WOMAN WHO HAD CHILD WITH MAN OTHER THAN SPONSOR MISREPRESENTED FACTS

This is quite an unusual case. The Federal Court was not persuaded that the IAD made an error in finding insufficient Humanitarian and Compassionate considerations.

Patel v. Canada (Minister of Citizenship and Immigration)

Between
Bhartiben Patel, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 1361

[2013] A.C.F. no 1361

2013 FC 1224

Docket IMM-2709-13

 Federal Court
Montréal, Quebec

Noël J.

Heard: December 5, 2013.
Judgment: December 9, 2013.

(33 paras.)

---

·       REASONS FOR ORDER AND ORDER

1     NOËL J.:-- This is an application for judicial review undersubsection 72(1)of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of the Immigration Appeal Division [IAD], of the Immigration and Refugee Board [IRB], dated February 19, 2013, dismissing the Applicant's appeal of an exclusion order made against her on December 17, 2009.

I. Facts

2     The Applicant was born in India on August 1, 1982. She became a permanent resident on October 10, 2003 after being sponsored by her first husband, Ashokkumar Pattel, whom she married on January 11, 2003.

3     Two weeks after arriving in Canada, she gave birth to her son on October 20, 2003.

4     A DNA test proved that the child was not the son of the Applicant's first husband, but rather the son of another man, Jiteshbhai Ramanial Patel, with whom she had a relationship before marrying her first spouse and an extra-marital affair during her marriage. The Applicant and her first spouse divorced on October 31, 2005.

5     The Applicant presented a sponsorship application as a conjugal partner for Jiteshbhai Ramanial Patel, her child's father, who became her second spouse on May 14, 2007.

6     During the processing of this sponsorship application, the immigration authorities got wind of the facts underlying the alleged misrepresentation. Consequently, the Applicant was interviewed by an immigration officer and a report was prepared under section 44 of the IRPA.

7     The matter was deferred to the Immigration Division [ID], who found that the Applicant's story had major credibility problems and that, as a result, she had committed acts of misrepresentation on two counts. First, she failed to disclose that she was pregnant when she was granted permanent resident status. Second, she failed to disclose that she was in a relationship with Jiteshbhai Ramanial Patel when she married her first spouse, as a result of which, her first marriage was considered a marriage of convenience. Along with its decision, the ID declared the Applicant inadmissible under para 40(1)(a) of the IRPA for misrepresentation and issued an exclusion order on December 17, 2009.

8     The Applicant appealed this removal order to the Immigration Appeal Division.

II. Decision under review

9     The IAD found that the removal order was founded in law and that the Applicant was inadmissible under the IRPA for misrepresentation. Ultimately, it concluded that, considering the best interest of the children, the humanitarian and compassionate [H&C] considerations brought forth by the Applicant did not outweigh the seriousness of the inadmissibility.

10     The IAD first tackled the Applicant's submission that the report made under section 40 of the IRPA was invalid as it related only the alleged marriage of convenience and in no way indicated that the Applicant had failed to disclose her pregnancy when she arrived in Canada. The ID panel had rejected this submission and the IAD agreed with this rejection. The IAD was of the opinion that, as she was interviewed by an immigration officer, the Applicant was made aware of the allegations made against her by the immigration authorities and given the opportunity to explain her situation and give evidence in support of her claims.

11     The IAD then examined the ID panel's decision. The ID panel had concluded that bearing her spouse's child or suspecting that she was having the child of a long-time lover was a material fact relating to a relevant matter that could induce an error in the administration of the IRPA. It had also noted numerous contradictions and implausibilities in the Applicant's various stories and ultimately concluded that she had failed to provide reasonable explanations for her contradictions. Upon reviewing the evidence on file, the IAD found that it had no reason to doubt the ID panel's conclusions with regard to the assessment of the oral evidence and the Applicant's lack of credibility. The Applicant had the onus, before the IAD, to establish that the removal order was invalid, but she provided no evidence to show that the ID panel's conclusions related to the lack of credibility were unfounded. The Applicant did not testify during the hearing, thereby depriving the IAD of the opportunity to obtain explanations and assess the Applicant's credibility as it concerns the allegations of misrepresentation. Simply put, the Applicant did not discharge her burden of establishing that the removal order was not valid.

12     The IAD then turned to the assessment of H&C considerations, relying on factors set out in Ribic v Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (IAB T84-9623) [Ribic] and confirmed by the Supreme Court of Canada in Chieu v Canada (Minister of Citizenship and Immigration), 2002 SCC 3 at paras 40-41, [2002] S.C.J. No. 1 [Chieu], and specified that these factors are not exhaustive and that the weight to be given to these factors varies depending on the circumstances of each case.

13     The Applicant's testimony at the hearing was limited to the H&C considerations of her case, and her counsel asked only the broadest of questions. No evidence was submitted in this regard. The IAD had to ask the necessary question in order to make its decision. The IAD considered various elements, including the Applicant's family and their establishment in Canada. The IAD determined that the Applicant's current spouse - the father of the children - lives in India in a town located at a very reasonable distance of a hospital and which offers education services. The Applicant claimed that she would have to send her children to a private school in the city but failed to provide evidence to support her claims.

14     The Applicant alleged that moving to India and living under the same roof as her spouse and his family would cause a great deal of hardship, but the IAD noted that the Applicant previously lived in that house for several months at a time and never indicated having experienced any problems. According to the IAD, it was in the best interest of the children that they be reunited with both parents, a situation which is only possible in India. The Applicant failed to present evidence to support her allegation that her family would suffer undue hardship in India.

15     In its analysis of the H&C considerations, the IAD acknowledged that the Applicant has been in Canada for a long period and that she managed to establish herself and her family in Canada, which are positive factors. However, the presence of family members in India would mitigate any hardship she could experience should she return to her home country. Finally, the IAD opined that the Applicant's misrepresentations are significant and highly negative factors in the analysis of H&C considerations, because had she disclosed the information related to her earlier relationship with her current spouse and to the advanced pregnancy, it is likely that she would not have been granted permanent resident status or that the immigration authorities would have conducted additional verifications prior to rendering their decisions.

III. Applicant's submissions

16     The Applicant submits that the IAD's decision is unreasonable because it failed to take into account the evidence and the sworn testimony with which it had been presented regarding the issues of misrepresentation and H&C considerations.

17     With respect to the issue of misrepresentation, the IAD misconstrued the evidence on two accounts: the genuineness of her first marriage and her pregnancy. First, she claims that her first marriage was arranged according to the Indian culture and that there was no planned collusion. Various elements support the genuineness of her marriage, including the fact that, as corroborated by the social worker responsible for the Applicant, she was willing to give up her baby in order to remain with her first spouse and save her marriage. It was her husband who ultimately refused her return to the house. She adds that although she separated from her first husband in 2003, she only contacted her current spouse three years later to inform him that they had a child together. Second, she argues that she did not know she was pregnant and that she had submitted evidence in this regard. She adds that surely immigrants entering Canada are not expected to reveal all their previous relationships at port of entry because that would make no sense.

18     As for the H&C considerations, the Applicant claims that the IAD did not take into account the interest of the children. First, the IAD confused the genders of the children, as both children are females and not a boy and a girl. Second, the IAD was not alert, alive and sensitive to the best interest of the children given the evidence submitted by the Applicant, particularly as it relates to the poor quality of education and medical care offered in the small town where they would move in comparison to what is available in Canada. In the end, the IAD concluded that the children should be satisfied with the basic amenities of the small village. More specifically, the children would be denied their rights as Canadian citizens. She further argues that the IAD seriously downplayed the humble socio-economic background of the Applicant and her current spouse in India. Third, the IAD should have examined the issue of H&C considerations as a stand-alone criterion. However, it concluded that the Applicant's misrepresentation was a highly negative factor which outweighed the positive elements of the H&C considerations analysis. Fourth, although the Applicant chose to file the record of the previous hearing rather than testifying, had the IAD wished to test the Applicant's credibility, it could have asked her any questions it wanted.

IV. Respondent's submissions

19     The Respondent claims that the IAD's decision is reasonable because the removal order based on the Applicant's misrepresentations is valid and because the IAD adequately exercised its jurisdiction as it relates to the H&C considerations.

20     Concerning the Applicant's misrepresentations, the IAD agreed with the ID panel's conclusion that the Applicant lacked credibility, and the assessment of credibility, just like the consideration of evidence, lies within its jurisdiction and expertise. The Applicant did not provide evidence to show that the ID panel's decision with respect to her credibility were unfounded. Therefore, considering the evidence available, the fact that the Applicant was not credible and that she did not provide sufficient explanations, it was certainly reasonable for the IAD to conclude that the exclusion order was valid.

21     As for the evaluation of H&C considerations, the Applicant had the burden of adducing evidence in support of her allegations. The decision clearly reflects that the IAD carefully considered the Applicant's file in light of the Ribic factors and, based on the facts and the Applicant's testimony, it was reasonable for the IAD to find that there were no H&C consideration warranting to grant the relief sought. The Applicant did not provide evidence of the hardships she would experience in India. Also, contrary to the Applicant's claim, the IAD was indeed alert, alive and sensitive to the interest of the children as it found that it would be in their best interest to be reunited with both parents. The Applicant failed to adduce evidence contrary to the ID panel's conclusion that services, although not equivalent to Canadian services, are generally available in India. Also, the interest of the children is not a predominant factor. As for the Applicant's argument that the IAD should have examined the H&C considerations independently of the issue of misrepresentation, the IAD's reasons show that it carefully assessed all the evidence and the various positive and negative factors. The Applicant simply disagrees with the IAD's findings and asks this Court to reweigh the factors and the evidence, which cannot be done through judicial review.

V. Issues

22     Is the decision of the IAD dismissing the Applicant's appeal of an exclusion order made against her reasonable, particularly as it relates to the determination of misrepresentations and the assessment of H&C considerations?

VI. Standard of review

23     The above question is an issue of mixed fact and law and should be reviewed under the standard of reasonableness (see in general, Digilov v Canada (Minister of Citizenship and Immigration), 2010 FC 615 at para 14, [2010] F.C.J. No. 743, and see also Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12, [2012] F.C.J. No. 477 and Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14, [2009] F.C.J. No. 912 (determination of misrepresentations) and Zanchetta v Canada (Minister of Citizenship and Immigration), 2013 FC 195 at para 19, [2013] F.C.J. No. 215 and Sinniah v Canada (Minister of Citizenship and Immigration), 2011 FC 1285 at para 24, [2011] F.C.J. No. 1568 (assessment of H&C considerations)).

24     This Court shall not intervene if the IAD's reasons are "justified, transparent or intelligible" and if the decision falls in the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).

VII. Analysis

25     The IAD's decision was reasonable and this Court's intervention is not warranted.

26     It is first alleged that the IAD misconstrued the evidence presented and that this lead to findings of misrepresentations on two accounts: the Applicant entered into a marriage of convenience and she failed to disclose that she was pregnant when she was granted permanent residence.

27     The Applicant's memorandum refutes the findings of misrepresentation while the IAD's decision relies mostly on the numerous credibility findings noted in the ID panel's oral reasons. Indeed, the IAD confirmed these findings that the Applicant lacks credibility, and this is absolutely reasonable, given the number of discrepancies and contradictions between the Applicant's different testimonies (see pages 1-4 of the ID's decision). The Applicant did not provide any evidence to contradict the ID panel's conclusions that she lacked credibility. Although the appeal procedures calls for a de novo hearing, the Applicant decided not to testify on the misrepresentations issue but only on the H&C issue. It is not for the IAD to decide to assume the task of examining the Applicant. It was the burden of the Applicant. As a result, the ID panel's credibility findings remained and the IAD had to take them into consideration. The evaluation of the credibility lies within the expertise and jurisdiction of the IAD, and this Court must show high deference with regard to such conclusions (Thach v Canada (Minister of Citizenship and Immigration), 2008 FC 658 at para 21, [2008] F.C.J. No. 834). Thus, it was reasonable for the IAD to conclude that the exclusion order was valid.

28     The second argument put forward by the Applicant is that the IAD failed to properly consider the existence of H&C considerations. The Applicant had the burden of proving that, in her case, these considerations were sufficient to warrant granting a relief under the IRPA (Chieu, above, at para 90).

29     In its decision, the IAD went through a careful analysis of the various factors set out in Ribic, above and confirmed inChieu, above, explicitly stating that the factors are not exhaustive and that the weight to be attributed to each factor varies depending on the particular facts of a case. In the present matter, the IAD examined, amongst other factors, the Applicant's and her family's level of establishment in Canada, the family and community support available to them after a possible removal and the degree of hardship they would experience should they be removed.

30     Also, contrary to the Applicant's argument, the IAD was in fact alert, alive and sensitive to the best interests of the children as it concluded that the best option for them would be to be reunited with both parents, an option which is only possible in India. The Applicant also claims that the services offered in India - whether educational or medical services - are of a lesser quality than those offered in Canada. That may well be the case; however, she presented no documentary evidence in support of her claims for the IAD to take into consideration.

31     The Applicant claims that the IAD should have assessed the H&C considerations as a stand-alone criterion. However, this Court finds that the decision under review, independently of the reference to the Applicant's misrepresentation, clearly shows that the IAD considered both the positive and the negative elements relevant in the assessment of H&C considerations. While the Applicant may be dissatisfied with the outcome of the decision rendered by the IAD, it is not up to this Court to reweigh the factors and the evidence considered by the IAD (Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 11, [2002] F.C.J. No. 457; Qiu v Canada (Minister of Citizenship and Immigration), 2003 FCT 15 at para 28, [2003] F.C.J. No. 24). The decision of the IAD as it relates to the assessment of H&C consideration is therefore reasonable.

32     For the aforementioned reasons, this Court finds that the IAD's decision dismissing the Applicant's appeal of an exclusion order made against her is reasonable.

33     The parties were invited to submit a question for certification, but none were proposed.

ORDER

THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.

NOËL J.

HUMANITARIAN AND COMPASSIONATE GROUNDS NOT SUFFICIENT TO OVERCOME FAILURE TO DISCLOSE CHILD

Many applicants for permanent residency fail to disclose an existing child, not realizing the dire consequences of such failure. See recent case below for an illustration. Applicants are cautioned to seek legal counsel before following the advice of well-intentioned but ill-informed friends or non-lawyers.

Tesheira v. Canada (Minister of Citizenship and Immigration)


Romario Leonardo Tesheira, Applicant, and

Minister of Citizenship and Immigration, Respondent

[2011] F.C.J. No. 1787

2011 FC 1418
Docket IMM-1064-11
Federal Court

Montréal, Quebec
Pinard J.
Heard: October 19, 2011.

Judgment: December 14, 2011.

(17 paras.)
_______________________________________

REASONS FOR JUDGMENT AND JUDGMENT

1 PINARD J.:-- On February 18, 2011, Romario Leonardo Tesheira (the "applicant") filed the present application for judicial review of the decision of R. Choo Quan, a Designated Immigration Officer at the High Commission of Canada in Port-of-Spain, Trinidad and Tobago (the "officer"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The officer rejected the applicant's visa application for permanent residence as a member of the family class. Moreover, it should be noted at the outset that his brother Amol Devon Tesheira's application was also dismissed for the same reasons.

2 The applicant was born on July 13, 1994, in St. Vincent and the Grenadines, where he is a citizen and currently resides, allegedly with his aunt and brother Amol. His father resides in St. Vincent as well, but claims to have never lived with his sons, the applicant stating that they do not have a close relationship. The applicant's mother left St. Vincent in 1999 and became a permanent resident of Canada in 2002. The applicant and his brother stayed in St. Vincent, supposedly with their grandmother, because she could not bare the thought of being separated from all of her grandchildren, the applicant's three other siblings having gone to Canada with their mother. However, his grandmother passed away in 2007, which he claims left him and his brother under the care of his aunt who now suffers from cervical cancer.

3 When the applicant's mother applied for permanent residence in Canada, in 2002, sponsored by her husband at the time, from whom she divorced in 2006, she failed to mention the applicant and her other son Amol, who remained in St. Vincent, on her application. Having completed the application form on her own and having a very limited education, she did not know that she needed to mention all of her children as dependents: she only mentioned those with her. As a result, she was unaware that she would lose the right to sponsor them in the future.

4 In his decision dated November 17, 2010, the officer assessed the applicant's visa application for permanent residence as a member of the family class (subsections 12(1) of the Act and 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended [the "Regulations"]) and based on humanitarian and compassionate grounds under section 25 of the Act.

5 The officer rejected the applicant's application as a member of the family class, specifically as a dependent child of his mother, the sponsor, on the basis of paragraph 117(9)(d) of the Regulations: "when [his mother] submitted her application for landing in Canada, she did not declare [him] as her dependant and [he] therefore, did not meet immigration requirements as her dependant".

6 The officer went on to consider the humanitarian and compassionate grounds raised in the applicant's application, specifically, his best interests as a child, the reunification of his family, his close relationship with his mother, the illness of his aunt and the lack of family to care for him in St. Vincent. Nonetheless, the officer concluded that the applicant had not demonstrated undue hardship would be incurred if he remained in St. Vincent and that it was in the applicant and his brother Amol's best interests to stay in St. Vincent together with their father and other relatives: they never resided with their mother in Canada and have been separated from her for the past eleven years, having also been separated from their other siblings for five years.

7 The relevant portions of the Act are as follows:



• Application before entering Canada



• 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.



• Family reunification



• 12. (1) A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.



• Humanitarian and compassionate considerations -- request of foreign national



• 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

* * *



• Visa et documents



• 11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.



• Regroupement familial



• 12. (1) La sélection des étrangers de la catégorie "regroupement familial" se fait en fonction de la relation qu'ils ont avec un citoyen canadien ou un résident permanent, à titre d'époux, de conjoint de fait, d'enfant ou de père ou mère ou à titre d'autre membre de la famille prévu par règlement.



• Séjour pour motif d'ordre humanitaire à la demande de l'étranger



• 25. (1) Le ministre doit, sur demande d'un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, sur demande d'un étranger se trouvant hors du Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des considérations d'ordre humanitaire relatives à l'étranger le justifient, compte tenu de l'intérêt supérieur de l'enfant directement touché.

8 The relevant portion of the Regulations is as follows:



• Member



• 117. (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is

(b) a dependent child of the sponsor;



• Excluded relationships



• (9)

A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if



• (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

* * *



• Regroupement familial



• 117. (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu'ils ont avec le répondant les étrangers suivants :



• b)

ses enfants à charge;



• Restrictions



• (9)

Ne sont pas considérées comme appartenant à la catégorie du regroupement familial du fait de leur relation avec le répondant les personnes suivantes :



• d) sous réserve du paragraphe (10), dans le cas où le répondant est devenu résident permanent à la suite d'une demande à cet effet, l'étranger qui, à l'époque où cette demande a été faite, était un membre de la famille du répondant n'accompagnant pas ce dernier et n'a pas fait l'objet d'un contrôle.

9 At the hearing before me, counsel for the applicant essentially argued that the appreciation of the facts made by the officer was sufficiently wrong to justify the intervention of the Court. I do not agree, for the following reasons.

10 The applicable standard of review to an officer's factual determinations is reasonableness (Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339 [Khosa]; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]). This same standard of reasonableness applies to the officer's assessment of the best interests of a child, being a question of mixed fact and law (Legault v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358 at para 9 [Legault]). Considerable deference is owed to such determinations made by the officer since visa applications are discretionary decisions (section 11 of the Act; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]). Therefore, the weighing of the relevant factors, whether it be in the assessment of the visa application by the officer, or whether it be in evaluating the best interests of a child, is not a function of this court: "a reviewing court should not disturb a decision made based on a "broad discretion" unless the [officer] has made some error in principle in exercising [his] discretion or has exercised [his] discretion in a capricious or vexatious manner" (see, for example, Legault at para 9; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para 9; Woldeselassie v. The Minister of Citizenship and Immigration, 2006 FC 1540 at para 14). Hence, it was the role of the officer to determine the appropriate weight to be given to the humanitarian and compassionate grounds raised by the applicant and the factors that go into this analysis (Suresh; Legault at para 9).

11 In the case at bar, the officer's analysis with respect to the humanitarian and compassionate grounds, including the best interests of the child, appears in the Computer Assisted Immigration Processing System ("CAIPS") notes and reads as follows:



• ... I have considered all factors, including the positive H&C factors and all arguments raised with respect to the best interests of a child, have given them due weight and have considered the positive factors against the facts that weight against granting an exemption under section 25 and have found the following: - Mother (sponsor) left St. Vincent when applicant was 3yrs old. Became a PR in 2002. The applicant was now 6yrs old. - Sponsor has never returned to St. Vincent to visit or care for applicant since leaving for Canada. - Applicant was left in the care of his gr-mother as stated by sponsor, no documentary evidence of same has been submitted. Gr-mother is now deceased and sponsor states applicant now lives with his aunt, Janet Adams who has since been diagnosed with cancer and can no longer care for the applicant. The sponsor has submitted no satisfactory evidence to confirm that the applicant in fact resides with Janet Adams. - Sponsor states that children's father cannot care for them as he is unemployed, however, the applicant's address listed on both the previous application of 2008 and the current application, is the same as the address listed for the applicant's father. I am not satisfied that the applicant does not continue to reside with his father in St. Vincent. - The sponsor states that she has continuously sent financial support for the upkeep of her children since she left for Canada. It is noted that seven Western Union money transfers were submitted in support of this claim for 2009 only. No other evidence of financial support has been submitted. The recipient of these funds is listed as Conrod Tesheira, the applicant's father, which further compounds the suggestion that the applicant remains in his care. - No other documentary evidence has been submitted in support of a continued relationship between the applicant and the sponsor. In the last 10yrs, the applicant has had two trips to Canada in Jul2006 & 2008 for minimal periods. The sponsor has not returned to St. Vincent. I find it unreasonable to believe that any strong bond or parent child relationship could have been established on these two visits. CONCLUSION: From the documents presented by the sponsor's lawyer in support of consideration under Sec25, I am satisfied that I have sufficient documentation to make an assessment and that I find no H&C factors exists. The applicant is now 14yrs old and continues to reside in St. Vincent with his father, one sibling and other family members. The applicant is currently attending High School and has not demonstrated any undue hardship will be incurred by remaining in St. Vincent. The applicant has never resided in Canada with his mother and has been separated from his mother for the last 11yrs and his other siblings for the last 5yrs. I am satisfied that remaining in St. Vincent with his father, sibling and other family members will be in the best interest of the child. Refused.

12 Upon hearing counsel for the parties and upon reviewing the relevant evidence, I conclude that the applicant has failed to show that the officer based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7). In my view, the officer reasonably weighed the evidence, relying on the humanitarian and compassionate factors specified in the Guidelines and mentioned in Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.), [2003] 2 F.C. 555 [Hawthorne]. Rather, the applicant merely did not provide sufficient evidence in support of his application.

13 As mentioned in his CAIPS notes, the officer concluded that the applicant had failed to provide evidence in support of many of his allegations, specifically his current residence and his current relationship with his mother. Hence, it was reasonable for the officer to conclude that the applicant resided with his father: the officer chose, as he is empowered to, to give more weight to the same addresses of the applicant and his father and that the money transfers were addressed to Conrod Tesheira, despite the applicant supposedly having a very limited relationship with him. Therefore, the officer's conclusion that it was in the applicant and his brother's best interests to remain in St. Vincent with their father was reasonable, being based on the officer's assessment of the evidence before him.

14 Moreover, it is trite law that the officer had an obligation to consider the best interests of the applicant and to be sensitive, alert and alive to the latter's best interests (see Hawthorne and Legault). In my view, the officer, in the present case, met this obligation and, in addition, his best interest analysis was proportionate to the applicant's submissions and the evidence he provided (Pillai v. The Minister of Citizenship and Immigration, 2008 FC 1312). In the CAIPS notes, the officer specified that he considered all factors, in addition to the best interests of a child, in refusing to grant the applicant humanitarian and compassionate relief, and then went on to identify which facts he relied on in making this negative decision, highlighting a lack of evidence to support the applicant's application. Therefore, the officer's assessment of the applicant's best interests was reasonable and it is not for this Court to reweigh the best interest factors.

15 Consequently, I find that the officer's conclusions fall within the "range of possible, acceptable outcomes which are defensible in respect of the facts and the law" (Dunsmuir at para 47), and are, therefore, reasonable.

16 For the above mentioned reasons, the application for judicial review is dismissed.

17 I agree with counsel for the parties that this is not a matter for certification.

JUDGMENT

The application for judicial review is dismissed.

PINARD J.

HUMANITARIAN AND COMPASSIONATE APPLICATION DOES NOT STOP DEPORTATION

A common misconception amongst applicants is that the filing of an application on Humanitarian and Compassionate grounds can stop a removal after a deportation order has become enforceable. It does not do so. See case below:

Baboolall v. Canada (Minister of Public Safety and Emergency Preparedness)

Between Shakela Baboolall, Applicant, and
Minister of Public Safety and Emergency Preparedness,
Respondent

[2011] F.C.J. No. 1763

2011 FC 1430

Docket IMM-3399-11

 Federal Court
Toronto, Ontario

Rennie J.

Heard: November 16, 2011.
Judgment: December 14, 2011.

(18 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

RENNIE J.:--

Introduction

1     The applicant seeks to set aside a decision rendered by a Canada Border Services Agency (CBSA) removals officer (the Officer) refusing to defer her removal from Canada pending disposition of a pending application for humanitarian and compassionate (H&C) relief under section 25 of the Immigration and Refugee Protection Act, 2001, c. 27 (IRPA). For the reasons that follow, the application is dismissed.

Facts

2     The applicant, Mrs. Shakela Baboolall, arrived in Canada in 1974 when she was six years of age. She has never regularized her status in Canada. She is now 43 years old, and the mother of three Canadian born children aged 22, 15 and 13. The applicant's history in Canada is unfortunate and complicated. The applicant has been convicted of numerous criminal offences, including criminal negligence causing bodily harm, failure to stop at the scene of an accident and being unlawfully at large. Her interactions with the CBSA and Citizenship and Immigration Canada (CIC) are numerous. She has been subject to removal since 2006, but was successful, on two prior occasions, in obtaining a deferral of removal. She has made several failed judicial review applications. She has filed H&C applications and sponsorship applications which have either been incomplete, not pursued by the applicant or refused by the government. She has been married for 16 years to a Canadian who sought to sponsor her from within Canada. When that was refused, her spouse sought to sponsor her from abroad. She did not attend the interview in the Canadian embassy in Trinidad and Tobago, citing her responsibilities to care for her children.

3     For what is an otherwise long story which shall not be repeated here, the applicant became subject to a removal order which was to be executed on May 31, 2011. On May 30, 2011, Justice Sean Harrington granted a motion to stay removal pending adjudication of the underlying judicial review application which is the subject of this decision.

Issue

4     The issue in this case is whether the decision of the Officer to refuse the applicant's request for deferral of removal withstands scrutiny on a reasonableness standard: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. The applicant argues that the Officer's discretionary decision was unreasonable because the Officer fettered her discretion, ignored evidence, made serious factual errors or came to an unreasonable decision when she decided not to defer the applicant's removal from Canada.

Analysis

5     Turning to the first argument, the applicant contends that the "...enforcement officer did not take into consideration the fact that the applicant now has a pending humanitarian and compassionate application as well as a pending Temporary Resident Permit application." This argument is not supported by the decision.

·       Counsel is requesting a deferral of Ms. Shakela Baboolall's removal to allow for the processing of her outstanding H&C application received on 23 November 2010. I note that on 16 January 2011, Ms. Shakela Baboolall's H&C application was referred to CIC Scarborough for a more in-depth review. According to the CIC processing website...H&C applications can take approximately 15 months for further processing after they have been transferred to a local CIC. 

·       I further note that Ms. Shakela Baboolall has been aware of her impending removal for quite some time, as her Deportation Order was issued 16 December 2004, and she has been scheduled for removal on two previous occasions. I note that M. Shakela Baboolall's H&C application was not submitted until after the second time Ms. Shakela Baboolall signed her Direction to Report advising of her scheduled departure date, and approximately 6 years after being ordered deported from Canada. In considering this, as well as the above mentioned timeframe and factors, I do not consider this application to be timely. Further I note that counsel has failed to provide any evidence to demonstrate that a decision on this application is imminent. Further to this, I note that the submission of an H&C Application, in and of itself, is not an impediment to removal, nor does it delay an individual from being removed from Canada. I note that this clearly outlined in the application and instruction guide (IMM 5291). 

·       Parenthetically, I find it important to note that Parliament has not enacted, in the Immigration and Refugee Protection Act (IRPA), a provision to stay the enforcement of a removal order due to an outstanding H&C application. According to Public Policy under subsection 25(1) of IRPA, an outstanding H&C application does not warrant a deferral of removal, nor does it constitute a stay under section 50. Moreover, as per section 233 of the Immigration and Refugee Protection Regulations, there is no stay of removal where there in an outstanding H&C application that has not been approved in principle by the minister. 

·       Having said that, and while I note that it is beyond my authority to conduct an adjunct H&C evaluation, I have carefully considered the grounds raised in the deferral request.... 

6     It is clear that the Officer considered the H&C application, and did so substantively. Thus the first prong of counsel for the applicant's first argument falls away.

7     In respect of the second prong of her first argument, that is, the failure to take into account a pending temporary resident permit (TRP), the Officer found as follows:

·       According to the deferral request submissions, counsel asserts that on 22 September 2010, Ms. Shakela Baboolall also submitted an application for a Temporary Resident Permit (TRP). I note that counsel has not presented any evidence that a TRP application has been submitted or received at CPC Vegreville. I am willing to concede that some time may elapse until the receipt of an application is reflected on FOSS. However, I note that counsel asserts a TRP application was sent to CPC Vegreville on 22 September 2010, the same day as her H&C application. I note that Ms. Shakela Baboolall's H&C application is reflected in FOSS, thus allowing me to infer that a TRP application was neither submitted nor received at CPC Vegreville along with the H&C application. As stated above, Ms. Shakela Baboolall did have a TRP application at the Canadian Visa Office; however she was advised that the application was not able to be considered until she confirmed her departure from Canada to determine her inadmissibility. 

·       Nonetheless, I find that if Ms. Shakela Baboolall did in fact submit a TRP application to CPC Vegreville on 22 September 2010, the application was submitted approximately 6 years after she was ordered deported from Canada. I note that the application was also submitted after Ms. Shakela Baboolall was scheduled for removal for the third time, after she had received negative PRRA and after her overseas family class sponsorship was refused and the IAD appeal was dismissed As such I do not find the TRP application timely and I am not satisfied that it provides reasonable grounds for a deferral of Ms Shakela Baboolall's removal. 

8     Once again, it is clear that the Officer considered the applicant's Temporary Resident Permit application and provided reasons proportionate to that consideration. Counsel's argument that the Officer failed to "take into consideration the fact that the applicant now has a pending humanitarian and compassionate application as well as a pending Temporary Resident Permit application", therefore, fails. Neither a pending H&C application nor a pending TRP application is an impediment to removal.

9     Second, the applicant argues that the Officer erred because she did "...not assess the extreme hardship the applicant would face if forced to return to Guyana and await processing of her application in a country foreign to her." Hardship informs the standard applied in H&C applications, which is commonly known to require an evaluation of an applicant's likelihood to suffer an unusual, undeserved, or disproportionate hardship if forced to apply for Canadian permanent residency outside of Canada. In this context, I cannot improve on the analysis provided by Justice Yves de Montigny in Munar v Canada (Minister of Citizenship and Immigration), 2005 FC 1180, [2006] 2 FCR 664 wherein he held:

·       ...I am of the view that the filing of an H & C application cannot automatically bar the execution of a removal order, even if it results in the separation of a child from his or her parent(s). Similarly, removals officers cannot be required to undertake a full substantive review of the humanitarian circumstances that are to be considered as part of an H & C assessment. Not only would that result in a "pre H & C" application", to use the words of Justice Nadon in Simoes, but it would also duplicate to some extent the real H & C assessment. More importantly, removals officers have no jurisdiction or delegated authority to determine applications for permanent residence submitted under section 25 of the IRPA. They are employed by the Canadian Border Services Agency, an agency under the auspices of the Minister of Public Safety and Emergency Preparedness, and not by the Department of Citizenship and Immigration. They are not trained to perform an H & C assessment. 

10     It was neither the responsibility nor jurisdiction of the Officer to analyze the hardship the applicant would suffer should removal not be deferred. This the Officer clearly recognized, and stated in her decision: "...I note that it is beyond my authority to conduct an adjunct H&C evaluation." Nevertheless, the Officer did examine the immediate impact removal would have on the applicant:

·       ...I have also carefully considered the hardship that Ms. Shakela Baboolall may face as result of her deportation from Canada to Guyana. I note that counsel provided one additional page on 09 May 2011 again requesting that Ms. Shakela Baboolall's removal be deferred until her outstanding H&C application and TRP application are finalized due to her extreme establishment in Canada. I also acknowledge counsel's assertion that Ms. Shakela Baboolall has absolutely no ties to Guyana as she has not returned there since she was a young child. I would like to note that while Ms. Shakela Baboolall has resided in Canada for many years with her husband and three sons, this does not confer any temporary resident status upon her. 

11     Third, the applicant argues that "...the enforcement officer did not properly assess the best interest of the children...". For the same reasons provided in respect of hardship above I find this argument has little merit. In Varga v Canada (Minister of Citizenship and Immigration), 2006 FCA 394, [2007] 4 FCR 3 the Federal Court of Appeal noted:

·       ...there is no analogy between the statutorily defined functions of a PRRA officer and the role of a removals officer. The latter has a limited but undefined discretion under section 48 with respect to the travel arrangements for removal, including its timing ("as soon as reasonably practicable"). Within the narrow scope of removals officers' duties, their obligation, if any, to consider the interests of affected children is at the low end of the spectrum, as contrasted with the full assessment which must be made on an H&C application under subsection 25(1). 

12     Given the Court of Appeal's holding in Varga and the limited nature of the best interests of the child analysis a removals officer is expected to conduct, I find the analysis conducted by the Officer sufficient and reasonable:

·       In making this decision, I have also carefully considered the best interests of Ms. Shakela Baboolall's three children, Arial, Anthony, and Christon, ages 22, 15, and 13 respectively. I have also carefully considered the hardship Ms. Shakela Baboolall may face as result of her return to Guyana, her country of birth which she left at the age of 4. 

·       [...] 

·       Moreover, I find it important to note that Ms. Shakela Baboolall stated in the 24 May 2011 interview that Mr Johnson would be taking care of their sons after she was removed from Canada. She stated that Mr. Johnson is currently working as a computer engineer in Mississauga, and has done so for the past year. In considering this, I am confident that the children will be properly cared for during this time of transition, and with the potential support of extended family and friends they will have every opportunity to grow up to be confident, caring, and capable individuals. 

·       [...] 

·       I note that Ms. Shakela Baboolall and her family have been given more than a sufficient amount of time to prepare for her impending removal. I note that her removal scheduled for 31 May 2011 is the third scheduled removal for Ms Shakela Baboolall each time she has spoken to making arrangements for her children to remain in Canada. Moreover, while it may mean that Mr Johnson has to make-arrangements with his work schedule, the family was advised of this and should have begun to make the appropriate arrangements. It is important to note that as Canadian Citizens Ms. Shakela Baboolall's husband and three sons are able to travel to Guyana to visit her during this time of separation should they so choose. 

·       I acknowledge that leaving her family is quite difficult for Ms. Shakela Baboolall and I sympathize with her. However, I note counsel's statement that it is "not feasible for Ms. Baboolall to depart Canada." I find it important to note that Ms. Shakela Baboolall's removal from Canada does not necessarily imply that the family will be separated indefinitely. Mr. Johnson can submit another overseas family class sponsorship for his wife. 

13     It is clear that, to the extent she was required to do so, the Officer considered the best interests of the applicant's children and that the conclusion reached was, given the age of the children, the fact that their father would remain with them and was the principle wage earner, reasonable.

14     Fourth, the applicant urges that removal to Guyana would expose her to inhumane treatment as contemplated by Baron v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 FCR 311. She has lived in Canada almost all of her life. She knows nothing of Guyana, its culture or language. She has aunts and uncles remaining there, but her mother and siblings are in Canada. She has no means of support in Guyana. Her ability to return to Canada is problematic given her criminal record. At issue, therefore, is whether the applicant falls within this limited exception in Baron. In Baron, Nadon JA said: "In Reasons which I find myself unable to improve, [Mr. Justice Pelletier] made the following point ...[and]...I agree entirely with [his] statement of the law:

·       In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment. With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. 

15     In my view, it would be antithetical to Parliament's purposes and objectives as expressed in the IRPA to allow a person to gain the benefits of residency in Canada simply through the passage of time. Put otherwise, with exceptions, and there will be exceptions, the gradual accretion of establishment factors cannot amount, in the end, to legal entitlement to remain in Canada. To allow the passage of time to become, in and of itself, a determinative factor in the exercise of the removal officer's discretion would, in effect, reward delay, prevarication and avoidance. In this regard, it is, I think, important to maintain a clear demarcation between what Parliament has authorized as the mechanisms by which foreign nationals can gain admission to Canada, and the conduct of the executive in the administration of the Act. Put otherwise, delay on the part of government departments in allowing a case to linger for decades cannot be relied on by an applicant to create a supplemental avenue of recourse for admission to Canada beyond that contemplated by Parliament. As Justice Yves de Montigny observed in Serda v Canada (Minister of Citizenship and Immigration), 2006 FC 356 at para 21:

·       It would obviously defeat the purpose of the Act if the longer an applicant was to live illegally in Canada, the better his or her chances were to be allowed to stay permanently, even though he or she would not otherwise qualify as a refugee or permanent resident. This circular argument was indeed considered by the H & C officer, but not accepted; it doesn't strike me as being an unreasonable conclusion. 

16     In reaching this conclusion, I have no doubt that the applicant will face challenges upon return to Guyana. However, at each step in the immigration process, the applicant made a decision whether her best interests lay in challenging the decision, or pursing a further application for H& C relief or in returning to her country of origin. There were risks inherent in each course, and in this case the applicant chose to seek to remain in Canada by every mechanism possible. That this makes return more difficult cannot be turned into a reason compelling the deferral of her removal.

17     The application is dismissed.

18     There is no question for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review be and is hereby dismissed. No question for certification has been proposed and none arises.

RENNIE J.