Ottawa, Ontario, this 27th day of January, 2006
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
CHAE HWA JEONG
JIN HYUCK JEON (By his litigation guardian)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision by an immigration officer, dated November 23, 2004, which refused to grant the applicants an exemption on humanitarian and compassionate ("H & C") grounds to permit inland processing of their permanent residence application.
[2] The applicants seek an order quashing the decision of the immigration officer and remitting the matter for re-assessment by a different immigration officer.
Background
[3] The principal applicant, Nam Ki Jeon, is a citizen of South Korea. He arrived in Canada in December 2000 along with his wife, Chae Hwa Jeong, and his son, Jin Hyuck Jeon, also citizens of South Korea. The applicants alleged that they fled South Korea because they were threatened by organized criminals and their state was unable to offer protection from the criminals.
[4] The applicants filed a Convention refugee claim in Canada, which was denied. Leave to commence judicial review of that decision was granted and that judicial review was to be heard by this Court on December 13, 2005.
[5] The applicants next filed an H & C application on May 21, 2002. Their H & C application outlined the following reasons as to why the applicants should be permitted to apply for a permanent resident visa from within Canada:
1. The applicants' lives would be at risk in the hands of organized criminals if they returned to South Korea;
2. The applicants have established themselves in Dorchester, Ontario and are involved in the community and the church;
3. The principal applicant and his wife operate a dry-cleaning business in Dorchester, which requires them to be at work 6 days a week;
4. The principal applicant would not be able to find work in South Korea; and
5. The principal applicant's son is attending school in Dorchester and a disruption to his education would constitute undue hardship.
[6] The H & C officer referred the applicants' risk allegations to a Pre-Removal Risk Assessment ("PRRA") officer. On September 29, 2004, the PRRA officer determined that the applicants would not face a risk to life or a risk to the security of the person if returned to South Korea. The applicants were invited to comment on errors and omissions, and they did so by submitting further documents. The PRRA officer considered the applicants' further evidence and on October 29, 2004 he confirmed his original decision.
[7] On November 23, 2004, the H & C officer denied the applicants' H & C application. This is the judicial review of that decision.
Reasons for the Immigration Officer's Decision
[8] The officer stated that she had considered all the applicants' submissions, as well as all the new information and documentation provided during the PRRA process.
[9] The officer noted the following considerations in her reasons for the decision:
1. Jin Hyuck Jeon was under threat in South Korea (according to the applicant's narrative). He had been attending school in Dorchester since September 2002 and is active in youth and community activities. There was no indication that he could not avail himself of a study permit to complete his studies in Canada.
2. The PRRA officer determined that the applicants would not be at risk if returned to South Korea.
3. The applicants had been residing in Canada since December 2000 and there was evidence that they had established themselves in the community. The applicants purchased a dry-cleaning business in Dorchester in April 2002, and they provided documents relating to their business including tax forms, bills and bank statements. The applicants submitted letters of support from the minister of the church, members of the community and customers. They also submitted newspaper articles demonstrating the success of their business and their active participation in the community.
[10] After noting the above, the officer stated:
However, it is also noted that the applicants took these steps prior to acquiring permanent residence in Canada, and therefore it is reasonable to expect that these steps would not preclude them from possibly being required to leave Canada.
[11] The officer concluded that she was not satisfied that the applicants' current degree of establishment or the risk that they would face in South Korea would result in unusual, undeserved or disproportionate hardship if they were required to obtain a permanent resident visa from outside of Canada.
Issue
[12] Did the officer err in refusing the applicants' H & C application?
Applicants' Submissions
[13] The applicants submitted that the officer ignored the best interests of the minor applicant, and erred by stating that the minor applicant could study in Canada on a study permit. The applicants submitted that there would be undue hardship if the minor applicant's education were disrupted or if he were to remain in Canada to study without his parents.
[14] The applicants submitted that it was unreasonable for the officer to state that the applicants took steps to establish in Canada before acquiring permanent residence in Canada. The applicants submitted that this approach defeats the objectives of H & C applications.
[15] The applicants submitted that it was unreasonable for the officer to rely on the PRRA determination as opposed to reaching her own risk opinion or commenting as to whether or not she agreed with the PRRA determination.
[16] The applicants submitted that the officer breached the duty of fairness by delaying the processing of the application.
Respondent's Submissions
[17] The respondent submitted that it is the responsibility of an H & C officer to weigh the evidence, including the degree of establishment, risk upon return, best interests of the child, and any other factor raised which corresponds with the submission of unusual, undeserved or disproportionate hardship. The respondent submitted that the officer in this case weighed these factors and her decision was reasonable. The respondent submitted that this Court should not engage in the reweighing of facts that were before the officer (see Legault v. Canada(Minister of Citizenship and Immigration), 2002 FCA 125 at paragraph 11).
[18] The respondent submitted that the officer properly followed the procedure to be used in assessing risk in an H & C application, by referring the allegations of risk to a PRRA officer (see Anaschenko v. Canada (Minister of Citizenship and Immigration), 2004 FC 1328 at paragraphs 15 to 16). The respondent submitted that it is noted in the reasons for the decision that the officer had reviewed the materials submitted and formed her own opinion about the risk of return to South Korea.
[19] The respondent submitted that the officer did not err by noting that the applicants had taken steps to establish in Canada before acquiring permanent resident status. The respondent submitted that this was part of the analysis of undue hardship. It is not unusual for those without permanent residence status to face a risk of loss of assets acquired in Canada (see Irimie v. Canada(Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.) at paragraph 17).
[20] The respondent submitted that there is no evidence to support the applicants' allegations that the officer breached the duty of fairness by unduly delaying the processing of their H & C application.
Relevant Statutory Provisions
[21] An H & C application is permitted under section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 which provides:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
(2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province's selection criteria applicable to that foreign national. |
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25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient.
(2) Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables. |
Analysis and Decision
[22] Standard of Review
The appropriate standard of review for a decision of an immigration officer on an H & C application is reasonableness simpliciter (see Baker v. Canada(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857 to 858).
[23] The applicants submitted that the officer's decision was unreasonable because the officer's analysis with respect to establishment in Canada was in error. As well, the applicants submitted that the best interests of the child were not considered and that the officer did not complete a proper risk assessment. I shall address each of these submissions in turn.
[24] Establishment in Canada
I have reviewed the officer's decision as it relates to the establishment of the applicants in Canada. The officer noted that the applicants had taken steps to become established in Canada but went on to find that the degree of establishment in Canada was not sufficient to cause the applicant undeserved or unusual hardship if they were required to apply from outside Canada. The officer noted that the applicants had purchased a business before they had acquired permanent residence status in Canada. The applicants stated this was an error in the analysis because these steps were taken by the applicants to become established in Canada.
[25] In Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm.L.R. (3d) 206 (F.C.T.D.), Pelletier J. stated at paragraph 17:
Objection was also taken to the fact that the H & C officer noted that the applicants had purchased a home but commented that they had done so knowing that they were subject to a departure order. Counsel for the applicants took the position that everyone who applied for relief under subsection 114(2) of the Act knew that they could be required to leave. If this should become a ground for not allowing the application, there would be no successful applications, he argued. In fact, counsel is correct to this extent: the risk of the loss of assets acquired while in Canada is common to all who are in Canada without permanent resident status. That possibility is therefore not unusual. Whether such a loss is undeserved may well vary with the circumstances but in general, one would think that if one assumes a certain risk, the occurrence of the eventuality giving rise to the risk does not create undeserved hardship. The hardship is a function of the risk assumed.
[26] These comments are applicable to the situation here. I am of the view that the officer did not make an error in her finding relating to establishment in Canada.
[27] Best Interests of the Child
A review of the officer's decision establishes to my satisfaction that the officer analysed the best interests of the minor applicant. The officer noted that the child was attending school in Dorchester, Ontario and that the narrative stated the child was under threat (in South Korea). It was also noted that the child could possibly obtain a study permit to complete his studies in Canada.
[28] Risk Assessment
The applicants submitted that the officer did not properly evaluate the risk to the applicants if they returned to South Korea. The officer sought and obtained an opinion from the PRRA unit. The officer considered all information submitted by the applicants, including all new information provided during the PRRA process, and concluded in part as follows:
. . . I am not satisfied that the applicants' current degree of establishment nor the risk of return to South Korea submitted by the applicants would result in unusual, undeserved or disproportionate hardship . . .
I am of the view that the officer's assessment of risk was reasonable.
[29] In my opinion, the officer's decision to deny the H & C application was not made in error. The application for judicial review is therefore denied.
[30] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
[31] IT IS ORDERED that the application for judicial review is denied.
J.F.C.
Ottawa, Ontario
January 27, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10067-04
STYLE OF CAUSE: NAM KI JEON
CHAE HWA JEONG
JIN HYUCK JEON (By his litigation guardian)
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 24, 2005
REASONS FOR ORDER AND ORDER OF: O'KEEFE J.
APPEARANCES:
| Jegan N. Mohan
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| Janet Chisholm
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SOLICITORS OF RECORD:
| Mohan & Mohan Scarborough, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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