Ottawa, Ontario, December 1, 2006
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
ALEXANDRE FERREIRA SANT'ANNA
SIMONE VASCONCELOS DE ANDRADE
TAYLA VASCONCELOS DE SANT'ANNA (a minor)
and
CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of a decision of an immigration officer dated December 28, 2005 denying the applicants’ application for permanent residence on humanitarian and compassionate grounds (the H&C application) pursuant to subsection 25(1) of the Immigration and Refugee Protection Act (the Act). At issue is whether the immigration officer adequately considered the best interests of the children.
Background
[2] The principal applicant, Alexandre Ferreira Sant’anna (Mr. Sant’Anna), is a 34 year old Brazilian national. His common-law wife, Simone Vasconcelos de Andrade (the wife), and their 13 year old daughter, Tayla Vasconcelos de Sant’Anna (the older daughter), are also citizens of Brazil. Mr. Sant’Anna youngest daughter is four years old and a citizen of Canada by birth (the Canadian daughter).
[3] The applicants arrived in Canada as visitors in April 22, 2000. Their motivation for leaving Brazil stemmed from an incident in which Mr. Sant’Anna’s life was threatened by an armed assailant. The assailant, in the course of hijacking a public transit bus in Rio de Janeiro, mistook Mr. Sant’Anna for a police officer whom the assailant had encountered in the past. The assailant threatened to kill Mr. Sant’Anna and held a gun to his face. Mr. Sant’Anna provided the assailant with identification and satisfied him that Mr. Sant’Anna was not the police officer. The assailant then proceeded to rob the rest of the passengers. Mr. Sant’Anna was left traumatized by the violence and feared going to work or taking trips with his family. He brought his family to Canada to visit his wife’s family and came to consider Canada a safe haven.
[4] The applicants applied for refugee protection in May 2002. Their claims were denied on June 24, 2004. The applicants’ credibility was not at issue. However, the Immigration and Refugee Board determined that the risk of harm faced by the applicants had no nexus to the definition of a Convention refugee within the Act, and was one faced generally by Brazilian citizens.
[5] The applicants first filed H&C applications on June 25, 2002. In their applications, the applicants submitted that they had become well established in Canada and that they would be exposed to crime and violence if they were compelled to return to Brazil. The applications were refused on September 11, 2003. The immigration officer found that the family would not suffer unusual or undue hardship if they returned to Brazil.
[6] The applicants filed new H&C applications on October 8, 2003. The applicants submitted that they had become well established in Canada and that it was in the best interests of their children to remain in Canada. Mr. Sant’Anna had begun a general construction business and specialized as a bricklayer, a trade which placed him in high demand in Canada. Since 2002, his wife worked as a contract janitor. The applicants submitted evidence of savings they had accumulated and their engagement in their community through church and volunteer activities. The applicants submitted that their children have safe, stable lives and many opportunities in Canada which they would not have in Brazil. They provided documentation demonstrating poverty, violence and social instability in Brazil.
Decision Under Review
[7] On December 28, 2005, the applicants’ H&C application was denied. The immigration officer determined that Mr. Sant’Anna, his wife, and his daughters would not suffer excessive or undue hardship if they were compelled to return to Brazil. The applicants seek a judicial review of this decision.
Relevant Legislation
[8] The legislation relevant to this application is the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Subsection 25(1) of the Act, which provides that the Minister must take into account the best interests of children directly affected and public policy considerations when deciding whether to grant an exemption requested under an H&C application, states:
|
Humanitarian and compassionate considerations 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. |
Séjour pour motif d’ordre humanitaire
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.
|
Issue
[9] The only issue raised in this application is whether the immigration officer erred by failing to adequately consider the best interests of the children.
Standard of Review
[10] The appropriate standard of review for H&C application decisions, as established by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62, is reasonableness:
[…] 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.
[Emphasis added]
[11] A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if it is not one that the reviewing courts find compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.
Analysis
[12] The applicants argue that the immigration officer erred in failing to consider adequately the best interests of the children in assessing their H&C application. The applicants rely on the Supreme Court of Canada’s judgment in Baker, above, which requires that the immigration officer be alert, alive and sensitive to the best interests of the children:
¶75 […] The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.
[Emphasis added]
[13] The applicants also rely on Mr. Justice Campbell’s judgment in Anthony v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1310, for the proposition that an immigration officer must assess whether the country conditions were such that it would be in the best interests of the child to live there as opposed to remaining in Canada. In that case, Mr. Justice Campbell found that the immigration officer provided a brief and limited analysis of the applicant’s Canadian born children and erred in not considering the quality of life or potential hardships the child would face upon removal.
[14] The applicants argue that the immigration officer failed to undertake an adequate assessment of the children’s best interests, limiting instead her analysis to an assessment of hardship. The officer concluded that neither child would experience undue hardship if they returned to Brazil. With respect to the older daughter, the immigration officer stated that she came to Canada when she was 7 years old after having spent her formative years in Brazil. She would thus be returning to a language and culture with which she was familiar. The immigration officer acknowledged that the younger daughter was born in Canada but reasoned that she was too young to have fully integrated into Canadian society for undue hardship to result from her removal to Brazil:
I have considered the best interest of their two daughters in Canada. I note their daughter that was born in Brazil came to Canada when she was 7 years old. She has been attending school in Canada, but insufficient information was submitted to satisfy me that she will experience hardship if she has to return to Brazil with her parents. Besides she spent her formative years in Brazil with her parents and grandparents and will return to a language and culture she is familiar with. With respect to the younger daughter who was born in Canada, she is four years old and has not fully integrated into the Canadian society for hardship to exist if she has to return with her parents to Brazil. Furthermore, she is a Canadian citizen, and can return to Canada at anytime in her life, is [sic] she so desires. The decision to take or leave their Canadian child in Canada would be one subject and his wife will have to make. The child however, is familiar with the parent’s language and culture and if she returns to Brazil with her parents, she should have little difficulty to integrate into that society.
[Emphasis added]
[15] The respondent referred the Court to the Federal Court of Appeal’s more recent judgment in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, where at paragraphs 5 to 6 Mr. Justice Décary clarified the immigration officer’s obligation with respect to stating explicitly the children’s interest in remaining in Canada:
¶5 The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
¶6 To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial - such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
[Emphasis added]
[16] I do not agree with the applicants’ submission that the immigration officer was dismissive of the children’s interests. Rather, I agree with the respondent’s submission that the immigration officer need not have specifically identified the benefits that would be enjoyed by the children if allowed to remain in Canada since, as Justice Décary noted in Hawthorne, above, the officer is presumed to know that a child living in Canada with her parents is generally better off than a child living in Canada without her parent. Similarly, it would elevate form over substance, in my view, to require the immigration officer to specifically identify the obvious disadvantages faced by children in not remaining in Canada.
[17] In this case, the immigration officer identified the children’s interests and demonstrated an appreciation of those interests in relation to the hardship faced by the applicants in complying with the ordinary processing requirements outside of Canada. It is obvious that the children’s best interests will almost always be best served by allowing their parents to remain with them in Canada while pursuing their immigration application. In light of this reality, immigration officers must consider the children’s best interests as one factor—albeit a substantial one—to consider among many in assessing an H&C application.
[18] I am satisfied that the immigration officer discharged her duty in this case and reasonably exercised her discretion in denying the applicants’ H&C application. The immigration officer’s decision does not have the effect of preventing Mr. Sant’Anna and his family from returning to Canada, but rather denotes that the applicants’ circumstances are not so exceptional as to warrant an exception to the requirements under the Act. The applicants may apply to become permanent residents of Canada in the normal way. The applicants would clearly be assets to Canada; in particular, the principal applicant is a skilled worker needed by our country. Both the principal applicant and his wife have proven themselves to be honest, hardworking, trustworthy and able to adapt to Canadian culture and values.
[19] For these reasons, this application for judicial review must be dismissed. No question has been proposed for certification.
JUDGMENT
ThE Court Orders AND ADJUDGES that:
This application for judicial review is dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-299-06
STYLE OF CAUSE: ALEXANDRE FERREIRA SANT'ANNA ET AL.
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 27, 2006
DATED: December 1, 2006
APPEARANCES:
David Korman FOR THE APPLICANTS
Aviva Basman FOR THE RESPONDENT
SOLICITORS OF RECORD:
Korman & Associates FOR THE APPLICANTS
Barristers & Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Toronto, Ontario