Date: 20060512
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
HELENA LINIEWSKA
Applicant
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision by Sophie Bisaillon (the immigration officer) dated August 8, 2005, denying the application for visa exemption for humanitarian and compassionate considerations under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
RELEVANT FACTS
[2] The applicant is a 79-year-old Polish citizen. She visited Canada three times, namely from September 1993 to April 1994, from November 1994 to April 1997 and from January 2001 to date.
[3] The applicant entered Canada on January 17, 2001 with a visitor’s visa, valid until March 2006. She applied for a visa exemption based on humanitarian and compassionate considerations. She was sponsored by her daughter, a Canadian citizen.
[4] The applicant’s established family in Canada is composed of her daughter, her daughter’s husband and their two children ages 9 and 12, all Canadian citizens. The applicant has three other children and grandchildren who live in Poland.
ISSUES
[5] 1. Did the immigration officer err in assigning too much importance to financial factors?
2. Was the interest of the children taken into consideration?
3. Did the immigration officer err in failing to take relevant facts into consideration?
ANALYSIS
[6] The applicant requires a visa exemption on the basis that her Canadian daughter wants to sponsor her and that given her age and her ties with her family in Canada, it would be unusual, undeserved and disproportionate to require her to wait for the result of that application from her residence in Poland. However, the immigration officer held the contrary and denied the applicant’s application.
[7] The Act requires that a foreign national seeking permanent residence in Canada must apply for and obtain a permanent residence visa before entering Canada. However, pursuant to subsection 25(1) of the Act, the Minister may grant a foreign national a visa exemption on the basis of humanitarian and compassionate considerations. Subsection 25(1) of the Act reads as follows:
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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.
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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.
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[8] In Adu v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 693, Madam Justice Anne L. Mactavish states that the appropriate standard of review for decisions made pursuant to subsection 25(1) of the Act is that of reasonableness simpliciter:
The general standard of review governing decisions of immigration officers in relation to H&C applications is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[9] In Pashulya v. Canada (Minister of Citizenship and Immigration), 2004 FC 1275, [2004] F.C.J. No. 1527, Mr. Justice James Russell discusses the purpose of applications based on humanitarian and compassionate considerations:
This Court has repeatedly held that the H&C process is designed not to eliminate the hardship inherent in being asked to leave after one has been in place for a period of time, but to provide relief from “unusual, undeserved and disproportionate hardship” caused if an applicant is required to leave Canada and apply from abroad in the normal fashion.
1. Did the immigration officer err in assigning too much importance to financial factors?
[10] The applicant claims that the immigration officer erred in assigning too much importance to the financial circumstances of her daughter, who wanted to sponsor her. The applicant submits that financial factors are not relevant factors for the purposes of assessing an application for permanent residence in Canada based on humanitarian and compassionate considerations.
[11] In reply, the respondent states that the immigration officer did not assign any importance to the financial considerations of the matter. Further, he observes that in the notes of the application for humanitarian and compassionate considerations, the financial aspect is mentioned only under “Humanitarian or compassionate factors invoked by applicant”, but she does not mention it again later under “Decision and reasons”.
[12] The applicant had received a letter calling her to an interview to determine whether she could obtain a visa based on humanitarian and compassionate considerations. The letter reads as follows:
This refers to your application for permanent residence from within Canada on humanitarian and compassionate grounds. This is a two step decision making process.
First, humanitarian and compassionate factors are assessed to decide whether to grant an exemption from the requirement of having to obtain a permanent resident visa before coming to Canada [A11(1)]. Second, you and the members of your family, if applicable must meet all other statutory requirements of the Immigration and Refugee Protection Act (IRPA) [A21], for example, medical, security and passport requirements as well as arrangements for your care and support and obtaining a “Certificat de Sélection du Québec (CSQ). This second decision will only be taken if you have been exempted of the permanent residence visa requirement.
INTERVIEW REQUIRED
Before making a decision on the visa requirement exemption, you will have the opportunity to submit any information at an interview.
Therefore, you must report for an interview and bring the documents indicated on the attached list.
(Letter sent to the applicant, July 4, 2005, record at page 54.)
[13] The applicant had been asked to bring some documents with her to the interview, including financial documents. At the interview, the immigration officer had noted:
SB: I have asked you for some documents. Please show me all of the documents.
Daughter is providing documents:
Income tax declaration shows approximately 6000 for husband and 13000 for the sponsor. (see photocopies on file). Advise that this might be insufficient to be accepted for a CSQ from Quebec.
(Interview notes, record at page 9)
[14] It appears from the documents filed and from the affidavits of the applicant and her daughter that the financial documents filed at the interview did not reflect the applicant’s actual income. It was not unreasonable to offer the applicant the opportunity to bring her file up to date and to file financial documents reflecting reality which, furthermore, favoured the applicant, since the income was much higher than the income appearing in the documents filed the first time. Further, the officer feared that the income, initially, could be insufficient according to the applicable standards.
[15] As indicated in the letter sent to the applicant, the application for a visa based on humanitarian and compassionate considerations has two stages. The immigration officer tried to help the applicant by warning her that the financial resources were perhaps insufficient to meet the requirements of the second stage, namely to receive a CSQ from Quebec. The fact that the officer had given advice to the applicant for a future assessment does not mean that the financial factors influenced the decision as to whether the applicant met the conditions for humanitarian and compassionate considerations (first stage). Reviewing the notes in the record and the immigration officer’s decision, I am persuaded that the officer did not err in assigning too much importance to financial factors in making a decision at the first stage of the assessment of an application for permanent residence in Canada based on humanitarian and compassionate considerations. Furthermore, there is no reference to financial documents in her decision.
2. Was the interest of the children taken into consideration?
[16] The applicant claims that the immigration officer erred in failing to assign sufficient importance to the interest of the children and grandchildren and to the hardships they would suffer if the applicant were forced to leave.
[17] The respondent submits that the obligation to consider the best interests of the children was clearly respected in this case. The applicant did not document her involvement with the two grandchildren living in Canada. Further, the best interests of the child will not always override all of the other considerations. The Canadian grandchildren would not find themselves without their principal support if their grandmother were to return to Poland.
[18] In Dias Fonseca v. Canada (Minister of Citizenship and Immigration), 2005 FC 709, [2005] F.C.J. No. 930, at paragraphs 17 and 19, Mr. Justice W. Andrew MacKay discusses the requirement to submit evidence for assessing the best interests of the child:
In Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), the Court of Appeal made clear that the best interests of the children are important factors, though not the determinative factor in an H&C decision. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.) that Court also affirmed that, in considering such an application, careful and sympathetic assessment must be given to the best interests of the children, and it is not sufficient merely to refer to those interests or the relationships with children involved. By its decision in Owusu, supra, that Court acknowledged that in considering an H&C application, the officer concerned must be alert, alive and sensitive to the best interests of the children when it is clear the applicant indicates that he or she relies on their best interests as a factor. The applicant has the burden of establishing that he relies on that factor, and of establishing a claim that their best interests would be adversely affected if the decision is not favourable to the applicant.
. . .
While subsection 25(1) may indicate no “more detailed assessment of the best interests of the child” is necessary than was required by the decision in Baker, supra, in my opinion it does clearly establish a statutory duty to consider those interests, even if the onus to provide evidence of those interests remains that of the applicant. In Richards v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 35 (T.D.) (QL), at para. 9, Mr. Justice Phelan, having found that the immigration officer concerned had not assessed the evidence about the child’s interests, wrote in part:
[9] While it is true that a stronger case might have been made out, the respondent had a statutory obligation to take account of the best interests of the child. The Court of Appeal in Owusu held that if there is no evidence of the best interests of the child, an immigration officer is under no obligation to ferret out such evidence. In this case, there was evidence to support a consideration of the best interests of the child.
[19] In her decision, the immigration officer addressed the issues involving the interests of the grandchildren:
Applicant also states that she could be of a help for their children. She states twice in her form IMM 5283 that she could be of a help. Applicant does not document what is her involvement with her Canadian grandchildren neither in the forms neither during the interview.
. . .
I note that the Canadian grandchildren are of a school age (9 and 12) and that the sponsor is working two hours per day at home for her husband company.
. . .
Sponsor has already been alone from April 1997 until jan2001 raising by herself her children of a much younger age and who were not attending school, her husband being away as well as he started his occupation as a truck driver eight years ago.
(Decision of the immigration officer, August 8, 2005, at pages 5 and 6 of the record)
[20] The applicant has the onus of providing evidence regarding the adverse effects on the children if she were forced to leave. The immigration officer has an obligation to take that evidence into consideration. It is not sufficient for the applicant to simply state that the officer did not take the children’s best interests into consideration, she must establish that the officer did not take into consideration the evidence bearing on the best interests of the children. In this case, the applicant did not submit any evidence regarding what she did for her grandchildren and how they would be adversely affected if she were no longer in Canada. It is not the immigration officer’s responsibility to uncover such evidence. The interview notes establish that the officer asked many questions on the relationship between the applicant, her daughter, her son-in-law and her grandchildren in Canada; the officer had to form an impression after reviewing the evidence. On that point, Madam Justice Judith A. Snider states in Anaschenko v. Canada (Minister of Citizenship and Immigration), 2004 FC 1328, at paragraph 13:
Simply, there was little, if any, evidence of hardship to Alexander. I do not doubt for a minute that the Applicant loves his child and that the loss – even temporarily – of the opportunity to visit with his son will be difficult for the Applicant. However, with respect to the analysis of the best interests of Alexander, this is irrelevant. There was nothing before the H & C Officer that focused on what hardship would be suffered by Alexander. In light of the separation of his parents, the lack of evidence of financial support from the Applicant and failure to provide details of the role played by the Applicant in the child’s life, a conclusion that the separation would not cause excessive hardship was not unreasonable.
[21] Based on the evidence that was in the record, I am satisfied that the immigration officer was receptive, attentive and sensitive to the best interests of the children.
3. Did the immigration officer err in failing to take relevant facts into consideration?
[22] The applicant is of the opinion that the immigration officer erred in failing to take into consideration relevant facts, especially the fact that the applicant’s children in Poland are unable to take care of her.
[23] In Nazim v. Canada (Minister of Citizenship and Immigration), 2005 FC 125, Mr. Justice Paul Rouleau discusses the applicant’s burden of proof:
The onus is on the applicant to satisfy the officer about a particular situation that exists in their country and that their personal circumstances in relation to that situation make them worthy of positive discretion.
[24] The applicant alleges that the immigration officer did not attempt to obtain particulars regarding the reasons why the applicant would have difficulty if she were to return to Poland. On reviewing the decision and the notes in the record, it is my opinion that the officer took into account the applicant’s potential problems in returning to Poland, contrary to the applicant’s allegation. However, she determined that there was insufficient evidence to support that claim. That finding is reasonable given that the burden of proof was on the applicant, who had to establish that it was warranted to give her an exemption based on humanitarian and compassionate considerations. The applicant could have easily provided evidence in support of her claim.
[25] With respect to the burden of proof, Mr. Justice Frederick E. Gibson states in Mann v. Canada (Minister of Citizenship and Immigration), 2002 FCT 567, paragraph 16:
. . . as in Sadeghi, I am satisfied that the burden borne by an applicant for permission to seek landing from within Canada on humanitarian and compassionate grounds is to put his or her “best foot forward” by placing before the Immigration Officer all information available to support the application. In such circumstances, I am satisfied that the obligation on an Immigration Officer to advise such an applicant, as a matter of procedural fairness, of whatever concerns the visa officer may have about the merits of the application is reduced.
[26] The applicant had not established the existence of unusual, undeserved and disproportionate hardship based only on the fact that she was not authorized to stay in Canada. That finding is reasonable in view of the facts of this case. The applicant did not establish that the officer disregarded evidence.
[27] The applicant also suggests that the officer took into account irrelevant evidence in her analysis, namely the existence of other grandchildren in Poland, the financial documents, and the fact that she remained in Canada illegally and that, on that basis alone, the decision should be set aside.
[28] With all due respect, it is my opinion that the consideration of the interests of the children and grandchildren in Canada and in her native country are a part of her life circumstances and that it was not unreasonable to take this into account in her overall assessment.
[29] As for the financial documents, I have already discussed them and the officer only did her duty in suggesting to the applicant to better reinforce her file for her subsequent application in Quebec.
[30] With respect to the period that she remained unlawfully in the country, it is a fact and it was not unreasonable to examine the periods of time spent in Canada and in Poland to examine inter alia why the application to come live in Canada was not made when the applicant was in Poland and why she waited until she was in Canada to apply to be exempted from the rule.
[31] The applicant’s counsel suggest that Mohamed (Nargisbanu) v. Minister of Employment and Immigration, [1986] 68 N.R. 220, has the effect of prohibiting, for all practical purposes, the officer from considering in her decision the interests, if not the very existence, of the applicant’s grandchildren in Poland.
[32] I do not share that opinion. In Mohamed, supra, the Court considered the officer’s insistence that the family could never be unified with a brother residing in India as a ground, among others, for dismissing the application for permanent residence; the Court held that this was an error.
[33] Since Mohamed, the Court has on many occasions ruled on the importance to be given to the interests of children when assessing applications based on humanitarian and compassionate considerations: including Baker v. Canada, [1999] 2 S.C.R. 817; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.); Hawthorne v. M.C.I., [2002] F.C.J. No. 1687.
[34] I do not hesitate to find that the most recent case law has never supported, even remotely, the argument advanced by the applicant. I consider that it would be rather the absence of a reference to the existence of applicant’s children and grandchildren residing outside of Canada which could raise concern, as though we could disregard such an important fact in a person’s life.
[35] I also agree with this passage from Baker at paragraph 62:
[36] The applicant has proposed five questions for certification:
1. Was the use of the Polish grandchildren to counterbalance the Canadian grandchildren irrelevant evidence based on Re Mohamed (Nargisbanu) v. Minister of Employment and Immigration, [1986] 68 N.R. 220?
[37] In my opinion, the officer did not, as the question suggests, “use . . . the Polish grandchildren to counterbalance the Canadian grandchildren”. To make that determination, the applicant is clearly disregarding a significant part of the decision; the decision-maker simply referred in her decision to the fact that the applicant had grandchildren in Canada just as she had them in Poland, but in no way referred to this fact as a ground at the heart of this decision. Furthermore, the Honourable Mr. Justice Hugessen in Mohamed, discusses the relevance of relying on the inability to unify the family, be it in India or in Canada, as a ground for dismissing an application, while in the case before us, that issue is not even raised. The question will therefore not be certified, since it is clearly not of general importance.
2. Are the financial factors irrelevant considerations?
[38] With regard to the second question, it is clear from the immigration officer’s decision that the financial factors did not play any role in her decision-making and indeed again as I explained in my decision, it was primarily the irregularity of the financial documents filed by the applicant that led the immigration officer to suggest to the applicant that she update her financial information in order to have a file which reflected reality. While these are errors that arose from the fault of the applicant herself, it is incongruous that the same applicant could use the correction of her own errors as a ground for raising a question which is clearly not of general importance. The question will therefore not be certified.
3. Was the applicant’s illegal stay in Canada in 1997 an irrelevant consideration?
[39] As stated by the respondent’s counsel, this aspect of the applicant’s illegal stay was noted briefly in her decision, specifically with reference to the applicant’s ability to duly file her permanent residence application from her native Poland, as is the norm, rather than waiting to be in Canada before doing so. In any event, it is an undeniable fact that does not appear to be a determinative element in the decision. This is not a question of general importance and it will not be certified.
4. Was the decision contrary to the instructions of Baker v. Canada (Minister of Citizenship), [1999] 2 S.C.R. 817, in particular, in that:
(a) Only humanitarian considerations must be assessed;
(b) The hardships on the children must be assessed, (Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.), where they are not mentioned in this case.
[40] The Court cannot, at the time of the judicial review of an immigration officer’s decision, reassess the principles underlying Baker. The respondent’s counsel is correct to point out that the assessment of humanitarian considerations is an issue that is within the exclusive power of the immigration officer who has the discretion to do so. As I said in my decision, the applicant did not persuade me that the Federal Court’s intervention was justified in this matter, since no error by the immigration officer justified such intervention. It is indeed very clear on reading the decision that the immigration officer examined the children’s best interests when she made her decision. Humanitarian considerations are assessed on a case-by-case basis and in no way can the proposed question be considered to be of general importance. The question will therefore not be certified.
5. Did the failure to ask additional questions to specify the “children” aspect in this matter amount to a breach of the duty to act fairly in that the individual had not been informed of the true grounds for the refusal and did not have the opportunity to respond?
[41] In my opinion, the case law is very clear with regard to the applicant’s obligation to establish the facts before the immigration officer, there is no uncertainty in the case law with respect to the burden of proof which still applies to the applicant. There is no minimum or maximum number of questions which must be asked regarding the grounds for humanitarian and compassionate considerations. It was the applicant’s obligation to set out clearly to the immigration officer the intricate reasons underlying her wish to obtain a permanent resident visa and how her specific relationship with her grandchildren could justify an exception to the general rule. It is not the immigration officer’s responsibility to bombard the applicant with questions so that she can establish her right, but rather to ask questions to ensure that the applicant can set out her reasons clearly. My review of the interview notes did not persuade me, once again, that the immigration officer had erred. It was a purely factual question and not one of general importance and the question will therefore not be certified.
JUDGMENT
- The application for judicial review is dismissed;
- No question will be certified.
“Pierre Blais”
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5572-05
STYLE OF CAUSE: HELENA LINIEWSKA
v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: April 20, 2006
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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Julius Grey Isabelle Turgeon
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FOR THE APPLICANT |
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Annie Van Der Meerschen
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Grey Casgrain Montréal, Quebec
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FOR THE APPLICANT |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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FOR THE RESPONDENT |