Docket: IMM-1756-15
Citation:
2015 FC 1144
[UNREVISED ENGLISH TRANSLATION]
Ottawa, Ontario, October 21, 2015
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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HANANE BOUAFIA
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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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AMENDED JUGEMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision of a senior immigration officer [officer] of
Citizenship and Immigration Canada, dated March 23, 2015, rejecting the
application for permanent residence based on humanitarian and compassionate
considerations made by the applicant.
II.
Facts
[2]
The applicant, Hanane Bouafia, is a 43-year old
citizen of Algeria. She holds a multiple-entry visitor visa that was issued to
her in 2012. The visa expires on October 25, 2015.
[3]
Her former husband, Hassene Belkhir (64 years
old), and their three children, Ayman Rayan Belkhir (11 years old), Ahmed Laid
Amastan Belkhir (9 years old) and Khadidja El-Batoul Belkhir (6 years old), are
permanent residents of Canada.
[4]
In June 2009, when they were still married, the
applicant and Mr. Belkhir obtained a Selection Certificate in the investor
class. However, following their divorce in October 2009, the applicant ceased
benefitting from the immigration procedure for which Mr. Belkhir was the
principal applicant. As part of the divorce proceedings, the applicant obtained
custody of their three children.
[5]
On July 27, 2012, Mr. Belkhir and his two sons
became permanent residents; his daughter was granted permanent residence
on August 8, 2012.
[6]
The applicant is currently living in the same residence
as her former husband and their children in the province of Quebec. An
application for permanent residence on humanitarian and compassionate grounds
was filed by the applicant on November 25, 2013. In the application, the applicant
requested an exemption from the obligation to apply for permanent residence on
humanitarian and compassionate grounds from outside Canada.
[7]
In support of her request for an exemption from
the obligation to apply for permanent residence from outside the country, the
applicant submits that she wishes to remain with her children, particularly her
six-year old daughter. In addition, given that she has legal custody of the
children, if she were to have to file her application from outside the country,
she would have to bring the children with her, thereby depriving them of the benefits
of being permanent residents. Mr. Belkhir would also be deprived of his
right to visit the children as a result of the geographical distance that would
separate them. It is therefore in the best interests of the children to have
access to both their father and mother.
[8]
The officer refused the request for an exemption
based on humanitarian and compassionate considerations. It is that decision
which is the subject of this judicial review.
III.
Impugned decision
[9]
The officer concluded that the applicant had not
established that a refusal of the exemption would cause her to suffer any
undue, undeserved or disproportionate hardship if she were to have to apply for
a permanent resident visa from outside Canada. Nor would it have a significant
impact on the applicant’s children.
[10]
The officer noted that the applicant failed to
provide enough evidence to show that the multiple-entry visitor’s visa she was
granted would not be a viable option to remain in Canada and be reunited with
her family while she applied for permanent resident status. In short, the
officer found that the applicant had failed to provide sufficient evidence
showing the type of hardship she would face if she were required to file her
application for permanent residence from outside Canada and that such hardship
would be unusual, undeserved or disproportionate. The officer pointed out that
maintaining family bonds is not of an exceptional nature.
IV.
Issue
[11]
The Court considers that the application raises
the following issues:
Did
the officer err in his assessment of the impact on the applicant and children
of a refusal to grant an exemption on humanitarian and compassionate grounds?
V.
Statutory provisions
[12]
The following statutory provisions of the IRPA
apply:
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Application before entering Canada
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Visa et documents
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11. (1)
A foreign national must, before entering Canada, apply to an officer for a
visa or for any other document required by the regulations. The visa or
document may be issued if, following an examination, the officer is satisfied
that the foreign national is not inadmissible and meets the requirements of
this Act.
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11. (1) L’étranger doit, préalablement
à son entrée au Canada, demander à l’agent les visa et autres documents
requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un
contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la
présente loi.
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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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VI.
Position of the parties
[13]
The applicant, relying mainly on Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker],
argues that the officer’s decision was unreasonable because he failed to take
the best interests of the children into consideration. The officer neglected to
consider that a refusal to grant the exemption under subsection 25(1) of the IRPA
would create unusual and disproportionate hardship for the children in addition
to having a harmful and irreversible impact on them.
[14]
For his part, the respondent argues that the
officer’s decision is reasonable. The officer considered all of the evidence,
including the fact that the applicant has a multiple-entry visitor’s visa in
her possession. The applicant having failed to meet her burden of showing that
her situation was an exceptional one that warranted the granting of an
exemption, the officer’s decision was reasonable.
VII.
Standard of review
[15]
An officer’s findings with regard to
humanitarian and compassionate grounds that deal with questions of fact and of
fact and law are reviewable on a standard of reasonableness (Kanthasamy v
Canada (Minister of Citizenship and Immigration), 2014 FCA 113 [Kanthasamy];
Azziz v Canada (Minister of Citizenship and Immigration), 2015 FC 850).
VIII.
Analysis
[16]
Subsection 25(1) of the IRPA is an exception to
subsection 11(1) of the IRPA and allows a foreign national to be granted an
exemption from the requirement to apply for permanent residence from outside
Canada if justified by humanitarian and compassionate considerations. This Court
has ruled on a number of occasions that this discretionary authority in an
exceptional measure (Kanthasamy, above, at para 40; Lim v Canada (Minister
of Citizenship and Immigration), 2014 FC 28 at para 20; Legault v Canada
(Minister of Citizenship and Immigration), 2002 FCA 125). An applicant
seeking such an exemption must demonstrate that following the usual process
provided for in the IRPA would cause unusual, undeserved or disproportionate
hardship to them:
[41] The
Federal Court has repeatedly interpreted subsection 25(1) as requiring proof
that the applicant will personally suffer unusual and undeserved, or
disproportionate hardship arising from the application of what I have called
the normal rule: see, e.g., Singh v. Canada (Minister of Citizenship and Immigration), 2009 FC 11. The hardship must be something
more than the usual consequences of leaving Canada and applying to immigrate
through normal channels: Rizvi
v. Canada (Minister of Employment and Immigration), 2009 FC 463.
(Kanthasamy, above, at para 41)
[17]
When analyzing the best interests of the child,
an officer must be alert, alive and sensitive to the best interests of the
child and must assign considerable weight to this factor (Baker, above, at
para 73). However, although an officer must examine this factor with great
care, it remains but one factor among others:
[A]n applicant is not entitled to an
affirmative result on an H&C application simply because the best interests
of a child favour that result. It will more often than not be in the best
interests of the child to reside with his or her parents in Canada, but this
is but one factor that must be weighed together with all other relevant
factors. It is not for the courts to reweigh the factors considered by an
H&C officer. [Emphasis added.]
(Kisana v Canada (Minister of Citizenship
and Immigration), 2009 FCA 189 at para 24)
[18]
In this case, it appears from the officer’s
decision that he took considerable care in his examination of the best
interests of the children and proceeded with a thorough analysis of the
evidence adduced by the applicant. In particular, the officer considered the
fact that the applicant had a multiple-entry visitor’s visa. The Court also
notes that the applicant did not cite any particular reason that would point to
her children having any specific needs that would require their mother’s
ongoing presence in Canada.
[19]
Thus, the officer assigned considerable weight
to the best interests of the children but found, in taking into consideration
the evidence in the record, that following the usual process would not cause
any unusual, undeserved or disproportionate hardship.
IX.
Conclusion
[20]
For the reasons set out above, the Court finds
that the officer’s decision was reasonable. Accordingly, the application for
judicial review is dismissed.
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