Gallardo v. Canada (Minister of Citizenship and Immigration), 2003 FCT 45

Date: 20030120

Docket: IMM-3019-01

Neutral citation: 2003 FCT 45

BETWEEN:

MONICA VARGAS GALLARDO,

EVELYN DAINA REYES,

BRAIAN ADRIAN REYES, and

KEVIN MAXIMILLIAN REYES

                                                                                                                                                       Applicants

                                                                              - and -

                                                                THE MINISTER OF

                                                CITIZENSHIP AND IMMIGRATION

                                                                                                                                                     Respondent

                                                            REASONS FOR ORDER

KELEN J.:

[1]                 This is an application for judicial review of the decision of Immigration Officer Brian W. Huzel, dated June 14, 2001, wherein he denied an application on humanitarian and compassionate grounds ("H & C application") made pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") to allow the applicants to apply for permanent residence status from within Canada.

[2]                 The officer found there were insufficient grounds to exempt the applicants from the requirement of applying for permanent residence status from outside of Canada. The applicants seek to have the officer's decision set aside because they allege the officer erred by:

1.                    fettering his discretion by requiring the applicants to show they would suffer "unique" hardship; and,

2.                    failing to be "alert, alive and sensitive" to the best interests of the children in accordance with the Supreme Court of Canada's decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

FACTS

[3]                 Monica Vargas Gallardo, the principal applicant, is a citizen of Chile. Prior to arriving in Canada she resided in Argentina. The other three applicants are her children. On August 23, 1999 the principal applicant arrived in Canada on a six month visitor's visa with her two children to visit her father, mother and younger sister, all of whom reside in Winnipeg. While in Canada the principal applicant gave birth to her third child on November 23, 1999. Her husband remained in Argentina.

[4]                 An H & C application was filed on behalf of the applicants on April 12, 2001. It was denied by Officer Huzel in a decision dated May 31, 2001. In the reasons for his decision, the officer stated:

It is accepted that the economic conditions that the applicant and her children would face in Argentina are less attractive than those in Canada. However, the conditions they would face are no different from many others in many parts of the world. In addition, although there would also be a hardship to her and her children to be separated from their maternal grandparents, there is also a hardship for the family in their extended separation from their father and their paternal grandparents.

In considering all of the available information there are insufficient humanitarian and compassionate factors to warrant and [sic] exemption to A9(1) of the Immigration Act. Therefore, the application for an exemption to the immigrant visa requirement is rejected.

[5]                 Officer Huzel gave the applicants an opportunity to submit additional information and they did so on June 5, 2001. Officer Huzel made a second decision denying the applicants' H & C application on June 14, 2001. In the reasons for that decision, he considered a report from a psychiatrist, Dr. Fred Shane, and the decision of this Court in Jack v. Canada (Minister of Citizenship and Immigration) (2000), 192 F.T.R. 132. He stated:

Dr. Shane's report in many ways serves to reinforce previous statements and arguments. The primary issue that must be considered can be summarised as follows: is there an unusual and undeserved or unique hardship involved in the applicant's [sic] having to apply for an immigrant visa from outside Canada when this would result in the applicant and her children being re-united with their husband and father and his family in Argentina while being separated from the applicant's family in Canada? Unfortunately, whatever decision is made there will be a hardship on the applicant and her children. Therefore, I can not accept that, on balance, having to apply for an immigrant visa from outside Canada represents an unusual and undeserved or unique hardship.

[6]                 And the officer went on to state that the value of Jack was "more tenuous than the applicant's counsel has suggested" because the applicant's Canadian-born child was only 18 months old and had not have developed strong ties to "Canadian society and culture". The officer concluded that there was insufficient evidence to alter the conclusion he arrived at on May 31, 2001.

[7]                 In support of a motion to stay a Removal Order, the principal applicant swore an affidavit, dated May 22, 2002, that contained information that was not before the officer. The Court cannot consider this information in making its decision. It is trite law that judicial review of a decision should proceed only on the basis of the evidence before the decision-maker.

[8]                 The Court cannot weigh new evidence and substitute its decision for that of the immigration officer. The Court does not decide H & C applications. The Court judicially reviews such decisions to ensure they are made in accordance with the law.

[9]                 As counsel for the respondent submitted, the appropriate course is, and would have been, for the applicants to file a new H & C application, or request that the original H & C application be reopened to consider new evidence. It is improper to ask the Court on judicial review to consider new evidence not before the decision-maker.

RELEVANT LEGISLATION - EXEMPTION BASED ON H & C GROUNDS

[10]            Subsection 114(2) of the Act reads as follows:

114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.

114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.

STANDARD OF REVIEW

•       In Baker, supra, Madam Justice L'Heureux-Dubé set out the standard of review to be applied when reviewing an officer's decision on an H & C application is reasonableness simplicter at para. 62:

[...] 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. 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.

[12]            Reasonableness simpliciter means that the officer's decision must stand up to "a somewhat probing examination," see Canada (Director of Investigation and Research, Competition Act) v. Southam, [1997] 1 S.C.R. 748 at para. 56.

ANALYSIS

[13]            At the hearing, the applicants raised two grounds for this application.

First Ground - Fettering of Discretion

[14]               The applicants submit that the officer fettered his discretion by imposing the criterion "unique" to the determination of the H & C application. In the reasons for decision, the officer defined the test for "humanitarian and compassionate grounds" as:

[...] is there an unusual and undeserved or unique hardship involved in the applicants having to apply for an immigrant visa from outside Canada ...

[15]            The officer used the word "unique" five times in his reasons for decision.

[16]            The applicant's submit that the test on an H & C application, as set out in the Inland Processing (IP) Manual, Chapter 5 - Immigrant Applications in Canada made on Humanitarian and Compassionate (H & C) Grounds ("IP Manual"), does not involve "uniqueness". Paragraph 6.1 of the IP Manual defines what is meant by "humanitarian and compassionate grounds":

Applicants making an application under R2.1 are requesting processing in Canada due to compassionate or humanitarian considerations. Subsection R2.1 provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the legislation.

Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.

The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining whether sufficient H & C considerations exist to warrant the requested exemption from A9(1).

Unusual and undeserved hardship

The hardship (of having to apply for an immigrant visa outside of Canada) that the applicant would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act or Regulations, and

The hardship (of having to apply for an immigration visa from outside Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.

Disproportionate hardship

Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances. [emphasis added]

[17]            Hardship is not a term of art, see Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 at para. 9. As the IP Manual notes, the guidelines are to be employed in a flexible manner and do not constitute "hard and fast" rules. Guidelines that direct immigration officers on how to exercise their discretion under subsection 114(2) must be viewed as "rough rules of thumb." If officers were to regard them as inflexible limitations, it would constitute an improper fettering of their discretion, see Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (T.D.).

[18]            Furthermore, the formal requirements of the IP Manual are demanding enough without adding to them "formal requirements as to the words to be used or the approach to be followed" by officers when describing and analysing the relevant factors involved, see Hawthorne at para. 7. While the guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by subsection 114(2), see Baker, supra at para. 72, they do not require an officer to consider particular qualities, tests or measures, see Pereira v. Canada (Minister of Citizenship and Immigration), (1994) 86 F.T.R. 43 at para. 11.

[19]       The Guidelines provide that the meaning of "humanitarian and compassionate grounds" refers to personal circumstances which create hardship if the hardship would be:

• i.                      unusual and undeserved; or,
• ii.                   disproportionate.

[20]       The use of the word "unique" is analogous to "unusual" hardship, i.e. the hardship that would not be faced in the usual circumstances. The use of the word unique is also analogous to "disproportionate", i.e. the hardship would be disproportionate to that of others. In this way, the hardship is unique to the applicants in comparison with the general population. The same argument was presented before Mr. Justice MacKay in Pereira v. Canada (Minister of Citizenship and Immigration) (1994), 86 F.T.R. 43 at paras. 8 and 9. Justice MacKay held:

In my opinion, the use of the terms "unique" and "undue hardship" do not indicate that the officers fettered discretion by seeking evidence of particular or unique qualifications - rather, used in the negative sense as they here are, they are indicative of the officer's assessment that there was nothing unusual about the applicant's situation that would warrant treatment different from that of usual or normal cases.

While the facts in Pereira, supra. are distinguishable, the principle of law is the same. The use of the word "unique" is not fettering the discretion of the officer. Rather, it is an explanation of the appropriate criteria for assessing H & C applications in the sense that it is analogous to the words "unusual" and "disproportionate", as these words are used in the IP Manual.

Second Ground - Best Interests of the Children

[21]       The applicants submit the officer erred by failing to be "alert, alive and sensitive" to the best interests of the children in accordance with the decision in Baker, supra. The relevant portion of Baker is para. 75, in which Madam Justice L'Heureux Dubé stated:

[...] 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.

The applicants submit it is in the best interests of the children to remain in Canada with their maternal grandparents, who provide financial and emotional support for the family.

[22]       The decision in Baker was recently applied in Hawthorne, supra. and Legault v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 277, 2001 FCT 315, rev'd 212 D.L.R. (4th) 139, 2002 FCA 125, leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 220 (QL). In Legault, Mr. Justice Décary, writing for the Federal Court of Appeal, held at para. 12:

In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. 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). [emphasis added]

[23]       In Hawthorne, supra at para. 2, Mr. Justice Décary stated that the decision in Legault stands for the proposition that "the best interests of the child are not determinative of the issue of removal to be decided by the Minister." An immigration officer does not commit an error simply because he or she finds that the children's interests are outweighed by other factors. Rather, the Court must ensure that the officer was "alert, alive and sensitive" to the interests of the children and acted reasonably in finding those interests were outweighed by other considerations.

[24]       The immigration officer must weigh the degree of hardship to the child against the public policy considerations that militate in favour of, or against, the removal of the parent or parents. In Hawthorne, supra., at paragraph 6:

¶ ¶ 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]

In Legault, supra. at paragraph 19, the Federal Court of Appeal held that an immigration officer properly weighs public policy considerations together with the degree of hardship to the children if the parent were removed. In Legault at paragraph 19, the Court stated:

[...] Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada.    In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.

In this case, the principal applicant arrived in Canada pregnant, and gave birth in Canada. She stayed in Canada illegally and sought an H & C exemption on grounds that are the result of her own action.

[25]       The Court finds that Officer Huzel was "alert, alive and sensitive" to the best interests of the applicant's Canadian-born child, and to the interests of the children born in Argentina. The officer's analysis was careful and comprehensive. In his initial decision, dated May 31, 2001, the officer assessed the impact that the removal of the applicants would have upon the children. He concluded that while the economic conditions faced by the applicant and her children in Argentina would be "less attractive than those in Canada", they were "no different from many other parts of the world". Most countries in the world are economically disadvantaged compared to Canada. As a result, if economic hardship were a criterion for H & C exemption, most persons without legal immigration status in Canada would be exempt from the legal requirement that they apply from outside of Canada for permanent resident status.

[26]       The officer also took into account the impact of separation on the children's ties to their maternal grandparents, and concluded that "any hardship that the children would suffer by being separated from their maternal grandparents must be weighed against the effects of their prolonged separation from their father and paternal grandparents".

[27]       As Mr. Justice Décary stated in Hawthorne, supra, while it might be in the children's best interests to remain in Canada, what is being assessed by the officer is whether they will suffer hardship as a result of removal. The children's best interests are one factor to be considered by the officer when making this determination. Officer Huzel balanced the economic hardship on the children and strain of separation from maternal family members against reunification with the children's father and paternal grandparents. There was no evidence that the applicants would suffer any injury or be in danger if returned to Argentina. Accordingly, the officer had a reasonable basis for concluding that there would be no unusual or undeserved hardship suffered by the applicants if they had to apply for an immigrant visa from Argentina. As the officer's conclusion stands up to a probing examination, the Court is not entitled to intervene to re-weigh the factors or substitute its opinion for that of the officer.

[28]       At the hearing I probed the reasonableness of the decision. I queried why there was no evidence about the emotional relationship of the maternal grandparents with the children and their daughter, the principal applicant. Upon reflection, I realize that if this was a major factor it would have been raised by the psychiatrist's report and it would have been raised by the applicants in the submissions before the immigration officer. As stated in the Immigration Manual, and is well-known to counsel, the applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada would be an unusual and undeserved or disproportionate hardship.

[29]       It is not incumbent upon an immigration officer to explore facts which the applicants do not raise. In fact, the psychiatrist's report considered the role of the maternal grandparents in Canada as not being more important than the role of the father and paternal grandparents in Argentina. The officer is not required to consider avenues of possible hardship not raised by the applicants. The onus is on the applicants. See Dawson J. in Robertson v. Canada (Minister of Citizenship and Immigration), [2002] FCJ No.1028 at paragraph 12.

[30]       The psychiatrist, Dr. Shane, concluded it would be in the best interests of the children to remain in Canada because of the greater economic and educational opportunities that are available in Canada. He stated that emotional stability is important for children to properly grow and develop and acknowledged that the children's maternal grandparents were important to maintaining the emotional sustenance of the children. On the other hand, he noted that the principal applicant found the separation from the children's father was a "very difficult situation because he cares about his children."

[31]       It was reasonably open for Officer Huzal to conclude that Dr. Shane's report "in many ways served to reinforce previous statements and arguments". There was little in Dr. Shane's report that was not considered by the officer in his initial analysis of the application. As the officer had already weighed these competing interests in his earlier decision, there was nothing in Dr. Shane's report that called into question his conclusion.

OTHER ISSUES

[32]       There are two final submissions from the applicants. First, the applicants submit the officer erred by not considering the impact on the Canadian-born child if the child was left in Canada. The Court finds that the officer did not err in this respect as this information was not before him. In contrast to her current claim, when interviewed by the visa officer, the principal applicant indicated that the child would accompany her to Argentina if she was removed. The onus is on an applicant to provide facts that support his or her H & C application; an officer is not required to determine what hypothetical facts would support the application, see Ly v. Canada (Minister of Citizenship and Immigration) (2000), 194 F.T.R. 123.

[33]       Second, the Court finds the officer did not err by not directly questioning the children, nor was his decision a violation of the applicants' rights under section 15 of the Charter of Rights and Freedoms.

[34]       Counsel for the applicants raised the following four questions for certification:

(iii)                 Does the requirement to be alert, alive and sensitive to the child's interests, as set out in Baker, shift the burden to impose a duty on the immigration officer to inquire about the child's best interests, beyond what is submitted by the applicant?

(iv)              Is the requirement that the best interests of children be considered when disposing of an application for exemption pursuant to subsection 114(2), as set out in Baker, satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship?

(v)                  Is it improper fettering of discretion to include the word "unique" in the analysis of humanitarian and compassionate circumstances?

(vi)              Can evidence obtained subsequent to the officer's decision be properly considered if such involves the psychological phenomenon known as battered wife syndrome?

[35]       The respondent opposed certification of these questions. I agree with the respondent. Questions numbers (i) and (ii) do not raise new serious questions of general importance not already decided by the Federal Court of Appeal in Legault and Hawthorne. Question number (iii) would not be dispositive of this application based on my finding of fact that the officer did not restrict or fetter his discretion to the prejudice of the applicants. Question number (iv) is answered by allowing the applicants to bring a new H & C application to consider important, credible and relevant evidence obtained subsequent to the officer's decision. However, this evidence is not properly before the Court for the reasons stated herein. Accordingly, no question will be certified.

                                                                      (Signed) Michael A. Kelen                                                                     _______________________

                    JUDGE

OTTAWA, ONTARIO

JANUARY 20, 2003

                        FEDERAL COURT OF CANADA

                              TRIAL DIVISION

             NAMES OF SOLICITORS AND SOLICITORS OF RECORD

DOCKET:                             IMM-3019-01

STYLE OF CAUSE:              Monica Vargas Gallardo, Evelyn Daiana Reyes and Braian Adrian Reyes v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                   Winnipeg, Manitoba

DATE OF HEARING:             December 16, 2002

                              REASONS FOR ORDER OF

                    THE HONOURABLE MR. JUSTICE KELEN

                     DATED MONDAY, JANUARY 20, 2003

APPEARANCES

David Davis                                                     for the Plaintiffs

Sharlene Telles-Langdon                                        for the Defendant

Department of Justice

301 - 310 Broadway

Winnipeg, MB    R3C 0S6

SOLICITORS OF RECORD

Davis & Luk                                                     for the Plaintiffs

Immigration Law

201 - 233 Portage Avenue

Winnipeg, MB    R3B 2A7

Morris Rosenberg                                                 for the Defendant

Deputy Attorney General of Canada