Date: 20081020
Docket: IMM-666-08
Citation: 2008 FC 1171
OTTAWA, Ontario, October 20, 2008
PRESENT: The Honourable Louis S. Tannenbaum
BETWEEN:
SANDRA MARIA DE SOUSA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a Brazilian citizen who arrived in Canada with her 14
month old daughter Amy on a six month visitor’s visa in late 1996 and failed to
leave at the end of that time. In May, 2004, she applied for exemption from
the requirement that she apply for permanent resident status from outside
Canada on humanitarian and compassionate (H&C) grounds pursuant to section
25 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA).
[2]
That
application was denied on June 26, 2006. Judicial review of that decision was
allowed, however, on the basis that the officer failed to adequately assess the
best interests of Amy, were she to be separated from her mother. This
application concerns the second consideration of this file.
[3]
Ms.
de Sousa initially lived with her sister, a permanent resident, and
brother-in-law, taking care of her brother-in-law’s ill mother in return for
room and board for herself and Amy. During that period, she claims that she
was being mistreated and abused both verbally and physically. The sister and
brother-in-law convinced Ms. de Sousa that Amy would be able to receive health
care, Canadian citizenship and better education if they adopted her. The
application for adoption was submitted in 1999 and the adoption finalized in
October 2002. Amy was granted Canadian citizenship in September 2005.
[4]
In
December 2003, the applicant moved out of her sister’s home with her daughter
and had become self-sufficient by January 2004, working as a cleaner. She eventually
applied for legal custody of Amy, which she received on April 19, 2007, after
the first officer’s decision.
[5]
Ms.
de Sousa provided updated submissions and documents to Citizenship and
Immigration Canada on March 14 and June 15, 2007 for the redetermination of her
H&C application. Further documents were submitted early in 2008.
[6]
The
officer began by reciting the history of the applicant’s case and noted that
the grant of sole custody of Amy on April 19, 2007 resolved the legal issue
which caused such complications in the first H&C assessment: that the
applicant was the caregiver but not the legal guardian of her daughter.
[7]
In
her reasons, the officer noted that there was little information about Amy’s
father but noted that the applicant’s actions had denied the girl a
relationship with him or her other relatives in South America. The
officer then described the adoption and found that the mother / daughter
relationship between the applicant and Amy was never severed. The officer
noted that submissions about Amy’s psychological state largely focused on the
outcome of separation due to the deportation of her mother. It was also noted
that she was in sixth grade and was young enough to adapt easily to new friends
and surroundings.
[8]
As
for Ms. de Sousa’s claim that she would be unable to provide financially for
Amy in Brazil, the officer
noted that she had been able to find employment and become self-sufficient
while living in a foreign country despite dealing with a new language. It was
thus found reasonable to believe that she would be capable of doing the same in
her country of birth.
[9]
The
officer was not satisfied that Ms. de Sousa was well established in Canada. It was
noted that she had friends in the community and was employed, but there were
still not sufficient indicia of establishment to show that she would be unable
to re-establish herself in Brazil. Finally, it was found that the
psychological problems she submitted that she suffers due to abuse in her
sister’s home and anxiety regarding separation from her daughter as a result of
deportation were self imposed. The applicant was free to return to Brazil at any time
and there was no impediment to taking Amy with her following the grant of
custody.
[10]
The
officer noted that the adoption was undertaken for the purpose of providing Amy
with status in Canada, which is contrary to IRPA, and that
facts were misrepresented in her sponsored permanent resident application. The
applicant’s sister and brother-in-law would be investigated for
misrepresentation, but no action would be taken against the applicant, who was
not directly involved and cannot be held accountable, or the child.
[11]
The
applicant asserts that the Immigration officer improperly fettered her
discretion and that her analysis of the best interests of the applicant’s
daughter was erroneous. The respondent counters that the applicant’s attack on
the officer’s decision amounts to nothing more than an attempt to evade the
requirements of the immigration system.
[12]
Improperly
fettering discretion is an error of jurisdiction which is reviewable on a
correctness standard. The allegedly erroneous assessment of Amy’s best
interests dealt with facts and the application of law to those facts and is
thus to be set aside only if found not to be within the spectrum of reasonable
results which the officer could have reached.
[13]
The
applicant asserts that the officer made speculative findings in coming to her
decision on Amy’s best interests, rendering it unreasonable. The findings she
challenges include that children of twelve years of age “adapt readily to new
friends and surroundings, as well as new schools”, for which she notes that no
evidence was cited. She also argues that the officer’s reference to Amy’s
possible acquaintance with her father was an unreasonable implication that the
applicant and her estranged husband may reconcile, despite the applicant’s
evidence that he has another family.
[14]
The
respondent submits that the officer made reasonable observations based on
common sense and logic. She asserts that the applicant is challenging the
weighing of the evidence, which is not a ground of review.
[15]
In
reply, the applicant raises her daughter’s post-traumatic stress disorder and
asserts that the failure of the officer to consider the evidence of that
illness was in error.
[16]
Contrary
to the applicant’s submissions, the respondent asserts that the officer did not
ignore the evidence of Amy’s psychological stress, as the letter which
describes her symptoms and her need to remain with her mother is directly cited
in the decision.
[17]
In
his submissions, the respondent argues that “the Immigration officer committed
no reviewable error since an examination of the Officer’s lengthy reasons
discloses a careful consideration of the best interests of the applicant’s
child”. (see para. 33 of the Respondent’s Further Memorandum of Argument, dated
August 21, 2008)
[18]
The
respondent further argues that the officer was alert and sensitive to the
impact on the child if she were to move to Brazil with her
mother. (see para. 33 of the Respondent’s Further Memorandum of Argument, dated
August 21, 2008)
[19]
I
do not agree with the respondent’s contention.
[20]
The
record contains a letter from the child’s physician, who has been treating her
since her arrival in Canada. (letter dated November 4, 2006 from Dr.
Trudy Chernin, Tribunal Record, p. 142)
[21]
In
her decision, the Immigration Officer states the following:
“There is no information on file to
suggest Amy suffers from any physical deformity or ailments. In fact, there is
a letter on file from the family doctor, Dr. Trudy Chernin dated Nov. 4, 2006
stating, I last saw Amy Oct. 30, 2006 and she seemed well cared for and denied
any physical distress.”
[22]
The
officer however did not consider Dr. Chernin’s letter in its entirety. In the
letter, Dr. Chernin goes on to state:
“… If Ms. Sousa was to be deported it
would have a devastating impact on Amy because she’d either have to go with her
mother and leave Canada or stay with her aunt. This
would be an intolerable situation for her.”
[23]
We
see therefore that Dr. Chernin’s conclusion is that Any would be devastated by
either having to go to Brazil, or by remaining in Canada without her
mother. This evidence has not been contradicted by any other expertise.
[24]
To
devastate and devastation are defined as “to cause great destruction to, - to
overwhelm with shock, - crushingly effective; overwhelming”. (Canadian Oxford Dictionary)
[25]
In
my view, the officer did not consider the above evidence given by Dr. Chernin
and therefore committed a reviewable error respecting the best interests of the
child.
[26]
Accordingly,
the application for judicial review will be granted.
[27]
Given
my conclusion respecting the best interests of the child, it is not necessary
that I deal with the other ground invoked by the applicant, namely that the
officer fettered her decision.
[28]
No
questions were submitted for certification.
[29]
It
is to be noted that this is the second successful application for judicial
review by the applicant respecting her request for an exemption from the
requirement that an application for permanent residence be made from outside Canada.
[30]
Accordingly,
I do not believe it to be in the interests of justice that the matter be
referred back for a simple re-determination of the applicant’s request for an
exemption. Rather, considering the best interests of the child, I am of the
view that the applicant’s H & C application be processed from within Canada. An order in
this respect will issue.
[31]
No
question of general importance was submitted for certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for
judicial review is granted and the decision of the immigration officer dated
January 23, 2008 is annulled and set aside for all legal purposes. The matter is
referred back to the respondent so that the application for permanent residence
be processed from within Canada, taking into consideration the conclusion
of the undersigned respecting the best interests of the child Amy.
"Louis S. Tannenbaum"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-666-08
STYLE OF CAUSE: Sandra
Maria De Sousa v. M.C.I.
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: September
11, 2008
REASONS FOR JUDGMENT: TANNENBAUM
D.J.
DATED: October
20, 2008
APPEARANCES:
|
Hilary Evans
Cameron
|
FOR THE APPLICANT
|
|
Ada Mok
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Hilary Evans
Cameron
Downtown Legal
Services
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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