Docket: IMM-3374-13
Citation:
2014 FC 744
Ottawa, Ontario, July 25, 2014
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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SANDRA PATRICIA GOMEZ JARAMILLO
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EMILY SOPHIA RILEY
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SARAH ELIZABETH RILEY
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
OVERVIEW
[1]
This is an application for judicial review by
Sandra Patricia Gomez Jaramillo (the Principal Applicant) and her daughters,
Emily Sophia Riley and Sarah Elizabeth Riley, under ss. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), seeking to set
aside a decision made by Senior Immigration Officer K. Bilkevitch (the Officer)
of Citizenship and Immigration Canada (CIC) at the Backlog Reduction Office at
1148 Hornby Street in Vancouver, British Columbia (File Number 5290-5752). In
the decision dated April 9, 2013, the Officer refused the Applicants’
application for permanent residence from within Canada on humanitarian and
compassionate (H&C) grounds.
[2]
In my opinion, this application for judicial
review should be dismissed for the reasons set out below.
FACTS
[3]
The Principal Applicant is a citizen of Colombia. The two minor applicants are the Principal Applicant’s daughters. One is a
citizen of the United-States of America and the United Kingdom, and the other
one is a citizen of Brazil and the United Kingdom.
[4]
The Principal Applicant originally left Colombia in 1997 with her husband, who is a citizen of the United Kingdom. They lived and visited
various countries over the next 12 years.
[5]
The Principal Applicant separated from her
husband in 2005 and they divorced in 2009.
[6]
The Principal Applicant entered Canada as a visitor in 2003, 2004, 2006, and 2007.
[7]
The Principal Applicant, with her daughters,
entered Canada as visitors on August 18, 2009.
[8]
On September 3, 2009, the Applicants filed a
claim for refugee protection.
[9]
The Refugee Protection Division rejected this
claim on the grounds that the Applicants’ evidence was inconsistent with a
genuine subjective fear or objective risk.
[10]
The Applicants applied for judicial review of
the Refugee Protection Division’s decision denying her refugee claim, but leave
to appeal was dismissed by this Court April 10, 2013 (Court File No.
IMM-12366-12).
[11]
On June 10, 2012, while waiting for determination
of their refugee claim, the Applicants applied for permanent residency from
within Canada on H&C grounds. More specifically, the Applicants based their
H&C application on their establishment and ties to Canada, on the best interest of the children, and disproportionate hardship if removed from Canada.
[12]
On April 9, 2013, the Officer held that “the elements presented by the applicants in this case are
insufficient to establish that the applicants would suffer unusual and undeserved
or disproportionate hardship if they apply for permanent residence from outside
Canada. I am satisfied that a visa exemption under section 25 of IRPA is not
justified in this case.”
[13]
The Applicants applied for leave and judicial
review of the Officer’s decision on May 9, 2013. Leave was allowed by Justice
Kane on May 2, 2014.
DECISION UNDER REVIEW
[14]
In a letter dated April 9, 2013, the Officer
refused the Applicants’ application for permanent residence from within Canada on H&C grounds.
A.
Risk and Discrimination
[15]
The Officer first noted that since June 29,
2010, due to statutory amendments, officers assessing H&C application must
limit their assessment to risks that don’t fall under s. 96 and s. 97 of the IRPA.
However, he did consider and rule upon discrimination.
[16]
Regarding the risk the Applicants could face in Colombia, the Officer noted that the Applicants failed to provide details as to what kind of risk
they could face in Colombia. The Officer was therefore unable to conclude that
any of the Applicants will face any discrimination upon their return to Colombia. Furthermore, the Officer concludes that there was too little information before
her that demonstrated that current conditions in Colombia would impose unusual
and underserved or disproportionate hardship on the Applicants.
[17]
Regarding the risk the Applicants could face in Brazil, the Officer noted a copy of a denunciation filed on June 1, 2005 in which the
Principal Application stated that her husband had slapped her across the face
once. The Officer then noted that there is little information before her to
demonstrate that the Applicants will face risk of harm or discrimination should
they return to Brazil. No complaint was filed. Further, her spouse had been
civil in the remaining years and visited the children six times a year. There
was no allegation that the Applicant was afraid of her ex-spouse nor that the
children would be at risk in Brazil.
B.
Establishment
[18]
The Officer noted a copy of a separation
agreement and copies of bank statements, which confirmed that the Principal
applicant receives $4200 in child support payments each month. There was no
allegation of default. However, the Officer considered this to be a neutral
factor as the Principal Applicant may continue receiving child support payments
from her former husband in any location at which she and the children will
reside.
[19]
The Officer noted a copy of an Ontario Business
Licence issued to the Principal Applicant’s company, “Saremy
Jewelry Design” in 2010. After assessing the company website at the web
address provided by the Principal Applicant, the Officer noted that the overall
information before her did not demonstrate that the Principal Applicant was
actively developing her jewellery design business in Canada.
[20]
The Officer gave a positive consideration to the
Principal Applicant’s purchase of a house in London, Ontario, but noted that
she had adduced little evidence to demonstrate that having to sell this
property in the event that she had to depart Canada would create hardship that
is unusual and undeserved or disproportionate.
[21]
The Officer considered the Principal Applicant’s
community involvement with Museum London and with CIBC Run for the Cure to be
positive factors in assessing the Applicant.
[22]
The Officer gave some positive consideration to
the Applicants’ involvement with the St. Michael’s Roman Catholic Church in London, Ontario, but was unable to conclude that separating the Applicants from this parish
would impose unusual and undeserved or disproportionate hardship on either the
Applicants or the parish.
[23]
The Officer gave some positive consideration to
the Principal Applicant’s sponsoring of a child in Indonesia, but was unable to
conclude that the she would be unable to continue this sponsorship from Colombia or Brazil.
[24]
The Officer noted that the Applicants’ had
family ties in Canada and the difficulties related to separating them from
their family. However, given the evidence, the Officer was unable to conclude
that their emotional ties to Canada were such that it would cause them unusual
and undeserved or disproportionate hardship to separate from their extended
family.
[25]
The Officer considered the reference letters to
be a positive factor in her assessment, but noted that there was very little
evidence to suggest the degree of hardship that would be imposed on the Applicants
or any other parties in the event of the family’s removal from Canada.
[26]
After having considered the Applicants’ degree
of establishment as a whole, the Officer was not satisfied that their degree of
establishment was greater that what would be expected of other individuals
attempting to adjust to a new country. The Officer found that the Applicants’
degree of establishment in Canada is such that it would not cause them unusual,
undeserved or disproportionate hardship to apply for permanent resident from
outside Canada.
C.
Best Interests of the Child (BIOC)
[27]
The Officer recognized the need to assess the
best interests of the child. He noted the Principal Applicant’s view that
leaving Canada would dramatically affect the lives of her children and herself
and destabilize them. The Officer noted that both the minor applicants have
never lived in Colombia. The Officer acknowledged that they are doing well both
academically and socially, and have adapted well in Canada. The Officer also
noted that the minor applicants have done well in relocating in the past. The
Officer was unable to conclude that the minor applicants would not fare well in
either Colombia or Brazil upon relocation.
[28]
The Officer acknowledged that the two children
underwent rehabilitative program from February 2012 until June 2012 after a car
accident. However, the Officer found that there was insufficient information to
demonstrate that they have not successfully completed the recommended
rehabilitation, nor that they still received or required further
rehabilitation, or whether such services would not be available in Brazil or Colombia.
[29]
The Officer noted that the eldest child had
received counselling services between May 2012 and June 2012. However, the
Officer found no evidence to show whether the child received counselling
services beyond June of 2012, whether she still required counselling services,
or that counselling services would not be available to them in Colombia or Brazil.
[30]
The Officer noted that neither of the minor
applicants submitted a statement to indicate their opinion on the issue or to
express their desire to stay in Canada.
[31]
Overall, the Officer was unable to conclude from
the information provided that relocating to Colombia or Brazil would have a significant negative impact on the minor applicants.
D.
Best Interest of Third Party
[32]
The Officer also considered the best interest of
Jared, a Canadian-born child with a disability. The Officer noted a letter from
Jared’s mother, in which she indicates that her son has a very special bond
with one of the minor applicants. The Officer acknowledged that the two share a
special bond, but added that they could maintain their friendship through
modern communication technology. The Officer concluded that, given the
information provided, she was unable to conclude that the minor applicant’s
departure from Canada would have a significant negative impact on Jared.
E.
Conclusion
[33]
The Officer relied on the following passage from
Justice Strickland in Begum v Canada (Citizenship and Immigration), 2013
FC 265 at para 9:
The H&C process is not meant to eliminate
the hardship inherent in being asked to leave after one has been in place for a
period of time, but to provide relief from unusual, undeserved and
disproportionate hardship that would be caused if an applicant was required to
leave Canada and apply from abroad in the normal fashion.
[34]
After having “carefully
assessed” all of the factors and evidence brought forward by the Applicants,
the Officer concluded that the Applicants were similarly situated to other
prospective immigrants to Canada who must apply abroad in the normal fashion.
The Officer added that: “individually and cumulatively,
the elements presented by the applicants in this case are insufficient to
establish that the applicants would suffer unusual and undeserved or
disproportionate hardship if they apply for permanent residence from outside Canada.” The Officer was satisfied that a visa exemption under s. 25 of the IRPA
was not justified in this case.
ISSUES
[35]
The Applicant submits the following issues:
(i)
Did the Officer err in incorporating the
personalized risk test in the analysis under s. 25?
(ii)
Did the Officer err in assessing the Applicants’
potential hardship in the country of origin?
(iii)
Did the Officer act without jurisdiction, act
beyond their jurisdiction or refuse to exercise their jurisdiction?
(iv)
Did the Officer fail to observe a principal of
natural justice, procedural fairness or other procedure that they were required
by law to observe?
(v)
Did the Officer err in assessing the Applicants’
establishment in Canada?
(vi)
Did the Officer err by failing to consider
evidence of the Applicant’s establishment in Canada?
(vii)
Did the Officer err in assessing the best
interest of the child?
(viii)
Did the Officer fail to properly assess the child’s
best interest?
(ix)
Did the Officer err by ignoring relevant
evidence?
(x)
Whether the decision of the Officer to refuse
the applicant’s H&C application is reasonable per Dunsmuir v New
Brunswick, 2008 SCC 9 (Dunsmuir)?
[36]
The Respondent submits that the issue for this
Court to decide is whether the Officer’s decision was reasonable in the
circumstances?
[37]
In my respectful view, there are only two
issues:
(i)
Was the Officer’s decision regarding the Applicants’
application for permanent residence from within Canada on H&C grounds
reasonable?
(ii)
Did the Officer apply the right legal test to
assess the BIOC?
STANDARD OF REVIEW
[38]
In Dunsmuir at para 62, the Supreme Court
of Canada held that a standard of review analysis is unnecessary where “the jurisprudence has already determined in a satisfactory
manner the degree of deference to be accorded with regard to a particular
category of question.”
[39]
The issue of determining whether the Officer
erred in her decision concerning the Applicants’ application for permanent
residence from within Canada on H&C grounds from within Canada is a mixed
question of fact and law to which the reasonableness standard apply (Adams v
Canada (Citizenship and Immigration), 2009 FC 1193 at para 14; Akinbowale
v Canada (Citizenship and Immigration), 2007 FC 1221 at para 10; Ramirez
v Canada (Citizenship and Immigration), 2006 FC 1404 at para 31).
[40]
In Dunsmuir at para 47, the Supreme Court
of Canada explained:
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.
[41]
The issue of determining whether the Officer
applied the right legal test in assessing the Applicants’ application for
permanent residence from within Canada on H&C grounds is a question of law,
and is therefore to be reviewed on a correctness standard (Williams v Canada
(AG), 2010 FC 701 at para 10; Mcdonald v Canada (Minister of Human
Resources and Skills Development), 2009 FC 1074 at para 6).
A. Applicants’ Submissions
[42]
The Applicants submit that the Officer owed a
duty of care to unrepresented applicants.
[43]
The Applicants submit that the Officer failed to
conduct additional research with respect to issues identified in the
application for permanent residence from within Canada on H&C grounds. Such
additional research is allowed by the Respondent’s manual IP 5. Sources
available to the Officer include the National Documentation Package provided on
the Immigration and Refugee Board of Canada website.
[44]
The Applicants submit that the National
Documentation Status for Colombia supports the Principal Applicant’s
allegations that the minor applicants would be subject to harsh, unsafe
conditions if returned to Colombia. The National Documentation Status for Colombia also demonstrates, according to the Applicants, that a single mother with two
young daughters would face social discrimination and discrimination at the work
place.
[45]
The Applicants submit that the National Documentation
Status for Brazil provides that there is widespread violence and discrimination
against women, violence against children, including sexual abuse, and
discrimination based on gender in employment. It also provides that Brazil is a destination for sex tourism, that it is confronted with serious human rights
challenges and that the Brazilian criminal Code criminalizes abortion.
[46]
The Applicants submit that the Officer erred in
determining that the Principal Applicant still had right to permanent residency
in Brazil.
[47]
The Applicants submits that the Officer failed
to assess how the removal from Canada would affect the whole family, given that
there is no country where every family member might have right to live in. The
Applicants submit that the Officer failed to apply an empathetic approach (Paul
v Canada (Citizenship and Immigration), 2013 FC 1081).
[48]
The Applicants submit that there is no evidence
that the Principal Applicant’s husband would pay child support if the children
were to be removed from Canada. Furthermore, the Applicants submit that nothing
in the separation agreement prevents the minor applicants’ father to seek
custody if they were to be removed from Canada.
[49]
The Applicants submit that the Officer erred in
assessing the Applicants’ degree of establishment, notably as demonstrated by
the letters of support. These letters, the Applicants allege, constitute
evidence that their degree of establishment is exceptional and that the degree
of hardship they would suffer if they were to be removed from Canada would be exceptional.
[50]
The Applicants submit that the Officer had to
proceed to an analysis and assessment of degree of establishment and how it
weighs in favour of granting an exemption. (Sebbe v Canada (Citizenship and Immigration), 2012 FC 813; El Thaher v Canada (Citizenship and
Immigration), 2012 FC 1439). The Applicants further submit that the Officer
only made passing remarks regarding their family ties in Canada.
B. Best Interests of the Child (BIOC)
[51]
Regarding the BIOC analysis, the Applicants
submit that the Officer used the wrong test and instead used an approach which
is unreasonable.
[52]
The Applicants submit that the starting point to
a BIOC analysis is to identify what is the child’s best interest, the degree to
which the child’s interests are compromised by one potential decision over
another, and then determine the weight that this factor should play in the
ultimate balancing of positive and negative factors (Williams v Canada
(Citizenship and Immigration), 2012 FC 166 [Williams]).
[53]
The Applicants allege that the Officer failed to
identify what is the BIOC. They further allege that the Officer failed to apply
the Respondent’s manual IP 5 guidelines regarding the factors that need to be
taken into account in the BIOC analysis.
[54]
The Applicants submit that the Officer was not
alert, alive and sensitive to the children’s interests in not being removed
from Canada and sent to Colombia or Brazil (Gaona v Canada (Citizenship and
Immigration), 2011 FC 1083).
[55]
The Applicants submit that the Officer used a
factor that was supposed to militate towards granting the permanent residence
from within Canada on H&C grounds – the degree of establishment – and used
it against granting the exemption by noting that the minor applicants’
successful establishment and integration in Canada meant that they would adapt
quickly to a new environment if they were to be removed from Canada. The Applicants
further submit that to speculate that they would successfully integrate a new
society is a primary error (Sosi v Canada (Citizenship and Immigration),
2008 FC 1300; Kneasko v Canada (Minister of Citizenship and Immigration),
2006 FC 844).
[56]
The Applicants submit that the Officer committed
a reviewable error in requiring a significant negative impact on the children (Junarine
v Canada (Citizenship and Immigration), 2013 FC 82; Moya v Canada (Citizenship and Immigration), 2012 FC 971).
[57]
The Applicants submit that the Officer failed to
analyse the evidence, such as many letters of support that speak about the
hardship the children would face if removed from Canada.
[58]
The Applicants submit that while the Officer
noted some of the evidence provided by them in support of their application, The
Officer failed to provide reasons regarding how the factors were weighted. The
Applicants submit that a summary restatement of the factors considered by the Officer
followed by a conclusion, does not constitute sufficient analysis (Bajraktarevic
v Canada (Minister of Citizenship and Immigration), 2006 FC 123; Kim v Canada (Minister of Citizenship and Immigration), 2006 FC 244).
[59]
The Applicants further submit that the Officer
ignored much of their application without providing any explanation as to why
the material provided on the application was ignored or unworthy of
consideration. The Applicants allege that the Officer did not provide reasons
for her conclusions (Grant v Canada (Minister of Citizenship and
Immigration), 2005 FC 955; Tindale v Canada (Citizenship and
Immigration), 2012 FC 236).
ANALYSIS
[60]
The basic issue in this judicial review is whether
as the Supreme Court of Canada stated in Dunsmuir, supra, the decision
below meets the reasonableness test that is, whether “the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”.
[61]
In this connection the granting of an H&C
exemption constitutes an exceptional measure that is warranted if an applicant
satisfies an officer that, in their personal circumstances, the requirement to
apply for permanent residence status from outside Canada in the normal manner
would cause “unusual and undeserved or disproportionate
hardship” (Pannu v Canada (Minister of Citizenship and Immigration),
2006 FC 1356 at paras 26, 29; Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 at para 15; Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817). The test of “unusual and undeserved or disproportionate hardship”
was recently affirmed and applied by the Federal Court of Appeal and by this
Court: see Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA
113, Diabate v Canada (Citizenship and Immigration), 2013 FC 129, and Aboubacar
v Canada (Citizenship and Immigration), 2014 FC 714.
[62]
As to the duty of care alleged to lie on the officer
in a case involving an unrepresented applicant, it is clear that the onus lies
on an applicant to satisfy the decision-maker that his or her circumstances are
such that the hardship involved would be unusual and undeserved or
disproportionate. Moreover, the Federal Court of Appeal held in Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 9 [Owusu]
that an oblique, cursory or obscure allegation is insufficient to place a
positive duty on the officer to inquire further. In Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 35 [Kisana],
the Federal Court of Appeal confirmed Owusu in this regard noting: “Moreover, an applicant has the burden of adducing proof of any
claim on which the H&C application relies. Hence, if an applicant provides
no evidence to support the claim, the officer may conclude that it is
baseless.” And see Buio v Canada (Minister of Citizenship and
Immigration), 2007 FC 157.
[63]
In this case the allegation of country and
personal risk was insufficiently detailed in the application to engage a duty
of further inquiry.
[64]
Many of the other alleged errors invite the
Court to assess de novo or retry the various submissions and evidence filed in
the original submission. Because this is not an appeal, such a relitigation of
the case is not within the purview of a judicial review court. As this Court
stated in Maksim v Canada (Minister of Citizenship and Immigration)
(2000), 183 FTR 280 at para 37:
When deciding the issue of whether such a
decision is unreasonable, the reviewing court cannot overstep its role. This is
not an appeal but a judicial review. I cannot review the evidence and
substitute my opinion for that of the immigration officer. The perspective of
the review judge is to examine the evidence before the immigration officer and
determine, in this case, whether there was absence of evidence or was the
decision made contrary to the overwhelming weight of the evidence. I cannot
reach that conclusion.
[65]
With respect to country risk, the same
considerations apply and the Officer’s assessment of itself was reasonable in
the circumstances. Little or no evidence was filed, and certainly not enough to
demonstrate the imposition of unusual and undeserved or disproportionate
hardship.
[66]
The Officer’s assessment with respect to the
Principal Applicant’s Brazilian residency again reasonable in the circumstances
given the sketchy evidence in that regard.
[67]
The Officer’s assessment with respect to
treatment of the family unit, and the husband’s payment of child support if the
children were removed from Canada, were reasonable in and of themselves.
[68]
In terms of assessing the Applicants’ degree of
establishment, the Officer clearly had in mind and indeed quoted from some of
the letters of support filed by the Applicants. In fact, they were given positive
consideration. Likewise the Officer clearly had in mind and referenced the
family and faith ties to Canada. The Officer considered the Principal
Applicant’s community and charitable work, the regard in which she and the
children were held by their peers, the Applicant’s business, her home
ownership, the children’s medical, education, social and other history, and the
other factors noted in the introduction above. These elements were weighed
individually, after which the Officer undertook the collective weighing of
factors raised. The approach was reasonable and the result falls within the
range of acceptable reasonable outcomes.
A. Best Interests of the Child (BIOC)
[69]
After a fairly detailed review of the evidence
filed, the Officer concluded his BIOC analysis stating: “Overall,
I am unable to conclude from the information before me that having to relocate
to Columbia or Brazil would have a significant negative impact on” the
Applicants. Regarding the BIOC analysis, I do not accept the Applicants’ submission
that the Officer applied the wrong legal test.
[70]
Quite properly, there are neither verbal
formulas nor magic words regarding the test for BIOC. However on judicial
review, it is established that an officer must show that he or she is “alert,
alive and sensitive” to the best interests of the child or children concerned.
I conclude that the Officer met and applied this test in this case.
[71]
I agree, as the Respondent submits, that “the fact that the children might be better off in Canada in
terms of general comfort and future opportunities cannot […] be conclusive in
an H&C Decision that is intended to assess undue hardship” because
the outcome would almost always favour Canada (Vasquez v Canada (Minister of
Citizenship and Immigration), 2005 FC 91 at para 43; Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475 at para 5 [Hawthorne];
Li v Canada (Minister of Citizenship and Immigration), 2006 FC 1292 at
para 28; Yue v Canada (Minister of Citizenship and Immigration), 2006 FC
717 at para 9; Ramotar v Canada (Minister of Citizenship and Immigration),
2009 FC 362 at para 37; Miller v Canada (Citizenship and Immigration),
2012 FC 1173 at para 25).
[72]
For example, the Federal Court of Appeal in Kisana,
supra at para 30, dealt with considerations of hardship under the rubric of
BIOC and held that an officer who “focused her
consideration of the children’s best interests on the question of hardship does
not necessarily lead to the conclusion that she failed to consider their best
interests.” To the same effect is Hawthorne, supra, quoted in Kisana,
above.
[73]
Given the acceptance of “hardship”
as an element in the BIOC analyses in this jurisprudence just, I conclude that
reference by this Officer to “significant negative
impact” does not constitute legal error in terms of the applicable legal
test.
[74]
In any event I am not convinced that the Officer
used any test but that of the best interests of the children in this regard,
and I cannot conclude that a reference to “significant
negative impact” in the BIOC analysis points otherwise. On review of the
Officer’s entire BIOC discussion and analysis, I conclude that the Officer was
alert, alive and sensitive to the best interests of the children in this case. Therefore
judicial review is not available in connection with the BIOC assessment and
analysis.
CONCLUSION
[75]
In summary, I do not accept the argument that
the Officer failed to appreciate or properly assess, weigh or evaluate the many
and various points advanced by the Applicants. Having assessed each factor individually,
including BIOC, the Officer was entitled and indeed required to weigh them
collectively in order to come to a conclusion on the H&C application as a
whole, provided only that he or she applied the correct legal tests, which the
Officer did, and that the conclusion falls within the acceptable range of
reasonable outcomes referred to in Dunsmuir, above.
CERTIFICATION OF A QUESTION
[76]
The Respondent requested that this Court certify
a question if the Court relied upon the reasons in Williams, above, and
in that event proposed the same question the Minister’s counsel proposed but
was not stated in Martinez Hoyos v Canada (Citizenship and Immigration),
2013 FC 998 at para 40. The Applicants opposed certification.
[77]
Given the reasons for this decision, the
Respondent’s request is no longer applicable. No question will be certified.
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