Date: 20071001
Docket: IMM-4301-06
Citation: 2007 FC 988
Ottawa, Ontario, October 1, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
PAULICA MOISE &
DORINA MOISE
Applicants
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a
decision by an immigration officer dated July 18, 2006, which denied the
applicants’ application for permanent residence on humanitarian and
compassionate (H&C) grounds.
[2]
The
applicants seek an order of certiorari setting aside the decision of the
immigration officer, and an order of mandamus referring the matter for
redetermination by a different officer.
Background
[3]
The
applicants, Paulica and Dorina Moise, are a married couple from Romania. They were
granted status as visitors to Canada many times in order to visit their
daughter, who had immigrated to Canada in 1999. Their last
entry into Canada took place
on December 2, 2005, and their visitor’s status was eventually extended to
December 2, 2007. They are currently living in Canada with their
daughter, their son-in-law and their two grandchildren. The applicants received
financial support from their daughter both during their visits to Canada, and
when they lived in Romania.
[4]
After
one of the applicants’ visits to Canada in 2004, their daughter
was diagnosed with hypertension, major depression and separation anxiety. The
daughter’s health condition is allegedly linked to her separation from her
parents. The applicants’ grandson was diagnosed with Asperger Syndrome and the
applicants alleged that their presence in Canada has caused
his condition to improve.
[5]
The
applicants applied for permanent residence in Canada on H&C
grounds in June 2003. By decision dated July 18, 2006, the application was
refused. This is the judicial review of the decision to refuse their H&C
application.
Officer’s Reasons
[6]
The
applicants were advised by letter dated July 18, 2006, that their application
for permanent residence on H&C grounds had been refused. The officer’s
notes to file constitute the reasons for the decision. The officer noted that
the applicants’ H&C claims were based upon their interdependent
relationship with their daughter, the best interests of their grandchildren,
and the geological and economic hardship they would face should they return to Romania.
[7]
The
officer noted that the applicants were very close to their daughter and her
family. The applicants’ daughter provided the officer with a letter indicating
that she had been diagnosed with hypertension, major depression and separation
anxiety. The applicants had visited their daughter often since she had
immigrated to Canada in 1999, and
the officer concluded that they could continue to travel back and forth in
order to see her. The officer was not satisfied that the emotional hardship
caused by family separation was sufficient to warrant exemption on H&C
grounds.
[8]
The
officer considered the best interests of the applicants’ grandchildren and
noted that they were close to the applicants. The applicants’ grandson had been
diagnosed with Asperger Syndrome, and his condition had improved since the
applicants’ arrival in Canada. However, the officer concluded that there
was insufficient evidence that the applicants’ presence in Canada had directly
affected his condition in a positive manner.
[9]
The
officer considered evidence with respect to the possibility of earthquakes in Romania. The
officer noted that the population in Romania generally faced earthquakes
and there was no evidence to bolster counsel’s statement that Romania would not
receive aid in the event of an emergency. The officer noted that the applicants
appeared financially dependent upon their daughter, whether they were living in
Romania or in Canada. The officer
was not satisfied that this arrangement would not continue if the applicants
returned to Romania.
[10]
Having
reviewed the evidence, the officer found that it was not sufficient to warrant
granting the applicants an exemption from the requirement to apply for
permanent residence from outside Canada.
Issues
[11]
The
applicants submitted the following issues for consideration:
1. Did
the officer err in ignoring relevant evidence, relying upon irrelevant
considerations, and misapprehending the evidence?
2. Did
the officer err in failing to consider the best interests of the child?
3. Did
the officer err in his assessment that the applicants were not sufficiently
established in Canada?
[12]
I
would rephrase the issue as follows:
Did the officer err in refusing
the applicants’ application for permanent residence on H&C grounds?
Applicants’ Submissions
[13]
The
applicants submitted that the standard of review applicable to an H&C
decision was that of reasonableness (see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R.
(4th) 193). It was noted that pursuant to section 12.11 of Immigration Manual
IP5, several factors were relevant in assessing a family relationship,
including: (1) proof of relationship; (2) what hardship would occur if the
application were refused; (3) the level of interdependency; (4) the support
available in home country; (5) whether the applicant was able to work; and (6)
the degree of establishment.
[14]
The
applicants submitted that the officer failed to consider the impact of the
geological instability in Romania upon them, considering
their advanced ages and the fact that they did not have any family in Romania to help
them. It was noted that the officer acknowledged that emotional hardship could
take place if the family separated. The applicants submitted that the officer’s
conclusion that the family relationship did not warrant an exemption on H&C
grounds was therefore untenable.
[15]
The
applicants noted that the officer failed to consider their ability to work, the
level of interdependence amongst the members of their family, and their degree
of establishment in Canada. In addition, the officer failed to refer to evidence
regarding the applicants’ financial and emotional dependence upon their
daughter and her family.
[16]
Finally,
it was submitted that the officer erred in finding that the objective of family
reunification could be achieved through an existing family reunification
program. The applicants noted that they had been denied extensions to their
visitors’ visas in the past, and their overseas sponsorship application had
been pending for thirty months.
[17]
The
applicants submitted that the officer failed to consider ample evidence that
they played a major role in the well-being of their grandchildren. It was noted
that their grandson and his parents had attested that his scores had improved
as a result of their presence in Canada. The applicants noted that
the officer had failed to provide the basis for the conclusion that the
grandson could be supported by his parents. It was submitted that the officer
erred in failing to consider the best interests of the applicants’
grandchildren (see Baker above).
Respondent’s Submissions
[18]
The
respondent submitted that the officer carefully considered all of the evidence
before making a decision. It was submitted that the applicants were seeking to
have the Court reweigh the evidence that the officer had considered in making a
decision. The respondent submitted that the applicant’s risk and hardship
allegations with respect to potential earthquakes were highly speculative. It
was noted that other people in their sixties lived in Romania and also
faced the risk of earthquakes.
[19]
The
respondent submitted that the officer’s analysis of the economic hardship faced
by the applicants was appropriate given the minimal evidence provided regarding
their pension. It was noted that the applicants’ daughter supported them
financially when they lived in Romania, therefore, the officer properly
concluded that such support was likely to continue if they returned to Romania.
[20]
The
respondent submitted that the officer adequately considered the best interests
of the applicants’ grandchildren. It was submitted that the best interests of
the children was an important consideration, but was not determinative of the
application (see Legault v Canada (Minister of
Citizenship and Immigration) (2002), 212 D.L.R. (4th) 139, 2002 FCA
125).
[21]
The
respondent submitted that the officer considered the impact of the applicants’
departure upon the grandchildren, and properly concluded that the children
would not suffer undue hardship if the applicants were made to apply for
permanent residence from outside Canada. It was submitted that
the officer properly found that there was a dearth of evidence in support of
the applicants’ claims that their presence contributed to improvements in their
grandson’s health. It was noted that the officer had found that the children’s
parents could support them.
Analysis and Decision
Standard of Review
[22]
The
standard of review applicable to the decision of an immigration officer with
respect to an application for permanent residence on H&C grounds is that of
reasonableness (see Baker above).
[23]
Issue
Did the officer err in
refusing the applicants’ application for permanent residence on H&C
grounds?
Consideration of the
Evidence
The
applicants submitted that the officer failed to consider evidence with respect
to geological instability in Romania. The respondent
submitted that the evidence was speculative and that the officer properly found
that all people living in Romania faced such a risk.
Having reviewed the evidence on file and the officer’s decision, it is clear
that the officer considered the evidence with respect to the risk of
earthquakes in Romania and reasonably concluded that it did not
warrant granting the applicants and exemption from the requirement to apply for
permanent residence from outside Canada.
[24]
The
applicants also challenged the officer’s consideration of the emotional
hardship that they and their family members would suffer should the family be
separated. The respondent submitted that the officer properly concluded that
the applicants and their family would not suffer undue hardship due to family
separation. The officer reviewed evidence regarding the distress and medical
problems experienced by the applicants’ daughter following her parents’
departure. The officer noted that family separation could cause emotional
hardship, but found that the applicants could continue to visit their daughter
in Canada, as they had
since 1999. I do not find that this was an unreasonable conclusion on the
officer’s part.
[25]
The
applicants submitted that the officer failed to consider the financial impact
of separation from their daughter. The respondent submitted that the officer
properly found that the applicants’ financial support by their daughter was not
likely to end should they return to Romania. The officer’s decision
noted the fact that the applicants’ daughter supported them financially whether
they were in Canada, or in Romania, and that this pattern
of support was not likely to end if they returned to Canada. The officer
also noted that the applicants submitted little information regarding their
pension income. In my view, the officer clearly considered the evidence
provided by the applicants and reached a reasonable conclusion with respect to
the issue of financial hardship.
[26]
The
applicants submitted that the officer erred in finding that the objective of
family reunification could be achieved through existing immigration programs.
I would note that the applicants were granted several visitors’ visas to Canada, and were
afforded extensions of these visas. Most recently, the applicants’ visitors’
visas were extended until December 2007. In my view the officer did not err in
finding that the applicants could likely continue visiting their family through
other means under IRPA.
Best
Interests of the Children
[27]
Pursuant
to subsection 25(1) of IRPA, the best interests of children affected by an
H&C decision must be considered by the decision-maker involved. The
applicants submitted that the officer failed to consider evidence that they had
contributed to the wellbeing of their grandchildren, and in particular, their
grandson who suffered from Asperger Syndrome. The respondent submitted that
there was no evidence that the applicants’ presence had helped their grandson’s
condition.
[28]
I
have reviewed the evidence on file, and, as noted by the officer, the reports
do not directly link any improvements in the grandson’s condition with the
applicants’ presence in Canada. In addition, there was no evidence that
the applicants’ parents were unable to support their son without the applicants
being present in Canada. I do not believe that the officer erred in his
or her analysis of the best interests of the children involved in this case.
[29]
The
application for judicial review is therefore dismissed.
[30]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[31]
IT
IS ORDERED that the application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
The
relevant statutory provisions are set out in this section.
The Immigration
and Refugee Protection Act, S.C. 2001, c. 27:
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11.(1)
A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document shall be issued if, following an
examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act. . . .
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.
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11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi. . . .
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.
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