Date: 20070524
Docket: IMM-5599-06
Citation: 2007
FC 546
Ottawa, Ontario, May 24, 2007
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
SOLOMON DAVID,
AMALIA DAVID,
and BRAYAN CARLO DAVID,
an infant, by his next friend, SOLOMON
DAVID
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
This is an
application for judicial review of the decision made on August 3, 2006 by Mr. Denis
Crepault, First Secretary, Immigration of the Canadian Embassy in the Philippines
(the First Secretary), denying an application for permanent residence based
upon humanitarian and compassionate (H & C) grounds.
[2]
In 1992,
the principal applicant, Mr. Solomon David, a citizen of the Philippines, arrived in Canada and obtained permanent
residence status on November 7, 1992. Upon landing, he declared that he was
single and had no dependents. He did not disclose the existence of his wife,
Amalia, and of a son, Brayan Karlo (Karlo), who had remained in the Philippines. In the Computer Assisted
Immigration Processing System (CAIPS) notes relating to this file, the First
Secretary observes that Mr. David immigrated as a dependent of his parents.
[3]
Nine years
later, in February 2001, Mr. David applied under the Immigration Act,
R.S.C. 1985, c. I-2 (the former Act) to sponsor his wife, Karlo, and
Jake, a second son born in 1995, as members of the family class (the first
application). Mr. David was interviewed about his misrepresentation by the
respondent’s officers in Edmonton in November 2001. He stated
that his marriage was kept a secret but he had entered into it because Amalia
became pregnant and while he wanted to do the honourable thing by her, he also
did not want to jeopardize his family’s application to come to Canada. After the interview, he was
told that he would not be deported for misrepresentation.
[4]
In June
2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act) came into force with accompanying regulations changing the state of the
law as to the definition of family class members. Mr. David’s application was
accordingly denied on July 7, 2003, on the basis that, pursuant to paragraph
117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations), Ms. David and Karlo were not members of the
family class, as they had not been examined at the time of Mr. David’s
application. Jake was not mentioned in the decision.
[5]
Although
Mr. David filed an appeal of the decision to the Immigration Appeal Division,
it was later withdrawn in June 2005, following the Federal Court’s decision in De
Guzman v. Canada (Minister of Citizenship and Immigration), [2004]
F.C.J. No. 1557, 2004 FC 1276, as he had not requested humanitarian and
compassionate considerations in his first application. The Federal Court of
Appeal later dismissed the appeal in the De Guzman case and upheld the
legality of paragraph 117(9)(d) of the Regulations: De Guzman
[2005] F.C.J. No. 2119, 2005 FCA 436.
[6]
Mr. David
filed a second sponsorship application in September 2005 for his wife, Karlo,
Jake, and a third son, Kristofer, who was born in 2003. This time, in his
submissions, he requested that the applications of Ms. David and Karlo be
considered under humanitarian and compassionate grounds and that they be
exempted from the application of paragraph 117(9)(d) of the Regulations.
[7]
Mr. David
was advised via two letters dated June 13, 2006 that he had met the
requirements for eligibility as a sponsor for Jake and Kristofer. I note
that the applications for permanent residence of both Jake and Kristofer were
only officially approved later on, after the First Secretary made his decision,
as explained in Mr. David’s supplemental affidavit (the respondent objected to
the admission of the supplemental affidavit). The applications for Ms. David
and Karlo were forwarded to the Canadian Embassy in Manila. Ms. David and her three sons attended
an interview at the embassy on July 18, 2006. Their application was denied on
August 3, 2006.
[8]
In the
letter advising Ms. David of the negative decision, the First Secretary writes:
You got married to your sponsor in March
5, 1992. You had a son, Brayan Karlo, who was born in September 3, 1992. Brayan
Karlo’s birth certificate lists you and your sponsor as the parents. Your
sponsor landed in Canada in November 7, 1992. We have
no record that you and your son were declared and examined in connection with
your sponsor’s application for permanent residence. When your sponsor presented
himself for landing in Canada, he also did not declare you
and your son as his dependents. On the basis of the information before, me, I
conclude that you are not a member of the family class with respect to your
sponsor in accordance with paragraph 117(9)(d) of the Regulations.
I have also reviewed your case on
humanitarian and compassionate grounds. However, I have determined it would not
be justified by humanitarian and compassionate considerations to grant you and
your son a permanent resident status or exempt both of you from any applicable
criteria or obligation of the Act.
Subsection 11(1) of the Act provides that
a foreign national must, before entering Canada, apply to an officer for a visa or any
other document required by the regulations. The visa or document will be issued
if, following an examination, the officer is satisfied that the foreign
national is admissible and meets the requirements of this Act. For the reasons
set out above, I am not satisfied that you are admissible and that you meet the
requirements of the Act. I am therefore refusing your application.
[9]
Turning to
the merits of the case, it is useful to review some of the principles guiding H
& C applications filed from outside Canada. First, every foreign national must,
before entering Canada, apply to an officer for a
visa or for any other document required by the Regulations (subsection 11(1)
of the Act). The visa or document will be issued if, following an examination,
the officer is satisfied that the foreign national is not inadmissible and
meets the requirements of the Act. That being said, a Canadian citizen or
permanent resident may sponsor for admission to Canada a spouse or child who is a foreign
national on the basis that they are members of the family class (subsections
12(1) and 13(1) of the Act). However, since June 2002, paragraph 117(9)(d)
of the Regulations provides that a foreign national who was a non-accompanying
family member at the time of the sponsor’s application for permanent residence
and who was not examined at that time will be excluded as a member of the
family class.
[10]
The
exclusion mentioned at paragraph 117(9)(d) of the Regulations is a very
harsh one, but does not prevent a sponsor from invoking H & C grounds
considerations. Indeed, the very reason why the Court of Appeal in De
Guzman found that this provision is compliant with the international
instruments to which Canada is signatory is that section 25 of the Act
enables the Act to be administered in a compliant manner (De Guzman,
at paragraphs 102 to 109).
[11]
Pursuant
to subsection 25(1) of the Act, the Minister may confer permanent resident
status or grant an exemption from any applicable criteria or obligation of the
Act if it is justified by H & C considerations, taking into account the
best interests of a child directly affected, or by public policy
considerations. This decision is a discretionary one and in the case at bar,
the discretion was delegated to the First Secretary in Manila.
[12]
Article
3(1) of the Convention on the Rights of the Child (CRC) provides that the best
interests of the child shall be “a primary consideration” in all actions
concerning children, but this principle may be subordinated to other concerns
in appropriate contexts. It is also common ground that an immigration officer
cannot demonstrate that they have been “alert, alive and sensitive” to the best
interests of an affected child simply by stating that they have taken into
account the interests of a child. In determining the best interests of the
child, decision-makers must take the views of the child into account, in
accordance with the child’s age and maturity (see Hawthorne v. Canada
(Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687, 2002 FCA
475 at para. 32). In order to ensure that the child’s wishes are properly
considered, article 12 of the CRC provides that the child must be given an
opportunity to be heard, either directly or indirectly, in administrative
proceedings affecting his or her rights and interests. Moreover, article 10 of
the CRC provides that “applications by a child or his or her parents to enter
or leave a State Party for the purpose of family reunification shall be dealt
with by States Parties in a positive, humane and expeditious manner.”
[13]
In making
their decision, the agents of the Minister may also be guided by the principles
mentioned at Chapter 4 of the Overseas Processing (OP) Manual, which is
published by the Minister and which relates to H & C applications from
outside Canada. Although these guidelines
are not law and accordingly not binding on the Minister and his agents, they
are accessible to the public and therefore of great assistance to the Court (Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para..
20; Baker v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para.72).
[14]
In Baker,
the Supreme Court determined that the appropriate standard of review for
decisions based on H & C grounds was that of reasonableness simpliciter.
Although that decision related to an application for landing from within
Canada, this standard is equally applicable to H & C applications from
outside Canada (Nalbandian v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1128 at para. 12). In Canada (Director of Investigation and
Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at
paragraph 56, the Supreme Court explained that “[a]n unreasonable decision is
one that, in the main, is not supported by any reasons that can stand up to a
somewhat probing examination.” However, where issues of procedural fairness,
including the inadequacy of the reasons given by the decision-maker, are called
into question, the pragmatic and functional approach need not be applied (Canadian
Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R.
539).
[15]
Although
an H & C decision is discretionary, it must nevertheless be supported by
adequate reasons that allow the applicant to know why their application has
failed (Baker, at para. 43; Li v. Canada (Minister of Citizenship and
Immigration),
2006 FC 1109 at paras. 23-24).
[16]
In Li,
above, at paragraphs 27-28, Justice Michel Shore examined the reasons of a visa
officer who had determined that the applicant was excluded as a member of the
family class and that there were insufficient H & C grounds to grant the
applicant permanent resident status:
The reasons provided by the Visa Officer
through the CAIPS notes are not sufficient because they do not make findings of
fact with respect to the evidence submitted by Mr. Li. Indeed, the CAIPS notes
do not refer to the relationship between Mr. Li and his father, Mr. Li’s
need and reasons for wanting to be with his father, the life Mr. Li could
expect in Canada, the relationship with his sister (who is now in Canada), and
the fact that his father has been supporting Mr. Li financially.
The Visa Officer’s decision does not
begin to approach the complexity of the interplay between paragraph 117(9)(d)
of the Regulations and subsection 25(1) of IRPA. It does not disclose any
analysis of the factors for and against allowing an exemption from paragraph
117(9)(d) of the Regulations, and therefore, does not show that any balancing
was done to determine whether, in the particular circumstances of Mr. Li, H &
C factors existed to overcome paragraph 117(9)(d).
[17]
In the
case at bar, in his refusal letter, the First Secretary provided no reasons for
refusing the H & C application of Ms. David and Karlo. He simply stated
that it had been determined that it would not be justified by H & C
considerations to grant them permanent resident status or to exempt both from
any applicable criteria or obligation of the Act. It is therefore necessary to
examine the CAIPS notes, in order to examine the analysis conducted by the
First Secretary. Any fact or any other document posterior to the decision is
not per se admissible evidence to assess the reasonableness or non-reasonableness
of the impugned decision.
[18] The notes reveal that after interviewing Ms. David
and Karlo, the interviewing officer wrote the following before sending it to
the First Secretary for review:
File reviewed.
I am not satisfied H & C grounds
exist in this appln.
Sponsor has no good reason for not
declaring pa and son, brayan karlo, in his appln for perm residence and when he
landed in cda in 1992. Spr did not initiate sponsorship proceedings until apr
2001. First appln was refused. Spr appealed the decision but eventually
withdrew the appeal. This is his 2nd sponsorship appln for pa and son.
DYC – FOR YOUR REVIEW. THANKS.
[19] Following this entry, the First Secretary wrote
the following:
SPONSOR HID THE EXISTENCE OF HIS WIFE AND
ELDEST SON IN 1992 IN ORDER TO BE ABLE TO MIGRATE TO CANADA AS A DEPENDANT OF
HIS PARENTS. TWO CHILDREN BORN AFTER SPONSOR LANDED IN CANADA HAVE NOW BEEN SPONSORED SEPARATELY AND
CONCURRENTLY WITH THIS APPLICATION. I HAVE REVIEWED THIS APPLICATION. FOUR
MEMBERS OF THIS FAMILY ARE NOW LIVING IN THE PHILIPPINES. ONLY SPONSOR IS IN CANADA. HE HAS BEEN VISITING HIS
WIFE AND CHILDREN IN THE PHIL BUT YET WAITED 9 YEARS TO SUBMIT HIS FIRST
SPONSORSHIP. CHILDREN HAVE GROWN WIHOUT THE PRESENCE OF THEIR FATHER AND THEY
HAVE NOW BEEN SEPARATED FROM HIM FOR 14 YEARS. SPONSOR NOW HAS THE OPTION TO
COME BACK TO LIVE WITH THEM IN THE PHILIPPINES.
APPLICATION OF HIS TWO YOUNGEST CHILDREN WILL PROCEED BUT IT IS SPONSOR’S
CHOICE IF HE WANTS TO SPLIT HIS FAMILY FURTHER AND TAKE HIS TWO YOUNGEST
CHILDREN FROM THEIR MOTHER IN THE PHILIPPINES.
I HAVE DETERMINED IT WOULD NOT BE JUSTIFIED BY HUMANITARIAN OR COMPASSIONATE
CONSIDERATIONS TO GRANT PI PERMANENT RESIDENT STATUS OR EXEMPT HER FROM ANY
APPLICABLE CRITERIA OR OBLIGATION OF THE ACT. APPLICATION REFUSED.
[20] Here, as in Li, above, the First Secretary
did not make any findings of fact with respect to the evidence tendered by the
applicants, such as the relationship between the sponsor and his wife and son,
the fact that the sponsor has been supporting his family financially, the
frequency of their contact, as well as the letters tendered by various members
of the family and others in support of their application. It is clear in this
case that the First Secretary did not make a separate assessment for Karlo’s
application and as such, did not address his best interests as the child of the
sponsor. Instead, he simply stated that the application of the two youngest
sons would proceed “but it is sponsor’s choice if he wants to split his family
further and take his two youngest children from their mother in the Philippines”. However, the two youngest
children were not the ones seeking consideration under H & C grounds and
there is no due consideration to the fact that according to the evidence on
record, this 14-year old boy (Karlo) may be in urgent need of his father (who
is permanently employed in Canada and is also a Canadian
citizen).
[21] In the case at bar, the respondent does not deny
that the level of dependency, the stability of the relationship, the length of
the relationship, the impact of a separation, the financial and emotional needs
of the applicant in relation to the family unit, the ability and willingness of
the family in Canada to provide support, the applicant's other alternatives,
such as family (spouse, children, parents, siblings, etc.) outside Canada able
and willing to provide support, are all relevant factors a visa officer may
consider in determining whether H & C reasons exist to allow into Canada a
person that does not meet the definition of a family class member.
[22] That being said, the respondent relies heavily on Legault,
above, where the Court of Appeal held that under subsection 114(2) of the
former Act, the Minister could exercise his discretion in favour of the
applicant where there were H & C considerations, but could also refuse to
allow an application when he was of the view that public interest reasons
superseded H & C ones. This is the case if the Minister believes, for
example, that the circumstances surrounding the illegal entry and stay in
Canada of an applicant discredit him or create a precedent susceptible of
encouraging illegal entry into Canada (Legault, at
paragraphs 17 and 19). However, I find that this is not the case here, since
Ms. David and Karlo have not entered Canada
illegally and have made their H & C applications from outside Canada.
[23] Moreover, despite the misrepresentations made by
Mr. David in 1992, I note that in 2001, the immigration authorities allowed him
to stay and remain in Canada. Indeed, at the time the
decision was made by the First Secretary, Mr. David had been approved as a
sponsor for his two youngest children. There is no suggestion here that Ms.
David or Karlo made any misrepresentations, and the issue here is whether,
considering all the circumstances of the case, they should be allowed to come
and stay in Canada as permanent residents on H &
C grounds.
[24] While it is not the role of the Court to re-weigh
the evidence, it must be satisfied that the totality of the evidence has been
thoroughly reviewed by the decision-maker. This appears not to be the case and
the few indications mentioned in the CAIPS notes do not provide a clear
rationale of why any of the public policy considerations mentioned by the First
Secretary (such as the past misrepresentations) should prevail here over the
objective mentioned at paragraph 3(1)(d) of the Act “to see that
families are reunited in Canada”. Nor do they reveal whether the First Secretary
considered that de facto family members excluded from the family class
because of the operation of paragraph 117(9)(d) of the Regulations may
suffer hardship indefinitely.
[25] In conclusion, I am not satisfied that the First
Secretary reviewed the totality of the evidence and assessed all the relevant
factors relating to the applicants. In view of this finding, it is not
necessary to examine the other grounds of review raised by the applicants in
this case.
[26] No question of general importance has been raised
by the respondent and no question shall be certified by the Court.
ORDER
THIS COURT ORDERS that
1.
The
application is allowed. The decision made on August 3, 2006 is set aside and
the matter is remitted back for re-determination by a different visa officer.
2.
No
question is certified.
“Luc
Martineau”
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