Docket: IMM-4063-16
Citation:
2017 FC 308
[ENGLISH
TRANSLATION]
Ottawa, Ontario, March 23, 2017
PRESENT: The Honourable Mr. Justice LeBlanc
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BETWEEN:
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JOCELYNE
FILS-AIMÉ
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
The applicant, a Haitian citizen, filed an
appeal for judicial review of a decision made by an immigration officer [the
Officer] who, on August 31, 2016, rejected her permanent residency application
for humanitarian and compassionate grounds under the terms subsection 25(1) of
the Immigration and Refugee Protection Act, SC 2001, c. 27 [the Act].
[2]
The applicant arrived in Canada in May 2015 in
order to assist one of her sons, Vladimir Gelin, 37 years old and a Canadian
Citizen, who, between 2011 and 2013, was a victim of two car accidents that
left him with cervical and lumbar sprains. At that time, the applicant had a
temporary resident visa that was issued in 2012 and valid until February 25,
2017. Until her arrival in Canada, the applicant had always lived in Haiti,
where her other son, Jean Richard Nicholas, her daughter, Nedji Mondésir, and
her grandson, Wendji Mondésir, also live.
[3]
The applicant’s permanent residency application
is essentially based on the needs of her son, Vladimir Gelin, who the applicant
claims is the backbone of the entire family. The applicant feels that
her presence in Canada, as well as the potential presence of her daughter and
grandson, are necessary to help Vladimir.
[4]
This did not convince the Officer, who noted:
a. the lack of details on the care that the applicant provides
to her son, whose condition is otherwise reportedly stable, and on the
potential presence of other people in Vladimir’s family who could provide him
with the support required by his condition;
b. that
it is Vladimir who is financially supporting his mother while she is in Canada,
which suggests that he has re-entered the job market and that as a result, the
need to have the applicant around is reduced;
c. that
Vladimir financially supports the applicant to the detriment of his own health,
which does not support the applicant’s permanent residency application; and
d. that
the applicant has not shown how she has reportedly integrated into society
since her arrival in Canada.
[5]
The applicant is essentially accusing the
Officer of having failed to review her application from the perspective of the
best interests of the child, as required, she claims, even though Vladimir is
37 years old, by Kanthasamy v. Canada (Citizenship and Immigration), 2015
SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy].
[6]
I cannot agree with this point of view.
[7]
From the outset, it is important to recall that
the Officer’s decision must be assessed by the Court in accordance with the
standard of reasonableness, which involves considerable restraint with respect
to the Officer’s findings of fact and mixed fact and law (Kisana v. Canada
(Citizenship and Immigration), 2009 FCA 189 at para 18 [Kinasa]; Basaki
v. Canada (Citizenship and Immigration), 2015 FC 166 at para 18).
[8]
It is also important to recall (i) that an
exemption granted under section 25 of the Act constitutes an exceptional
measure, as the Act stipulates that the permanent resident status must be
requested outside Canada, (ii) that decisions made in this regard are highly discretionary,
(iii) that it is not up to the administrative decision-maker to inform
applicants of any gaps in the evidence so that they can fill them in, and (iv)
that it is certainly not up to the Court to re-weigh the relevant factors when
it is reviewing the exercise of this discretionary power (Abeleira v. Canada
(Citizenship and Immigration), 2015 FC 1340 at paras 12, 14 and 15; Nicayenzi
v. Canada (Citizenship and Immigration), 2014 FC 595 at paras 15, 16 and 25;
Daniel v. Canada (Citizenship and Immigration), 2011 FC 797 at para 11; Abdirisaq
v. Canada (Citizenship and Immigration), 2009 FC 300 at para 3; Kinasa
at para 45).
[9]
In the case at hand, the argument based on Kanthasamy
constitutes a false debate, since the Officer did in fact consider the exemption
request from the perspective of Vladimir’s situation and that the respondent
rightly acknowledges that under some circumstances, the principle of the best
interests of the child can be applied in cases where “the
child” in question is over the age of 18.
[10]
Ultimately, and more accurately, the applicant
is accusing the Officer of having not given enough weight to Vladimir’s medical
condition and that she would be the only person capable of taking care of him. However,
in light of the evidence that she had available to her, I cannot say that the
Officer’s conclusions are unreasonable in this regard. On the one hand, the
medical evidence on file dates back to 2013 and 2014, and nothing supports how
counsel for the applicant read it at the hearing for this remedy. On the other
hand, as the Officer noted, the evidence provides no details on the nature and
scope of the care that Vladimir requires. Finally, as the Officer also noted,
there is nothing in the evidence to indicate whether Vladimir’s family would be
able to provide him with the support that his condition requires, regardless
of what it is. Yet, the applicant only arrived in Canada in May 2015, nearly
two years after Vladimir’s second accident occurred. Supposing that the
situation required it, someone other than his mother must have been caring for
him during that time. In short, the Officer decided that the evidence for
Vladimir’s medical condition and the care required were vague, and could only
receive little weight. I cannot say that she erred in drawing such a
conclusion.
[11]
In any case, it is not up to the Court to
re-weigh the evidence that the administrative decision-maker had before her and
to draw its own conclusions, namely with respect to the weight to be given to
the various relevant factors in reviewing an exemption request under the terms
of subsection 25(1) of the Act. That is not its role (Pathinathar v.
Canada (Citizenship and Immigration), 2015 FC 1312 at para 17, citing Negm
v. Canada (Citizenship and Immigration), 2015 FC 272 at para 34; Paniagua
v. Canada (Citizenship and Immigration), 2008 FC 1085 at para 8; Orellana
Ortega v. Canada (Citizenship and Immigration), 2012 FC 611 at para 14).
[12]
The applicant did in fact attempt to further
develop and improve her case, namely with respect to Vladimir’s current
physical health and the nature of the assistance that she provides him,
producing additional evidence in support of this remedy. However, as the
respondent rightly notes, since the Officer did not have this evidence, the
Court cannot consider it (Association of Universities and Colleges of Canada
v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at
para 19).
[13]
Finally, there are no merits to the applicant’s
argument whereby the Officer, if she had reservations about the quality of the
evidence provided in support of the exemption request, had a duty to report any
gaps in it to the applicant and allow her to remedy them. The Officer was not
obliged to do so (Kinasa at para 45).
[14]
As a result, this application for judicial review
shall be dismissed. Neither party asked for a question to be certified for the
Federal Court of Appeal, nor do I see any matters to be certified.
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