Docket: IMM-671-14
Citation:
2015 FC 576
Ottawa, Ontario, May 4, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
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BETWEEN:
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SURESH SAVJI
CHITRODA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Suresh Savji Chitroda [the Applicant] has
brought an application for judicial review of a decision of an immigration
officer [the Immigration Officer] to refuse his request to apply for
permanent residence from within Canada based on humanitarian and compassionate [H&C] grounds.
[2]
For the reasons that follow, the application for
judicial review is dismissed.
II.
Background
[3]
The Applicant is a citizen of Kenya. He arrived in Canada together with his family on November 30, 2009 and made a refugee
claim on January 7, 2010. The Applicant and his family fled Kenya following a criminal attack, which they said was due to their Indian ethnicity. The Refugee
Protection Division [RPD] of the Immigration and Refugee Board concluded that they had been the
victims of random criminality and not a targeted attack. The refugee claim was rejected
on March 1, 2012.
[4]
The Applicant obtained leave to seek judicial
review of the RPD’s decision in this Court, but the application was dismissed
on December 4, 2012. An application for permanent residence on H&C grounds
was made on June 11, 2013, but was rejected on December 17, 2013. It is this decision
that is the subject of the present application for judicial review.
[5]
The Applicant and his family have made serious
efforts to establish themselves in Canada. They both work and they participate
in volunteer activities. The Applicant’s children are in school and they are
doing well. The Applicant has purchased a car, he rents a home and he pays
utility bills.
[6]
The Applicant’s mother in law resides in Canada and suffers from Alzheimer’s disease and dementia. The Applicant’s wife looks after
her mother because the Applicant’s brother in law, who also resides in Canada, suffers from several medical problems.
[7]
The Immigration Officer refused the Applicant’s
H&C application for the following reasons:
•
The separation from the Applicant’s mother in
law would not result in disproportionate hardship. The mother in law could be
placed in a nursing home and the Applicant did not explain how being separated
from his mother in law would result in hardship to their family.
•
The Applicant had established himself in Canada
to some extent, but this was not sufficient to justify his request to apply for
permanent residence from within Canada.
•
The Applicant’s family had been in Canada for approximately
four years and the children were doing well in school. Displacement from Canada
would be difficult for the children, but they would ultimately be able to
re-adapt to life in Kenya. The children could remain in contact with their
friends using technology such as e-mail and Skype.
III.
Issues
[8]
This application for judicial review raises the following
issues:
•
Whether the Immigration Officer applied the
correct test in determining the best interests of the children and, if so,
whether his determination was reasonable;
•
Whether the Immigration Officer’s assessment of
the Applicant’s establishment in Canada was reasonable; and
•
Whether the Immigration Officer’s assessment of
the hardship faced by the Applicant’s mother in law and brother in law was reasonable.
IV.
Analysis
A.
Whether the Immigration Officer applied the
correct test in determining the best interests of the children and, if so,
whether his determination was reasonable
[9]
The Applicant maintains that the correct
approach to conducting an analysis of the best interests of the child is found in
Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC
166:
63 When assessing a child’s best interests an Officer must establish first what is in the
child’s best interest, second
the degree to which the child’s interests are compromised by one potential
decision over another, and then finally, in light of the foregoing assessment
determine the weight that this factor should play in the ultimate balancing of
positive and negative factors assessed in the application.
[Emphasis original]
[10]
In Webb v Canada (Minister of Citizenship and
Immigration), 2012 FC 1060 at para 13, Justice Mosley observed that “the Williams formula provides a useful guideline for
officers to follow where it may be helpful in assessing a child’s best
interests but it is not mandated by the governing authorities from the Supreme
Court and the Federal Court of Appeal.” Ultimately, the correct legal test
is whether the Immigration officer was “alert, alive
and sensitive” to the best interests of the child: Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 at para 10.
[11]
I am satisfied that in this case the Immigration
Officer was alert, alive and sensitive to the best interests of the children. He
acknowledged the disruption of the children’s education; he considered their
ability to re-adapt to life in Kenya; and he noted that they had grown up primarily
in Kenya and had been away from that country for just over four years. The Immigration
Officer applied the correct legal test, and his assessment of the best
interests of the children fell within the range of reasonable outcomes.
B.
Whether the Immigration Officer’s assessment of
the Applicant’s establishment in Canada was reasonable.
[12]
The Applicant says that the Immigration Officer
failed to turn his mind to many of the documents that were submitted to
demonstrate his establishment in Canada. The Applicant relies on this Court’s
decision in Begum v. Canada (Minister of Citizenship and Immigration),
2013 FC 824:
52 I acknowledge that decision-makers
are presumed to have considered all of the evidence before them. Therefore,
they are not required to make specific reference to every piece of evidence in
the record. Failure to analyse evidence that contradicts a tribunal’s decision
will be found to be unreasonable only when the evidence that is overlooked is
critical, contradicts the tribunal’s conclusion and ultimately the reviewing
Court finds that the omission indicates the tribunal’s unwillingness to
consider the materials before it (Herrera Andrade v
Canada (Minister of Citizenship and Immigration), 2012 FC 1490 at para
9). However, “the more important the evidence that is not mentioned
specifically and analyzed in the agency’s reasons, the more willing a court may
be to infer from the silence that the agency made an erroneous finding of fact “without
regard to the evidence” (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35, [1998] F.C.J. No. 1425
(QL) (TD) at para 17).
[13]
I am unable to conclude that the Immigration
Officer failed to consider the documents that were submitted by the Applicant
in support of his H&C application, or that the documents contradicted any
of his findings. The Immigration Officer accepted that the Applicant and his
family have been living in Canada for over four years; the Applicant and his
wife are valued employees in their workplace and volunteer; the Applicant’s
children are doing well in school; the Applicant purchased a car, rents a home
and pays utility bills; and the Applicant has relatives in Canada.
[14]
This Court has held that a strong degree of
establishment is not in itself sufficient for an H&C application to
succeed. In Zambrano v. Canada (Minister of Citizenship and Immigration),
2008 FC 481, Justice Dawson wrote as follows:
74 In closing on this issue, I adopt the
comments of my late colleague Justice Rouleau in Chau v. Canada (Minister of Citizenship and Immigration, [2002] F.C.J. No. 119
(QL). There, he wrote at paragraphs 27 through 28:
The applicant in the present case
raised a number of arguments which, when considered together, amount to several
inconveniences by leaving Canada and submit an application abroad which is the
normal rule laid down by Parliament. As Lemieux J. rightly stated in Mayburov
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 953
(QL) at para. 39, inconvenience is not the criteria of undue hardship as laid
out in the guidelines. The material filed in support of her application leads
one to believe that the Applicant could well be a model immigrant and a welcome
addition to the Canadian community; she has shown herself to be law-abiding,
hard-working, enterprising and thrifty since her illegal entry into Canada. However, that is not the test as to whether or not there are sufficient
humanitarian and compassionate grounds to warrant exceptional relief. As
Pelletier J. stated in Irimie, [2000] F.C.J. No.
1906, supra at para. 26:
[...] To
make it the test is to make the H & C process an ex post facto screening
device which supplants the screening process contained in the Immigration Act
and Regulations. This would encourage gambling on refugee claims in the belief
that if someone can stay in Canada long enough to demonstrate that they are the
kind of persons Canada wants, they will be allowed to stay. The H & C
process is not designated to eliminate hardship; it is designated to provide
relief from unusual, undeserved or disproportionate hardship.
The burden which the applicant had to
discharge was whether the Immigration Officer’s decision not to grant her an
exemption for the inland processing of her permanent residence application was
unreasonable. When deciding this issue, the reviewing court cannot overstep its
role. In the absence of an error in the legal sense, the Court could not and
should not substitute its opinion for that of the Immigration Officer. The
perspective of the reviewing judge is to examine the evidence before the
Immigration Officer and determine whether there was absence of evidence
supporting her conclusion or whether her decision was made contrary to the
overwhelming weight of the evidence. I cannot reach that conclusion.
75 Similarly, the
applicants in this case appear to be hard-working, law-abiding, self-sufficient,
enterprising, thrifty, and charitable to others. They will face hardship if
forced to leave Canada. However, they have not established that the officer
erred in finding that such hardship would not be unusual and undeserved or
disproportionate.
[15]
The Applicant in this case, like those in Chau
and Irimie, appears to be hard-working, law-abiding, self-sufficient and
charitable to others. He may well be a model immigrant and a welcome addition
to the Canadian community. However, for the reasons expressed in Zambrano
and the cases cited therein, that is not in itself sufficient for an H&C
application to succeed.
C.
Whether the Immigration Officer’s assessment of
the hardship faced by the Applicant’s mother in law and brother in law was reasonable.
[16]
The Applicant refers to the Citizenship and
Immigration Canada Processing Manual (IP5) – Immigrant Applications in Canada Made
on Humanitarian or Compassionate Grounds, which provides as follows:
12.8. Consequences of the separation of
relatives
The removal of an individual from Canada may have an impact on family members who do have the legal right to remain (i.e.
permanent residents or Canadian citizens). Other than a spouse or common-law
partner, family members with legal status may include, among others, children,
parents and siblings. The lengthy separation of family members could create a
hardship that may warrant a positive Stage 1 assessment.
To evaluate such cases, officers should
balance the various interests at stake:
• Canada’s interest (in light of the legislative objective to
maintain and protect the health, safety and good order of Canadian society);
• the circumstances of all family members, with particular
attention given to the interests and situation of any dependent children with
legal status in Canada;
• the particular circumstances of the applicant’s child (age,
needs, health, emotional development);
• financial dependence involved in the family ties; and
• the degree of hardship in relation to the applicant’s
personal circumstances.
[17]
The Immigration Officer made the following observations
with respect to the Applicant’s mother in law and brother in law:
•
It was unclear whether the mother in law has
legal status (which is required).
•
The Applicant did not explain how the mother in
law’s condition creates hardship for the Applicant and his family – it may
create hardship for the brother in law.
•
Other care options such as a nursing home were
available.
•
A letter from the mother’s doctor stated only
that “It would be helpful if somebody stays with her
full time.”
[18]
Based on these observations the Immigration
Officer concluded that issues surrounding the mother in law’s health did not
amount to disproportionate hardship. I agree. As Justice Zinn wrote in Pan
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303:
17 In my view,
absent a finding of dependency by her mother and sister, the hardship
occasioned by the applicant’s removal, as difficult for the family as it will
no doubt be, cannot be said to go beyond the natural hardship of family separation
occasioned by the removal of a family member. The officer did consider the
evidence presented and concluded that “the applicant has not provided
sufficient evidence to show how her mother and sister are dependent on her”.
V.
Conclusion
[19]
For the foregoing reasons, the application for
judicial review is dismissed.
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