PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision of an immigration officer dated July 21, 2006, which denied the applicant’s application for permanent residence on humanitarian and compassionate (H&C) grounds.
[2] The applicant seeks:
1. an order quashing the decision that there were insufficient H&C grounds for processing her application for permanent residence from within Canada; and
2. an order requiring that the respondent process the application for landing from within Canada in accordance with the policy provisions set out in IP 5 of the immigration manual.
Background
[3] The applicant, Denyse Walker, is a citizen of Trinidad. She first entered Canada with her daughter in August 1988. In 1993, she was convicted of theft under $1000 and fraud under $1000, contrary to paragraphs 334(b) and 380(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. She was also convicted of assault on April 27, 1995, contrary to section 266 of the Criminal Code. The applicant was deported after she failed to report for inquiries and for her criminal convictions.
[4] The applicant obtained a visitor’s visa on October 17, 1995, and returned to Canada on October 21, 1995. She married Richard Walker, who was a permanent resident of Canada. The applicant used her married name and failed to disclose her convictions and previous deportation when she obtained her visa. She applied for permanent residence on H&C grounds on June 25, 1996, and the application received preliminary approval on July 8, 1996. However, information about the applicant’s prior convictions and deportation came to light in January 2002, and the application was denied on April 4, 2002.
[5] The applicant applied for a Minister’s permit in order to overcome her inadmissibility, however, this application was refused. The applicant also applied for a pardon for her criminal convictions in September 2002. She received a letter from Pardons Canada indicating that the National Parole Board required a valid immigration document in order to grant her pardon. The applicant was advised that without this document, her pardon would become dormant and would not be granted. The letter also stated:
You sent us a letter from Immigration Canada suggesting you could have applied for your Minister’s Permit in 1998. We have tried to encourage you several times to forward the up to date Minister’s permit to our office, however, have not received it. The National Parole Board can not complete your Pardon without this document.
[6] A deportation order was issued against the applicant on October 10, 2002, on the basis of inadmissibility. She submitted an application for temporary residence in November 2003, which was refused in February 2004, on the basis of misrepresentation and criminality. The applicant applied for a Pre-Removal Risk Assessment (PRRA) on March 18, 2004, which was denied on July 12, 2005. On August, 3, 2005, she filed an application for judicial review, challenging a removal officer’s decision not to defer removal. This application was discontinued on August 8, 2005.
[7] On July 19, 2004, the applicant applied for permanent residence on H&C grounds, and as a member of the spouse in Canada class. At the time of the application, she had five children in Canada. Her eldest daughter, Darcelle, was already a permanent resident of Canada. Her four other children were born in Canada: Kerron (born in 1988), twins Brittany and Tiffany (born in 1997) and Tyler (born in 1998).
[8] The immigration officer responsible for assessing the applicant’s H&C application contacted Pardons Canada on July 17, 2006, in order to determine whether the applicant had to provide a Minister’s permit in order to apply for a pardon. Pardons Canada indicated that the applicant had been asked to provide immigration documentation, such as an application for permanent residence, but her file had been closed after she failed to contact the agency. The applicant’s H&C application was denied by decision dated July 21, 2006. This is the judicial review of the officer’s decision to deny the applicant’s H&C application.
Officer’s Reasons
[9] By letter dated July 21, 2006, the applicant was advised that her application for permanent residence on H&C grounds had been refused. The applicant’s application for permanent residence under the spousal policy had also been refused. She did not meet the requirement under paragraph 72(e)(i) of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations), due to inadmissibility. She had been convicted of theft, fraud and assault.
[10] The officer’s notes formed part of the reasons for the decision. The officer noted that the applicant was married to a Canadian citizen. She also had four children who were Canadian citizens, and one child who was a landed immigrant in Canada. The applicant claimed that if she left her children with her husband, who was the family’s source of income, he would be unable to work.
[11] The officer telephoned Pardons Canada on July 17, 2006, and asked whether the applicant had to provide a Minister’s permit in order to apply for a pardon. Pardons Canada indicated that the applicant had been asked to provide immigration documentation, such as an application for permanent residence; however, she failed to do so and her file was closed. The applicant had previously applied for permanent residence on H&C grounds. She failed to report her criminal offences at the time and was refused a Minister’s permit, which would have overcome her inadmissibility.
[12] Given that the applicant had family in Canada, there would be some hardship should she be temporarily separated from them. However, the children could accompany their mother outside the country if their father was unable to care for them. In addition, the applicant was not well established in Canada. She had a low-paying job and had not participated in academic upgrading. She had not provided a pardon for her previous convictions and stated that she could not get one without a Minister’s permit.
[13] The officer found that the applicant could have applied for a pardon and had not followed through with the process. Although she may not have had knowledge of the process, it was her responsibility to find out what she had to do. By letter dated October 6, 2005, she was asked to provide the officer with certain documents regarding her convictions, in addition to any pardons. She provided two letters from the Pardons agency, which stated that more information was required in order to proceed with the pardons. The court reports and police records were never provided by the applicant.
[14] Given her past non-compliance with immigration legislation and the end result of deportation, it was reasonable to believe that the applicant had some knowledge of the immigration process and of the importance of complying with such legislation. She chose to re-enter Canada after deportation by failing to provide information regarding her inadmissibility, her previous deportation, and by using her new married name. As a result, the officer found that there were insufficient H&C factors to justify an exemption in her case.
Issues
[15] The applicant submitted the following issues for consideration:
1. Did the officer breach the principles of fairness by considering extrinsic evidence?
2. Did the officer err in failing to properly assess the children’s best interests?
3. Did the officer place too much emphasis on the applicant’s inadmissibility?
4. Should a Minister’s permit have been issued?
Applicant’s Submissions
[16] The immigration officer contacted Pardons Canada and was advised that it would have been sufficient for the applicant to provide a copy of her immigration application in order to obtain a pardon. The officer then found that the applicant had failed to properly execute the steps for seeking a pardon and had to bear the consequences of her actions. This information was not shared with the applicant. It was submitted that the officer breached the principles of fairness by relying upon extrinsic evidence and failing to give applicant an opportunity to respond to it (see Batica v. Canada (Minister of Citizenship and Immigration), 2006 FC 762).
[17] The applicant submitted that the officer failed to consider the best interests of her children, pursuant to subsection 25(1) of IRPA. The officer did not assess how the children would be impacted by their removal from Canada, or by the removal of their mother, should she go to Trinidad without them. It was submitted that it was insufficient for an H&C officer to simply state that the interests of the children had been considered (see Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, 2002 FCA 475).
[18] The applicant submitted that the officer erred by focusing upon her negative immigration history and criminal convictions, to the exclusion of all other factors (see Duong v. Canada (Minister of Citizenship and Immigration), 2001 FCT 192 (F.C.T.D.)).
[19] The applicant submitted that the officer failed to consider the possibility of issuing her a Minister’s permit. Such a permit would have allowed the applicant to complete the pardon process, thereby overcoming her inadmissibility. The applicant submitted that she had a legitimate expectation that the officer would exercise his or her discretion and follow the guidelines in this regard (see Bendahmane v. Canada (Minister of Employment and Immigration), [1989] 3 F.C. 16, (1989) 61 D.L.R. (4th) 313 (F.C.A.)).
Respondent’s Submissions
[20] The respondent submitted that the information obtained by the officer from Pardons Canada on July 17, 2006 was not extrinsic evidence and that the principles of natural justice were not breached. The letter from Pardons Canada included in the applicant’s application indicated that: (1) she was required to provide the agency with an immigration document (not necessarily a Minister’s permit); (2) Pardons Canada made numerous efforts to contact the applicant and discuss the processing of her pardon application; and (3) the pardon would not be granted if she did not contact the agency. The respondent noted that the applicant did not follow-up with Pardons Canada. It was submitted that it was therefore open to the H&C officer to find that the applicant bore the onus of pursuing her pardon application.
[21] The respondent submitted that the officer considered the best interests of the applicant’s children. The officer noted that since the applicant was their primary caregiver, they could accompany her back to Trinidad if their father could not care for them. The respondent submitted that the interests of the child did not outweigh all other factors to be considered in an H&C application. It was submitted that so long as the officer weighed their interests and did not minimize their best interests in a manner inconsistent with the H&C tradition and the Minister’s guidelines, it was not open to the Court to re-examine the weight assigned to this factor by the officer (see Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125).
[22] The respondent submitted that the officer provided cogent reasons for the negative decision, including: (1) the best interests of the applicant’s children; (2) her negative immigration history; (3) her criminal convictions and misrepresentations; (4) her level of establishment in Canada; and (5) the hardship she would face if she returned to Trinidad. The respondent submitted that where the applicant had no legal right to remain in Canada, and had done so absent circumstances beyond her control, she should not be rewarded for having accumulated time in Canada (see Chau v. Canada (Minister of Citizenship and Immigration) (2002), 26 Imm. L.R. (3d) 100, 2002 FCT 107 (F.C.T.D.)).
[23] The respondent submitted that so long as the officer considered the relevant factors from an H&C perspective, the Court should not interfere with the weight attributed by the officer to the different factors. It was submitted that an officer had discretion to deny landing to a non-Canadian parent of Canadian-born children, even where such refusal may result in the parent and child returning to a country where there were less favourable economic prospects (see Gallardo v. Canada (Minister of Citizenship and Immigration), (2003) 230 F.T.R. 110, 2003 FCT 45 (F.C.T.D.)).
[24] The respondent submitted that the officer was not obligated to assess whether a temporary resident permit was appropriate in the applicant’s case. It aws submitted that there was no indication that the officer would have made a positive decision, but for the applicant’s inadmissibility (see subsection 24(1) of IRPA).
Analysis and Decision
Standard of Review
[25] An immigration officer’s decision with respect to an H&C application is subject to review on the standard of reasonableness (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999) 174 D.L.R. (4th) 193). It is well established that breaches of procedural fairness are subject to review on the standard of correctness.
[26] I will first deal with Issue 2.
Did the officer err in failing to properly assess the children’s best interests?
Pursuant to subsection 25(1) of IRPA, the best interests of children affected by an H&C decision must be taken into account by immigration officers. The applicant submitted that the officer was not alive to the best interests of her children. The respondent submitted that the officer had considered the best interests of the applicant’s children, and found that they could accompany their mother to Trinidad if their father could not take care of them.
[27] In the case at hand, the officer did not explicitly refer to the “best interests” of the applicant’s children. The officer noted that the applicant had five children in Canada, and noted their ages and immigration status. The officer’s notes also state:
It is noted that the applicant has a husband and children in Canada and that there would be some hardship in being temporarily separated from them while immigration processing takes place. It is however reasonable to believe that the young children could accompany their mother while she is awaiting her immigration process if the applicant’s husband is unable to care for them because he is working.
[28] In her H&C application, the applicant listed the following reasons for seeking an exemption from the requirement to apply for permanent residence from outside Canada:
[…] I have a husband and 5 children who live here. My husband is a permanent resident and my 4 children are born here, only 1 was born in Trinidad, and she has received her permanent residence since 17th May 02. I would not like to leave them for any long time.
[29] The applicant listed the following hardships that she would suffer should her application for permanent residence be made from outside Canada:
I would have to leave my children, where my husband is the sole provider for our family. He would not be able to go to work. Also, I would not like to leave my family for any period of time. They are young 7 yr old twin girls 6 yr old boy. My older ones are a girl 18 yrs old and 15 yr old boy. Money is also in need.
[30] The best interests of children affected by an H&C decision are an important factor and must be weighed properly against other factors (see Hawthorne above)..
[31] While the officer noted that the children could accompany their mother to Trinidad, no mention was made of the impact of such a move upon their relationship with their father, their education or overall well-being. I would note that there was evidence on file that they were a close-knit family, and that the applicant’s children were attending school in Canada; however these issues were not addressed by the officer. In addition, the officer failed to consider how the best interests of the children would be affected if they did not accompany the applicant to Trinidad.
[32] In my view, the officer was not alive to the best interests of the children, beyond acknowledging the fact that they could accompany their mother to Trinidad should their father be unable to become their primary caregiver. While it was open to the officer to weigh the children’s best interests against other relevant considerations in the context of the H&C application, I do not believe that the officer sufficiently addressed the children’s interests in the case at hand.
[33] The application for judicial review is therefore allowed and the matter is referred to a different immigration officer for redetermination.
[34] Because of my finding on Issue 2, I need not deal with the remaining issues.
[35] Neither party wished to submit a proposed serious question of general importance for certification for my consideration.
JUDGMENT
[36] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different panel of the Board for redetermination.
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set out in this section.
The Immigration and Refugee Protection Act, S.C. 2001, c. 27.:
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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.
24.(1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
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.
24.(1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que les circonstances le justifient, un permis de séjour temporaire — titre révocable en tout temps.
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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FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4390-06
STYLE OF CAUSE: DENYSE WALKER
APPLICANT
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
RESPONDENT
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
Ms. Krassina Kostadinov
Ms. Margherita Braccio
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada