Date: 20100224
Docket: IMM-4030-09
Citation: 2010 FC 215
Montréal,
Québec, February 24, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
ZELMA
CORDELLA CAESAR
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a negative
decision rendered by a Pre-Removal Risk Assessment Officer (the Officer)
refusing the Applicant’s application for permanent resident status from within Canada on
humanitarian and compassionate grounds.
Factual Background
[2]
The
Applicant, Zelma Cordella Caesar, is a resident of Saint Vincent and the Grenadines (SVG). She
entered Canada on December
20, 1997 as visitor and made a refugee claim almost two years later. Her
refugee claim was refused on June 7, 2000. In August 2000, she applied for
admission to Canada in the Post-Determination Refugee Claimants in Canada class. In
December 2003, she became subject to an immigration arrest warrant and was
finally located and arrested in February 2008. In the same month, her
Post-Determination Refugee Claimants in Canada class
application was converted into a pre-removal risk assessment.
[3]
In
December 2007, before her arrest, the Applicant made an application for
permanent residence on the basis of humanitarian and compassionate
considerations (H&C). She made additional submissions on July 2, 2008. The
H&C application was refused by the Officer on June 26, 2009 and is subject
to this judicial review.
[4]
The
Applicant has two Canadian-born daughters, Rozel and Zishawna, born on November
26, 1999 and June 10, 2008 respectively.
Questions at issue
[5]
There
are two questions at issue argued in this case:
a. Did the
Officer err in his treatment of the best interests of the children in this case?
b. Did the
Officer err in his treatment of a letter sent by Rozel’s school?
The application for judicial review shall
be dismissed for the reasons that follow.
Impugned
Decision
[6]
As
only the findings with regard to the Officer’s consideration of the best
interests of the children are in question in this case, I will summarize only
those relevant portions of the decision. The Officer begins by noting that
amongst the alleged risks and hardships, the Applicant claims that separation
from her daughters would be a serious hardship and that taking them to SVG
would also be a serious and unfair disadvantage to her daughters, particularly
her eldest who has been treated for behavioural problems.
[7]
With
regard to the best interests of the children, the Officer notes that the
Applicant has indicated that she no longer lives with Rozel’s father. Rozel
only sees her father once a year and he provides no support. Accordingly, the
Applicant claims that to leave Rozel in Canada would make
her parentless and this would be an excessive hardship.
[8]
With
regard to Zishawna, the Applicant alleged that she intended to nurse her
daughter for one year and thus, separation would be a hardship. The Officer
also notes that the Applicant has not provided much information with regard to
her relationship with Zishawna’s father and that he cannot ascertain if
assistance would be provided to the Applicant and her daughters.
[9]
The
Officer states that the Applicant claims that a return to SVG would deprive her
daughters of healthcare, education and financial security. Particularly in the
case of Rozel, the Applicant submits medical evidence showing that her daughter
has been treated for behavioural problems and attention deficit disorder using
both therapy and medication. The Officer contrasts the latest piece of medical
evidence, dated June 2006, which speaks of a fragile improvement with a letter
from Rozel’s school, dated August 31, 2007, stating that Rozel has an
impeccable attendance record and is a wonderful child to have in the school. As
there is no mention of behavioural or learning problems in the letter, the
Officer concludes that Rozel’s condition is under control.
[10]
Although
the Applicant has indicated that Rozel needs to remain in Canada to continue
her therapy and medication, the Officer notes that no evidence with regard to
health and education services in SVG has been provided against which one could
compare with that of Canada in order to conclude that it would represent an
excessive hardship for the children to travel to SVG to live with their mother.
The Officer also finds that, in general, the Applicant has not provided any
probative objective evidence regarding any serious problems with respect to
healthcare, education or finances for her children.
Analysis
Standard of Review
[11]
The
Federal Court of Appeal has recently confirmed that the appropriate standard of
review of a decision on an H&C application is reasonableness in matters of
fact and mixed fact and law (Kisana v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 189, 392 N.R. 163, at para. 18). These include the
issue of whether or not the Officer, in considering
the application, was "alert, alive and sensitive" to the best
interests of the children who may be adversely affected by a parent's removal (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
at par. 75). Accordingly, the Court must look "into the qualities that make a
decision reasonable, referring both to the process of articulating the reasons
and to outcomes. […] But it is also concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190, at para. 47).
Did the Officer err in
his treatment of the best interests of the children in this case?
[12]
The
Applicant submits that the Officer erred in his treatment of the H&C
factors that she relied on, specifically the best interests of her daughter
Rozel. She contends that the Officer erred by making a comparison between
Rozel’s current situation in Canada and her potential future situation in SVG.
She claims that such an analysis is not the correct test as set out in Hawthorne
v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555.
[13]
She
urges that the Officer failed to consider the fact that Rozel has been
diagnosed with behavioural problems, as detailed in the medical evidence
submitted with the H&C application, and the impact that removing her from Canada would have
on her as she would no longer have access to her therapy and medication. She
highlights certain portions of the medical evidence that she feels are
particularly persuasive.
[14]
The
Applicant further submits that the Officer should have considered Rozel’s age,
her dependency on her mother, her establishment in Canada, her
relation to SVG and any medical and educational needs she might have. She also
claims that the Officer had to inquire as to whether Rozel would be adequately
cared for if the Applicant, as the sole custodial parent, were removed from Canada.
[15]
The
Respondent, on the other hand, emphasizes that although the best interests of
the child are an important factor in the H&C application, it is not a
determinative factor to the issue of removal of the parent. Furthermore, the Officer
has latitude in how to treat the question of the best interests of the child
and that requirement can be satisfied by considering the degree of hardship to
which the removal of the parent exposes the child.
[16]
The
Respondent also advances that the burden of proof rests on the Applicant, not
on the Officer and that he was not obliged to conduct an elaborate assessment
of a matter where the Applicant failed to do so. The Respondent argues that, in
the case at bar, the Officer’s assessment was reasonable as he considered the
child’s situation and benefits of remaining in Canada, but held that the Applicant
had not provided evidence about employment, health or education in SVG that
could lead to the conclusion that having to relocate would represent an
excessive difficulty for the children.
[17]
The
Respondent also distinguishes this case, where the child presents behavioural
disorders, from other cases, such as Canlas v. Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 303, 81 Imm.
L.R. (3d) 312, where the best interests of the child were given particular
importance as the child could not accompany the parent due to health
conditions.
[18]
In
determining the bests interests of the child, I agree that Hawthorne, above provides
considerable guidance. It is well accepted that the best interests of the child
are an important factor that must be given substantial weight (Baker,
above). However, the best interests of the child are not determinative (Legault
v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125, 212 D.L.R. (4th) 139).
[19]
Hawthorne, above, at
para. 4, further teaches that:
The "best interests of
the child" are determined by considering the benefit to the child of the
parent's non-removal from Canada as well as the hardship the
child would suffer from either her parent's removal from Canada or her own voluntary
departure should she wish to accompany her parent abroad. Such benefits and
hardship are two sides of the same coin, the coin being the best interests of
the child.
[20]
In
these cases, the officer must carefully examine the specific reasons alleged by
a parent or by a child as to why non-removal of the parent is in the best
interests of the child (Hawthorne, above, at para. 5).
[21]
In
the present case, the Officer noted that amongst the alleged risks and
hardships, the Applicant claimed leaving Rozel behind in Canada would make
her parentless and deprive her of having a mother which would be an excessive
hardship. He then concluded that this separation may be an excessive hardship
when compared to the prospect of accompanying the Applicant to SVG, a country
for which the Applicant had not provided any probative evidence regarding any
serious problems with respect to healthcare, education or finances for her or
her children.
[22]
The
Officer also mentioned that the Applicant claimed that it would be to Rozel’s
benefit to remain in Canada and continue her therapy and medication.
However, he again noted that there was no objective evidence or information
showing that these would not be available in SVG should Rozel accompany her
mother there.
[23]
The
Applicant faults the Officer for comparing Rozel’s situation in Canada to her
potential situation in SVG. However, the approach described in Hawthorne,
above, shows that the evaluation of this ground is not a formulaic one.
I am not convinced that the approach adopted by the Officer, in this
particular case, is sufficient to conclude that the Officer erred by not being
alert, alive and sensitive to the best interests of the child or minimized the
best interests of the child. As stated in Hawthorne, above, an officer is
presumed to know that living in Canada will generally provide
children with many opportunities that are not available to them in other
countries and that residing with their parents is generally more desirable than
being separated from them.
[24]
Here,
the Applicant’s claim was essentially that it would be best for Rozel to reside
in Canada and that
they not be separated, particularly in light of Rozel’s diagnosed behavioural
problems. The Officer was clearly aware of these allegations and noted them in
the decision.
[25]
He
was also aware of the benefits for Rozel if her mother were to stay in Canada.
However, the Officer also had to consider other factors, including the
hardships that Rozel would face should she accompany her mother to SVG. As the
Officer noted, the Applicant provided no evidence as to these potential
hardships or reasons why her daughter could not accompany her.
[26]
The
Officer was not obliged to conduct elaborate assessments of matters where the Applicant
herself failed to (Barrak v. Canada (Minister of
Citizenship and Immigration), 2008 FC 962, 333 F.T.R. 109, at para.
37). The Officer concluded that the issues raised by the Applicant on these
considerations were insufficient and, in light of the submissions, the
Officer’s assessment on this issue was entirely adequate.
[27]
As
emphasized by the Court of Appeal in Legault, above, the best interests
of the child, although a significant factor, is not a determinative one and
must be weighed against other considerations. The Applicant has not taken issue
with any other parts of the decision, only the consideration of this factor.
The decision as a whole shows that the Officer weighed all of the factors in
concluding that this was not an appropriate case to grant the H&C application.
Did the Officer err in
his treatment of a letter sent by Rozel’s school?
[28]
With
regard to the Officer’s conclusion on the letter sent by Rozel’s school, the
Applicant submits that there is an error as the Officer failed to recognize
that the improvements in Rozel’s mental health and development are the direct
result of the therapy that she receives in Canada and her
mother’s support. She claims that it was unreasonable to infer that Rozel is
cured and no longer needs her mother’s support. Instead, the proper inference
would have that Rozel’s best interests are clearly being met in Canada.
[29]
The
Respondent argues that the Officer’s interpretation of the letter is not
determinative, given his conclusion that the Applicant has not adequately
demonstrated that the conditions in SVG would be such that they would result in
excessive difficulty for her children. Also, the Respondent contends that the
Officer’s finding is not unreasonable in view of the fact that the letter was
more recent than the medical evidence and no evidence was submitted that showed
what Rozel’s current needs are.
[30]
Although
I agree with the Applicant that the Officer’s conclusion with regard to the
letter from Rozel’s school is somewhat tenuous, I do not find that this
conclusion was unreasonable. The inference suggested by the Applicant is
questionable and unfounded particularly as the letter does not give any
indication of the current state of Rozel’s behavioural problems and any follow
up that she might be involved in.
[31]
The
medical reports provided by the Applicant clearly show that Rozel’s therapy was
aimed at helping her integrate a school environment and does not give any
indication of necessary follow‑up treatment. The Applicant did not
provide any evidence with regard to Rozel’s current treatment plan or needs.
The letter from Rozel’s school was the most recent piece of evidence that spoke
to her current situation and gave no indication of her having particular needs.
The Officer’s conclusion with regard to the letter was not determinative of
this issue.
[32]
The
weighing of relevant factors is not the function of the reviewing Court and the
presence of a child and the consideration of his best interests is an important
factor but it is not determinative. The interests of the children are a factor
that must be examined with care and weighed with other factors. In light of
these principles and the above analysis, I am satisfied that the Officer’s
decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.
[33]
No
question for certification was proposed and none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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