2011 FC, 2011 FC 1121

Federal Court Cour fédérale Date: 20110930 Docket: IMM-4582-10 Citation: 2011 FC 1121 [UNREVISED ENGLISH CERTIFIED TRANSLATION] Ottawa, Ontario , September 30, 2011 PRESENT: The Honourable Mr.

Justice de Montigny BETWEEN: JOSUÉ BERNARD FABIOLA BERNARD Applicants and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review based on subsection 72(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA), of a decision by an immigration officer dated June 30, 2010, refusing the applicant Fabiola Bernard’s application for a permanent resident visa as a member of the family class. This application was accompanied by an undertaking of assistance filed by her father Josué Bernard.

The immigration officer also refused the application based on humanitarian and compassionate considerations under

section 25 of the IRPA. [ 2 ] In view of the reasons that follow, the Court finds that this application for judicial review must be allowed. Facts [ 3 ] The applicant, Josué Bernard, became a permanent resident of Canada on October 31, 1994. When he filed his permanent residence application, he did not declare his daughter, the applicant Fabiola Bernard (born on May 15, 1990) because he was not aware of her existence. In fact, the male applicant had had a short-term relationship in 1989 when he was still living in Haiti , and his daughter, Fabiola, was born as a result of that relationship, without his knowledge.

[ 4 ] It was only in 2005 that the male applicant found out about the existence of this child, as it appears from his affidavit. At that time, the applicant went to Haiti and, following a positive DNA test, he decided in August 2007 to acknowledge Fabiola as his daughter pursuant to Haitian law. [ 5 ] Since then, the applicant Josué Bernard has taken care of his daughter, with her mother’s agreement, and he is solely responsible for her financial support and maintenance.

In September 2007, he also filed an application to sponsor and undertaking with Citizenship and Immigration Canada with respect to his daughter. [ 6 ] This initial application was denied by an immigration officer, who found that the female applicant was not a member of the family class because the male applicant had not declared her at the time his own permanent residence application was processed. Consequently, she could not be examined in accordance with paragraph 117(9) (

d) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (IRPR). [ 7 ] On January 14, 2009, the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) dismissed the applicant’s appeal, finding that paragraph 117(9) (

d) of the IRPR is unequivocal and excludes from the family class the family members of an appellant who were not declared before the appellant received his or her permanent residence in Canada, notwithstanding the reason for the omission. [ 8 ] Pursuant to

section 65 of the IRPA , given that this was an appeal brought under subsection 63(1) of the IRPA and that the female applicant was excluded from the family class, the IAD did not have jurisdiction to consider the humanitarian and compassionate considerations that could apply to the file. Only the Minister of Citizenship and Immigration, in these circumstances, could consider humanitarian and compassionate grounds as part of an application filed under

section 25 of the IRPA. [ 9 ] Consequently, a second application for a permanent resident visa as a member of the family class, together with the male applicant’s undertaking of assistance, as well as an application under

section 25 of the IRPA based on humanitarian and compassionate considerations, were filed by the female applicant on or around January 21, 2010. [ 10 ] On June 30, 2010, an immigration officer denied this second application for a permanent resident visa as a member of the family class by the female applicant, finding that she was not a member of the family class given that the male applicant had not declared her when his own permanent residence application was being processed. [ 11 ] The immigration officer also denied the application under

section 25 of the IRPA based on humanitarian and compassionate considerations. In this respect, the officer wrote: [TRANSLATION] After reviewing your application and the supporting information, I found that the humanitarian and compassionate considerations raised in your case did not justify an exemption from any or all of the criteria and obligations applicable under the Act. I came to that conclusion because the grounds you cite are common to everyone in Haiti . No specific and important hardship was mentioned. Issue [ 12 ] The only issue raised by this application for judicial review is whether the immigration officer’s decision to deny the application under

section 25 of the IRPA is reasonable in view of the facts submitted to him. Analysis [ 13 ] The fact that the male applicant did not intentionally fail to declare the female applicant before obtaining his permanent residency does not automatically lead to a favourable decision on a subsequent application based on humanitarian and compassionate considerations. If the situation were otherwise, paragraph 117(9) (

d) could be seriously diluted.

[14] The principle of family reunification, which is one of the objectives of the IRPA (in paragraph 3(1)(d)), cannot supplant thebasic requirement of compliance with Canada’s immigration law. Paragraph 117(9)(d), the purpose of which is to limit sponsorshiprights in certain cases in order to dissuade visa applicants from making false or incomplete statements regarding the relevant facts abouttheir dependants, has moreover been declared valid and consistent with

section 7 of the Canadian Charter of Rights and Freedoms,

Part Iof the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [15] That being said,

section 25 of the IRPA can in some cases mitigate the harshness of the requirements imposed by that Act.Moreover, the case law has recognized that the reason why a family member was not declared or was not examined, when it is seriousand convincing, may justify a person being exempted pursuant to paragraph 117(9)(d) (see, among others, Pascual v. Canada (MCI),2008 FC 993, 169 A.C.W.S. (3d) 1123; Sultana v. Canada (MCI), 2009 FC 533, [2010] 1 F.C.R. 175; Krauchanka v. Canada (MCI),2010 FC 209, [2010] F.C.J. No. 245 (FC)(QL)). [16] It is true that the wording of paragraph 117(9)(

d) is unequivocal and is intended to exclude from the family class anapplicant’s family members who were not declared and who therefore were not examined, regardless of the reason for the omission(Munganza v. Canada (MCI), 2008 FC 1250, 178 A.C.W.S. (3d) 209; Adjani v. Canada (MCI), 2008 FC 32, 322 F.T.R. 1).

Animmigration officer may however take into account the circumstances surrounding the failure to declare a family member as part of anapplication on humanitarian and compassionate considerations, as the IAD implicitly recognized in its decision dated January 14, 2009.However, the immigration officer reviewing the second visa application did not even allude to the context surrounding Mr. Bernard’sfailure to mention the existence of his daughter.

Consequently, we can wonder if the officer truly took into consideration all of theevidence in the record. [17] We can also wonder about the adequacy of the reasons given by the immigration officer to deny the application based onsection 25 of the IRPA. As the respondent emphasizes, it is true that the applicable procedure for an exemption based on humanitarianand compassionate considerations is not designed to eliminate hardship, but rather to provide relief from unusual, undeserved ordisproportionate hardship.

The respondent was also correct to point out that it is up to those who file an application on humanitarian andcompassionate considerations to show that they would suffer unusual, undeserved or disproportionate hardship if they had to complywith the requirements of the IRPA. [18] In this case, the female applicant did indeed raise humanitarian and compassionate considerations.

Among other things, shementioned in her affidavit that she would suffer emotionally from her father’s absence, that she could not expect to continue her studieswithout his support and that she would be deprived of many opportunities for personal, social and academic development if she were toremain in Haiti rather than joining her father in Canada. It is true that Mr. Bernard’s submissions to the immigration officer could havebeen more thorough.

However, the fact remains that the officer completely disregarded elements raised by the female applicant and wascontent to find that the female applicant’s situation was not different from that of all Haitians. This is clearly insufficient. [19] The officer needed to give more details for his decision, if only to indicate that he had truly taken into account the femaleapplicant’s specific situation, particularly the extreme deprivation of her mother and her emotional relationship with a father whom shehad just discovered.

The officer’s terse comments do not make it possible to find that he carefully considered Fabiola’s best interests anddo not meet his obligation to give sufficient reasons in support of his decision (VIA Rail Canada Inc. v. National Transportation Board(CA), (FCA), [2001] 2 F.C. 25, [2000] F.C.J. No.1685 (FCA)(QL)). [20] For all of the foregoing reasons, I am of the opinion that the application for judicial review must be allowed. The parties havenot raised any serious question of general importance that would need to be certified for an appeal, and the Court concurs with thisopinion.

JUDGMENT THE COURT ORDERS AND ADJUDGES that the application for judicial review is allowed, the immigration officer’s decision dated June 30, 2010, is set aside and the matter is referred back to another immigration officer to redetermine this application on humanitarian and compassionate considerations. No question is certified. “Yves de Montigny” Judge Certified true translation Susan Deichert, LLB FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4582-10 STYLE OF CAUSE: JOSUÉ BERNARD, FABIOLA BERNARD v.

THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: May 3, 2011 REASONS FOR JUDGMENT AND JUDGMENT: de Montigny J. DATED: September 30, 2011 APPEARANCES :

Jean Robert Cadet FOR THE APPLICANTS Evan Liosis FOR THE RESPONDENT SOLICITORS OF RECORD : Jean Robert Cadet FOR THE APPLICANTS Montréal , Quebec Myles J. Kirvan FOR THE RESPONDENT Deputy Attorney General of Canada