Ottawa, Ontario, September 28, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
VITA VAKRUCHEV
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicants’ request that they be allowed to process their application for permanent residence from within Canada (an “H&C” application) was denied. This is the judicial review of that negative decision.
II. Facts
[2] The principal Applicant, Olga Vakruchev, and the minor Applicant, her daughter Vita, are Russians who moved to Israel. Olga Vakruchev became pregnant and allegedly suffered abuse at the hands of the future father of her daughter Roberta. For this reason, the Applicants fled to Canada claiming that Israeli police were of no assistance.
[3] The Applicants entered Canada in 1999 and applied for refugee protection. Olga Vakruchev had her daughter Roberta on March 8, 2000. Roberta is a Canadian citizen.
[4] Olga Vakruchev withdrew the refugee claim because she feared that the Israeli government would consider that her refugee claim was a denunciation of the state of Israel.
[5] Olga Vakruchev then submitted an H&C application based upon the risk that she and her children would face upon a return to Israel and upon the best interests of the children to remain in Canada. The children were both doing well in school.
[6] The H&C Officer requested a Risk Opinion as to the risk if the Applicants were returned to Israel. The Officer was, after considering the Risk Opinion and the rebuttal submission of the Applicants, satisfied that the Risk Opinion (which held that they would not be subjected to risk) was reasonable. The Officer found that the principal Applicant had provided insufficient evidence on this issue.
[7] The H&C Officer was satisfied that, considering the children’s age and exposure to the language and culture of Israel through their mother, they would not suffer unusual, undeserved or disproportionate hardship if returned to Israel.
[8] The H&C Officer also addressed the issue that the Israeli Consulate would not renew Olga Vakruchev’s passport because she had filed a refugee claim. The Applicants had requested that the H&C Officer contact the Greater Toronto Enforcement Centre for information on her file and for information regarding the Israeli Consulate’s actions. The Officer found that she did not need the file and that the onus to establish the H&C grounds rested with the Applicants.
III. Analysis
[9] The standard of review on an H&C application has been well established in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 as being reasonableness simpliciter.
[10] The Applicants raise four (4) issues which they say justifies a quashing of the H&C decision:
· failure to perform an independent risk assessment;
· failure to consider other risks;
· failure to consider the best interests of the children; and
· failure to consider Establishment factors presented which were out of the Applicants’ control.
A. Risk Assessment
[11] An H&C application is an exception to the normal rule governing applications for permanent residence. It is also not an alternative to a refugee claim nor can it be used as an “end run” on the refugee process. In this case it is important to bear in mind that the principal Applicant had withdrawn her refugee claim and then filed for an H&C citing some of the same concerns as in her refugee claim.
[12] The H&C Officer is not an expert in risk assessment; that is the function of a PRRA Officer who provided the Risk Opinion. The H&C Officer fulfilled her duty by considering the Risk Opinion and the Applicants’ rebuttal. There is no basis for finding that this was a “rubber stamp” exercise.
B. Other Risks
[13] While the Applicants made allegations about the Israeli Consulate which they say the H&C Officer failed to consider, there is no objective evidence to support those allegations. The Officer quite properly held that the obligation to establish H&C grounds rested on the Applicants. While it may be that in some cases it would be incumbent on the Officer to examine files within the Respondent’s system, there is no evidence that this was necessary in this case.
[14] The issue of Russian women in Israel experiencing domestic abuse was not ignored. That issue was raised in the Risk Opinion and was reviewed by the H&C Officer.
C. Best Interests of the Children
[15] While the Applicants criticize the H&C Officer for failure to assess the impact on the children of leaving Canada, the Applicants failed to produce any compelling evidence or make submissions which would undermine the Officer’s conclusions.
[16] Other than evidence that the children were doing well in school, the Applicants did not show some disproportionate, unusual or undeserved impact by moving to Israel. The fear that the father might harm one or both of the children was not reasonably established.
D. Establishment Factor
[17] The Applicants claim that the Officer failed to consider that they were in Canada longer than they might otherwise be because of events beyond their control – the refusal of Israel to renew their passports. The Applicants somehow think that this is a factor in their favour.
[18] There is no merit to this argument. It suggests that the Applicants would have otherwise left Canada sooner when, in fact, their actions are all designed to stay here permanently.
[19] For all of these reasons, this application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5883-05
STYLE OF CAUSE: OLGA VAKRUCHEV
VITA VAKRUCHEV
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 26, 2006
APPEARANCES:
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Ms. Nina Chandy
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Ms. Alexis Singer
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SOLICITORS OF RECORD:
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MS. NINA CHANDY Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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