Date: 20010607
Docket: IMM-4116-00
Neutral Citation: 2001 FCT 608
BETWEEN:
NICOLAE CRISTIAN PASTEANU
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of Terry Boss, an enforcement officer dated July 14, 2000, wherein the said immigration officer decided not to recommend a favourable decision under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Immigration Act").
FACTS
[2] The applicant came to Canada as a visitor on January 28, 1999 and was granted visitor status for six months. Before the expiry of this status he applied for an extension for another six month period. On November 20, 1999, before he received a response to his request for a visitor extension, he married Renee Cruikshank, a Canadian citizen. On December 7, 1999 he filed an application for landing within Canada.
[3] By letter dated July 14, 2000, the applicant was informed that a delegate of the Minister of Citizenship and Immigration reviewed the individual circumstances of his request for exemption from the requirement of subsection 9(1) and decided that an exemption would not be granted.
[4] On September 20, 2000, the applicant applied for a stay of his removal. On September 25, 2000, Hansen J. dismissed the applicant's motion.
ISSUE
Was the decision of the immigration officer an unreasonable exercise of discretion, and was the decision based on irrelevant considerations?
ANALYSIS
[5] Subsection 9(1) of the Immigration Act provides that applications for permanent residence, except in such cases as are prescribed, must be made from outside Canada:
| 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. |
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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[6] Subsection 114(2) of the Immigration Act authorizes the Governor in Council to authorize the Minister to facilitate, among others, the admission to Canada of any person owing to existence of humanitarian or compassionate considerations:
| (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. |
(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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[7] The Minister's power to authorize the exemption of any person from any regulation made under subsection 114(1) or to facilitate the admission of any person as stated in subsection 114(2) of the Immigration Act is found in section 2.1 of the Immigration Regulations, 1978.
[8] The standard of review of a decision of an immigration officer was stated as follows by the Supreme Court of Canada in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 at paragraph 62:
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 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.
[9] In determining whether the decision of the immigration officer was unreasonable, the Supreme Court of Canada in Baker, supra, stated:
I will next examine whether the decision in this case, and the immigration officer's interpretation of the scope of the discretion conferred upon him, were unreasonable in the sense contemplated in the judgement of Iacobucci J. in Southam, supra, at para.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.
[10] As was held in Baker, supra, compassionate or humanitarian considerations are central to the determination whether an immigration officer's decision was reasonable.
[11] The guidelines contained in the Inland Processing Manual helps in determining what constitutes humanitarian and compassionate considerations.
[12] Chapter IP 5 of the Inland Processing Manual explains how to assess applications for an exemption from the requirement to apply for and obtain an immigrant visa outside of Canada due to the existence of humanitarian and compassionate grounds.
[13] Section 6.1, Chapter 6 of the Inland processing manual explains:
...
Applicants bear the onus of satisfying the decision-maker that their 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) dispro-portionate. Applicants may present whatever facts they feel are relevant.
The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining whether sufficient H & C considerations exist to warrant the requested exemption from A9(1).
Unusual and undeserved hardship
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.
Disproportionate hardship
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.
[14] Regarding the situation of spouses of Canadian citizens or permanent resident, section 8.1, Chapter IP 5 of the Inland Processing Manual states:
Canada's long-term policy has been facilitation of admission for those spouses in Canada sponsored by their Canadian citizen or permanent resident spouses.
First of all determine
· Has a sponsorship been submitted and approved?
If so, the applicant is a potential member of the family class and this can be considered as a favourable H & C factor.
Then consider
· Is the marriage genuine? That is, a marriage with the intention of residing permanently with the other spouse and not entered into for the primary purpose of remaining in Canada or gaining admission as a member of the family class. You may wish to consider.
- The legality of the marriage (see OP 2 -Processing Members of the Family Class, Section 5 Spouses).
- The circumstances and timing of the marriage. For example, did the marriage take place after the applicant was refused a visitor extension or when removal was imminent?
· How long has the couple been in the relationship?
· The religious, social and cultural norms of the applicant's community.
· Previous dealings with the Department that might be relevant.
For example, a previous marriage of convenience, enforcement action, refused immigration applications, or misrepresentation.
· Any other factors that you believe to be relevant to your decision.
[15] The applicant submits that the immigration officer erred in law by basing its decision on irrelevant considerations. The respondent erred by ignoring the hardship that would be caused by the breakup of the family unit. Furthermore, the fact that the applicant has a mother and a job in his country of origin are irrelevant considerations to the issue of the hardship that the applicant, his sponsor and step-daughter would face in the breakup of the family unit.
[16] I cannot agree with the applicant that the fact that the applicant has a mother and a job in his country of origin are irrelevant considerations.
[17] In Baker, supra, the Supreme Court of Canada, in referring to the guidelines stated:
Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. [Emphasis added].
[18] I believe that the immigration officer was looking at the connections that the applicant had with his country of origin when he considered the fact that he had a mother and a job there. In my view, this is a relevant consideration and is in accordance with the objective of the Immigration Act and Regulations as well as with the humanitarian values referred in Baker, supra.
[19] It is difficult to determine on the basis of the case summary form alone, the weight that the immigration officer gave to the various considerations. However, the handwritten notes taken by the officer which are part of the reasons for the decision and were filed at the hearing are of help in determining how the immigration officer arrived at his decision.
[20] The case summary form and the immigration officer's handwritten notes show the evidence that was before him when he took his decision. This is sufficient to establish that the immigration officer properly examined all the relevant considerations and that he did not base his decision on irrelevant considerations.
[21] The central basis of the application in the case at bar is whether the applicant's circumstances warrant exemption of the Regulations, 1978 on humanitarian and compassionate grounds. I do not believe that an immigration officer has to give extensive reasons and refer to all the evidence.
[22] The applicant alleges that the immigration officer erred in law by completely ignoring the interests of the young child who will be deprived of her father figure if the applicant is deported. It is submitted that the officer ignored this factor in his or her decision, as it was not mentioned in the "Rationale for Recommendation" section, and the respondent was in no position at all to consider the effect of this on the child or any other family member as no interview was conducted.
[23] The applicant relies on the decision of Baker, supra, where the Supreme Court of Canada 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 interest 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. In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.
[24] It has to be noted that the decision in Baker, supra, referred to the natural children of the applicant in that case.
[25] In the case at bar, the applicant is asking that the rationale in Baker, supra, applies to his wife's daughter for whom he is acting in loco parentis.
[26] The respondent relies on the decision in Hussey v. M.C.I., [2000] F.C.J. No. 1279 (F.C.T.D.), where McKewon J. on an application for stay of removal, stated:
The applicant is not the father of his new wife's three children. The cases where the best interest of the children are considered with respect to irreparable harm are all cases where it was the father and not the step-father who was involved. This applicant has only resided with his new wife and step-children for less than four months. The applicant was married to the new wife ten months ago and spent some time with her during the first six months.
While separation from the wife and the step-children will be difficult for all the parties, it does not amount to irreparable harm in the circumstances of this case. I urge the immigration department to promptly deal with his sponsorship application.
[27] In Zargari v. Canada (M.C.I.), [2000] F.C.J. No. 2087 (F.C.T.D.), again on a motion for a stay, Blanchard J. stated:
I have evidence before me that the applicant, step-father, married on September 9, 2000 and that the applicant and his wife resided together with her three children since November 1st, 2000.
The evidence also supports that the applicant knew his wife since October 20, 1998. I also note that the applicant is not the natural father of the children.
I fully appreciate and recognize that separation is undoubtedly disruptive and difficult for the family. However the applicant has only been married to his wife for some 3 months; and the applicant's new family has certainly been aware of his possible removal from Canada since they met.
I have considered the best interest of the children in assessing all of the evidence before me and I fail to find irreparable harm.
[28] These decisions do not really deal with the issue of whether the best interests of step-children must be taken into account specifically as required by the decision in Baker, supra or whether they must be assessed in general, and no specific reference to the best interest of children must be made.
[29] I note that the Immigration Regulations, 1978 defines daughter as follows in subsection 2(1):
"daughter" means, with respect to a person, a female
(a) who is the issue of that person and who has not been adopted by another person, or
(b) who has been adopted by that person before having attained 19 years of age;
[30] Adopted is defined as follows:
"adopted" means a person who is adopted in accordance with the laws of a province or of a country other than Canada or any political subdivision thereof, where the adoption creates a genuine relationship of parent and child, but does not include a person who is adopted for the purpose of gaining admission to Canada or gaining the admission to Canada of any of the person's relatives;
[31] The question whether the best interests of step-children should be considered in an application on humanitarian and compassionate grounds such as in the case at bar, is a question of policy.
[32] The immigration officer had all the facts before him when he made his decision including the interests of the step-child. I do not believe that he ignored this factor in his decision.
[33] In Irimie v. Canada (M.C.I.) [2000] F.C.J. No. 1906, November 22, 2000, Justice Pelletier held:
If one then turns to the comments about unusual or undeserved which appear in the Manual, one concludes that unusual and undeserved is in relation to others who are being asked to leave Canada.__ It would seem to follow that the hardship which would trigger the exercise of discretion on humanitarian and compassionate grounds should be something other than that which is inherent in being asked to leave after one has been in place for a period of time.__ Thus, the fact that one would be leaving behind friends, perhaps family, employment or a residence would not necessarily be enough to justify the exercise of discretion.
The applicants complain that the officer who dealt with their application considered and gave weight to irrelevant factors.__ Among the irrelevant factors was the fact that the applicants were failed refugee claimants. The applicants say this is irrelevant since, by definition, one must be without status to make an H & C application, so that the reason one is without status should be irrelevant.__ Given that one of the criteria to be considered is whether the hardship arising from having to leave the country is undeserved, the question of how one entered the country is of some relevance to that issue. __It might be a positive or a negative element depending upon the circumstances. __In this case, the visa officer placed this factor in the "cons" column, just as she did with the fact that the applicants had applied for a visa and been refused.__ These are factors which could reasonably be considered in deciding whether the hardship which the applicants might face was undeserved.
[34] In my view, the applicant failed to demonstrate that the immigration officer made a reviewable error that justifies the intervention of the Court.
[35] Therefore, this application for judicial review is dismissed.
[36] No question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
June 7, 2001