Docket: IMM-2255-17
Citation:
2017 FC 1168
Toronto, Ontario, December 18, 2017
PRESENT: The
Honourable Mr. Justice Grammond
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BETWEEN:
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MINGHUI HSU
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP & IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Mr. Minghui Hsu, is a citizen of
Argentina. He, his spouse, Ms. Xiaozhen Cao, and their daughter came to Canada
in January 2015. He made a claim for refugee status based on events in
Argentina where he was allegedly targeted by criminal groups. His claim for
refugee status was denied, as was his request for a pre-removal risk
assessment.
[2]
Mr. Hsu then made an application to the
Respondent Minister for permission to file an application for permanent
residence while in Canada, based on humanitarian and compassionate [H&C]
grounds. On May 4, 2017, this application was denied. Mr. Hsu now seeks
judicial review of that denial.
[3]
This Court reviews decisions of that nature on a
standard of reasonableness (Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 51, [2015] 3 S.C.R. 909 at para. 44). This means that I must not ask
myself what decision I would have rendered. I must simply ensure that the
decision under review is based on a defensible interpretation of the applicable
legal principles and a reasonable assessment of the evidence before the
decision-maker.
[4]
In this case, the Officer who made the decision
on behalf of the Minister had to apply section 25 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], which says that the Minister
may grant the requested relief if he “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.”
[5]
A decision made under section 25 is
discretionary. The decision-maker must weigh several relevant factors, but
there is no rigid algorithm that determines the outcome. In that context, this
Court’s role is not to assess the relevant factors or to exercise the discretion
anew, but simply to verify that the decision-maker turned his or her mind to
the relevant factors and gave them due consideration.
[6]
Mr. Hsu based his H&C application on the
fact that the members of his family do not possess the same citizenship. He
and his daughter are citizens of Argentina, while his wife is a citizen of the
People’s Republic of China. He alleged that his wife’s status in Argentina had
expired and that as a result, removal from Canada would result in the family’s
separation, which would not be in the best interests of his daughter.
[7]
However, the Officer rejected Mr. Hsu’s claim,
mainly because he was not convinced that the family would have to separate if
they were removed from Canada. He said that Mr. Hsu had “submitted limited information about his family’s
circumstances with regard to their immigration options.” In particular,
there no evidence of the reasons why Ms. Cao would be unable to return to
Argentina or to remain there, beyond Mr. Hsu’s assertion. The Officer also
devoted a substantial portion of his decision to the assessment of the best
interest of Mr. Hsu’s and Ms. Cao’s daughter, who is now 14 years old. He
noted that she would not be separated from her family upon removal from
Canada. He discounted a psychologist’s report that mainly restated Mr. Hsu’s
case and provided little basis for an assertion that she would be negatively
impacted by her return to Argentina. He acknowledged that removal to Argentina
would cause disruption in her life, but noted that she was born and raised in
that country.
[8]
Mr. Hsu essentially asks this Court to perform
its own assessment of the relevant considerations. Beyond restating the
arguments made before the Officer, however, Mr. Hsu does not explain what error
the Officer made, nor why his decision is unreasonable.
[9]
The Officer was alive to the negative
consequences that could result from Mr. Hsu’s family’s removal from Canada.
However, he did not believe that those consequences would include the
separation of the family, as Mr. Hsu contended. On this point, Mr. Hsu had the
burden of proof: Kisana v. Canada (Minister of Citizenship and Immigration),
2009 FCA 189, [2010] 1 FCR 360 (CA), at para. 35. Moreover, the officer did not
find that those consequences were grave enough to mandate relief on H&C grounds.
As the Supreme Court of Canada said in Kanthasamy, “[t]here 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).” (Kanthasamy, at para. 23)
[10]
In particular, the Officer conducted a thorough
examination of the best interests of the child, as mandated by section 25. The
Officer recognized that removal from Canada would entail a certain degree of
hardship to Mr. Hsu’s and Ms. Cao’s daughter, but he noted, on the other hand,
that Argentina was the country where she was born and had lived most of her
life, that she speaks Spanish and that the school system in that country was
adequate. In my view, the Officer performed exactly the kind of assessment
mandated by section 25 of the IRPA, as interpreted in Kanthasamy.
[11]
It was also open to the Officer to discount the
psychologist’s report that purportedly dealt with the best interests of the
child. As noted by the Officer, the report appears to be based mainly, if not
exclusively, on information provided by Mr. Hsu and Ms. Cao. The psychologist
does not say whether she actually met with their daughter. One should not be
surprised to find a certain amount of hearsay in a psychological report, as a
psychologist must usually rely on his or her client’s word with respect to the
facts giving rise to the condition for which the psychologist is consulted (Kanthasamy
at para 49). However, in this case, the report contains nothing of substance
beyond a summary of the facts as recounted by Mr. Hsu and Ms. Cao and an
assertion that it would be best for their daughter to remain in Canada.
[12]
As a result, I am of the view that the decision
under review is reasonable.
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