Date: 20050125
Docket: IMM-10384-03
Citation: 2005 FC 118
Toronto, Ontario, January 25th, 2005
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
MANUEL JOSE CABRAL RAPOSO
NELIA DA CONCEICAO ALVES DE MEDEIROS RAPOSO
JESSICA MEDEIROS RAPOSO
BIANCA MEDEIROS RAPOSO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an immigration officer (the "officer"), dated December 4, 2003, wherein it was determined that there were insufficient humanitarian and compassionate ("H & C") grounds to warrant processing the applicants' permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] The applicants seek a declaration setting aside the decision and referring the matter back for re-determination in accordance with such directions of the Court as it considers appropriate and any other relief the Court considers appropriate including costs.
Background
[3] The applicants are citizens of Portugal. At the time the H & C application was under consideration, Mr. Cabral Raposo (the "principal applicant") was 33 years old, his wife was 30 years old, their daughter Jessica was ten years old and their daughter Bianca was six years old.
[4] The principal applicant arrived in Canada on June 12, 1999 as a valid visitor.
[5] In July 2001, the Cabral Raposo's third child, Brandon, was born in Canada and is therefore a Canadian citizen.
[6] The applicants made a prior unsuccessful application for landing based on H & C grounds. The applicants then made an unsuccessful claim for refugee status. On July 22, 2002, the applicants submitted a second application for landing based on H & C grounds. That application was refused on December 4, 2003.
[7] The principal applicant works as a roofer. His wife is a homemaker working part-time from home as a dressmaker. The record indicated that the family is involved in their church. The two minor applicants attend the same school in Toronto.
[8] The applicants and Canadian born child all reside with the principal applicant's parents who are permanent residents of Canada. Additionally, there is an extended family consisting of the principal applicant's four siblings who are also permanent residents of Canada, and their respective families. While the principal applicant does not apparently have any family left in Portugal, his wife does have family still living in Portugal.
[9] On June 28, 2002, IRPA came into force.
[10] By letter dated October 23,2003, the officer advised the principal applicant that his H & C application would be assessed pursuant to IRPA and invited the applicants to provide, within 30 days, an updated H & C application and any further information he wished to be considered. In response, the applicants submitted an updated application and supporting submissions. By letter dated December 4, 2003, the officer advised the applicants that the H & C application was refused.
Immigration Officer's Decision
[11] The officer was not satisfied that the applicants would suffer undue, disproportionate or undeserved hardship if they were required to apply for permanent residence from outside Canada for the following reasons:
1. While the principal applicant has a number of family members in Canada and the principal applicant did not list any relatives left in the Azores, the applicants were from a visa exempt country. The officer held that it was reasonable to expect that the applicants can return to Canada for a visit if they so chose.
2. While the separation from grandparents and aunts/cousins would be emotional, the H & C officer held that it was similarly reasonable that the relatives could travel to the Azores to visit the applicants.
3. In relation to the two minor applicants, the H & C officer stated:
The 2 daughters have attended school in Canada and have been here since an early age. These 2 girls are of a young age and while they may not be fluent in Portugese, they have had exposure to the language for all of their lives. Counsel even stated that their grandparents speak to them in Portugese and they respond in English, so it is reasonable to say that they understand Portugese. These 2 girls will also have the presence and guidance of their parents upon returning to Portugal.
4. As to the Canadian born child, the officer stated:
Brandon Raposo is only 2 years of age and should be able to easily adapt. There is insufficient evidence before me to show that he is in receipt of any specialized services (medical or otherwise) which is not available in Portugal. This young boy will also have the guidance of his parents.
5. The principal applicant had not provided any proof of earning or other documentation to validate his claimed income.
6. There was insufficient information on the file to show that the principal applicant would be unable to get the protection of the police to deal with his "issues of harassment".
[12] The officer concluded at page 3 of the decision:
After considering all the evidence presented and taking into account the best interests of children, I am not satisfied that subject would experience hardship which is unusual, undeserved or disproportionate if they are asked to leave Canada and apply for an immigrant visa from outside Canada in the normal manner. Request for a waiver of s.s.11(1) of IRPA is refused.
Applicants' Submissions:
[13] The applicants submitted that the officer's failure to conduct a "best interests" assessment is a breach of the statutory duty under section 25 of IRPA. The applicants submitted that the officer failed to clearly address the requirement to be alive, alert and sensitive to the best interests of the children as required by Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817. The applicants submitted that the officer's failure to carefully address the best interests of the children was an unreasonable exercise of the officer's discretion. The applicants submitted Article 3 of the United Nations Convention on the Rights of the Child which requires that the best interest of the child be a primary consideration.
[14] The applicants submitted that the officer's decision either minimized or failed to address the best interests of the children in four specific areas:
1. The extended family
The applicants submitted that it is in the best interests of the children to remain in Canada where they will have the support of their extended family. Removal of the children from Canada would be detrimental to their sense of security. The applicants submitted that the officer was dismissive of the role the extended family plays in the children's lives. The applicants submitted that the officer erred when suggesting that the applicants could return to Canada for visits if they were required to apply for landing from outside Canada. The applicants submitted that due to their past attempts to stay in Canada, it is highly unlikely they would be permitted entry as visitors to Canada.
2. The minor applicants' education
The applicants submitted that the officer minimized the negative impact a removal from Canada would have on the children's education and development. The applicants submitted that the minor applicants speak, read and write in English and have limited capacity in Portugese. Accordingly, they would be at a distinct disadvantage academically if they returned to Portugal where their education would be in Portugese rather than English. The applicants submitted that the officer failed to properly address the impact of removal on the children's education after the issue was raised. The applicants submitted that the officer had no evidence to support the conclusion that the children would be able to adapt to a removal to Portugal.
3. Reliance on the principal applicant for financial support
The applicants submitted that the officer failed to carefully consider the negative impact the principal applicant's removal would have on his ability to support the children. The applicants submitted that if removed, the principal applicant will lose the income from his current job, which his children relied on for support. The applicants submitted that this is a central issue in the analysis of the best interests of the children.
4. Brandon Raposo is a Canadian citizen
The applicants submitted that the officer erred by failing to acknowledge that as a Canadian citizen, Brandon has a right to grow up in Canada and a right to be cared for by his parents under Article 7 of the United Nations Convention on the Rights of the Child.
[15] In short, the applicants submitted that the officer failed to consider the best interest of the children, did not apply the proper test for consideration of the children's circumstances and ignored or minimized the elements of harm they would be subjected to if removed from Canada. The applicants submitted the officer's assessment was deficient and thus, the judicial review should be granted.
Respondent's Submissions
[16] The respondent submitted that the proper standard of review in an H & C application is reasonableness simpliciter.
[17] The respondent submitted that under section 25 of IRPA, immigration officers are required to be alert and sensitive to the interests of the children when considering an application on H & C grounds. The respondent submitted that the best interests of the children must be examined with care and weighed with all other factors raised by the application. This does not mean that the best interests of the children outweigh all other factors considered or that their interest is determinative of the outcome of the application. The best interest of the children is just one factor that the immigration officer must consider in arriving at a decision.
[18] The respondent submitted that the officer did properly consider the best interests of the children in the assessment. The respondent submitted that the officer specifically acknowledged all the factors put forward by the applicants.
[19] The respondent submitted that contrary to the applicants' assertion, there is no requirement for the officer to make a separate finding as to what is in the best interests of the children. The respondent, relying on Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687 (C.A.) (QL), submitted that an officer need not expressly set out that she considered the best interests of the child. Rather, the officer should balance the benefit to the child of remaining in Canada against the disadvantage of the child from leaving Canada as well as against other factors. The officer satisfied her duty if the interests of the child are "well identified and defined" as part of the analysis. The respondent submitted that nonetheless, the officer did in fact make a specific determination of the best interests of the children.
[20] The respondent submitted that the applicants failed to make detailed submissions as to the best interests of the children and failed to provide documentation in support of the brief submissions they did make. The officer did not err in making her decision on the basis of the materials before her. Th officer did consider the length of time that the children had been in Canada, their ages, their family connection in Canada, their integration into Canadian society, and their ability to reintegrate back into Portugese society.
[21] The respondent submitted that the onus was on the applicants to put before the officer any specific factors they wished the officer to take into account in her analysis of the best interests of the children. The officer is not required to request further information.
[22] The respondent submitted that this Court has held that the applicants must show that the hardship they claim they will suffer must be more than the inconvenience of a predictable cost of leaving Canada.
[23] The respondent submitted that the applicants have failed to show that the officer's decision was unreasonable and therefore requested that the application for judicial review be dismissed.
Issue
[24] Did the officer commit a reviewable error by failing to properly and carefully consider the best interests of the principal applicant's children in accordance with the principles enunciated in Baker, supra?
Relevant Statutory Provisions
[25] Subsection 11(1) of IRPA requires a foreign national to apply for a visa before entering Canada.
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
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[26] Subsection 25(1) of IRPA states:
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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.
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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.
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Analysis and Decision
[27] At page 75 of Baker, supra, Justice L'Heureux-Dubé elaborated on the importance of considering the best interests of the child as follows:
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.
[28] As stated by Décary J.A. in Hawthorne, supra at pages 562 to 563:
. . . to insist as a matter of law that an immigration officer spell out expressly that she had considered the best interests of the child before examining the degree of hardship to which the child would be subject, is to elevate form above substance.
The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
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.
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.
[29] In assessing the best interests of the children, the officer must determine the likely degree of hardship to children that would be caused by the removal of the parents and the benefit to the children if the parents remained in Canada. It is noted that the best interests of the children is only one of the factors to be considered in determining whether to allow the inland application.
[30] There are two important factors to note in the officer's decision. The first was that the officer stated that the children could visit their grandparents in Canada, but that is probably not correct as the applicants are failed refugee claimants and as such, would have difficulty in coming back to Canada. Secondly, the principal applicant stated that he was employed and the officer stated that no pay stubs or proof of earnings or tax receipts were submitted to validate this income. Both of these factors enter into any assessment of the best interests of the children. For example, would the child benefit more from the parents living in Canada, both with some form of income as opposed to going to the Azores? The best interests of the child analysis was done on the premise that the children could visit their grandparents and relatives back in Canada.
[31] Another concern is the Canadian born child. The officer's assessment of his best interests is as follows:
Brandon Raposo is only 2 years of age and should be able to easily adapt. There is insufficient evidence before me to show that he is in receipt of any specialized services (medical or otherwise) which is not available in Portugal. This young boy will also have the guidance of his parents.
[32] The analysis should deal with the fact that Brandon Raposo is a Canadian citizen and then determine what effect his parents' removal would have on him. How would the removal affect his best interests? For example, in Canada, he has parents who work and earn an income to support him. In the present case, the analysis deals with how he would adapt to life in the Azores. That is not an adequate assessment of his best interests.
[33] Of course, it goes without stating that the analysis of the best interests of the children is to be done by the officer.
[34] I am not satisfied that a complete analysis of the best interests of the children was done and therefore, the decision must be set aside.
[35] The application for judicial review is therefore allowed and the matter is referred back to a different officer for re-determination.
[36] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter is referred back to a different officer for re-determination.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10384-03
STYLE OF CAUSE: MANUEL JOSE CABRAL RAPOSO
NELIA DA CONCEICAO ALVES DE MEDEIROS RAPOSO
JESSICA MEDEIROS RAPOSO
BIANCA MEDEIROS RAPOSO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 21, 2004
REASONS FOR ORDER
AND ORDER BY: O'KEEFE J.
DATED: JANUARY 25, 2005
APPEARANCES:
Mark Rosenblatt FOR APPLICANTS
Rhonda Marquis FOR RESPONDENT
SOLICITORS OF RECORD:
Mark Rosenblatt
Toronto, Ontario FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT
Date: 20050125
Docket: IMM-10384-03
BETWEEN:
MANUEL JOSE CABRAL RAPOSO
NELIA DA CONCEICAO ALVES DE MEDEIROS RAPOSO
JESSICA MEDEIROS RAPOSO
BIANCA MEDEIROS RAPOSO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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