Date: 20091014
Docket: IMM-3554-08
Citation: 2009 FC 1032
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
JI HYUN AN
ANDREW LEE, Jr.
Applicants
and
MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application is for judicial review of a decision of an Immigration Officer (the
Officer) dated July 16, 2008 (the Decision) in which she denied the Applicants’
application to apply for permanent residence from within Canada on
humanitarian and compassionate (H&C) grounds.
BACKGROUND
[2]
The
Applicants are a mother (the Mother) and her eleven year old son (the Son). The
Son’s father (the Father) is a Canadian citizen who applied for permanent residence
through Canadian Citizenship and Immigration in Seoul, South Korea. On the
advice of his consultant, he did not declare that he had a wife and son.
[3]
The
Mother and Father met while studying in the United States. They
married in South Korea in October 1996 and the Son was born in the United
States
on August 29, 1997. Between 1998 and 2000, the Mother and Son lived in both South Korea and the U.S. while the
Father completed his studies. From July 2003 until October 2004, the Mother and
Father were separated but, thereafter, their relationship was apparently
re-established.
[4]
The
Mother has a B1/B2 U.S. visa which is valid from 2002 through 2012. It is a
multiple entry visa which is intended for temporary visits. It does not guarantee
a right of entry and does not permit the Mother to become a U.S. resident.
[5]
The
Father supports his wife and son in Canada and his evidence of
March 31, 2008 indicates his wish to continue to live with them as a
family.
THE ISSUES
[6]
The
Applicants say that the following errors were made in the negative H&C Decision:
(i)
The
Officer erred in determining that the Son was fluent in the Korean language;
(ii)
The
Officer erred in concluding that the Son would not face serious bullying in
school as a Korean from abroad who did not understand Korean customs;
(iii)
The
Officer erred in finding that the Mother and Son could reside in the United
States
if the H&C application failed;
(iv)
The
Officer erred in concluding that the Mother and Son had spent so much time in South
Korea and the U.S. that their
return would only be a matter of “re-integration”;
(v)
The
Officer failed to consider the emotional impact on the Son of the loss of his
Father.
DISCUSSION
(i) The Son’s
Fluency
[7]
The
Mother’s evidence disclosed that the Son could not speak Korean fluently. She
said he spoke “some” Korean but not enough to follow a teacher’s instructions. On
the other hand, she also indicated that Korean was her Son’s native tongue and
her preferred language for an immigration interview. The Officer was aware that
the Son had visited South Korea several times with his Mother and, on one
occasion, had lived at his uncle’s home in South Korea for nine
months. During that time, he attended a Korean school.
[8]
Contrary
to the Applicants’ allegation, the Officer did not conclude that the Son spoke
Korean fluently. She did, however, appear to determine that language difficulties
were not a negative factor in assessing the best interests of the Son. In my
view, this conclusion was reasonable on the available evidence.
(ii) Bullying
[9]
The
Mother’s evidence disclosed that she perceived that students who were Korean by
birth, but who lived outside South Korea and returned to study,
were bullied. She said that her Son had been so treated. However, she offered
no evidence to corroborate the bullying and no documentary evidence to support
her concerns. In these circumstances, the Officer’s dismissal of her opinion
was reasonable.
(iii) and (iv) The U.S. Visa and
Re-integration
[10]
The
Officer spoke of the United States in the following terms:
[…] I am not satisfied that the
applicant’s son would be greatly and negatively affected if he were to leave Canada. The four pages of his U.S.A.
passport that were selected and provided indicate travel between Canada and Korea in 2004, 2005, 2006 and 2007. Periods of
lengthy separation also occurred prior to 2004. In addition the applicant’s
U.S. visa is valid until 2012 and her son is a U.S. citizen. There is no requirement that the
applicant and her son, if required to leave Canada must return to Korea.
The applicant has provided insufficient information to satisfy me that her son
would suffer hardship that is unusual and undeserved or disproportionate should
he and his mother be required to leave Canada.
[…]
[…] I am satisfied that should the
applicant and her son be required to leave Canada, that her education and her
previous salaried work experience combined with her husband’s financial support
would be sufficient to assist with their re-integration to her home country
or to the U.S. where she holds a valid visa and her son is a citizen.
[my emphasis]
[11]
In
my view, the Officer was clearly not satisfied that the Mother and Son would be
obliged to go to South Korea when they left Canada. She clearly
believed that they were entitled to go to the United States. This was an
error because, as mentioned above, the Mother’s visa is intended for temporary
visits and guarantees her neither a right of entry nor a right to become a U.S. resident.
[12]
This
error was, in my view, material because it is impossible to say whether, if the
Applicants’ only possible destination had been South Korea, the Officer
would have reached the same conclusion.
[13]
As
well, the Officer erred when she spoke of “their reintegration.” The Son has
not spent enough time in South Korea to have become
integrated and so the concept of reintegration could not properly be applied to
him.
(v) The
Father
[14]
The
Officer was not satisfied that the Mother, Father and Son were, in fact, a
close, interdependent family unit. In view of the parents’ long separation and
in view of the absence of any corroboration of the Father’s evidence that he
wishes to continue to live with and support his family, this was a reasonable
conclusion.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given
above, this application is hereby allowed and the entire application, with any new
material the parties wish to file, is hereby referred back for re-determination
by a different officer.
There is no question to be
certified for appeal.
“Sandra
J. Simpson”
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