Date: 20041021
Docket: IMM-7290-03
Citation: 2004 FC 1461
Toronto, Ontario, October 21st , 2004
Present: The Honourable Mr. Justice O'Keefe
BETWEEN:
MOON KAP KIM, BOK IN GRACE KIM,
SOO JUNG SUE KIM and SOO NAM PAUL KIM
Applicants
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of an immigration officer, dated September 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 an order:
1. In the nature of certiorari to set aside the decision of the immigration officer dated September 4, 2003 and communicated to the applicants on September 9, 2003, wherein the said officer denied the applicants' application for an exemption from certain legislative requirements to allow their application for permanent residence to be processed from within Canada, pursuant to H & C grounds;
2. In the nature of mandamus referring the matter to a different immigration officer; and
3. In the nature of prohibition staying the applicants' removal until such time as the applicants' application is re-assessed.
Background
[3] The applicants are citizens of Korea. The principal applicant, Moon Kap Kim ("the applicant") arrived in Canada on October 23, 1999. His wife, Bok In Grace Kim, and their two children, Soo Jung Sue Kim and Soo Nam Paul Kim ("his wife and children") arrived in Canada in December 1999. The family filed for refugee status but this was denied. On April 26, 2002, the applicants submitted an application for landing based on H & C grounds under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2. Due to the coming into force of IRPA, the application was ultimately dealt with pursuant to subsection 25(1) of IRPA. The application was refused on September 4, 2003.
[4] The applicant stated that he sold his business in the 1990s due to the economic crisis in Korea. He then supported his family at a subsistence level as a tennis instructor. He was unable to find other employment in Korea prior to leaving for Canada due to a societal expectation that those over 50 are no longer considered employable as they must retire by 55 and make way for younger workers. The applicant states he has no home, no prospects for employment and no close family relations in Korea. The applicant and his wife have been employed since coming to Canada and both do charitable volunteer work. His wife is a pastor for a church in Toronto. The children have adapted well to school in Canada and are also actively involved with their church and volunteer work.
Immigration Officer's Entered Notes
[5] The immigration officer's entered notes read:
Based on all the information presented and the information outlined above, I am not satisfied the clients would experience a hardship if they applied for landing in the normal manner.
Client states they have severed all ties with Korea and established themselves in Canada culturally and economically.
They would be unable to leave without experiencing a hardship. I acknowledge clients have taken some steps to establish themselves, but I am not satisfied that the level is such that a hardship would occur if they return. Insufficient evidence has been provided to state they are an integral part of their church congregation, to cause a hardship [sic] and that they could not continue their volunteer services for a church in Korea. Insufficient evidence has been provided to state the wife could not develop her career as a pastor in Korea. She has taken theology in Korea and has experience leading bible studies in Toronto. Insufficient evidence has been provided to state they have fully integrated into Canadian society, socially, financially and economically and developed roots to cause a hardship if they return. Clients have provided insufficient evidence to state they could not adjust to the life they left behind. They made a decision to leave Korea on their own accord and sell their assets, thus they created their personal situation in Korea.
Client states he would experience social persecution, because he would be subjected to social and cultural sanctions due to his age. He is considered no longer employable and his family would have a bleak existence. I acknowledge the social structure is different in Korea and every person in this age group faces extra difficulties economically, but this is not a personalized risk and I am not satisfied it is a disproportionate hardship when one's living standards have to be altered, when you experience a recession. Client and family are resourceful and insufficient evidence has been provided to state they could not adjust to a different comfort of living in Korea.
Client states his children would have difficulty readjusting to Korean school standards and experience hardship from loss of a social network (stimulus). I acknowledge the children have taken advantage of the opportunities available to them to discover world experiences, but insufficient evidence has been provided to state similar experiences are not available in Korea. The children came to Canada during their formative years and are still in their formative years. Insufficient evidence has been provided to state they could not adjust to the school system they left behind. The older child has one year left in college and could finish school on her own and apply her skills in Korea.
It is noted many letters of recommendation were given from members of the congregation regarding the family's participation in the choir and leaders of study groups. Even though they are valued members of the congregation, insufficient evidence has been provided to state they are a significant benefit, that a great loss to the church would occur and that the church could not function without their assistance. Based on the above factors, I am not satisfied that sufficient evidence has been presented to state the hardship the clients would face would be undeserved and unusual or disproportionate, if they applied for landing in the normal manner.
Issues
[6] The issues as framed by the applicants are:
1. Did the immigration officer err in ignoring relevant evidence, relying upon irrelevant considerations and in misapprehending the evidence before her?
2. Did the immigration officer err in fettering her discretion in deciding that the applicants were not sufficiently established in Canada?
3. Did the immigration officer err in not considering the best interests of the children?
4. Was the decision reasonable or did the immigration officer err in law and/or fetter her discretion in concluding that there was not sufficient unusual, undue or disproportionate hardship?
Applicant's Submissions
[7] Relying on Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.), the applicants stated that the standard of review of the H & C decision is reasonableness simpliciter.
Sufficiency of the Applicants'Establishment in Canada
[8] The applicants submitted that they provided a significant amount of evidence to show they had established themselves in Canada. The evidence included bank statements, tax filings, certificates of achievements while in Canada and 60 letters of support from others, especially members of their church.
[9] The applicants submitted that the immigration officer erred in requiring that the church be unable to function if the applicants left, before the applicants' role in the church could be found to be evidence of establishment in Canada. The standard imposed by the immigration officer is one that could not realistically be met.
[10] The applicant submitted that his wife had sufficiently established herself within the church to the extent that she was serving as an assistant pastor with an offer of full-time employment contingent on her obtaining permanent residence.
[11] The applicants submitted that the immigration officer failed to consider the psychological and emotional ties of the family to the church. The immigration officer similarly failed to consider the congregation's and community's dependence on the wife's role as assistant pastor and the family's charitable and community involvement with the elderly, the disabled and Native Canadians.
[12] The applicants submitted that this Court has held in Raudales v. Canada (Minister of Citizenship and Immigration) 2003 F.C.T. 385 and Jamrich v. Canada (Minister of Citizenship and Immigration) 2003 F.C.T.804, that a failure to giver proper consideration to the establishment of the applicants is a reviewable error.
Best Interests of the Children
[13] The applicants submitted that the immigration officer erred in not properly taking into account the best interests of the children. The immigration officer was required to be alert, alive and sensitive to the rights of the children.
[14] The applicants submitted that the immigration officer erred in law by not being sensitive to the effect that the age discrimination against the applicant would have on the children if they were to return to Korea and their father could not support them. The immigration officer was required to have defined the children's needs and considered them in relation to the parents' ability to provide for them upon their return to Korea.
[15] The applicants submitted that the immigration officer erred by failing to take into account the number of years the children have been in Canada and their bonds with other family members and the church community. The children are still very young and will not be able to simply reintegrate into Korean society and attend school as the immigration officer concluded. If the family is required to return to Korea, the applicant will not be able to fund their schooling and provide them with the opportunity to establish themselves or even care for them generally.
Unusual, Undue or Disproportionate Hardship:
[16] The applicants submitted that the immigration officer erred in law and misconstrued the facts. Contrary to the immigration officer's finding, the applicant's evidence was not that he would experience hardship as a result of a recession, but as a result of not being able to support his family due to being prevented from finding employment because of his age and discrimination against people in his age group.
[17] The applicants submitted that the immigration officer erred in law in requiring that in order to experience a disproportionate hardship, the hardship had to amount to a personalized risk to the applicants.
[18] The applicants submitted that if the immigration officer had properly considered all the factors as she was required to do, the decision that there was no disproportionate hardship might be different.
Respondent's Submissions
[19] The respondent submitted that the immigration officer's notes demonstrate that she considered all of the evidence before her. There is no indication that the officer misconstrued any of the evidence. Immigration officers have "considerable discretion" when reviewing H & C applications and the fact that a positive decision could have been reached on the same facts is insufficient to show that the officer made any error when she exercised her discretion and refused the application.
Sufficiency of the Applicants' Establishment in Canada
[20] The respondent submitted that the applicants' submission that the immigration officer held them to too high a standard when she stated that there was insufficient evidence that the church they belong to "could not function without their assistance"is incorrect. The respondent submitted that the applicants provided voluminous evidence including letters in support, regarding their value to their church where they are members. The immigration officer's comments were simply in response to the statements in those letters. The immigration officer was not setting out an unobtainable standard of proof, she was responding directly to the specific contents of the letters. The immigration officer cannot be faulted for responding to allegations in the evidence provided by the applicants.
Unemployment in Korea:
[21] The respondent submitted that the applicants' argument that the immigration officer mentioning the Korean recession in her notes is evidence that the immigration officer misconstrued the concerns the applicant had regarding age discrimination and employment in Korea, is incorrect. The argument is based on a microscopic reading of the immigration officer's notes. The immigration officer's notes clearly show that she was fully cognizant of the applicant's concerns about finding employment in Korea at his age. The immigration officer correctly characterized the applicant's fear that he is no longer employable because of his age and that the age discrimination that exists in Korea is a form of social persecution.
[22] It was open to the immigration officer to note the facts that Korea is experiencing a recession and that many other older Koreans experience the same type of employment problems as the applicant's concerns by simply mentioning these facts.
Best Interests of the Children
[23] The respondent submitted that the applicants' argument that the immigration officer did not give the children due consideration is not supported by the evidence. The immigration officer's notes clearly show that she fully considered the situation of the children, including the fact that they were in their formative years when their parents made the decision to come to Canada.
Relevant Statutory Provisions
[24] 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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[25] Subsection 25(1) 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
[26] On the basis of Baker, supra, and the cases that followed it, I am satisfied that the immigration officer's decision should be reviewed on the reasonableness simpliciter standard.
[27] I propose to deal first with Issues 2 and 3.
[28] Issue 2
Did the immigration officer err in fettering his discretion in deciding that the applicants were not sufficiently established in Canada?
The immigration officer's notes stated in part when dealing with the applicants' establishment in Canada:
Even though they are valued members of the congregation, insufficient evidence has been provided to state they are a significant benefit, that a great loss to the church would occur and that the church could not function without their assistance.
I have perused the material in the tribunal record and I cannot find any evidence or argument that the church could not function without the wife's assistance, other than a letter at page 236 of the tribunal record, which states in part, "Specially, as a music family, the most church's musical services are depend on them." [sic] The immigration officer seemed to require that the church could not function without their assistance in order to use this factor towards deciding the sufficiency of the applicants' establishment in Canada. This is too high a standard to impose and one that most applicants could not meet. The applicants' activity in their church could count towards their degree of establishment in Canada, even if the church could still function without their assistance. I am of the opinion that the immigration officer made a reviewable error in this respect as I cannot determine what the immigration officer's decision would have been had she properly taken this activity into account in her consideration of the application.
[29] Issue 3
Did the immigration officer err in not considering the best interests of the children?
There is no doubt that the immigration officer must properly consider the best interests of the children. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687 (C.A.) (QL), Evans J.A. stated at paragraphs 31 and 32:
Counsel agreed that, under the legal test established by Baker and Legault for reviewing officers' exercise of discretion, the refusal to grant Ms. Hawthorne's H & C application could be set aside as unreasonable if the officer had been "dismissive" of Suzette's best interests. On the other hand, if the decision maker had been "alert, alive and sensitive" to them (Baker, at paragraph 75), the decision could not be characterized as unreasonable.
It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at paragraph 12). Rather, the interests of the child must be "well identified and defined" (Legault, at paragraph 12) and "examined ... with a great deal of attention" (Legault, at paragraph 31). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at paragraph 75) in the exercise of discretion under subsection 114(2).
And at paragraph 40:
. . . failed to give the careful consideration to the best interests of Suzette that is required by law. As Baker and the guidelines indicate, it is certainly necessary for the decision maker to consider the seriousness of the harm that a parent's removal is likely to cause to a child. However, unless the decision maker considers the degree of harm in the context of the best interests of the child, she is likely to be diverted from her duty to be "alert, alive and sensitive" to this important factor in the exercise of discretion. . . .
[30] With respect to the children, the immigration officer stated:
Client states his children would have difficulty readjusting to Korean school standards and experience hardship from loss of a social network (stimulus). I acknowledge the children have taken advantage of the opportunities available to them to discover world experiences, but insufficient evidence has been provided to state similar experiences are not available in Korea. The children came to Canada during their formative years and are still in their formative years. Insufficient evidence has been provided to state they could not adjust to the school system they left behind. The older child has one year left in college and could finish school on her own and apply her skills in Korea.
[31] The immigration officer failed to address some issues concerning the children. How would the lack of extended family and community in Korea effect the social support the children would have in Korea? How would the father's inability to obtain employment in Korea effect the children and their educational opportunities? The immigration officer, when speaking of the older child stated that the older child could finish her last year of college on her own and apply her skills in Korea. If the child is to do this, the question arises - where will she live, and who will support her if her father is unemployed in Korea?
[32] When considering the best interests of the children, weighing of the relevant factors is required to determine the best interests of the children. That was not done in this case. In my opinion, the immigration officer was not "alert, alive and sensitive" to the best interests of the children. Accordingly, the immigration officer's decision is not reasonable and must be set aside.
[33] Because of my findings on these two issues, I need not address the remaining issues.
[34] The application for judicial review is therefore allowed and the matter is remitted back to a different immigration officer for redetermination.
[35] The respondent did not wish to present any proposed question for my consideration for certification as a serious question of general importance.
[36] The applicants proposed the following question for my consideration for certification as a serious question of general importance:
If the unusual and undeserved hardship standard is assessed by officers on section 25 H & C applications pursuant to section 6.6 of the Immigration Manual upon the hardship of having to apply for a permanent resident visa from outside Canada, what is the bearing of an applicant that clearly cannot apply or qualify for permanent residency outside Canada on the final determination?
I am not prepared to certify this question as it is not determinative of this case.
ORDER
IT IS ORDERED that:
1. The application for judicial review is allowed and the matter is remitted back to a different immigration officer for redetermination.
2. No serious question of general importance is certified.
"John A. O'Keefe"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7290-03
STYLE OF CAUSE: MOON KAP KIM, BOK IN GRACE KIM,
SOO JUNG SUE KIM and SOO NAM PAUL KIM
Applicants
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 6, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: OCTOBER 21, 2004
APPEARANCES:
Mario D. Bellissimo
FOR APPLICANTS
Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Ormston, Bellissimo, Younan
Toronto, Ontario
FOR APPLICANTS
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
FEDERAL COURT
Date: 20041021
Docket: IMM-7290-03
BETWEEN:
MOON KAP KIM, BOK IN GRACE KIM,
SOO JUNG SUE KIM and SOO NAM PAUL KIM
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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