PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
AMALIA DAVID,
and BRAYAN CARLO DAVID,
an infant, by his next friend, SOLOMON DAVID
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision made on August 3, 2006 by Mr. Denis Crepault, First Secretary, Immigration of the Canadian Embassy in the Philippines (the First Secretary), denying an application for permanent residence based upon humanitarian and compassionate (H & C) grounds.
[2] In 1992, the principal applicant, Mr. Solomon David, a citizen of the Philippines, arrived in Canada and obtained permanent residence status on November 7, 1992. Upon landing, he declared that he was single and had no dependents. He did not disclose the existence of his wife, Amalia, and of a son, Brayan Karlo (Karlo), who had remained in the Philippines. In the Computer Assisted Immigration Processing System (CAIPS) notes relating to this file, the First Secretary observes that Mr. David immigrated as a dependent of his parents.
[3] Nine years later, in February 2001, Mr. David applied under the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) to sponsor his wife, Karlo, and Jake, a second son born in 1995, as members of the family class (the first application). Mr. David was interviewed about his misrepresentation by the respondent’s officers in Edmonton in November 2001. He stated that his marriage was kept a secret but he had entered into it because Amalia became pregnant and while he wanted to do the honourable thing by her, he also did not want to jeopardize his family’s application to come to Canada. After the interview, he was told that he would not be deported for misrepresentation.
[4] In June 2002, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act) came into force with accompanying regulations changing the state of the law as to the definition of family class members. Mr. David’s application was accordingly denied on July 7, 2003, on the basis that, pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), Ms. David and Karlo were not members of the family class, as they had not been examined at the time of Mr. David’s application. Jake was not mentioned in the decision.
[5] Although Mr. David filed an appeal of the decision to the Immigration Appeal Division, it was later withdrawn in June 2005, following the Federal Court’s decision in De Guzman v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1557, 2004 FC 1276, as he had not requested humanitarian and compassionate considerations in his first application. The Federal Court of Appeal later dismissed the appeal in the De Guzman case and upheld the legality of paragraph 117(9)(d) of the Regulations: De Guzman [2005] F.C.J. No. 2119, 2005 FCA 436.
[6] Mr. David filed a second sponsorship application in September 2005 for his wife, Karlo, Jake, and a third son, Kristofer, who was born in 2003. This time, in his submissions, he requested that the applications of Ms. David and Karlo be considered under humanitarian and compassionate grounds and that they be exempted from the application of paragraph 117(9)(d) of the Regulations.
[7] Mr. David was advised via two letters dated June 13, 2006 that he had met the requirements for eligibility as a sponsor for Jake and Kristofer. I note that the applications for permanent residence of both Jake and Kristofer were only officially approved later on, after the First Secretary made his decision, as explained in Mr. David’s supplemental affidavit (the respondent objected to the admission of the supplemental affidavit). The applications for Ms. David and Karlo were forwarded to the Canadian Embassy in Manila. Ms. David and her three sons attended an interview at the embassy on July 18, 2006. Their application was denied on August 3, 2006.
[8] In the letter advising Ms. David of the negative decision, the First Secretary writes:
You got married to your sponsor in March 5, 1992. You had a son, Brayan Karlo, who was born in September 3, 1992. Brayan Karlo’s birth certificate lists you and your sponsor as the parents. Your sponsor landed in Canada in November 7, 1992. We have no record that you and your son were declared and examined in connection with your sponsor’s application for permanent residence. When your sponsor presented himself for landing in Canada, he also did not declare you and your son as his dependents. On the basis of the information before, me, I conclude that you are not a member of the family class with respect to your sponsor in accordance with paragraph 117(9)(d) of the Regulations.
I have also reviewed your case on humanitarian and compassionate grounds. However, I have determined it would not be justified by humanitarian and compassionate considerations to grant you and your son a permanent resident status or exempt both of you from any applicable criteria or obligation of the Act.
Subsection 11(1) of the Act provides that a foreign national must, before entering Canada, apply to an officer for a visa or any other document required by the regulations. The visa or document will be issued if, following an examination, the officer is satisfied that the foreign national is admissible and meets the requirements of this Act. For the reasons set out above, I am not satisfied that you are admissible and that you meet the requirements of the Act. I am therefore refusing your application.
[9] Turning to the merits of the case, it is useful to review some of the principles guiding H & C applications filed from outside Canada. First, every foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the Regulations (subsection 11(1) of the Act). The visa or document will be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of the Act. That being said, a Canadian citizen or permanent resident may sponsor for admission to Canada a spouse or child who is a foreign national on the basis that they are members of the family class (subsections 12(1) and 13(1) of the Act). However, since June 2002, paragraph 117(9)(d) of the Regulations provides that a foreign national who was a non-accompanying family member at the time of the sponsor’s application for permanent residence and who was not examined at that time will be excluded as a member of the family class.
[10] The exclusion mentioned at paragraph 117(9)(d) of the Regulations is a very harsh one, but does not prevent a sponsor from invoking H & C grounds considerations. Indeed, the very reason why the Court of Appeal in De Guzman found that this provision is compliant with the international instruments to which Canada is signatory is that section 25 of the Act enables the Act to be administered in a compliant manner (De Guzman, at paragraphs 102 to 109).
[11] Pursuant to subsection 25(1) of the Act, the Minister may confer permanent resident status or grant an exemption from any applicable criteria or obligation of the Act if it is justified by H & C considerations, taking into account the best interests of a child directly affected, or by public policy considerations. This decision is a discretionary one and in the case at bar, the discretion was delegated to the First Secretary in Manila.
[12] Article 3(1) of the Convention on the Rights of the Child (CRC) provides that the best interests of the child shall be “a primary consideration” in all actions concerning children, but this principle may be subordinated to other concerns in appropriate contexts. It is also common ground that an immigration officer cannot demonstrate that they have been “alert, alive and sensitive” to the best interests of an affected child simply by stating that they have taken into account the interests of a child. In determining the best interests of the child, decision-makers must take the views of the child into account, in accordance with the child’s age and maturity (see Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687, 2002 FCA 475 at para. 32). In order to ensure that the child’s wishes are properly considered, article 12 of the CRC provides that the child must be given an opportunity to be heard, either directly or indirectly, in administrative proceedings affecting his or her rights and interests. Moreover, article 10 of the CRC provides that “applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner.”
[13] In making their decision, the agents of the Minister may also be guided by the principles mentioned at Chapter 4 of the Overseas Processing (OP) Manual, which is published by the Minister and which relates to H & C applications from outside Canada. Although these guidelines are not law and accordingly not binding on the Minister and his agents, they are accessible to the public and therefore of great assistance to the Court (Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para.. 20; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para.72).
[14] In Baker, the Supreme Court determined that the appropriate standard of review for decisions based on H & C grounds was that of reasonableness simpliciter. Although that decision related to an application for landing from within Canada, this standard is equally applicable to H & C applications from outside Canada (Nalbandian v. Canada (Minister of Citizenship and Immigration), 2006 FC 1128 at para. 12). In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748 at paragraph 56, the Supreme Court explained that “[a]n unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination.” However, where issues of procedural fairness, including the inadequacy of the reasons given by the decision-maker, are called into question, the pragmatic and functional approach need not be applied (Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539).
[15] Although an H & C decision is discretionary, it must nevertheless be supported by adequate reasons that allow the applicant to know why their application has failed (Baker, at para. 43; Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 1109 at paras. 23-24).
[16] In Li, above, at paragraphs 27-28, Justice Michel Shore examined the reasons of a visa officer who had determined that the applicant was excluded as a member of the family class and that there were insufficient H & C grounds to grant the applicant permanent resident status:
The reasons provided by the Visa Officer through the CAIPS notes are not sufficient because they do not make findings of fact with respect to the evidence submitted by Mr. Li. Indeed, the CAIPS notes do not refer to the relationship between Mr. Li and his father, Mr. Li’s need and reasons for wanting to be with his father, the life Mr. Li could expect in Canada, the relationship with his sister (who is now in Canada), and the fact that his father has been supporting Mr. Li financially.
The Visa Officer’s decision does not begin to approach the complexity of the interplay between paragraph 117(9)(d) of the Regulations and subsection 25(1) of IRPA. It does not disclose any analysis of the factors for and against allowing an exemption from paragraph 117(9)(d) of the Regulations, and therefore, does not show that any balancing was done to determine whether, in the particular circumstances of Mr. Li, H & C factors existed to overcome paragraph 117(9)(d).
[17] In the case at bar, in his refusal letter, the First Secretary provided no reasons for refusing the H & C application of Ms. David and Karlo. He simply stated that it had been determined that it would not be justified by H & C considerations to grant them permanent resident status or to exempt both from any applicable criteria or obligation of the Act. It is therefore necessary to examine the CAIPS notes, in order to examine the analysis conducted by the First Secretary. Any fact or any other document posterior to the decision is not per se admissible evidence to assess the reasonableness or non-reasonableness of the impugned decision.
[18] The notes reveal that after interviewing Ms. David and Karlo, the interviewing officer wrote the following before sending it to the First Secretary for review:
File reviewed.
I am not satisfied H & C grounds exist in this appln.
Sponsor has no good reason for not declaring pa and son, brayan karlo, in his appln for perm residence and when he landed in cda in 1992. Spr did not initiate sponsorship proceedings until apr 2001. First appln was refused. Spr appealed the decision but eventually withdrew the appeal. This is his 2nd sponsorship appln for pa and son.
DYC – FOR YOUR REVIEW. THANKS.
[19] Following this entry, the First Secretary wrote the following:
SPONSOR HID THE EXISTENCE OF HIS WIFE AND ELDEST SON IN 1992 IN ORDER TO BE ABLE TO MIGRATE TO CANADA AS A DEPENDANT OF HIS PARENTS. TWO CHILDREN BORN AFTER SPONSOR LANDED IN CANADA HAVE NOW BEEN SPONSORED SEPARATELY AND CONCURRENTLY WITH THIS APPLICATION. I HAVE REVIEWED THIS APPLICATION. FOUR MEMBERS OF THIS FAMILY ARE NOW LIVING IN THE PHILIPPINES. ONLY SPONSOR IS IN CANADA. HE HAS BEEN VISITING HIS WIFE AND CHILDREN IN THE PHIL BUT YET WAITED 9 YEARS TO SUBMIT HIS FIRST SPONSORSHIP. CHILDREN HAVE GROWN WIHOUT THE PRESENCE OF THEIR FATHER AND THEY HAVE NOW BEEN SEPARATED FROM HIM FOR 14 YEARS. SPONSOR NOW HAS THE OPTION TO COME BACK TO LIVE WITH THEM IN THE PHILIPPINES. APPLICATION OF HIS TWO YOUNGEST CHILDREN WILL PROCEED BUT IT IS SPONSOR’S CHOICE IF HE WANTS TO SPLIT HIS FAMILY FURTHER AND TAKE HIS TWO YOUNGEST CHILDREN FROM THEIR MOTHER IN THE PHILIPPINES. I HAVE DETERMINED IT WOULD NOT BE JUSTIFIED BY HUMANITARIAN OR COMPASSIONATE CONSIDERATIONS TO GRANT PI PERMANENT RESIDENT STATUS OR EXEMPT HER FROM ANY APPLICABLE CRITERIA OR OBLIGATION OF THE ACT. APPLICATION REFUSED.
[20] Here, as in Li, above, the First Secretary did not make any findings of fact with respect to the evidence tendered by the applicants, such as the relationship between the sponsor and his wife and son, the fact that the sponsor has been supporting his family financially, the frequency of their contact, as well as the letters tendered by various members of the family and others in support of their application. It is clear in this case that the First Secretary did not make a separate assessment for Karlo’s application and as such, did not address his best interests as the child of the sponsor. Instead, he simply stated that the application of the two youngest sons would proceed “but it is sponsor’s choice if he wants to split his family further and take his two youngest children from their mother in the Philippines”. However, the two youngest children were not the ones seeking consideration under H & C grounds and there is no due consideration to the fact that according to the evidence on record, this 14-year old boy (Karlo) may be in urgent need of his father (who is permanently employed in Canada and is also a Canadian citizen).
[21] In the case at bar, the respondent does not deny that the level of dependency, the stability of the relationship, the length of the relationship, the impact of a separation, the financial and emotional needs of the applicant in relation to the family unit, the ability and willingness of the family in Canada to provide support, the applicant's other alternatives, such as family (spouse, children, parents, siblings, etc.) outside Canada able and willing to provide support, are all relevant factors a visa officer may consider in determining whether H & C reasons exist to allow into Canada a person that does not meet the definition of a family class member.
[22] That being said, the respondent relies heavily on Legault, above, where the Court of Appeal held that under subsection 114(2) of the former Act, the Minister could exercise his discretion in favour of the applicant where there were H & C considerations, but could also refuse to allow an application when he was of the view that public interest reasons superseded H & C ones. This is the case if the Minister believes, for example, that the circumstances surrounding the illegal entry and stay in Canada of an applicant discredit him or create a precedent susceptible of encouraging illegal entry into Canada (Legault, at paragraphs 17 and 19). However, I find that this is not the case here, since Ms. David and Karlo have not entered Canada illegally and have made their H & C applications from outside Canada.
[23] Moreover, despite the misrepresentations made by Mr. David in 1992, I note that in 2001, the immigration authorities allowed him to stay and remain in Canada. Indeed, at the time the decision was made by the First Secretary, Mr. David had been approved as a sponsor for his two youngest children. There is no suggestion here that Ms. David or Karlo made any misrepresentations, and the issue here is whether, considering all the circumstances of the case, they should be allowed to come and stay in Canada as permanent residents on H & C grounds.
[24] While it is not the role of the Court to re-weigh the evidence, it must be satisfied that the totality of the evidence has been thoroughly reviewed by the decision-maker. This appears not to be the case and the few indications mentioned in the CAIPS notes do not provide a clear rationale of why any of the public policy considerations mentioned by the First Secretary (such as the past misrepresentations) should prevail here over the objective mentioned at paragraph 3(1)(d) of the Act “to see that families are reunited in Canada”. Nor do they reveal whether the First Secretary considered that de facto family members excluded from the family class because of the operation of paragraph 117(9)(d) of the Regulations may suffer hardship indefinitely.
[25] In conclusion, I am not satisfied that the First Secretary reviewed the totality of the evidence and assessed all the relevant factors relating to the applicants. In view of this finding, it is not necessary to examine the other grounds of review raised by the applicants in this case.
[26] No question of general importance has been raised by the respondent and no question shall be certified by the Court.
ORDER
THIS COURT ORDERS that
1. The application is allowed. The decision made on August 3, 2006 is set aside and the matter is remitted back for re-determination by a different visa officer.
2. No question is certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5599-06
STYLE OF CAUSE: SOLOMON DAVID and others v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER: MARTINEAU J.
APPEARANCES:
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Ms. Wendy Danson
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Mr. Rick Garvin
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SOLICITORS OF RECORD:
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McCuaig Desrochers Edmonton, AB
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John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, ON |
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