Date: 20020531
Docket: IMM-3065-01
Neutral citation: 2002 FCT 629
Toronto, Ontario, Friday, the 31st day of May, 2002
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
AMIR HEYDARZADEH, MAHBOOBEH SAFAGO,
MILAD HEYDARZADEH, and MOHAMMAD HEYDARZADEH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] The judicial review of the decision of N. Cutillo ("Visa Officer") dated June 5th, 2001. In her decision, the Visa Officer decided that no exemption would be extended to the Applicants for inland processing of their application for permanent residence in Canada.
Facts
[2] Mr. Heydarzadeh and Mrs. Mahboobeh Safago are husband and wife, and the parents of three children. Their sons, Milad and Mohammad, are Applicants before this Court. A third son was born in Canada on December 2, 1999.
[3] The Applicants are citizens of Iran. They arrived in Canada in 1996 and advanced Convention Refugee claims. These claims were rejected by the Immigration and Refugee Board, Convention Refugee Determination Division on April 1, 1997.
[4] Subsequently, the Applicants sought an assessment of risk relative to return to Iran, as members of the Post Determination Refugee Claimants in Canada class ("PDRCC"). On February 9th, 1998, a determination was made that the Applicants were not members of the PDRCC class.
[5] The Applicants then submitted an Application pursuant to the Immigration Act, R.S.C. 1985, c. I-2, as amended, s. 114(2) for inland processing of their application for permanent residence on the basis of humanitarian and compassionate grounds ("humanitarian and compassionate application"). The first application was denied on November 3rd, 1999.
[6] A second humanitarian and compassionate application was submitted on December 19th, 1999. This application referred to the birth of the Canadian born child on December 2nd, 1999. Again, a risk assessment was conducted and in an opinion dated October 16th, 2000, the
Post Determination Claims officer determined that the Applicants would not be at risk if returned to Iran.
[7] The Applicants availed of an opportunity to make representations relative to this risk assessment and submissions were filed by counsel for the Applicants on October 29th, 2000.
[8] The risk assessment and responding materials were assessed by the Visa Officer and in her letter dated June 5th, 2001, the Visa Officer denied the Applicant's application on humanitarian and compassionate grounds.
Submissions
[9] In the present application, the Applicants argue that the Visa Officer failed to give proper and due consideration to the best interests of their Canadian born child, in accordance with the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[10] The Applicants also argue that in her decision, the Visa Officer paid scant attention to the interests of the Canadian born child, and rely on the recent decision of the Federal Court of Appeal in The Minister of Citizenship and Immigration v. Legault, 2002 FCA 125. The Applicants argue that the Visa Officer failed to address the bests interests of the Canadian born child, and of their other children, with "a great deal of attention" which, according to the recent
decision by the Federal Court of Appeal, is the requisite duty imposed upon a visa officer in assessing humanitarian and compassionate applications.
[11] The Respondent argues that, on the basis of the materials submitted with the Applicant's application for inland processing, the Visa Officer properly and adequately did address the best interests of the child. Her decision was reasonable and was properly made.
[12] The decision of a Visa Officer, when exercising discretion, pursuant to s. 114(2) of the Act, is to be reviewed on a standard of reasonableness, subject always to the requirements of procedural fairness; see Baker, supra.
[13] There was nothing on the record in this case to show that there was a breach of procedural fairness in the manner in which the Visa Officer handled the Applicant's application.
[14] The notes maintained by the Visa Officer record her consideration of the Canadian born child as follows:
I have also looked at the fact that Mr. Heydarzadeh and Ms. Safago now have now a 15 months old Canadian born child and it is to be noted that the child is at such a young age where he can adapt to a new lifestyle in Iran.
[15] The Applicants argue that this is mere lip service to the best interests of the child, while the Respondent submits that this is a proper and adequate assessment of those best interests
having regard to the materials submitted by the Applicants in their humanitarian and compassionate application. I turn now to the relevant portions of the application.
[16] On December 19th, 1999, counsel for the Applicants forwarded the second humanitarian and compassionate application on behalf of the Applicant. The covering letter provided as follows:
Please find enclosed the original and two copies of H & C application forms for the above-named, a proof of payment certificate, and supporting documents. In addition, their baby, a son as yet unnamed, was born on December 2, 1999.
[17] The Applicants' reply to the risk assessment opinion in 2000 was communicated by counsel on their behalf in a letter dated October 28, 2000. The relevant portion of that letter provides as follows:
You did not consider the application, along with the submissions and documentary evidence, filed in December 1999. The cover letter to that application indicated that a son was born in December, 1999. It is necessary to consider the effect of the child on the threshold of persecution. It is submitted that there is an increased likelihood of persecution if the family arrives in Iran as deportees with a Canadian born child, especially in light of the documentary evidence submitted with the 1999 application that indicated that there was a crackdown on those perceived as being political opponents. Secondly, according to the Federal Court, Trial Division(Nadesalingam v. M.E.I.) a young child(ren) has an effect on the ability of the parents to avoid persecution in general, and particularly, the effect it has on the existence of an IFA. I have enclosed copies of the birth certificate and statement of live birth.
[18] In my opinion, the Visa Officer's assessment of the best interests of the child was appropriate having regard to the nature of the submissions made on his behalf.
[19] I refer to the reasons of the Federal Court of Appeal in Legault, supra, at paragraph 12.
In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada (see Langner v. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.), leave to appeal refused, SCC 24740, August 17, 1995.
[20] The submissions of the Applicants concerning the conclusion reached by the Visa Officer, after she weighed the evidence before her, appears to be an invitation for this Court to substitute its opinion for that of the Visa Officer.
[21] That is not the role of the Court in an application for judicial review; see Legault, supra, para.11.
[22] In Mann v. The Minister of Citizenship and Immigration, 2002 FCT 567, Justice Gibson applied Legault, supra. He noted his inability to weigh the factors considered by the Visa Officer and in paragraph 11, said as follows:
... That being said, I cannot conclude that the Immigration Officer ignored or misinterpreted evidence before her, took into account irrelevant matters or failed to consider the best interests of the applicant's Canadian born child. I am satisfied that the Immigration Officer's notes quoted earlier in these reasons, reflect consideration of all of the factors placed before her by the applicant and that she was bound to consider. That I might have weighed those factors differently is not a basis on which I might grant this application for judicial review.
[23] In my opinion, the same reasoning applies in the present case. The decision of the Visa Officer was reasonable, having regard to the materials submitted by the Applicant.
[24] There is no reviewable error in the decision under review in the present case, and the application for judicial review is dismissed.
[25] Counsel advised that there was no question for certification.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3065-01
STYLE OF CAUSE: AMIR HEYDARZADEH, MAHBOOBEH SAFAGO,
MILAD HEYDARZADEH, and MOHAMMAD HEYDARZADEH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MAY 30, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
APPEARANCES BY: Mr. Ravi Jain
For the Applicants
Ms. Neeta Logsetty
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
Barristers and Solicitors
2200-121 King Street West
P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020531
Docket: IMM-3065-01
BETWEEN:
AMIR HEYDARZADEH, MAHBOOBEH SAFAGO, MILAD HEYDARZADEH, and MOHAMMAD HEYDARZADEH
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER