Date: 20110420
Docket: IMM-4454-10
Citation: 2011 FC 479
[UNREVISED ENGLISH
CERTIFIED TRANSLATION]
Montréal, Quebec, April 20, 2011
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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JOSEPH VIL
MARIE JOSELENE SIDEL
ANCHELEAU VIL
TAMARA VIL
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
AND
THE MINISTER OF PUBLIC
SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review in
accordance with subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of a
decision by a PRRA officer dated June 17, 2010, rejecting the
applicants’ application for permanent residence from within Canada based on
humanitarian and compassionate considerations under subsection 25(1) of the
IRPA. That decision is the subject of this judicial review.
[2]
The
applicants, Joseph Vil (the principal applicant) and his spouse, are citizens
of Haiti. They have lived in Canada since November 12, 2006, with three of
their children. Two of their children, who are also applicants in this case,
have American citizenship, and the third one has Canadian citizenship. They
also have four other children who stayed in Haiti and the applicant supports them
from Canada.
[3]
Did
the officer err by rejecting the applicants’ application for permanent
residence based on humanitarian and compassionate considerations?
[4]
The
applicable standard of review for the review of the content of a decision rendered
by an officer in the context of an application for permanent residence based on
humanitarian and compassionate consideration is reasonableness (Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraph 62 (Baker); Nsongi v. Canada (Minister of Citizenship and Immigration),
2010 FC 1291 at paragraph 8; De Leiva v. Canada (Minister of Citizenship and
Immigration), 2010 FC 717 at paragraph 13; Garcia v. Canada (Minister of
Citizenship and Immigration), 2010 FC 677 at paragraph 7.
[5]
The
applicants contend that the officer did not consider the children’s best
interests. Given the current situation in Haiti, the finding that the children
will find parental guidance there that is adequate for their development is unreasonable.
The officer also disregarded the best interests of the child with Canadian
citizenship and did not properly assess the degree or history of the
applicants’ establishment in Canada.
[6]
However,
the respondent argues that the applicants had not discharged their burden of
demonstrating that they would face unusual, undeserved and disproportionate
hardship if they were to return to Haiti. The officer assessed the children’s
best interests in light of the limited evidence submitted by the applicants. I
am of this opinion.
[7]
In
accordance with subsection 25(1) of the IRPA, the Minister has the
discretionary authority to allow a foreign national in Canada to file an
application for permanent residence without having to leave the country or to exempt
them from any applicable criteria or obligations pursuant to the IRPA if justified
by humanitarian and compassionate considerations.
[8]
The
case law establishes that it is up to the persons who wish to benefit from this
exemption to demonstrate that they would suffer from unusual, undeserved and
disproportionate hardship if they were to leave Canada (Raji v. Canada
(Minister of Citizenship and Immigration), 2007 FC 653 at paragraph 7; Gallardo
v. Canada (Minister of Citizenship and Immigration), 2007 FC
554 at paragraph 12).
[9]
Given
the evidence submitted by the applicant, the officer must assess all of the
relevant factors to determine whether humanitarian and compassionate considerations
justify granting the application. It is not up to the Court to determine the
weight that must be attached to the evidence and it can intervene only if it
would have assessed the relevant factors differently (Baker, above, at
paragraphs 54-56, 68, 73‑75; Suresh v. Canada (Minister of Citizenship
and Immigration), 2002 SCC 1 at paragraphs 34 to 38; Legault v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 125 at paragraph 11; Mpula
v. Canada (Minister of Citizenship and Immigration), 2007 FC 456 at paragraph
26).
[10]
The
children’s best interests is one of the factors to consider. The officer must
be “alert, alive and sensitive” (Baker, above, paragraph 75). Nevertheless,
the presence of children does not constitute in itself a sufficient reason to grant
an application based on humanitarian and compassionate considerations.
[11]
In
the case at bar, the principal applicant submitted very brief submissions in
support of the application based on humanitarian and compassionate
considerations and his spouse merely indicated that hers were consistent with
his. To the question [translation]
“Explain the humanitarian and compassionate reasons that prevent you from
leaving Canada”, the principal applicant stated the following:
[translation]
Several reasons would justify facilitating
my admission to Canada and that of my dependent family. First, these reasons pertain
to the situation of insecurity that is rampant in Haiti, and second to the fact
that my children born in the USA never knew this country, where they risk being
an easy target for criminals of all kinds. Third, since coming to Canada, we have
demonstrated a serious willingness to integrate ourselves through various
activities (volunteering, working, religious meetings).
[12]
It
appears from the decision that the officer assessed all of the reasons raised
by the applicants, but that she found that they did not justify exempting them
from presenting their application for permanent residence from abroad.
[13]
Regarding
the establishment of the applicants, she noted that they have held sporadic
jobs since their arrival in Canada and that they have also benefited from
employment insurance. She also noted that the applicants could continue their
volunteering and religious activities in Haiti. She nevertheless found that,
even though their history was by and large positive, this establishment could
not in itself justify the exemption requested.
[14]
With
respect to the children concerned, she assessed their best interests in light
of the evidence submitted by the applicants. She considered the fact that the
applicant’s children who are in Haiti receive his support. She also noted that
even though their schools are closed, this situation is temporary. For the
children in Canada, she determined that, despite the current hardships in the
country, it was not unreasonable to think that they could also benefit from an
education and learn French there.
[15]
She
also found that, because their well-being and stability stem from the family unit,
it was not unreasonable to think that the children in Canada would follow their
parents and could continue to benefit from parental support. Finally, she
determined that the applicant had not provided probative evidence in support of
his allegation that some of his children would be a target for criminals if
they were to return to the country. She also noted that, according to the evidence
provided, none of his children who live in Haiti have suffered from such a
situation.
[16]
Therefore,
the officer did not merely list the contributing factors but analyzed the
interests of the children and demonstrated that she understood each
participant’s point of view under all of the particular circumstances of the case
here. The officer was therefore alert, alive and sensitive to the best
interests of those children living in Canada and those still living in Haiti.
[17]
Regarding
the fear of removal, she noted that the panel of the Refugee Protection
Division of the Immigration and Refugee Board had found
that the applicants were not refugees within the meaning of the Geneva
Convention. She also noted blatant contradictions in several documents provided
by the applicants in support of their allegations of fear and therefore decided
to attach little evidentiary weight to them. She found that these fears did not
amount to unusual or undeserved hardship justifying the exemption sought.
[18]
She
also considered the current humanitarian disaster in Haiti as a result of the January 12, 2010,
earthquake, but noted that removals to this country are currently on hold. The
applicants can therefore benefit from protection in Canada for the moment and they
will not have to return to the country as long as this situation prevails.
[19]
Therefore,
the officer assessed all of the relevant factors in light of the evidence
submitted by the applicants. It was their responsibility to demonstrate that
they would suffer from unusual, undeserved and disproportionate hardship if
they were to return to Haiti, which they did not do. I recognize that the Court
could have attached more weight to certain factors and that it may have come to
a different conclusion, but this is not its role. 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).
[20]
Consequently,
the application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that the application for judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
Certified
true translation
Janine
Anderson, Translator
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