KIM KOI ENG WENG HOOI, KHOE Applicants v. THE MINISTER OF CITIZENSHIP, 2011 FC 596
Opinion
Federal Court Cour fédérale Date: 20110526 Docket: IMM-2459-10 Citation: 2011 FC 596 Ottawa, Ontario, this 26 th day of May 2011 Before: The Honourable Mr.
Justice Pinard BETWEEN: KIM KOI ENG WENG HOOI, KHOE Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS Respondents REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review of a decision of an Officer from Citizenship and Immigration Canada (the Officer), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27, by Kim Koi Eng and Weng Hooi Khoe (the applicants).
The Officer refused the applicants application from within Canada for permanent residence on humanitarian and compassionate grounds. [ 2 ] The applicants are a married couple from Malaysia . Kim Koi Eng (the principal applicant) was born on November 28, 1974, and Weng Hooi Khoe was born on December 5, 1981. They have a Canadian-born child, Louis Eng, born on September 24, 2009. The applicants are of Chinese ethnicity and grew up in the Taoist faith. [ 3 ] The applicants arrived in Canada on April 24, 2002, and claimed refugee status on June 14, 2005.
They also submitted an application for permanent residence from within Canada on humanitarian and compassionate grounds (H&C) on July 8, 2005. Their refugee claim was refused on May 18, 2006. On September 3, 2009 they submitted an application for a Pre-Removal Risk Assessment (PRRA).
[4] The principal applicant has been working as a carpenter at C-Wood Kitchens Inc. in Toronto since December 2005. Hisspouse also currently works at C-Wood Kitchens as an office clerk. The applicants affidavit notes that the family has converted toChristianity in the last few years. They have purchased a home. [5] The negative decision was issued on February 8, 2010. No interview was held. [6] The standard of review applicable to an Officers analysis of an H&C application is that of reasonableness, according toJustice Russel Zinn in Gelaw et al. v.
The Minister of Citizenship and Immigration, 2010 FC 1120 at para 14. The Officers decisionshould therefore be accorded deference. [7] In their so-called Memorandum of Facts and Law the applicants merely state, without arguments, three issues, the first onebeing related to the test for H&C grounds, the second to the question of risk opinion, and the third to the best interests of the child.
Inspite of the fact that before me, counsel for the applicants limited his oral argument to the question of the best interests of the child, I willdeal with the three issues raised. [8] First, the applicants submit that the Officers discretion was fettered by using the unusual and undeserved or disproportionatehardship test in order to support his refusal. The Federal Court of Appeal in Legault v. Canada (Minister of Citizenship andImmigration), 2002 FCA 125 , [2002] 4 F.C. 358 at para 23, clearly established that this is the acceptable test for an applicationon H&C grounds.
The Court of Appeal cited the ministerial guidelines established for inland processing, and while noting that theMinister is not bound by the guidelines, emphasized that they are of great assistance to the Court (citing Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817). This test was also cited by Justice Denis Pelletier in Irimiev. Canada (Minister of Citizenship and Immigration), (FC), [2000] F.C.J. No. 1906 at para 12.
The Officer did noterr by using this test as the basis for the analysis. [9] Second, the applicants contend that the Officer erred by refusing to obtain a risk opinion regarding their claim that they willface unusual and underserved or disproportionate hardship. The question is not pertinent to this case. The Officer did not refuse to obtaina risk opinion regarding the applicants; in fact the applicants were given a risk opinion on December 3, 2009.
The Officer specificallynoted that the applicants had received an opportunity to address those findings but did not submit any comments. [10] Third and lastly, the applicants submit that the Officer never considered the best interests of the Canadian child.
I find thatthis allegation is not supported by the record; the Officer explicitly considered the interests of the child. [11] With respect to the Officers note that there was no evidence that the child would be unable to accompany the parents shouldthey be returned to Malaysia, other than the submissions of their counsel, it must be remembered that the granting of permanentresidence on H&C grounds is discretionary. It is up to the applicants to show that their situation warrants this extraordinary remedy andto provide evidence in support of their application (Serda v.
The Minister of Citizenship and Immigration, 2006 FC 356 at para 20). Theapplicants did not submit any further evidence regarding their assertion. In the absence of supporting evidence, I cannot find any error inthe Officers decision. [12] At the hearing before me, counsel for the applicants attempted to raise an issue related to the best interests of the child basedon facts and foreign law which were not before the Officer and which were not supported by evidence before me, other than the mereallegation made by the applicant Kim Koi Eng in paragraph 12 of his affidavit dated May 17, 2010.
I agree with counsel for therespondents that this unsubstantiated allegation ought not to be considered in this application for judicial review. [13] For the above-mentioned reasons, I am satisfied that the impugned decision is reasonable and the application for judicialreview is dismissed. I agree with counsel for the parties that this is not a matter for certification.
JUDGMENT The application for judicial review of a decision of an Officer from Citizenship and Immigration Canada, pursuant to subsection72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, refusing the applicants application from within Canada for
permanent residence on humanitarian and compassionate grounds is dismissed. Yvon Pinard Judge FEDERAL COURT NAME OF COUNSEL AND SOLICITORS OF RECORD DOCKET: IMM-2459-10 STYLE OF CAUSE: KIM KOI ENG WENG HOOI, KHOE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: April 27, 2011 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: May 26, 2011 APPEARANCES : Mr. Chung Calvin Huong FOR THE APPLICANTS Ms. Veronica Cham FOR THE RESPONDENTS
SOLICITORS OF RECORD : Chung Calvin Huong FOR THE APPLICANTS Toronto, Ontario Myles J. Kirvan FOR THE RESPONDENTS Deputy Attorney General of Canada
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