Ottawa, Ontario, September 13, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The issue on this application for judicial review is whether an immigration officer's consideration of the best interests of the child -- contained in the officer's reasons in relation to the refusal of Ms. Dreta's humanitarian and compassionate application (H & C) under subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) -- can withstand a somewhat probing examination. I have concluded that it does.
FACTS
[2] Ms. Dreta is a thirty-four year old citizen of Ethiopia. She arrived in Canada on a visitor's visa in July 2003 and subsequently made a refugee claim that was rejected by the Refugee Protection Division (RPD) of the Immigration and Refugee Board. Leave to apply for judicial review of the RPD decision was denied.
[3] Ms. Dreta submitted an H & C application in April 2004. On September 25, 2004, she married an Ethiopian student who is currently in Canada on a temporary student visa, valid until December 2006. He is a graduate student in chemistry at the University of Alberta and has applied for permanent residence. Ms. Dreta and her husband were interviewed in relation to her H & C application in January 2005, at which time she was pregnant. Their child has since been born.
[4] Ms. Dreta had taken English classes, but the evidence on how long she attended and what level she attained was sparse. She required an interpreter at her interview. She has a married brother and sister in Ethiopia, but no other family in Canada. Her husband has six sisters, his mother and a child from a previous relationship in Ethiopia. He sends approximately $500 per year from his $23,000 graduate assistantship and teaching award to Ethiopia to support his family.
[5] Ms. Dreta claimed that it was not in the best interests of the child for her to take the child to Ethiopia because: she would have to raise the child alone; it would be difficult for her to get a job because of the unemployment rates there; she was fearful that war could explode between Ethiopia and Eritrea over the border dispute; and Ethiopia ranks as 116 out of 119 countries in reports from "Save the Children" comparing the well-being of mothers and children.
THE DECISION
[6] The immigration officer was not satisfied that sufficient H & C grounds exist to warrant exempting Ms. Dreta from the requirement of subsection 11(1) of IRPA to apply for permanent residence from outside Canada in the required manner. The officer concluded that Ms. Dreta had not demonstrated that unusual and undeserved or disproportionate hardship exists -- that is not anticipated by the IRPA -- and consequently refused the application.
ISSUES
[7] Ms. Dreta takes no issue with the immigration officer's analysis in relation to "Establishment in Canada". Her quarrel is with the analysis regarding "Best Interests of the Child". Specifically, she claims that there is no evidence to support the officer's findings that there would be support from her family, that there would be support from her husband's family, that her husband could financially assist his wife and child and that she would, as a single mother, have support from the Ethiopian government. She further alleges that the officer ignored the evidence regarding the turmoil in Ethiopia and the reports regarding the well being of mothers and children there.
ANALYSIS
[8] Having carefully reviewed the officer's reasons in their entirety, I cannot conclude that the decision is unreasonable. The immigration officer devoted a large portion of his reasons to "Best Interests of the Child". Based on the information before him, it was not unreasonable for him to conclude that Ms. Dreta's and her husband's families could provide a family support network. He did not suggest that financial support would be forthcoming from them.
[9] Regarding financial support, it was not unreasonable for the officer to conclude that
Ms. Dreta's husband would be able to provide support for his wife and child even if he decided to stay in Canada. There was scant evidence regarding his finances and there was no evidence that he could not meet his expenses and provide support. In argument, it was said that he has $1,000 "net" per month but whether that figure is before or after rent and other monthly expenses remains unknown. Moreover, as noted by the respondent, the record discloses that Ms. Dreta was a student in Ethiopia until she was 29 years of age and that she was supported during that time. The onus on an H & C application to provide sufficient information to satisfy the immigration officer of the merits of the application lies with the applicant.
[10] Regarding a reference to government support, I agree with the respondent that the reference is in the context of an exploration of various alternatives. Little guidance was provided by Ms. Dreta in response to the questions asked of her in this regard.
[11] The information with respect to the instability of the country conditions was general in nature and the immigration officer did refer to it at the outset of the analysis. However, Ms. Dreta did not allege personal risk. Lastly, while it may undoubtedly be true that Canadais a much more desirable place to live, it does not follow that anyone with a child should not have to live in Ethiopia.
[12] When read as a whole, the immigration officer's reasons in relation to the best interests of the child are comprehensive and thoughtful, based on the evidence before him. They are not unreasonable. The best interests of the child is an important factor that must be taken into account and given substantial weight, but it is not the only factor. Once it has been well identified and defined, it is for the immigration officer to determine what weight it will be given in the circumstances: Legault v. Canada(Minister of Citizenship and Immigration), [2002] 4 F.C. 358. Additionally, it must be recalled that an issue under review does not compel one specific result: Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247.
[13] Ms. Dreta's arguments are tantamount to an invitation to me to re-weigh the evidence. That is not my function for even if I might have decided the matter differently, I am not able to substitute my opinion for that of the decision maker.
[14] Counsel did not suggest a question for certification and none arises in this matter.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
"Carolyn Layden-Stevenson"
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1630-05
STYLE OF CAUSE: FREHIWOT GEBREMARIAM DRETA
And
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: EDMONTON, AB
DATE OF HEARING: SEPTEMBER 8, 2005
AND ORDER BY: LAYDEN-STEVENSON J.
APPEARANCES:
MR. RICK GARVIN FOR RESPONDENT
SOLICITORS OF RECORD:
SIMON K. YU FOR APPLICANT
Barrister & Solicitor
Edmonton, AB
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON