Date: 20030428
Docket: IMM-1762-02
Citation: 2003 FCT 526
OTTAWA, ONTARIO, this 28th day of April 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
DANEY SOK EK
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision of the Citizenship and Immigration Officer ("Immigration Officer") dated March 28, 2002, and communicated to Daney Sok Ek ("the Applicant") on April 8, 2002, wherein the Immigration Officer determined the Applicant did not have sufficient humanitarian and compassionate ("H & C") grounds to warrant approval for an exemption from the requirement of subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2. The Applicant seeks an order quashing the decision and an order remitting the matter back for a redetermination by a different immigration officer.
Background
[2] The Applicant was born on February 5, 1989, in Phnom Phen, Cambodia. She is a citizen of Cambodia who came to Canada via the United States with her mother on August 20, 1998, and made a port of entry refugee claim at Peace Bridge. Following their arrival they resided with her maternal uncle in Toronto.
[3] The refugee claim made by the Applicant and her mother was abandoned on November 6, 1998, because of a failure to file the Personal Information Form on time.
[4] The Applicant alleges that her mother returned to Cambodia alone in 1999, fearing that she was a financial burden on her brother and worrying about the welfare of her family back home. She left the Applicant in the care of her brother in Toronto.
[5] Some time after the Applicant's mother left Canada, the Applicant's aunt and uncle decided that they would try to adopt the Applicant. The Applicant's mother and father both consented to the adoption and provided the necessary written consents, which were included in the application for adoption.
[6] The aunt and uncle made two separate applications but in both cases the Superior Court decided that adoption was not necessary and granted custody instead.
[7] On January 19, 2001, the Applicant submitted an H & C application to the Case Processing Centre ("CPC") in Vegreville, Alberta. She received confirmation from the CPC that her application for permanent residence had been received and transferred to the Canadian Immigration Centre ("CIC") in Woodbridge. The Applicant received correspondence dated February 18, 2002, from CIC indicating that any updated or additional information to be considered upon review of the application was to be submitted within 30 days of the date of the correspondence.
[8] On April 8, 2002, the Applicant received correspondence from CIC Scarborough stating that exemption of the requirement to apply for and obtain a visa prior to coming to Canada would not be granted.
The Immigration Officer's Decision:
[9] The Immigration Officer's reasons for the decision state the following:
The uncle and the wife looked after the applicant and obtained custody on July 2000. On 22 January 2001, applicant submitted an H & C application for Permanent Residence from within Canada accompanied by a sponsorship application by her uncle. Applicant is not eligible to be sponsored by the uncle as she is not a dependent neither an orphan child. No proof has been presented to prove the relationship with the uncle, no family census, no birth certificate or ppt for the applicant.
Applicant has been attending school in Canada without a student authorization. Applicant stated that she would face great distress and hardship if she were forced to leave Canada as she has a stable and happy home here which she will not have in Cambodia because of the political instability there.
It is noted that no documentary evidence has been presented to corroborate the departure date of the applicant from Cambodia, her length of residency and status in U.S.A. No explanation provided as to why applicant and mother did not claim refugee status in U.S.A. when they fled Cambodia if they feared for their safety. No date had been provided as to when the applicant's mother has left Canada and returned to her family in Cambodia.
Applicant has been living in Canada since 1998 and in my opinion it is an unusual and an undeserved hardship to be separated from her parents and siblings who still reside in Cambodia. I have considered the fact that applicant is living in a stable home with her uncle, but the best interests of the child in this case is to be reunited with her parents and siblings. By her presence in Canada, the applicant is deprived from the parental & emotional bond that each child is entitled to. Applicant is entitled to grow with her parents & siblings and cherished by their love and care.
Based on all evidence, I have concluded that the best interests of the child are to leave Canada and return to Cambodia and be reunited with her parents and family. A(9)1 waiver denied. Application refused
Arguments
Applicant's Submissions:
Ignoring or Misconstruing Evidence:
[10] The Applicant submits that the Respondent erred by making an erroneous finding of fact that did not take into account all the evidence. The Immigration Officer stated that there was no proof of the Applicant's relationship to her uncle and that the Applicant did not submit a birth certificate. In the application, the Applicant had included copies of her birth certificate as well as copies of affidavits sworn by her aunt and uncle for the purposes of the adoption that attest to their relationship with the Applicant. At the hearing of this matter before me, counsel for the Respondent conceded that the relationship between the Applicant and her uncle was established by the affidavit evidence.
[11] The Applicant submits that this is a case where the best interests of the child should be considered even though it does not involve a Canadian-born child (Koud v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.1237). The Immigration Officer ignored several important factors in the consideration of the best interests of the child in this case, including her relationship with her uncle's family, the custody order, the difficulty she would face if she were required to return to Cambodia, her connection to Canada, and the absence of any evidence about the nature of her relationship with her biological parents.
Standard of Review:
[12] The Applicant submits that the appropriate standard of review for discretionary H & C grounds cases is reasonableness simpliciter (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. An unreasonable decision is one that is not supported by any reasons that can stand up to a somewhat probing examination.
Best Interests of the Child:
[13] Where the exercise of discretion by officers concerns the best interests of the child, the Supreme Court has reiterated that decisions may be unreasonable if they are in conflict with H & C values. Where the officer has engaged in a deficient analysis of the best interests of the child, the decision to refuse the application is not reasonably open to the decision maker (Reis v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 431; Jack v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1189; Navaratnam v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1870). An immigration officer must demonstrate that he or she has been "alert, alive and sensitive" to the best interests of the child in the case (Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687; Legault v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 457). The Applicant submits that the officer failed to fully take into account the best interests of the Applicant child. Crucial factors that were not considered include her wishes, her ties in Canada and her degree of establishment since 1998, the emotional bond she has with her custodial relatives and their children, and whether she has maintained any ties to her biological parents. Nor was the Applicant given an opportunity in a personal interview to address any concerns the officer had prior to a decision being made.
Procedural Fairness:
[14] Procedural fairness applies to H & C decisions (Baker, supra). Although it was determined in Baker, supra, that no hearing was required, in that case credibility was not at issue. Where a serious issue of credibility is at stake, fundamental justice requires an oral hearing (Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177. The Applicant submits that in the case at bar, issues of credibility were raised by the repeated references in the officer's decision to the lack of proof of certain facts. Most of those facts relate to matters that were pertinent to the Applicant's mother and not to the Applicant herself and should not have negatively impacted on her credibility. In the alternative, the Applicant submits that, given the seriousness of the case and the issues with respect to credibility, the Applicant should have been given an opportunity to satisfy the Immigration Officer on any issues of credibility in an oral interview. The failure to provide an interview breached procedural fairness.
Respondent's submissions:
[15] The Respondent submits that the decision to grant an H & C application is highly discretionary and to successfully challenge such a decision on judicial review an applicant must show that the decision maker erred in law, proceeded on the basis of a wrong or improper principle, or acted in bad faith (Mohammed v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1508; Sidhu v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 741)
[16] The Immigration Officer concluded not only that the Applicant would not face unusual or disproportionate hardship if required to leave Canada, but determined that remaining in Canada, separated from her family, was in itself an undeserved hardship.
[17] The Respondent submits that the Immigration Officer did not ignore any evidence. He merely commented on the lack of supporting documents provided by the Applicant. The areas where the Applicant claims that evidence was ignored were not at issue in this case so that the birth certificate is irrelevant.
[18] Because the child in question is the Applicant, the impact of the decision on the child is the central consideration in this case. The Immigration Officer did take the best interests of the child into consideration.
[19] The Applicant's submissions with respect to lack of procedural fairness are unsupported.
[20] Merely disagreeing with an unfavourable decision is not sufficient to raise a reviewable error of law.
Issues
[21] The issues are as follows:
1. What is the appropriate standard of review?
2. Were the best interests of the child adequately considered?
3. Was there a violation of procedural fairness in this case?
Analysis
Statutory Framework:
[22] The relevant statutory provisions are as follows:
Immigration Act, R.S.C. 1985, c. I-2:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
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9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
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| 114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
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114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
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Standard of Review
[23] The Court must first determine what standard of review to apply to this case.
[24] The standard of review for H & C decisions was thoroughly explored by the Supreme Court of Canada in Baker, supra. After applying the pragmatic and functional approach articulated in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, L'Heureux-Dubé J. at paragraph 62, held that:
I conclude that 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 within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division, and Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
[25] The reasonableness simpliciter standard was articulated by Iacobucci J. in Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [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. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[26] This does not mean, however, that the Court should undertake to reweigh the evidence in the case (Legault, supra)
Did the Immigration Officer give adequate consideration to the best interests of the child in this case?
[27] The concept of the best interests of the child was first articulated by the Supreme Court of Canada in Baker, supra. L'Heureux-Dubé J. discussed the best interests of the child in paragraph 75 of her reasons. She wrote:
The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider the 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.
She concluded at paragraph 73:
The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.
[28] The case of Koud, supra, establishes that the best interests of the child principle also applies to children who are not Canadian citizens, and this issue was conceded by the Respondent's counsel at the hearing.
[29] In Legault, supra, the Federal Court of Appeal stated at paragraph 13:
The mere mention of the children is not sufficient. The interests of the children is a factor that must be examined with care and weighed with other factors.
[30] In Koud, supra, Lemieux J. summarized which types of cases deserve intervention by the Court and he referred, at paragraph 14, to situations where the Immigration Officer "took the child's best interests into consideration, but inadequately or deficiently."
[31] In the case at bar, given that the Applicant is a child, the best interests of the child are directly engaged. With respect to the best interests of the child, the Immigration Officer stated:
Applicant has been living in Canada since 1998 and in my opinion it is an unusual and an undeserved hardship to be separated from her parents and her siblings who still reside in Cambodia. I have considered the fact that applicant is living in a stable home with her uncle, but the best interests of the child in this case is to be reunited with her parents and siblings. By her presence in Canada, the applicant is deprived from the parental & the emotional bond that each child is entitled to. Applicant is entitled to grow with her parents & siblings and cherished by their love and care.
Based on all the evidence, I have concluded that the best interests of the child are to leave Canada and return to Cambodia and be reunited with her parents and family...
[32] The Respondent argues that this passage indicates that the best interests of the child were considered because the Immigration Officer concluded not only that the Applicant would not face unusual or disproportionate hardship if required to leave Canada, but determined that remaining in Canada, separated from her family, was undeserved hardship on the Applicant.
[33] A review of the reasons for the decision, however, does not reveal that the best interests of the child were properly considered as required by the case law. In fact, the reasons indicate that the Officer almost completely failed to analyse what hardship would be faced by the Applicant child if she were forced to leave Canada. The Officer did not discuss the adjustment she might face after being away from Cambodia for so long and only gave cursory mention to her establishment in Canada and her wishes. No real consideration was given to her schooling or the bond she had with her aunt, uncle and cousins whom the evidence reveals are her current family. The Officer merely mentions the Applicant's wish to remain here without discussing it or analysing the hardship she will face if she does not. While the importance of her biological ties may indeed weigh on the side of her being reunited with her family, the Officer's failure to analyse or discuss the evidence that was available and the hardship she would face if she were removed from Canada is unreasonable and an error. Contrary to the Respondent's submissions, the Officer was not "alert, alive and sensitive" to the best interests of the child in this case.
Conclusion
[34] I also agree with the Applicant that the Officer ignored and/or misconstrued evidence, made unreasonable inferences, and gave reasons that did not reasonably relate the evidence before him to an extent that is also reviewable. Having concluded, however, that the best interests of the child were not considered in a way required by the authorities, I do not find it necessary to provide details on these additional errors. For similar reasons, a consideration of the Applicant's assertions concerning a lack of procedural fairness in this case is not necessary.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the March 28, 2002, decision is set aside and the matter is remitted for reconsideration by a different Immigration Officer.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1762-02
STYLE OF CAUSE: DANEY SOK EK v. MCI
DATE OF HEARING: March 27, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Justice James Russell
DATED: April 28, 2003
APPEARANCES BY: Ms. Clara Ho
For the Applicant
Mr. Tamrat Gebeyehu
For the Respondent
SOLICITORS OF RECORD:
Ms. Clara Ho Barrister and Solicitor
Metro Toronto Chinese and Southeast Asian Legal Clinic 180 Dundas St. West, Ste 1701
Toronto, Ontario
M5G 1Z8
For the Applicant
Mr. Tamrat Gebeyehu Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent
FEDERAL COURT OF CANADA
Date:20030428
Docket: IMM-1762-02
BETWEEN:
DANEY SOK EK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER