Docket:
IMM-10240-12
Citation: 2013 FC 1105
Ottawa, Ontario, October 29,
2013
PRESENT: The Honourable Mr. Justice O'Reilly
|
BETWEEN:
|
|
JAE BOK NOH, EUN MI HWANG, MIN WOO NHO AND MIN JI NOH
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
The applicants comprise a family of two parents
and two adult children – one male, one female – who are originally from Korea. In 2009, when the son was 21 and the daughter was 17, the family applied for
permanent residence on humanitarian and compassionate grounds. They had been
living in Canada, without status, since 2000.
[2]
In support of their application, the applicants
pointed to their firm establishment in Canada, the best interests of the
children, and the hardship of returning to Korea. Their application was
dismissed, but on judicial review, Justice James Russell ordered a
reconsideration of the best interests of the children.
[3]
The officer conducting the reconsideration contacted
the applicants by telephone to give them a chance to update their submissions.
She first spoke with the adult applicants but had trouble communicating with
them. The officer then spoke to the son, who found the officer to be aggressive
and, in his view, intent on dismissing their application. By contrast, the
officer perceived the discussion to be polite and positive.
[4]
Based on the son’s perception of the
conversation, the applicants asked the officer to recuse herself for an apprehension
of bias. The officer did not respond to that request, but dismissed the
applicants’ application based on discrepancies in their evidence and a lack of
corroborating evidence.
[5]
There are two issues:
1. Did
the officer’s conduct give rise to a reasonable apprehension of bias?
2. Was
the officer’s decision reasonable?
II. The
Officer’s Decision
[6]
The officer took note of the applicants’ poor
financial circumstances, their history of self-employment in Korea, their
family ties in Korea, country conditions in Korea, the parents’ lack of English
language skills, the children’s ability to communicate both in English and
Korean, the applicants’ limited community ties in Canada, the fact that the
children were no longer in school, the pressure on the son to support the
family, and the possibility of the applicants’ returning to Canada in the
future.
[7]
The officer concluded, based on these factors,
that the applicants would not endure undue, undeserved or disproportionate
hardship if they had to apply for permanent residence from Korea, rather than from Canada.
III. Issue
One – Did the officer’s conduct give rise to a reasonable apprehension of bias?
[8]
The applicants argue that the officer’s conduct
displayed bias and prejudgment. In particular, they refer to the tone of the
telephone conversation with the officer, the officer’s suggestion that they had
not integrated into the mainstream of Canadian society, her reference to the
fact that the applicants had lived illegally in Canada for several years, and
her suggestion that the parents had not acted in the children’s best interests
when they moved to Canada in 2000.
[9]
In my view, only one aspect of the officer’s
conduct is worrisome. Based on photographs supplied by the applicants, she
found that they interacted solely within the Korean community in Canada and concluded that this showed that they had not become part of the mainstream of
Canadian society. I see no reason why meaningful interaction within the
expatriate Korean community in Canada could not be regarded as participation in
the mainstream of Canadian society. The question before the officer was the
nature and degree of the applicants’ community ties. It does not matter whether
those ties are to a particular sector of the community. The officer seemed to
believe that the applicants had to reach out to all sectors of Canadian life
before their community ties could be regarded as favouring their application
for permanent residence. Obviously, that is not the case.
[10]
Still, I believe the officer simply made a poor
choice of words and then, on cross-examination on her affidavit, felt bound to
defend them. Looking at the applicants’ circumstances as a whole, their ties to
the community was a relevant factor to consider. The officer found those ties
to be limited. While I disagree with the officer’s statement that only broad connections
to Canada’s multi-cultural dimensions will operate in an applicant’s favour, I
do not believe her statement gives rise to an apprehension of bias. It was
merely one factor among many cited by the officer in her thorough review of the
applicants’ circumstances.
IV. Issue
Two – Was the officer’s decision reasonable?
[11]
In their previous application for judicial
review, Justice Russell concluded that the officer had reached a reasonable
conclusion regarding the applicants’ lack of establishment in Canada. However, he found that inadequate attention had been given to the best interests of
the children. Accordingly, that was the main issue in the officer’s decision.
[12]
The applicants argue that the officer erred in
her analysis of the best interests of the children in a number of ways. In
particular, the officer wrongly believed that one of the goals of the Immigration
and Refugee Protection Act [IRPA] is to achieve family unification outside
of Canada. Further, the officer unreasonably found that the children’s best
interests favoured their return to Korea where they would be relieved of their
responsibility to support the family. In addition, the officer failed to
recognize that the children would need time to enhance their Korean language
skills. In particular, the officer failed to take into account the fact that,
while the daughter speaks Korean at home, she cannot read or write Korean.
[13]
In my view, the officer’s analysis of the
children’s best interests was not unreasonable. The officer took account of
their educational plans, their language skills, their work histories, their
family responsibilities, and their ages. That said, the officer clearly erred
in finding that IRPA promotes family unification outside Canada – it actually favours family unification within Canada. However, looking at the officer’s
analysis overall, that error did not materially contribute to the officer’s assessment
of the children’s best interests.
[14]
Therefore, I cannot conclude that the officer’s
decision was unreasonable.
V. Conclusion
and Disposition
[15]
The officer’s decision is not without flaws. By noting
the absence of interaction with all segments of the Canadian population, she
set too high a standard for consideration of the applicants’ community ties.
Further, she wrongly believed that one of IRPA’s objectives is to unite families
elsewhere than Canada. However, I cannot conclude that the officer’s decision
gives rise to a reasonable apprehension of bias. Nor can I find that the
officer’s analysis of the children’s best interests was unreasonable.
Therefore, I must dismiss this application for judicial review. Neither party
proposed a question of general importance for certification, and none is
stated.
Email this Content