Date: 20000608
Docket: IMM-2218-99
BETWEEN:
MAYBUROV MAKSIM,
MAYBUROV OLGA,
BALAN OLEG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
INTRODUCTION
[1] The central issue in this judicial review proceeding concerns the reasonableness of a refusal of a requested humanitarian and compassionate exemption (H & C) and the factors or elements and their application, established in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, an immigration officer takes into account when considering the interest of children in the context of a decision whether such an exemption should be granted to permit the inland processing of the parents for permanent residence in Canada.
FACTUAL BACKGROUND
[2] All of the applicants were born in Russia. Maksim Mayburov is married to Olga Mayburov; Oleg Balan is her son born of a previous marriage. They immigrated to Israel in early 1993 and came to Canada on January 26, 1996; also accompanying them to Canada was Remilov Rozalia, Mrs. Mayburov"s mother. They made a refugee claim based on membership in a social group " "outsiders by virtue of their ethnic and religious differences".
[3] On July 17, 1996, their son Max was born in Canada. On February 18, 1999, their refugee claim was denied by the Refugee Division.
[4] Prior to the Refugee Division decision, the applicants had filed through their solicitor on September 23, 1997, applications for permanent residence in Canada seeking at the same time an exemption to permit inland processing in Canada.
[5] The record shows two applications for permanent residence: one by Mrs. Mayburov claiming her husband and her two sons as dependants (although she has been unemployed since arriving in Canada); the other application is by Maksim Mayburov; he has been employed since October 1996 as a machinist; he lists his wife and two sons as dependants and said this in his application as his reasons for seeking the exception for processing within Canada:
| My family and I have already had to resettle ourselves twice in the last five years. We were displaced from Moldova by the ethnic tensions and civil war which followed the dissolution of the U.S.S.R. We went to Israel because it was immediately accessible due to my wife"s Jewish roots. However, as we are not practising Judaism we found that we did not wish to remain there. |
[6] In terms of excessive hardship, Mr. Mayburov said:
| The development of both my stepson and Canadian son would be adversely affected greatly. And I would have great difficulty in again finding work which would enable me to provide my family with the necessities of life. |
[7] In substance, the record also indicates the following:
| (1) their applications for permanent residence were transmitted to Citizenship and Immigration Canada by their solicitor who said, in a letter dated October 4, 1997, "Max is the principal applicant. He applies as an independent immigrant who is a machinist by occupation. Critical to the assessment of his application is... a letter... from Sunrise Engineering and Manufacturing Inc." ("Sunrise"). Their solicitor submitted a point assessment which yielded 76 points " 10 being on account of arranged employment from Sunrise; |
| (2) their solicitor also addressed humanitarian and compassionate grounds focussing on their displacement from Moldova. He said requiring them to apply for visas from outside Canada would displace them for a third time "in about five years and cause hardship on both the children and the parents"; |
| (3) the applicants were interviewed by Immigration Officer E. Peach-Tanner (the "immigration officer") on February 24, 1998. Prior to the interview, their solicitor, in a letter dated February 20, 1998, said the gist of the humanitarian and compassionate grounds were twofold: |
| (a) their Canadian child who "is, quite naturally, totally dependant upon his parents. And he should not have to go through the dislocation of having to leave Canada with them while they apply for immigration from outside of Canada"; |
| (b) their flight from Moldova, with Israel only being a place of temporary refuge. |
[8] In a written supplement to their February 24, 1998 interview, the applicants emphasized to the immigration officer their son was born in Canada; Balan, the eldest son is in high school and they had suffered deeply in the past. They mention Mrs. Mayburov"s sister is in Canada. Mrs. Mayburov has no other siblings and her mother is in Canada.
[9] Their solicitor made a further submission to CIC on October 2nd, 1998, expanding on the H & C considerations. He reiterated the points previously made about their having been displaced from Moldova, having been unable to effectively resettle since and their Canadian child would suffer dislocation if they had to leave and apply to immigrate from elsewhere. The new points made were that (1) the applicants spoke neither Moldovan or Hebrew; (2) they have substantial roots in Canada because Mrs. Mayburov"s mother is now a permanent resident in Canada and her sister is now a Canadian citizen.
[10] The record also indicates Mr. Mayburov"s employment offer from Sunrise could not be validated. Human Resources Canada determined on November 4, 1998, that his skills were readily available in Canada and his prospective employer had not provided evidence that they had sought Canadian or permanent residents for the position.
THE IMMIGRATION OFFICER"S DECISION
[11] After the February 24, 1998 interview, the immigration officer made a note to file that day. She summarized the applicants" submissions: "like home here; have a great job here; can live like human beings here; can carry on other interests here, have Canadian born child, Max; their oldest son Oleg is happy here; cannot apply outside Canada as even to go to the USA would affect their conditional orders/would perhaps not qualify for USA visa to enter/ and would perhaps not be able to re-enter Canada".
[12] The immigration officer noted, except for the outstanding Post Refugee Claims Determination claim ("PDRCC") of severe sanctions, she felt after reviewing all other aspects/criteria that there were insufficient grounds to process inland. She indicated that from her assessment under the point system "subject would not qualify as an independent unless he were to receive job validation for the job he holds as a machinist" [my emphasis ]. However, she also pointed that if Mr. Mayburov could produce a job validation indicating his skills are needed and would not displace Canadians or permanent residents she would reconsider this in the subsection 114(2) application.
[13] I note from the record, the immigration officer advised by letter dated September 16, 1998, the applicants" solicitor of her preliminary findings.
[14] On April 7, 1999, CIC Vancouver determined the applicants" PDRCC claim and found that they would not be subjected to serious risk to their lives, extreme sanctions or inhumane treatment if they were required to leave Canada and return to Israel.
[15] On April 13, 1999, the immigration officer completed her H & C assessment noting the Refugee Division had rejected their claim and so did CIC in respect to their PDRCC. The immigration officer said she had received the opinion from the Post Refugee Claim Determination Officer, had reviewed it as well as the underlying information and found it reasonable.
[16] Regarding the employment validation for work in Canada, she indicated:
| Today, (13Apr99) I phoned the HRDC to confirm whether or not subject had been approved for validation. I was informed that in fact he was refused for same on 04 November 1998 for Sunrise Engineering and Manufacturing as the skills for this position are readily available in Canada and the employer (Sunrise) had not provided evidence that they had sought Canadians or Permanent Residents for the position. Subject would have been notified of this decision by HRDC |
.
[17] As to their son Max, she said this:
| I have taken into consideration the fact that subject has a Canadian born child. Having this child in Canada while their immigration status was undetermined and they possibly faced the requirement of having to leave Canada, was a decision they took. It would also be their decision if they were to leave their child in Canada with their relatives. The parents are free to decide what would be in the best interests of their Canadian child. Having considered all the information provided by the applicants and that presented by their counsel on their behalf, I do not find that there are sufficient humanitarian and compassionate grounds to warrant an exemption of the visa requirement. I recommend that they apply from abroad. |
ANALYSIS
Applicable standard of review
[18] The applicants" challenge is to the substance or merits of the H & C finding. In this context, since Baker, supra , the appropriate standard of review for such a decision is reasonableness simpliciter:
| [62] 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 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 . [emphasis mine] |
[19] Madam Justice L"Heureux-Dubé also referred to the reasons rendered by Mr. Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam Inc ., [1997] 1 S.C.R. 748, where he stated at pages 776-777:
| [para 56] I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. |
| [para 57] The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory J. observed in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 963, "[i]n the Shorter Oxford English Dictionary 'patently', an adverb, is defined as |
| 'openly, evidently, clearly'". This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. See National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1370, per Gonthier J.; see also Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 47, per Cory J. But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident. [emphasis mine] |
The Ministerial Guidelines
[20] Madam Justice L"Heureux-Dubé in Baker, supra , made a number of comments on the discretion of visa officers. Looking at the objectives of the Act as the contextual approach requires, she focussed on the importance of the Ministerial Guidelines by saying:
| [72] Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power. [emphasis mine] |
[21] In March 1999, the Department of Citizenship and Immigration released new guidelines for use in considering applications on humanitarian and compassionate grounds. The immigration officer"s report to file is spread over a year, starting on February 24, 1998 and concluding on April 13, 1999. In these circumstances, it is quite clear that the old guidelines, contained in Chapter 9 of the Immigration Manual: Examination and Enforcement remained applicable in this case. The relevant portion reads:
| 9.07 HUMANITARIAN AND COMPASSIONATE GROUNDS |
| 1) Officers to Examine the Existence of Humanitarian and Compassionate Circumstances |
| A114(2) also provides for discretion for reasons related to the existence of humanitarian and compassionate considerations. Having assured himself/herself that a client who requests consideration under A114(2) does not fall within a Public Policy situation (see IE 9.06), officers should then examine the existence of humanitarian and compassionate circumstances. |
| 2) When Humanitarian and Compassionate Grounds Exist |
| a) Humanitarian and compassionate grounds exist when unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada. |
| b) The fact that the person is self-sufficient in Canada would not normally constitute grounds for a positive recommendation on humanitarian grounds (in the same way that it would not be sufficient in order to deal with someone under, e.g., the Illegal de Facto Resident Policy). There must be other factors such that refusal of the request would be unusually harsh. |
| c) To assist officers in identifying situations which may warrant a humanitarian and compassionate response, the examples outlined below have been provided. These should not be considered as exhaustive. |
| 3) Situations involving Family Dependency |
| a) The requirement to leave Canada and to apply abroad in the normal manner could result in undue hardship for some close family members of a Canadian resident because of the would be immigrant"s financial or emotional dependency on family in Canada. These could be parents, children or even persons not necessarily related by blood, but who are a de facto part of the family. Although spouses are not mentioned as they fall under Public Policy situations, the situation of spouses where there has been a sponsorship withdrawal, will be examined on compassionate grounds (IE 9.14(3)). |
| b) Officers should consider the reason why the person did not apply abroad as required by A9(1), the degree of independence exhibited before coming to Canada, the existence of family or other support in the home country. Issues such as the cost or inconvenience of having to return home to apply in the normal manner would not generally constitute hardship. Having weighed these factors, officers should be able to conclude whether favourable consideration is warranted. [emphasis mine] |
[22] I note section 9.07 contains a cross-reference to section 9.06 of the Manual which deals with public policy situations including the outline of the spousal policy; the illegal de facto residents policy, the long-term commitment to Canada policy and the severe sanctions or inhumane treatment in country of origin. What this means is that the guidelines must be read as a whole in order to determine the compliance by an immigration officer.
Subsidiary issues raised by the applicants
[23] The applicants raised a number of subsidiary issues in addition to their main ground related to the consideration of their child"s interests. After review, I find no merit in these subsidiary grounds.
[24] The applicants argued the immigration officer did not make an independent assessment of the PCDO"s opinion. I am satisfied, through her report to file, she did review both the opinion and the underlying information.
[25] There is no merit to the applicants" argument that the immigration officer did not consider the separate application for permanent residence (and underlying H & C considerations) of Mrs. Mayburov and her son. Clearly, the immigration officer considered the H & C application of the applicants as a family unit and the assessment of the applicants proceeded on those lines. The refusal letter was addressed to all three applicants. Moreover, their solicitor had specifically indicated Mr. Mayburov was the principal applicant not Mrs. Mayburov.
[26] The applicants raised an issue about the validation of Mr. Mayburov"s employment offer from Sunrise. The applicants argued Mr. Mayburov was in fact employed by Sunrise and his employment there did not affect the employment opportunities of Canadians or permanent residents in Canada. The fact is that Human Resources Canada has determined Mr. Mayburov"s job offer could not be validated and this judicial review proceeding cannot be an appeal from that decision . I do not interpret the immigration officer"s decision to be a finding the applicants would not qualify for permanent residence in Canada if they applied from outside Canada although in her memo to file made in February 1998 she did indicate this:
| From my assessment under the point system, subject would not qualify as an independant unless he were to receive job validation for the job he holds as a machinist. As he presently does not hold this validation he does not qualify. |
[27] There is nothing wrong with this comment if regard is had to its context. The issue of Mr. Mayburov"s being able to reach 70 points in the independent category was specifically raised by their solicitor who estimated he has 76 points but only 66 if he did not come into the arranged employment category. That was the basis of her note.
[28] Quite apart from that, as it is explained in the guidelines, self-sufficiency does not, in itself, constitute a ground for a positive recommendation on humanitarian and compassionate grounds. I find the comments of my colleague Nadon J. in Tartchinska v. Canada (M.C.I.), [2000] F.C.J. No. 373 to the point:
| [20] The Applicants argue that the decision-maker took irrelevant considerations such as their unauthorized employment into account. In my view, this is neither irrelevant nor an error of law. First of all, although the Guidelines with respect to Humanitarian and Compassionate Grounds are not binding, they nevertheless clearly indicate that self-sufficiency does not, in itself, guarantee or lead to a positive outcome in a humanitarian and compassionate grounds application: "The fact that the person is self-sufficient in Canada would not normally constitute grounds for a positive recommendation on humanitarian grounds... There must be other factors such that refusal of the request would be unusually harsh" (9.07(2)(b) of the Guidelines). Thus, the pivotal factor in such an application is whether "unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada" (9.07(2)(a) of the Guidelines). [emphasis mine] |
[29] I conclude by referring to the immigration officer"s refusal letter where she said this:
| This decision must not be interpreted as a refusal of your application for permanent residence. It is instead, a decision not to allow you as an exception to the rule, to make an application in Canada. If you wish to pursue an application you must do so through a visa officer outside of Canada. [emphasis added] |
Main issue: the interest of the Canadian born child
[30] In analysing the scope of the discretion conferred upon an immigration officer, Madam Justice L"Heureux-Dubé said at page 860 in Baker, supra, that children"s rights and attention to their interests are central humanitarian and compassionate values in Canadian society. As a result, a reasonable exercise of the discretion requires "close attention to the interests and the needs of children".
[31] In Baker, supra, L"Heureux-Dubé J. found the immigration officer"s exercise of discretion to be unreasonable because: (1) the officer was "completely dismissive of the interests of Ms. Baker"s children" (page 859); (2) failed to "give serious weight and consideration to the interests of the children" (page 859); (3) was not "alive, attentive or sensitive to the interests of Ms. Baker"s children; and (4) "did not consider them as an important factor in making the decision" (page 863). L"Heureux-Dubé J. added this at page 864:
| That is not to say that children"s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children"s interests are given this consideration. |
[32] Madam Justice L"Heureux-Dubé then identified some factors to be taken into consideration in making the determination of the children"s interests:
| (a) there is an obligation to take seriously and place important weight on keeping children in contact with both parents, if possible, and maintaining connections with close family members (page 860); |
| (b) childhood is entitled to special care and assistance and requires a consideration of the hardship that may be caused to them by a negative decision (page 863) including "sending people to places where they no longer have connections". |
[1] In Baker, supra, L"Heureux-Dubé J. looked as a separate issue at the hardship a return to Jamaica would cause Ms. Baker. She had been in Canada 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.
[2] Recently, I had the opportunity to deal with a similar case in Garasova v. Canada (M.C.I.) (unreported decision, rendered on November 2, 1999, file IMM-2674-98). In that case, the applicant, Ms. Garasova was married to a Canadian citizen with whom she had a child, born in Canada. Facing a marriage breakdown, her husband had withdrawn his sponsorship. In reaction to this withdrawal, the applicant filed an application pursuant to subsection 114(2) of the Act and section 2.1 of the Regulations requesting inland processing on humanitarian and compassionate grounds.
[3] My conclusions were:
| [39] Not only does Baker require a more focussed approach by immigration officers, it places a new and more "hands-on" responsibility by a reviewing judge. A reviewing judge must take a "hard look" at the H & C decision, must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination in the evidentiary foundation. |
| [40] Reviewing the decision of the Immigration Officer in this case I am struck by the fact the analysis of humanitarian considerations is exclusively in respect of the applicant, Ingrid Garasova herself. In those reasons, there is an absence of consideration of the interests of either the Canadian or Czech born child. |
| [41] Such an approach by the immigration officer cannot be a reasonable exercise of power which requires a close attention to the interests and needs of children because children's rights and attention to their interests are central humanitarian and compassionate values in Canadian society. |
| [emphasis mine] |
Application to this case
[4] The burden which the applicants had to establish was whether the immigration officer"s decision not to grant them an exemption for the inland processing of their permanent residence application was unreasonable. I observe that Parliament, in subsection 9(1) of the Act, established as a requirement that such applications must normally be made and processed abroad. The Minister, through the Ministerial Guidelines, has indicated to immigration officers that such an exception to the normal rule should only be granted for public policy or humanitarian and compassionate reasons. In terms of humanitarian and compassionate reasons, the Ministerial Guidelines lay down the criteria of unusual, undeserved or disproportionate hardship . The Minister gives examples.
[5] When deciding the issue of whether such a decision is unreasonable, the reviewing court cannot overstep its role. This is not an appeal but a judicial review. I cannot review the evidence and substitute my opinion for that of the immigration officer. The perspective of the review judge is to examine the evidence before the immigration officer and determine, in this case, whether there was absence of evidence or was the decision made contrary to the overwhelming weight of the evidence. I cannot reach that conclusion.
[6] The evidence before the immigration officer was that of a complete family unit with a young Canadian child, now close to four years old; their other son will be 19 years old in a few months. The applicants are citizens of Israel and the matter of their fears of returning there have been dealt with in two separate decisions.
[7] The applicants raised a number of arguments which, when all considered, amount to several inconveniences of leaving Canada to make a landing application abroad which is the normal rule laid down by Parliament. Inconvenience is not the criteria of undue hardship as laid out in the guidelines and in several decisions of this Court on stay of removal order applications dealing with irreparable harm. Specifically, in terms of the Canadian child, the immigration officer considered those interests and, as noted, a reviewing court cannot substitute its opinion for that of the immigration officer. I conclude this case is a far stretch from Baker, supra, and that, on the evidence, it cannot be said the immigration officer"s decision was unreasonable to the extent of warranting intervention given the legislative context that permanent residents to Canada must normally apply from abroad plus the context of a failed refugee claimant who does not otherwise qualify under PDRCC. Without more, which has not been met in this case, a H & C application in this context cannot be a back door when the front door has, after all legal remedies have been exhausted, been denied in accordance with Canadian law.
DISPOSITION
[8] For all of these reasons, this judicial review application is dismissed. No certified question arises.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 8, 2000