Ottawa, Ontario, October 26, 2006
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of a visa officer stationed at the Canadian Embassy in China, denying the applicant an exemption on humanitarian and compassionate (H & C) grounds, from the requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) and accompanying Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the “Regulations”).
BACKGROUND
[2] Peng Cheng Li (the “applicant”) is a citizen of China who is currently 18 years old.
[3] In 1993, the applicant’s parents divorced and he remained with his father who was granted custody. The applicant’s mother remarried in 1994 and moved from Harbin, where the family resided, to Beijing, but visited with her son regularly. Then in 1998, the applicant’s mother and her new husband immigrated to Canada.
[4] The applicant’s mother returned to China to visit with him in 2000, 2001, 2004 and 2005. She also kept in touch with him through frequent telephone calls and occasional letters.
[5] Between her second and third visit, the applicant’s mother was awarded custody and began the process to sponsor him to come to Canada under the family class in 2002.
[6] On November 8, 2002, the applicant’s application for a permanent resident visa was received at the Canadian Embassy in Beijing (the “Embassy”).
[7] In a letter dated January 2, 2003, the Embassy advised the applicant that he could be excluded from the family class because he was not officially declared as a dependent by his mother and examined at the time of her application. The applicant’s mother and stepfather have both stated that they were advised by the immigration consultant they hired to help them with their application process that they did not have to include her son because she did not have custody. In the same letter, the applicant was therefore asked to submit any humanitarian and compassionate reasons why his application should not be refused.
[8] In response, a letter dated February 10, 2003 was submitted by the representative of the applicant’s parents, together with supporting documentary and photographic evidence of the applicant’s situation in China and the relationship with his mother. The information provided focused on the difficult financial situation of the applicant’s father; the applicant’s current living situation (since there is no school in the rural area where his father resides, he has to live in the nearby city of Harbin with his unemployed aunt and young cousin in a very small apartment); the adverse effect of a denial of his application on his education; the willingness and capacity of the applicant’s mother and stepfather to provide financial and emotional support; as well as the close relationship between the applicant and his mother.
[9] In a letter dated April 8, 2003, the applicant’s application for permanent residence in Canada was denied.
[10] An application for judicial review of that decision was subsequently filed by the applicant. In Li v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2055, Mr. Justice John A. O’Keefe allowed the judicial review and ordered that the matter be referred to a different officer for re-determination.
[11] On January 7, 2005, visa officer Emmanuelle Gentile (the “officer”) reviewed the applicant’s file and determined that an interview was required.
[12] On February 3, 2005, a letter was sent to the applicant, requesting that he and his father attend an interview at the Embassy on April 5, 2005. The letter sent to the applicant also stated that the applicant’s mother should accompany them to the interview if she was in China.
[13] Both the applicant’s father and mother accompanied him. They were all interviewed by the officer and the Computed Assisted Immigration Processing System (the “CAIPS”) notes detail the questions and answers of the interview. Additional documentary evidence supporting the relationship between the applicant and his mother was also submitted, as requested by the Embassy. The interview lasted one hour and thirty minutes and at the conclusion, the officer informed the applicant and his parents that she had to review the file with her manager because she could not make the final decision.
[14] In a letter dated May 6, 2005, the applicant’s application for a permanent resident visa was once again denied. It is this decision that is the object of the current judicial review.
ISSUES FOR CONSIDERATION
[15] The central issue in this application for judicial review is whether the officer made a reviewable error in her assessment of the humanitarian and compassionate considerations as pertains to the applicant. More specifically:
1) Did the officer take into consideration all relevant factors in her assessment of humanitarian and compassionate considerations, in particular as relates to the best interests of the child?
2) Did the officer take into account any irrelevant factors in her assessment of humanitarian and compassionate considerations?
PERTINENT LEGISLATION
[16] The following sections from the Act and the Regulations are relevant to this application.
Immigration and Refugee Protection Act
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. (2) The officer may not issue a visa or other document to a foreign national whose sponsor does not meet the sponsorship requirements of this Act. 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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11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi. (2) Ils ne peuvent être délivrés à l’étranger dont le répondant ne se conforme pas aux exigences applicables au parrainage.
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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Immigration and Refugee Protection Regulations
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117. [...] (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if […] (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
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117. […] (9) Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes : […] d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d’une demande à cet effet, l’étranger qui, à l’époque où cette demande a été faite, était un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle.
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STANDARD OF REVIEW
[17] The decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in which Justice Claire L’Heureux-Dubé engages in a detailed pragmatic and functional analysis before deciding on reasonableness simpliciter as the proper standard, remains the leading case for the standard of review of decisions made on H & C grounds.
[18] More recently, in Terigho v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1061, Justice Richard Mosley discussed the standard of review for such decisions at paragraphs 6 and 7:
The appropriate standard of review for decisions made under section 25 is reasonableness. 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 in the statutory scheme as an exception, the fact the decision-maker is the Minister, and the wide discretion evidenced by the statutory language: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.
Reasonableness is not about whether the decision-maker came to the right result. As stated by Justice Iacobucci in Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56, 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. See also Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras 55-56.
[19] Accordingly, the decision of the officer in this case must be reviewed on a standard of reasonableness.
ANALYSIS
[20] First, it is important to understand that subsection 25(1) is an exceptional remedy for applicants who fail to meet the requirements of the Act. The test for determining whether an exception should be made under H & C grounds was articulated in Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906, at paragraph 26, where Justice Denis Pelletier wrote that the humanitarian and compassionate exemption process “is not designed to eliminate hardship; it is designed to provide relief from unusual, undeserved or disproportionate hardship”.
[21] Other important factors to keep in mind are that first, the onus on an application for an
H & C exemption, is on the applicant (Owusu v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 139) and second, it is not for this Court to re-weigh the relevant factors in reviewing the exercise of ministerial discretion (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3).
1. Did the officer take into consideration all relevant factors in her assessment of humanitarian and compassionate considerations, in particular as relates to the best interests of the child?
[22] There is no question that, when a child is involved, the ‘best interests of the child’ are a key factor in the determination of H & C grounds. The leading case on this point is Baker, above, where Justice L’Heureux-Dubé wrote at paragraph 75:
[…] The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. 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. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.
[23] In Legault v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 457 (FCA), Justice Robert Décary pulled together the lessons of Baker and Suresh, above, to suggest the following, at paragraphs 11 and 12:
In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to reexamine the weight given to the different factors by the officers.
In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. […]
[24] In proceeding with the analysis of the best interests of the child, the applicant submits that the officer made an error in not properly considering the applicant’s emotional relationship with his father and his aunt, as well as his emotional dependency on his mother.
[25] Having reviewed the transcripts of the interviews conducted by the officer, as well as her CAIPS notes, I would have to agree with the respondent that the officer did consider the applicant’s relationships with the various adults in his life, even if she did not proceed with a detailed analysis of the emotional significance of each. Whether she gave this particular factor ‘sufficient’ weight is not for this Court to determine.
[26] The applicant further submits that the officer erred in not following the instructions of Justice O’Keefe, in the previous judicial review decision, to proceed with a comparative analysis between the applicant’s situation in China and his potential situation in Canada.
[27] The respondent suggests instead that a more proper understanding of the best interests of the child analysis is found in the decision of Deputy Judge Barry L. Strayer in Yue v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 914, where he notes at paragraphs 9 and 10:
[…] With respect I do not understand the decision [Li v. Canada (MCI)] to mean that, in such circumstances, the determining factor in the child's best interests is the comparative advantage of living abroad or living in Canada and that alone. I am in respectful agreement with what Justice James Russell said in Vasquez v. Canada (MCI), [2005] F.C.J. No. 96 at paras 41-43:
41. What the Applicants are really saying in this case is that the children would obviously be better off in Canada than in Mexico or Honduras and, because they would be better off, Canada's international Convention obligations dictate that factor be given paramountcy in an H&C Decision that involves both parents and children.
42. I do not think that law, logic or established authority dictates the result urged upon the Court by the Applicants.
43. On the facts of this case, there is nothing to suggest that the children would be at risk or could not successfully re-establish themselves in Mexico or Honduras. The fact that the children might be better off in Canada in terms of general comfort and future opportunities cannot, in my view, be conclusive in an H&C Decision that is intended to assess undue hardship.
I do not understand the jurisprudence to require that the "best interests of the child" be assessed separate and apart from the question of hardship nor that it should be determinative if it indicates that the person in question would be more comfortable or have better opportunities in Canada. […]
[28] The respondent’s argument, and indeed Deputy Judge Strayer’s decision, are further informed by the Federal Court of Appeal’s decision in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687, where Justice Décary wrote, at paragraph 5, that the best interests of the child could not be assessed “in a vacuum” and that an officer could be “presumed to know that living in Canada can offer a child many opportunities” than they would not otherwise have. Justice Décary further stated at paragraph 6:
To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial - such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
[29] Having considered the relevant jurisprudence, I must concur with the respondent that the officer was perfectly justified in considering the applicant’s situation in China in comparison to other children in China. While the applicant might be ‘better off’ living with his mother in Canada than he would be living with his father in China, such is not the relevant test, particularly since the result of such a test would be almost a foregone conclusion. As Deputy Judge Strayer noted in Yue, above, at paragraph 9:
Yet it would be easy to assume that, because this applicant says she would like to join her mother in Canada and, from what we know of the comparative standards of living it would, in an ideal world, be "nicer" for her to come to Canada. […]
[30] While I have no doubt that the officer was aware of the fact that the applicant’s standard of living would be much higher in Canada than it would be in China, what she did not find was that his situation in China amounted to unusual or disproportionate hardship that would justify an exemption from the Act, as per the requirements of subsection 25(1). Based on the evidence before me, I cannot find such a conclusion to be unreasonable.
2. Did the officer take into account any irrelevant factors in her assessment of humanitarian and compassionate considerations?
[31] The applicant also submits that any mistake the mother may have made in not declaring him is irrelevant to what is in the child’s best interests, so that the failure of the applicant’s mother to declare him as a dependent at the time of her application should not have been considered by the officer in her determination of humanitarian and compassionate grounds.
[32] In response, the respondent argues that the failure of the mother to declare the applicant in her own application for permanent residence is a relevant factor to be considered in a humanitarian and compassionate assessment, as it falls within the realm of public policy considerations, as indicated in Yue and Hawthorne, above.
[33] I agree with the respondent that it was not improper for the officer to include the failure of the mother to properly declare the applicant as one public policy factor to be considered in the humanitarian and compassionate assessment.
[34] Therefore, this Court concludes that the officer did not make a reviewable error in her assessment of humanitarian and compassionate grounds as pertains to the applicant.
[35] Counsel for the applicant proposed questions for certification:
1.Given that the reasons for judgment of O’Keefe J. were based on the finding of mixed law and fact that the situation of the Applicant required a comparison between Canada and China in terms of the Applicant’s future interest, and given that the analysis of that comparison or a refusal to comply with the judicial directive required to be, along with any other reasons, in the reasons of the visa officer, did the visa officer in this case flout the Order of the Court by carrying out neither duty and is that a reviewable error?
2. Was the comparison referred by O’Keefe J. in his Reasons intended to be of an artificial nature or one that truly represented the best interests of the child regarding his future?
3. Given the acknowledgement by the Minister’s Representative at the hearing that the application had subject to a penumbral effect caused by the mother’s misrepresentation under ss. 117(9)(d), was the inclusion of this factor a matter of irrelevance with respect to the decision of the visa officer?
a) Whether the inclusion of ss. 117(9)(d) creates an unreasonably high bar impossible to overcome in the context of an H&C application assessed outside of Canada made by an undeserving infant?
b) In addition, whether the inclusion of implied misrepresentation by the sponsor as a relevant factor in an overseas H&C application creates an undue advantage for similar applicants with a history of misrepresentation who have applied inland? In other words, whether the Applicant who applies for H&C consideration outside of Canada enjoys a disadvantage which does not otherwise burden those who apply inside Canada?
[36] In my view, the three questions are referring to the particular facts of this case and do not involve a question of general importance. Therefore, no question will be certified.
JUDGMENT
1. The application is dismissed;
2. No question for certification.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4234-05
STYLE OF CAUSE: PENG CHENG LI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 11, 2006
REASONS FOR JUDGMENT AND JUDGMENT: BLAIS J.
APPEARANCES:
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CECIL L. ROTENBERG, Q.C. AND INNA KOGAN
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ROBERT BAFARO
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SOLICITORS OF RECORD:
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CECIL L. ROTENBERG, Q.C., BARRISTERS & SOLICITORS, TORONTO
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JOHN H. SIMS, Q.C., DEPUTY ATTORNEY GENERAL OF CANADA
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