Date: 20040908
Docket: IMM-7037-03
Citation: 2004 FC 1227
Ottawa, Ontario, the 8th day of September 2004
Present : THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
RONALD JEAN-FRANÇOIS
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Immigration Officer Bernier (the officer) dated June 16, 2003, that the applicant was not admissible to Canada for humanitarian or compassionate considerations under subsections 11(1) and 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
THE FACTS
[2] The applicant is a 27-year-old citizen of Haiti. He arrived in Canada on September 10, 1999, and he claimed refugee status on October 1, 1999. The refugee claim was heard on October 31, 1999, and on November 7, 2000, the Immigration and Refugee Board (IRB) determined that he was not a Convention Refugee. On November 22, 2000, the applicant made an application under the Post-determination refugee claimant in Canada class (PDRCC) program, an application which had not been decided when the Act came into force.
[3] On July 29, 2001, the applicant applied for a "Request for Exemption from Permanent Resident Visa Requirement [with risk]" in support of which he filed documents. The humanitarian reasons raised were that he had recently been married to a Canadian citizen and that he feared for his safety in Haiti because of the difficult conditions existing in that country. Further, he claimed that he was personally targeted by armed men involved in drug trafficking. The applicant also wrote, under the heading of "humanitarian and compassionate grounds" as "other reasons", the fact that he has always supported himself since his arrival in Canada, the fact that he was trained in transporting dangerous goods and that he has been working at Joncas Telexpert at Place Dupuis since August 29, 2002.
[4] On March 22, 2003, the applicant married Myrtho Polynice, a Canadian citizen. At the time, Ms. Polynice was pregnant with their child. On March 28, 2003, the respondent informed the applicant that his PDRCC application would be processed pursuant to the provisions of the Act relating to Pre-removal risk assessment (PRRA). On April 28, 2003, the applicant filed documents informing the PRRA program officer of his new marriage as well as his wife's pregnancy.
THE OFFICER'S DECISION
[5] On June 16, 2003, the officer denied the application based on humanitarian and compassionate considerations on the grounds that the applicant had not met his burden of proving the existence of unusual, undeserved or disproportionate hardship justifying that he apply for permanent residence from Canada. She also determined that the applicant had not established the existence of a personal risk if he were to return to Haiti, since the entire Haitian population was having a difficult time. The officer also indicated under [TRANSLATION] humanitarian and compassionate grounds raised by the applicant that the applicant was "[TRANSLATION] apparently the father of a Canadian daughter who would be about 7 months old today. However, there is no information about his daughter in the file". The officer determined that the applicant had married and had a child in Canada before obtaining status in the country and that he should have known that one day, he would be obliged to return to Haiti in order to regularize his legal situation in Canada.
ISSUES
[6] Basically, this application raises the following two issues:
1. Did the officer err in determining that the marriage was an insufficient basis to allow the application for exemption under the Act?
2. Did the officer fail to consider the best interests of the child or make a patently unreasonable error of fact in her summary of the facts?
THE STANDARD OF REVIEW
[7] In Baker v. Canada (Minister of Citizenship and Immigration), [1992] 2 S.C.R. 817, [1999] S.C.J. No. 39 (QL), the Supreme Court of Canada held that the standard of review of a decision by an officer pursuant to subsection 114(2) is that of reasonableness simpliciter.
The legislative regime:
[8] Subsections 11(1) and 25(1) of the Act provide the following:
| 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. |
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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. |
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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. |
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ANALYSIS
1. Did the officer err in determining that the marriage was an insufficient basis to allow the application for exemption under the Act?
[9] In her reasons, the officer wrote:
[TRANSLATION]
First, it is important to clarify that since the new Immigration Act came into force on June 28, 2002, marriage is no longer considered to be a sufficient basis for a favourable decision.
I cannot see how such a statement could be considered wrong, particularly in the context of an application for exemption on humanitarian and compassionate grounds. Marriage in itself does not lead automatically to a given result, it is but one important factor among others to be considered in such an application.
[10] After a careful review of the officer's decision, I note that she considered all of the relevant factors involved in the assessment of an application of a person married to a Canadian citizen who does not sponsor him, as provided under the Act as well as in the guidelines of the Immigration Manual, chapter IP5 at sections 12.6 et 12.7. The officer determined that the applicant and his family would not face any difficulties other than those inherent to the removal of a foreign national living in Canada without legal status. In this case, the facts establish that the officer considered that the applicant was married and that he had a child born of this union, but she also observed the lack of evidence regarding the relationship that he had with his wife, the lack of information on his daughter and on his role as a provider for the family, the lack of a sponsorship, the lack of information on his wife's situation as well as the lack of evidence on what would be, in his case, undeserved or disproportionate hardship. I share the respondent's opinion that neither the marriage nor even the existence of children born in Canada are determining factors when the Minister must decide such a question and I refer to the reasons in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 369 (C.A.):
In short, the immigration officer must be "alert, alive and sensitive" (Baker, supra, at paragraph 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. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3 S.C.R. vii).
[11] In this case, the officer did not err in her analysis of the evidence or in her findings relating to the applicant's marriage.
2. Did the officer fail to consider the best interests of the child or make a patently unreasonable error of fact in her summary of the facts?
[12] It is the applicant's responsibility to provide the evidence necessary to enable the officer to consider the best interests of the child (Jesuthasan v. Canada (Minister of Citizenship and Immigration) (2002), 224 F.T.R. 196, at page 200 (F.C.T.D.) and at paragraph 5 of Owusu v. Canada (Minister of Citizenship and Immigration) 2004 FCA 38). In this case there was no evidence filed regarding the best interests of the child. The evidence only tells us that the child was born and that she lives in Canada with her mother.
[13] I do not accept the applicant's argument that the officer did not specifically use the term "best interests of the child" anywhere in her reasons. Rather, I accept the respondent's position to the effect that this approach is incorrect and formalistic (Hawthorne v. Canada (Minister of Citizenship and Immigration) [2003] 2 F.C. 555 (C.A.) at pages 562 and 563).
[14] In light of the evidence filed, I am satisfied that when she made her decision, the officer reasonably considered all of the evidence that the applicant had brought in support of his application. It is also my opinion that, despite the fact that it may have been preferable if she had done so, the immigration officer was under no obligation to reach out to the applicant to point out the weaknesses in his evidence and in his arguments or to provide him with the opportunity to correct them or to suggest other remedies to him.
[15] For these reasons, the application for judicial review will be dismissed.
[16] The parties did not propose the certification of a serious question of general importance as contemplated by paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. No serious question of general importance will be certified.
ORDER
THE COURT ORDERS:
1. The application for judicial review is dismissed.
2. No serious question of general importance is certified.
"Edmond P. Blanchard"
Judge
Certified True Translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7037-03
STYLE OF CAUSE: Ronald Jean-François v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 24, 2004
REASONS FOR ORDER: Blanchard J.
DATE OF REASONS: September 8, 2004
APPEARANCES :
William Sloan FOR THE APPLICANT
Ian Demers FOR THE RESPONDENT
SOLICITORS OF RECORD :
Me William Sloan FOR THE APPLICANT
400, McGill - 2nd floor
Montréal, Quebec H2Y 2G1
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Montréal, Quebec H2Z 1X4