Date: 20171106

Docket: IMM-1911-17

Citation: 2017 FC 1003

[ENGLISH TRANSLATION]

Ottawa, Ontario, November 6, 2017

PRESENT: The Honourable Mr. Justice Roy

JUDGMENT AND REASONS

[1]               The applicants seek judicial review of an immigration officer’s decision that denied them the opportunity to apply for permanent residence from Canada, rather than from Venezuela, their country of citizenship. This application for judicial review, under section 72 of the Immigration and Refugee Protection Act (S.C. 2001, c. 27) [IRPA], must be decided on the basis of reasonableness. The parties agree on this point and the Court shares this opinion. There is a wealth of jurisprudence on the standard of review, and I will simply refer to Cadet v. Canada (Citizenship and Immigration), 2016 FC 1242.

I.                    Facts

[2]               This case is straightforward. The applicants are the grandparents of a granddaughter born in Canada a year ago, whose father is a permanent resident and whose mother is Canadian. Over the last few years, the applicants have travelled considerably, including many times to Canada as visitors, but also on cruises and to Europe. They came here in August 2016 as visitors and now seek permanent residence without having to apply from Venezuela (subsection 11(1) of the IRPA). To do so, they invoke humanitarian and compassionate considerations under section 25 of the IRPA.

[3]               In addition to the granddaughter’s parents, the applicants have a son who is studying in Canada and who is said to want to obtain permanent residence in this country.

[4]               Essentially, the application is based on the fact that the applicants have two sons in Canada, and they rely primarily on the granddaughter’s best interests, along with their establishment in Canada and the social and economic situation in Venezuela, to support their claim that there are sufficient humanitarian and compassionate considerations.

II.                 The decision under judicial review

[5]               The decision-maker attentively reviewed the situation. He gave reasons for the decision. He reviewed the three factors proposed by the applicants. First, he rejects that the applicants have a form of establishment in Canada. They do not speak either of the official languages and their ages (both are in their early sixties) are arguments against the possibility that they will be able to work. In fact, Ms. De Bermudez has not worked since 1984. Furthermore, in the last four years, there are thirty or so trips reported to Miami, Montréal, Aruba, and Europe, as well as several cruises, which demonstrates a certain financial ease that is reflected by the opportunity to take what appear to be extended vacations. Clearly, work is not the top priority. Ultimately, establishment in Canada cannot be an important factor.

[6]               With respect to the granddaughter’s best interests, there is no doubt that it is always best to reunite families rather than to separate them. This is not denied. However, the child’s best interests must be considered, and not those of the parents who testified that they appreciated the grandparents’ help. The immigration officer considered that, at such a young age, it could not be demonstrated that the granddaughter’s best interests were in themselves humanitarian and compassionate considerations sufficient to have the grandparents apply for permanent residence from Canada.

[7]               Finally, even though the social and economic situation in Venezuela has seriously deteriorated in recent years, the applicants’ position would mean that any person in Canada who is outside their country of citizenship where the social situation has become difficult should benefit from humanitarian and compassionate considerations to stay in Canada. This, of course, is not the law. Indeed, the officer expressed some sympathy toward the applicants and reminded them that they could be sponsored, or could even benefit from extended visitors’ visas to be able to share the lives of their family and granddaughter in Canada.

III.               Analysis

[8]               Some tend to read a remedy for all ills into the text of subsection 25(1) of the IRPA. As soon as a degree of sympathy is raised, a favourable decision would be sought because this sympathy would become a humanitarian and compassionate consideration.

[9]               As the Supreme Court of Canada noted in Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61; [2015] 3 SCR 909 [Kanthasamy], subsection 25(1) of the IRPA, which the applicants rely on in this case, was not “intended to be an alternative immigration scheme” (para 23). Subsection 25(1) confers only a discretionary power to exempt a foreign national from the obligations of the IRPA if there are sufficient humanitarian and compassionate grounds. These humanitarian and compassionate grounds appear to be the ones recognized by the Court in Kanthasamy:

[13]      […] The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act”: p. 350.  This definition was inspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes of another, sympathy”: Chirwa, at p. 350.  The Board acknowledged that “this definition implies an element of subjectivity”, but said there also had to be objective evidence upon which special relief ought to be granted (Chirwa, at p. 350).

[10]           The Court’s decision in Kanthasamy sought first and foremost to put into context a test applied within the guidelines that was broadly used by officials in these matters and that was likely to substitute for the wording of the statute. As such, the guidelines seek “unusual and undeserved” or “disproportionate” hardship; instead of regularly applying these adjectives to a given situation as the administrative decision-maker did, the Court reiterated that the guidelines were descriptive. They did not create three new thresholds separate and apart from the humanitarian and compassionate considerations already provided in subsection 25(1) of the IRPA. The fact remains that the threshold under the IRPA is high.

[11]           In fact, the Court recognizes that “[t]here will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1)” (para 23).

[12]           This shows that the child’s interest to have its grandparents in the area, while desirable,  by itself does not rise to the level of sufficient humanitarian and compassionate considerations, according to the immigration officer. Likewise, the fact that the applicants have to leave when their visitors’ visas expire, whether the visas are brief or extended, involves its share of hardship, but it is not different from the hardship encountered by any person who prefers to stay in Canada, but has no status.

[13]           In my view, the immigration officer’s findings are reasonable. The reviewing court has a limited role. It is certainly not to substitute the Court’s discretion for the discretion conferred by Parliament to the administrative decision-maker. The role of the review court is to monitor the lawfulness of administrative decisions. In fact, a decision that is unreasonable is by definition unlawful (Mission Institution v. Khela, 2014 SCC 24; [2017] 1 S.C.R. 502, at para 74). The administrative decision must have a defect in justification, transparency, or intelligibility, before it is appropriate to intervene. Similarly, there would be grounds to intervene if the decision did not fall within the range of acceptable outcomes, in respect of the facts and the law. The burden is on the applicant on judicial review. 

[14]           No such thing was established in this case. I do not at all deny that there may be cases where the grandparents’ presence would be in the child’s best interests and that this would have considerable weight. Indeed, I share the opinion of my colleague Diner J., who wrote in Zlotosz v.  Canada (Immigration, Refugees, and Citizenship), 2017 FC 724 that “(t)he mere fact that the Officer found that the family has ‘forged strong ties’ and are very close does not render a positive outcome a foregone conclusion. This is particularly so in the circumstances where the applicants are neither the child’s primary caregivers nor financial providers (Mack at paras 18, 20; Louisy at para 13)” (para 30). This is certainly the case here. It was not it any way alleged, let alone demonstrated, that these grandparents played a role that was as paramount as the role of the parent caregivers, raising their granddaughter and meeting her needs.

IV.              Conclusion

[15]           The case before us does not in any way require us to consider the situation of a child born in Canada who must follow its parents to a country that has a particularly difficult economic and social situation. Rather, it is a matter of wishing that the grandparents could share the child’s life in Canada. As desirable as that may be, the immigration officer’s finding that this does not amount to sufficient humanitarian and compassionate reasons is not at all unreasonable. The application for judicial review is therefore dismissed. The parties and the Court agree that there is not a serious question of general importance to be certified.

JUDGMENT in docket IMM-1911-17-17

THIS COURT ADJUDGES that this application for judicial review is dismissed. No question is certified.

“Yvan Roy”

FEDERAL COURT

SOLICITORS OF RECORD

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