Date: 20111222
Docket: IMM-3785-11
Citation: 2011 FC 1512
Ottawa, Ontario, December 22,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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FATOS VASHA, MAGGIE VASHA,
AND JASON PERPARIM VASHA
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of a
decision made by Pre-Removal Risk Assessment [PRRA] Officer S. Neufeld [the
officer], dated April 26, 2011, refusing the Applicants’ application for
permanent residence from within Canada based on humanitarian and compassionate [H&C]
considerations under subsection 25(1) of the IRPA.
I. Facts Alleged
by the Applicants
[2]
Fatos
Vasha [the principal Applicant], a citizen of Albania, entered Canada on July 3,
2006, submitting a refugee claim on July 19, 2006. His US-born children, twelve
year old daughter Maggie Vasha and eight year old son Jason Perparim Vasha [the
minor Applicants], entered Canada on October 1, 2006, and their refugee
claims were submitted on October 27, 2006. The Applicants’ claims were eventually
refused on March 20, 2009 and their application for judicial review was denied
on July 2, 2009.
[3]
In
the meantime, on January 15, 2009, the Applicants filed an application for
permanent residence on H&C grounds. In a letter dated June 11, 2009, the Applicants’
counsel remitted their application, basing it on the Applicants’ establishment
in Canada (Applicants’
Record [AR] at 18). The application was examined by the officer and the
negative decision was rendered on April 26, 2011.
II. Impugned Decision
[4]
The
officer’s decision (AR at 8-14) notes that the Applicants must have shown
satisfactory evidence that their personal circumstances were such that the
hardship of not being granted the requested exemption would be unusual and
undeserved, or disproportionate. The following factors were considered in the
application: hardship or sanctions upon return to Albania; family or personal
relationships that would create hardship if severed; best interests of the
children; degree of establishment in Canada; and ties or residency in any other
country. Having read and considered all information and evidence presented by
the Applicants and their counsel as well as publicly available documentation,
the officer did not find evidence supporting a claim that returning to Albania would amount
to unusual and undeserved, or disproportionate hardship.
[5]
With
regard to the best interests of the children, the issue at the heart of this
application for judicial review, the officer noted that the minor Applicants
are citizens of the US and have the right to return there if that is
what the parents determine to be feasible (AR at 13). The officer was cognizant
of the fact the minor Applicants’ mother lived in the US illegally.
The officer stated however that this would not prevent the minor Applicants
from returning there, and any alternate decision “would be subject to the will
of the children’s parents” (AR at 10).
[6]
The
officer continued her analysis of the children’s interests by reiterating a
full paragraph from the 2010 Human Rights Report on Albania [Albania
Report], prepared by the US Department of State and available online. The
paragraph in question describes the availability of schooling for children in
Albania, noting that the law provides for nine years of free education and that
school attendance is mandatory through the ninth grade or until age 16 (AR at
322, Albania Report at 19). The decision then notes that the minor Applicants
are attending school in Canada and that their ages, the length of their stay in
Canada, and a letter written by one of the children have been assessed. The
officer’s final conclusion however, is that “[a]lthough not required to return
to Albania with the applicant, the documentation before me does not support a
view that the [minor Applicants] would face an unusual and undeserved, or
disproportionate hardship if they were to leave Canada to accompany their
father to Albania” (AR at 13).
III. Parties’
Positions
[7]
The
Applicants argue that the officer failed to consider the relevant criteria for
the assessment of their application, was not alert to the children’s interests,
and thus rendered an unreasonable decision. They first emphasize that the
departmental guidelines for the processing of applications for ministerial
relief, IP-5 Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds [Guidelines IP-5], state that when considering the
best interests of any children affected by an application, officers should take
into account the following factors pertinent to this case: the age of the
child; the level of dependency between the child and the H&C Applicant; the
degree of the child’s establishment in Canada; the child’s links to the country
in relation to which the H&C assessment is being considered; the conditions
of that country and the potential impact on the child; and the impact to the
child’s education (Guidelines IP-5 at 5.12).
[8]
The
applicants then refer to the Federal Court of Appeal’s decision in Agraira v
Canada (Minister of Public Safety and Emergency Preparedness), 2011 FCA 103
at para 58, [2011] FCJ 407, which states that, “[w]here the guidelines
specifically direct an officer to consider whether certain identified conditions
will result in ‘unusual, undeserved or disproportionate hardship’, it is
appropriate to conclude that the failure to consider those conditions or the
failure to consider their effects upon the applicant is an indication of an
unreasonable decision.” In this case, the Applicants allege the officer ignored
or did not properly consider the minor Applicants’ links to Albania (neither was born there
and they speak little to no Albanian), the education available to them there,
and the impact it would have on them. Specifically, the Applicants highlight
evidence in the Albania Report referred to by the officer which they argue has
been ignored (AR at 322, Albania Report at 19):
In
general parents must register their children in the same community where they are
registered. However, according to the Children's Rights Center of Albania (CRCA),
children born to internal migrants or those returning from abroad
frequently had no birth certificates or other legal documentation and, as a
result, were unable to attend school. This is a particular problem for
Romani families as well, who often marry young and fail to register their
children.
The
law provides for nine years of free education and authorizes private schools. School
attendance is mandatory through the ninth grade or until age 16, whichever comes
first; however, in practice many children left school earlier than the law allowed
to work with their families, particularly in rural areas. Parents must
purchase supplies, books, uniforms, and space heaters for some classrooms,
which was prohibitively expensive for many families, particularly Roma and
other minorities. Many families also cited these costs as a reason for not
sending girls to school [emphasis added].
The Applicants
argue that the officer failed to consider whether, as US citizens, the minor
applicants would have the documentation necessary to register for school. They further
submit that the officer failed to consider whether, due to the financial
requirements that would arise from their deportation to Albania, the minor Applicants
could afford to attend school. The only other alternative, sending them back to
the US and to a mother
liable for deportation, would leave them at risk of being placed in foster
care. Whichever option is considered, it is argued the minor Applicants will be
put in a situation of undeserved and disproportionate hardship.
[9]
By
failing to take this evidence into consideration and not considering the
factors listed in the Guidelines IP-5, the Applicants argue the officer has not
been truly sensitive, alert, and alive to the best interests of the children,
and has failed to properly identify and give these interests the careful
attention required by the courts (Hawthorne v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475 at paras 32 and 52, [2002] FCJ
1687 [Hawthorne] and Legault v Canada (Minister of Citizenship and
Immigration), 2002 FCA 125 at paras 12 and 31, [2002] FCJ 457 [Legault]).
[10]
Addressing
the analysis of the best interests of the minor Applicants, the Respondent is
of the view these were adequately assessed in the circumstances, that the
officer was in fact sensitive, alert, and alive to the best interests of the
children, that the interests of the minor Applicants cannot be determinative in
an H&C decision, and that it is up to the officer to determine what weight
must be given to them in the circumstances (Legault, above, at para 12).
The Respondent also adds that whether the minor Applicants had the necessary
documentation to register in the Albanian school system or the financial
exigencies required to be able to attend school in Albania was never raised in
their submissions to the officer and the onus was on them to bring this forward
(Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38,
[2004] FCJ 158 [Owusu]).
[11]
In
reply, the Applicants argue that the officer took the initiative of including
the Albania Report without advising the Applicants and that in fact, the
edition of the Albania Report relied on was not issued until April 8, 2011,
after the application had already been submitted. They argue the respondent cannot
therefore rely on their failure to invoke the issues made apparent by the
Albania Report. During the hearing before this Court, it was also argued that
including the Albania Report without providing the Applicants a chance to
respond to it was a breach of procedural fairness.
IV. Issue and
Standard of Review
[12]
This
Court is asked to review the officer’s decision to refuse the Applicants’
H&C application and more specifically, the officer’s analysis of the minor
applicants’ best interests. The applicable standard of review in such a case is
reasonableness (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at paras 57-62, [1999] SCJ 39 [Baker]). This Court will
therefore consider whether the officer’s decision falls within a range “of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190 [Dunsmuir]).
[13]
With
respect to the Albania Report relied upon by the officer, which was issued only
after the filing of the applicants’ submissions, this is clearly a question of
procedural fairness reviewed on a standard of correctness (Pathmanathan v Canada (Minister of
Citizenship and Immigration), 2009 FC 885 at para 24, [2010] 3 FCR 395).
V. Analysis
[14]
It
is well established law that the onus is on the applicant to bring to the
officer’s attention any evidence relevant to H&C considerations (Owusu,
above, at paras 5 and 8, [2004] FCJ 158; Nguyen v Canada (Minister of
Citizenship and Immigration), 2005 FC 236 at para 8, [2005] FCJ 281 [Nguyen];
Patel v Canada (Minister of Citizenship and Immigration), [1997] FCJ
54 at para 10, 36 Imm LR (2d) 175) [Patel]). The Guidelines IP-5, on
which the applicants rely on heavily in their submissions, also state that “[t]he
onus is entirely upon the applicant to be clear in the submission as to exactly
what hardship they would face if they were not granted the requested
exemption(s). Officers do not have to elicit information on H&C factors and
are not required to satisfy applicants that such grounds do not exist”
(Guidelines IP-5 at 5.7).
[15]
The
June 11, 2009 one and a half page letter from the Applicants’ counsel indicated
the H&C application was based on the Applicants’ establishment in Canada. The letter
also spoke of undue hardship that would be caused on the family if they were
returned to Albania, specifically the impact on the minor Applicants, who as
indicated in the letter, are both American citizens that have never resided in
Albania and whose knowledge of the Albanian language is minimal. The letter
further states that returning them to the US is not an
option since neither parent has legal status there (AR at 18-19).
[16]
In
analyzing the best interests of the children, the officer examined the Albania Report,
which had not been submitted or referred to by the Applicants. The report includes
a specific section on the situation of children in Albania. In the
decision, the officer reiterated, word for word, information contained in the third
paragraph of the section on children. This included information on the fact the
law provided nine years of free education and that school attendance was
mandatory through the ninth grade or until the age of sixteen. It also included
information that parents must purchase supplies, books, uniforms, and space
heaters for some classrooms, prohibitively expensive for many families, and
that many families cited these costs as a reason for not sending girls to
school.
[17]
The
Applicants also point out that in the paragraph directly preceding the one noted
by the officer, it is indicated that children born to those returning from
abroad frequently had no birth certificate or other legal documentation, which
made them unable to attend school. They stress that this information was not
considered by the officer. Indeed, the decision makes no mention of this
information or the possibility the minor applicants could not have the required
legal documentation. I note however, that the minor applicants were born in the
US and have
submitted into evidence before the officer copies of their birth certificates
(AR at 43 and 44) and passports (AR at 47-49).
[18]
In
their submissions, the Applicants also invoked the risk that, were they to be
sent back to the US, the minor Applicants could be placed in foster
care if their mother was eventually deported. They argued this is an additional
source of hardship that was ignored by the officer. This Court cannot agree
with this argument. The decision makes clear the officer was aware of the
mother’s status in the US and that removing the children to their
country of birth may only be a temporary solution. If their mother were to be
deported, the children would surely follow their parents to Albania unless the
parents decided otherwise. In essence, this is a decision the parents must
make.
[19]
That
being said, this Court must determine if the officer reasonably found that the
children could accompany their father to Albania, be it now or
later if their mother is eventually deported from the US. In light of
the evidence included in the Albania Report and the officer’s analysis
considering the best interests of the children, this Court finds that the
officer met the requirement of identifying and defining the interests of the
children, and examining them with necessary attention (Hawthorne, above,
at para 32 and Legault, above, at paras 12 and 31).
[20]
The
Applicants also argued that the officer’s reliance on the Albania Report, issued
only after their submissions, was a breach of procedural fairness. However, when
faced with such a certified question, the Court of Appeal has stated in Mancia
v Canada (Minister of
Citizenship and Immigration), [1998] 3 FC 461 at para 27, [1998] FCJ
565 [Mancia] that:
[W]ith respect to documents relied upon
from public sources in relation to general country conditions which became
available and accessible after the filing of an applicant's submissions,
fairness requires disclosure by the Post Claims Determination Officer where
they are novel and significant and where they evidence changes in the general
country conditions that may affect the decision [emphasis added].
In the
present circumstances, it cannot be said that the information in the Albania
Report was novel, significant, or evidence of changes in the general country
conditions as both the 2008 and 2009 US Department of State Human Rights
Reports on Albania contained
the very same information. The fact the officer cited the newly issued Albania
Report, which simply repeated information already available to the applicants,
does not constitute a breach of procedural fairness (Mancia at para 26).
[21]
If
the Applicants were truly concerned with any lack of necessary documents to
register the minor applicants in school or of any financial limitation issues
which they now raise before this Court, the onus was on them to submit such
arguments and evidence to the officer (Owusu, above, at paras 5 and 8; Nguyen,
above, at para 8; Patel, above, at para 10; Guidelines IP-5 at 5.7). As
a result, I must conclude the officer’s decision falls within a range “of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para 47), the decision was reasonable, there
was no denial of procedural fairness, and the application is denied.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is denied. No question is certified.
“Simon Noël”
__________________________
Judge
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