of an H&C claimant,
the autonomy of these children or, conversely, their state of dependency upon
their parents, must be a relevant factor. In that respect, it is interesting to
note that Justice MacKay came to the conclusion that the 19 year-old child of
the applicant was still a "child" for the purposes of the Baker
analysis because he was still a dependent and was not authorized to work or to
continue his studies in Canada. Similarly, Justice Mandamin considered that the
adult sons of the applicant were deserving of a best interest of the child
analysis because they were financially dependent on their father as they were
pursuing their education.
21 In the present case, both younger applicants
had, at the time of the application, regular or full-time jobs. According to
the applicant's record, they have both attained high school diplomas and are
both permanently employed. They were clearly not in the same dependency
relationship with their parents as the children considered in previous cases.
22 However, there is more. Far from being
dismissive, the officer did consider the submissions regarding the applicant's
two youngest children. Despite stating that Deevin Randy and Annalisa Nirmala
would "not be considered under the factor Best Interests of the
Children" by virtue of their age, the officer nonetheless considered their
circumstances in the analysis of establishment and hardship. Under the heading
"Links to Canadian Society", the PRRA officer writes:
Deevin Randy and
Annalisa Nirmala completed their education in Canada, though they began their
studies in their home country. The two young applicants are both young adults
and with their educational level, could potentially find work in their home
country as they have done in Canada. They have not shown that they have any
language barriers, or other significant obstacles, that would prevent them from
being employed in their home country. Though they have spent some of their
developmental years in Canada, I do not find that the link created for them
provides excessive difficulties in returning to their home country.
23 This analysis, it seems to me, cannot be
characterized as being dismissive of their best interests. Of course, it is not
cast the same way it would have been if they were still dependent on their
parents, irrespective of their age. Because they are now self-sufficient, the
impact of a negative H&C decision is not assessed indirectly, in terms of
the consequences that might befall them as a result of their parents having to
move back to Guyana; more appropriately, the officer looks at their prospects
from their own perspective, with a view to determining their likelihood of
integrating and finding jobs in their country of origin. This does not strike
me as being antithetical or contrary to the best interests of the child
analysis developed in Baker; it is rather a more apposite way to be
"alert, alive and sensitive" to their needs and interests in light of
their particular circumstances. Accordingly, I am of the view that the officer
did not fail to appreciate and assess the factors relevant to the two youngest
applicants, despite the fact that he did not undertake a separate analysis
under the rubric of the "best interests of the children".
See also Moya v Canada (Minister of Citizenship and Immigration), 2012 FC 971 at paras 17-18.
[28]
In
the present case, the applicant argued that despite the age cut-off, the
Officer should have considered the hardship to his children, but the respondent
asserts that in fact the Officer did consider their interests, concluding that
she was “not satisfied that any hardship the family would experience”
[emphasis added] would be excessive.
[29]
The
respondent also submits that the applicant provided little detail on the
hardship his granddaughter would experience if they were separated, and the
Officer’s decision will withstand review if the Officer was sensitive to the
interests of the child (Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 at para 12; Hawthorne v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475 [Hawthorne] at paras
5-6).
[30]
Lastly,
the respondent argues that the Officer did not ignore other evidence. She
considered the sponsorship undertaking provided by the applicant’s daughter
Tannia, but gave it little weight. She notes that the applicant had only been
a source of support for his children since they were reunited in 2006, as no
evidence was provided of financial support to them between 2000 and 2006. The
Officer also concluded that the applicant had been separated from his children
for the majority of their upbringing, and that the factors did not support the
H&C request, either individually or cumulatively.
[31]
The
Federal Court of Appeal decided in Hawthorne, above, at para 41, that in
considering the best interest of the child in question, the officer should
recognize the reality that removal of a parent or grand parent would almost
certainly be permanent:
41 First, the submissions made to the
immigration officer on behalf of Ms. Hawthorne emphasized that her removal
would be very detrimental to the best interests of Suzette who might feel that
she had no effective [page577] choice but to return to Jamaica with her mother.
The officer found that this would not be a major hardship warranting a positive
exercise of discretion, because Suzette had lived in Jamaica for nearly all her
life, having been in Canada for less than a year. However, if the officer had
started by identifying the best interests of Suzette, now a permanent resident,
as being able to continue to live in Canada, the removal of Ms. Hawthorne could
only reasonably have been regarded as highly detrimental to Suzette's best
interests if she was thereby effectively compelled to return to Jamaica with her mother. A best interests analysis makes Suzette's present life in Canada
the relevant point of comparison, not her previous residence in Jamaica: see
Koud v. Canada (Minister of Citizenship and Immigration) (2001), 18 Imm. L.R.
(3d) 280 (F.C.T.D.), at paragraph 18.
[32]
As
in Hawthorne, the Officer in this case must have some regard for the
likelihood of a proposed outcome, although this need not rise to the level of
actually analyzing the probability of success, as long as the suggested alternative
is at least somewhat realistic. The Officer failed to do so here.
[33]
Further,
in Williams v Canada (Minister of Citizenship and Immigration), 2012 FC
166 [Williams] at para 64, this Court held that there is no “hardship
threshold” that must be “met” but rather that the best interests of the child
is truly the starting point of the analysis:
64 There is no basic needs minimum which if
"met" satisfies the best interest test. Furthermore, there is no
hardship threshold, such that if the circumstances of the child reach a certain
point on that hardship scale only then will a child's best interests be
so significantly "negatively impacted" as to warrant positive
consideration. The question is not: "is the child suffering
enough that his "best interests" are not being "met"? The
question at the initial stage of the assessment is: "what is in the
child's best interests?"
[34]
The
Court in Williams, above, also set out a three-step approach that
decision-makers are to follow when assessing the best interest of the child:
63 When assessing a child's best
interests an Officer must establish first what is in the child's best
interest, second the degree to which the child's interests are
compromised by one potential decision over another, and then finally, in light
of the foregoing assessment determine the weight that this factor should play
in the ultimate balancing of positive and negative factors assessed in the
application.
[35]
This
Court has more recently cautioned that not all cases will conform to the Williams
framework, but that it is a “useful guideline” for decision-makers.
[36]
Further,
while the respondent argues that the applicant’s daughters had “chosen” not to
sponsor him before the moratorium, the evidence before the Officer in fact shows
that they could not afford it. The Officer erred in her finding on this point
and was unreasonable.
[37]
It
appears to me that the applicant is correct that the refusal of his H&C
application imposes much greater hardship since November 5, 2011, yet the
Officer did not reasonably assess the added undue hardship. I believe that her
decision was therefore unreasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.) The
applicant’s application for judicial review is allowed and the matter is
referred to a different Board member for redetermination;
2.) No question is
certified.
"Michael D.
Manson"
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