Ottawa, Ontario, the 22nd day of January 2007
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
SAMIA LAHCENE
Applicants
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision dated April 27, 2006 of officer Marjolaine Pelletier of the Immigration and Refugee Board of Canada (Board), who rejected requests for exemption from the permanent resident visa requirement under subsection 25(1) of the Act.
I. Issue
[2] Did the Board err in concluding that the integration of the applicants in Canada was sufficient to exempt them from the obligation of applying for permanent residence from outside Canada?
[3] The answer to this question is in the negative. Therefore, this application will be dismissed.
II. Facts
[4] The applicants, Rachid Belbey and his spouse Samia Lahcene, are Algerian citizens who arrived in Canada on April 20, 2001. They claimed refugee protection on April 23, 2001, but this claim was rejected on May 27, 2002. On November 16, 2002, the applicants filed an application as members of the post-determination refugee claimants in Canada class (PCRCC). The application for judicial review of the decision dated May 27, 2002 was dismissed on September 24, 2002. They then filed applications for permanent residence on January 22, 2003.
[5] The couple have two children who were born in Quebec: Sarah, on July 30, 2002, and Mouna, on April 4, 2005. These two minor children are included in the applications for permanent residence on humanitarian and compassionate considerations (HC).
[6] The applicants also filed an application as Algerian nationals to participate in the joint program of Immigration Canada and Immigration Québec, Ministère des Relations avec les citoyens et de l’Immigration du Québec (the MRCI), but this application was rejected.
[7] The HC applications were rejected on April 27, 2006. This decision is the subject of the application for judicial review in the case at bar.
III. Impugned decision
[8] In the assessment of the humanitarian and compassionate considerations submitted, the panel considered several factors, including the ties the applicants established in Canada, the best interests of the children, and the situation in Algeria. On this point, the Board reached the following conclusions:
[translation]
The integration of the applicants in Canada is minimal. They did not prove that there was a risk for their life or safety. In spite of the fact they know people, have friends and have lived in Canada for five years, I am not satisfied that they would face disproportionate hardship in making their applications for permanent residence from outside Canada. I am of the view that the applicant’s case does not merit or require an exemption under the Act. I considered the case of the two Canadian children as being an important factor and attached considerable weight to it.
Considering the circumstances of this case, nothing confirms that the children would be exposed to risks or could not successfully resettle in Algeria. The fact that the children would be more comfortable in general in Canada would not, in my opinion, be conclusive in a decision on humanitarian and compassionate grounds, the goal of which is to determine if there is disproportionate hardship. However, besides this fact, the applicants did not show other important factors that would support the fact that two children were born of their unions.
I have fully reviewed both of the applicants’ files and conclude that the difficulties in submitting an application outside Canada are not unusual and undeserved or disproportionate.
IV. Relevant legislation
[9] If it is justified by humanitarian and compassionate considerations, the Minister may under subsection 25(1) of the Act grant permanent residence status to a foreign national who is present in Canada. This subsection reads as follows:
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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.
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V. Analysis
Standard of review
[10] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court of Canada ruled that the standard of review applicable to a decision of an HC officer is that of reasonableness simpliciter. This means I must show curial deference in connection with the challenged decision unless the reasons for decision are not based on the evidence.
[11] The applicants claimed that the Board made reviewable errors in the assessment of the facts.
[12] With regard to the children, the applicants criticize the Board for having merely mentioned them without conducting a detailed analysis of their situation. They cite Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] F.C.J. No. 457 (F.C.A.) (QL), 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. To mention is not to examine and weigh.
[13] Meanwhile, the respondent, citing the same judgement, submits that the Board properly met its obligation in dealing with the best interests of the children. However, according to the respondent, this factor does not guarantee that the request under subsection 25(1) must be granted.
[14] I am of the same opinion as the respondent, and after having read the decision and all the evidence, I am satisfied that the Board was receptive, attentive and responsive to the fate of the children. The Board weighed each factor, for example: their young age, the lack of medical problems, and the role the applicants may play with them.
[15] In Legault, supra, Mr. Justice Robert Décary wrote the following at paragraph 12:
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. 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. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.), leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740, August 17, 1995).
[16] As regards the other “errors” of the Board alleged by the applicants with respect to their integration to the country, the same analysis applies. The Board took into consideration their training, language skills, letters from friends, and their financial management. They had two opportunities for their integration to be assessed: once by the province of Quebec, as well as by the Board. Unfortunately for them, they received negative answers each time.
[17] The Court is of the opinion that the challenged decision is detailed, balanced and supported by the evidence. There is nothing to warrant intervention by this Court.
[18]
The
parties did not raise any question to be certified, and this case does not include
any.
JUDGMENT
THE COURT ORDERS that this application for judicial review be dismissed. No question is certified.
“Michel Beaudry”
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2721-06
STYLE OF CAUSE: RACHID BELBEY
SAMI LAHCENE v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 10, 2007
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice Beaudry
APPEARANCES:
Sylvie Tardif FOR THE APPLICANTS
Gretchen Timmins FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sylvie Tardif FOR THE APPLICANTS
Montréal, Quebec
John Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec