Ottawa, Ontario, March 24, 2005
Present: The Honourable Mr. Justice Blais
BETWEEN:
KWAN HYUNG LEE
MI SOOK LEE
YE JIN LEE
SU JIN LEE
HAN NA LEE
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) of a decision of an immigration officer (the officer) dated February 4, 2004, in which the officer refused Mr. Kwan Hyung Lee (the applicant) and his family's (collectively the applicants) request for an exemption from certain legislative requirements on humanitarian and compassionate (H & C) grounds.
FACTS
[2] The applicant, his wife Mi Sook Lee, and his three daughters Ye Jin Lee (23), Su Jin Lee (22) and Han Na Lee (20), are all citizens of Korea. Although not entirely clear why it is that the applicants left Korea, it is mentioned that the applicant was blacklisted there for his views on seeking a means of achieving a re-unification of North and South Korea and that he feared persecution because of this. He and his family therefore left Korea and arrived in Toronto on March 29, 1996. Since that time, the applicant worked as a pastor in two Korean churches in Toronto, and moved to Vancouver in 1999, where he began work at another church. His wife came with him to Vancouver, but his daughters stayed in Toronto to continue with their schooling.
[3] The applicant twice extended his visa status in order to remain in Canada to perform religious services for the Korean Baptist Churches at which he worked. However, on January 24, 2000, after the family's permanent residence claim was rejected, they were reported for remaining in Canada without authorization. In order to stave off deportation, they presented a refugee claim, which was rejected on October 21, 2001, and in which judicial review was not granted. In December 2001, the applicants submitted a permanent residence claim on H & C grounds.
ISSUE
[4] Did the Board err in its analysis of the applicant's claim on humanitarian and compassionate grounds?
ANALYSIS
[5] The applicant and his family have presented a permanent residency claim based on humanitarian and compassionate grounds, as per section 25 of the Act:
| 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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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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[6] Upon judicial review, the test which I must apply in cases such as this is that laid out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 61 and 62:
The fourth factor outlined in Pushpanathan considers the nature of the problem in question, especially whether it relates to the determination of law or facts. The decision about whether to grant an H & C exemption involves a considerable appreciation of the facts of that person's case, and is not one which involves the application or interpretation of definitive legal rules. Given the highly discretionary and fact-based nature of this decision, this is a factor militating in favour of deference.
These factors must be balanced to arrive at the appropriate standard of review. 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 the Federal Court of Appeal in certain circumstances, and the individual rather [page 858] 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.
[7] Keeping in mind that the standard of review is that of reasonableness simpliciter, I would also add the comments of my colleague, Justice Layden-Stevenson in Agot v. Canada (Minister of Citizenship and Immigration), 2003 FCT 436, [2003] F.C.J. No. 607:
It is useful to review some of the established principles regarding H & C applications. The decision of the ministerial delegate with respect to an H & C application is a discretionary one: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). The standard of review applicable to such decisions is that of reasonableness simpliciter: Baker. The onus, on an application for an H & C exemption, is on the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FCT 94, [2003] F.C.J. No. 139 per Gibson J. citing Prasad v. Canada (Minister of Citizenship and Immigration) (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and Immigration) (1997), 36 Imm.L.R. (2d) 175 (F.C.T.D.). The weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (Legault). The ministerial guidelines are not law and the Minister and her agents are not bound by them, but they are accessible to the public and the Supreme Court has qualified them as being of great assistance to the court: Legault. An H & C decision must be supported by reasons: Baker. It is inappropriate to require administrative officers to give as detailed reasons for their decisions as may be expected of an administrative tribunal that renders its decisions after an adjudicative hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.).
[8] In the present case, the applicants had already had their visas extended twice in order to remain in Canada. Furthermore, their claim for permanent residence status was denied by the Immigration and Refugee Board, and a further extension granted in order to allow the applicants time to make travel arrangements from Canada. Rather than leave, they made a refugee claim which was also denied by the Immigration and Refugee Board, and judicial review was not granted. This current H & C application seems to be a backdoor attempt at remaining in Canada when access through the front door has been denied in accordance with Canadian law. (Mayburov v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 953; Lee v. Canada (Minister of Citizenship and Immigration), 2001 FCT 7, [2001] F.C.J. No. 139)
[9] In my view, the officer did not err in determining that the time spent in Canada and the establishment in the community of the applicants were important factors, but not determinative ones. If the length of stay in Canada was to become the main criterion in evaluating a claim based on H & C grounds, it would encourage gambling on refugee claims in the belief that if someone can stay in Canada long enough to demonstrate that they are the kind of persons Canada wants, they will be allowed to stay. (Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906)
[10] As for the applicants' arguments that the officer improperly weighted certain pieces of evidence, I would reaffirm that, as was pointed out in the Agot v. Canada, supra, decision, the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion. Therefore, as long as the totality of the evidence was properly examined, the question of weight remains entirely within the expertise of the immigration officer. On that point, I find that the officer thoroughly reviewed everything that was available to him, acknowledging the claims of the applicant but properly indicating why it was that he did not accept them, for example:
The officer acknowledged that the Applicant's establishment in Canada, but noted that this was not a sufficient ground for a positive H & C decision. (Page 6 of the reasons for decision of the officer)
Although leaving the Church at which the applicant was a pastor may cause inconvenience to the parish and its members, it would not cause disproportionate hardship as the Church was able to survive with no one heading it between 1993 and 1999, and that it had a retired missionary, two seminary students and numerous persons who helped out in various groups within the Church. (Page 5 of the reasons for decision of the officer)
The officer also agreed that the daughters of the applicant were much younger when they came to Canada, but found that they would be able to adjust, seeing as to how they were born in Korea and lived there until 1996. They also have no family in Canada, but have maternal and paternal family members in Korea with whom they remained in contact. Furthermore, they are familiar with the culture and language of that country and attended school there. (Page 5 of the reasons for decision of the officer)
[11] As I have previously mentioned, it is the applicant which bears the onus of satisfying the decision-maker that his personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate.
The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act or Regulations, and the hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person's control. ...
Humanitarian and compassionate grounds may exist in cases that would not meet the"unusual and undeserved" criteria but where the hardship (of having to apply for an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.
Citizenship and Immigration Canada, Inland Processing Manual, Chapter IP5 Immigrant applications made in Canada on H & C grounds. Section 6 The H & C Decision. (Irmie v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1906, at paragraph 10)
[12] The applicant had a full opportunity to make representations and submit evidence to support these allegations. However, the onus which the applicant bears, was simply not met. In his reasons, the officer states that:
In my letter dated 09/12/03, I asked the applicants to submit evidence of their submission that there is no education in Korea for women, no graduation for those in Korea who have completed some of their education outside of Korea and no career opportunities for women in Korea. In the submission dated 12/01/04, the applicants' counsel states that Ye Jin, Su Jin and Han Na would have to pass admission exams to enter university or college in Korea and states they feel it would be impossible for them to pass the exams as they have been away from the Korean education system for seven years. While I acknowledge their belief that they may be unable to pass university or college admission exams in Korea due to their absence from the Korean education system, I note that it is based on speculation and not on fact. [...] Insufficient evidence has been presented by the applicants to satisfy me that education and employment opportunities would not be available to Ye Jin, Su Jin and Han Na in Korea. (Page 6 of the reasons for decision of the officer)
[13] Once again, I want to reiterate the fact that this Court cannot lightly interfere with the discretion given to immigration officers. The H & C decision was a fact driven analysis, requiring the weighing of many factors. I find that the immigration officer considered all of the relevant and appropriate factors from a humanitarian and compassionate perspective, and did not commit any errors which would justify this Court's interference.
[14] For all of the above mentioned reasons, I find that the Board did not err in its evaluation of the application on H & C grounds.
[15] Neither party suggested a question for certification.
ORDER
THIS COURT ORDERS THAT:
- The application for judicial review be dismissed;
- No question be certified.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1631-04
STYLE OF CAUSE: KWAN HYUNG LEE ET AL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO
DATE OF HEARING: March 10, 2005
REASONS FOR ORDER AND ORDER : Mr. Justice Blais
DATED: March 24, 2005
APPEARANCES:
Mr. Joseph Farkas FOR PLAINTIFF / APPLICANT
Ms. Ansumala Juyal FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Mr. Joseph Farkas
Barrister and Solicitor
Toronto, Ontario FOR PLAINTIFF/APPLICANT
John H. Sims Q.C.
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario FOR DEFENDANT/ RESPONDENT