Date: 20061201
Docket: IMM-299-06
Citation: 2006 FC 1454
Ottawa, Ontario, December 1, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ALEXANDRE FERREIRA SANT'ANNA
SIMONE VASCONCELOS DE ANDRADE
TAYLA VASCONCELOS DE SANT'ANNA (a minor)
Applicants
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of an immigration officer dated December 28, 2005 denying the applicants’
application for permanent residence on humanitarian and compassionate grounds
(the H&C application) pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act (the Act). At issue is whether the immigration officer
adequately considered the best interests of the children.
Background
[2]
The principal applicant, Alexandre Ferreira
Sant’anna (Mr. Sant’Anna), is a 34 year old Brazilian national. His common-law
wife, Simone Vasconcelos de Andrade (the wife), and their 13 year old daughter,
Tayla Vasconcelos de Sant’Anna (the older daughter), are also citizens of Brazil. Mr. Sant’Anna youngest daughter is
four years old and a citizen of Canada by birth (the Canadian daughter).
[3]
The applicants arrived in Canada as visitors in April 22, 2000. Their
motivation for leaving Brazil stemmed
from an incident in which Mr. Sant’Anna’s life was threatened by an armed
assailant. The assailant, in the course of hijacking a public transit bus in Rio de Janeiro, mistook Mr. Sant’Anna for a
police officer whom the assailant had encountered in the past. The assailant
threatened to kill Mr. Sant’Anna and held a gun to his face. Mr. Sant’Anna
provided the assailant with identification and satisfied him that Mr. Sant’Anna
was not the police officer. The assailant then proceeded to rob the rest of the
passengers. Mr. Sant’Anna was left traumatized by the violence and feared going
to work or taking trips with his family. He brought his family to Canada to visit his wife’s family and came
to consider Canada a safe
haven.
[4]
The applicants applied for refugee protection
in May 2002. Their claims were denied on June 24, 2004. The applicants’
credibility was not at issue. However, the Immigration and Refugee Board
determined that the risk of harm faced by the applicants had no nexus to the definition
of a Convention refugee within the Act, and was one faced generally by
Brazilian citizens.
[5]
The applicants first filed H&C applications
on June 25, 2002. In their applications, the applicants submitted that they had
become well established in Canada and that they would be exposed to crime and
violence if they were compelled to return to Brazil. The applications were refused on September 11, 2003. The
immigration officer found that the family would not suffer unusual or undue
hardship if they returned to Brazil.
[6]
The applicants filed new H&C applications on
October 8, 2003. The applicants submitted that they had become well established
in Canada and that it was in
the best interests of their children to remain in Canada. Mr. Sant’Anna had begun a general construction business and
specialized as a bricklayer, a trade which placed him in high demand in Canada. Since 2002, his wife worked as a
contract janitor. The applicants submitted evidence of savings they had
accumulated and their engagement in their community through church and
volunteer activities. The applicants submitted that their children have safe,
stable lives and many opportunities in Canada which they would not have in Brazil. They provided documentation
demonstrating poverty, violence and social instability in Brazil.
Decision Under Review
[7]
On December 28, 2005, the applicants’ H&C
application was denied. The immigration officer determined that Mr. Sant’Anna,
his wife, and his daughters would not suffer excessive or undue hardship if
they were compelled to return to Brazil. The applicants seek a judicial review of this decision.
Relevant Legislation
[8]
The legislation relevant to this application is the
Immigration and Refugee Protection Act, S.C. 2001, c. 27. Subsection
25(1) of the Act, which provides that the Minister must take into account the
best interests of children directly affected and public policy considerations
when deciding whether to grant an exemption requested under an H&C
application, states:
|
Humanitarian and compassionate
considerations
25. (1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet
the requirements of this Act, and may, on the Minister’s own initiative,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
Séjour pour motif
d’ordre humanitaire
25. (1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
Issue
[9]
The only issue raised in this application is
whether the immigration officer erred by failing to adequately consider the
best interests of the children.
Standard of Review
[10]
The appropriate standard of review for H&C
application decisions, as established by the Supreme Court of Canada in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraph 62, is reasonableness:
[…] I conclude that considerable
deference should be accorded to immigration officers exercising the powers
conferred by the legislation, given the fact-specific nature of the inquiry,
its role within the statutory scheme as an exception, the fact that the
decision-maker is the Minister, and the considerable discretion evidenced by
the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court -- Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as "patent unreasonableness". I conclude,
weighing all these factors, that the appropriate standard of review is reasonableness
simpliciter.
[Emphasis added]
[11]
A decision is unreasonable only if there is no
line of analysis within the given reasons that could reasonably lead the
tribunal from the evidence before it to the conclusion at which it arrived.
This means that a decision may satisfy the standard if it is supported by a
tenable explanation even if it is not one that the reviewing courts find
compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
Analysis
[12]
The applicants argue that the immigration officer
erred in failing to consider adequately the best interests of the children in
assessing their H&C application. The applicants rely on the Supreme Court
of Canada’s judgment in Baker, above, which requires that the
immigration officer be alert, alive and sensitive to the best interests of the
children:
¶75 […] The principles discussed
above indicate that, for the exercise of the discretion to fall within the
standard of reasonableness, the decision-maker should consider children's
best interests as an important factor, give them substantial weight, and be
alert, alive and sensitive to them. That is not to say that children's best
interests must always outweigh other considerations, or that there will not be
other reasons for denying an H & C claim even when children's interests are
given this consideration. However, where the interests of children are
minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's
guidelines, the decision will be unreasonable.
[Emphasis
added]
[13]
The applicants also
rely on Mr. Justice Campbell’s judgment in Anthony v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1310, for the proposition that an immigration officer must
assess whether the country conditions were such that it would be in the best
interests of the child to live there as opposed to remaining in Canada. In that
case, Mr. Justice Campbell found that the immigration officer provided a brief
and limited analysis of the applicant’s Canadian born children and erred in not considering the quality of life or
potential hardships the child would face upon removal.
[14]
The applicants argue
that the immigration officer failed to undertake an adequate assessment of the
children’s best interests, limiting instead her analysis to an assessment of
hardship. The officer concluded that neither child would experience undue
hardship if they returned to Brazil. With respect to the older daughter, the
immigration officer stated that she came to Canada when she
was 7 years old after having spent her formative years in Brazil. She would thus be returning to a language and culture with which
she was familiar. The immigration officer acknowledged that the younger
daughter was born in Canada but reasoned that she was too young to have fully
integrated into Canadian society for undue hardship to result from her removal
to Brazil:
I have considered the best interest of their two daughters in Canada. I note their daughter that was born in
Brazil came to Canada when she
was 7 years old. She has been attending school in Canada, but insufficient
information was submitted to satisfy me that she will experience hardship if
she has to return to Brazil with her parents.
Besides she spent her formative years in Brazil with her
parents and grandparents and will return to a language and culture she is
familiar with. With respect to the younger daughter who was born in Canada, she is four years old and has not fully integrated into the
Canadian society for hardship to exist if she has to return with her parents to
Brazil. Furthermore, she is a Canadian citizen, and can
return to Canada at anytime in her life, is [sic] she so desires.
The decision to take or leave their Canadian child in Canada would be one subject and his wife will have to make. The child
however, is familiar with the parent’s language and culture and if she returns
to Brazil with her parents, she should have little
difficulty to integrate into that society.
[Emphasis added]
[15]
The respondent referred the
Court to the Federal Court of Appeal’s more recent judgment in Hawthorne v.
Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, where at paragraphs 5 to 6 Mr. Justice Décary
clarified the immigration officer’s obligation with respect to stating
explicitly the children’s interest in remaining in Canada:
¶5 The officer does not assess the best
interests of the child in a vacuum. The officer may be presumed to know that
living in Canada can offer a child many opportunities and that, as a general
rule, a child living in Canada with her parent is better off than a child
living in Canada without her parent. The inquiry of the officer, it
seems to me, is predicated on the premise, which need not be stated in the
reasons, that the officer will end up finding, absent exceptional
circumstances, that the "child's best interests" factor will play in
favour of the non-removal of the parent. In addition to what I would
describe as this implicit premise, the officer has before her a file wherein
specific reasons are alleged by a parent, by a child or, as in this case, by
both, as to why non-removal of the parent is in the best interests of the
child. These specific reasons must, of course, be carefully examined by the
officer.
¶6 To
simply require that the officer determine whether the child's best interests
favour non-removal is somewhat artificial - such a finding will be a given in
all but a very few, unusual cases. For all practical purposes, the
officer's task is to determine, in the circumstances of each case, the likely
degree of hardship to the child caused by the removal of the parent and to
weigh this degree of hardship together with other factors, including public
policy considerations, that militate in favour of or against the removal of the
parent.
[Emphasis added]
[16]
I do not agree with the applicants’ submission
that the immigration officer was dismissive of the children’s interests.
Rather, I agree with the respondent’s submission that the immigration officer
need not have specifically identified the benefits that would be enjoyed by the
children if allowed to remain in Canada since, as Justice Décary noted in Hawthorne,
above, the officer is presumed to know that a child living in Canada with her
parents is generally better off than a child living in Canada without her parent.
Similarly, it would elevate form over substance, in my view, to require the
immigration officer to specifically identify the obvious disadvantages faced by
children in not remaining in Canada.
[17]
In this case, the immigration officer identified
the children’s interests and demonstrated an appreciation of those interests in
relation to the hardship faced by the applicants in complying with the ordinary
processing requirements outside of Canada. It is obvious that the children’s best interests will almost
always be best served by allowing their parents to remain with them in Canada while pursuing their immigration
application. In light of this reality, immigration officers must consider the
children’s best interests as one factor—albeit a substantial one—to consider
among many in assessing an H&C application.
[18]
I am satisfied that the immigration officer
discharged her duty in this case and reasonably exercised her discretion in
denying the applicants’ H&C application. The immigration officer’s decision
does not have the effect of preventing Mr. Sant’Anna and his family from
returning to Canada, but rather
denotes that the applicants’ circumstances are not so exceptional as to warrant
an exception to the requirements under the Act. The applicants may apply to
become permanent residents of Canada in the normal way. The applicants would clearly be assets to Canada; in particular, the principal
applicant is a skilled worker needed by our country. Both the principal
applicant and his wife have proven themselves to be honest, hardworking,
trustworthy and able to adapt to Canadian culture and values.
[19]
For these reasons, this application for judicial
review must be dismissed. No question has been proposed for certification.
JUDGMENT
ThE Court Orders AND ADJUDGES that:
This
application for judicial review is dismissed.
“Michael
A. Kelen”
Email this Content