Date: 20050509
Docket: IMM-3145-04
Citation: 2005 FC 650
Ottawa, Ontario, May 9, 2005
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
BRENDA ABELLANEDA and
BEAUTEE LEICA ABELLANEDA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review made pursuant to section 72(1) of the Immigration and Refugee Protection Act, R.S.C. 2001, c.27, of the decision of an Immigration Officer (Officer) dated March 17, 2004, wherein the Officer refused the applicants' application to stay in Canada on humanitarian and compassionate (H & C) grounds while their application for landing was processed.
ISSUES
[2] The issues are as follows:
1. Did the Officer fail to consider the best interests of both children (the niece and the minor applicant)?
2. Did the Officer commit an error in concluding that the parents of the adult applicant could care for the niece in the absence of the adult applicant?
3. Did the Officer commit an error in concluding that the minor applicant has not attended school while in Canada?
[3] For the following reasons, I must answer these questions negatively. Therefore, this application for judicial review will be dismissed.
BACKGROUND
[4] The principal applicant and her child are both citizens of the Philippines. They both obtained visitors' visas on January 15, 2002, in order to come to Canada to help a relative (the adult applicant's sister) during an illness. Unfortunately, the applicant's sister passed away before the applicants arrived here, leaving behind her husband and her little girl (the niece).
[5] Despite the fact that the applicant's sister was already deceased, the applicants nevertheless travelled to Canada. In October 2002, they both applied to remain in Canada on humanitarian and compassionate (H & C) grounds. When their last visa extension expired in April 2003, they did not leave Canada as required, despite having both received checkout letter.
[6] On March 17, 2004, an Immigration Officer refused the H & C application filed by the applicants.
CONTESTED DECISION
[7] The Officer's decision reads as follows:
I make a negative decision in this case.
While I sympathize with the situation Ms. Abellaneda's brother-in-law finds himself in, I put more weight on the applicant's spouse in her home country.
Ms. Abellaneda has denied her daughter attending school for over two years and chose to remain knowing in Canada after being issued with a checkout letter.
She is not working, she was working with her spouse in Philippines. The principal applicant has siblings in the Philippines. Her parents, are not, in my opinion, extremely elderly, only 62 and 67 years of age. They should be quite capable of caring for their grand-daughter who is ten years of age in Canada while their son-in-law continues to work.
Based on all the evidence before me, there appears to be insufficient evidence as well as hardship to warrant the waiver of Act 11(1) in this case.
The application is refused.
ANALYSIS
[8] The appropriate standard of review, when dealing with an H & C application, was determined by the Supreme Court of Canada in Baker v. Canada (Minister of Immigration and Citizenship), [1999] 2 S.C.R. 817. Applying the pragmatic and functional approach, Madam Justice L'Heureux-Dubé established at paragraphs 57 to 62 that the standard of review was reasonableness simpliciter:
I turn now to an application of the pragmatic and functional approach to determine the appropriate standard of review for decisions made under s. 114(2) and Regulation 2.1, and the factors affecting the determination of that standard outlined in Pushpanathan, supra. It was held in that case that the decision, which related to the determination of a question of law by the Immigration and Refugee Board, was subject to a standard of review of correctness. Although that decision was also one made under the Immigration Act, the type of decision at issue was very different, as was the decision-maker. The appropriate standard of review must, therefore, be considered separately in the present case.
The first factor to be examined is the presence or absence of a privative clause, and, in appropriate cases, the wording of that clause: Pushpanathan, at para. 30. There is no privative clause contained in the Immigration Act, although judicial review cannot be commenced without leave of the Federal Court -- Trial Division under s. 82.1. As mentioned above, s. 83(1) requires the certification of a "serious question of general importance" by the Federal Court -- Trial Division before that decision may be appealed to the Court of Appeal. Pushpanathan shows that the existence of this provision means there should be a lower level of deference on issues related to the certified question itself. However, this is only one of the factors involved in determining the standard of review, and the others must also be considered.
The second factor is the expertise of the decision-maker. The decision- maker here is the Minister of Citizenship and Immigration or his or her delegate. The fact that the formal decision-maker is the Minister is a factor militating in favour of deference. The Minister has some expertise relative to courts in immigration matters, particularly with respect to when exemptions should be given from the requirements that normally apply.
The third factor is the purpose of the provision in particular, and of the Act as a whole. This decision involves considerable choice on the part of the Minister in determining when humanitarian and compassionate considerations warrant an exemption from the requirements of the Act. The decision also involves applying relatively "open-textured" legal principles, a factor militating in favour of greater deference: Pushpanathan, supra, at para. 36. The purpose of the provision in question is also to exempt applicants, in certain circumstances, from the requirements of the Act or its Regulations. This factor, too, is a signal that greater deference should be given to the Minister. However, it should also be noted, in favour of a stricter standard, that this decision relates directly to the rights and interests of an individual in relation to the government, rather than balancing the interests of various constituencies or mediating between them. Its purpose is to decide whether the admission to Canada of a particular individual, in a given set of circumstances, should be facilitated.
The fourth factor outlined in Pushpanathan considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H & C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather [page858] than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[9] In Baker, supra, at paragraph 75, the Supreme Court stated that in order to fall within the standard of reasonableness, "the decision-maker should consider the children's best interests as an important factor, given them substantial weight and be alert, alive and sensitive to them." It is with this principle in mind that the applicants argue that the Officer failed to properly take into account the best interests of both children.
[10] The applicants submit that the reasons of the Officer do not indicate that the best interests of the children were taken into account in a manner that is alert, alive and sensitive. They submit that it is in the best interests of both children not to be separated from each other since a strong emotional bond exists between them. It further contends that the adult applicant has assumed the role of mother to her niece and that such a separation would not be in the best interests of the child.
[11] Finally, the applicant argues that the Officer's conclusion to the effect that the adult applicant's parent can take care of her niece is not supported by evidence. To the contrary, she alleges that they are devastated by the loss of their daughter and need emotional assistance. She also urges that there is no indication that the minor applicant did not attend school while in Canada, and that this assumption was wrongfully made.
[12] The Respondent submits that it is not because the Officer did not expressly mention the relation between both children that he has not taken their best interests into consideration. It underlines that the Officer took into consideration the fact that the minor applicant's father is still in Philippines and that she has not attended school since her arrival in Canada. It also mentions that the Officer took into account the fact that the niece has a father and grandparents that live here with her in Canada and care for her.
[13] I agree with the applicants that the best interests of children must be taken into consideration when deciding whether an H & C application should be granted. However, the Supreme Court of Canada in Baker, supra, held at paragraph 75, that the children's best interests must not always outweigh, other considerations. It is stated that there may be other reasons for denying an H & C claim even when the children's best interests are considered.
[14] In the present case, I believe that it is in the best interest of the minor applicant to attend school and to be in regular contact with her father in the Philippines. To deprive her of such contact is certainly not in her best interest. The conclusions of the Officer that the minor applicant had not attended school since her arrival in Canada was not unreasonable because she and her mother travelled to Canada on a visitor's visa.
[15] The niece has a father and grandparents here in Canada who certainly love her and can take care of her. Even though I understand that it is difficult for a young child to lose her mother, I do believe that her father can offer emotional and financial support. That was the conclusion reached by the Officer and I find that he considered the best interests of both children.
[16] After considering all of the evidence, the Officer's decision and the parties' submissions, I cannot conclude that the Officer committed an error in refusing the applicant's H & C application.
[17] The parties did not propose questions for certification and none arise.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed. No question is certified.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3145-04
STYLE OF CAUSE: BRENDA ABELLANEDA and
BEAUTEE LEICA ABELLANEDA v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 3, 2005
REASONS FOR ORDER THE HONOURABLE
AND ORDER BY: MR. JUSTICE BEAUDRY
DATED: May 9, 2005
APPEARANCES:
Ricardo Aguirre FOR THE APPLICANTS
Stephen Jarvis FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ricardo Aguirre
Toronto, Ontario FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT