Date: 20051019
Docket: IMM-910-05
Citation: 2005 FC 1425
Vancouver, British Columbia, Wednesday, the 19th day of October, 2005
Present: THE HONOURABLE MR. JUSTICE TEITELBAUM
BETWEEN:
NEST HILA and
ALMA HILA
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicants are seeking a judicial review of their application for permanent residence from within Canada on Humanitarian and Compassionate ("H & C") grounds; it was denied on January 20, 2005.
[2] The H & C application is based on the best interests of the children, the risks the family faces upon return to Albania, and establishment in Canada. The Immigration Officer also determined that the Applicants and their daughters would not suffer undue, disproportionate, or undeserved hardship if they were required to make their application for permanent residence from outside of Canada.
FACTS
[3] Mr. Nest Hila and Ms. Alma Hila, both Albanian citizens, arrived at Vancouver International Airport on July 11, 2001, by paying $16,000 US to be smuggled into Canada. They claimed refugee status that same day and their claim was subsequently denied on July 14, 2003.
[4] The Applicants applied for a Pre-Removal Risk Assessment ("PRRA") on April 15, 2004; this application was also rejected as the PRRA Officer found that there would not to be a risk to their lives, or a risk of cruel and unusual treatment or punishment if they returned to Albania.
[5] Ms. Hila gave birth to two children while in Canada. She had a normal first pregnancy and gave birth to her first child Amanda Hila on September 8, 2002. Ms. Hila gave birth to her second child, Julia Hila, on July 1, 2004, six weeks prematurely due, she says, to the stress of facing deportation while pregnant; deportation was stayed. Hence, both daughters are Canadian citizens.
[6] Mr. Hila's problems began in Albania allegedly due to a family feud that began when his grandfather's brother, Mehill Marash Hila, was accused of killing a man belonging to the Gjon Lleshi family in the 1950s. This issue was addressed at the refugee hearing; it was determined that Mr. Hila failed to provide sufficient credible and trustworthy evidence to substantiate the blood feud claim[1]. I will not address this issue any further as it has no relation to the H & C application with which I am concerned.
ISSUE
[7] Did the Immigration Officer make an unreasonable error when he decided not to grant the Applicants an H & C exemption?
STANDARD OF REVIEW
[8] The standard of review of an Immigration Officer's discretionary decision to consider an H & C application is reasonableness simpliciter.
[9] This Court cannot intervene unless "there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived." (See Baker v. MCI, [1999] 2 S.C.R. 817 at par. 62; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at par. 55.)
[10] It is not the role of the Federal Court to re-examine the weight given by an Immigration Officer to the various factors considered by that officer when deciding whether to grant an H & C exemption to a foreign national (MCI v. Legault, 2002 FCA 125, at par. 11).
APPLICANTS' SUBMISSIONS
[11] The Applicants make four main submissions. The first three submissions can be summarized under the heading "Best Interests of the Children" and will be analyzed below under one section.
1. The Immigration Officer did not consider the children's best interests.
2. The Immigration Officer did not properly assess the premature child's (Julia) interests under section 25 of IRPA.
3. The Immigration Officer did not consider the evidence about the state of medical care in Albania and risks in case of return (undue hardship).
4. The Immigration Officer did not properly consider the Applicants' establishment in Canada.
RESPONDENT'S SUBMISSIONS
[12] The Respondent states that the Immigration Officer's decision was reasonable. He considered all the above-mentioned factors and, therefore, this Court should not interfere. The Respondent makes three main submissions:
1. With respect to the risk Mr. Hila alleges due to a family feud, the Immigration Officer was satisfied that the Applicants did not establish risk in Albania. These claims had already been rejected by the RPD and by the PRRA Officer.
2. The Immigration Officer considered the best interests of the two young girls. Based on the medical evidence provided, Julia was healthy and progressing well and any health risks related to the inadequate medical care in Albania were speculative. The Applicants did not file enough evidence on Julia's health risks to justify an exemption. The interests of the children were a positive factor in the H & C application but, on balance, this was not sufficient to justify an H & C exemption.
3. The Immigration Officer considered the Applicants' establishment in Canada. Mr. Hila is fluent in English and makes $50,000 a year as a plumber. The Immigration Officer determined that some degree of establishment is to be expected and that the establishment factors were insufficient to warrant an H & C exemption. The Immigration Officer determined that Mr. Hila could come to Canada as a skilled worker from Albania and that he could continue his trade in Albania.
ANALYSIS
[13] I will discuss the "Best Interests of the Children" and then the "Establishment in Canada" factor.
[14] The most important issue is the issue of the "Best Interests of the Children." After a careful reading of the Immigration Officer's decision, I am satisfied that the officer was alert, alive and sensitive to the concerns of the two Canadian children including, and in particular, the medical evidence filed in the H & C hearing.
[15] In reading the officer's decision, which can be found at pages 5 to 10 of the Tribunal Record, it is apparent that he gave careful consideration to the two Canadian children. On page 7 of the Tribunal Record, the officer lists the functions that he considered for the H & C hearing:
Humanitarian and Compassionate Factors
Spousal, family or personal relationship that would create hardship if severed? None submitted
Children of applicant in Canada? 2 Canadian born children
Hardship or sanctions upon return to country of origin? hardship of having to apply outside Canada; poor conditions for children; claims risk;
Degree of establishment demonstrated? letters of support; employed since November 2002 as a plumber's apprentice; applicant is fluent in English
Establishment, ties or residency in any other country? both applicant's and his spouse's families are in Albania
[16] This is what the officer has to say of the "Best Interests of the Children":
I have considered the best interests of the applicants' two Canadian born children, Amanda, born September 2002 and Julia, born July 2004. I am satisfied that they are young enough to easily adapt to new surroundings and that they will have the support of their parents and their parents' families. They will have access to an education. Counsel submits that the health of the youngest child will be at risk if required to return to Albania, citing poor medical services and the baby's premature birth. I note that removal of the family was delayed due to the child's delicate condition. The primary physician for the child describes Julia as "a healthy infant" who is "progressing well," despite her premature birth. However, she recommends that removal be deferred until December 2004 to determine the existence of developmental delay. This deferral was granted. At this point, I am not satisfied that the medical risks to the child in Albania are more than speculative. While medical facilities in Albania are lacking in comparison to those in Canada, I am not satisfied that sufficient evidence on the child's prospective health has been presented to justify the granting of an exemption. While the two Canadian children are a positive factor in this case, I am not satisfied that their presence warrants an exemption from the requirement for their parents to apply overseas.
[17] The officer examined all the medical evidence before him and concluded that because of the age of the children, the family support they would have in Albania, the fact that they would have access to education in Albania, and that the issue of lack of medical care in Albania was speculative, the children would not be unusually deprived.
[18] The medical evidence placed before the officer concerning Julia's health was insufficient. The Applicants provided two brief medical notes on Julia's health. One can be found at page 43 of the Tribunal Record, a report by Dr. Julia C. Reynolds dated September 9, 2004, a report by Dr. Zenon Cieslak dated August 25, 2005, and a more recent note dated September 9, 2005, from Dr. Reynolds which indicates that Julia is making progress.
[19] I find it difficult to understand the Applicants in the present case. They came to Canada and claimed refugee status. Surely they knew, or should have known, notwithstanding that Canada has very liberal refugee laws, that there was always the possibility that their claims may be denied. Yet, and knowing of the possibility of refusal and possible removal from Canada, they have two children while in Canada and now attempt to use the birth of these two children as the reason to remain in Canada.
[20] The jurisprudence is consistent. It is not the function of the Court to re-weigh the evidence after it has been carefully considered by the H & C hearing officer.
[21] Although the Applicants may make good citizens, they took the wrong way to enter Canada.
[22] The application for judicial review is denied. No questions were submitted for certification.
(Sgd.) "Max M. Teitelbaum"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-910-05
STYLE OF CAUSE: NEST HILA et al.
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: October 18, 2005
REASONS FOR ORDER AND ORDER: TEITELBAUM J.
DATED: October 19, 2005
APPEARANCES:
Mr. Rudolf J. Kischer FOR APPLICANTS
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Embarkation Law Group FOR APPLICANTS
Vancouver, BC
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
[1] Board's Decision, pages 7-10, Volume II of Record. This family feud issue was also assessed by the PRRA Officer.