Docket:
IMM-13025-12
Citation: 2014 FC 304
Ottawa, Ontario, March 31, 2014
PRESENT: The Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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MIAO MIAO WANG
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Applicant
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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 is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (the Act) of a decision of an Immigration Officer (the Officer)
dated November 7, 2012 denying the applicant’s application for permanent
residence from within Canada on humanitarian and compassionate (H&C)
grounds.
FACTS
[2]
The applicant is a 29 year-old citizen of China. Before coming to Canada she lived in the city of Guangzhou, in Guangdong province.
She first came to Canada on a study permit on July 17, 2003 and last entered Canada on March 28, 2004, again with a study permit. She resides with her two daughters,
who were born in Canada in 2008 and 2009.
[3]
In 2005, the applicant made a claim for refugee
protection fearing persecution due to her alleged religious beliefs. Her claim
was rejected in January 2006.
[4]
In August 2009 the applicant’s first H&C
application was rejected. An application for leave in respect of that decision
was denied by this Court in April 2010.
[5]
In September 2009, the applicant applied for a
Pre-Removal Risk Assessment, which was refused. She submitted the current
H&C application in December 2009 and then submitted updates to her H&C
application in February 2011, May 2012, and October 2012.
[6]
The applicant bases her H&C application on
three grounds:
(a)
that she and her children have become established in Canada;
(b) that she and
her children will suffer financial and social hardship due to China’s one-child
policy, which imposes severe fines and other punishments on parents, and social
restrictions on children; and
(c) that it is in
the best interests of the two children that they be allowed to remain in Canada, and not be required to return to China.
THE DECISION
UNDER REVIEW
[7]
The Officer acknowledged that the applicant
fears returning to China as she is in violation of the country’s one-child
policy and also an unwed mother, for which she fears repercussions. The Officer
made reference to the documentary evidence relating to country conditions and
human rights in China.
[8]
The Officer found that the applicant had failed
to provide sufficient evidence that paying fees in China would constitute an
unusual, undeserved or disproportionate hardship. While the information
provided supports that the applicant may be required to pay a fine for her
children to access education and medical care, there is no evidence to support
that the applicant is incapable of paying these fees given her access to an
overseas education in Canada, the ability to establish businesses in Canada and
purchase a house.
[9]
In relation to the factor of establishment in Canada, the Officer noted that the applicant submitted evidence showing that she had
purchased a house for approximately $458,000 in February 2009. However, no
further evidence or updated information had been provided with regard to her
financial situation in Canada. Moreover, the applicant had not provided letters
of support from friends, co-workers or persons involved in her business
activities in Canada, or her family members in China. As such, the Officer
found that the evidence did not support that the applicant had become
established in Canada to the extent that severing her ties here amounted to an
unusual and undeserved, or disproportionate hardship.
[10]
The Officer then examined the best interests of
the applicant’s two children. Since they are both Canadian citizens, the
decision to have them accompany their mother to China is left to the discretion
of the applicant. The Officer acknowledged, however, that children’s best
interests are usually better served by them remaining with their parents. The
fact that the children may prefer living in Canada was considered by the
Officer to not be a factor in this assessment. While the applicant asserts that
her children will be better off in Canada, the Officer concluded that the
documentation does not support that it would be contrary to their best
interests for the applicant to return to China.
Issues
[11]
1) Did the Officer fail to consider or ignore
evidence?
2)
Was the Officer’s hardship analysis reasonable?
3)
Was the Officer alert, alive, and sensitive to the best interests of the
children?
STANDARD OF REVIEW
[12]
It is well recognized that an Officer’s H&C
decision under section 25 of the Act is reviewable on a standard of
reasonableness (Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189, at para 18 [Kisana]; Terigho v Canada (Minister of
Citizenship and Immigration), 2006 FC 835, at para 6). When reviewing an
H&C decision, considerable deference should be accorded to immigration
officers given the fact-specific nature of the inquiry, the exceptional nature
of the provision and the considerable discretion evidenced in the statutory
language (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 62).
ANALYSIS
1) Did the
Officer fail to consider or ignore evidence?
[13]
The applicant submits that the Officer failed to
consider her updated submissions and evidence filed in October 2012 which
included:
(a) a news article
confirming that the Nobel Prize in Literature had been conferred on a Chinese
author who is an outspoken critic of the one-child policy;
(b) a copy of the
2010 regulations of a town in Guangdong province with respect to the one-child
policy confirming fines for having a second child in the amount of RMB 161 208
per parent (or $51,554 Canadian per couple), as well as fines for unapproved
pregnancies, and having children outside of marriage; and
(c) a news article
confirming that one couple had been fined RMB 1.3 million (or $208,855
Canadian) for a violation of the one-child policy.
I disagree.
[14]
The Officer specifically listed the October 2012
update at the end of her decision as a source she had consulted. It is well
established that the decision-maker does not have to refer to every piece of evidence that they received and explain how
they dealt with it (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at para 16 [Cepeda-Gutierrez]).
However, when the evidence is contrary to the
Officer’s findings, the “burden of explanation increases with the relevance of
the evidence in question to the disputed facts.” (Cepeda-Gutierrez at
para 17).
[15]
This is not the case in the
present file. The evidence that is not directly cited by the Officer is of low
relevance to the facts in dispute and is very similar to other evidence that is
directly cited. The documentary evidence submitted in the October 2012 update
reinforces the existence of the one-child policy as well as its current
application, topics covered by the Officer in her decision through the use of
other documentary evidence. The update does not address the issues that lie at
the heart of this matter: the
inability of the applicant to pay, the possibility of an exception being made,
and the undue hardship that the policy would cause. Therefore, it cannot be
said that not explicitly citing the documents included in the October 2012
update constitutes a reviewable error.
2) Was the
Officer’s hardship analysis reasonable?
[16]
The applicant argues that she filed extensive
submissions with respect to the degree to which she and her children would be
affected by China’s one-child policy: the applicant would be exposed to a very
high penalty; she may be subjected to forced birth control or sterilization;
and her children will be denied access to basic social services including
education and health if they are not registered and the fine is not paid. Given
this body of evidence, it was unreasonable for the Officer to find that the
applicant did not face unusual, underserved or disproportionate hardship if
required to return to China.
[17]
Further, the Officer erred in finding that the
one-child policy does not apply to Chinese nationals returning from overseas.
The applicant submitted email correspondence from the professor, cited by the
Officer, as an expert supporting this finding. In the email the professor
stated that he “d[id] not remember making any conclusive recommendations
regarding how a failed refugee claimant from the PRC in Canada will be treated
with children born in Canada, who have Canadian citizenship.” In Jiang v
Canada (Minister of Citizenship and Immigration), 2012 FC 1512 at para 50 [Jiang]
this Court considered what appears to be the same evidence and granted the
judicial review, finding that it was unreasonable for the Officer to fail to
explain why this evidence was rejected. Since the circumstances in Jiang are
apparently the same as in the case at bar, the same result should follow.
[18]
The applicant also argues that the Officer
should have relied on the most recent Response to Information Request (RIR)
from October 2012 which confirms that returnees are currently subject to the
one-child policy and its consequences, particularly in Guangdong.
[19]
Lastly, the applicant submits that while the
Officer agreed in her reasons that the social maintenance fees are exorbitant,
she failed to consider that having to pay such a fine merely for having a child
may be, in and of itself, an unusual and undeserved or disproportionate
hardship.
[20]
I disagree. In an H&C application, the
burden is on the applicant to satisfy the Officer that there would be unusual
and undeserved or disproportionate hardship to obtain a permanent resident visa
from outside Canada (Pinter v Canada (Minister of Citizenship and
Immigration), 2005 FC 296, at para 3). Given the lack of evidence submitted
about the applicant’s personal situation, including her current financial
situation in Canada and the likely income she would receive in China, it was open to the Officer to find that she had not met her burden of showing undue
hardship, particularly since the fine that may be levied is calculated in
relation to income. Even if she were forced to pay a fine, the applicant has
failed to prove that she would be unable to do so.
[21]
The 2012 RIR referring to births in Guangdong is not definitive on the treatment of children of returnees, as claimed by the
applicant. The RIR specifies that fines for violating the policy apply to
“births in Guangdong that involve Chinese returning from abroad…”. This would
apply to situations when a couple with an existing child return and then have a
second child, which is not the scenario contemplated by the applicant.
[22]
The present case can be distinguished from Jiang
in that here, the Officer did not err in her treatment of the correspondence
from the professor cited in the RIR. In Jiang the Officer’s decision was
found unreasonable since it was silent on this particular evidence. Here the
Officer considered this evidence head on, stating “I have read and considered
the information in this document.” The Officer went on to explain that it is
not within her mandate to correct IRB documents, and that assessments such as
this one rely on a number of documentary sources that are weighed and
evaluated. In Jiang at paragraph 50 Justice O’Reilly specified that
“this piece of evidence does not
dictate a particular outcome and it is not this Court's role to reweigh
evidence.” The Officer in the present case properly considered this evidence
and it is not for this Court to question the weight it was given.
3) Was the
Officer alert, alive, and sensitive to the best interests of the children?
[23]
The applicant submits that the Officer’s
conclusion that the documentary evidence did not support that it would be
contrary to the best interests of the applicant’s children for the applicant to
return to China flies in the face of the Federal Court of Appeal’s decision in Hawthorne
v Canada (Minister of Citizenship and Immigration), at para 5 [Hawthorne].
In addition, the Officer erred in not considering the children’s preference of
living in Canada as a factor in the assessment.
[24]
The applicant further argues that the Officer
used an unreasonably low standard in her best interests of the child analysis,
contrary to the requirements in Hawthorne, when she concluded that the
children’s basic amenities such as education and health care are available in China. The one-child policy will likely have a significant financial and social impact on
the children. This Court has found that to expose children to “financial
uncertainty” constitutes “irreparable harm” for the purpose of granting a stay
of removal (Harry v Canada (Minister of Citizenship and Immigration),
[2000] 195 FTR 221, at para 17).
[25]
I am satisfied that the Officer did not err in
her analysis of the best interests of the children and her reasoning was in
line with the decision in Hawthorne. At paragraph 6 of Hawthorne
the Court states:
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.
[26]
The Officer acknowledged that children’s best
interests are usually better served by them remaining with their parents. She
then went on to consider the particular circumstances of the case and the
likely degree of hardship caused to the children by the applicant’s removal.
She found that there was a lack of documentary evidence submitted to show the
children’s level of establishment in Canada or the lack of availability of
basic amenities such as education and health care in China.
[27]
It was reasonable for the Officer to not place
any weight on the wishes of the children. A child’s wishes are to be considered
“in accordance with the child’s age and maturity” (Hawthorne at para
33). While in Hawthorne the child in question was fifteen years old,
here the applicant’s children are two and three years old. There was no direct
evidence from the children regarding what their wishes were, and even if there
were such evidence, it would not carry much weight due to their very young age.
[28]
Regardless of the Officer’s final determination
on the best interests of the children, it must be noted that it is settled law
that while the best interests of the child factor must be given substantial
weight, it is not determinative in the context of an H&C decision (Hawthorne,
at para 3; Legault v Canada (Minister of Citizenship and Immigration),
2002 FCA 125; Kisana, at para 37). The question before the Officer is
not whether the best interests of the children would require the applicant be
allowed to stay in Canada. Rather, the correct question is whether the
children’s best interests, when weighed against the other relevant factors,
justified an exemption on H&C grounds (Kisana, at para 38). The
Officer’s weighing of the factors to be considered in an H&C application,
including the best interests of the children was reasonable and should not be
disturbed.
CONCLUSION
[29]
The
Officer’s decision is justified, transparent, and intelligible and falls within
the range of possible, acceptable outcomes defensible in respect of the facts
and law (Dunsmuir v New Brunswick,
2008 SCC 9, at para 47; (Citizenship and Immigration) v Khosa, 2009 SCC
12, at para 59). Thus, the intervention of this Court is not warranted.
[30]
For these reasons, the application for judicial
review is dismissed.
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