Docket: IMM-2756-13
Citation:
2014 FC 778
Ottawa, Ontario, August 5, 2014
PRESENT: The
Honourable Madam Justice Strickland
|
BETWEEN:
|
|
YU XUAN WENG, A MINOR, BY HER LITIGATION GUARDIAN WU SEN WENG
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the decision of a visa officer (Visa Officer) of the Hong Kong office of the
Canadian Consulate Section dated March 21, 2013, in which the Visa Officer
determined that pursuant to s. 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA) there were insufficient humanitarian
and compassionate (H&C) grounds to grant the Applicant permanent residence
or an exemption from a family class exclusion arising from s. 117(9)(d) the
Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPA
Regulations).
Background
[2]
The Applicant is a twelve year old minor child
and is a citizen of China.
[3]
In February 2001 the Applicant’s mother
submitted an application for permanent residence in Canada under the skilled
worker class. She was an engineer and her husband, the Applicant’s father, was
an accountant, both were citizens of China and worked for state owned
enterprises. Their first daughter, Angela, had been born on July 14, 1999.
The Applicant’s mother became pregnant again in the fall of 2001 which was
contrary to China’s one child policy. Her parents took steps to hide the
pregnancy and the Applicant was born on July 20, 2002. The day after the
Applicant’s birth her parents arranged for her to be cared for by a family in a
remote village where she stayed until she was 18 months old. Her mother then
took her to live with her maternal grandparents. When she was three years old
her paternal grandparents took over her care. Her parents registered her birth
but did not change their hukou (household registration).
[4]
The Applicant’s parents immigrated to Canada together with her older sister on July 12, 2006. Her parents claim that their
immigration consultant advised them not to update and declare the Applicant’s
birth in their permanent resident application as they could sponsor her once
they were in Canada. They were also afraid that her birth would be discovered
by the Chinese government if they made the declaration. Nor did they declare
the Applicant as a dependant when they arrived in Canada in July 2006. Soon
after they landed they applied to sponsor the Applicant so that she could join
them in Canada. After five years, on September 5, 2011, her application was
denied.
[5]
Meanwhile, the Applicant’s parents had a third
child, a son who was born in Canada on January 10, 2008. The Applicant’s
father and older sister became Canadian citizens. Her mother also wishes to do
so but her travel back and forth to China to be with the Applicant has
precluded this. The family has visited the Applicant on several occasions.
They returned to China to be with her, staying there from 2009 to 2011. The
Applicant’s parents and sister returned to Canada in June 2011 to again try to
resolve the matter of the Applicant’s status. Her mother and sister returned
to China in August 2011 to care for the Applicant.
[6]
In December 2011 the Applicant’s father made a
second application to sponsor her on H&C grounds. In May 2012 he was
advised that he was ineligible to be a sponsor as he had not declared the
Applicant in his own permanent resident application. His sponsorship
application would be considered only if the Visa Officer decided to process the
Applicant’s permanent residence application based on H&C grounds. The Visa
Officer rejected the H&C application on March 21, 2013. That decision is
the subject of this judicial review.
Decision Under Review
[7]
The Visa Officer stated that he was not satisfied
that sufficient H&C grounds existed to grant an exemption to the
Applicant’s s. 117(9)(d) exclusion. The Field Operations Support System (FOSS)
notes recited the background facts of the Applicant and her family’s status and
the reasons given by her parents for not disclosing her existence. The Visa
Officer stated that the Applicant’s parents had been informed on January 10,
2006, through the visa pick up letter, of the importance of advising the visa
office of any changes to their family status before collecting their visas.
Further, because of the moderate English proficiency of the Applicant’s mother,
it was implausible that she was unaware of this instruction. The Visa Officer
noted that if the local Family Planning Commission had not known of or approved
the Applicant’s birth then her parents would not have been able to obtain a
birth certificate, which they did within two weeks of her birth. With a birth
certificate, she could be registered in the hukuo.
[8]
The Visa Officer found that there was no
evidence to indicate the level of financial support provided by the sponsor,
that there was insufficient evidence that the Applicant is unable to continue
her education in China, and, that there was “insufficient
evidence… to demonstrate that the applicant suffers unusual and undeserved or
disproportionate hardship as a result of the separation from the sponsor or as
a result of the applicant residing in PRC.” There was also no apparent
impediment to the Applicant’s family reuniting with her in China and, in fact, her mother and siblings had returned to China in 2009. The Applicant is living
in the country in which she was born and raised and where she has family
including her grandparents. The Visa Officer stated that there was
insufficient evidence to demonstrate that the Applicant is unable to continue
living with her relatives in China. Further, that he had fully reviewed the
Applicant’s H&C submissions and considered the best interests of the child,
but was not satisfied that sufficient H&C grounds existed to grant an
exemption request to overcome the Applicant’s exclusion under s. 117(9)(d) of
the IRPA Regulations and, therefore, refused the application.
Legislative Background
[9]
Pursuant to s. 13(1) of the IRPA, a Canadian
citizen or a permanent resident may, subject to the regulations, sponsor a
foreign national who is a member of the family class. Subsection 117(1)(b) of
the IRPA Regulations states that a foreign national dependant child of a
sponsor is a member of the family class. However, pursuant to s. 117(9)(d), a
foreign national shall not be considered to be a member of the family class by
virtue of their relationship to the sponsor if 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.
[10]
Subsection 25(1) of the IRPA states that the
Minister may, on the request of a foreign national outside of Canada who
applies for permanent resident status, examine the circumstances surrounding
the foreign national and may grant the foreign national permanent residence
status or an exception from any applicable criteria or obligations of the IRPA
if the Minister is of the opinion that it is justified by H&C
considerations relating to the foreign national, taking into account the best
interests of a child directly affected.
Issues
[11]
I would frame the issues as follows:
1.
Was the Visa Officer’s decision reasonable?
2.
Was the Applicant afforded a fair process?
Standard of Review
[12]
A standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 57; Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18 [Kisana]).
[13]
The standard of review of a visa officer’s
H&C decision concerning issues of mixed fact and law, including the
application of the best interests of the child analysis to the facts, is
reasonableness (Figueroa v Canada (Minister of Citizenship and Immigration),
2014 FC 673 at para 24; Hurtado v Canada (Minister of Citizenship and
Immigration), 2007 FC 552 at para 7; Husain v Canada (Minister of
Citizenship and Immigration), 2011 FC 451 at
paras 11-13 [Husain]).
[14]
The standard of review for questions of
procedural fairness is correctness (George v Canada (Minister of Citizenship
and Immigration), 2012 FC 1240 at para 30; Hamza v Canada (Minister of Citizenship and Immigration), 2013 FC 264 at para 13; Kinobe v Canada (Minister of Citizenship and Immigration), 2011 FC 845 at para 25).
Positions of the Parties
Applicant’s Position
[15]
The Applicant submits, amongst other things,
that the Visa Officer failed to consider her best interests as well as those of
her siblings, made an unreasonable decision without regard to the evidence or
the legislative objectives of the IRPA, and, failed to observe procedural
fairness.
[16]
More specifically, that the Visa Officer was not
alive, alert and sensitive to the best interests of the three children involved
in this matter and failed to consider their individual needs or the evidence
submitted by the family. Further, that the Visa Officer wrongly applied the
“undue hardship test” in assessing the best interests of the children, and
failed to consider if it was in the Applicant’s best interests to come to Canada to be with her family or the right of the Canadian children to remain in Canada. The Visa Officer also did not consider the evidence of the Applicant’s family or
human rights reports concerning the difficulties encountered by “illegal
children” in China. Instead, the Visa Officer focused excessively on the
non-disclosure of the Applicant in her parent’s permanent resident
applications, ignoring the fact that they had nothing to gain by the non-disclosure
and that, had they disclosed her existence, they still would have been able to
immigrate to Canada. There was also a breach of procedural fairness as the
Visa Officer questioned the authenticity of the birth certificate yet failed to
raise this with the Applicant’s parents.
Respondent’s Position
[17]
The Respondent submits that there is no evidence
that the Applicant has ever faced challenges in attending school in China nor is there evidence that her siblings, who it was alleged would be considered to be
foreigners in China, would be barred from attending school there. Further,
while the Applicant’s parents and siblings may prefer life in Canada, the parents made a private decision to return to China to be closer to the Applicant. While
the Applicant’s parents asserted that not granting H&C relief would tear
the family apart, the family is voluntarily living in China. Thus, there was no need for H&C relief. Further, the Visa Officer did not find
the parents’ fear of the violation of the one child policy to be credible and,
therefore, the circumstances did not warrant the waiver of the s. 117(9)(d)
bar.
[18]
The Respondent submits, amongst other things,
that while undeserved hardship may not be appropriate for assessing best
interests of the child considerations, which the Respondent does not concede,
such considerations must meet some threshold of hardship to warrant relief. In
any event, the Visa Officer weighed the hardship that the Applicant would face
in China against the benefits that she might receive should she obtain
permanent residence in Canada, thereby demonstrating a best interests of the
child analysis as required by the legislation. Further, the Visa Officer was
not required to consider whether it was in her best interests to come to Canada as she is not a Canadian citizen. The question is whether the best interests
considerations would favour her coming to Canada and whether they reach the
appropriate threshold of hardship to warrant H&C relief. No reviewable
error arose from the Visa Officer’s analysis.
[19]
The Respondent submits that there was also no
error in failing to consider the best interests of the two Canadian siblings as
they were not directly affected by the application. They can return to Canada at anytime. In any event, the assessment of the best interests of the child factors
for the Applicant equally applies to the siblings. And, while the Applicant
may have asserted that she will face a hardship, she did not adduce
corresponding proof of this.
[20]
The Visa Officer did not ignore the documentary
evidence concerning unregistered children, rather, it was not put before the Visa
Officer. And, in any event, the Visa Officer did not accept that the Applicant
could not be registered in China. The Respondent submits that the Visa Officer
cannot be faulted for considering the rationale of the parents’ exclusion of
the Applicant from their permanent resident applications as it is relevant to
the merits of undue hardship as to the legitimacy of the decision and whether
the decision to do so arose from factors beyond the Applicant’s control. As to
the family reunification objectives of the IRPA, this contention fails because
the family is residing as a whole in China, family unity is therefore not at
issue. As to procedural fairness, the Visa Officer had no concerns as to the
authenticity of the birth certificate and, therefore, had no obligation to
disclose it.
Analysis
Issue 1: Was the Visa Officer’s decision reasonable?
[21]
In my view, the Visa Officer may have applied
the wrong legal test, in substance and in form, by requiring hardship that is
“unusual and undeserved or disproportionate,” rather than evaluating what was
actually in the Applicant’s best interests and weighing that against the other H&C
factors. However, what is apparent is that the Visa Officer reached a decision
without regard to the evidence before him and, further, failed to account for
the effect of the decision on the Applicant’s siblings.
[22]
The Respondent suggests that it is appropriate
to apply a hardship analysis to the best interests of the child, in the sense
of asking whether the hardship of having to obtain a visa from outside Canada would cause the applicant unusual and undeserved or disproportionate hardship. This
is the general standard that applies to an H&C application (Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 23, leave to appeal to
SCC denied [2002] SCCA No 220; see also Phyang
v Canada (Minister of Citizenship and Immigration), 2014 FC 81 at
para 17 [Phyang]).
[23]
However, jurisprudence has held that it is
unreasonable to import a hardship analysis when considering the best interests
of the child (Phyang, above, at para 29; Sinniah v Canada (Minister of Citizenship and Immigration), 2011 FC 1285 at
paras 59-63; Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475 at para 9 [Hawthorne]). As the Court
noted in Hawthorne, above, at para 9, “children
will rarely, if ever, be deserving of any hardship.” There the correct test is described as being alert, alive
and sensitive to the child’s circumstances. Incorporating the “unusual,
undeserved or disproportionate hardship” threshold into the analysis of the
best interests of the child has been characterized in a number of decisions of
this Court as an error in law (Arulraj v Canada (Minister of Citizenship and
Immigration), 2006 FC 529; Williams v Canada (Minister of Citizenship
and Immigration), 2012 FC 166 [Williams]).
[24]
That said, an officer’s use of the language of
“hardship” does not necessarily mean that a threshold analysis was applied.
The reviewing court must consider the substance of the decision to determine
whether the officer applied an improper hardship threshold analysis (Kisana,
above, at para 30, Williams, above; Webb
v Canada (Minister of Citizenship and Immigration), 2012 FC 1060 at para 11).
[25]
In the context of the consideration of the best
interests of the child analysis, this case is factually somewhat unusual as the
Applicant’s parents and siblings are all either Canadian citizens or permanent
residents and there is no question of removal (Rezki v Canada (Minister of
Citizenship and Immigration) 2014 FC 492). However, as described by Justice
Zinn in Ali v Canada (Minister of Citizenship and Immigration), 2014 FC
469, in any case the degree of hardship to the child must be assessed and
weighed:
[10] Accordingly, part of the officer’s
task in determining what is in the best interests of the children is to assess
the likely degree of hardship to the child if the child’s parents are removed
from Canada. Where the child too is subject to the removal order, the officer
must also assess the hardship the child will suffer in being removed with the
parents. Where the child has status to remain in Canada, as was the case in Hawthorne,
but not the case here, the officer is also to consider the hardship if the
child leaves with the parents. In any case, the issue for the officer is to
assess the degree of hardship to the child and weigh that hardship against the
other relevant factors, the ultimate goal being to determine what is in the
best interests of that child. At that stage, the interests of the child should
be weighed against all of the other factors under consideration to
determine if removal constitutes “undue,
undeserved, or disproportionate hardship.”
[Emphasis added]
[26]
In my view, regardless of the test applied by
the Visa Officer, the crucial error here was the
failure to consider relevant evidence in the record which directly contradicted
the Visa Officer’s findings concerning the best interests of the Applicant.
[27]
In that regard, it is true that a decision-maker
is not under an obligation to mention all of the evidence in its decision. However,
the more important the evidence that is not mentioned, the more willing a court
may be to infer an erroneous finding of fact without regard to the evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ 1425 at
paras 16-17).
[28]
In the present case, the only evidence that the
Visa Officer mentioned was the Applicant’s birth certificate. He concluded
that since the Applicant had a birth certificate, there was no impediment to
registering her hukou. Therefore, there was insufficient evidence to show that
there was an impediment to her education. The Visa Officer also stated that
there was insufficient evidence to show that the Applicant would suffer
unusual, undeserved or disproportionate hardship as a result of her separation
from her family, that there was no impediment to her family reuniting with her
in China, and, there was no evidence that the Applicant could not continue
living with her relatives in China.
[29]
However, there was evidence on the record which
appears to clearly contradict the Visa Officer’s findings and resultant conclusions.
For example, the Visa Officer did not refer to the sworn statement from the
Applicant’s father and the letters from the Applicant and her sister. The
Applicant’s father’s evidence directly contradicted the Visa Officer’s conclusions
that the Applicant could register for her hukou, that there were no impediments
to the family living together in China, and, that there was no evidence that
the Applicant could not continue living with her relatives in China. It also
described the family’s intention to return to Canada, to join the Applicant’s
father here, and to live here permanently. The letter from the Applicant’s
sister, Angela, explained that she was struggling to adjust to life in China, her wish to return to Canada to attend high school but that she could not do so alone, and,
spoke to the difficulties of having a divided family. The Visa Officer also
did not refer to the letters from the Applicant and her mother.
[30]
As the Visa Officer entirely failed to engage
with this evidence, the decision is unreasonable on this basis (Lin v Canada (Minister of Citizenship and Immigration), 2007 FC 314 at
paras 18-19; Park v Canada (Minister of Citizenship and Immigration),
2011 FC 564 at para 23; Joe v Canada (Minister of Citizenship and
Immigration), 2009 FC 116 at para 30). It is also of note that the Citizenship
and Immigration Canada manual OP-4 Processing
of Applications under section 25 of IRPA emphasizes that officers
should consider all evidence related to the best interests of the child adduced
on an H&C application.
[31]
In my view, the Visa Officer also failed to
address the best interests of the Applicant’s siblings. The jurisprudence of
this Court concerning children otherwise excluded from the family class by s.
117(9)(d) of the IRPA Regulations suggests that the Visa Officer must consider
the scenario of the family being reunited in Canada when considering the best
interests of the child (Kobita v Canada (Minister of Citizenship and
Immigration), 2012 FC 1479 at para 53 [Kobita]; Phyang,
above, at para 20). In Husain, above, at para 21, Justice Heneghan
pointed out that one of the IRPA’s objectives, as found in s. 3(1)(d) of the
IRPA, is family reunification in Canada. Therefore, in that case, where the
child was excluded by the operation of s. 117(9)(d) of the IRPA Regulations,
the Visa Officer should have addressed the possibility of the Applicant child
and her parents being reunited in Canada (Husain, above, at paras
18-22). These decisions are consistent with Kisana, above, where the
Federal Court of Appeal dealt with a child excluded by s. 117(9)(d) and
indicated that an officer must determine whether the child’s best interests,
when weighed against other H&C factors, should allow them to enter Canada (Kisana,
above, at para 38).
[32]
Further, where more than one child is directly
affected, the officer must consider their separate interests and needs (Momcilovic v Canada (Minister of Citizenship and
Immigration), 2005 FC 79 at para 53). Here, the Applicant’s
siblings are both Canadian children and, in my view, were directly affected by
their sister’s presence in China. As Canadian citizens being forced to move
back to China with their parents, their situation was very different from that
of their sister. They are dependent children, aged roughly 14 and 6, and
cannot relocate to Canada at any time, as the Respondent suggests. Angela had
lived most of her formative years in Canada. The evidence indicated that
Angela was struggling in China, she wished to return to Canada, and, that the separation from her sister was difficult on her and the family.
However, the Visa Officer did not mention that evidence. Nor did the Visa Officer
mention her brother, Bryan, in the decision. Nor is there evidence to support
the Respondent’s assertion that the Canadian children were familiar with the
language and culture of China, in particular the youngest who was born in Canada. The evidence also does not support the Respondent’s characterisation of the move
of part of the family back to China as a voluntary and private decision.
[33]
In my view the Visa Officer should have used the
Applicant’s potential life in Canada as a point of comparison in considering
her best interests (Hawthorne, above, at para 41). Instead, the Visa Officer
considered only the status quo of the Applicant’s life in China, and whether there was any impediment to her remaining there.
[34]
Finally, I would note that the jurisprudence
cited by the Applicant affirms that when an applicant has been excluded
pursuant to s. 117(9)(d) of the IRPA Regulations, it is an error for an officer
to give undue weight to the misrepresentation (Aggrey v Canada (Minister of
Citizenship and Immigration), 2012 FC 1425 at paras 8-9; Kobita,
above, at para 35; Phung v Canada (Minister of Citizenship and Immigration),
2012 FC 585 at paras 34-36 [Phung]). In Sultana v Canada
(Minister of Citizenship and Immigration), 2009 FC 533 at para 25 [Sultana],
Justice de Montigny noted the importance of a full consideration of H&C
factors when an applicant is excluded by the operation of s. 117(9)(d) of the
IRPA Regulations:
[25] … the presence of section 25 in the IRPA has been
found to guard against IRPA non-compliance
with the international human rights instruments to which Canada is signatory
due to paragraph 117(9)(d):
de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (CanLII),
2005 FCA 436, [2006] 3 F.C.R. 655, at paragraphs 102–109. If that provision is
to be meaningful, immigration officers must do more than pay lip service to the
H&C factors brought forward by an applicant, and must truly assess them
with a view to deciding whether they are sufficient to counterbalance the harsh
provision of paragraph 117(9)(d).
As my colleague Justice Kelen noted in Hurtado v. Canada
(Minister of Citizenship and Immigration), 2007 FC 552 (CanLII),
2007 FC 552, at paragraph 14, “if the applicant’s misrepresentation were the
only factor to be considered, there would be no room for discretion left to the
Minister under section 25 of the Act.” This is indeed recognized in the Overseas
Processing Manual (OP), Chapter OP 4: Processing of Applications under Section 25 of the IRPA, Appendix F,
where officers are reminded that they should ensure “that their H&C
assessments go beyond an explanation as to why applicants are described by
R117(9)(d) to consider the positive factors an applicant has raised in support
of his/her request for an exemption from R117(9)(d).”
[35]
While the Visa Officer was not wrong to take
into account the reasons for non-disclosure in the consideration of H&C
grounds, the decision reads as though the “overriding consideration” was the
failure to disclose (Sultana, above, at paras 30-31). More than half of
the reasons simply recite the facts as to why the Applicant’s parents did not
disclose her on their applications. And, as noted above, the Visa Officer
ignored or overlooked the evidence that supported key aspects of the
Applicant’s claim and then found that there was insufficient evidence of
hardship. In my view, in these circumstances, as in Phung, above, at
para 36 and Sultana, above, the Visa Officer’s fixation on this factor
prevented him from genuinely assessing the H&C considerations that the
Applicant had raised.
[36]
The Visa Officer also found that the Applicant’s
mother’s explanation as to why her parents failed to declare the Applicant at
the airport on landing was implausible, being that her mother’s moderate level
of English was sufficient for her to have understood that she needed to declare
the Applicant. This appears to be a credibility finding which, while not
decisive to the present application, further demonstrates that the Visa Officer
was focused on the reasons why the parents did not declare the Applicant rather
than on H&C considerations.
[37]
Given my findings above and the conclusion that
the decision was unreasonable, it is not necessary to consider the other
matters raised by the parties in their submissions.
Email this Content