Docket: IMM-1823-16
Citation:
2016 FC 1242
[ENGLISH
TRANSLATION]
Ottawa, Ontario, November 8, 2016
PRESENT: The Honourable
Mr. Justice Martineau
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BETWEEN:
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MARIE SANDRA
CADET
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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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JUDGMENT AND REASONS
[1]
The applicant, age 47, is of Haitian origin and
is a single mother of three teenage boys who remained in Haiti.
[2]
On May 20, 2015, the applicant filed an
application for permanent residence in Canada on humanitarian and compassionate
considerations [H & C application] under subsection 25(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 [the Act] on three grounds:
(1) her high degree of establishment in Canada; (2) the risks and unfavourable
conditions in Haiti; and (3) the best interests of her children. On April 13,
2016, a senior immigration officer [the officer] rejected her H & C
application, resulting in this application for judicial review.
[3]
Firstly, note that, with a temporary resident
visa, the applicant arrived in Canada on May 21, 2014. The following month, she
filed a claim for refugee protection, stating that if she had to return to
Haiti, she would be the victim of discrimination because of her sex and could
be extorted. In August 2014, the Refugee Protection Division [RPD] found that
the applicant had an internal flight alternative in Haiti and that her personal
situation was not comparable to that of vulnerable women living in Haiti, who,
because of their specific circumstances, find themselves at risk of persecution
because of their sex. In April 2015, the Refugee Appeal Division [RAD] upheld
the RPD’s decision, noting that the applicant voluntarily returned to Haiti
after previous trips to Canada — thus demonstrating that she had no objective
fear of persecution because she is a woman. That decision was not contested
before the Federal Court.
[4]
Firstly, the respondent is opposed to documents
posterior to the decision under review or new evidence that the officer did not
consider being produced in the Court record. The respondent’s objection is
allowed. The documents posterior to the decision and the additional evidence
the applicant cites in her affidavit do not fall within one of the exceptions
recognized by the case law, i.e., an affidavit: (1) that contains general
information likely to assist the Court in understanding the issues relevant to
the judicial review; (2) that brings attention to procedural defects that
cannot be found in the certified record; and/or (3) that highlights the
complete absence of evidence before the administrative decision-maker when he
made a particular finding (Association of Universities and Colleges of
Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA
22, [2012] FCJ No. 93, at paragraph 20).
[5]
When issues of procedural fairness are raised,
the correctness standard of review applies (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, 1999 CanLII 699 (SCC) at
paragraph 20 [Baker]). Otherwise, if the impugned decision falls within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law, the Court will not intervene (Dunsmuir v New Brunswick,
2008 SCC 9 [2008] SCJ No. 9 at paragraph 47). It is not up to the Court to
reassess the weight that should be given to the evidence, but rather to ensure
that the administrative decision-maker took all of the relevant factors into
account (Baker at paragraphs 54–56, 68, 73–75; Suresh v Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 at
paragraphs 34–38; Mpula v Canada (Minister of Citizenship and Immigration),
2007 FC 456, [2007] FCJ No. 618 at paragraph 26 [Mpula]).
[6]
This application must be dismissed.
[7]
Firstly, the applicant failed to convince me
that the officer breached a principle of procedural fairness by failing to
confirm with her current employer in Canada whether she held a permanent or
temporary position. Nor did the officer commit a reviewable error by giving her
[translation] "the benefit of the doubt that she still has that
position." In her factum, the applicant claims that the officer
also breached procedural fairness by failing to give enough weight to her
personal circumstances, whereas at the hearing, her counsel claimed that the
officer did not have an open mind. In this case, the statements or remarks
found in the impugned decision do not raise any reasonable apprehension of
bias. The fact that the officer did not arrive at the conclusion the applicant
wanted does not mean that there was a breach of procedural fairness.
[8]
Secondly, the impugned decision is clear and
transparent. The reasons behind the refusal to grant relief for humanitarian
and compassionate considerations are clearly articulated; they are neither
irrational nor arbitrary. The officer’s general approach is not subject to
criticism as the applicant claims. On the contrary, the officer began her
decision by reiterating that one of the cornerstones of the Act and its
Regulations is that, prior to their arrival in Canada, people who wish to
obtain permanent residence must submit an application outside of Canada’s
borders, in addition to being eligible for the various conditions of the Act.
In fact, that is the general rule to which an exception applies for those who
can establish the existence of humanitarian and compassionate considerations.
It was in that context that the officer reviewed the applicant’s personal
situation, particularly in light of the Supreme Court of Canada’s recent
teachings in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC
61, [2015] SCJ No. 61. I see no reason to intervene.
[9]
Thirdly, the applicant claims that the officer
erred by focusing solely on the duration of her stay in Canada, disregarding
all of the subjective factors of her establishment. That reproach is unjustified
here. The officer did consider the positive factors, including the applicant’s
integration into the workforce, the good references from her superiors, letters
of support written by her peers describing her involvement in the community,
and lastly her good civil record, free from any charges or police intervention.
The fact remains that after a stay of just under two years, the officer could
reasonably question whether that was sufficient under the circumstances. The
case law and the Act do not a priori establish specific rules on this subject.
I do not think it is unreasonable to conclude that a stay of just under two
years in Canada does not meet the vague notion of "establishment"
within the meaning of the case law—particularly since the duration of the stay
in Canada is not sufficient in itself to justify the remedy for humanitarian
and compassionate considerations (Mpula, at paragraphs 30 and 31).
[10]
Fourthly, with regard to the officer’s analysis
of the unfavourable conditions in Haiti, the applicant argues that the officer
did not place enough importance on the various scourges afflicting the country,
namely the lack of independence of the legal system, cholera, the economic and
severe food crisis, the epidemic sanitary situation and lastly the discrimination
and violence against women. Once again, I must reject the applicant’s
arguments. The officer did examine the unfavourable conditions that affected
Haiti at the time, based on the documentary evidence and the applicant’s
personal situation. The officer concluded that the various problems resulting
from the country’s general instability invariably affect most of its population
and are not personal to the applicant. Moreover, the evidence on file did not
demonstrate in a satisfactory way that the applicant or her family members were
affected by the deplorable sanitary conditions in the country or were likely to
develop various illnesses such as cholera. Given her varied professional
background and her postsecondary education, the applicant did not demonstrate
that she would no longer be able to return to live in the same area, nor that
she would be unable to reintegrate into the workforce. Even considering the
situation of women—which is far from good in Haiti—the officer could reasonably
conclude that the evidence on file was insufficient to justify a remedy based
on that humanitarian consideration.
[11]
Fifthly, concerning the best interests of her
children, the applicant argues that the officer did not give enough weight to
the values of the immigration system and the principles of the Convention on
the Rights of the Child, while the impugned decision causes irreparable harm to
her plans for family reunification, because her eldest son just turned 18 and
she will now be unable to sponsor him. I find that claim to be unfounded. There
is no a priori magic formula an officer must use to assess the best interests
of the child (Hawthorne v Canada (Minister of Citizenship and Immigration),
[2003] 2 FCR 555, 2002 FCA 475 at paragraph 7). The officer will examine the likelihood
of harm being caused to the children by the removal of their parents and the
benefit they could obtain if their parents were to remain in Canada. However,
once again, the evidence submitted to support the H & C application must
make it possible to make these determinations (Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2009] FCJ No. 713 at
paragraphs 34–35). In this case, the applicant’s children remained in Haiti.
The officer also noted the poor evidence the applicant submitted on her
children’s current situation, their dependence on her and the transfer of funds
and the blatant lack of explanations as to who is caring for them in Haiti (or
even the role and support of their father, who is an accountant and apparently lives
in the United States). The officer concluded that although she was receptive,
attentive and sensitive to the best interests of the applicant’s three sons,
and that this was an important factor to which she gave a certain weight, it
was not enough in itself to grant the requested remedy. I also find that
conclusion to be reasonable. Despite the general situation in Haiti, the
evidence on file did not enable the officer to find that the children’s
situation became particularly vulnerable when the applicant left, nor that
their well-being would be compromised if she were to return.
[12]
In short, the officer committed no reviewable
error. The officer could reasonably conclude that the applicant had not
produced enough evidence to demonstrate that her personal situation meets the
humanitarian and compassionate criteria in the Act to enable her to make an
exception to the general rule. There is no doubt that it will be difficult for
the applicant to leave Canada and return to Haiti—especially now considering the
devastating effects of Hurricane Matthew and the increased risk of contracting
cholera. With regard to executing the removal order, which is now enforceable,
it will be up to an enforcement officer to determine, if applicable, whether
the new events that have occurred in Haiti since the decision under review
justify granting the applicant a temporary suspension of removal. Nevertheless,
the officer’s refusal to grant a humanitarian and compassionate remedy does not
remove the applicant’s right to submit an application for landing from outside
of Canada, in accordance with the usual requirement set out in Canadian
immigration legislation.
[13]
The applicant’s application for judicial review
is dismissed. No questions of general importance are raised in this case.
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