Docket: IMM-5154-13
Citation:
2014 FC 492
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 23, 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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MEHDI REZKI
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FATIHA MELLOUK
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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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JUDGMENT AND REASONS
[1]
The applicant is challenging a decision of an
immigration officer, dated May 30, 2013, according to which the
humanitarian considerations raised in his case did not justify an exemption, in
whole or in part, from the relevant requirements of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], and the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. This is
an application for judicial review pursuant to section 72 of the IRPA.
I.
Facts
[2]
Mehdi Rezki arrived in Canada on November 1,
2009, when he was six years old. His parents, a dentist and a pharmacist, and
their other three children, born in 1993, 1995, and 1998, were granted
permanent residence in Canada. However, for reasons difficult to explain, to
this day, young Mehdi has not been included in the application made for the
rest of the family. The family is originally from Morocco, but the applicant
was born in the United States. He is an American citizen and entered Canada on
an American passport that his parents had apparently obtained for him. He was
not declared when the application for permanent residence was submitted in
2007. However, his parents state that they showed his American passport at the
Canadian border when they arrived in Canada.
[3]
The circumstances surrounding Mehdi Rezki’s
arrival in Canada were unclear when his case was examined by Citizenship and
Immigration Canada authorities, and they remain so to this day. Fatiha Mellouk is
his mother, as DNA tests have confirmed, and it was she who decided to
represent her son, who is the youngest of the family’s four children. All the
members of the family have at least Moroccan citizenship.
[4]
On October 18, 2010, that applicant’s mother
tried to sponsor him as a member of the family class. She initially explained
that she and her husband thought that because of his American nationality,
their son did not need a visa. She then stated that they were afraid of
delaying the processing of the immigration application. It was never explained
how adding a fourth child when filling out the forms would have delayed the
processing of the application, nor why they thought that an American passport
could grant status in Canada. While the members of the family were trying to
become permanent residents, American citizenship alone would have done just as
well. On June 2, 2011, the sponsorship application was rejected.
[5]
The applicant continued living in Canada despite
being without status; he is currently attending school at Collège international
Marie de France in Montréal. The documentary evidence suggests that he did not
register there until September 2011, having spent the previous school year
in Casablanca, at École Ernest Renan.
[6]
Essentially, it is paragraph 117(9)(d)
of the Regulations that is preventing the sponsorship in the circumstances.
That provision reads as follows:
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Excluded
relationships
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Restrictions
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(9) A foreign national shall not be
considered a member of the family class by virtue of their relationship to a
sponsor if
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(9) Ne sont pas
considérées comme appartenant à la catégorie du regroupement familial du fait
de leur relation avec le répondant les personnes suivantes :
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. . .
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[…]
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(d) subject to subsection
(10), the sponsor previously made an application for permanent residence and
became a permanent resident and, at the time of that application, the foreign
national was a non-accompanying family member of the sponsor and was not
examined.
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d) sous réserve du
paragraphe (10), dans le cas où le répondant est devenu résident permanent à
la suite d’une demande à cet effet, l’étranger qui, à l’époque où cette
demande a été faite, était un membre de la famille du répondant n’accompagnant
pas ce dernier et n’a pas fait l’objet d’un contrôle.
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[7]
The applicants do not appear to have challenged
this rejection. Instead, Ms. Mellouk tried to obtain permanent residence
for her son by seeking an exemption from paragraph 117(9)(d) of the
Regulations, relying on the saving provisions of subsection 25(1) of the
IRPA, which reads as follows:
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Humanitarian and
compassionate considerations - request of foreign national
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Séjour pour
motif d’ordre humanitaire à la demande de l’étranger
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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 - other than under section
34, 35 or 37 - or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada - other than a foreign national
who is inadmissible under section 34, 35 or 37 - 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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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 - sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 -, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada - sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 - 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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[8]
Thus, on February 1, 2012, the applicants
filed a second application for permanent residence, this time invoking
humanitarian and compassionate considerations under subsection 25(1) of
the IRPA to justify an exemption from the regulatory requirements. It is the
child’s mother, of course, who is overseeing the case.
[9]
It is clear upon examining the documentary
evidence that the immigration officer had doubts about this application and,
more generally, about the case. Some additional information was therefore
required.
[10]
On December 11, 2012, the officer contacted
Ms. Mellouk by email to tell her that further explanations were needed: a
written statement explaining who was Zanine Fatiha, the person originally
listed as the child’s mother on his birth certificate; official proof of the
mother’s legal change of name; proof of residence in Canada; an explanation of
the family’s sources of income in Canada; a medical certificate confirming the
child’s premature birth; and a Quebec Selection Certificate in the child’s
name. The officer also informed the applicant’s mother that the information on
the DNA analysis laboratory was out of date and that maternity could not be
evaluated on the basis of the results already provided.
II.
Decision and parties’ arguments
[11]
On May 30, 2013, the officer rejected the
application. The decision letter explains that she concluded that under
subsection 117(9) of the Regulations, Mehdi was not a member of the family
class, having not been declared at the outset, and that in this case, the
humanitarian and compassionate considerations and the best interests of the
child did not warrant an exemption from subsection 117(9).
[12]
Essentially, the application under
subsection 25(1) of the IRPA is based on the best interests of the child.
The applicants submit that it is in the child’s best interests to remain in
Canada and live here with the other members of the family, who all have
permanent resident status. A separation would be very harmful.
[13]
The immigration officer exercised discretion in
rejecting the application. Earlier, when the case was being examined, doubts
about the child’s parentage had been raised. DNA tests dispelled these doubts.
However, all the circumstances surrounding the child’s birth and the
difficulties in obtaining the requested information relevant to processing the
application continued to cast a shadow over this case.
[14]
The circumstances of the child’s birth therefore
remain nebulous. It appears that there is no documentation available, but
Ms. Mellouk claims that she went to the United States to attend a
conference and gave birth to the child there prematurely. At the hearing of the
application for judicial review, Ms. Mellouk, who chose to dispense with
the services of counsel after having been assisted throughout the process to
that point, stated that there were additional reasons. However, for some
unknown reason, no such evidence was supplied to the immigration officer and
therefore cannot be used upon judicial review. At any rate, this lack of
evidence on the circumstances of the child’s birth aroused suspicions.
[15]
However, first and foremost, the immigration
officer believes that the noted failure to comply with subsection 117(9) of
the Regulations was not inadvertent. The applicants deliberately chose to
conceal the existence of a fourth child. In addition, the immigration officer was
not satisfied that the family is so established in Canada that they cannot
return to Morocco to resettle there. They are all Moroccan citizens, and it
appears that the father never completely established himself in Canada. This is
another grey area in the family’s story, since they did not give a satisfactory
explanation for the very long periods spent in Morocco.
[16]
The immigration officer therefore concluded that
in this case, the best interests of the child do not constitute sufficient
humanitarian and compassionate considerations. The best interests of the child
would not be at risk if Ms. Mellouk and her child had to return to
Morocco. The notes in the Global Case Management System (GCMS) provide us with
some details about the reasons for rejecting the application. The immigration
officer appears to start from the premise that there does not have to be a
separation, since all the individuals involved are Moroccan citizens. The family’s
bonds are strong. The ties to Canada are more tenuous, and the immigration
officer notes that their sources of income are outside the country.
III.
Analysis
[17]
The challenge to the decision was presented to
this Court as if the Court could substitute its discretion for that of the
immigration officer. Despite the Court’s efforts to make Ms. Mellouk understand
that the onus was on her to show that the decision is unreasonable, she instead
went about trying to generate sympathy. While there is no denying that sympathy
has its place, the Court has a different role to play, which is to review the
legality of the decision at issue here. Since decisions under section 25
of the IRPA are reviewed on the reasonableness standard (Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189; [2010] 1 FCR 360 [Kisana]),
the Court must show deference to the decision of administrative tribunal. It is
helpful to once again quote paragraph 47 of Dunsmuir v New Brunswick,
2008 SCC 9; [2008] 1 S.C.R. 190 [Dunsmuir]:
[47] Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[18]
In the case under review, the immigration
officer concluded that multiple factors taken together led her to exercise her
discretion under subsection 25(1) of the IRPA so as to reject the
application. Those factors may be summarized as follows:
(a)
the decision not to declare Mehdi Rezki was
deliberate, and paragraph 117(9)(d) applies with full force and
effect;
(b)
the reasons given for this decision varied: Ms. Mellouk
initially pleaded ignorance, claiming that Mehdi’s American passport was
sufficient, but later argued that she did not want to draw out the immigration
process. These variations constitute contradictions;
(c)
more generally, the answers given were allegedly
vague or even contradictory. The questions, however, were simple and factual,
and the interviewees are well-educated individuals. Indeed, the delays in
responding and in following instructions as simple as those given in
February 2011 to regularize the child’s status were noted. The latter
incongruity was described as “another blatant disregard
for immigration laws and non-compliance with instructions given by a CIC
employee . . .” (GCMS);
(d)
the degree of establishment in Canada was
insufficient. Although the mother’s residency was not called into question, the
father’s residency was, as he spends much of his time in Morocco. These
prolonged absences are unexplained. Establishment in Morocco has been
maintained and could easily be increased. The family could therefore be
reunited in Morocco if they wished, with neither the child nor the family
suffering any “disproportionate hardship”.
[19]
Essentially, if Mehdi cannot be included in the “family
class”, it is because of the deliberate actions of those who now want to
sponsor him, and the best interests of the child in remaining with his family
in Canada are not enough to counterbalance this, because his parents could
establish themselves in Morocco with relative ease, or at least without “disproportionate hardship”, given the enduring ties of the father
and the parents’ level of education.
[20]
As was previously noted, the female applicant
seemed to think that the Court could substitute its own view for that of the
immigration officer. Her oral argument shed absolutely no light on how the
impugned decision was not reasonable, within the meaning of Dunsmuir.
[21]
The Court relied on the memorandum of fact and
law, which by the way was not repudiated, to consider the arguments made in it
regarding the reasonableness of the decision. It seems to me that the
memorandum raises two arguments which the author barely develops:
(1)
the immigration officer should have considered
the best interests of the child in being granted permanent residence. Instead,
she considered the best interests of the child if he had to leave Canada. In
the applicants’ view, it was in the best interests of the child for him to
continue living with his family in Canada, as a separation would be harmful;
(2)
the immigration officer failed to give reasons
for the decision, as she is required to do. It is alleged that this is violates
the rules of natural justice.
[22]
The second issue, which is considered in
accordance with the correctness standard (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339), can be disposed of
quickly. In my view, Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62; [2011] 3 S.C.R. 708, provides a
complete answer. The quality of the reasons alone is not enough. At paragraph 14,
the Supreme Court wrote as follows:
[14] Read as a whole, I do not see Dunsmuir as standing for the proposition
that the “adequacy” of reasons is a stand-alone basis for quashing a decision,
or as advocating that a reviewing court undertake two discrete analyses — one
for the reasons and a separate one for the result (Donald J. M. Brown and John
M. Evans, Judicial Review of Administrative Action
in Canada (loose-leaf), at §§12:5330 and 12:5510).
It is a more organic exercise — the reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes. This, it seems to me, is what the Court was saying
in Dunsmuir when it told
reviewing courts to look at “the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes”
(para. 47).
The applicable test is set out at the end of
paragraph 16:
[16] Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service
Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses
Assn., [1975] 1 S.C.R. 382, at p. 391). In
other words, if the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes, the Dunsmuir criteria are met.
[23]
What the applicants are actually complaining
about has more to do with the conclusion that the officer reached. The reasons
for a decision are never adequate in the eyes of someone who disagrees with
them. This, in my view, explained why the best interests of the child were not
in danger, since the family could easily return to their country of origin, to
which they still have strong ties, if the time spent there by the father and
the lack of sources of income in Canada are any indication. The Court has no
difficulty understanding the reasons for the decision.
[24]
Whether the decision is reasonable in terms of
the child’s best interests perhaps requires further elaboration. An application
made under subsection 25(1) of the IRPA, as in the present case, is not
limited to the best interests of the child. This factor must be taken into
account, but the provision provides that humanitarian and compassionate
considerations warrant overriding the criteria and obligations of the
legislation. Such are the factors that were weighed and examined by the
immigration officer.
[25]
The test that the applicants proposed would
emphasize the best interests of the child, which would be to remain in Canada.
They complain that the decision dealt with the best interests of the child
should he have to leave the country. In my opinion, such is not the test, and
such is not the exercise that the immigration officer was required to perform.
What the immigration officer did was to examine the humanitarian and compassionate
considerations and conclude that the child’s hardship, should he have to return
to Morocco, would not be unusual and undeserved or disproportionate because the
parents could re-establish themselves there with relative ease. There was no
error, since adequate consideration was given to the child’s interests.
[26]
What is unusual here is that the child’s
parents, as well as the older children in the family, all have permanent
resident status in Canada. Usually, it is the parents who are seeking permanent
resident status and therefore invoke the best interest of the child in order to
remain in Canada. The only argument presented by the applicants is that the
best-interests-of-the-child test was applied incorrectly. However, the review
of the decision is inconclusive on this point. Everyone understood that the
family would prefer it if all its members could remain in Canada. However, the
immigration officer concluded that the hardship in returning to Morocco would
not be unusual and undeserved or disproportionate. In the particular
circumstances of this case, there are insufficient grounds to override the
public policy reasons for subsection 117(9) of the Regulations.
[27]
On closer inspection, the situation in the
present case could be clarified somewhat through a review of the case law. This
Court has dealt with numerous cases under section 25 of the IRPA in which
one or both parents were to be deported while the child was a Canadian citizen
with a constitutional right to remain in the country. Time and time again, the
Court held the best interests of the child, which is clearly to remain with his
or her parents, was but one of the factors to be considered. In Legault v
Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC
358 [Legault], the Court wrote:
[11] In Suresh, the Supreme Court clearly indicates that Baker did not depart from the
traditional view that the weighing of relevant factors is the responsibility of
the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an
immigration officer must examine with a great deal of attention. It is equally
certain, with Suresh,
that it is up to the immigration officer to determine the appropriate weight to
be accorded to this factor in the circumstances of the case. It is not the role
of the courts to re-examine the weight given to the different factors by the
officers.
[12] In short, the immigration officer
must be “alert, alive and sensitive” (Baker, supra, at paragraph 75) to the interests of the children, but once she
has well identified and defined this factor, it is up to her to determine what
weight, in her view, it must be given in the circumstances. The presence of
children, contrary to the conclusion of Justice Nadon, does not call for a
certain result. It is not because the interests of the children favour the fact
that a parent residing illegally in Canada should remain in Canada (which, as
justly stated by Justice Nadon, will generally be the case), that the Minister
must exercise his discretion in favour of said parent. Parliament has not
decided, as of yet, that the presence of children in Canada constitutes in
itself an impediment to any “refoulement” of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration), (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused,
[1995] 3 S.C.R. vii).
[28]
The factors that favour keeping a family
together do not always outweigh upholding the integrity of the immigration
system. In fact, if the interests of the child automatically prevailed, this
would become an automatic exemption from paragraph 117(9)(d) of the
Regulations, rendering that provision ineffective for a specific class of
individuals.
[29]
As the Federal Court of Appeal noted in Kisana,
it is therefore clear that false or misleading statements may outweigh the interests
of the child (para 27).
[30]
In my view, it is clear that the immigration
officer knew perfectly well that it would be in the best interests of the child
to remain with his parents in Canada, if that is what they should decide to do.
This is no way means that the assessment of the inherent hardship stemming from
the rejection of an application based on humanitarian and compassionate
considerations ignored the interests of the child. As the Federal Court wrote
in Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA
475, [2003] 2 FC 555:
[5] The officer does not assess the best
interests of the child in a vacuum. The officer may be presumed to know that
living in Canada can offer a child many opportunities and that, as a general
rule, a child living in Canada with her parent is better off than a child
living in Canada without her parent. The inquiry of the officer, it seems to
me, is predicated on the premise, which need not be stated in the reasons, that
the officer will end up finding, absent exceptional circumstances, that the
“child’s best interests” factor will play in favour of the non-removal of the
parent. In addition to what I would describe as this implicit premise, the
officer has before her a file wherein specific reasons are alleged by a parent,
by a child or, as in this case, by both, as to why non-removal of the parent is
in the best interests of the child. These specific reasons must, of course, be
carefully examined by the officer.
[6] To simply require that the officer
determine whether the child’s best interests favour non-removal is somewhat
artificial—such a finding will be a given in all but a very few, unusual cases.
For all practical purposes, the officer’s task is to determine, in the
circumstances of each case, the likely degree of hardship to the child caused
by the removal of the parent and to weigh this degree of hardship together with
other factors, including public policy considerations, that militate in favour
of or against the removal of the parent.
[31]
I fail to see how the decision under review
incorrectly applied the test under section 25 of the IRPA. As for the
weight to be given to the factors to be considered, Legault establishes that
this is up to the decision maker. I do think it is possible that the weight assessed
could be inherently unreasonable: discretion cannot be exercised arbitrarily
and with no grounding in reality (Roncarelli v Duplessis, [1959] S.C.R. 121).
[32]
However, the immigration officer had serious
grounds to question various aspects of this case.
[33]
I cannot bring myself to conclude that this
finding by the immigration officer does not fall within the range of possible
outcomes, within the meaning of Dunsmuir. If the Court were to conclude
otherwise, this would amount to recognition that subsection 117(9) of the
Regulations is not in the public interest whenever the family member sponsored
in the family class is a child. Here, although the applicants were expected to
be as transparent as possible, such was not the case. In fact, the background
information form that the mother filled out, at pages 15 to 18 of the certified
record, states that Mehdi attended school at École Ernest Renan, in Casablanca,
during the 2010–2011 school year. He did not become a student in Canada until
September 2011, well after his parents were granted permanent residence,
and clearly after he began school in Morocco. For every answer, the mother
tersely replied that the form, which she herself signed on December 29,
2011, had to be wrong.
[34]
In my view, someone who invokes humanitarian and
compassionate considerations to seek an exemption from a legislative provision
must do so in a perfectly transparent manner. The same is true for the
obligation imposed in paragraph 117(9)(d) of the Regulations. The
penalty is severe for those who do not act transparently. Section 25 exists
to remedy certain situations, but it cannot be used to perpetuate grey areas.
The applicants were not as transparent as they were required to be.
[35]
The result was an application shrouded by doubts
that the applicants did nothing to dispel, even though they were given many
opportunities to do so. The immigration officer exercised her discretion, on
behalf of the Minister, by giving full consideration, on the one hand, to the
best interests of the child, concluding that he would not face unusual and
undeserved or disproportionate hardship if he returned to the country of
citizenship; and, on the other hand, to the provisions of the IRPA, which are
clearly in the public interest and would have to be set aside to grant the
application.
[36]
It may well be that others could have come to a
different conclusion. However, this is not what the reasonableness standard is
about. As the Supreme Court wrote in Dunsmuir, this does not mean that
reviewing courts “may be
content to pay lip service to the concept of reasonableness review while in
fact imposing their own view” (para 48). The decision under review
is reasonable in every respect and must be treated with deference.
[37]
The application for judicial review is therefore
dismissed. There is no question to be certified.
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