Date: 20101208
Docket: IMM-1823-10
Citation: 2010 FC 1247
Ottawa, Ontario, December,
8 2010
PRESENT: The honourable Madam Justice Bédard
BETWEEN:
BRIGITTE
GARAS
Applicant
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review under subsection 72(1) of the
Immigration and
Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), of a decision of an
immigration officer, dated March 15, 2010, denying an application for permanent
residence from within Canada on humanitarian and compassionate (H&C)
grounds.
Background
[2]
Brigitte Garas (the applicant) was born in France
on March 11, 1971. In 1994, while still living in France,
she began a relationship with Michael Chamas. The two started living together
shortly thereafter and have been together ever since. They have three children:
Allen, born November 4, 1995; Ines, born May 3, 2001; and Michael Jr., born
April 21, 2008. Allen was born in France
while Ines and Michael Jr. were born in Canada.
All three children are Canadian citizens, as is Mr. Chamas, who became a
Canadian citizen in October of 1995.
[3]
The
applicant first arrived in Canada on September 16, 1996, as a visitor. She
has lived in Canada with Mr.
Chamas and their children ever since. There is no official documentation in the
tribunal record with respect to the applicant’s status during her first 9 years
in the country.
[4]
An
entry was made, however, in the Field Operations Support System (FOSS) on
September 24, 2002, by a customs officer at Trudeau International Airport in Montreal who allowed
the applicant to re-enter Canada (presumably after a trip abroad). The
officer indicated that he had instructed the applicant to take the necessary
steps to apply for permanent residence within the following 6 months.
[5]
However,
the applicant indicates in her affidavit that it wasn’t until 2004 that she
sought legal advice regarding her temporary status in Canada. She claims
that although she paid a lawyer to apply for permanent residence on her behalf
in 2004, he neglected to do so.
[6]
On
July 5, 2006, the applicant was once again stopped by a Canada Border Services
Agency (CBSA) officer at Trudeau Airport after returning
from another trip abroad. This time, the officer deemed the applicant to be
inadmissible based on the fact that she had been living in Canada for 9 years
without making a request for resident status. Eventually, she was allowed to
enter, but an exclusion order was issued on July 11, 2006, which was to become
effective on July 21, 2006.
[7]
On
July 12, 2006, the applicant applied for a Temporary Resident Permit (TRP).
This was granted on August 7, 2006 and was valid until August 6, 2007. The July
11, 2006 exclusion order was not enforced.
[8]
On
August 11, 2006, the applicant filed an inland application for permanent
resident status based on H&C grounds, under subsection 25(1) of the IRPA,
accompanied by a sponsorship application by her common-law spouse, Mr. Chamas. The
applicant based the H&C application on her establishment in Canada, the best
interests of her children (more specifically, the learning disability that
Allan had been exhibiting for a number of years), and her reliance on her
Canadian common-law husband, Mr. Chamas (for financial support, etc.).
[9]
The
applicant applied for, and received, a renewal of her TRP in the summer of
2007. The renewed permit was valid until August of 2008.
[10]
On
July 2, 2008, the Applicant submitted a third and final request for renewal of
her TRP. On September 19, 2008, the TRP request was refused. The Applicant was
instructed to leave Canada and was informed that if she did not
“enforcement action may be taken against [her].”
[11]
On
April 27, 2009, the applicant’s permanent residence application was rejected. The
rejection of the applicant’s H&C application also led to the rejection of
the sponsorship application. A distinct decision was rendered to that effect on
April 27, 2009. No reasons were initially provided for the rejection of the
H&C application.
[12]
On
May 5, 2009, the applicant filed for leave and judicial review of the decision
denying the H&C Application. On May 29, 2009, the applicant received
“reasons,” which consisted of a few brief FOSS notes; the children’s best
interests were not mentioned in the notes. On August 14, 2009, the respondent’s
Minister agreed to have the applicant’s application for permanent residence re‑examined
by a different immigration officer in relation to the H&C grounds.
[13]
On
March 15, 2010, the applicant’s H&C application was, once again, rejected.
The decision under review
[14]
In her reasons, the Immigration officer
identified the two main H&C grounds put forth by the applicant: a)
establishment in Canada
and b) the best interests of the applicant’s children. She concluded that the
grounds submitted were insufficient to warrant an exemption in the applicant’s
case.
[15]
The officer started by considering the applicant’s
degree of establishment in Canada.
While the applicant had been living in Canada for a significant amount of time
(i.e. since September of 1996), the officer gave significant weight to the fact
that the applicant had failed to comply with immigration laws and
regulations by remaining in Canada throughout this period without applying for
permanent resident status until August of 2006. The officer specifically
pointed to the applicant’s failure to comply with the September 24, 2002
instruction to apply for permanent residence within 6 months.
[16]
The officer also noted that the applicant
claimed to be financially dependent on her common-law husband, Mr. Chamas, a
Canadian citizen. However, Mr. Chamas was in a precarious financial situation
with respect to unpaid income tax and, in any event was quite mobile. Given his
mobility, the officer determined that he would continue to support the applicant
even if she had to leave Canada.
In terms of support from family and friends, while the officer recognized that the
applicant has family and friends in Canada,
she pointed out that the applicant also has family in France.
Specifically, the officer indicated that the applicant had kept in contact with
her mother, her sister, and her half-brother in France.
The officer determined that, as such, it would be possible for the applicant to
receive moral and logistical support from these family members were she
required to return to France.
The officer further noted that as a frequent traveler (10 separate dates of
entry into Canada were recorded on her French passport since it was issued in
December of 2004), traveling to France
for the purposes of submitting her application from abroad would not represent
an unusual hardship.
[17]
Ultimately, on the topic of establishment, the officer
indicated that even if she were to give some weight to the applicant’s
establishment in Canada,
the applicant had not demonstrated that submitting her application for
residency from outside of Canada
would amount to unusual and undeserved, or disproportionate hardship.
[18]
Next,
the officer considered the best interests of the applicant’s children. She
noted Allen’s learning disability and the claim that future changes in his life
might cause him harm. In this regard, the officer referenced the various
reports regarding Allen’s learning disability. She highlighted the report of
July 13, 2009, which indicated that Allen was experiencing anxiety and had
difficulty coping with change. However, the officer noted that the applicant
did not specify the harm that would be caused to Allen if he were to accompany
his mother outside of Canada. Further, the report of July 13, 2009 was
not specific as to what past traumatizing events had triggered Allen’s anxiety.
The officer also indicated that Allen had recently managed to work through a
significant change, by moving successfully from elementary to secondary school.
The officer further pointed out that the French school system is similar to the
Canadian one, and that the care Allen had been receiving in Canada would be
available to him in France. Ultimately, the officer concluded that it was
reasonable to believe that, with proper planning and supervision, Allen would
be able to adapt to living in France, should the family decide that he should leave
Canada with his
mother.
[19]
The
officer then moved on to briefly consider the applicant’s other two children. She
indicated that Ines was not having any difficulty at school, and that since the
French system is similar to the Canadian one, she would likely do well if she
moved to France with her
mother. As for Michael Jr., the officer indicated that for a baby location is
not important – so long as he is with his mother.
[20]
The
officer concluded her reasons by indicating that she was not satisfied that the
applicant had demonstrated that her situation was so exceptional as to make the
requirement to obtain a permanent resident visa from abroad amount to unusual
and underserved, or disproportionate hardship.
The Issues
[21]
The
applicant alleges that the officer made several reviewable errors. She
essentially faults the officer for an unreasonable assessment of her
establishment and her children’s best interests. Therefore, this application
raises the following issue:
1) Was the officer’s
decision to refuse the request for exemption unreasonable?
Standard of review
[22]
It
is well established that when reviewing H&C decisions, which are highly
discretionary, the Court will apply the deferential standard of reasonableness
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, 174 DLR (4th) 193, at para. 62; Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360 at para 18).
The same standard applies with respect to the decision-maker’s
assessment of the evidence (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 at para 53; Martinez v Canada (Minister of Citizenship and
Immigration), 2009 FC 798 (available on CanLII) at para 7; Ndam v Canada
(Minister of Citizenship and Immigration), 2010 FC 513 (available on
CanLII) at para 4). The court must not re-assess the evidence, re-weigh the
factors applied by the decision-maker or substitute its own appreciation of the
evidence unless there are gross errors or perverse findings of fact.
[23]
The
Court’s role when reviewing a decision under the standard of reasonableness had
been set out in Dunsmuir, above at para 47:
. . . A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
Legislative framework
[24]
An
H&C exemption applies as an exception to the principle that a foreign
national who wants to apply for Canadian permanent resident status must do so
from abroad. This requirement derives from subsection 11(1) of the IRPA
which states:
Application
before entering Canada
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 may be
issued if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act.
|
Visa
et documents
11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
|
[25]
Subsection
25(1) of the IRPA reads as follows:
Humanitarian
and compassionate considerations — request of foreign national
25. (1) The
Minister must, on request of a foreign national in Canada who is inadmissible
or who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligations of this Act if
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
|
Séjour
pour motif d’ordre humanitaire à la demande de l’étranger
25. (1) Le ministre doit, sur demande d’un étranger se trouvant au
Canada qui est interdit de territoire ou qui ne se conforme pas à la présente
loi, et peut, sur demande d’un étranger se trouvant hors du Canada, étudier
le cas de cet étranger; il peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s’il estime
que des considérations d’ordre humanitaire relatives à l’étranger le
justifient, compte tenu de l’intérêt supérieur de l’enfant directement
touché.
|
[26]
In
Serda v Canada (Minister of Citizenship and Immigration), 2006 FC 356,
146 ACWS (3d) 1057, Justice De Montigny outlined the
exceptional character of an exemption under subsection 25(1). He indicated, at
para 20:
One of the cornerstones of
the Immigration and Refugee Protection Act is the
requirement that persons who wish to live permanently in Canada must, prior to
their arrival in Canada, submit their application outside Canada and qualify for,
and obtain, a permanent resident visa. Section 25 of the Act gives to the
Minister the flexibility to approve deserving cases for processing within Canada. This is clearly
meant to be an exceptional remedy, as is made clear by the wording of that
provision.
Indeed,
relief under subsection 25(1) is an exceptional and discretionary remedy (Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125,
[2002] 4 FC 358 at para 15; De Leiva v Canada (Minister of
Citizenship and Immigration), 2010 FC 717 (available on CanLII) at para
15.
[27]
In
Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1,
[2002] 1 S.C.R. 3, the Supreme Court of Canada clearly defined the
Court’s role when reviewing a discretionary decision such as the one at issue
here:
37 The passages in Baker
referring to the “weight” of particular factors (see paras. 68 and 73-75) must
be read in this context. It is the Minister who was obliged to give proper
weight to the relevant factors and none other. Baker does not authorize courts
reviewing decisions on the discretionary end of the spectrum to engage in a new
weighing process, but draws on an established line of cases concerning the
failure of ministerial delegates to consider and weigh implied limitations
and/or patently relevant factors. . . .
38 This standard
appropriately reflects the different obligations of Parliament, the Minister
and the reviewing court. Parliament's task is to establish the criteria and
procedures governing deportation, within the limits of the Constitution. The
Minister's task is to make a decision that conforms to Parliament's criteria
and procedures as well as the Constitution. The court's task, if called upon to
review the Minister's decision, is to determine whether the Minister has
exercised her decision-making power within the constraints imposed by
Parliament's legislation and the Constitution. If the Minister has considered
the appropriate factors in conformity with these constraints, the court must
uphold his decision. It cannot set it aside even if it would have weighed the
factors differently and arrived at a different conclusion.
[28]
Neither
the IRPA nor the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the Regulations] specify what “humanitarian and
compassionate considerations” entail. As such, the Supreme Court of Canada in Baker,
above, at para 74 indicated (with respect to the predecessor of subsection
25(1)) that an H&C applicant has no right to the application of a
particular legal test (see also Hinzman .v Canada (Minister of
Citizenship and Immigration), 2010 FCA 177, 405 N.R.
275, at para 39).
[29]
Nonetheless,
this Court has routinely held that in order to be successful on an H&C
application for permanent residence from within Canada, the applicant must show
that he or she would suffer unusual and underserved or disproportionate
hardship if required to apply from abroad (Rachewiski v. Canada (Minister of
Citizenship and Immigration), 2010 FC 244, 365 F.T.R. 1,
at para 26; Sharma v. Canada (Minister of Citizenship and Immigration),
2009 FC 1006 (available on CanLII) at para 9; Pashulya v. Canada (Minister
of Citizenship and Immigration), 2004 FC 1275, 133 ACWS
(3d) 1039, at para 43, Monteiro v. Canada (Minister of Citizenship
and Immigration), 2006 FC 1322, 166 ACWS (3d) 556, at para 20).
[30]
Citizenship
and Immigration Canada publishes administrative guidelines to assist its
officers in exercising discretion under subsection 25(1). These guidelines are
not legally binding and are not intended to supersede the discretion of the
officers (Rogers v. Canada (Minister of
Citizenship and Immigration), 2009 FC 26, 339 FTR 191, at para 34; Legault,
above, at para 20). However, they are considered to be of “great assistance” to
the Court when conducting judicial review (Legault, above, at para 20; Baker,
above, at para 72). The applicable guidelines are found in Manual IP 5 (“Immigrant
Applications in Canada made on Humanitarian or Compassionate
Grounds”). These guidelines indicate that “hardship is assessed by weighing
together all of the H&C considerations submitted by the Applicant.” They
refer to two discrete types of hardship, “unusual and undeserved” and
“disproportionate”, which are defined in section 5.6 as follows:
The
assessment of hardship
The
assessment of hardship in an H&C application is a means by which CIC
decision-makers may determine whether there are sufficient H&C grounds to
justify granting the requested exemption(s).
Individual
H&C factors put forward by the applicant should not be considered in
isolation when determining the hardship that an applicant would face; rather,
hardship is determined as a result of a global assessment of H&C
considerations put forth by the applicant. In other words, hardship is assessed
by weighing together all of the H&C considerations submitted by the
applicant.
Unusual and
undeserved hardship
The
hardship faced by the applicant (if they were not granted the requested
exemption) would be, in most cases, unusual. In other words, a hardship not
anticipated by the Act or Regulations; and
The
hardship faced by the applicant (if they were not granted the requested
exemption) would be, in most cases, the result of circumstances beyond the person’s
control.
OR
Disproportionate
hardship
Sufficient
humanitarian and compassionate grounds may also exist in cases that would not
meet the “unusual and undeserved” criteria but where the hardship of not being
granted the requested exemption(s) would have an unreasonable impact on the
applicant due to their personal circumstances.
[31]
In Irimie
v. Canada (Minister of citizenship and
immigration),
[2000] F.C.J. No. 1906, 10 Imm. L.R. (3d) 206, Justice Pelletier discussed the
meaning of “unusual and undeserved” hardship in the following manner:
12 If
one then turns to the comments about unusual or undeserved which appear in the
Manual, one concludes that unusual and undeserved is in relation to others who
are being asked to leave Canada. It would seem to follow that the hardship which would trigger
the exercise of discretion on humanitarian and compassionate grounds should be
something other than that which is inherent in being asked to leave after one
has been in place for a period of time. Thus, the fact that one would be
leaving behind friends, perhaps family, employment or a residence would not
necessarily be enough to justify the exercise of discretion.
. . .
26
I return to my observation that the evidence
suggests that the applicants would be a welcome addition to the Canadian
community. Unfortunately, that is not the test. To make it the test is to make
the H & C process an ex post facto screening device which supplants the
screening process contained in the Immigration Act and Regulations. This would
encourage gambling on refugee claims in the belief that if someone can stay in
Canada long enough to demonstrate that they are the kind of persons Canada
wants, they will be allowed to stay. The H & C process is not designed to
eliminate hardship; it is designed to provide relief from unusual, undeserved
or disproportionate hardship. . . .
Was the officer’s
decision to refuse the request for exemption unreasonable?
[32]
The
applicant argues that the officer’s decision is reviewable because of a number of
alleged errors and omissions.
[33]
First,
the applicant claims that the officer erred by failing to consider the hardship
her children would face in the event that they stayed behind in Canada. The applicant
points to the Court of Appeal decision in Hawthorne v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555, as creating
an obligation to consider both “the hardship the child would suffer from either
her parent’s removal from Canada or [the child’s] own voluntary departure should
[the child] wish to accompany her parent abroad” (Hawthorn, above at
para 4).
[34]
Second,
the applicant submits that the officer also erred by failing to consider as a
“factor” that the applicant may not be able to return as an independent
immigrant should she be denied permanent residence on H&C grounds. The applicant
points out that this was considered by the Federal Court of Appeal (FCA) in Hawthorn,
above at para 21.
[35]
Third,
the applicant argues that the officer made a reviewable error in relying on the
supposed similarity of the French and Canadian school systems in order to make
her assessment of the best interests of the children. The applicant points out
that there was no evidentiary basis for coming to a conclusion regarding the
nature of the French school system.
[36]
Fourth,
the applicant submits that the officer glossed over numerous expert reports in
order to conclude that the applicant’s eldest son, Allen, would be able to
adapt to moving to France. The applicant argues that the officer based
her assessment in this regard solely on the fact that Allen was able to handle
the transition from elementary to secondary school. As such, she contends that
the officer was not alive, alert or sensitive to Allen’s best interests.
[37]
Fifth,
the applicant claims that the officer erred by not considering either the applicant’s
common-law relationship with Mr. Chamas, a Canadian citizen, or the spousal
sponsorship form submitted in support of the H&C application. She argues
that this was a main factor in her application and its non-consideration is
contrary to sections 5.13, 5.15, 12.1 and 12.3 of the IP5 Manual.
[38]
Finally,
the applicant argues that the officer erred in finding that she circumvented
Canadian immigration law by staying in Canada for a long
period of time without applying for residence. The applicant submits that she
was repeatedly allowed to enter Canada as a visitor and that,
as such, she maintained legal status throughout (up until very recently). She
points to subsection 22(2) of the IRPA, which indicates that “an
intention by a foreign national to become a permanent resident does not
preclude them from becoming a temporary resident if the officer is satisfied
that they will leave Canada by the end of the period authorized for
their stay.” This error is important, the applicant argues, because the officer
stated that she gave it considerable weight in her establishment analysis.
The Best Interests
of the Children
[39]
The
applicant argues that the officer failed to appropriately evaluate the best interests
of her children because the officer only considered the impact on the children
of leaving Canada to go to France with their mother. The applicant claims it
was incumbent upon the officer to also discuss the impact on the children of
staying in Canada and being
separated from their mother. In support of this proposition, the applicant
points to Hawthorne, above at
para 4, where the FCA indicated:
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.
[40]
However,
the Court in Hawthorne went on to say that no “magic formula” should be
imposed on immigration officers regarding the exercise of their discretion when
considering the best interests of the child and that form should not be
elevated over substance (Hawthorne, above at paras 7 and 37).
[41]
It
is well established that it is incumbent upon an applicant for H&C
consideration to set out the basis of his or her application and to put forward
evidence to establish that basis. In Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38, [2004] 2 F.C.R. 635, at para
8, Justice Evans outlined the applicant’s responsibility in that regard:
.
. . since applicants have the onus of establishing the facts on which their
claim rests, they omit pertinent information from their written submissions at
their peril. In our view, Mr. Owusu’s H & C application did not adequately
raise the impact of his potential deportation on the best interests of his children
so as to require the officer to consider them.
[42]
The
same principle was reiterated by the FCA in Kisana, above.
[43]
In
Ahmad v. Canada (Citizenship and Immigration), 2008 FC 646, 167 ACWS (3d) 974, the applicant had argued that the
immigration officer had failed to consider the fact that her daughter would
face discrimination if she was required to return to Pakistan. Justice
Dawson rejected this argument because the applicant had not raised it in her original
H&C application. At paras 36 and 37, Justice Dawson wrote the following:
[36] The
applicants do not point to any factual error in the officer's analysis, but
instead argue that the analysis was too narrow. The applicants say that the
officer should have considered the discrimination the applicants' now
eight-year-old daughter would face in Pakistan.
[37] In
my view, this submission is not consistent with the fact that it is the
applicants who had the burden of specifying that their application was based,
at least in part, upon the best interests of the children and the burden of
adducing proof of any claim on which their humanitarian and compassionate
application was based. It was incumbent upon the applicants to raise, and
support with evidence, any specific issue a family member would face that was said
to give rise not just to hardship, but to hardship which is unusual and
undeserved or disproportionate.
[44]
The
issue in Baisie v. Canada (Minister of
Citizenship and Immigration), 2004 FC 953, 132
A.C.W.S. (3d) 350, was similar to the one raised in this case. The
applicant faulted the officer for not having considered the potential impact on
the children in the event that they stayed in Canada without their
mother. The Court rejected this argument on the basis that the record did not
suggest that factual scenario. At para 15, Justice Mosley wrote:
[15] In
my view, the officer adequately addressed the interests of the applicant's
Canadian children in making the H&C assessment, pursuant to the standard
set out in Baker, supra, based on the limited information that was provided to
him by the applicant. Had the applicant advised the officer that the
Canadian-born children would remain in Canada,
as is their right, there would have been an obligation on the officer to
inquire into the effects of separation from their mother on them and the
arrangements for their care in this country to ensure that their best interests
would be met. The record indicates, however, that the applicant told the
officer that she would take the children with her to Ghana
and, indeed, on that basis arrangements were made for the costs of the
children's travel to be covered by the respondent. In those circumstances, it
was reasonable for the officer to focus his attention on how relocation to Ghana
with their mother would affect the children. . . .
[45]
I
concur with Justice Mosley’s reasoning and consider that it should be applied
to this case. The applicant faults the officer for not having considered the
hardship that her removal would impose on the children, should they remain in Canada. However,
the applicant never referred the officer to that eventuality in her H&C
application or at any point during the determination process of her
application, which started in 2006. On the contrary, the applicant’s counsel
concluded the H&C application by stating:
It goes
without saying that any removal of Brigitte . . . would automatically cause the
removal of her two children who would have to accompany their mother causing
untold emotional problems for not only Allen but also his younger sister Ines.
[46]
An
H&C application is not a mathematics formula that is applied in a vacuum. The
officer does not have the responsibility to consider all possible scenarios
that could possibly result from the applicant’s removal, nor does she have to
address issues that are purely speculative. The officer’s role is to assess the
special circumstances that the applicant raises and to determine whether
they warrant the application of an exceptional exemption.
[47]
Therefore,
I conclude that in this case, the possibility that the applicant’s children would
remain in Canada was simply
not raised by the applicant, and as such, the officer did not have to assess
the impact upon the children of such a scenario.
[48]
Next,
I turn to consider the applicant’s argument that the officer made a reviewable
error in relying on the supposed similarity between the French and Canadian
school systems in her assessment of the best interests of the applicant’s children.
It is true that the officer’s conclusion in this regard does not appear to have
been based on specific documentary evidence. However, I do not consider that it
amounts to a reviewable error.
[49]
This
Court in Gomes v. Canada (Minister of
Citizenship and Immigration), 2009 FC 98, 176 ACWS
(3d) 206, considered a similar issue. The officer had concluded that
the health care available in Portugal was sufficient to
provide the applicant with the care he required. The applicant argued that
this determination was speculative and not based on any evidence. Justice
Phelan found the officer’s determination to be reasonable. At para 12 he wrote:
[12] The
speculative elements of the decision arose as the result of the failure of the
Applicant to adduce evidence to the contrary, as was his obligation. The
Officer, in concluding that Portugal could
provide medical care, undoubtedly took judicial notice of the fact that Portugal
is a member of the EU and as such, has a reasonable medical system. The
Applicant acknowledges that he provided no evidence that medical care
sufficient for the Applicant was not available in Portugal.
While it might have been preferable for the Officer to simply state that the
Applicant had failed to discharge the onus of proof in respect of this matter,
the conclusion that Portugal, on a
balance of probabilities, could provide medical care was not unreasonable.
[50]
Similarly,
in this case, while it might have been preferable for the officer simply to
have indicated that the applicant had failed to discharge the onus of proving
that the French school system would not be sufficient to meet the children’s
needs, the ultimate conclusion that the officer made was not unreasonable. It
also appears from the decision that the officer’s finding regarding the
similarity between the French school system and the Canadian school system was
not determinative as to her assessment of the children’s best interests.
[51]
Finally,
the applicant argues that the officer was not sensitive to Allen’s best
interests because she failed to adequately consider the reports regarding his
learning difficulty and assumed that he would be able to adapt to life in France because he
was able to cope with the transition from elementary to secondary school.
[52]
With
respect, I cannot conclude that the officer was not alert and sensitive to
Allen’s best interests. The officer did note Allen’s learning disability and
did refer to the various reports submitted. She specifically discussed the most
recent letter of July 13, 2009, in some detail. Ultimately, she concluded that
on the evidence submitted there was nothing to show that, with the proper
planning and supervision, Allen would be unable to adapt to living in France with his
mother.
[53]
To
adopt the words of Justice Mainville in Medina v. Canada (Minister of
Citizenship and Immigration), 2010 FC 504 (available on CanLII) at para 55,
“Having
found that the officer did address the issue of the child’s best interest, it
is not for this Court to substitute its opinion for that of the Officer unless
the Officer’s decision was such as to fall outside the framework of reasonability.” The officer’s
decision in this case was not unreasonable.
Establishment
[54]
The
applicant takes issue with the fact that the officer, in her analysis of the applicant’s
establishment, gave significant weight to the fact that the applicant had lived
in Canada for a long
period with visitor status instead of obtaining permanent residence status. The
applicant insists that, until 2006, she had legal status and that the officer failed
to consider the possibility of a dual intent as describe in section 22 of the IRPA.
[55]
I
do not consider that the officer’s assessment, in this regard, warrants the
Court’s intervention.
[56]
In
Legault, above at para 19, the FCA clearly indicated that the conduct of
an applicant is relevant to the determination of an H&C application:
[19] In
short, the Immigration Act and the Canadian immigration policy are founded on
the idea that whoever comes to Canada with the intention of settling must be of
good faith and comply to the letter with the requirements both in form and substance
of the Act. 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
authorized 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.
[57]
In
this case, it has not been alleged that the applicant remained “illegally” in Canada. However,
the record does not explain why the applicant, who has clearly been living in Canada since 1996
with the intent of staying permanently, did not apply for permanent residency
before 2006. The record indicates that in 2002, a customs officer at Trudeau International Airport in Montreal instructed
the applicant to apply for permanent resident status within the following six
months. The applicant explained that she retained the services of counsel in
2004 but never explained why she waited until 2004 and what kind of follow-up
on her application was done between 2004 and 2006. Furthermore, an exclusion
order was issued against the applicant in July 2006.
[58]
In
those circumstances, it was not unreasonable for the officer to consider the applicant’s
Immigration record as a relevant factor and conclude that she disregarded the
legislation by living in Canada for over nine years as a visitor.
[59]
With
respect, I consider that subsection 22(2) of the IRPA cannot be of any
help to the applicant in this case. First, subsection 22(2) is designed to permit
a temporary visa to be provided to a foreign national despite the fact that the
individual intends to become a permanent resident. Second, it is to be applied
by the immigration officer when “the officer is satisfied that [the person]
will leave Canada by the end
of the period authorized for [his or her] stay.”
[60]
The
officer was not required to apply section 22 of the IRPA and, in any
event, the applicant’s “dual intent” would not have prevented the officer from considering
the length of the period of time that had elapsed since the applicant first
entered Canada as a visitor
in 1996.
[61]
Given
the above, the officer’s decision to consider the applicant’s choice to stay in
Canada for a long
period of time, without applying for permanent resident status, as a factor in
weighing the applicant’s degree of establishment was not unreasonable.
Other Factors
[62]
The
applicant also claims that the officer erred by failing to consider as a
“factor” that the applicant may not be able to return to Canada as an
independent immigrant. I do not agree. It is true that Justice Evans of the
Court of Appeal in Hawthorne, above at para 21, in
concurring reasons, pointed out that:
…in many
cases, the outcome of [an H&C] application determines not only whether an
applicant may apply for permanent residence from within Canada, but also
whether she will be granted permanent residence status at all. Thus, if Ms.
Hawthorne's H & C application is unsuccessful, she will almost certainly be
removed from Canada. If she were
then to apply from outside Canada for a visa to enter as a permanent
resident in the independent category, a visa would likely be refused because
she lacks the educational qualifications and job skills required to meet the
selection criteria. However, if her H & C application succeeds, she will be
granted permanent residence status in Canada on satisfying health
and security requirements.
[63]
However,
Justice Evans’ comments were made in the context of a particular factual case
and cannot simply be transposed in this case. Further, Justice Evans did not
base his decision to dismiss the appeal (and to uphold the decision setting aside
the officer’s determination) on the fact that the immigration officer had not
considered the likelihood of Ms. Hawthorne being successful on a subsequent
application for permanent residence.
[64]
The
applicant has not offered any authority to suggest that, in order for an immigration
officer’s decision on an H&C application to be reasonable, that officer must
include an analysis of the applicant’s ultimate likelihood of not being granted
permanent resident status on a subsequent application for residence from abroad.
[65]
The
applicant also claims that the Officer erred by not considering either the applicant’s
common-law relationship with Mr. Chamas, a Canadian citizen, or the spousal
sponsorship form submitted in support of the H&C application. However, the
correspondence between the applicant and the Officer suggests that the applicant’s
relationship with Mr. Chamas was considered. In a letter addressed to the
Officer, dated January 10, 2010, the applicant’s lawyer indicated that the
inquiries regarding Mr. Chamas were excessive. She said she did “not understand
the emphasis on the “sponsor” and suggested to the Officer that her focus
should be on the other aspects of the application; that the sponsorship form
provided was merely facilitative.
[66]
In
any event, it is clear that the Officer did consider the applicant’s common-law
relationship with Mr. Chamas. It was mentioned at a number of points in the
Officer’s reasons. Specifically, the Officer made reference to Mr. Chamas’
precarious tax situation, as well as the mobile nature of his work. The Officer
further found that it was reasonable to believe that, given his mobility, Mr. Chamas
would be able to continue to support his family, even in the event of the applicant’s
departure.
Overall
Balancing
[67]
Finally,
the applicant claims that if there are public policy considerations that
outweigh the H&C factors, they must be specifically identified – otherwise
the Minister is exercising an arbitrary power, not a discretionary one. This
argument is without merit.
[68]
The
FCA in Legault, above at para 17, indicated that the discretion afforded
to the Minister to grant an H&C application “must be exercised within the
general context of Canadian laws and policies on immigration.” Those laws and
policies include the general rule that permanent residence must be applied for
from outside of the country, as well as the fundamental notion that “[n]on‑citizens
do not have a right to enter or remain in Canada” (Legault, above at
para 16). This is why an exemption under subsection 25(1) is an exceptional
remedy. Although the Officer may not have cited these aspects of the IRPA’s
public policy specifically as factors weighing against granting the H&C
application, it is clear that she was alive to them. They are inherent in the
Officer’s application of the “unusual and undeserved, or disproportionate
hardship” test. Since the application of this test recognizes the exceptional
nature of the remedy sought, as well as its role within the overall scheme of
the IRPA, there is no need for the Officer to invoke, as “negative
factors”, general public policy aspects of the IRPA in her reasons.
[69]
For
all of the above reasons, the application for judicial review is dismissed. The
parties did not propose any important question for certification and I find
that no such questions arise.
JUDGMENT
THIS COURT ORDERS that the application for judicial review is dismissed. No
question is certified.
“Marie-Josée
Bédard”