Date: 20100415
Docket: IMM-4283-09
Citation: 2010 FC 415
Toronto, Ontario, April 15, 2010
PRESENT:
The Honourable Madam Justice Mactavish
BETWEEN:
IDA SIREGAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ida
Warni Siregar seeks judicial review of a negative decision in relation to her application
for permanent residence based on humanitarian
and compassionate grounds under subsection 25(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. Ms. Siregar has not persuaded me
that the decision was unreasonable. Consequently, the application will be
dismissed.
I. Background
[2]
Ms.
Siregar is a 37-year-old Indonesian citizen who entered Canada on February 10,
2005 as a visitor. Ms. Siregar claims that she was deceived into coming to Canada, having been
led to believe that she would be able to earn enough money in this country to
allow her to repay a debt she owed in Indonesia.
[3]
Once
in Canada, Ms. Siregar
entered into a romantic relationship with a Chinese man, and subsequently
became pregnant with his child. She says that the father of the child
abandoned her when he discovered that she was pregnant.
[4]
On
April 12, 2006, Ms. Siregar was arrested for being in Canada without a
valid immigrant visa and working without a permit. She then applied for
refugee protection, claiming that she was ashamed and fearful of returning to Indonesia as an
unmarried Muslim mother of a mixed-race child. She also alleged that she feared
for her life, as she owed money to a smuggler who facilitated her entry into Canada.
[5]
The
Immigration and Refugee Board rejected Ms. Siregar’s claim, finding that
certain aspects of her evidence lacked credibility. The Board concluded that
there was no serious possibility that she would face persecution in Indonesia based on any
of the Convention refugee grounds. The Board also determined that Ms. Siregar was
not a person in need of protection under section 97(1) of the IRPA. Ms.
Siregar’s application for leave and judicial review of this decision was
dismissed.
[6]
Ms.
Siregar then applied for a Pre-Removal Risk Assessment (PRRA), and an H&C exemption. Her H&C
application was based, in part, on the risk that she says that she would face
if she were forced
to return to Indonesia. This was the same
risk relied upon in her refugee claim. Ms. Siregar also relied on her establishment
in Canada, and submitted that it would be in the best interests of her Canadian-born
daughter for her to remain in Canada.
[7]
Both
of these applications were subsequently denied in two decisions made by the
same Pre-Removal Risk Assessment officer, and a removal date was
set for October 2, 2009. Ms. Siregar sought a stay of her removal. However, in
an Order dated October 1, 2009, Justice Snider determined that there was no
evidence that Ms. Siregar would suffer irreparable harm if she were returned to
Indonesia, with the
result that the motion was dismissed. I am advised that Ms. Siregar returned
to Indonesia shortly
thereafter.
II. Analysis
[8]
The
officer accepted that Ms. Siregar would experience some hardship and difficulty
in re-establishing herself if she were to return to Indonesia. However,
the officer concluded that this hardship did not amount to a hardship that was
unusual and undeserved or disproportionate.
[9]
Ms.
Siregar argues that in coming to this conclusion, the officer made several
factual findings that were not supported by the evidence. For example, she
claims that the officer found that she would have familial support if she
returned to Indonesia. This was
unreasonable, Ms. Siregar says, given that she comes from a strict Muslim
family that would react very negatively to the news that she had borne a child
out of wedlock.
[10]
With
respect, the officer did not make such an unequivocal finding, having concluded
only that Ms. Siregar “might” be able to obtain support from her parents and
siblings. In coming to this conclusion, the officer considered the findings of
the Immigration and Refugee Board, which did not accept that Ms. Siregar came
from a strict Muslim family. It is noteworthy that Ms. Siregar provided no new
evidence in her H&C application on this point.
[11]
The
Immigration and Refugee Board also found that Ms. Siregar’s alleged fear of her
family’s reaction to the news that she had borne a child out of wedlock was
speculative. The officer recognized that this finding was not binding upon
him, but decided that he was prepared to give it considerable weight. This was
something that the officer was entitled to do, especially given that Ms.
Siregar had provided no additional evidence on this point.
[12]
Ms.
Siregar says that the officer’s finding that she would be able to rely on her
past work experience to support herself and her daughter in Indonesia was
unreasonable, given that it was the bankruptcy of her business that led her to
come to Canada in the first place. However, what the officer actually said was
that Ms. Siregar could rely on “her catering entrepreneur skills and/or her
Canadian work experiences to assist her in obtaining employment”. Ms. Siregar
was employed in at least two different jobs while in Canada, working in
her most recent job for more than two years prior to her removal from Canada. In light
of this, the officer’s finding is not unreasonable.
[13]
Insofar
as the best interests of Ms. Siregar’s young daughter are concerned, Ms.
Siregar relies on the decision in Alie v. Canada (Minister of Citizenship
and Immigration), 2008 FC 925, [2008] F.C.J. No. 1149 as authority
for the proposition that it is not enough for the officer to look at the
conditions that the child will face in Indonesia. Consideration must also be
given to the benefits that would accrue to the child if she were to stay in Canada. It is,
however, clear that the Alie case is readily distinguishable from the
present case.
[14]
In
Alie, the focus of the officer’s analysis was on the hardship that a
Canadian-born child’s family would face if they were removed from Canada with, or
without the child. As the Court observed, this was an error, as the focus of
the officer’s analysis should have been on the interests of the child herself,
rather than the family: at para. 9.
[15]
As the Federal Court of Appeal observed in Kisana v. Canada
(Minister of Citizenship and Immigration), 2009 FCA 189, 392 N.R. 163, officers may be presumed to know that
living in Canada will offer many opportunities for a
child. Quoting Hawthorne
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555, the
Court held that “[t]he inquiry of the officer … 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”: at para. 5
[16]
According
to Kisana, the officer's
task is to examine the likely degree of hardship to the child that will be caused
by the removal of the parent, and to weigh this along with other factors. That
is what the officer did in this case.
[17]
Finally,
Ms. Siregar argues that the officer erred by failing to consider the fact that
she was a victim of human trafficking in assessing the question of hardship.
This argument was presented to the Immigration and Refugee Board and was
categorically rejected by it, with the Board observing that Ms. Siregar was
never forced into anything resembling debt bondage or the sex trade. Leave to
judicially review this decision was subsequently denied by this Court.
[18]
Ms.
Siregar relies upon the United Nations Protocol to Prevent, Suppress and Punish
Trafficking in Persons, Especially Women and Children Supplementing the
United Nations Convention against Transnational Organized Crime, G.A. Res.
25, Annex II, UNGAOR, 55th Sess., Supp. No. 49, UN Doc. A/RES/55/25 (Nov. 15,
2000), entered into force December 25, 2003 (or the “Palermo Protocol”) to support
her contention that she was the victim of human trafficking. However, a review
of this document discloses that human trafficking requires “exploitation”.
“Exploitation” is defined as including prostitution or other forms of sexual
exploitation, forced labour or services, slavery or practices similar to
slavery, servitude or the removal of organs: see Article 3.
[19]
While
Ms. Siregar may have been misled by the agents who brought her into Canada illegally
regarding her earning potential in this country (although the Board found that
her evidence on this point “defied credulity”), she was never subjected to any
of the above practices. By her own admission, she lived freely in Toronto for several
months after arriving in Canada before choosing to work on a farm in Leamington, Ontario with her
boyfriend. It was Ms. Siregar herself who sought out this employment.
[20]
As
a consequence, the officer’s finding that Ms. Siregar was not a victim of human
trafficking was reasonable.
III. Conclusion
[21]
Having
failed to identify a reviewable error on the part of the officer, it follows
that the application is dismissed.
[22]
Ms.
Siregar proposes the following question for certification:
Is it required for an H&C officer to
consider the Palermo Protocol with respect to finding whether an
applicant is a victim of human trafficking?
[23]
In
light of my finding that Ms. Siregar does not meet the definition of human
trafficking contained in the Palermo Protocol, it follows that the
answer to this question would not be dispositive of this case. Accordingly, I
decline to certify it.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general importance is certified.
“Anne Mactavish”
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