Date: 20041203
Docket: IMM-4252-03
Citation: 2004 FC 1695
Toronto, Ontario, December 3rd, 2004
Present: The Honourable Mr. Justice John A. O'Keefe
BETWEEN:
PENG CHENG LI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision, dated April 8, 2003, wherein the applicant's sponsored application for landing was refused on the grounds that he was inadmissible as a member of the family class and there were insufficient grounds to warrant the granting of humanitarian and compassionate ("H & C") relief.
[2] The applicant requests an order quashing the H & C officer's decision that humanitarian and compassionate relief should not be granted. The applicant further requests an order directing the respondent to process his application for permanent residence within 90 days, and costs.
Background
[3] The applicant, Peng Cheng Li (the "applicant") is a citizen of the People's Republic of China who was born on December 12, 1987.
[4] In 1993, the applicant's parents divorced and his father received custody of him. His mother, Li-Ying Guo, remarried in 1994, and although she moved to Beijing to be with her husband, states that she and her son maintained a close relationship.
[5] In 1998, the applicant's mother and step-father immigrated to Canada. The applicant's mother was granted permanent residence status on June 23, 1998. The applicant was not included in his mother's application for permanent residence. In her affidavit, sworn July 6, 2003, the applicant's mother stated that the immigration consultant she hired in Beijing advised her and she believed, that she did not have to include her son on the application because he was in her ex-husband's custody and not her custody at that time.
[6] During the next few years, the applicant's mother returned twice to China to visit the applicant, and asked the applicant's father for a change in custody. During a September 2001 visit, the applicant's father agreed to allow the applicant's mother to have custody of the applicant.
[7] The applicant's mother, who became a Canadian citizen on April 4, 2001, was granted custody of the applicant in August 2002.
[8] In an application dated September 23, 2002, the applicant's mother applied to sponsor the applicant's landing as a permanent resident.
[9] In an application to the Canadian Embassy in Beijing, dated September 29, 2002, the applicant applied for permanent residence status under the family class.
[10] The applicant was sent a letter dated January 2, 2003, from a visa officer which stated:
A preliminary review of your application has revealed that you were declared but not examined when your sponsor was landed. As a result, you could be excluded from the Family Class under s. 117(9)d of the Immigration Regulations. If there are any humanitarian and compassionate reasons why your application should not be refused, please submit them in writing with all supporting documentation within the next thirty days.
[11] On February 10, 2003 submissions were made outlining the following as H & C grounds for approval of the applicant's permanent residence application:
1. If permanent residence was not granted, the applicant's education would be disrupted due to his current living arrangements;
2. The applicant's mother and step-father in Canada were willing and able to support the applicant emotionally and financially;
3. Separation from her child had caused the applicant's mother undue emotional hardship; and
4. The applicant has a strong emotional dependency on his mother .
[12] The applicant's mother submitted a number of documents to support these arguments, including statements from herself, the applicant's father and step-father, photographs, copies of trip itineraries to China, and telephone bills showing calls between the applicant and his mother.
[13] By letter dated April 8, 2003, the applicant's application for permanent residence was refused. In that letter, the immigration program manager (the "H & C officer") stated:
I have examined your application and your circumstances in accordance with subsection 25(1) of the Immigration and Refugee Protection Act and have determined it would not be justified by humanitarian or compassionate considerations to grant you permanent resident status or exempt you from any applicable criteria or obligation of the Act. In reaching this determination, I took into account your best interests.
[14] By this proceeding, the applicant is challenging the H & C officer's refusal to exempt him from that requirement or to grant his application for permanent residence.
The Decision Under Review
[15] In her affidavit sworn August 6, 2003, visa officer L. Coulombe (the "visa officer") stated that her reasoning for deciding that the applicant was excluded from the family class by virtue of paragraph 117(9)(d) was recorded in the computer assisted immigration processing system log (the "CAIPS" notes).
[16] According to the CAIPS notes, the applicant was determined to be excluded because he was not included as part of his mother's 1998 permanent residence application. The CAIPS notes further stated that the form clearly required all dependents to be listed, even if they were not accompanying the person to Canada.
[17] In cross-examination, the visa officer stated that after making a decision on inadmissibility, she prepared a case summary of the applicant's file and made a negative H & C recommendation, which she forwarded on to the immigration program manager, (the "H & C officer").
[18] The visa officer's recommendation to the H & C officer, as recorded in the CAIPS notes on April 4, 2003, read as follows:
Sponsor was given opportunity to provide H & C grounds notwithstanding fact he is excluded under R117(9)(d)
...
-note that SPR [sponsor]'s lawyer clearly indicated to CPC-M in correspondence dated 16/09/2002 SPR "did not declare her son because she did not have custody of the child and he was not a dependent. Now he is because of the transfer of custody."
-note that applicant has been in father's custody since the age of 5 when SPR and ex-spouse divorced (1992). Change of custody took place in August 2002 when applicant was almost 15
-note that father's financial situation may not be the best and that applicant often stays with an aunt who has a young child. However, note that notwithstanding her comparatively better financial situation in Canada, SPR only decided to sponsor applicant at age 15, even though she landed in 1998
- also note that photos provided of SPR and applicant show gaps from the time SPR divorced, when applicant was 5, until her recent trips back to China in 2000 and 2001 when applicant was 13 and 14. SPR apparently made no trips back to China to visit for a few years after landing in 1998.
I do not see any compelling H & C grounds for overcoming applicant's exclusion under R117(9)(d)
DS - please review for negative H & C decision / signature of letter
[19] Also dated April 4, 2003, the H & C officer's reasoning appears in the CAIPS notes as follows:
The applicant was not included on the sponsor's original application for permanent residence in Canada as a dependent despite the fact the form clearly indicates all dependents must be included whether or not they will accompany you to Canada. The applicant is therefore not a member of the family class as per 117(9) of the Regulations. The father has now given his consent for a change in custody to enable the applicant to pursue his education in Canada but there is nothing to indicate that the applicant has not been provided with adequate care and support by her [sic] father albeit at a Chinese standard. I have examined the request for humanitarian and compassionate consideration of the applicant in accordance with 25(1) of the Immigration and Refugee Protection Act and have determined that it would not be justifiable to exercise my discretion. In reaching this conclusion I took into account the best interests of the applicant.
[20] This is the judicial review of the H & C officer's decision.
Applicant's Submissions
(a) The H & C Officer Did Not Properly Consider the Best Interests of the Applicant
[21] Relying on Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.), the applicant argued that the H & C Officer's decision did not examine his best interests with care and cannot stand up to a somewhat probing examination, meaning that it is unreasonable and should be set aside.
[22] The applicant submitted that no careful assessment of his best interests was performed by the H & C officer, since the CAIPS notes fail to reveal that the H & C officer was alert, alive and sensitive to the applicant's best interests.
[23] The applicant alleged that the H & C officer erred in assessing his best interests by comparing his living conditions to his "peers" in China instead of his future life in Canada instead.
(b) The H & C Officer's Decision Was Otherwise Unreasonable
[24] The applicant submitted that the H & C officer disbelieved some of the factual evidence put before him (for example, the financial situation of the applicant's father and whether adequate transportation arrangements could be made for the applicant's schooling without him having to live with his aunt), yet none of these concerns were communicated to the applicant because he was not provided with an interview. In the applicant's view, this rendered the H & C officer's decision unreasonable.
[25] The applicant further submitted that the H & C Officer disregarded the evidence before him regarding the timing of the applicant's mother being granted custody of her son. It is submitted that the H & C officer held it against the applicant's mother that she had immigrated to Canada in 1998 but "only decided" to sponsor the applicant when he was 15 years old, when the evidence showed that the applicant's father refused to consent to any change in custody until 2002. In the applicant's view, then, the H & C officer ignored the evidence that his mother was 'unable' not 'unwilling' to sponsor him for permanent residence until 2002. The applicant submitted that the H & C officer's decision was therefore made without regard to the evidence before him, and must be set aside.
[26] It is submitted that the H & C officer fettered his discretion by relying excessively on the negative recommendation made by the visa officer. In support of this argument, the applicant pointed to the CAIPS notes which show the H & C officer's negative decision was made the same day as the visa officer's negative recommendation.
[27] The applicant submitted that the evidence before the H & C officer regarding the emotional bond he has with his mother, and his circumstances in China, are sufficient to overcome any failure of the applicant's mother to declare him when she immigrated to Canada. The applicant submitted that he should not be punished and made to suffer because of a process over which he had no control and due to an innocent error made by his mother without any intention to mislead the immigration authorities.
Respondent's Submissions
[28] The respondent submitted that this application for judicial review should be dismissed because the applicant had not established that the H & C officer acted in bad faith, ignored evidence, failed to take into consideration relevant factors, or was not alive, sensitive and attentive to the applicant's best interests.
[29] The respondent agreed that the applicable standard of review of the H & C officer's decision is reasonableness simpliciter.
[30] The respondent submitted that applicant had not established any basis for this Court's intervention with the H & C officer's weighing of the evidence before him. The respondent further submitted that the H & C officer's conclusions were rationally based and supported by the evidence before him. The respondent contended that the H & C officer was not required to mention every piece of evidence he considered, and was empowered to prefer certain pieces of evidence over others.
[31] Moreover, the respondent submitted that the involvement of a child does not mean that their "best interests" must be given paramountcy or must outweigh all other factors in each and every case.
[32] The respondent denied that the H & C officer was obligated to confront the applicant with his concerns about the factual issues before him. The respondent emphasized that the onus was on the applicant to present sufficient evidence demonstrating compelling humanitarian and compassionate circumstances requiring his intervention to exempt the applicant from paragraph 117(9)(d) of the Regulations. In this case, the applicant failed to discharge his onus and ultimately did not satisfy the H & C officer that if the applicant was not allowed to come and live with his mother and step-father in Canada, that he would suffer disproportionate hardship with his father in China.
[33] The respondent argued that the H & C officer's reasons were sufficient, taking into consideration the CAIPS notes, affidavit evidence, and cross-examination evidence. Furthermore, the visa officer's negative H & C recommendation was clear, well articulated, supported by logical conclusions and was grounded in solid grasp of the relevant facts, evidence and materials in the applicant's file.
[34] The respondent noted that the applicant alleged that the visa officer ignored the sponsor's explanation for the delay in the timing of her sponsorship efforts after her landing in Canada. To the contrary, the respondent stated that there was no evidence that the applicant's mother had tried to re-gain custody of her son before 2002, so it was open to the visa officer to draw an adverse inference regarding her intentions to be re-united and live with her son in Canada. This inference was further supported by the gaps in the photographic record submitted by the applicant's mother and her delay in visiting the applicant in China. Alternatively, the respondent submitted that the visa officer's inference on this issue was immaterial because it was the H & C officer who denied the applicant's request for relief on H & C grounds.
[35] The respondent submitted that the H & C officer's assessment of the applicant's best interests was reasonable. Contrary to the applicant's assertion, the H & C officer's CAIPS notes, his affidavit evidence and his evidence during cross-examination demonstrated that he took into account not only the applicant's situation in China as compared to his peers, but the applicant's possible future with his mother in Canada.
[36] The respondent denied that the H & C officer's assessment was based on conjecture or speculation. Rather, the H & C officer's decision was based on his extensive experience and personal knowledge relating to local Chinese customs, job earnings in China and the transportation system in Harbin City and its outskirts.
[37] On the facts of this case, the respondent submitted that it was reasonably open to the H & C officer to conclude that H & C relief was not appropriate, since that scheme was not intended to eliminate hardship but to provide relief from disproportionate hardship. The respondent stated that the H & C process was not designed to create a vehicle by which individuals who are economically and educationally disadvantaged can obtain admission to Canada.
[38] The respondent submitted that the H & C officer's discretion was not fettered by the visa officer's negative recommendation. To the contrary, the H & C officer independently reviewed all the facts and evidence and came to his own conclusions regarding the applicant's file.
[39] The respondent requested that this application for judicial review be dismissed, as the applicant had not demonstrated that the decision challenged here was fundamentally flawed, was reached through improper considerations, was made in bad faith or without regard to legal principles, or was made in violation of the duty of fairness owed to him in the circumstances.
Issues
[40] The applicant raised the following issues:
1. Did the H & C officer properly consider the best interests of the applicant in his assessment?
2. Was the H & C officer's decision otherwise unreasonable?
Relevant Statutory Provisions
[41] Subsection 25(1) of IRPA permits the Minister to grant a foreign national permanent residence status, or an exemption from any applicable criteria or obligation of IRPA, if she is of the opinion that such an exemption is justified by humanitarian and compassionate considerations:
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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
[42] Issue 1
Did the H & C officer properly consider the best interests of the applicant in his
assessment?
The appropriate standard of review to be applied to the H & C officer's decision is reasonableness simpliciter (see Baker, supra).
[43] In his analysis of the H & C application, the H & C officer's CAIPS notes only contain the following reference:
. . . Chinese standard. I have examined the request for humanitarian and compassionate consideration of the applicant in accordance with 25(1) of the Immigration and Refugee Protection Act and have determined that it would not be justifiable to exercise my discretion. In reaching this conclusion I took into account the best interests of the applicant.
There is simply this blanket statement.
[44] There is no discussion of the applicant's personal situation in relation to his H & C application. The H & C officer, in my view, was not alert and sensitive to the best interests of the applicant child. There is no analysis as to what the situation of the applicant child would be in China as compared to Canada.
[45] The respondent submitted that when the H & C officer's CAIPS notes were read together with his affidavit, it is clear that he was alert to the applicant's best interests. I do not agree that the H & C officer's affidavit given after the decision can be used to prop-up the H & C officer's decision. The decision should speak for itself. The visa officer's analysis does not assist the H & C officer as the H & C officer is required to make his own fresh analysis.
[46] I am of the opinion that for the above reasons, the H & C officer's decision was unreasonable and must be set aside. The application for judicial review is therefore allowed and the matter is referred to a different H & C officer for redetermination.
[47] I need not deal with the other issue raised by the applicant.
[48] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different H & C officer for redetermination.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4252-03
STYLE OF CAUSE: PENG CHENG LI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 29, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: NOVEMBER 29, 2004
APPEARANCES:
Mr. Cecil L. Rotenberg, Q.C.
FOR APPLICANT
Mr. Robert Bafaro
FOR RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotenberg, Q.C.
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20041129
Docket: IMM-4252-03
BETWEEN:
PENG CHENG LI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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