Date: 20061026
Docket: IMM-7593-05
Citation:
2006 FC 1268
Ottawa, Ontario, October 26, 2006
Present:
The Honourable Mr. Justice Shore
BETWEEN:
KHALID
LAABOU
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
As
stated earlier, the legislation and Regulations delegate considerable
discretion to the Minister in deciding whether an exemption should be granted
based upon humanitarian and compassionate considerations. The Regulations state
that “[t]he Minister is . . . authorized to” grant an exemption or otherwise
facilitate the admission to Canada of any person “where the Minister is
satisfied that” this should be done “owing to the existence of compassionate or
humanitarian considerations.” This language signals an intention to leave
considerable choice to the Minister on the question of whether to grant an H
& C application.
. . .
The second
factor is the expertise of the decision-maker. The decision-maker here is the
Minister of Citizenship and Immigration or his or her delegate. The fact that
the formal decision-maker is the Minister is a factor militating in favour of
deference. The Minister has some expertise relative to courts in immigration
matters, particularly with respect to when exemptions should be given from the
requirements that normally apply.
(Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL), at
paragraphs 51 and 59.)
NATURE OF THE PROCEEDING
[2]
This is an
application for leave and judicial review of a decision by a Citizenship and
Immigration Canada (CIC) officer, dated December 14, 2005, refusing the
applicant’s request for exemption from the permanent visa requirement on
humanitarian and compassionate grounds. This decision was made pursuant to
subsection 25(1) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the Act).
FACTS
[3]
The
applicant, Khalid Laabou, is a 32-year-old man and a citizen of Morocco. He
arrived in Canada in November 2003. On December 1, 2003, he applied for refugee
status. His claim was denied by the Refugee Protection Division of the
Immigration and Refugee Board on May 26, 2004. The Federal Court dismissed the
applicant’s application for leave and judicial review of the decision.
[4]
On March 7, 2004, Mr. Laabou married Ms. Hayat
El Mouda, who is a permanent resident of Canada. Their son was born on June 6,
2005.
[5]
On July 5, 2004, Mr. Laabou submitted a request
for exemption from the permanent resident visa requirement in the “Humanitarian
and Compassionate Considerations Class” (APR made on Humanitarian and
Compassionate grounds), together with an application to sponsor and undertaking
signed by his wife.
[6]
According to Mr. Laabou, he was informed in July
2005 that his request would be processed in the prescribed class of spouse or
common-law partner in Canada under the new departmental policy of February
2005; Mr. Laabou’s wife signed a new sponsorship application to that effect.
Based on that, Mr. Laabou signed a form indicating he would not apply for a
Pre-Removal Risk Assessment (PRRA).
[7]
On July 25, 2005, his APR on humanitarian and
compassionate grounds was processed, a new sponsorship undertaking was signed,
and a selection certificate was issued to him.
[8]
On October 13, 2005, Mr. Laabou’s wife left the
matrimonial home with their child, and did not indicate where she was going.
Her reasons for doing so were blocked out in the panel record. Mr. Laabou
states that he had to file a complaint with the police to find his son; they located
the child on November 4, 2005, but could not provide the applicant with the new
address.
[9]
A little more than a month later, Mr. Laabou
filed a motion for separation from bed and board before the Québec Superior
Court, but it appears that the motion has not been heard. Mr. Laabou and
his wife have not cohabited since then.
[10]
The Minister submits that on October 14, 2005,
the applicant’s wife sent a written request to CIC to withdraw her sponsorship.
Mr. Laabou claims that he was never informed about this written request.
[11]
Mr. Laabou’s wife did not attend the meeting
with CIC on October 26, 2005, to finalize the sponsorship matter.
[12]
Mr. Laabou submits that he was informed on
November 1, 2005, that his application for permanent residence had not been
refused, but had been transferred to the PRRA to assess the humanitarian
grounds and the risks of removal.
[13]
The Minister argues that the sponsorship
application filed by Mr. Laabou’s wife had been withdrawn, and that Mr. Laabou
was informed of this on November 22, 2005.
[14]
On December 14, 2005, the PRRA officer assessed
Mr. Laabou’s request in accordance with general procedures to determine whether
Mr. Laabou would encounter unusual and undeserved or disproportionate hardship
if he were required to leave Canada to submit his APR on humanitarian and
compassionate grounds from outside the country.
[15]
On
December 14, 2005, the immigration officer concluded that requiring Mr. Laabou
to return to Morocco to submit an application for permanent residence would not
result in unusual and undeserved or disproportionate hardship for Mr. Laabou,
and accordingly, his request was refused.
IMPUGNED DECISION
[16]
The
decision that Mr. Laabou seeks to set aside was made under section 25 of the
Act.
[17]
Section 25
of the Act is an exceptional measure and a discretionary one. As noted
by Mr. Justice Frank Iacobucci in Chieu v. Canada (Minister
of Citizenship and Immigration), [2002] 1 S.C.R. 84, [2002] SCC 3 (QL):
[64] … an application to the Minister
under s. 114(2) is essentially a plea to the executive branch for special
consideration which is not even expressly envisaged by the Act.
(See also Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), at
paragraphs 15 and 16.)
[18]
Subsection
11(1) of the Act requires that an immigrant visa be obtained from outside
Canada, and granting an exemption under s. 25 of the Act remains an exceptional
process.
[19]
In this
case, the CIC officer considered all the grounds put forward by Mr. Laabou,
thoroughly analyzed them, and found there were no humanitarian or compassionate
grounds to justify exempting Mr. Laabou from the statutory obligation in
subsection 11(1) of the Act to apply for an immigrant visa before coming to
Canada.
[20]
The CIC
officer refused the APR on humanitarian and compassionate grounds for the
following reasons:
(a) According
to Mr. Laabou’s medical file, his depression was caused by the departure of his
wife and their child. Requiring Mr. Laabou to submit his APR from Morocco
instead of Canada will not change Mr. Laabou’s situation, since he no longer
lives with his wife;
(b) Although
the applicant has a brother in Canada, the rest of his family still lives in
Morocco. Mr. Laabou did not develop many friendships during his stay in Canada.
Accordingly, Mr. Laabou would be no more on his own in Morocco than he would be
in Canada;
(c) As
for the best interests of his Canadian child, he could live with his mother in
Canada and, given his very young age, would not be affected by the absence of
one parent.
(d) Mr.
Laabou’s wife withdrew her sponsorship.
[21]
Thus, the
CIC officer concluded that requiring Mr. Laabou to return to Morocco to submit
his APR on humanitarian and compassionate grounds would not result in unusual
and undeserved or disproportionate hardship.
ISSUE
[22]
Did the
CIC officer make a reviewable error in refusing Mr. Laabou’s application for
exemption?
STANDARD OF REVIEW
[23]
First, it
is well established that an application for exemption is an exceptional measure
and, by its nature, purely discretionary. As such, the standard of review on
applications for visa exemptions is reasonableness simpliciter. This
standard was articulated by Iacobucci J. in Canada (Director of
Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, [1996]
S.C.J. No. 166 (QL) as follows:
…An unreasonable decision is
one that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination. Accordingly, a court reviewing a conclusion on
the reasonableness standard must look to see whether any reasons support it.
The defect, if there is one, could presumably be in the evidentiary foundation
itself or in the logical process by which conclusions are sought to be drawn
from it. . . .
[24]
This same
Court held in Baker, above, that the discretion conferred on an
immigration officer should be accorded a certain degree of deference:
[51] As stated earlier, the
legislation and Regulations delegate considerable discretion to the Minister in
deciding whether an exemption should be granted based upon humanitarian and
compassionate considerations. The Regulations state that “[t]he Minister is . .
. authorized to” grant an exemption or otherwise facilitate the admission to
Canada of any person “where the Minister is satisfied that” this should be done
“owing to the existence of compassionate or humanitarian considerations.” This
language signals an intention to leave considerable choice to the Minister on
the question of whether to grant an H & C application.
. . .
[59] The second factor is the
expertise of the decision-maker. The decision-maker here is the Minister of
Citizenship and Immigration or his or her delegate. The fact that the formal
decision-maker is the Minister is a factor militating in favour of deference.
The Minister has some expertise relative to courts in immigration matters,
particularly with respect to when exemptions should be given from the
requirements that normally apply.
. . .
[62] These factors must be
balanced to arrive at the appropriate standard of review. 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.
ANALYSIS
[25]
Mr. Laabou
challenges the CIC officer’s decision based on the following:
(a) The CIC officer failed to
consider the difficulties Mr. Laabou is encountering with his proceeding in the
civil courts for separation from bed and board and for custody of his child;
(b) The CIC officer failed to
consider how the separation from his child is affecting Mr. Laabou in
light of his medical condition;
(c) The CIC officer failed to
consider Mr. Laabou’s depressive crisis and his need to be near his brother who
resides in Canada;
(d) The CIC officer failed to consider that the
sponsorship had been withdrawn.
[26]
The onus
rests on Mr. Laabou to raise and prove the humanitarian and compassionate
grounds in support of his application:
[8]…And,
since applicants have the onus of establishing the facts on which their claim
rests, they omit pertinent information from their written submissions at their
peril. In our view, Mr. Owusu's H & C application did not adequately raise
the impact of his potential deportation on the best interests of his children
so as to require the officer to consider them.
(Owusu v. Canada (Minister of Citizenship and Immigration),
2004 FCA 38, [2004] F.C.J. No. 158 (QL)).
[27]
In this
context, Mr. Laabou cannot criticize the CIC officer for a less than thorough
review of the humanitarian and compassionate grounds that Mr. Laabou himself
addressed very generally in his submissions.
The officer exercised his
discretion properly
(a) The difficulty alleged in Mr. Laabou’s
civil proceeding
[28]
First,
apart from Mr. Laabou’s originating motion against his wife for separation from
bed and board, nothing in the CIC file indicates that he has taken any concrete
steps to exercise his rights regarding his minor child.
[29]
In the
same vein, there is nothing to indicate that Mr. Laabou will be unable to
exercise his custodial, visitation or access rights – which have not yet been
determined – or to continue the proceeding that he began to request another
access visit with his child.
[30]
Moreover,
the Federal Court has consistently reiterated as in Legault, above, that
the presence of a Canadian child cannot prevent the removal of a parent
residing illegally in Canada:
[12]…the
presence of children, contrary to the conclusion of Justice Nadon, does not
call for a certain result. It is not because the interests of the children
favour the fact that a parent residing illegally in Canada should remain in
Canada (which, as justly stated by Justice Nadon, will generally be the case),
that the Minister must exercise his discretion in favour of said parent.
Parliament has not decided, as of yet, that the presence of children in Canada
constitutes in itself an impediment to any "refoulement" of a parent
illegally residing in Canada (see Langner v. Minister of Employment and
Immigration (1995),184 N.R. 230 (F.C.A.), leave to appeal refused, [1995]
S.C.C.A. No. 241, SCC 24740, August 17, 1995).
[31]
Therefore,
the mere fact that the parent residing illegally in Canada has commenced a
proceeding to obtain custody of his or her child cannot, in itself, defeat the
clear intention of Parliament that all foreign nationals must obtain an
immigrant visa outside of Canada before arriving in Canada, pursuant to
subsection 11(1) of the Act. If it were otherwise, a foreign national who has
begun a proceeding to obtain custody of his or her child would, de facto, have
an unfair advantage over the foreign national who is not divorced.
[32]
In any
event, even if we assume that it would be difficult for Mr. Laabou to exercise
his rights, that temporary situation does not justify granting permanent
residency, which is the practical result of allowing an application for
exemption.
[33]
For all
these reasons, the CIC officer was not required to deal with this factor in
Mr. Laabou’s APR on humanitarian and compassionate grounds. Thus, the
officer made no serious error in this respect.
(b) Mr. Laabou’s separation from his
child, his medical condition and his need to be near his brother
[34]
Mr.
Laabou’s allegations against the CIC officer regarding points (b), (c) and (d),
in particular the officer’s failure to consider or properly assess the effects
of his separation in light of his medical condition, his need to be near his
brother who resides in Canada and the best interests of his child, are without
merit.
[35]
The
officer reviewed the humanitarian and compassionate grounds from two angles:
the applicant’s family situation and the interests of the child who lives in
Canada with his mother in an undisclosed location.
[36]
First, the
CIC officer reviewed the state of Mr. Laabou’s psychological health and, after
this analysis, concluded as follows:
[TRANSLATION]
According to the applicant’s medical
file, this depression was caused by the departure of his wife and their child
to an unknown location . . . in my opinion, requiring him to submit his APR
from Morocco instead of Canada would not change the applicant’s situation since
he no longer lives with his wife, and has had no contact with her or his son
since October 13, 2005.
[37]
Even if
the CIC officer had not conducted an exhaustive analysis of Mr. Laabou’s
psychological health, which is not the case here, it certainly appears that Mr.
Laabou’s grounds do not, in themselves, amount to unusual, excessive or
undeserved hardships calling for an exception to the general scheme that
requires all foreign nationals to apply for permanent residence outside Canada.
[39]
Third, it
is clear from the CIC officer’s reasons that he considered the best interests
of the child, despite the fact that Mr. Laabou presented little or no evidence
regarding the child’s interest that his father not be removed from Canada.
[40]
On this
issue, the CIC officer found that removing Mr. Laabou would not lead to unusual
or excessive hardship for his minor child since the child benefits from his
mother’s presence in Canada. The CIC officer also found that, given the child’s
very young age, he would not be too affected by his father’s absence.
[41]
It is
quite clear that, fundamentally, it is in a child’s interest to either remain
in Canada or to not have his parents, or one of them, be deported. However,
this factor is not determinative (Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2002] F.C.J. No. 1687, at
paragraphs 2 and 5; Baker, above, at paragraph 75; Legault,
above, at paragraph 12).
[42]
Finally,
Mr. Laabou’s submissions express his disagreement with the CIC officer’s
assessment of the evidence. It is not for the Court to re-evaluate the weight
assigned by the CIC officer to the various factors that he considered in
deciding whether or not to grant the application for visa exemption. On this
issue, Mr. Justice Frederick Gibson stated the following in Mann v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 567, [2002] F.C.J.
No. 738 (QL):
[11] I wish to note the able submissions
of counsel for the applicant and the sympathy that, in my view, the applicant's
case attracts. The sympathy evoked flows particularly from the length of time
that the applicant has been in Canada, the difficulties that he has encountered
and, it would appear, overcome while in Canada, his new relationship in Canada
and the Canadian born child of that relationship, and, what I conclude must be
an obvious reality, that the applicant is now closer to his relatives and
friends in Canada than he is likely to be to his family members in India,
particularly having regard to the length of time he has been absent from India
and the divorce proceedings that he has instituted in India. That being said, I
cannot conclude that the Immigration Officer ignored or misinterpreted evidence
before her, took into account irrelevant matters or failed to consider the best
interests of the applicant's Canadian born child. I am satisfied that the
Immigration Officer's notes, quoted earlier in these reasons, reflect
consideration of all of the factors placed before her by the applicant and that
she was bound to consider. That I might have weighed those factors differently
is not a basis on which I might grant this application for judicial review.
[43]
Based on
all the foregoing, the conclusions of the CIC officer are not unreasonable.
CONCLUSION
[44]
In light
of all the foregoing, none of Mr. Laabou’s arguments establish serious grounds for
believing that the CIC officer erred in law or based his decision on erroneous
findings of fact.
[45]
For all
these reasons, the application is dismissed.
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