Ottawa, Ontario, August 28, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
BALJIT KAUR SANDHU, RAVSHER SINGH SANDHU and
HARLEEN KAUR SANDHU
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mrs. Baljit Kaur Sandhu is a citizen of India. Ravsher Singh Sandhu and Harleen Kaur Sandhu are her son and daughter. After the death of her husband, Mrs. Sandhu and her children applied for permanent residence status in Canada. Her application was sponsored by her brother, a permanent resident of Canada. As Mrs. Sandhu did not meet the requirements of the family class in relation to her brother, she applied for consideration on humanitarian and compassionate grounds. A visa officer at the Canadian High Commission in New Delhi refused the application on the ground that insufficient humanitarian and compassionate considerations existed to justify exempting Mrs. Sandhu and her family from the applicable criteria under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). On this application for judicial review of that decision I find that the officer's decision withstands a somewhat probing examination and was not unreasonable. The application for judicial review is therefore dismissed.
[2] Two issues are raised on Mrs. Sandhu's behalf; first, it is alleged that the officer failed to consider properly the best interests of her children, Ravsher and Harleen. Second, it is said the officer fettered her discretion by requiring Mrs. Sandhu to demonstrate "overwhelming" humanitarian and compassionate factors in order to overcome her inadmissibility.
Did the Officer Reasonably Consider the Best Interests of the Children?
[3] It is well settled law that the decision of an officer to exempt an applicant from criteria or obligations contained in the Act is discretionary. The exercise of that discretion is to be reviewed on the standard of reasonableness simpliciter. A reasonable decision is one that can stand up to a somewhat probing examination. The inquiry to be made is whether the reasons given for the decision as a whole reveal a line of reasoning that could reasonably lead the decision-maker from the evidence to the decision.
[4] I begin my consideration of this issue by setting out a number of settled principles of law.
[5] First, subsection 25(1) of the Act provides:
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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. |
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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[6] Thus, when considering a request made pursuant to subsection 25(1) of the Act, an officer delegated to exercise the Minister’s discretion is legally obliged to take into account the best interests of a child directly affected by the decision.
[7] Second, the officer must be "alert, alive and sensitive" to the best interests of the child and must not minimize their interests. However, it is up to the officer to determine the weight to be given to the best interests of a child. It is not for the Court to re-examine the weight to be given to the factors considered by the officer. The presence of children and their interests do not mandate a favourable decision. See: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 at paragraphs 11 and 12; Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at paragraph 5.
[8] Third, the applicant bears the onus of satisfying the officer that the humanitarian and compassionate factors identified by the applicant are sufficient to warrant an exemption. If no evidence is provided to support the claim for such relief, an officer may determine the claim to be baseless. There is no legitimate expectation that an applicant will be interviewed, so all pertinent information should be contained in the written application. See: Owusu, cited above, at paragraphs 5 and 8.
[9] Fourth, it is not fatal to a decision if the officer does not expressly state that he or she considered the best interests of a child. In the words of the Federal Court of Appeal, that would elevate form over substance. See: Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 at paragraph 3.
[10] Finally, the best interests of a child are not assessed in a vacuum. An officer may be presumed to know that living in Canada can offer a child many opportunities. The officer's task is to consider the circumstances of each case, and determine the likely degree of hardship caused by refusing the exemption. The officer then weighs any hardship together with all other relevant factors. See: Hawthorne, cited above, at paragraphs 5 and 6.
[11] In the present case, the submissions made by counsel in the humanitarian and compassionate application were brief:
1. Baljit’s parents and brother, Gursharan Singh Chohan, are residents and citizens of Canada. Gursharan, his family and his parents reside at 797 Martindale Blvd. N.E., Calgary, Alberta. He has one other brother, Jatinder Singh Chohan, in India.
2. Baljit Kaur Sandhu is a citizen of India. She was recently widowed as her husband, late Bhupinder Singh Sandhu, passed away on January 12, 2004 as a result of a brain tumour. As a consequence, Baljit is residing alone in India with her 2 children, Ravsher Singh Sandhu (D.O.B. October 14, 1992) and Harleen Kaur Sandhu (D.O.B. January 30, 1994).
3. While Baljit has one other brother, Jatinder, remaining in India, he is not financially able, as a farmer, to support his widowed sister. He resides at Sultan Wing Pind Amritsar and she is at Village Bhanier Ludher. The family in Canada is in better financial circumstances as Gursharan Singh Chohan works at IKO Industries Ltd. as a machine operator and grosses over $80,000.00 per annum on taxable income. Collectively, he and his wife earn in excess of $100,000.00 per annum.
4. Equally important to the financially [sic] needs of Baljit and her children, are the social needs as well. With the death of their father, the children are suffering without having other relatives to help with the burden of parenting. Such parenting would be done by the grandfather (Jaswant Singh), grandmother (Jasbir Kaur), and Gursharan, all of whom reside together at their own home at 797 Martindale Blvd. N.E., Calgary, Alberta. Nor are the grandparents able to spend significant time in India as they are working in Canada to also send money home to Baljit. Although all of the family member can send money back to support Baljit, they cannot be there personally.
5. The family is very close to each other and they have significant concerns with the emotional and psychological well being of Baljit and the children after the loss of Bhupinder. They would like the family to be together to share the burden of the loss. As a family unit operating in Canada in one household they could share the burdens of life together.
6. We would also note that the late Bhupinder Sandhu has already applied for immigration under the independent selection process in late 2001. He has applied as a skilled electrical supervisor and had received a file number B043572502. With his passing in January, 2004 the application is no longer capable of being accepted as the principal applicant has died.
[12] No more specific information was provided with respect to the emotional and psychological well-being of the children. For example, there were no statements from their relatives in Canada as to the closeness of their relationship, no copies of correspondence exchanged between family members were provided and no evidence of any specific difficulty the children were encountering was provided.
[13] Mrs. Sandhu was interviewed by the visa officer. The Computer Assisted Immigration Processing System (CAIPS) notes record that after reviewing Mrs. Sandhu's financial situation in India the following was discussed:
Why does she need to go to Cda? Needs to go for the financial status as she sees no future for her children here. There they can do well. Why is it different now than when her husband was alive? He could work and earn more than she but she is only running a grocery store. She also needs to be at home for her children. Her parents were sending money when her husband was alive and they are sending money now. What is different now? Now she is really dependent on them before they sent money for special functions. If she goes to Cda, her parents will have to support her fully and their financial burden will be much higher than before. She will also work – but at least they will be there to help her. Her brother in India is not financially very sound, he can only support his own family. She will work at any job – she has matriculation but has no work experience. She speaks a little English. She states that she can understand very well but she can overcome her lack of English. If she is not allowed to go to Cda, she doesn’t know she wants to go because of the children. Why is it better for her children in Cda? If you work there, you are paid better. The children will be able to go to better schools.
[14] The officer filed an affidavit in which she swore that the CAIPS notes were accurate and true. I accept that to be the case, and indeed counsel for Mrs. Sandhu did not raise any issue with respect to the correctness of matters that are recorded in the CAIPS notes. However, counsel for Mrs. Sandhu did observe that the notes may not be exhaustive of everything that was discussed.
[15] In rejecting the application, the officer considered the degree of establishment in India of Mrs. Sandhu and her children, their family in India and Canada, and the financial concerns raised by Mrs. Sandhu. The officer noted that those financial concerns, combined with some concern for her children's education, appeared to be Mrs. Sandhu's primary concerns. The officer wrote, "[t]he applicant did not express any emotional or social needs by being separated from her family. She only expressed financial concerns and also concerns for the educational future of her children". The officer then noted that Mrs. Sandhu owned a grocery store (to provide some independent income for herself) and that she has "a brother and family in India as well as paternal and maternal aunts, uncles and their families".
[16] The officer's reasons are admitted by counsel for the Minister to be "sparse". However, the reasons noted that no emotional or social needs warranting a humanitarian and compassionate exemption were identified by Mrs. Sandhu. The officer’s reasons also noted that Mrs. Sandhu's concerns were financial in nature and that her children would receive a better education in Canada.
[17] In my view, the officer's reasons are tenable (barely) to support her conclusion that insufficient humanitarian and compassionate circumstances were identified and established to warrant an exemption from the requirements of the Act. The material establishing humanitarian and compassionate factors put before the officer was itself scant, and the presence of children who would benefit from more advantages in Canada did not trump all other factors so as to require a positive decision.
[18] Mrs. Sandhu also argued that the officer failed to consider whether Mrs. Sandhu is a de facto family member.
[19] Section 8.3 of Chapter 4 of the Overseas Processing Manual (OP 4) directs officers as follows with respect to de facto family members:
8.3 All other classes
The following guidelines describe some situations where positive consideration might be warranted. They may be helpful when deciding whether the circumstances presented by the applicant are sufficiently compelling to warrant an exemption from R70(1)(a), (c), and (d). They will not answer all eventualities, nor can they be framed to do so. These guidelines are to assist officers in assessing H&C situations. Officers cannot be restricted by guidelines; they are obliged to consider all the information they have.
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Note: Where it is decided by the visa office to proceed with such cases on H&C grounds, the category MUST be changed to HC1 at the selection (step 2) stage, to satisfy the requirement that the Minister report to Parliament annually on the processing of cases under A25(1).
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De facto family members
De facto family members are persons who do not meet the definition of a family class member. They are, however, in a situation of dependence that makes them a de facto member of a nuclear family that is either in Canada or that is applying to immigrate. Some examples: a son, daughter, brother or sister left alone in the country of origin without family of their own; an elderly relative such as an aunt or uncle or an unrelated person who has resided with the family for a long time. Also included may be children in a guardianship relationship where adoption as described in R3(2) is not an accepted concept. Officers should examine these situations on a case-by-case basis and determine whether humanitarian and compassionate reasons exist to allow these children into Canada.
Consider:
• whether dependency is bona fide and not created for immigration purposes;
• the level of dependency;
• the stability of the relationship;
• the length of the relationship;
• the impact of a separation;
• the financial and emotional needs of the applicant in relation to the family unit;
• ability and willingness of the family in Canada to provide support;
• applicant’s other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support;
• documentary evidence about the relationship (e.g. joint bank accounts or real estate holdings, other joint property ownership, wills, insurance policies, letters from friends and family);
• any other factors that are believed to be relevant to the H&C decision.
[20] In my view there are three answers to the submission concerning de facto family members advanced on Mrs. Sandhu’s behalf. First, the issue was not raised before the officer and I do not believe the officer can be faulted for failing to have specifically considered this argument. Second, the failure of Mrs. Sandhu to raise before the officer any emotional need or dependency is inconsistent with a de facto family relationship. Mrs. Sandhu and her children are a nuclear family in India. The children have, living in the same state with them, a grandmother, at least two aunts, an uncle and two cousins. Their situation lacks the isolation and level of dependency indicated by the examples cited in section 8.3 of OP 4. Finally, the concept of a de facto family member is simply one manifestation of circumstances that may merit humanitarian and compassionate relief. The officer considered all of the aspects of the humanitarian and compassionate claim advanced and there was, in my view, no need for a separate analysis of the claim against the backdrop of de facto family members.
Did the Officer Fetter her Discretion?
[21] The officer’s reasons do refer to there being "no overwhelming humanitarian and compassionate circumstances" to overcome inadmissibility. On Mrs. Sandhu's behalf it is argued that by requiring demonstration of "overwhelming" circumstances, the officer violated both the letter and the spirit of section 25 of the Act.
[22] I agree that the use of the word "overwhelming" was unfortunate. However, the officer was required to determine whether the circumstances were sufficiently compelling to warrant the exceptional remedy of an exemption from the requirements of the Act. From a full reading of the officer’s reasons I am not persuaded that the officer held the applicants to an unfairly high standard of proof. It would, in that circumstance, be microscopic to set aside the officer's decision because of the use of a single, inappropriate word.
[23] For these reasons, the application for judicial review will be dismissed. Counsel did not pose any question for certification and I agree that no question of general importance arises on this record.
[24] In closing, I wish to acknowledge that the situation of Mrs. Sandhu and her children is one that attracts sympathy. There is nothing in the Act or Regulations that prevent them from filing a new application for permanent resident status, and supporting that application with better evidence that may attract a positive decision.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-514-06
STYLE OF CAUSE: BALJIT KAUR SANDHU ET AL.
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: CALGARY, ALBERTA
DATE OF HEARING: AUGUST 16, 2006
APPEARANCES:
PETER W. WONG, Q.C. FOR THE APPLICANTS
RICK GARVIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
CARON & PARTNERS, LLP FOR THE APPLICANTS
BARRISTERS & SOLICITORS
CALGARY, ALBERTA
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA