Docket: IMM-2949-11
Citation: 2012 FC 166
Ottawa, Ontario, February 7, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ERLINA MARY WILLIAMS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
an Immigration Officer (Officer) of Citizenship and Immigration Canada (CIC),
dated 19 April 2011 (Decision), which refused the Applicant’s application for
permanent residence on Humanitarian and Compassionate (H&C) grounds under
subsection 25(1) of the Act.
BACKGROUND
[2]
The
Applicant is a citizen of Grenada. She currently lives in
Grenada with her
8-year-old son, Omar. Omar is a Canadian citizen who was born in August 2002
while his mother was visiting Canada. Although Omar is a Canadian citizen,
because of his age he will go where his mother goes. The Applicant first
visited Canada in March 2001,
and returned in July 2002. After the second visit, the Applicant returned to Grenada in 2003. On
25 November 2004, the Applicant came to Canada a third time
and claimed refugee status, basing her claim on the abuse she would suffer at
the hands of her husband, Phillip.
[3]
On
12 December 2005, the RPD denied the Applicant’s claim for refugee protection.
She applied for judicial review of that decision, but her application was
dismissed on 3 April 2006 because she failed to file an application record. The
Applicant applied for a pre-removal risk assessment on 9 March 2007 and received
a negative decision on 3 July 2007. She applied for an H&C exemption on 12
March 2007, which resulted in the Decision under review.
[4]
The
Applicant based her application for an H&C exemption primarily on the
hardship she would face because of Phillip’s abuse and Grenada’s inability to
protect her from him. She also said that the abuse would have a negative impact
on Omar. Further, she noted that Omar has severe asthma and requires ongoing
medical treatment, which she would be unable to afford in Grenada because the
medications are costly and she has limited resources. She also said that Omar
had built up a support network in Canada and would suffer
hardship if his mother was removed to Grenada.
[5]
On
1 August 2007, the Applicant voluntarily executed the removal order which was
in place against her. She bought tickets for her and Omar to travel to Grenada. On 17 July
2008 and 18 December 2008, she made additional submissions to CIC to support
her H&C application. In these submissions, she drew attention to Omar’s
asthma, the link between his asthma and the Grenadian climate, and her
financial situation in Grenada. She also made
submissions to CIC on 23 April 2010 in which she noted a letter from her
sister, Arlene Williams, which indicated Arlene’s concern about Omar’s
situation in Grenada. With these
submissions, the Applicant included a letter from Omar’s doctor in Grenada – Dr. W. W.
Thomas – attesting to Omar’s medical condition. On 5 April 2011, the Applicant
made her final submissions to CIC on her application in which she reviewed her
concerns about Omar’s asthma in the Grenadian climate, their living situation,
and case law from the United Kingdom (UK) on the best interests of children. She
noted that, because he lived with her in Grenada, Omar was denied access to
services that other Canadians enjoy in Canada.
[6]
The
Officer considered the Applicant’s submissions and came to his Decision on 19
April 2011. He notified the Applicant by letter on 20 April 2011.
DECISION
UNDER REVIEW
[7]
The
Decision in this case consists of both the Officer’s letter of 20 April 2011
and the Application for Permanent Residence Narrative Form, dated 19 April
2011.
[8]
The
Officer rejected the Applicant’s application for permanent residence on H&C
grounds because he was not satisfied that she or Omar would suffer unusual and
undeserved or disproportionate hardship if her application was not granted.
[9]
The
Officer began his analysis with a review of the Applicant’s immigration
history. He noted that she had visited Canada twice prior
to her rejected refugee claim. The Officer also reviewed the Applicant’s
submissions in support of her H&C claim: that her financial situation in Grenada was poor; that
Omar’s medical condition deteriorated while they were in Grenada; and that it
was in Omar’s best interests to be in Canada. The Officer noted that
the Applicant was presently being supported by her friends in Grenada.
[10]
The
Officer then considered the other evidence before him. He noted the Applicant’s
eight years of education, volunteer services, and employment history. He found
that, because she was unemployed and collecting social assistance while she was
living in Canada, the
Applicant’s level of establishment was not sufficient to make it worth
considering. Although Omar had made friends in Canada, the Officer
found that removing him from Canada would not have a negative impact on him
which would amount to unusual and undeserved or disproportionate hardship.
[11]
The
Officer also looked at the Applicant’s financial situation. He found that she had
decided to return to Grenada even though she had
nothing and no one to return to. He assigned little weight to the Applicant’s
claim of poverty, saying that her travel history, her choice to purchase her
own tickets to Grenada, and the financial support she received from
her friends and family did not support this claim. The Officer found that, although
the Applicant was currently unemployed and had limited education, there was
insufficient evidence that she could not find work or benefit from the
assistance of family and friends in the future.
[12]
The
Officer also found that the Applicant did not face a risk of abuse from Phillip
because she had not returned to him when she went back to Grenada.
[13]
Finally,
the Officer considered Omar’s interests. He found that Omar’s interests were
being met by the Applicant with the help of her family. He also found that the
letter from Dr. Thomas did not show that Omar had a severe medical condition. The
Officer said that asthma is a common condition and found that it was being
treated in spite of the Applicant’s financial hardship. He found that the
Applicant was overstating Omar’s condition for her own gain and that she had
twice returned to Grenada without appearing to give Omar’s condition the
attention it deserved. Based on the Applicant’s submissions that her family
would be willing to cover airfare for her and Omar to return to Canada, the Officer
found that her family would be willing to assist with Omar’s medication. The
Officer was not satisfied that the Applicant had been unable to provide for
Omar’s medical condition.
[14]
The
Officer found that the fears the Applicant had for her
son before she returned to Grenada had not materialized; Omar
was not in the presence of his mother’s abuser and was not deprived of an
education or appropriate medical care. He concluded that neither the Applicant
nor Omar were suffering undue and undeserved or disproportionate hardship in Grenada to the
degree required to grant H&C relief. Accordingly, he denied the Applicant’s
request for permanent residence on H&C grounds.
ISSUES
[15]
The
Applicant raises the following issues in this case:
a)
Whether
the Officer failed to appropriately assess Omar’s best interests;
b)
Whether
the Officer’s conclusions were unreasonable;
c)
Whether
the Officer applied the wrong test for the best interests of the child;
d)
Whether
the Officer provided adequate reasons.
STANDARD OF
REVIEW
[16]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held that a standard of
review analysis need not be conducted in every instance. Instead, where the
standard of review applicable to a particular question before the court is
well-settled by past jurisprudence, the reviewing court may adopt that standard
of review. Only where this search proves fruitless must the reviewing court
undertake a consideration of the four factors comprising the standard of review
analysis.
[17]
In
Hawthorne v Canada (Minister of
Citizenship and Immigration) 2002 FCA 475, the Federal Court of Appeal
held at paragraph 6 that
the
officer’s task [in an H&C determination] 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.
[18]
Further,
the Federal Court of Appeal held in Legault v Canada (Minister of
Citizenship and Immigration) 2002 FCA 125 at paragraph 12 that, once an
officer has identified and defined the best interests of the child, it is up to
him to determine what weight those interests must be given in the
circumstances. Where the best interests of a child lie is a question of fact
which, following Dunsmuir, above, at paragraph 53, will attract a
standard of reasonableness. The standard of review on the first issue is
reasonableness.
[19]
In
Baker v Canada (Minister of Citizenship and Immigration), [1999] SCJ No
39, the Supreme Court of Canada held that, when reviewing an H&C decision,
“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” (paragraph 62). Justice Michael Phelan followed this
approach in Thandal v Canada (Minister of
Citizenship and Immigration) 2008 FC 489, at paragraph 7. The standard
of review on the second issue is reasonableness.
[20]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph
14 that the adequacy of reasons is not a stand-alone basis for quashing a
decision. Rather, “the reasons must be read together with the outcome and serve
the purpose of showing whether the result falls within a range of possible
outcomes.” The fourth issue in this case, whether the Officer provided adequate
reasons, is to be analysed along with the reasonableness of the Decision as a
whole.
[21]
When reviewing a decision on
the standard of reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at paragraph 47, and Canada (Minister of Citizenship and
Immigration) v
Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[22]
In
Sahota v Canada (Minister of Citizenship and Immigration) 2011 FC 739,
Justice Phelan held at paragraph 7 that the application of the proper legal
test is reviewable on the correctness standard. See also Garcia v Canada (Minister of
Citizenship and Immigration) 2010 FC 677 at paragraph 7 and Markis v
Canada (Minister of
Citizenship and Immigration) 2008 FC 428 at paragraph 19. The standard
of review with respect to the third issue is correctness. As the Supreme Court
of Canada held in Dunsmuir, above, at paragraph 50,
When applying the correctness
standard, a reviewing court will not show deference to the decision maker’s
reasoning process; it will rather undertake its own analysis of the
question. The analysis will bring the court to decide whether it agrees
with the determination of the decision maker; if not, the court will substitute
its own view and provide the correct answer. From the outset, the court must
ask whether the tribunal’s decision was correct.
STATUTORY
PROVISIONS
[23]
The
following provision of the Act is applicable in this proceeding:
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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
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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.
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ARGUMENTS
The Applicant
The
Officer Ignored Evidence
[24]
The
Applicant argues that the Decision is unreasonable because the Officer ignored
evidence before him that the severity of Omar’s asthma is exacerbated by the
climate in Grenada. She notes
that the Officer mentioned Omar’s asthma at page 3 of the Decision, but the
Officer did not acknowledge or address her submission that the climate in
Grenada makes Omar’s asthma worse than it was in Canada. The
Applicant points to her written submissions of 5 April 2011 in which she wrote
that
Omar
has been hospitalized several times due to his severe asthma attacks […] Living
in Grenada has not only increased the severity of Omar’s asthma attacks, but
has also put his life at risk for not being able to access the inhalers he
needs.
[25]
The
Applicant also points to the letter she submitted to the Officer from Dr.
Thomas which shows that Omar has been treated regularly in hospital for his
asthma.
[26]
In
this case, the Officer was under a duty to address the totality of the evidence
which was before him, including the factors the Applicant felt were important.
The Applicant points to Citizen and Immigration Canada’s (CIC) IP5 Manual – Immigrant
Applications in Canada made on Humanitarian and Compassionate Grounds –
which says at page 69 that
An officer should
consider and weigh all the relevant evidence and information, including what
the applicant and the officer consider to be important. Officers must not
ignore evidence or place too much emphasis on one factor to the exclusion of
all other factors.
They must look at the whole picture.
[27]
The
Applicant says that in Curry v Canada (Minister of
Citizenship and Immigration) 2006 FC 1350, Justice Douglas Campbell
held at paragraph 10 that it was not fair or proper for an officer to act
contrary to the IP5 Manual and not consider all the factors before him or her.
[28]
Here,
the Officer found that Omar’s asthma was not severe, but did not compare his
condition in Grenada with his
condition in Canada. The
submissions the Applicant made on the worsening of Omar’s symptoms were so
important that the Officer was required to address them directly in the
Decision (see Ozdemir v Canada (Minister of
Citizenship and Immigration) 2001 FCA 331 at paragraphs 9 and 10).
Because the Officer did not address these submissions, the Decision is
unreasonable and must be returned for reconsideration.
The
Officer’s Findings Were Unreasonable
[29]
The
Applicant also argues that the Officer’s findings that her family would assist
in purchasing Omar’s medications, that she is overstating his condition for her
own gain, and that Omar’s condition is not severe are all unreasonable.
[30]
The
Applicant says that the Officer found she was overstating Omar’s condition
because she returned to Grenada without regard to his
condition. This finding is unreasonable because she returned to Grenada, not by her
own decision, but because she was required to leave by the Canadian government.
The Applicant argues that it is against public policy to hold an enforced removal
against an H&C claimant. To do so would encourage people with pending H&C
applications who are also subject to removal orders to do all they can to avoid
removal because removal would negatively impact their H&C applications. The
Applicant also notes that her return to Grenada in 2003 occurred
before Omar first experienced asthma symptoms. Further, she could not have
foreseen the impact that the Grenadian climate would have on Omar when they
returned to Grenada in 2007.
[31]
The
Officer also made an unreasonable finding when he concluded that Omar’s asthma
is not severe and that asthma is a common condition; the Applicant says that
this is an improper basis for finding that Omar’s asthma is not severe. She
points to evidence that Omar has been treated in hospital several times and has
to use inhalers daily to control his symptoms. The Officer’s reasons do not show
that he considered these facts or how they affected the Decision. Omar’s
medical condition was an important aspect of the application, so the Officer
should have thoroughly canvassed this point. It is also unclear what test the
Officer applied to establish that Omar’s asthma is not severe.
[32]
The
Applicant also challenges the Officer’s finding that she will be able to afford
Omar’s medication if she gives it the priority it appears to deserve. The
Officer based this conclusion in part on evidence that the Applicant’s family
in Canada would be willing to assist with the cost of a ticket for Omar to Canada if her H&C
application was successful. He found this showed that they would also be
willing to assist with the cost of Omar’s medication if the H&C application
was not successful. The Applicant says that it was unreasonable for the Officer
to equate her family’s willingness to assist with a return airfare to Canada with a continuing
ability and willingness to help her buy medicine for Omar. She notes that her family
members in Canada have
children of their own, so they may not be able to continue to help with Omar’s
medications.
The Officer Applied the Incorrect Test for the
Best Interests of the Child
[33]
The
Applicant further argues that the Officer applied the wrong test when he
analysed Omar’s interest in her H&C application. She notes that in Shchegolevich
v Canada (Minister of
Citizenship and Immigration) 2008 FC 527, Justice Robert Barnes wrote at
paragraph 12 that
It is clear that the Officer erred by requiring that Mr. Schegolevich
establish that the adverse effects of his removal upon his spouse and his
stepson would be unusual, undeserved, or disproportionate. This standard is
only to be applied to the assessment of hardship experienced by an applicant
from having to apply for admission to Canada from overseas; it does not apply to the assessment of the best
interests of a child affected by the removal of a parent.
[34]
The
jurisprudence clearly establishes that officers considering H&C
applications are required to analyse the best interests of children affected by
their decisions separately from the hardship analysis. Officers must also be
alert, alive, and sensitive to those interests (see Baker, above, and Kolosovs
v Canada (Minister of
Citizenship and Immigration) 2008 FC 165). In this case, the Officer
incorrectly looked at the hardship Omar would suffer if his mother were not
granted permanent residence (see Mangru v Canada (Minister of
Citizenship and Immigration) 2011 FC 779 at paragraph 24).
[35]
As
in Mangru, “the application of the unusual and undeserved or
disproportionate hardship threshold permeates [the Officer’s] analysis of the
best interests of the [child] and results in an inappropriate conclusion” (Mangru,
at paragraph 27). The Applicant says that, when the Officer said that he
was not “satisfied that a removal from [Canada] at this
early stage of the child’s life will have a negative impact on the child to the
extent where he would suffer undue and undeserved or disproportionate
hardship,” the Officer applied the incorrect test in assessing Omar’s best
interests.
[36]
The
Applicant relies on Kolosovs, Baker, and Shchegolevich,
all above, Owusu v Canada (Minister of Citizenship and Immigration) 2004
FCA 38, Arulraj v Canada (Minister of Citizenship and Immigration) 2006
FC 529, and Hawthorne, above, and says that, when officers assess the
best interests of children affected by H&C decisions, they must
a.
Establish
what is in the best interests of the children;
b.
Assess
the degree to which those interests are compromised by all the decisions
contemplated; and
c.
Determine
the weight the best interests of the children will play in the H&C
assessment.
[37]
The
Applicant also says that there is no minimum level of suffering a child must
experience in order to ground a positive H&C determination. In this case,
the Officer was required to consider whether Omar’s best interests were served
by allowing him to come to Canada with his mother or by forcing him to
remain with her in Grenada; the Officer was not required to decide whether Omar
was suffering in Grenada or that he would suffer less in Canada. The Officer
did not consider the right question.
[38]
The
Applicant acknowledges that the best interests of a child directly affected are
not necessarily determinative. However, she also notes that in Baker,
above, Justice Claire L’Heureux-Dubé held at paragraph 75 that
[…]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.
[39]
The
Officer committed the error Justice L’Heureux-Dubé identified in Baker,
so the Decision must be returned for reconsideration.
The Respondent
H&C Applications are Exceptional
and Discretionary
[40]
The
Respondent draws the Court’s attention to the principle that H&C exemptions
are not designed to eliminate all hardship arising out of the requirements of
the Act. Rather, section 25 of the Act is aimed at eliminating only unusual and
undeserved or disproportionate hardship. Because of the exceptional nature of
relief under section 25, applicants must meet a high threshold to be granted an
exemption under that section (see Irimie v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 1906 at paragraph 12).
Applicants must also demonstrate all of the positive ingredients in their
applications (see Owusu, above).
The
Officer Adequately Considered Omar’s Best Interests
[41]
In Hawthorne, above, the Federal Court of
Appeal held at paragraph 6 that the task faced by an H&C officer is to
weigh the hardship faced by the applicants along with all the other positive
and negative ingredients in their applications. In this case, the Officer
thoroughly considered where Omar’s best interests lay and weighed these against
the other positive and negative factors in the application. The Officer
addressed the Applicant’s concerns that Omar would be in Phillip’s presence,
would be denied access to education, and would not have access to medical care.
Although the Applicant feared these risks, the Officer reasonably found that
they had not materialized in Grenada.
[42]
The
Officer also adequately canvassed the issues surrounding Omar’s medical
condition. Although the climate in Grenada
makes Omar’s condition worse and his medication is expensive, the Officer found
that the evidence showed his asthma is being treated. This finding was
reasonable. Further, the Applicant did not provide objective evidence to prove
that Omar’s medication is expensive or that his condition is severe.
[43]
The
Officer said that removal to Grenada would not cause Omar unusual
and undeserved or disproportionate hardship. Though this may suggest that he
applied the incorrect test, the Respondent notes that Justice Russel Zinn held
in Segura v Canada (Minister of Citizenship and
Immigration)
2009 FC 894 that using the language of hardship does not automatically result
in a reviewable error. What matters is “whether it can be said on a reading of
the decision as a whole that the Officer applied the correct test and conducted
a proper analysis.” (see paragraph 29).
[44]
In this
case, the Decision shows that the Officer considered Omar’s condition. Given
the evidence before him the Officer reasonably found that the Applicant’s
situation did not warrant granting permanent residence on H&C grounds.
Although Omar would have easier access to the medicine he needs and better
education in Canada, these factors alone do not
mean that the Decision was unreasonable. The Applicant’s submissions in this
case amount only to an invitation to the Court to re-weigh the factors that the
Officer considered which is improper on judicial review.
The
Applicant’s Reply
[45]
Although
the Respondent has argued that the Officer considered the Applicant’s
submissions on the impact of the Grenadian climate on Omar’s condition, the
Applicant says that he merely mentioned her concerns without actually
addressing them. This failure to consider her submissions is a reviewable
error.
[46]
The
Applicant also says that the Officer’s statement that asthma is a common
condition was irrelevant to the H&C determination. Whether asthma is common
or not has no bearing on how Omar’s asthma is affected by the Grenadian
climate, which was a key feature of the Applicant’s H&C application. The
Officer made this statement without addressing the severity of Omar’s condition
and how it was affected by the climate in Grenada. This is a
reviewable error.
[47]
The
Respondent has said that H&C exemptions are exceptional and discretionary.
The Applicant agrees and says that, in exercising this discretion, officers
must give a great deal of attention to the best interests of children affected
by their decisions (see Legault, above, at paragraph 11). The Officer
here did not pay sufficient attention to Omar’s interests.
[48]
As
the Respondent has noted, H&C exemptions are intended to relieve unusual
and undeserved or disproportionate hardship; the Applicant says that hers is a
case where unusual and undeserved or disproportionate hardship will arise out
of the operation of the Act. While it is true that leaving a job or family in Canada do not
necessarily constitute unusual and undeserved or disproportionate hardship,
applying this reasoning would cause Omar to suffer. The Applicant points to ZH
(Tanzania) (FC) v
Secretary of State for the Home Department, [2011] UKSC 4, a
decision from the UK Supreme Court. In that case, the UK Supreme Court held
that a parent be allowed to remain in the UK because her
children’s best interests lay in remaining there, notwithstanding the parent’s
“appalling immigration history.” The Applicant says her case should be
similarly decided.
Best
Interests of the Child
[49]
Although
Hawthorne, above, teaches that there is no set formula for considering
the best interests of children affected by H&C decisions, it is still an
error for officers to summarily dismiss concerns relating to children. Here,
the Officer summarily dismissed Omar’s condition without considering its
seriousness and how it was affected by the climate in Grenada. The Officer
also ignored the Applicant’s submissions and made no finding on whether the
change in environment had jeopardized Omar’s health and well-being.
[50]
As
the Respondent has noted, Segura, above, teaches that the use of hardship
in describing the impact of a decision on children is not a reviewable error on
its own. However, the Officer’s analysis of Omar’s situation explicitly considered
whether denying the H&C application would cause Omar unusual and undeserved
or disproportionate hardship without looking at what was in his best interests.
Further, Segura is distinguishable because Omar faces challenges related
to his asthma that are not typically faced by children who are removed from Canada with their
parents. The Officer’s summary dismissal of Omar’s condition shows that his
analysis of Omar’s best interests was deficient in both form and substance.
Though he mentioned the impact of the Grenadian climate on Omar’s asthma, the
Officer did not weigh this factor as he was bound to do.
[51]
The
Applicant also says that her application for judicial review does not amount to
a request to re-weigh the evidence already considered. Rather, she has asserted
that the Officer ignored her submissions and applied the wrong test for the
best interests of a child directly affected by the Decision, which are
reviewable errors. She notes that in Kisana v Canada (Minister of
Citizenship and Immigration) 2009 FCA 189, the Federal Court of Appeal
quoted from Legault, above, and held at paragraph 24 that
It is not for the courts to reweigh the factors considered by an
H&C officer. On the other hand, an officer is required to examine the best
interests of the child "with care" and weigh them against other
factors. Mere mention that the best interests of the child has been considered
will not be sufficient
The
Applicant’s Further Memorandum
[52]
The
Applicant takes issue with the Respondent’s argument that the Decision was
reasonable because Omar has access to schooling and medical care in Grenada. She says
that the Respondent has not addressed the fact that Omar’s need for medical
care would be reduced if he were removed from the Grenadian climate to Canada. She also
says that the Respondent’s argument that the Officer considered Omar’s
condition is incorrect; he did not consider the impact of the Grenadian climate
on Omar’s condition. The Officer only noted her submissions without considering
them. He did not engage with those submissions.
[53]
The
Applicant also disagrees with the Respondent’s contention that the Officer
adequately considered Omar’s best interests. She says that the Officer
summarily dismissed Omar’s condition as common without appreciating the impact
of the Grenadian climate. He also did not consider the impact the Applicant’s
financial difficulties had on Omar’s condition.
ANALYSIS
[54]
The
Applicant raises several issues but there is a fundamental problem with this
Decision that requires it be returned for reconsideration. If the Decision is
read as a whole, it seems to me that the Officer was not really aware of what a
best interest analysis requires or of the legal principles that must be
applied. The Respondent says that this is merely a matter of form and not
substance, and that I should not be swayed by the Officer’s misstatements. I
disagree.
[55]
It
is clear on the face of the Decision that the Officer has applied the wrong
test in assessing the best interests of the child. He makes the following
statements that constitute the basis of his analysis:
Her child, a four-year-old Canadian
citizen had just started JK and making new friends however I am not satisfied
that a removal from this setting at this early stage in the child’s life will
have a negative impact on the child to the extend (sic) where he
would suffer undue and undeserved or disproportionate hardship. [Emphasis
added]
…
Considering all the submissions and
history of this case, I am not satisfied that subject nor her son, are
suffering undue and undeserved nor disproportionate hardship in Granada to the degree that this
application should be considered favorably. [Emphasis added]
[56]
I
agree with the Applicant that the Officer in the present matter has committed
the very error contemplated in the jurisprudence from this Court I have quoted
above and the Decision of the Federal Court of Appeal in Hawthorne. Rather than
being alert, alive and sensitive to Omar’s circumstances and viewing the
situation from his perspective, as the jurisprudence requires, the Officer has
instead concluded that: “I am satisfied that his best interests are being
met.” And “I am not satisfied that… her son [is] suffering undue and
undeserved nor disproportionate hardship” and “I am not satisfied that a
removal from the setting […] will have a negative impact on the child to the
extent where he would suffer undue and undeserved nor disproportionate
hardship.” It may not be an error to use the language of hardship, but the
Officer here went one step further and applied hardship as the test for Omar’s
interests.
[57]
I
agree with the Applicant’s characterization of the problem and her account of
the governing jurisprudence and adopt them for purposes of these reasons. I am
going to set out the process and the principles in some detail, so that when
this goes back to a different officer for reconsideration, he or she will have
a template to work with. In this regard I will essentially reproduce and adopt
the excellent summary of the law provided by Applicant’s counsel.
[58]
It
is well-established that an officer must be “alert, alive and sensitive” to,
and must not “minimize” the best interests of a child who may be adversely
affected by their decision.
[59]
This
Court has also instructed that being “alert, alive and sensitive” to a child’s
best interests is a separate analysis from consideration of the threshold
standards of “unusual, undeserved or disproportionate hardship.” As Justice
Barnes made clear in Shchegolevich, above, at paragraph 12:
It is clear that the Officer erred by requiring that Mr. Schegolevich
establish that the adverse effects of his removal upon his spouse and his
stepson would be unusual, undeserved, or disproportionate. This standard is
only to be applied to the assessment of hardship experienced by an applicant
from having to apply for admission to Canada from overseas; it does not apply to the assessment of the best
interests of a child affected by the removal of a parent.
[60]
Similarly,
this Court stated in Arulraj, above, at paragraph 14 that
[…] terms found in the IP5 Guidelines of “unusual”, “undeserved”
or “disproportionate” are used in the context of considering an applicant’s H
& C interests in staying in Canada and not having to apply for landing from abroad. It is an error
to incorporate such threshold standards into the exercise of that aspect of the
H & C discretion which requires that the interests of the children be weighed.
This point is made in Hawthorne v. Canada
(Minister of Citizenship and Immigration) [2003] 2 FC 555, 2002 FCA 475 (F.C.A.) at para.
9 where Justice Robert Décary said “that the concept of ‘undeserved hardship’
is ill-suited when assessing the hardship on innocent children. Children will
rarely, if ever, be deserving of any hardship”.
[61]
The
Court’s recent decision in Mangru, above, reaffirmed its position that
including the test of “unusual, undeserved and disproportionate hardship” in
the analysis of the best interests of the child is incorrect. In quoting Arulraj,
above, Justice O’Keefe stated that incorporating the “unusual, undeserved or
disproportionate hardship” threshold into the analysis of the best interest of
the child is an error in law.
[62]
In
Mangru, the Court found that, in addition to incorrectly describing the
test involved in determining the best interest of the children impacted by the
decision, the officer had minimized the impact on the children of being forced
to leave Canada to accompany their parents to Guyana.
Consequently, the officer did not consider the best interests of the
children impacted by the decision as her analysis was incorrect in form and
substance. The Court found that “the application of the unusual, undeserved or
disproportionate hardship threshold permeates her analysis of the best
interests of the children and results in an inappropriate conclusion…” (at
paragraph 27.) The same can be said of the Officer’s analysis in the present
case.
[63]
When
assessing a child’s best interests an Officer must establish first what
is in the child’s best interest, second the degree to which the child’s
interests are compromised by one potential decision over another, and then
finally, in light of the foregoing assessment determine the weight that this
factor should play in the ultimate balancing of positive and negative factors
assessed in the application.
[64]
There
is no basic needs minimum which if “met” satisfies the best interest test.
Furthermore, there is no hardship threshold, such that if the circumstances of
the child reach a certain point on that hardship scale only then will a
child’s best interests be so significantly “negatively impacted” as to warrant
positive consideration. The question is not: “is the child
suffering enough that his “best interests” are not being “met”? The question at
the initial stage of the assessment is: “what is in the child’s best
interests?”
[65]
For
example, officers should not discontinue their consideration of what is in a
child’s best interests after determining that the child is not being beaten or
malnourished, or, as in the present decision, is not being outright denied
medical care. In order to be properly “alert, alive and sensitive to” a child’s
best interest, the task that is specifically before an officer is to have
regard to the child’s circumstances, from the child’s perspective, and then
determined what is in his best interest.
[66]
As
was noted by the Federal Court of Appeal in Hawthorne, and by this Court
in Arulraj and Shchegolevich, a child will rarely, if ever, be
deserving of any level of hardship. As a result, a threshold test of undeserved
or undue hardship or a threshold “basic needs” approach to a best interests
analysis, like that applied by the Officer in this case, does not adequately
determine – in a way that is “alert, alive and sensitive” – what is in the
child’s best interest.
[67]
A
child’s best interests are certainly not determinative of an H&C
application and are but one of many factors that ultimately need to be assessed.
However, requiring that certain interests not be “met” or that a child “suffer”
a certain amount before this factor will weigh in favour of relief, let alone
be persuasive in the decision, contradicts well-established principle that
officers must be especially alert, alive and sensitive to the impact of the
decision from the child’s perspective. Furthermore, this would seem to
contradict the instruction of the Supreme Court of Canada that this factor be a
primary consideration in an H&C application that must not be minimized.
[68]
In
Baker, above, the Supreme Court of Canada held that for the exercise of
discretion under subsection 25(1) of the Act to fall within the standard of
reasonableness, the decision-maker must consider the child’s best interests as
an important factor, give them substantial weight, and be alert, alive and
sensitive to them. Justice L’Heureux-Dubé wrote at paragraph 75 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]
[69]
At
paragraph 73 of Baker, the Supreme Court of Canada stated:
The above factors indicate that emphasis on the rights, interests,
and needs of children and special attention to childhood are important values
that should be considered in reasonably interpreting the “humanitarian” and “compassionate”
considerations that guide the exercise of the discretion. I conclude that
because the reasons for this decision do not indicate that it was made in a
manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s
children, and did not consider them as an important factor in making the
decision, it was an unreasonable exercise of the power conferred by the
legislation, and must, therefore, be overturned.
[70]
In
Kolosovs, above, the Federal Court described what it means to be open and
sensitive to the best interests of children, in the following terms:
It is only after a visa officer has gained a full understanding of
the real life impact of a negative H&C decision on the best interests of a
child can the officer give those best interests sensitive consideration. To
demonstrate sensitivity, the officer must be able to clearly articulate the
suffering of a child that will result from a negative decision, and then say whether,
together with a consideration of other factors, the suffering warrants
humanitarian and compassionate relief. [Emphasis added]
[71]
The
Decision is therefore returned for a new officer to consider in accordance with
the above principles.
[72]
Counsel
agree there is no issue for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed, the Decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”
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