Date: 20070122
Docket: IMM-2721-06
Citation: 2007 FC 54
Ottawa,
Ontario, the 22nd
day of January 2007
Present:
The Honourable Mr. Justice Beaudry
BETWEEN:
RACHID BELBEY
SAMIA LAHCENE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision
dated April 27,
2006 of officer
Marjolaine Pelletier of the Immigration and Refugee Board of Canada (Board),
who rejected requests for exemption from the permanent resident visa
requirement under subsection 25(1) of the Act.
I. Issue
[2]
Did the
Board err in concluding that the integration of the applicants in Canada was sufficient to exempt them
from the obligation of applying for permanent residence from outside Canada?
[3]
The answer
to this question is in the negative. Therefore, this application will be
dismissed.
II. Facts
[4]
The
applicants, Rachid Belbey and his spouse Samia Lahcene, are Algerian citizens
who arrived in Canada on April 20, 2001. They
claimed refugee protection on April 23, 2001, but this claim was rejected
on May 27, 2002. On November
16, 2002, the
applicants filed an application as members of the post-determination refugee
claimants in Canada class (PCRCC). The
application for judicial review of the decision dated May 27, 2002 was
dismissed on September
24, 2002. They
then filed applications for permanent residence on January 22, 2003.
[5]
The couple
have two children who were born in Quebec:
Sarah, on July
30, 2002, and
Mouna, on April 4, 2005. These two minor children are included in the
applications for permanent residence on humanitarian and compassionate considerations
(HC).
[6]
The applicants
also filed an application as Algerian nationals to participate in the joint
program of Immigration Canada and Immigration Québec, Ministère des
Relations avec les citoyens et de l’Immigration du Québec (the MRCI),
but this application was rejected.
[7]
The HC
applications were rejected on April
27, 2006. This
decision is the subject of the application for judicial review in the case at
bar.
III. Impugned decision
[8]
In the
assessment of the humanitarian and compassionate considerations submitted, the panel
considered several factors, including the ties the applicants established in Canada, the best interests of the
children, and the situation in Algeria. On this point, the Board
reached the following conclusions:
[translation]
The integration of the applicants in Canada is minimal. They did not prove
that there was a risk for their life or safety. In spite of the fact they know
people, have friends and have lived in Canada for five years, I am not
satisfied that they would face disproportionate hardship in making their
applications for permanent residence from outside Canada. I am of the view that
the applicant’s case does not merit or require an exemption under the Act. I
considered the case of the two Canadian children as being an important factor
and attached considerable weight to it.
Considering the circumstances of this
case, nothing confirms that the children would be exposed to risks or could not
successfully resettle in Algeria. The fact that the children
would be more comfortable in general in Canada would not, in my opinion, be conclusive
in a decision on humanitarian and compassionate grounds, the goal of which is
to determine if there is disproportionate hardship. However, besides this fact,
the applicants did not show other important factors that would support the fact
that two children were born of their unions.
I have fully reviewed both of the
applicants’ files and conclude that the difficulties in submitting an
application outside Canada are not unusual and
undeserved or disproportionate.
IV. Relevant legislation
[9]
If it is
justified by humanitarian and compassionate considerations, the Minister may
under subsection 25(1) of the Act grant permanent residence status to a foreign
national who is present in Canada. This subsection reads as
follows:
|
Humanitarian
and compassionate considerations
25.
(1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
Séjour
pour motif d’ordre humanitaire
25.
(1) Le
ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative, étudier le
cas de cet étranger et peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de
l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le
justifient.
|
V. Analysis
Standard of review
[10]
In Baker
v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817, the Supreme Court of Canada ruled that the standard of
review applicable to a decision of an HC officer is that of reasonableness simpliciter.
This means I must show curial deference in connection with the challenged
decision unless the reasons for decision are not based on the evidence.
[11]
The
applicants claimed that the Board made reviewable errors in the assessment of
the facts.
[12]
With
regard to the children, the applicants criticize the Board for having merely mentioned
them without conducting a detailed analysis of their situation. They cite Legault
v. Canada (Minister of Citizenship and
Immigration),
2002 FCA 125, [2002] F.C.J. No. 457 (F.C.A.) (QL), paragraph 13:
. . . The mere
mention of the children is not sufficient. The interests of the children is a
factor that must be examined with care and weighed with other factors. To
mention is not to examine and weigh.
[13]
Meanwhile,
the respondent, citing the same judgement, submits that the Board properly met
its obligation in dealing with the best interests of the children. However,
according to the respondent, this factor does not guarantee that the request
under subsection 25(1) must be granted.
[14]
I am of
the same opinion as the respondent, and after having read the decision and all
the evidence, I am satisfied that the Board was receptive, attentive and
responsive to the fate of the children. The Board weighed each factor, for
example: their young age, the lack of medical problems, and the role the
applicants may play with them.
[15]
In Legault,
supra, Mr. Justice Robert Décary wrote the following at paragraph 12:
In short, the
immigration officer must be “alert, alive and sensitive” (Baker, para. 75) to
the interests of the children, but once she has well identified and defined
this factor, it is up to her to determine what weight, in her view, it must be
given in the circumstances. The presence of children, contrary to the
conclusion of Justice Nadon, does not call for a certain result. It is not
because the interests of the children favour the fact that a parent residing
illegally in Canada should
remain in Canada (which, as
justly stated by Justice Nadon, will generally be the case), that the Minister
must exercise his discretion in favour of said parent. Parliament has not
decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a
parent illegally residing in Canada (see Langner v. Minister of Employment and Immigration (1995), 184
N.R. 230 (F.C.A.), leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740,
August 17, 1995).
[16]
As regards
the other “errors” of the Board alleged by the applicants with respect to their
integration to the country, the same analysis applies. The Board took into
consideration their training, language skills, letters from friends, and their
financial management. They had two opportunities for their integration to be
assessed: once by the province of Quebec, as well as by the
Board. Unfortunately for them, they received negative answers each time.
[17]
The Court
is of the opinion that the challenged decision is detailed, balanced and
supported by the evidence. There is nothing to warrant intervention by this
Court.
[18]
The
parties did not raise any question to be certified, and this case does not include
any.
JUDGMENT
THE COURT ORDERS that this application for judicial
review be dismissed. No question is certified.
“Michel Beaudry”
Certified true
translation
Michael Palles
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