Docket:
IMM-2430-13
Citation: 2014 FC 195
Ottawa, Ontario, this 28th
day of February 2014
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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Daniel Felipe VARGAS CABRERA
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Applicant
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Leave was granted by a judge of this Court to
commence an application for judicial review of the decision of the Visa Section
of the Embassy of Canada in Bogota, Colombia, dated March 1, 2013. This
judicial review application is made pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”).
Preliminary
matter
[2]
On its face, the application for leave and for
judicial review is with respect to the application for humanitarian and
compassionate considerations, pursuant to subsection 25(1) of the Act. However,
the respondent originally sought to strike out the application for leave and for
judicial review, arguing that the applicant was in fact challenging the
decision to deny spousal sponsorship for permanent resident status as a member
of the family class. Paragraph 72(2)(a) of the Act provides that an
application for judicial review is not made until any right of appeal that may
be provided by the Act is exhausted. In the case at hand, the denial of
sponsorship is subject to a right of appeal in accordance with subsection 63(1)
of the Act. Indeed the applicant’s sponsor launched such an appeal on March 18,
2013.
[3]
A judge of this Court ordered on July 3, 2013
that the issue be decided on the merits by the presiding judge, should leave for
judicial review be granted. Such was the case and therefore that preliminary
issue would have been before me.
[4]
However, the appeal pursuant to section 63 of
the Act was abandoned on January 14, 2014. What would have been before the
Immigration Appeal Division, had the appeal been pursued, was whether or not
the relationship between the sponsor and the applicant is genuine. That issue,
which was not before this Court in the first place, appears now to have been
settled through the appeal’s withdrawal. Hence, the difficulty with having a
judicial review pursuant to paragraph 72(2)(a), at the same time as an
appeal is underway, pursuant to section 63, has disappeared.
[5]
What is left before this Court is the contention
that a visa ought to have been issued on the basis of humanitarian and
compassionate [H&C] grounds raised by the applicant.
Facts
[6]
The facts of this case are straightforward. Mr.
Daniel Felipe Vargas Cabrera, the applicant, is a Colombian citizen born in 1981.
He had been living outside of Colombia since the age of 14. He lived in the United States until 2007, at which point he came to Canada and sought refugee status. His claim was
rejected in 2008. He was deported to his country of nationality on May 21,
2011.
[7]
It seems that the applicant and his
would-be-sponsor, Helena Stolearova, started a relationship around 2009. They
claimed to have a common-law relationship, out of which a child was born.
Furthermore, Ms. Stolearova was already the mother of a 13-year-old son. The
couple’s daughter was born in February 2012, after the applicant had been
deported to Colombia.
Standard of
review
[8]
It is common ground that the judicial review of
a refusal by a visa officer is governed by the standard of review of
reasonableness. These decisions are discretionary and meant to provide relief from
unusual and underserved or disproportionate hardship.
Analysis
[9]
The case for the applicant boils down to this. The
applicant has assumed the role as de facto father to the son of the
would-be sponsor during the period they lived together in Canada; he
contributes financially to the family unit; he now is the father of a two-year-old
daughter and the best interests of the children command that he be allowed to
join the family as a permanent resident in Canada. The challenge to the visa
officer centered on the adequacy of reasons, given the lack of comment on
significant evidence and not showing sufficiently that the officer was alert,
alive and sensitive to the needs of the children.
[10]
In spite of recognizing that the standard of
review in this case is one of reasonableness, the applicant argued his case as
if it was rather a standard of correctness that applied in the circumstances. He
takes issue with the appreciation of the evidence made by the visa officer,
seemingly to suggest that this Court should take a different view. However,
such is not the standard and the burden on the applicant was rather to satisfy
the requirements of paragraph 47 in Dunsmuir v New Brunswick, 2008 SCC
9, [2008] 1 S.C.R. 190 [Dunsmuir]:
[47] Reasonableness is a deferential standard animated by the
principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin
of appreciation within the range of acceptable and rational solutions. A court
conducting a review for reasonableness inquires into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. In judicial review, reasonableness is concerned mostly with
the existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[11]
The adequacy of reasons, or lack thereof, is not
enough for a court to quash the decision (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 at paragraph 14). Furthermore, there is no need to require
that the reasons include all of the arguments, jurisprudence or other details.
The test, at the end of the day, is that which is found at the end of paragraph
16 in the Newfoundland and Labrador Nurses’ Union case:
. . . In other words,
if the reasons allow the reviewing court to understand why the tribunal made
its decision and permit it to determine whether the conclusion is within the
range of acceptable outcomes, the Dunsmuir criteria are met.
[12]
My examination of the reasons given in order to
deny the application under section 25 of the Act made me conclude that the visa
officer addressed the issues raised in an appropriate fashion. That the
applicant would disagree with the appreciation of the evidence is not
surprising. However, much more than disagreeing was needed in order to
discharge the burden of showing that the decision is unreasonable. Quite
clearly, the visa officer was alert and alive to the needs of the children, but
he found that this was not sufficient. I see no reason why this Court would not
defer to that decision and the applicant has not made a convincing
demonstration that the decision was unreasonable.
[13]
In my estimation, the evidence adduced by the
applicant on his H&C application falls substantially short of the mark. The
presence of children is not sufficient. The visa officer was alert, alive and
sensitive to their best interests. However, being alert, alive and sensitive to
the best interests of children does not mean that they must prevail (Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4
FC 358). In this case, there was ample evidence to support the conclusion
reached by the visa officer. I would dismiss the judicial review application in
this case.
[14]
The parties did not raise a serious question of
general importance for certification. I agree that there is none.
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