Docket: IMM-4772-11
Citation: 2012 FC 529
Ottawa, Ontario, May 3, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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JAE BOK NOH; EUN MI HWANG;
MIN WOO NHO; MIN JI NOH
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of a visa officer (Officer), dated 15 July 2011, which refused the Applicants’
application for permanent residence on humanitarian and compassionate (H&C)
grounds under subsection 25(1) of the Act.
BACKGROUND
[2]
The
Applicants are all citizens of South Korea living in Canada without
status. The Male Applicant and the Female Applicant are married; the Minor
Applicants are their son, Min Woo, and daughter, Min Ji.
[3]
The
Applicants came to Canada in July 2000 from Sri Lanka. At that
time, Min Woo was 12 years old and Min Ji was 8 years old. They are now 24 and
20 years old respectively. Citizenship and Immigration Canada (CIC) admitted
the Applicants to Canada as visitors but denied them an extension of
their visitor status on 31 January 2001. At that time, an immigration
counsellor found that the Applicants had fulfilled the original purpose of
their visit and were no longer bona fide visitors and issued voluntary
departure orders against them.
[4]
The
Applicants did not leave Canada after CIC denied their visitor extension.
Instead, they began to build a life for themselves here: the Adult Applicants
began to work and the Minor Applicants went to school. In the time they have
been in Canada, Min Woo has
completed high-school and now works in his father’s business. Min Ji has also
completed high-school; she attended York University for one
semester but left because she could no longer afford the tuition fees. At the
same time, the Adult Applicants worked at several jobs. Currently, the Male
Applicant owns a business (Sura Sushi) and the Female Applicant is also
employed at Sura Sushi.
[5]
CIC
received the Applicants’ application for permanent residence on 26 June 2009
(H&C Application). At that time, Min Woo was 21 years old and Min Ji was
seventeen years old. In their submissions to support their H&C Application,
the Applicants drew attention to their establishment in Canada, noting that
the Male Applicant owns his own business and all of the Applicants are now
assimilated into Canadian culture. They also highlighted the hardship they
would face if they were returned to South Korea because the economic
situation there gives them few prospects for employment. Finally, the
Applicants said the Minor Applicants’ best interests favoured their staying in Canada with their
parents. They noted the Minor Applicants have been educated in the Canadian
system for the 8 ½ years they have been in Canada and face large barriers to
accessing post-secondary education in South Korea.
[6]
The
Officer considered the Applicants’ H&C Application and refused it on 14
July 2011. She notified the Applicants by letter dated 15 July 2011.
DECISION
UNDER REVIEW
[7]
The
Decision in this case consists of the Officer’s letter of 15 July 2011 (Refusal
Letter) and reasons for decision (Notes) which she signed on 14 July 2011.
[8]
The
Refusal Letter informed the Applicants that the Officer had considered their
H&C Application but had decided not to grant an exemption in their case. It
also informed the Applicants that they were without status in Canada and should
depart Canada within 30
days.
[9]
The
Notes reveal the Officer’s reasons for rejecting the H&C Application. She
began by reviewing the grounds advanced by the Applicants to support their
application, noting that they relied on their establishment, the hardship they
would face, and the Minor Applicants’ best interests.
Establishment
[10]
The
Officer noted that the Applicants have lived in Canada for some
time and the Adult Applicants, except for brief periods, have been employed the
whole time. She also noted that the Male Applicant has filed taxes since 2006,
though she found he only did so because registration of his business made this
unavoidable. Although the Applicants’ submissions said Sura Sushi employed two
Canadian citizens and one permanent resident, the Officer found there was no
evidence to prove this was the case. The Applicants submitted evidence to show
they were involved in community groups and had developed relationships with
family and friends in Canada, but the Officer found these activities were
expected and common practice.
[11]
The
Officer said she could not conclude the Applicants’ stay in Canada was outside
their control. They stayed here after CIC issued departure orders in 2001 and
could have gone back to South Korea. If they had left when they
should have, the Applicants then could have returned to Canada with proper
documentation.
Hardship
[12]
Although
the Applicants said the economic situation in South Korea would cause
hardship, the Officer found there was insufficient evidence before her to show
they faced limited employment prospects there. The Applicants submitted
documents to show South Korea was experiencing an economic crisis, but the
Officer noted these documents were from 2008 and found she could not assume South Korea remains in
crisis. She found the Male Applicant had transferable skills from his
experience in Canada which would
give him an advantage in South Korea.
[13]
The
Applicants also said they did not have many contacts or a support network in South Korea, but the
Officer found this was not the case. The Male Applicant has five siblings in South Korea. The Female
Applicant’s parents live there as well, and the Applicants would have support
from their family. Against the family the Applicants have in South Korea, the
Officer balanced the fact that they have no family in Canada. She
concluded that a return to South Korea would lead to building
stronger family ties there.
[14]
The
Officer said the Applicants had overcome obstacles in Canada to build a
life here. She gave little weight to their assertion they would face obstacles
on return to South
Korea.
The Officer also found their readjustment to life in South Korea would be
less difficult than their adjustment to life in Canada had been.
Best Interests of the Children
[15]
When
the Officer analyzed the Minor Applicant’s interests, she noted they had spent
eight years in school in Canada. She also noted the Applicants’
submissions that the Minor Applicants are westernised, face barriers on return
to South
Korea,
and have weak Korean language skills. The application also drew attention to
the Adult Applicants’ inability to provide for the Minor Applicants in South Korea.
[16]
The
Officer said she was alert and sensitive to the Minor Applicants’ interests.
She found there was insufficient evidence that they would not be able to
readjust to life in South Korea. The Officer also found they would have support
from their parents, grandparents, and other family in South Korea. Further,
the Officer found the Minor Applicants’ English skills would give them an
advantage in South
Korea.
They could also return to Canada on study permits if they wanted to pursue
a post-secondary education here.
Conclusion
[17]
Based
on the evidence before her, the Officer found the Applicants had not
demonstrated unusual and undeserved or disproportionate hardship. On that
basis, she denied their request for permanent residence and an exemption from
the normal requirement to apply for a permanent resident visa from outside of Canada.
ISSUES
[18]
The
Applicants raise the following issues in this proceeding:
a.
Whether
the Officer breached their right to procedural fairness by denying them the
opportunity to respond and by relying on extrinsic evidence;
b.
Whether
the Officer applied the wrong test for the best interests of a child;
c.
Whether
the Officer applied the incorrect test for H&C Relief;
d.
Whether
the Decision is unreasonable.
STANDARD
OF REVIEW
[19]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[20]
A
decision-maker’s reliance on undisclosed extrinsic evidence is a breach of
procedural fairness (see Tariku v Canada (Minister of Citizenship and
Immigration) 2007 FC 474 at paragraph 2 and Qureshi v Canada (Minister
of Citizenship and Immigration) 2009 FC 1081 at paragraph 14). Likewise,
the opportunity to respond to a decision-maker’s concerns is also an issue of
procedural fairness (see Karimzada v Canada (Minister of Citizenship and
Immigration) 2012 FC 152 at paragraph 10 and Guleed v Canada (Minister
of Citizenship and Immigration) 2012 FC 22 at paragraphs 11 and 12.
[21]
In
Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour) 2003
SCC 29, the Supreme Court of Canada held at paragraph 100 that “It is for
the courts, not the Minister, to provide the legal answer to procedural
fairness questions.” Further, the Federal Court of Appeal in Sketchley v Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review on
the first issue is correctness.
[22]
In Herman v Canada (Minister of Citizenship and Immigration) 2010 FC
629, Justice Paul Crampton held at paragraph 12 that the standard of review on
the question of whether an officer applied the correct test in assessing an
H&C application was correctness. Justice Michael Kelen made a similar
finding in Ebonka v Canada (Minister of Citizenship and
Immigration) 2009 FC 80 at paragraph 16, as did Justice Michel Beaudry
in Mooker v Canada (Minister of Citizenship and
Immigration) 2008 FC 518 at paragraph 15. Further, whether an officer
applied the proper test for where the best interest of a child lie is an issue
which is to be evaluated on the correctness standard. See Pillai v Canada (Minister of Citizenship and
Immigration) 2008
FC 1312 at paragraph 32. The standard of review on the second and third issues
is correctness.
[23]
In Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 (QL), the Supreme Court of Canada held
that, when reviewing an H&C decision, “considerable deference should be
accorded to immigration Officers exercising the powers conferred by the
legislation, given the fact-specific nature of the inquiry, its role within the
statutory scheme as an exception, the fact that the decision-maker is the
Minister, and the considerable discretion evidenced by the statutory language”
(paragraph 62). Justice Michael Phelan followed this approach in Thandal v Canada (Minister of Citizenship and Immigration) 2008 FC
489, at paragraph 7. The standard of review on the fourth issue is
reasonableness.
[24]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
STATUORY
PROVISIONS
[25]
The
following provisions of the Act are applicable in this proceeding:
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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 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.
…
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.
[…]
|
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. (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.
[…]
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ARGUMENTS
The
Applicants
Improper
test for Best Interest of the Child
[26]
The
Applicants say the Officer applied the wrong test when she analyzed the Minor
Applicants’ interests. They point to Baker, above, where Justice
L’Heureux-Dubé said at paragraph 72 that
[…]for the exercise of the discretion to fall within the
standard of reasonableness, the decision-maker should consider children’s best
interests as an important factor, give them substantial weight, and be alert,
alive and sensitive to them.
[27]
The
Applicants also note that Justice Douglas Campbell of this Court examined what
it means for officers to be alert, alive, and sensitive to children’s best
interests in Kolosovs v Canada (Minister of Citizenship and Immigration) 2008
FC 165.
[28]
In
this case, the Officer was not appropriately alert, alive, or sensitive to the
Minor Applicants’ interests. She did not demonstrate any awareness of their
needs, but simply found that they would be able to readjust to life in South Korea. She was
also not alive to the fact the Minor Applicants have spent many years in Canada
or to the effect of relocation to South Korea on their education and
well-being. The Officer further failed to consider how the Minor Applicants
would suffer if they must leave Canada. Finally, the Officer
did not consider how the Minor Applicants’ loss of their Korean language skills
impacted their best interests.
[29]
The
Applicants rely on Mughrabi v Canada (Minister of
Citizenship and Immigration) 2008 FC 898 at paragraph 23, where the
Court set aside an officer’s decision because
The Officer refers to no evidentiary basis for the conclusion that
“children are resilient by nature...,” and he makes no attempt to engage with
the specific advice he is given concerning the children involved in this case.
Even if children are resilient by nature (which certainly does not accord with
my experience), the Officer was not alert and alive to the interests of these
specific children in the way that he dealt with the detailed psychological evidence
before him.
[30]
Rather
than looking at whether the Minor Applicants could adjust to life in South Korea, the Officer
should have considered their dependency on their parents, their establishment
in Canada, their links to South Korea, and the impact of a return
on their education.
[31]
The
Officer was bound to consider the degree of hardship the Minor Applicants would
face in South
Korea
but failed to do so. Although she said she was alert and sensitive to their
interests, she concluded they would be able to readjust to life in South Korea. The
Applicants point out that the issue before the Officer was whether, given their
education in Canada, their
establishment here, and their language limitations in Korea, it is in the Minor
Applicants best interests to be deported or to remain in Canada. Having
determined where the Minor Applicants’ best interests lay, the Officer was
required to balance them against the other factors in the H&C Application.
[32]
Rather
than determining where the Minor Applicants’ interests lay and balancing them
against the other factors in the H&C Application, the Officer only examined
whether they would be able to adjust to life in Korea. She found
they would and that they could return to Canada on study
permits if they chose to do so. This analysis, in addition to being improper,
was unreasonable.
Extrinsic
Evidence and Procedural Fairness
[33]
The
Applicants also argue that the Decision should be set aside because the Officer
relied on extrinsic evidence without giving them an opportunity to comment on
it. They point to Muliadi v Canada (Minister of Employment
and Immigration), [1986] 2 FC 205 (FCA) where the Federal Court of Appeal
held at paragraph 14 that
[…] Nevertheless, I think it was the officer’s
duty before disposing of the application to inform the appellant of the
negative assessment and to give him a fair opportunity of correcting or
contradicting it before making the decision required by the statute. It is, I
think, the same sort of opportunity that was spoken of by the House of Lords in
Board of Education v. Rice, [1911] A.C. 179 in these oft-quoted words of
Lord Loreburn L.C., at page 182:
They can
obtain information in any way they think best, always giving a fair opportunity
to those who are parties in the controversy for correcting or contradicting any
relevant statement prejudicial to their view.
Those words have application here even though a
full hearing was not contemplated. (Kane v. Board of Governors (University of
British Columbia), [1980] 1 S.C.R. 1105, at page 1113; see also Randolph, Bernard
et al. v. The Queen, [1966] Ex.C.R. 157, at page 164.)
[34]
In
this case, the Officer relied on extrinsic evidence that their skills in
English will give the Minor Applicants an advantage in South Korea. The Officer
did not put whatever evidence she had on this point to the Applicants. Although
the burden of proof rests on the Applicants to satisfy the requirements for
granting their H&C Application, this does not relieve the Officer of the
duty to act fairly (see Muliadi, above, at paragraph 17). The Applicants
point to Thamotharampillai v Canada (Minister of
Citizenship and Immigration) 2003 FC 836, where Justice Elizabeth
Heneghan held that non-disclosure of a document breached an H&C applicant’s
right to procedural fairness. The Officer in this case committed the same
reviewable error.
Student Visa
[35]
The
Applicants also argue that the Officer’s conclusion that the Minor Applicants
can come to Canada on student
visas is unreasonable because it ignores evidence. The Officer did not consider
that they are subject to removal orders and so would require a discretionary
authorization to return. The Minor Applicants’ ability to return to study on
student visas is not certain. The Officer also did not take into account the
likelihood of their obtaining a student visa, or the fact they would be unable
to live in Canada without
their parents.
Unusual and
Undeserved Hardship
[36]
The
Applicants further argue that the Officer based her Decision on the Minor
Applicants’ ability to leave Canada, and the hardship they would face from
being removed. The Officer said that the “Applicants could have chosen to
return to [South] Korea in 2001, obtained study and work permit documents at
the Canadian visa office, and returned to Canada with proper immigration
documentation.” This shows the Officer was assessing the hardship the Minor
Applicants would face if removed, which the Court has held is inappropriate for
assessing the interests of children.
Decision is
Unreasonable
[37]
The
Applicants also say the Decision is unreasonable because the Officer
inappropriately analysed their establishment in Canada. The Officer
held that, while their employment history was commendable, the Adult Applicants
worked in Canada without
status. She also found their stay in Canada was within their
control. The Officer failed to examine how the Applicants would suffer when she
unduly focussed on their ability to leave Canada in 2001. The
Officer did not appropriately apply CIC’s manual IP-5 – Immigrant
Applications in Canada made on Humanitarian and
Compassionate Grounds (Guidelines) which says at page 12 that
Sufficient
humanitarian and compassionate grounds may also exist in cases that do 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.
[38]
The
Officer did not set out the positive establishment factors in the H&C
Application or explain why these did not amount to disproportionate hardship.
The Applicants point to Ranji v Canada (Minister of
Public Safety and Emergency Preparedness) 2008 FC 521, paragraphs 22 to 25, where Justice
Russel Zinn held that:
When the officer concluded that
the evidence of establishment was no greater than is "naturally expected
of him", that determination was required to be made based on the
particular circumstances of the Applicant. Therefore, the officer must consider
the evidence presented with respect to the background and characteristics of
the Applicant.
Mr. Ranji came to Canada approximately 10
years ago. He has only a grade eight education in India and was a farmer
there. He is neither well-educated nor skilled.
Despite those circumstances, he
has been continuously employed, save for a two month period, in unskilled
positions earning no more than $50,000 annually but has managed to accumulate a
sizable bank account, co-purchase a residence with his brother, develop a
significant equity in the residence, purchase an RRSP, financially support his
family in India including sending his two children to private school in India,
and has provided letters of support from community and social groups for his
activities with them.
The officer made no reference to Mr.
Ranji's personal circumstances as set out above and there is no evidence that
the officer considered them in concluding that he did no more than was
naturally expected of him.
[39]
The
Officer’s assessment in this case should have looked at the Applicants’
relative gain and how difficult it would be for them to give this up. The
Officer did not do this and inappropriately held what should have been positive
factors in their application against the Applicants.
The
Respondent
[40]
The
Respondent argues the Court should not interfere with the Decision because the
Officer put appropriate weight on all the factors put forward by the Applicants
in their H&C Application. An H&C exemption is an exceptional and
discretionary remedy which gives special and additional consideration to
applicants. The denial of an H&C exemption does not take any right away
from the affected individual.
Officer Appropriately Analysed the Minor
Applicants’ Interests
[41]
The
Officer reasonably assessed the interests of the Minor Applicants. The
Applicants are simply complaining about the weight she assigned to the factors
in their application. The Officer also applied the correct test for the best
interests of the children and appropriately considered the family the Minor
Applicants had in South Korea, their health, their ability to obtain
employment or education in South Korea, and other factors.
Although the Applicants rely on Kolosovs, above, in which the Court held
the best interests of adult children should be assessed, this one case is not
binding on the Court.
[42]
The best
interests of an affected child analysis was immaterial to this H&C
Application because the Minor Applicants are now adults. In Leobrera v
Canada (Minister of Citizenship and Immigration) 2010 FC 587, Justice Michel Shore had the following to say on
point at paragraphs 79 and 80:
As has been shown, the definition of “child” is undefined in the
IRPA and the jurisprudence makes it clear that the best interests of the child
analysis has a special relationship with the Convention on
the Rights of the Child. Therefore, the Court is of the opinion, based
on the above reasoning, that the importance that the Convention
on the Rights of the Child has been unduly minimized by the earlier
jurisprudence on this matter.
Although
the Court is sympathetic to the position of the Applicant, as the policy behind
analyzing the best interests of the child is, as recognized by the Convention on the Rights of the Child, partially based on
the physical and mental vulnerabilities of children; and it also recognizes
that persons with disabilities may also be vulnerable, to varying degrees, the
Court cannot agree that dependency and vulnerability are the defining
characteristics of “childhood” for the purposes of section 25. The Court
consequently finds that dependent adults should not be included in the analysis
of the best interests of the child.
[43]
Further,
the Guidelines say at page 15 that
BIOC must be
considered when a child is under 18 years of age at the time the application is
received. There may, however, be cases in which the situation of older children
is relevant and should be taken into consideration in an H&C assessement [sic].
If, however, they are not under 18 years of age, it is not a best interests of
the child case.
[44]
As
the Officer was not obligated to consider the Minor Applicants’ best interests,
no reviewable error can result from her analysis of this factor.
No
extrinsic Evidence
[45]
The
Officer did not rely on extrinsic evidence. When the Officer said the Minor
Applicants’ English skills would be an advantage in South Korea, she was
giving her opinion based on common sense. Further, this finding was not used
against the Applicants; they said they would be disadvantaged by a return to South Korea but the
Officer found they would actually have an advantage there. The Minor
Applicants’ English skills were only one of several factors the Officer
considered.
Study
Permit
[46]
Although
the Applicants take issue with the Officer’s finding that the Minor Applicants
could return to Canada on a study permit, the Respondent says this was
a reasonable finding. They can apply for a study permit at any time.
Appropriate
Test
[47]
The
Officer did not err by applying a hardship test to the Minor Applicants. She
applied the best interest of the child test as well as the unusual and
undeserved or disproportionate hardship test. The unusual and undeserved or
disproportionate hardship test is the usual test applied under subsection
25(1), so it was reasonable for the Officer to apply it.
Discretion to
Weigh Factors
[48]
Finally,
the Respondent says the Officer had the discretion to weigh all the factors in
this H&C Application and did so appropriately. The Applicants have not
shown that the Officer exercised her discretion unreasonably, so the Court
should not interfere. Further, the Applicants simply disagree with the weight
given to the various factors at play. It is inappropriate for the Court to
re-weigh these factors (see Suresh v Canada (Minister of
Citizenship and Immigration) 2002 SCC 1 at paragraphs 34, 37, and 39).
The
Applicants’ Reply
[49]
The
Applicants say that an H&C Application is not special and additional
consideration; it is actually a consideration entrenched in the Act. Baker,
above, establishes that profound rights and interests are affected by H&C
determinations.
[50]
The
Applicants also say their complaint is not with how the Officer weighed the
factors in their H&C Application. What they challenge is her failure to
consider the time the Minor Applicants have spent in Canada, her
inappropriate analysis of their English skills, and her assumption that they
could return to Canada on a student visa. The Officer did not
meaningfully grapple with the Minor Applicants’ interests arising from the
eight years they have been here.
[51]
Although
the Respondent has said Kolosovs, above, is not binding, the Applicants
say that judicial comity binds this Court to follow that decision. None of the
exceptions to the judicial comity principal apply her, so the Court must decide
their case in accord with Kolosovs (see Cina v Canada (Minister of
Citizenship and Immigration) 2011 FC 635).
[52]
The
Applicants say that Justice Shore’s comments in Leobrera, above, are
obiter and the Officer was bound to consider the Minor Applicants’ best
interests. They point to Yoo v Canada (Minister of Citizenship and
Immigration) 2009 FC 343, Ramsawak v Canada (Minister of Citizenship and
Immigration) 2009 FC 636, and Naredo v Canada (Minister of Citizenship
and Immigration), [2000] FCJ No 1250).
[53]
Further,
it is no answer to the breach of procedural fairness alleged by the Applicants
for the Respondent to say that the Officer’s finding that English is an
advantage is simply her opinion. As Min Woo said in his affidavit on judicial
review:
I have read the [Decision]. In it, [the
Officer] states that English language skills are highly desired in [South] Korea so that my sister and I will be at an
advantage. I do not know where [she] got this information. [She] certainly did
not share it with us and allow us to comment. If [she] had, we would have
explained to [her] that English skills do not lead to better jobs or
educational opportunities in Korea. It may be true that the
English language is desired by people so that they can leave the country. But
in re-settling in [South] Korea, knowing English will provide
no advantage.
[54]
The
Officer was required to put whatever information she relied on for this
conclusion to the Applicants and to give them an opportunity to respond.
[55]
The
Minor Applicants will not be issued a study permit if they apply for one and
the Officer was wrong to say they could return to Canada in this way.
ANALYSIS
[56]
The
Applicants have gone to considerable lengths to characterize this Decision as
being either unreasonable or procedurally unfair. Some of their arguments are
attempts to introduce undue complexities into what is really a very simple
Decision; and some of their assertions about what is not addressed in the
Decision are simply inaccurate.
[57]
What
the Officer says about establishment is entirely appropriate given the fact
that the Applicants chose to stay in Canada after receiving
voluntary departure orders in January 2001 and to live and work here without
the required immigration documents. As the Officer says, “the applicants have
worked without status their entire time in Canada.” So the
Applicants are attempting to use their unauthorized time and work here as a
means of acquiring status in Canada. The Applicants are asking to be rewarded
and credited for their unauthorized stay and work in Canada in a way
that would be unfair to those who conduct themselves in accordance with the
rules of our immigration system. This Court has said that people such as the
Applicants cannot be credited in this way. The words of Justice Nadon in Tartchinska v Canada (Minister of Citizenship and
Immigration), [2000] FCJ
No 373 (QL),
at paragraphs 21 and 22 are relevant to much of what the Applicants have done
in the present case:
More
importantly, the Guidelines certainly do not suggest that an applicant must
pursue self-sufficiency at all cost and without regard to the means. I
therefore disagree with the Applicants’ argument that “[i]t is irrelevant
whether self-sufficiency is pursued with or without a work permit.” In my
opinion, the source of one’s self-sufficiency is very relevant; otherwise,
anyone could claim an exemption on the basis of self-sufficiency even if that
self-sufficiency derived from illegal activities. I appreciate that in this
case the Applicants worked honestly, albeit illegally. Nonetheless, the
Applicants knowingly attempted to circumvent the system when they chose to
continue working without authorization. Indeed, despite being told during their
first interview that they were not authorized to work and that they should
cease, there was no indication that the Applicants had given up their
employment at the time of the second interview. Moreover, their lawyer had cautioned
them about the risks of working without a work permit as well as on the
ostensible benefit of showing self-sufficiency (regardless of its source), and
they chose to remain in Canada and work illegally.
I understand that the Applicants hoped that accumulating time in Canada despite a departure order
against them might be looked on favourably insofar as they could demonstrate
that they have adapted well to this country. In my view, however, applicants
cannot and should not be “rewarded” for accumulating time in Canada, when in fact, they have no
legal right to do so. In a similar vein, self-sufficiency should be pursued
legally, and an applicant should not be able to invoke his or her illegal
actions to subsequently claim a benefit such as a Ministerial exemption.
Finally, I take note of the obvious: the purpose of the exemption, in this
case, was to exempt the Applicants from the requirement of applying for status
from abroad, not to exempt them from other statutory provisions such as the
requirement of a valid work permit.
[58]
In
any event, in considering establishment, I think the Officer does consider what
the Applicants have achieved here in light of the way they have achieved it and
concludes, reasonably in my view, that a return to South Korea will not
subject them to unusual and undeserved or disproportionate hardship.
[59]
Nor
do I think the Officer, as alleged by the Applicants, blames the children for
this situation and subjects them to an unusual and undeserved or
disproportionate hardship test. The Officer conducts a totally separate
analysis of the Minor Applicants’ best interests and then explains why this
should not tip the balance in the Applicants’ favour.
[60]
The
Applicants’ assertions that the Officer makes no mention of their lengthy
residence in Canada or the impact of removal upon the children’s education, and
does not consider the suffering involved in their return to South Korea, are
simply wrong. A reading of the Decision reveals that the Officer is fully aware
of what is at stake for this family, acknowledges the difficulties they will
face, but also explains why these problems do not warrant a section 25
exemption.
[61]
The
only real issue for consideration, in my view, is whether the Officer conducted
a reasonable and appropriate analysis of the Minor Applicants’ best interests.
[62]
The
Respondent says that they were not really children so that a BIOC analysis was
not necessary, and certainly would not be necessary if this matter is returned
for reconsideration.
[63]
It
seems to me, however, that it was within the Officer’s discretion to treat them
as children and, if returned, a similar determination will have to be made. I
do not see the jurisprudence of this Court as requiring an automatic loss of
child status at 18 years of age. Justice Frederick Gibson dealt with a similar
situation in Naredo, above, and had this to say at paragraph 20:
[…] I conclude, against the requirements
set out in Baker, that the analysis reflected in the reasons for the
immigration officer’s decision, as they relate to the interests of the
applicants’ children, is entirely insufficient; and I reach this conclusion
bearing in mind the ages of the applicants’ children, only one of whom was 18
or under at the date of the decision under review. Indeed, at that time, he was
very close to 19 years of age. The two sons of the applicants, whatever
their ages, remained “children” of the applicants who could reasonably be
expected to be dramatically affected by the removal from Canada of their parents. [emphasis added]
[64]
Subsequent
decisions of this Court have applied Justice Gibson’s reasoning over similar
objections from the Respondent. See Swartz v Canada (Minister of
Citizenship and Immigration) 2002 FCT 268 at paragraph 14, Ramsawak,
above, at paragraph 18, and Yoo, above, at paragraphs 29 and 30.
[65]
It
was also established on the evidence before the Officer that Min Ji (the
daughter) was seventeen at the time the Applicants filed their H&C
Application. The Respondent argues that, because she is now 20 years old, this
excuses the Officer from having to consider her best interests. I disagree. The
Respondent’s own Guidelines say that “[the best interests of the child] must be
considered when a child is under 18 years of age at the time the application
is received.” In the face of this clearly articulated and publicly
available ministerial guideline, the Applicants had a legitimate expectation
that the Officer would consider, at least, Min Ji’s best interests.
[66]
In
this case (and others like it) we have H&C applicants who could have
benefited from the best interests of a child who has aged out of the protection
solely because of the time between the filing of the application and its
consideration by the Respondent. It seems to me that to hold that officers are
not required to consider the best interest of a child directly affected in this
situation would ignore the reality that administrative delays in processing
applications generally lie at the Respondent’s feet. In my view, it is no
answer for the Respondent to rely on his own tardiness in evaluating the
Applicant’s H&C Application to extinguish an obligation he would have been
under had he acted promptly. As such, the Officer was bound to consider Min
Ji’s best interests when evaluating the H&C Application in this case.
[67]
With
that said, I think the Officer’s deficient analysis with respect the Min Ji’s
best interests means the Decision must be returned for reconsideration. It is
well established that an H&C decision maker must be alert, alive, and
sensitive to the best interests of any child directly affected by a decision.
This means that the child’s interests must be identified and defined and given
primary consideration.
[68]
In
this case, the Officer failed to appropriately identify Min Ji’s interests.
Although the Officer was aware of the basic facts of the application – Min Ji
lacked strong Korean language skills and would face barriers to post-secondary
education, for example – she failed to determine whether, in the context of the
evidence before her, it was in Min Ji’s best interests to stay in Canada or return to
South
Korea.
She also did not assess whether it was in Min Ji’s interests for her parents
and brother to remain in Canada with her, or for them to return to South Korea.
[69]
Rather
than meeting her obligation to assess what was in Min Ji’s best interest and
weighing this against the other factors in the H&C Application, the Officer
found “there is insufficient evidence to support that the children would not be
able to readjust to life in Korea.” Whether Min Ji could adjust to life in South Korea or not was
not the test. As I recently said in Willams v Canada (Minister of
Citizenship and Immigration) 2012 FC 166, at paragraphs 63 to 70:
When assessing a child’s best interests an Officer must establish first
what is in the child’s best interest, second the degree to which the
child's interests are compromised by one potential decision over another, and
then finally, in light of the foregoing assessment determine the weight that
this factor should play in the ultimate balancing of positive and negative
factors assessed in the application.
There is no basic needs minimum which if “met” satisfies the best
interest test. Furthermore, there is no hardship threshold, such that if the
circumstances of the child reach a certain point on that hardship scale only then
will a child’s best interests be so significantly “negatively impacted” as to
warrant positive consideration. The question is not: “is the
child suffering enough that his “best interests” are not being “met”? The
question at the initial stage of the assessment is: “what is in the child’s
best interests?”
For example, officers should not discontinue their consideration
of what is in a child’s best interests after determining that the child is not
being beaten or malnourished, […], is not being outright denied medical care
[or whether the child will be able to adjust to life in the new country]. In
order to be properly “alert, alive and sensitive to” a child’s best interest,
the task that is specifically before an officer is to have regard to the child’s
circumstances, from the child’s perspective, and then determined what is in
[her] best interest.
As was noted by the Federal Court of Appeal in Hawthorne [2002 FCA 474], and by this Court in Arulraj
[2006 FC 529] and Shchegolevich [2008 FC 527], a child will rarely, if
ever, be deserving of any level of hardship. As a result, a threshold test of
undeserved or undue hardship or a threshold “basic needs” approach to a best
interests analysis, like that applied by the Officer in this case, does not adequately
determine - in a way that is “alert, alive and sensitive” - what is in the
child’s best interest.
A child’s best interests are certainly not determinative of an
H&C application and are but one of many factors that ultimately need to be
assessed. However, requiring that certain interests not be “met” or that a
child “suffer” a certain amount before this factor will weigh in favour of
relief, let alone be persuasive in the decision, contradicts well-established
principle that officers must be especially alert, alive and sensitive to the
impact of the decision from the child’s perspective. Furthermore, this would
seem to contradict the instruction of the Supreme Court of Canada that this
factor be a primary consideration in an H&C application that must not be
minimized.
In Baker, above, the Supreme Court of Canada held that for
the exercise of discretion under subsection 25(1) of the Act to fall within the
standard of reasonableness, the decision-maker must consider the child’s best
interests as an important factor, give them substantial weight, and be alert,
alive and sensitive to them. Justice L’Heureux-Dubé wrote at paragraph 75 that
...for the exercise of the
discretion to fall within the standard of reasonableness, the decision-maker
should consider children's best interests as an important factor, give them
substantial weight, and be alert, alive and sensitive to them. That is not to
say that children's best interests must always outweigh other considerations,
or that there will not be other reasons for denying an H & C claim even
when children’s interests are given this consideration. However, where the
interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and
compassionate tradition and the Minister’s guidelines, the decision will be
unreasonable.
[Emphasis added]
At paragraph 73 of Baker, the
Supreme Court of Canada stated:
The above factors indicate
that emphasis on the rights, interests, and needs of children and special
attention to childhood are important values that should be considered in
reasonably interpreting the “humanitarian” and “compassionate” considerations
that guide the exercise of the discretion. I conclude that because the reasons
for this decision do not indicate that it was made in a manner which was alive,
attentive, or sensitive to the interests of Ms. Baker’s children, and did not
consider them as an important factor in making the decision, it was an
unreasonable exercise of the power conferred by the legislation, and must,
therefore, be overturned.
In Kolosovs, above, the Federal Court described what it
means to be open and sensitive to the best interests of children, in the
following terms:
It is only after a visa
officer has gained a full understanding of the real life impact of a negative
H&C decision on the best interests of a child can the officer give those
best interests sensitive consideration. To demonstrate sensitivity, the
officer must be able to clearly articulate the suffering of a child that will
result from a negative decision, and then say whether, together with a
consideration of other factors, the suffering warrants humanitarian and
compassionate relief. [Emphasis added]
[70]
In
this case, the Officer focused on whether Min Ji would be able to adjust to
life in South
Korea
without applying the appropriate test for her best interests. This was a
reviewable error.
[71]
Judicial
review is therefore granted and the Decision is returned for reconsideration. I
specifically direct the officer who reconsiders this application consider Min
Ji’s best interests according to the test I have articulated above.
[72]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration.
2.
There
is no question for certification.
“James
Russell”
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