Docket: IMM-2326-16
Citation:
2017 FC 27
Ottawa, Ontario, January 9, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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THI HONG DUC NGUYEN
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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
I.
Nature of the Matter
[1]
This is an application for judicial review by
Thi Hong Duc Nguyen [the Applicant] pursuant to s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision
made by a Senior Immigration Officer at Citizenship and Immigration Canada [CIC],
dated May 17, 2016, in which the Applicant’s request for permanent resident
[PR] status on humanitarian and compassionate [H&C] grounds was denied [the
Decision].
[2]
The Court is not asked to, nor may it, reweigh
the evidence. Judicial review is not an opportunity to re-litigate the case
below, nor is it in any way a trial de novo. The over-arching
consideration is not whether the decision below is right or wrong, but whether
it is reasonable or unreasonable. The key question is whether the Decision
falls within the range of outcomes that is defensible on the facts and the law.
[3]
In enacting section 25 of the IRPA, Parliament
gave the Minister of Citizenship and Immigration the authority and
responsibility to apply the correct legal standard and to reach a decision in
H&C matters that is reasonable, as defined by the Supreme Court of Canada
in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]. The
Minister has delegated this authority to H&C Officers so that they may make
such decisions on his behalf. According to the jurisprudence, both the Minister
and his delegated Officer(s) have an exceptional and highly discretionary
authority in this regard. Their authority deserves considerable deference by
the Court.
[4]
While I agree that a different officer might
have come to a different result, the Decision in this case is reasonable and
therefore may not be set aside on judicial review. This application must
therefore be dismissed.
II.
Facts
[5]
The Applicant is a 36-year-old Vietnamese
citizen and mother who has resided in Canada for 10 years. She was granted
permanent resident status on April 25, 2006 and has been residing in Canada
since then. On November 22, 2010, the Immigration Division [ID] of the
Immigration and Refugee Board [IRB] found the Applicant inadmissible due to
misrepresentation under section 40(1)(a) of the IRPA and issued an
exclusion order. The ID found that the Applicant had entered into a fraudulent marriage
with her first husband for no other purpose than to gain PR status in Canada
and, had this information been known at the port-of-entry [POE], she likely
would not have been granted PR status. The Applicant appealed the decision of
the ID and on April 10, 2012, the Immigration Appeal Division [IAD] of the IRB
denied the Applicant’s appeal. The removal order was therefore still in effect.
The Applicant did not leave the country.
[6]
The Applicant applied on three occasions for
permanent resident status on H&C grounds, pursuant to s. 25(1) of the IRPA.
She was denied each time. Her first H&C application was refused in February
2014. The Applicant applied a second time, adding two professional
psychological reports regarding her daughter that had not been included in the
first H&C application. This application was refused in March 2015. The
Applicant applied for judicial review of this decision. Following this Court’s
grant of leave, the Department of Justice consented to the file being sent back
to the IRB for redetermination. The H&C application was updated and a
second report from a psychotherapist, Ms. Natalie Riback, was added. The
Applicant also relied upon an earlier report from a psychologist, Dr. Lynne
Sinclair. This third application was refused on May 17, 2016.
[7]
The Applicant’s first marriage ended in divorce
shortly after her arrival in Canada. The Applicant re-married in 2008, this
time with a different man who she met in Vietnam. They had a child together in
2010; she is now six years old. This child is the focus of much of this
application. The second marriage also ended in divorce and the husband remains
in Vietnam. He plays no role in the child’s life. The Applicant is currently in
a relationship with a Canadian citizen; they have been together for the past
three years. There is evidence they plan to get married when he obtains a
divorce, at which time he may sponsor her.
[8]
The Applicant has been consistently employed and
paying taxes since 2007. She has never been on Canadian social assistance. She
has purchased a residential property in Toronto and has accumulated savings.
She is active in the Buddhist community and has taken part in various volunteer
activities within her community. She alleges she has become an ordained
Buddhist in Canada.
[9]
The Applicant’s daughter is a Canadian citizen
by birth and attends school in Toronto. The Applicant has sole custody of the
child, although the Applicant’s current partner willingly acts as a father
figure. The Applicant is the child’s primary caregiver and plans to take the
child with her should she be forced to return to Vietnam. Her current partner’s
son is around her daughter’s age and they have become very close. The child has
also become close with other family members in Canada, particularly the
Applicant’s niece’s family, with whom they lived until July 2014. The Applicant
points to 16 family members with whom she is in regular contact. The only
family the Applicant has in Vietnam is her elderly mother, aged 72. The
Applicant has siblings in Vietnam but does not have a close relationship with
them.
III.
Decision
[10]
On May 17, 2016, the Applicant’s application for
PR status on H&C grounds was refused. The Immigration Officer considered
the Applicant’s extensive efforts at establishing herself in Toronto but
assigned little weight to this factor:
While I commend the applicant’s efforts in establishing
herself in Canada, I note the applicant’s establishment could not have occurred
without her acquiring her immigration status through fraudulent means. Given
the applicant was not entitled to be in Canada, I attach little weight to the
establishment efforts she has undertaken while in the country.
[11]
Despite noting the Applicant’s close-knit
relationship with her extended family members in Canada, the Immigration
Officer concluded:
…I am not satisfied that separation from
family in Canada would sever the bonds that have been established. While not a
substitute for a physical presence, regular contact could be realized through
various means of telecommunication. Inevitably, deportation would cause some
psychological and emotional upset for the applicant. Although unfortunate, I
find the separation from family members that would ensue for the applicant to
be an inherent consequence of removal from Canada.
[12]
In the BIOC assessment, the Immigration Officer
noted the strong and loving relationship shared between the child and the
Applicant’s partner, also noting that having him and her extended family
members in her life would undoubtedly be beneficial to the child. However, the
Officer concluded:
Notwithstanding, based on the information
before me, it would appear that the applicant continues to be the primary
caregiver for the child. Jessica remains wholly dependent on her mother. The
applicant has stated that if forced to return to Vietnam as a mother with a
daughter that is completely reliant upon her, she will take Jessica to Vietnam
with her. As the early years in a child’s life are essential for establishing
and maintaining emotional relationships with their parents, the bond between
mother and daughter would only be strengthened by remaining in close contact.
[13]
Making note of the conclusions contained in the
Dr. Riback’s report, the Officer found the child to be too young to “recognize or experience significant ties to any country”
and noted that the Applicant would be able to guide the child through the transition.
The Officer noted that comparative socio-economic advantages are not in and of
themselves determinative, and that “education is
compulsory, free and universal through age 14” in Vietnam. The Officer
concluded, “…I do not find the applicant has provided
sufficient objective evidence to demonstrate that her removal from Canada would
adversely affect her daughter.”
[14]
The Immigration Officer concluded that the
Applicant failed to adduce sufficient evidence to confirm that potential
treatment for her alleged mental health disorders were unavailable in Vietnam.
The Officer acknowledged the Applicant’s depression and anxiety, which the
Applicant claimed to be a result of her impending removal from Canada, but was
not satisfied that “the applicant had a reasonable
expectation that she would be allowed to remain in Canada permanently since her
resident status was obtained through fraudulent means and removal could have
become an eventuality”. The Officer found the evidence supplied by the
Applicant in support of her claim that she would be stigmatized, face rampant
sexism and be unable to find work to be scant, uncorroborated, and
insufficient. The Officer ultimately found that an exemption under subsection
25(1) of the IRPA unjustified.
[15]
It is from this decision that the Applicant
seeks judicial review.
IV.
Issues
[16]
This application raises the following issues:
1.
Whether the Office applied the correct legal
test for BIOC?
2.
Whether the Immigration Officer’s unreasonably
assigned little weight to the Applicant’s establishment?
3.
Whether the Immigration Officer’s unreasonably assessed
the reports of the psychotherapist and psychologist in terms of the Applicant
and the child?
V.
Standard of Review
[17]
In Dunsmuir, above at paras 57, 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.” A review of an officer’s findings of
fact in an H&C application is conducted on the reasonableness standard: Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61 at para 44 [Kanthasamy];
Ramirez v Canada (Minister of Citizenship and Immigration), 2006 FC 1404
at para 30; Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18. The decision of whether to grant or deny an exception
for humanitarian and compassionate reasons is “exceptional
and highly discretionary; thus deserving of considerable deference by the
Court”: Qureshi v Canada (Minister of Citizenship and Immigration),
2012 FC 335 at para 30.
[18]
The Respondent submits that the highly
discretionary nature of H&C assessments results in a “wider scope of possible reasonable outcomes”: Holder
v Canada (Minister of Citizenship and Immigration), 2012 FC 337 at para 18;
Inneh v Canada (Minister of Citizenship and Immigration), 2009 FC 108 at
para 13. I agree.
[19]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
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.
[20]
The choice of the correct legal test for
determining the best interests of a child is reviewed on the correctness
standard: Etienne v Canada (Minister of Citizenship and Immigration), 2014
FC 937 at para 6. In Dunsmuir at para 50, the Supreme Court of Canada
explained what is required when conducting a review on the correctness
standard:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
[21]
In addition, the Supreme Court of Canada has
instructed that judicial review is not a line-by-line treasure hunt for errors;
the Decision must be reviewed as an organic whole: Communications, Energy
and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34 at para 54.
VI.
Analysis
Issue 1:- Whether
the Office applied the correct legal test for BIOC?
[22]
It is appropriate to start with the legal test,
because that is critical. With respect, I am not persuaded that the Officer
applied the wrong legal test for BIOC. I say this for several reasons.
[23]
First, nowhere in the Decision does the Officer
use the expression “undue, undeserved or
disproportionate hardship”, which was the test at issue in the Supreme
Court of Canada’s judgment in Kanthasamy. This moves the discussion
considerably against the Applicant’s assertion, although I accept that the
Court must do more than simply see if the words used offend legal rules; it is
necessary in some cases to examine the decision to determine if the
decision-maker resorted to a disguised form of impermissible review.
[24]
In her memorandum, the Applicant pointed to the
Officer’s use of the words “may be difficult”
and that a move to Vietnam would not be “detrimental to
[the child’s] culture, social, physical and emotional development,” to
support her argument. I do not read these as evidence that the Officer was applying
the wrong test. In fact, the use of the words “detriment”
and “detrimental” were put into play by the
Applicant’s psychologist, Dr. Sinclair, to describe the consequences of the
Applicant and her child leaving Canada. In my view, the Officer’s use of those
words took place in the required analysis of the Applicant’s professional
evidence; the Officer tested the facts against the psychologist’s evidence and,
using the Applicant’s own words, came to the opposite conclusion. That is not objectionable.
Moreover, it illustrates that Dr. Sinclair’s assessment was indeed considered,
contrary to what the Applicant argued.
[25]
I am not persuaded the assessment of BIOC must
proceed in a formulaic manner: Diaz v Canada (Minister of Citizenship and
Immigration), 2015 FC 373 at para 30, citing Williams v Canada (Minister
of Citizenship and Immigration), 2012 FC 166. In my respectful view, it was
open for the Supreme Court of Canada to say otherwise in Kanthasamy when
this issue was broached. The Court chose not to do so and I do not take its
silence on the matter to as constituting an endorsement.
[26]
The Applicant is correct in noting that Kanthasamy
brought about a change in the law, re-establishing Chirwa v Canada (Minister
of Citizenship and Immigration), [1970] IABD No 1 [Chirwa], as one
of governing principles, in combination with the Guidelines, to be applied in
H&C matters:
[13] The meaning of the phrase
“humanitarian and compassionate considerations” was first discussed by the
Immigration Appeal Board in the case of Chirwa v. Canada (Minister of
Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the
Board, Janet Scott, held that humanitarian and compassionate considerations
refer to “those facts, established by the evidence, which would excite in a
reasonable man [sic] in a civilized community a desire to relieve the
misfortunes of another — so long as these misfortunes ‘warrant the granting of
special relief’ from the effect of the provisions of the Immigration Act”: p.
350. This definition was inspired by the dictionary definition of the term
“compassion”, which covers “sorrow or pity excited by the distress or
misfortunes of another, sympathy”: Chirwa, at p. 350. The Board
acknowledged that “this definition implies an element of subjectivity”, but
said there also had to be objective evidence upon which special relief ought to
be granted: Chirwa, at p. 350.
Kansathamy, above
at paras 13, 31.
[27]
It is important to note that the majority in Kanthasamy
does not reject the “unusual and undeserved or
disproportionate hardship” test. In fact, that is the reverse of what
the Supreme Court determined. While Kanthasamy found that those words
could not be “determinative” or “the only possible formulation” of H&C
considerations, the Court also said that the Guidelines remained “helpful” (para 31) and “useful”
(para 32) and that the Chirwa approach should be considered “as co-extensive with the Guidelines” (para 30):
[30] A second approach is found in decisions
which treat Chirwa less categorically, using the language in Chirwa as
co-extensive with the Guidelines: see Lim v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 956, at paras. 16-17 (CanLII); Chen v. Canada
(Minister of Citizenship and Immigration), 232 F.T.R. 118, at para. 15. In
these decisions, the Federal Court and Federal Court of Appeal have made it
clear that the Guidelines and the “unusual and undeserved or disproportionate
hardship” threshold merely provide assistance to the immigration officer but
that they should not be interpreted as fettering the immigration officer’s
discretion to consider factors other than those listed in the Guidelines. In Hawthorne
v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, the
Federal Court of Appeal noted that the Guidelines are “not meant as ‘hard and
fast’ rules” and are, rather, “an attempt to provide guidance to decision
makers when they exercise their discretion”: para. 9. And in Singh v. Canada
(Minister of Citizenship and Immigration), 2014 FC 621, the Federal Court
noted that humanitarian and compassionate considerations “are not limited . . .
to hardship” and that the “Guidelines can only be of limited use because they
cannot fetter the discretion given by Parliament”: paras. 10 and 12 (CanLII).
[31] This second approach, which seems to me
to be more consistent with the goals of s. 25(1), focuses more on the equitable
underlying purpose of the humanitarian and compassionate relief application
process. It sees the words in the Guidelines as being helpful in assessing when
relief should be granted in a given case, but does not treat them as the only
possible formulation of when there are humanitarian and compassionate grounds
justifying the exercise of discretion.
[32] There is no doubt, as this Court has
recognized, that the Guidelines are useful in indicating what constitutes a
reasonable interpretation of a given provision of the Immigration and
Refugee Protection Act, SC 2001, c 27. Agraira, at para. 85. But as
the Guidelines themselves acknowledge, they are “not legally binding” and are
“not intended to be either exhaustive or restrictive”: Inland Processing, s.
5. Officers can, in other words, consider the Guidelines in the
exercise of their discretion, but should turn “[their] mind[s] to the specific
circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans
with the assistance of Christine E. Deacon, Judicial Review of Administrative
Action in Canada (loose-leaf), at p. 12-45. They should not fetter their
discretion by treating these informal Guidelines as if they were mandatory
requirements that limit the equitable humanitarian and compassionate discretion
granted by s. 25(1): see Maple Lodge Farms Ltd. v. Canada, [1982] 2
S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration),
[2004] 3 F.C.R. 195 (C.A.), at para. 71.
[28]
In addition, Kanthasamy explicitly states
that the H&C mechanism is not an “alternative
immigration scheme”. It emphasizes that the H&C officers must review
“all the relevant facts and factors before them”
[emphasis in original]. With the exception of the BIOC analysis, a review of
this sort necessarily includes an analysis of the hardship to be faced by an
applicant:
[23] There will inevitably be some
hardship associated with being required to leave Canada. This alone will not
generally be sufficient to warrant relief on humanitarian and compassionate
grounds under s. 25(1): see Rizvi v. Canada (Minister of Citizenship and
Immigration), 2009 FC 463, at para. 13 (CanLII); Irimie v. Canada
(Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206
(F.C.T.D), at para. 12. Nor was s. 25(1) intended to be an alternative
immigration scheme: House of Commons, Standing Committee on Citizenship and
Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at
15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess.,
37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).
[24] And, as is stated in s. 25 (1.3), added
to the Act in 2010 (S.C. 2010, c. 8), s. 25(1) is not meant to duplicate
refugee proceedings under s. 96 or s. 97(1), which assess whether the applicant
has established a well-founded fear of persecution, risk of torture, risk to
life, or risk of cruel and unusual treatment or punishment.
[25] What does warrant relief will
clearly vary depending on the facts and context of the case, but officers
making humanitarian and compassionate determinations must substantively
consider and weigh all the relevant facts and factors before them:
Baker, at paras. 74-75.
[emphasis in original]
[29]
The Applicant asked me to find that Kanthasamy
has brought an end to the principle that H&C relief is extraordinary, as was
held in Khosa v Canada (Minister of Citizenship and Immigration), 2007
FCA 24 at para 6, citing Chieu v Canada
(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84 [Chieu]. With respect, there is no such
injunction in Kanthasamy. While raised in the dissent, the majority is
silent on this point. It is difficult to construe the Supreme Court of Canada’s
silence as effecting a change in the law, given the Court had the opportunity
to do so explicitly had that been its intent. Since section 25 of IRPA
is not a parallel or “alternative immigration scheme”,
it seems to me that H&C considerations are still properly considered to be extraordinary
and, as Chirwa put it, a form of “special
relief”.
[30]
I am therefore not persuaded the Officer applied
an incorrect test to determine either the BIOC or the H&C as a whole. On
this ground, therefore, judicial review cannot succeed.
Issue 2: Whether the Immigration Officer’s unreasonably
assigned little weight to the Applicant’s establishment?
[31]
As noted above, the Officer assessed the
Applicant’s establishment and, having done so, attached little weight to the
Applicant’s establishment efforts:
While I commend the applicant’s efforts in
establishing herself in Canada, I note the applicant’s establishment could not
have occurred without her acquiring her immigration status through fraudulent
means. Given the applicant was not entitled to be in Canada, I attach little
weight to the establishment efforts she has undertaken while in the country.
[32]
Over a number of years, this Court, has adopted
the following statement of principles on judicial review, as set out in Millette
v Canada (Minister of Citizenship and Immigration), 2012 FC 542, Russell J:
[41] As the Decision makes clear, the
Officer was aware that the Applicant had been in Canada for over 15 years, and
he specifically deals with the years since her failed refugee claim. The
Applicant cannot expect to profit from the earlier years when she lived and
worked here illegally. It would mean that someone who manages to remain here illegally
would be better placed than someone who has respected the system. As Justice
Nadon pointed out in Tartchinska v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 373 (FC) at paragraphs 21 and 22:
More importantly, the Guidelines
certainly do not suggest that an applicant must pursue self-sufficiency at all
cost and without regard to the means. I therefore disagree with the Applicants’
argument that “[i]t is irrelevant whether self-sufficiency is pursued with or
without a work permit.” In my opinion, the source of one’s self-sufficiency is
very relevant; otherwise, anyone could claim an exemption on the basis of
self-sufficiency even if that self-sufficiency derived from illegal activities.
I appreciate that in this case the Applicants worked honestly, albeit
illegally. Nonetheless, the Applicants knowingly attempted to circumvent the
system when they chose to continue working without authorization. Indeed,
despite being told during their first interview that they were not authorized
to work and that they should cease, there was no indication that the Applicants
had given up their employment at the time of the second interview. Moreover,
their lawyer had cautioned them about the risks of working without a work
permit as well as on the ostensible benefit of showing self-sufficiency
(regardless of its source), and they chose to remain in Canada and work
illegally.
I understand that the Applicants
hoped that accumulating time in Canada despite a departure order against them
might be looked on favourably insofar as they could demonstrate that they have
adapted well to this country. In my view, however, applicants cannot and should
not be “rewarded” for accumulating time in Canada, when in fact, they have no
legal right to do so. In a similar vein, self-sufficiency should be pursued
legally, and an applicant should not be able to invoke his or her illegal
actions to subsequently claim a benefit such as a Ministerial exemption.
Finally, I take note of the obvious: the purpose of the exemption, in this
case, was to exempt the Applicants from the requirement of applying for status
from abroad, not to exempt them from other statutory provisions such as the
requirement of a valid work permit.
[33]
I appreciate that there will be evidence-based exceptions
to this general principle: see Li v Canada (Minister of Public Safety and
Emergency Preparedness), 2016 FC 451 at paras 34-36, for example. But the importance
of this general principle is reinforced in my view by Kanthasamy’s
reiteration of the law that section 25 of IRPA is not a parallel or “alternative immigration scheme,” which confirms that the
H&C remedy operates within the normal parameters of the IRPA. That, of
course, includes consequences for obtaining permanent resident status by
marriage fraud. While Kanthasamy creates, or perhaps more accurately revives,
the previous law in Chirwa – in terms of the breadth of the considerations
underlying the remedy – it nonetheless requires that all facts and
factors be assessed. I take that to include an applicant’s unlawful entry into
the country. While this Applicant’s illegal entry occurred some time ago, it
cannot be ignored. I note the Applicant maintains her first marriage broke down
due to the infidelity of her first husband.
[34]
In Millette, the Applicant had 15 years
in Canada; here the Applicant has had 10 years. Removal has been a reasonable
possibility for many years and the Officer did not act unreasonably making that
finding. I am unable to find the assessment of establishment to be
unreasonable. It is in accordance with the established jurisprudence and the
conclusion of the Officer, in my respectful view, was backed by the evidence.
The Decision falls within the range of reasonable outcomes open to the Officer in
this case.
Issue 3: Whether the Immigration Officer’s unreasonably
assessed the reports of the psychotherapist and psychologist in terms of the
Applicant and the child?
[35]
The Applicant made several allegations
concerning the inadequacy of the Officer’s consideration of the evidence of the
Applicant’s psychotherapist and psychologist. These allegations are set out
below, in italics. My comments follow each:
•
The Officer did not reasonably consider the
best interests of the child.
a.
This, by far, is the most important
consideration in this case. To begin with, the Officer was clearly “alert, alive and sensitive” to the best interests of
this child. There is no doubt that giving great weight to BIOC factors will not
necessarily result in a family remaining together in Canada. There is no doubt
the evidence will often support the finding that the best interests of a child would
be best served by remaining with parents and extended family in Canada. There
is also little doubt that this could be said of virtually every child with
extended family in Canada who faces removal to their parent’s country of
nationality. In many cases, the only option is for the Canadian child to
accompany her mother to the country to which the custodial parent is returning;
this is the option elected by the Applicant in this case.
b.
In this case, the paramount consideration was
the importance of the child remaining with her mother during her early years
and the child being raised by her. The paramount consideration could therefore
be served whether the child and her mother remain in Canada or in Vietnam. My review
of the Decision leads me to conclude that the BIOC was fairly and reasonably
considered. The Applicant does not agree with it but has not shown how it is
unreasonable.
c.
Moreover, a great portion of the H&C
Decision deals with the BIOC, as one would expect. The Decision addresses BIOC under
several headings, the first being Linkages to Canada. Here, the Officer
acknowledges the argument that the Applicant has become an integral part of her
extended family in Canada. Those she lives with are discussed. There is
appreciation of the close knit family and emotional support both the Applicant
and her daughter receive. But the Officer concludes that separation would not
sever the bonds that have been established and reasonably finds that, while no
substitute for physical presence, regular contact can be maintained by
telecommunication. The Officer notes, as does the Supreme Court of Canada in
paragraph 23 of Kanthasamy, that there will inevitably be some hardship
associated with being required to leave Canada and that, as Kanthasamy
put it, “this alone will not generally be sufficient to
warrant relief on humanitarian and compassionate grounds under s. 25(1)”.
I am unable to find that the Officer concluded unreasonably in this connection.
d.
Under the heading Best Interests of the Child,
the Officer reasonably captured the essence of the Applicant’s submissions as
well as those of her psychotherapist and psychologist. The Officer concluded
that the Applicant is the primary caregiver upon whom the child is wholly
dependent and completely reliant. This conclusion was urged and supported by
the professional evidence. The Officer held that the early years are essential
for establishing and maintaining emotional relationships with parents, and
therefore reasonably found, that the child’s best interests would be served by
returning to Vietnam with the Applicant. The Officer also noted the Applicant
had used babysitters to look after the child while they lived in Canada;
therefore, absent evidence to the contrary, similar arrangements could be made in Vietnam. The Officer specifically noted the concerns of Dr. Riback regarding
the child’s psychological, social and educational development, ultimately
finding that the child was not yet of an age where she would recognize or
experience significant ties to any country. Furthermore, the child would
continue to have the full benefit of care from her mother to guide her through
the transitional phase of resettlement. The Officer found that the Applicant’s
direction and support would enable the child to adjust to living in Vietnam and
therefore rejected the Applicant’s concerns regarding the child’s cultural,
social, physical and emotional development. The Officer noted the “intrinsic resiliency” accompanying the child’s young
age and was satisfied of her capability to assimilate to a new scholastic
environment, after a period of adjustment. The Officer also dealt with the
concerns of both Drs. Sinclair and Riback, regarding the Applicant’s
depression, under the heading Factors in Country of Origin; I will deal
with these reports later.
•
The Officer was overly focused on the Applicant’s
breach of the IRPA underlying her initial arrival in Canada. In the Officer’s
Decision, every positive factor is tainted by the negative factor of the Applicant’s
original misrepresentation; the decision is therefore about punishment, not
H&C.
a.
Here again, I disagree with the Applicant’s
argument. The fact of the fraudulent marriage is first referred to by the
Officer with respect to the Applicant’s establishment, and reasonably so as
noted above. It is referred to again in connection with the Applicant’s
depression, where the Officer agrees the Applicant’s concern about and reaction
to removal was comprehensible. These references to the initial
misrepresentation are reasonable. The Officer was not satisfied that the Applicant
had a reasonable expectation that she would be allowed to remain permanently.
This, too, is reasonable; the fact remains the Officer had a duty under Kanthasamy
to assess the Applicant’s wish to stay with the way she chose to enter Canada.
I do not see the breach permeating the decision; rather, it is considered where
it is relevant. The consequence of ignoring it would be to allow all those who
enter Canada illegally to be assessed as if they entered legally, which,
according to this Court’s jurisprudence of this Court, is not the entitlement
of such claimants.
•
Dr. Sinclair’s concern regarding the
Applicant falling into deep depression was ignored, as was her vulnerability to
severe depression and her evidence of the high likelihood of hardship in
Vietnam, with negative consequences for the child. The Officer failed to assess
the impact of returning to Vietnam and made the final Decision without regard
to the lesser availability of mental health care clinics in Vietnam like those in
Canada.
a.
I have already noted one instance where Dr.
Sinclair’s report was considered, albeit without being accepted. I should add
that the evidence of the psychotherapist was similar. The Officer did assess
this concern and, as noted, found it to be comprehensible in one respect. In
terms of her removal, the Officer also briefly assessed the effect removal from
Canada would have on the mental health of the Applicant. Kanthasamy (at
para 48) requires such factors to be identified and weighed, “regardless of whether there is treatment available”.
The Officer recognized that “potential treatment was
required” – this was a reasonable assessment. The Officer then concluded,
based on the evidence, that there was not “sufficient
objective evidence confirming that the potential required treatment, should [the
Applicant’s] mental health decline upon returning, is unavailable in Vietnam.”
Such a finding ultimately comes down to assessing the evidence. The Officer in
this case found the evidence was lacking. The Officer also noted that, while
not extensive by Canadian standards, treatment and services are available for
those experiencing mental health disorders in Vietnam. The record supports
these findings; they are defensible on the record and are therefore reasonable
per Dunsmuir.
[36]
At the hearing, both parties reviewed the
evidence; the Applicant’s review was conducted in considerable detail, given
she had the burden of establishing unreasonableness and setting the evidentiary
stage. I agree this is a difficult case, and I am sympathetic to the
Applicant’s position.
[37]
At the end of the day, it is necessary for the
Court to stand back and assess the Decision as an organic whole, determine if
it meets the Dunsmuir tests and accords with Kanthasamy in terms
of the best interests of the child. As noted above, the correct legal approach
was taken in regards to the best interests of the child. In terms of
reasonableness, the Decision is justified, transparent and intelligible. In my
respectful view, the Decision also falls within the range of outcomes that are
defensible in terms of the facts and law, as required by Dunsmuir. The
Decision is therefore reasonable, as defined by the Supreme Court of Canada. Judicial
review must be dismissed.
VII.
Certified question
[38]
Neither party proposed a question of general
importance and none arises.
VIII.
Conclusion
[39]
The application for judicial review must be
dismissed and no question is certified.
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