Docket:
IMM-493-14
Citation: 2014 FC 1053
Ottawa, Ontario, November 10, 2014
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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GWENDOLYN VERBINA MATTHIAS
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is an application pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA),
for the judicial review of a decision of a senior immigration officer (the
officer), rendered on January 10, 2014, wherein the officer refused the
Applicant’s application under subsection 25(1) of the IRPA to have her
application for permanent residence processed from within Canada on humanitarian
and compassionate (H&C) grounds.
[2]
The Applicant asks for the decision to be set
aside and to have it returned to a different officer for re-determination.
[3]
In my opinion, the Applicant’s application
should be dismissed for the reasons discussed below.
II.
Facts
[4]
The Applicant is a 42-year-old woman born in
St-Vincent and the Grenadines (St-Vincent). She originally entered Canada on June 26, 1993, and has remained ever since, except for a three-month period from
September to December 2000. The Applicant has always resided with her sister
and her two nieces.
[5]
On December 21, 1998, her claim for refugee
protection was denied by the Refugee Protection Division of Immigration and
Refugee Board. The Federal Court refused her application for judicial review.
[6]
The Applicant filed a first H&C application
on July 11, 2011, which was denied.
[7]
On August 2, 2013, she presented another
application based on H&C grounds which resulted in the refusal that is the
subject of the present judicial review.
[8]
Over the years, the Applicant has developed
strong bonds with four children. She now plays a key role in her two nieces’
education and, according to her sister, the Applicant has been contributing
towards their financial upbringing. Moreover, she works as a domestic helper
where she was involved with the upbringing of two children (now grown) since
they were very young.
[9]
The Applicant also volunteers within her
community at the St. Columba House After School Program.
III.
Decision
[10]
The officer mentioned all the aforesaid factual
elements. The officer further noted the Applicant’s account balance indicating
savings of $9,062.44.
[11]
The officer then noted that the Applicant has
not demonstrated that she is more than moderately established in Canada. The officer acknowledged that the Applicant’s ties to Canada are probably stronger than
those to St-Vincent as she is employed and volunteers in her community.
However, no demonstration was made that the Applicant would suffer an unusual,
undeserved or disproportionate hardship if she had to return to her country of
citizenship to seek permanent resident status. Moreover, the officer noted that
the Applicant possesses no significant assets in Canada.
[12]
The officer then considered the issue of the
best interests of the children. He noted the aforesaid factual elements
pertaining to the relationship between the Applicant and several children. He
also noted that the Applicant had provided letters from her sister and her
nieces which describe how she contributes to their lives. Finally, he mentioned
that the Applicant alleges that she assists her sister financially.
[13]
The officer also considered many factors
pertaining to the hardship caused by the geographical separation of the family
members, and the difficulties that the Applicant might face if she returns to
St-Vincent. I have summarized this analysis as follows:
1.
The Applicant is considered part of her sister’s
family.
2.
The Applicant’s sister relies on her for many
things, including the care of her children.
3.
While a geographic separation would cause an
emotional hardship to this family who will experience a period of adjustment,
the Applicant did not demonstrate that the best interest of the children would
not be met in such a case. Specifically:
•
The Applicant did not submit adequate
information regarding her financial contribution to the well-being of her nieces.
She did not demonstrate that she would be unable to provide financial
assistance to her nieces from St-Vincent. Moreover, the Applicant did not
provide sufficient information to conclude that her sister would be unable to
provide the necessary care to her children.
•
While the Applicant might not be able to be
physically present in the lives of her nieces, the Applicant did not
demonstrate that she would be unable to maintain a meaningful relationship with
her nieces through the use of technology. Moreover, the Applicant did not
demonstrate that the children would be unable to visit her in St-Vincent.
4.
The Applicant did not demonstrate that her three
siblings in St-Vincent would be unable or unwilling to provide her with
temporary assistance.
5.
The Applicant has demonstrated that she is adaptable
by moving to Canada at an early age, and she did not demonstrate that she would
be unable to reintegrate her life in St-Vincent.
IV.
Issues
[14]
This matter raises the following issues:
1.
Did the officer err in assessing the best
interest of the children?
2.
Did the officer err in assessing the
consequences of the separation of relatives?
These two questions
can be answered in a single analysis.
V.
Relevant Provisions
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Immigration and
Refugee Protection Act SC 2001, c 27
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Loi sur l’immigration
et la protection des réfugiés, LC 2001, ch 27
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25. (1) Subject to subsection (1.2), the Minister must, on request
of a foreign national in Canada who applies for permanent resident status and
who is inadmissible — other than under section 34, 35 or 37 — or who does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the
circumstances concerning the foreign national and may grant the foreign
national permanent resident status or an exemption from any applicable
criteria or obligations of this Act if the Minister is of the opinion that it
is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly
affected. Non-application of certain factors
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25. (1) Sous réserve du paragraphe (1.2), le
ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le
statut de résident permanent et qui soit est interdit de territoire — sauf si
c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se
conforme pas à la présente loi, et peut, sur demande d’un étranger se
trouvant hors du Canada — sauf s’il est interdit de territoire au titre des
articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le
cas de cet étranger; il peut lui octroyer le statut de résident permanent ou
lever tout ou partie des critères et obligations applicables, s’il estime que
des considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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[…]
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[…]
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Non-application
of certain factors
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Non-application
de certains facteurs
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(1.3) In examining
the request of a foreign national in Canada, the Minister may not consider
the factors that are taken into account in the determination of whether a
person is a Convention refugee under section 96 or a person in need of
protection under subsection 97(1) but must consider elements related to the
hardships that affect the foreign national.
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(1.3) Le ministre,
dans l’étude de la demande faite au titre du paragraphe (1) d’un étranger se
trouvant au Canada, ne tient compte d’aucun des facteurs servant à établir la
qualité de réfugié — au sens de la Convention — aux termes de l’article 96 ou
de personne à protéger au titre du paragraphe 97(1); il tient compte,
toutefois, des difficultés auxquelles l’étranger fait face.
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VI.
Submissions of the Parties
A.
Applicant’s Submissions
[15]
The Applicant argues that the officer conducted
his analysis without considering the Applicant’s submission that her case fell
within s. 12.8 of the Citizenship and Immigration Canada operation manuals
IP-5 (the Guidelines). By failing to do so, the officer rendered a decision
without considering the material before him and committed a reviewable error. Indeed,
under s. 12.8, an officer must evaluate the circumstances of all the family
members, with particular attention given to the interest and situation of any
dependent children with legal status in Canada. The Applicant argues that the
officer’s failure to consider s. 12.8 of the Guidelines renders his decision
unreasonable (Davis v Canada (Minister of Citizenship and Immigration),
2013 FC 1243, at para 23).
[16]
The Applicant submits that the officer also
wrongfully ignored the letter of the Applicant’s sister, which indicates that
the Applicant’s absence would be financially and emotionally “horrible” for her nieces and her sister. Therefore, the
officer’s findings that the Applicant submitted insufficient information to
demonstrate that her sister would be unable to take care of the children in her
absence are unreasonable. Moreover, the officer discounted the Applicant’s close
relationship with her nieces and her sister.
B.
Respondent’s Submissions
[17]
In his memorandum, the Respondent starts by
outlining some key principles pertaining to the judicial review of an H&C
decision.
[18]
The Respondent first mentions that the H&C
process under subsection 25(1) of the IRPA is highly discretionary and
constitutes an exceptional measure. The Applicant has the burden of providing
evidence that, if she was required to apply for permanent residence from
St-Vincent, she would suffer an unusual, underserved and disproportionate
hardship (Mirza v Canada (Minister of Citizenship and Immigration), 2011
FC 50, at para 2, 16). This hardship should be, in most cases, beyond the
control of the Applicant and should have a disproportionate impact on the
Applicant due to her personal circumstances (Singh v Canada (Minister of Citizenship and Immigration), 2009 FC 11, at para 19). However, “the inherent hardship of leaving Canada is not sufficient in
itself to warrant an exception under subsection 25(1) of the IRPA” (Singh
Gill v Canada (Minister of Citizenship and Immigration), 2012 FC 835, at
para 28).
[19]
The Respondent underlines that considerable deference
must be accorded to the officer’s findings in cases of an H&C application.
Therefore, “the court should refrain from re-evaluating
the weight given to different factors considered by an officer” (Begum
v Canada (Minister of Citizenship and Immigration), 2013 FC 265, at para 20).
[20]
The Respondent then argues that the officer’s
assessment of the best interest of the children was reasonable. Although the Applicant
argues that the officer failed to consider that the present case fell within the
range of section 12.8 of the Guidelines when assessing the best interest of the
children, the Respondent answers that it is not simply because the Applicant’s
situation is covered by the Guidelines that the H&C application should be
granted. Furthermore, these Guidelines are not legally binding (Jnojules v Canada (Minister of Citizenship and Immigration), 2012 FC 531, at para 41 [Jnojules]).
Even so, the Respondent argues, the officer’s reasons indicate that he did in
fact (i) consider the circumstances contemplated in s. 12.8 of the Guidelines, (ii)
assess the best interest of the nieces, and (iii) assess the hardship caused by
the separation of the family.
[21]
The Respondent further argues that the Applicant
submitted insufficient evidence to demonstrate that the best interest of the
children would not be met should she apply for permanent residence from
St-Vincent.
[22]
Contrary to the Applicant’s arguments, the Respondent
asserts that the officer did take into consideration the Applicant’s sister’s
letter. However, the officer found that the Applicant failed to provide sufficient
evidence to establish the Applicant’s financial contribution to the well-being
of her nieces.
[23]
The Respondent submits that an analysis of the
officer’s decision demonstrates that he acknowledged the hardship that the Applicant’s
family would suffer. However, he concluded that the lack of evidence submitted
to support the H&C claim justifies the officer’s decision. The Respondent
argues that the officer’s decision falls within the range of possible
acceptable outcomes, and that he adequately assessed all the evidence before
him.
[24]
The Respondent emphasizes that the Applicant
bears the burden of proof in support of her H&C claim (Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38, at para 5; Persaud v Canada (Minister of Citizenship and Immigration), 2012 FC 1133, at para 63, 64).
Indeed, an applicant must put their best foot forward in an H&C application
and must demonstrate “that their personal situation and
the risks they faced were clearly explained to the officer reviewing their
application” (Wazid v Canada (Minister of Citizenship and Immigration),
2006 FC 1415, at para 24).
[25]
The Respondent further argues that the Applicant
essentially requests that the Court reconsider the evidence. However, in the
absence of an unreasonable conclusion on the part of the officer, it is not for
the Court to do so.
[26]
The Respondent submits that although the officer
was alive, alert and sensitive to the interests of the children, these
interests should not trump all other considerations in assessing an H&C application
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817, at para 75 [Baker]). Moreover, “it is not
because the interests of the children favour the fact that a parent residing
illegally in Canada should remain in Canada that the Minister must exercise his
discretion in favour of said parent” (Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, at para 12). The Applicant
should not be rewarded for accumulating time in Canada.
[27]
Finally, the Respondent argues that the
Applicant has not established that the hardship that she would face goes beyond
the inherent consequences of deportation. Indeed, the hardship is a normal
consequence of the deportation proceedings and the H&C application must
only be granted when this hardship goes beyond the inherent consequences of
deportation (Alexander v Canada (Minister of Citizenship and Immigration),
2012 FC 634, at para 14).
VII.
Standard of review
[28]
The standard of review applicable to an
officer’s decision of whether or not to grant an exemption based on H&C
considerations is reasonableness (Kisana v Canada (Minister of Citizenship
and Immigration), 2009 FCA 189, at para 18 [Kisana]; Mangru v
Canada (Minister of Citizenship and Immigration), 2011 FC 779, at
para 10; Toney v Canada (Public Safety and Emergency Preparedness),
2009 FC 904, at para 66) [Toney].
[29]
The Applicant submits that applying the wrong
test or ignoring the relevant factors when assessing the best interest of the
child is a question to be reviewed on the standard of correctness (Canada
(Minister of Citizenship and Immigration) v Mathew, 2007 FC 685, at para
22). However, as explained below, I am of the opinion that in the present case an
assessment of the best interest of the children was done and should be reviewed
as a question of mixed fact and law under the standard of reasonableness (Toney,
at 68, 69; Jnojules, at 16, 41).
[30]
In a decision similar to the present case,
Justice O’Reilly reviewed under the standard of reasonableness whether an
officer failed to adequately consider the applicant’s establishment in Canada
and the negative impact of her departure on the best interest of a dozen
children (John v Canada (Minister of Citizenship and Immigration), 2012
FC 96, at 18, 19). Furthermore, in Frank v Canada (Minister of Citizenship
and Immigration) 2010 FC 270 [Frank], at para 15, Justice Martineau
applied the standard of reasonableness for review in a case where the applicant
relied on the Guidelines to argue that a decision of an officer should be
quashed.
VIII.
Analysis
[31]
I am in general agreement with the arguments of
the Respondent.
[32]
Before delving into the analysis of the present
case, it is worth considering the guidance offered by Justice Martineau in Frank,
at para 20-21 pertaining to the application of these Guidelines:
[20] In this application, the applicant
heavily relies on the Operational Manual IP-5 Immigrant Applications in
Canada made on Humanitarian and Compassionate Grounds (Operational Manual
IP-5) and the recent decision of this Court in John v. Canada (Minister of
Citizenship and Immigration), 2010 FC 85, at para 7 (John), to argue
that the officer should have explicitly considered the applicant’s de facto
family situation since it was clearly raised by the facts as presented to the
officer.
[21] While it has been established on
numerous occasions that the operational manuals are not law and are not
binding, they are valuable guidelines to the immigration officers in
carrying out their duties (John, above, at paragraph 7).
[Emphasis added]
[33]
According to the Applicant, the officer failed
to adequately assess the circumstances of the Applicant’s entire family and the
best interest of the children. Moreover, the Applicant argues that the officer failed
to analyse all the evidence that she provided, namely her sister’s letter.
[34]
In my opinion, the officer’s decision indicates
that he weighed all the evidence and considered the relevant factors pertaining
to the best interest of the children. I agree with the Respondent that “a simple reading of the decision confirms that it was reached
after a complete analysis of the evidence and the Applicant’s H&C
application and submissions”. The following passages from page 4 of the
officer’s decision convince me that the key factors were taken into account:
The applicant has provided letters from her
sister and her nieces, which discuss how the applicant contributes to their
lives. The applicant also states that she assists her sister financially
and helps care for her nieces has needed.
I appreciate the relationship the applicant has
with her nieces and with her sister. The applicant is considered a part of
the family and the applicant’s sister relies on the applicant for help […] However,
I do not have information regarding the applicant’s financial contributions to
the well-being of her nieces. Moreover, while a geographic separation from
her nieces would likely cause a hardship for all the family members, I have
insufficient information before me to determine that the best interests of the
applicant’s sister’s children would not be met if the applicant were to return
to St. Vincent to apply for permanent residence in Canada. In such situation,
the applicant might not be able to physically be present in the lives of the
nieces; however, there is insufficient information before me to determine that
the applicant would not be able to maintain a meaningful relationship with her
nieces through the use of the modern technology […].
The applicant is likely to experience a
hardship if she is separated from her sister and her nieces […]; however, the applicant has not demonstrated that she would not
be able to maintain a connection and relationship with her loved ones or that
she would not be able to provide financial assistance as needed by her sister
[…]. Additionally, I have insufficient information before me to suggest that
the applicant’s sister would not be able to provide necessary care to her
children.
[Emphasis added]
[35]
Having reviewed the officer’s decision, I
believe that he was alert, alive and sensitive to the best interest of the
children. Pursuant to s. 12.8 of the Guidelines, he considered the
circumstances of all the family members, with particular attention to the
interest of the children. The officer acknowledged and weighed the emotional
hardship that the Applicant’s family would suffer. Despite this, the officer
concluded that there was insufficient evidence to determine that the best
interest of the children would not be met.
[36]
While it is trite law that the best interest of
the children is an important factor that the immigration officer must consider
in a matter like this, it is not the role of the Court to re-examine the weight
given to the different elements of the evidence provided the officer has been
alert, alive and sensitive to this factor (Kisana, at para 23; Baker,
at para 75). As mentioned by Justice Nadon in Kisana, at para 24, “an applicant is not entitled to an affirmative result on an
H&C application simply because the best interests of a child favour that
result”.
[37]
Moreover, the Applicant had the burden of proof
of the claims she made in her H&C application (Kisana, at para 35).
In my opinion, it was not unreasonable for the officer to conclude that the
Applicant failed to meet that burden. Contrary to her argument, I do not
believe that the officer ignored the letter from her sister. Indeed, the officer noted that the Applicant had “provided letters from her sister and her nieces, which discuss
how the Applicant contributes to their lives”, but he determined that
the Applicant failed to provide sufficient evidence to demonstrate that the
financial need of the nieces would not be met should the Applicant apply for
permanent residence from St-Vincent.
[38]
As argued by the Respondent, the Applicant could
have submitted objective documentation of her financial contribution, such as
bank statements or electricity bills, but she did not. The assertion in the
Applicant’s sister’s letter provided insufficient detail of her financial
contribution to the family. Apart from the bald assertion in the letter of the
Applicant’s sister, there is no objective evidence to demonstrate that the Applicant’s
sister would be unable to provide the necessary care to her own children.
Therefore, the officer reasonably concluded that insufficient information was
provided pertaining to this claim.
IX.
Conclusions
[39]
For foregoing reasons, this application should
be dismissed
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