Date: 20080320
Docket: IMM-993-07
Citation: 2008 FC 368
Ottawa, Ontario, March 20,
2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
YUN HEE LEE,
CHU JA PARK, and
JAE YANG LEE,
JAE BOK LEE, and
JAE PIL LEE
By their litigation guardian,
YUN HEE LEE
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
It
must be emphasized that there is nothing about the Applicants’ situation that
suggests that it fits into the special category of cases where a positive
decision might be made. The Applicants are simply would-be immigrants whose
humanitarian and compassionate (H&C) application is primarily based on the
existence of minor children and the fact they have been in Canada for a few
years. If this were the standard upon which H&C applications had to be
approved, virtually no applications could be refused. It would also create a
positive incentive for foreign nationals to completely ignore regular
immigration procedures. For example, citizens of South Korea, a democratic and
fairly well-off country, could travel to Canada, use the avenues available to
them under the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), or go underground, in order to stay in Canada for a few years and,
then, demand that they be allowed to stay in Canada. It would, in effect,
create a whole new immigration system, one that Parliament did not intend.
[2]
In
essence, positive H&C decisions are for circumstances sufficiently
disproportionate or unjust, such, that the persons concerned should be allowed
to apply for landing from within Canada, instead of returning
home and joining a long queue in which many others have been waiting patiently.
Seen in this light, it is clear that the whole issue regarding whether the
children can return to Canada to study is less than material.
II. Judicial Procedure
[3]
This
is an application for judicial review, under subsection 72(1) of the IRPA, of a
decision of an Immigration Officer, dated February 20, 2007, refusing the Applicants'
application for an exemption on H&C grounds to allow them to apply for
permanent residence from within Canada.
III. Background
[4]
The
Applicants, five citizens of South Korea, constituting a
husband, wife and three children, filed an H&C application in 2004. By
decision, dated February 20, 2007, an Immigration Officer considered and
refused the application.
[5]
In
2003, the Applicants made refugee claims based on problems the adult male
Applicant had due to debts incurred in his business in South Korea, as a result
of fraud committed by his former employee. This claim was refused by the
Refugee Protection Division (RPD) in a decision, dated December 31, 2003.
[6]
In
September 2004, the Applicants filed an application for permanent residence in Canada on H&C
grounds, attaching submissions and supporting documentation.
[7]
In
November 2006, on the request of the Respondent, the Applicants submitted an
update to the H&C application, including updated submissions, forms and
supporting documentation.
[8]
By
decision dated, February 20, 2007, a representative of the Minister of
Citizenship and Immigration reviewed the circumstances of the Applicants’
request and decided that an exemption, pursuant to subsection 25(1) of the IRPA,
would not be granted and, consequently, refused the Applicants’ H&C
application.
[9]
In
order to establish that they or others would suffer “unusual and undeserved
hardship” or “disproportionate hardship” if required to leave Canada to apply
for permanent resident status from abroad, the Applicants alleged, among other
things, that, since the three minor Applicants have been studying in Canada for
some time, they would suffer undue hardship if required to return to study in
South Korea and be forced to adapt to a new study environment.
[10]
To
establish that the minor Applicants have adapted to and are thriving in their
Canadian school and educational environment, the Applicants submitted letters
from a pastor, teachers, and other members of the community, including numerous
certificates.
[11]
They
equally submitted information explaining the male Applicant’s inability to
operate a small business as he would not be granted the required credit due to
the financial problems caused by his former employee.
[12]
The
Immigration Officer, reviewing the Applicants application for an exemption
based on H&C factors, determined that the exemption would not be granted.
[13]
The
reasons provided by the Immigration Officer, justifying the refusal, were based
on the fact that the Officer believed that the adult Applicants would be able
to find employment in Korea. Furthermore, it was determined that the
minor Applicants would, despite the period of adjustment, not face unusual and
undeserved or disproportionate hardship as they become re-established into
Korean society.
IV. Decision under review
[14]
The
Applicants contend that, in so finding, the Immigration Officer erred in a
number of ways: rendering an unreasonable finding that the minor Applicants
could return to Canada on study permits, rendering a finding based on no
evidence, ignoring evidence, or improperly considering extrinsic evidence in
breach of procedural fairness, by finding that the minor Applicants could study
in English in South Korea; rendering a finding based on no evidence, ignoring
evidence, or improperly considering extrinsic evidence in breach of procedural
fairness, by finding that English is widely spoken in South Korea; the
Applicants also contend that the Immigration Officer rendered a finding in
breach of natural justice due to incompetence of counsel by finding that the
adult Applicants could return to South Korea to operate a small business.
[15]
The
Applicants have failed to raise any cogent arguments to suggest that the
Immigration Officer erred in her decision. The Applicants are asking this Court
to re-weigh the evidence that was before the Immigration Officer, but this is
an insufficient ground upon which to seek judicial review.
[16]
Nothing
in the Applicants’ situation suggests that it fits into the special category of
cases where a positive decision might be made. The Applicants are simply
would-be immigrants whose H&C application is primarily based on the
existence of minor children and the fact that they have been in Canada for a few
years.
V. Relevant legislation
H&C
Framework
[17]
Subsection
25(1) of the IRPA provides that the Minister may exempt a foreign national from
any requirement of the Act if the Minister is “of the opinion that it is
justified by humanitarian and compassionate [H&C] considerations relating
to them, taking into account the best interests of a child directly affected,
or by public policy considerations”:
|
Status and
Authorization to Enter
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.
|
Statut et autorisation d’entrer
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.
|
[18]
In
determining whether subsection 25(1) applies, an Officer must determine whether
the applicants, and in particular, any child, would suffer “unusual and
undeserved hardship” or “disproportionate hardship” if the applicants were
required to leave Canada to apply for permanent resident status from
abroad. This is confirmed by, among other sources, the Immigration Inland
Processing Manual, Chapter 5 (Manual IP5) at Section 5.1.
[19]
The
existence of an H&C review offers an individual special and additional
consideration for an exemption from Canadian immigration laws, which are
otherwise universally applied. The decision of an immigration official not to
recommend an exemption takes no right away from an individual.
VI. Issues
[20]
(1)
Was the Immigration Officer’s conclusion as to the Applicants ability to find
employment reasonable?
(2)
Was the Immigration Officer’s conclusion as to the minor Applicants ability to
re-adapt to life and school in South Korea reasonable?
VII. Standard of Review
[21]
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 for
H&C decisions is reasonableness. In arriving at this conclusion, the Court
acknowledged that the Minister or her delegate should be entitled to
considerable deference in the exercise of discretion:
[59] …The decision- maker
here is the Minister of Citizenship and Immigration or his or her delegate. The
fact that the formal decision-maker is the Minister is a factor militating in
favour of deference. The Minister has some expertise relative to courts in
immigration matters, particularly with respect to when exemptions should be
given from the requirements that normally apply.
…
[62] … I conclude that
considerable deference should be accorded to immigration officers exercising
the powers conferred by the legislation, given the fact-specific nature of the
inquiry, its role within the statutory scheme as an exception, the fact that
the decision-maker is the Minister, and the considerable discretion evidenced
by the statutory language. Yet the absence of a privative clause, the explicit
contemplation of judicial review by the Federal Court -- Trial Division and the
Federal Court of Appeal in certain circumstances, and the individual rather
than polycentric nature of the decision, also suggest that the standard should
not be as deferential as "patent unreasonableness". I conclude,
weighing all these factors, that the appropriate standard of review is
reasonableness simpliciter.
[22]
In
Suresh
v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph
37, the Supreme Court of Canada clarified its decision in Baker by
stressing that, in H&C applications, it is “the
Minister who was obliged to give proper weight to the relevant factors and none
other.”
[23]
The Federal Court of Appeal had the opportunity to consider Suresh
in the context of an H&C matter. In Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), the Court held:
[11] In Suresh, the
Supreme Court clearly indicates that Baker did not depart from the traditional
view that the weighing of relevant factors is the responsibility of the
Minister or his delegate. It is certain, with Baker, that the interests of the
children are one factor that an immigration officer must examine with a great
deal of attention. It is equally certain, with Suresh, that it is up to
the immigration officer to determine the appropriate weight to be accorded to
this factor in the circumstances of the case. It is not the role of the courts
to reexamine the weight given to the different factors by the officers.
[24]
The
Federal Court of Appeal confirmed this proposition in Owusu v. Canada (Minister of Citizenship
and Immigration),
2004 FCA 38, [2004] F.C.J. No. 158 (QL), at paragraph 12. It held that it is
not the function of the Court in judicial review proceedings to substitute its
view on the merits of an H&C application for that of the statutory
decision-maker, even though the application might well have merit.
[25]
In Owusu,
above, at paragraph 8, the Federal Court of Appeal, also, found that “since applicants have the onus of establishing the facts on
which their claim rests, they omit pertinent information from their written
submissions at their peril.”
VIII. Analysis
(1) Was the
Immigration Officer’s conclusion as to the Applicants’ ability to find
employment reasonable?
[26]
At
page 2 of the Reasons, the Immigration Officer determined:
The Applicant has not demonstrated that
he and his wife would be unable to continue working in similar fields in Korea. The applicant has savings plus other
investments here which he can use to become reintegrated in Korea. The applicant lists on his IMM5001,
section G that he was employed in Korea
from 1993 to 2002. The applicant was able to retain long term employment prior
to coming here. I am not satisfied that he cannot do so once again.
[27]
The
Applicants contend, however, that they have been denied natural justice in
their H&C application due to the incompetence of their counsel as, the
latter, omitted to indicate in the H&C application the reason why it would
be unreasonable to believe that the male Applicant would be able to operate a
small business in South Korea. He notes that a failure of counsel to
represent his or her client properly may amount to a breach of natural justice.
[28]
In addition, the male Applicant alleges he cannot operate a
small business in South Korea because he has debt problems there due to fraud committed
by his former employee; and, therefore, he cannot obtain credit and faces
possible prosecution.
[29]
No breach of procedural fairness occurred due to the
incompetence of the Applicants’ representative. There is no evidence to
indicate that the Applicants did not understand English or the documents they
signed. Without this, the Applicants’ argument that they did not understand
what was written in their H&C application forms cannot stand.
[30]
The
evidence before the Court clearly indicates that the Principal Applicant and
his wife, speak, read, and write in English sufficiently well, such that, they
cannot blame their representative for any omissions or inaccuracies in their
H&C submissions.
[31]
The
most recent submission letter, from the Applicants, is in English and appears
to have been written in the Principal Applicant’s or his spouse’s own hand. The
original H&C forms and the updated H&C forms indicate that the Principal
Applicant and his spouse, speak, read, and write English. In their original
application forms, the Principal Applicant and his spouse both indicated that
they “… studied more than one year English as a full-time ESL student…” and
were improving their “… English by various ways, such as reading English
materials and going to English classes, etc.”. In his updated form, the Principal
Applicant repeated that he has studied ESL for more than one year and, in her
updated form, the Principal female Applicant made the same repetition and
added: “I can gain full-time jobs as I have the skills and the ability to work
in an English speaking environment.”. Moreover, the Principal female Applicant’s
volunteer work belies the suggestion (again, for which there is no evidence)
that she does not understand English. As the Applicants understand English,
they cannot blame their representative for any omissions or inaccuracies in
their H&C submissions. (Application Record, pp. 17, 23, 29, 31, 37, 70, 72,
91, 96, 110, 112.)
[32]
Moreover,
the alleged negligence on the part of the representative was not material to
the decision. Regarding the reference to the Applicants’ fear of gangsters,
this one-line allegation is found in the updated forms (not the original forms
or submissions), and as the Immigration Officer simply found that it was a
matter that could be dealt with by the police, the allegation did not operate
against the Applicants. (Application Record, p. 8.)
[33]
After
recognizing that the Principal Applicant operates a construction business and
buys and sells property and that his spouse is employed as a cleaner and a tax
records employee, it is reiterated that the Immigration Officer, stated:
The applicant has not demonstrated that
he and his wife would be unable to continue working in similar fields in Korea. The applicant has savings plus other
investments which he can use to become reintegrated in Korea. The applicant lists on his IMM5001,
section G that he was employed in Korea
from 1993-2002. The applicant was able to retain long term employment in Korea prior to coming here. I am not satisfied
that he cannot do so once again.
(Reasons, p. 2.)
[34]
The
Immigration Officer was not satisfied that the Principal Applicant would not be
able to continue as a businessman or obtain employment as an employee in Korea. Even if, as
the Applicants allege, the Principal Applicant cannot operate a business in Korea because of
past circumstances, there is no evidence, and it has not been alleged, that he
cannot find a job. As such, the issue of whether the representative properly
argued that the Principal Applicant could not start a business in Korea is
immaterial to the overall decision.
[35]
Lastly,
it must be emphasized that the apparent reason for the Principal Applicant’s
troubles in Korea, is fraud,
which he says was committed by a former employee but for which he is facing
charges. The RPD did not believe the basis of the Principal Applicant’s refugee
claim and, in any event, found that he faced prosecution and “would not
experience persecution, serious harm, risk to life or danger of torture upon
his return”.
[36]
The
fact that the Principal Applicant may not be able to operate a business in Korea, because of
such past circumstances, cannot be the basis of a successful H&C
application, especially when he and his wife are otherwise employable.
(2) Was the
Immigration Officer’s conclusion as to the children’s ability to re-adapt to
life and school in South
Korea
reasonable?
[37]
The
Immigration Officer considered whether the minor Applicants would suffer
unusual and undeserved or disproportionate hardship if removed from their
education in Canada and required
to re-adapt to school in South Korea. The Immigration Officer
concluded that they would not.
[38]
The
Immigration Officer, upon reviewing the Applicants’ H&C application,
concluded:
I have considered the best interest of
children and while there may be a period of adjustment I do not think
they will experience unusual and undeserved or disproportionate hardship as
they become re established into Korean society. There is also the option of
returning to Canada on Study Permits and
continuing their education in a Canadian environment.
…
Based on the information reviewed I am
not satisfied that the applicants will experience hardship which is unusual,
undeserved or disproportionate of[sic] they are asked to leave Canada and
apply for an immigrant visa from outside Canada in the normal manner. Request
for a waiver of ss 11(1) of IRPA is refused. (Emphasis added).
(Reasons, p. 3.)
Study permits
[39]
With
respect to the minor Applicants ability to return to Canada on study
permits, the Applicants state that this is a gross mischaracterization of the
likelihood that the children will be issued study permits. In view of the fact
that they are failed refugee claimants and it is highly unlikely that the
children would be allowed to return, considering they are subject to a
deportation order, the Minister’s authorization would be required. Furthermore,
even if the minor Applicants could obtain authorization to return to Canada, to
be issued study permits, they must satisfy the Minister that they have the intention
of returning to South Korea upon expiry of the permits, or otherwise
required to leave Canada.
[40]
Contrary
to the Applicants’ argument, the Immigration Officer did not make a patently
unreasonable error in stating: “… [t]here is also the option of returning to Canada on Study
Permits and continuing their education in a Canadian environment.” (Reasons, p.
3.)
[41]
This
statement was in the nature of an obiter comment and not material to the
decision. They explain that, prior to the impugned statement, the Immigration Officer
indicated that she considered the best interest of the children and “… while
there may be a period of adjustment I do not think they will experience unusual
and undeserved or disproportionate hardship as they become re established into
Korean society.” That was the key finding, and the additional statement about
the children possibly returning to Canada on study permits was
immaterial to the overall decision. As such, it does not raise a serious issue.
(Reasons, p. 8.)
[42]
The
Applicants contend that this conclusion was intrinsic to the Immigration
Officer’s reasons for finding that the minor Applicants will not suffer
sufficient hardship if removed.
[43]
The
impugned statement was a statement of fact. The Applicants do not deny that the
children could return to Canada on study permits. They simply say that it
might be difficult for the children to return because they failed to leave
Canada in a timely fashion (which resulted in the departure order becoming a
deportation order (ss. 224(2) of the IRPA) and, therefore, need written
authorization to return to Canada (ss. 52(1) of the IRPA and ss. 226(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227). They also say that
obtaining study permits would be difficult, because, given their status as
failed refugee claimants and failed H&C Applicants, it would be difficult
for the children to prove that they would leave Canada at the end
of the authorized period, which is the test that all temporary visa applicants
must meet. The fact that it might not be easy for the children to study in Canada in the
future does not undermine the Immigration Officer’s finding. The Immigration Officer
did not indicate that obtaining study permits would be easy; rather, she simply
noted, correctly, that it was an option.
[44]
Two
additional points should be emphasized. First, obtaining study permits is not
easy for most students who desire to study in Canada. Second, the
Applicants’ argument forces us to re-focus on what H&C applications are
about. In essence, positive H&C decisions are for circumstances
sufficiently disproportionate or unjust, such that the persons concerned should
be allowed to apply for landing from within Canada, instead of
returning home and joining a long queue in which many others have been waiting
patiently. Seen in this light, it is clear that the whole issue regarding
whether the children can return to Canada to study is less than
material.
[45]
The
Applicants argue that the H&C Officer erred in finding that the children
could study in English in South Korea and that English is widely spoken in South Korea. Both of
these arguments can be addressed together.
[46]
It
should be emphasized that the three children were born in Korea and that
their mother tongue is Korean. This is stated explicitly on the H&C
application and was recognized in a letter from a family friend who noted that
the children’s “… English has also improved a lot and they have adapted well at
school.” (Application Record, p. 69.)
[47]
Moreover,
while the Applicants submitted that it would be difficult for the children to
readjust to life and school back in Korea, they never indicated
or provided evidence to indicate that the inability to be schooled or to
communicate in English in the broader society would create unusual or disproportionate
hardship. In their original application forms (September 9, 2004), the
Applicants indicated:
First, our three sons would face many
troubles if we were to return to Republic
of Korea. They have been in Canada since Jan. of 2002, and they
are studying now. They would stop their study if we were to return to South Korea. It is very hard for them to
change their study environment.
(Application
Record, p. 110.)
[48]
In
their updated forms (November 12, 2006), the Applicants indicated:
Secondly, my children’s best interests
will be damaged if they are sent back to R. Korea. Our three sons will face
tremendous difficulties in dealing with their studies and daily life. Their
education will be delayed. They will have to spend more time to learn Korean
courses.
(Application
Record, p. 37.)
[49]
Notably,
these allegations can be made in any case where there are children going back
to their homeland. Moreover, there is no evidence to suggest that the
Applicants were putting forward, as a basis for undue hardship, the lack of
English schooling or English communication in the broader Korean community.
Indeed, the Applicants concede, at paragraph 43 of their Memorandum, that the
availability of English schooling was not really the concern. Consequently, the
findings with which the Applicants take issue do not raise a serious issue.
[50]
Lastly,
it should be noted that the Applicants recognize that English is a required
subject in Korea and that
English schooling is available. That the Applicants suggest that they cannot
afford English schooling does not impugn the Immigration Officer’s finding that
it is available.
VIII. Conclusion
[51]
Although
pleaded in the most erudite manner by counsel for the Applicants, based on the
foregoing, this Court finds that the Applicants will not experience hardship
which is unusual, undeserved or disproportionate upon return to Korea where
they can apply for immigrant visas from outside of Canada, in the
normal manner. Consequently, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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