Date: 20030821
Docket: IMM-425-03
Citation: 2003 FC 989
Vancouver, British Columbia, Thursday, the 21st day of August, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
WAI-MAN CHIK
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Immigration Counsellor Andrea Barker, dated January 10, 2003, denying an application under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "IRPA") for an exemption from the requirement to obtain an immigrant visa contained in subsection 11(1) of the IRPA on humanitarian and compassionate grounds ("H & C application").
[2] The applicant argues the decision should be set aside because it is unreasonable and improperly minimizes the best interests of the applicant's Canadian-born child. The only relevant legislative provision is subsection 25(1) of the IRPA, which states:
Humanitarian and compassionate considerations
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.
***
Séjour pour motif d'ordre humanitaire
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.
[Emphasis added.]
[3] The applicant is a citizen of the People's Republic of China ("PRC") who arrived in Canada at Vancouver International Airport on March 19, 1992, and made a claim to refugee status. At the time he made his claim, the applicant swore a statutory declaration in which he stated he did not fear persecution in the PRC and wanted "to work in Canada to earn more money to be better off later on." The applicant failed to appear at his refugee hearing and a subsequent hearing concerning the abandonment of his claim. As a result, his claim was declared abandoned and an exclusion order against him came into effect. The applicant failed to show up for these hearings because he was being held by immigration authorities in the United States. He claims he was arrested by American authorities after wandering across the border while sightseeing on September 2, 1992. He was returned to Canada in June 1993 by the American authorities, but he did not advise Citizenship and Immigration Canada ("CIC") of his return. In September 1993 the applicant applied to re-open his refugee claim, but in a decision dated December 23, 1993 the Immigration and Refugee Board dismissed his application.
[4] In 1998 the applicant married Ms. Le Cam Cathy Ngo, a Canadian citizen. CIC sent a letter dated March 30, 1999 to the applicant asking him to attend at CIC's Vancouver Enforcement Office on April 13, 1999. He failed to attend the interview, but later submitted his first H & C application to CIC on June 8, 1999. On March 10, 2000 his application was rejected and a subsequent application seeking leave for judicial review was denied by this Court on June 27, 2000. The applicant submitted a second H & C application to CIC on August 1, 2001, claiming he and Ms. Ngo would face emotional hardship if they had to separate. On September 16, 2002, Ms. Ngo gave birth to the couple's only child, a boy named Justin.
[5] The applicant's H & C application was reviewed by Counsellor Barker on January 10, 2003 without the benefit of an interview. She determined that there were insufficient grounds to warrant a special exemption from the requirements of subsection 11(1) of the IRPA. In the written reasons for her decision, the Immigration Counsellor recounted the applicant's immigration history and noted that the applicant's marriage was bona fide and had lasted over three and half years. She acknowledged that separation would be difficult, but stated that marriage in itself is not a sufficient ground for allowing an H & C application. Moreover, she stated that it is reasonable for couples who decide to marry when one spouse's immigration status is not legal or is undecided to expect separation for immigration processing. With respect to the best interests of the applicant's child, Counsellor Barker stated at page 5 of her reasons:
I have given careful consideration to the interests of the applicant's son. I note that it is the parents who decide the best interests of their children. The applicant's son is four months of age. He is not yet of an age where he would recognize or experience ties to any country at this time. I am satisfied that the applicant's son is young enough that he would be able to adjust with little difficulty to a move to the PRC. I have considered the impact of a separation between the applicant and his child if he and his wife choose to have their son remain in Canada. While I acknowledge that, if the applicant's wife chooses not to accompany him to the PRC, that the challenge for her of raising their son on her own would be difficult and demanding. I note, however, that this is the case for most single parents. I note that the applicant's wife has parents in Canada who are supportive of her and the applicant. A letter dated 25/11/02 from the father of the applicant's wife states that they rent a home owned by him and that his daughter works for him. I note also that there are many support groups in the community for single parents. I am satisfied that there would be support systems in place to assist the applicant's wife when he returns to the PRC to make his application [for permanent residence in Canada].
[6] The Immigration Counsellor then considered the applicant's degree of establishment in Canada, noting he has resided here almost continuously since 1992 and that he was worked ; since May 2000 as a truck swamper, earning $12,000 annually, even though his last work permit expired on April 25, 2000. The applicant speaks and understands some English, but cannot speak English in any effective manner. He claims to be active in the Chinese community and takes part in many Chinese community events. Counsellor Barker concluded that while the applicant has some degree of establishment in Canada, this was an insufficient reason for the granting of an exemption. She noted that the applicant's establishment in Canada was not due to circumstances beyond his control. Counsellor Barker also noted the applicant has close family members residing in the PRC and that the applicant would likely be able to find employment upon his return to the PRC.
[7] After laying out all of these factors, the Immigration Counsellor concluded at pages 5 and 6 of her reasons that the positive factors did not outweigh the cumulative negative factors. As she was not satisfied that requiring the applicant to obtain a permanent resident visa from outside Canada in the normal manner would impose neither unusual, undeserved or disproportionate hardship upon him, she declined to grant him an exemption from the requirements of subsection 11(1).
[8] As mentioned above, the applicant seeks to have Counsellor Barker's decision set aside because it is unreasonable and improperly minimizes the best interests of his Canadian-born child. Neither ground justifies the Court's intervention in this matter. It is apparent from the Immigration Counsellor's decision that she was "alert, alive and sensitive" to the best interests of the applicant's child and did not minimize the child's interests in a manner inconsistent with Canada's humanitarian and compassionate tradition, thereby adhering to the guidelines set out by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 75. She discussed the child's interests at length and rightly concluded that they favoured non-removal of the applicant; however, neither Baker nor subsection 25(1) required Counsellor Barker to accord greater weight to the best interests of the applicant's son than to the other factors she considered. While it is an important part of the analysis, the presence of a Canadian-born child does not require an immigration officer to exercise his or her discretion in favour of the parent: Legault v. Canada (Minister of Citizenship and Immigration), 212 D.L.R. (4th) 139, 2002 FCA 125 at para. 12.
[9] Furthermore, the applicant has not demonstrated the Immigration Counsellor's decision was unreasonable. The applicable standard of review for discretionary decisions on H & C applications is reasonableness simpliciter, as stated by L'Heureux-Dubé J. in Baker at paragraph 62, which means the Court will not set aside the decision of Counsellor Barker simply because it would have reached a different conclusion. As Décary J.A. stated in Legault at paragraph 11, it is not the role of the courts to re-examine the weight given to the different factors by an immigration officer. There are strong public policy reasons present in this case that favour removal of the applicant and it was reasonable for Counsellor Barker to give more weight to these public policy concerns than the factors that favoured non-removal of the applicant.
[10] The applicant arrived in Canada 11 years ago and made a blatantly futile claim for refugee status. The respondent, for reasons which are unexplained, has not removed the applicant, notwithstanding a conditional removal order which became effective in December 1993, after the Refugee Board decided against re-opening his refugee claim. The claim had been declared abandoned since the applicant did not appear for his refugee hearing because he was incarcerated by immigration authorities in the United States, who had arrested him after he "inadvertently" wandered across the border while sightseeing on September 2, 1992. In 1999, after six years of unexplained delays by the respondent, the respondent sent the applicant a letter asking him to attend an interview at the Vancouver Enforcement Office. Since he failed to attend the interview, the respondent was forced to issue a warrant for his arrest and to execute the warrant. Since the letter requiring that he attend for an interview, the applicant filed two H & C applications, the second of which is the subject of this application for judicial review. In the decision which is the subject of this review, Immigration Counsellor Barker considered the applicant's immigration history as a negative factor. Upon a probing examination of her reliance upon this factor, I am satisfied that it is legitimate public policy concern which can reasonably be weighed against the applicant in this case. The Court will not re-weigh the evidence, or undertake a new H & C assessment.
[11] The importance of these public policy concerns were described in a statement made by Décary J.A. at paragraph 19 of Legault:
In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorized to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added.]
[12] For these reasons, this application for judicial review is dismissed. No questions were submitted for certification by either party and this application does not raise any questions suitable for certification. No question will be certified.
ORDER
THIS COURT ORDERS that this application for judicial review be dismissed.
(Sgd.) "Michael A. Kelen"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-425-03
STYLE OF CAUSE: WAI-MAN CHIK v. MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: August 20, 2003
REASONS FOR ORDER AND ORDER: KELEN J.
DATED: August 21, 2003
APPEARANCES:
Mr. Aleksandar Stojicevic FOR APPLICANT
Ms. Banafsheh Sokhansanj FOR RESPONDENT
SOLICITORS OF RECORD:
Maynara & Stojicevic FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada