Date: 20120504
Docket: IMM-7144-11
Citation: 2012 FC 538
Ottawa, Ontario, May 4, 2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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B. L.
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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
[1]
The
applicant seeks judicial review of the decision dated September 14, 2011
refusing his application for permanent residence on humanitarian and
compassionate grounds.
[2]
Initials
have been substituted for the name of the applicant in the style of cause due
to the sensitive nature of information in these reasons and the privacy
interests of the applicant and his family.
[3]
For
the reasons that follow, this application is granted.
BACKGROUND:
[4]
The
applicant is a 42-year-old citizen of China. He came to Canada in 2000
sponsored by his wife. They divorced in 2002 and the applicant was granted
custody of their child, a son. In May 2003 the applicant was convicted of
sexual assault on his then girlfriend. The sentence imposed was time served
plus one year probation.
[5]
As
a result of the conviction, the applicant was found to be inadmissible for
serious criminality and a deportation order was issued in September 2004. Leave
for judicial review of that decision was denied in January 2008.
[6]
A
negative pre-removal risk assessment was completed in July 2007. Leave for
review of that decision was granted. The application was dismissed in May 2008.
A second negative pre-removal risk assessment decision was rendered on May 27,
2011.
[7]
In
August 2009, the applicant applied to remain in Canada on
humanitarian and compassionate (hereafter H&C) grounds. The application was
considered by the same Senior Immigration Officer who had decided the second
pre-removal risk assessment. A negative decision was rendered on May 30,
2011. Among other reasons, the officer refused the application on the ground
that the seriousness of the applicant’s criminal conviction was not outweighed
by the other positive H&C factors.
[8]
Before
the negative H&C decision was delivered to the applicant, the officer was
informed that the applicant had received a pardon for the 2003 sexual assault
conviction. For some reason, this information had not been provided to the
officer when the applicant was given opportunities to update the information on
his file. The officer reconsidered his decision as a result of this information
but concluded in an addendum to the May H&C decision that the refusal
should stand.
ISSUES:
[9]
The
issues raised on this application are as follows:
a. Did the officer
err by using the “hardship” test instead of the “best interests” test in
assessing the impact of the decision on the applicant's children?
b. Did the
officer err in assessing the effect of the pardon?
ANALYSIS:
Standard of Review:
[10]
The
parties and this Court are agreed that, in general, the review of an H&C
decision attracts the standard of reasonableness: Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 57-62.
[11]
The
standard for determining the issue of whether the proper legal test was applied
by the H&C officer has been said to be correctness in several decisions of
this Court: Sinniah v Canada (Minister of Citizenship and Immigration),
2011 FC 1285 at para 26; Osegueda Garcia v Canada (Minister of Citizenship
and Immigration), 2010 FC 677 at para 7;
and Khalil
Markis v Canada (Minister of Citizenship and Immigration), 2008
FC 428 at para 19.
[12]
As
stated in Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 50, when applying the standard of correctness
“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.”
[13]
Counsel
for the applicant withdrew an argument that would have required the Court to
consider whether the applicant had been denied procedural fairness by the
officer.
Did the
officer err in applying the best interest test?
[14]
In
reviewing an H&C application, the officer must be “alert, alive and
sensitive” to the children’s interests: Baker, above, at para 75. The
best interest of the child will be an important but not determinative factor in
the review. Rather, an officer will identify the relevant interests to consider
and weigh this factor along with other favourable and unfavourable H&C
factors: Canada (Minister of
Citizenship and Immigration) v Legault, 2002 FCA 125 at para 11.
[15]
According
to the Federal Court of Appeal in Canada (Minister of
Citizenship and Immigration) v Hawthorne, 2002 FCA 475 at para 4:
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.
[16]
This
test does not include consideration of whether the child will experience
“unusual, undeserved or disproportionate” hardship as that standard is
applicable only to the situation of the applicant who may be required to apply
for admission to Canada from overseas: Shchegolevich v Canada (Minister of Citizenship
and Immigration),
2008 FC 527 at paras 11-12; Arulraj v Canada (Minister of Citizenship and
Immigration), 2006 FC 529 at para 14; and Beharry v Canada (Minister of
Citizenship and Immigration), 2011 FC 110 at para 13.
[17]
The
inclusion of these words will not necessarily render an H&C decision
unreasonable. The court must review the decision as a whole to see if the
officer nevertheless applied the correct test and conducted a proper analysis: Lopez
Segura v Canada (Minister of
Citizenship and Immigration), 2009 FC 894 at para 29; Beharry, above,
at para 12.
[18]
At
the hearing, counsel for the respondent fairly acknowledged that the Court
would find in favour of the applicant if it determined that the officer had, in
substance rather than form, applied the hardship test to the children’s
interests. That is my conclusion.
[19]
In
his decision, the officer’s review of the applicant’s son included a mention of
his age, the fact that his father has sole custody of him and that they reside
together along with his common law-spouse and infant daughter. He noted that
there was no evidence of the location of his biological mother. He stated that
the applicant would be able to choose whether his son returned to China with him or
whether he would stay in Canada. The son’s permanent resident status
permitted him to leave the country and return once he was eighteen should he
wish to do so. The officer acknowledged that the son was doing very well in
school and had no physical or mental disabilities.
[20]
With
respect to the infant daughter, the officer stated that she is a citizen of
Canada and as such was permitted to leave and return to Canada, that she
lived with the family and also did not have any physical or mental
disabilities. He mentioned that there were photographs that showed a positive
family atmosphere. In concluding his analysis, the officer stated that:
Despite the photographs, I have not been
presented with sufficient evidence to demonstrate that either [the son] or [the
daughter] would be subjected to unusual and undeserved hardship, or that either
minor would be subjected to disproportionate hardship, should either be
physically separated from [B.L.] (by remaining in Canada, at the discretion of his
father, or at the discretion of her parents) or should either minor accompany
[B.L.] to the People’s Republic of China (with or without the company of [the
spouse]).
[Names have been removed]
[21]
I
am satisfied that the officer's reasons do not demonstrate that he conducted an
adequate analysis of the best interests of the children using the correct test.
In relation to the son, the reasons consist of factual statements but do not
review his relationship with or emotional or financial dependency upon his
father or any other consideration relating to the benefit of having his father
remain in Canada or the
disadvantages he would experience should his father be removed. There is no
discussion of the potential difficulties he would encounter with respect to
language of schooling or other challenges he would face if he accompanied his
father other than the fact that he would be able to return to Canada once he
reached the age of majority.
[22]
The
reasons provided in relation to the daughter are equally problematic as the
officer merely mentions that she resides with her parents, is a Canadian
citizen and that her parents would decide her future residence and schooling.
There is no analysis regarding her relationship with and dependency upon her
father as discussed in Hawthorne, above, at paragraph
50.
[23]
Accordingly
I am satisfied that in substance the evidence does not disclose that the
officer applied the correct test in this case.
Did the
officer err in considering the effect of the pardon?
[24]
While
it is not strictly necessary for me to consider this question given the
conclusion I have reached on the previous issue, I will provide my views for
the benefit of the next officer who will consider this matter.
[25]
In
the initial May 2011 H&C decision, the officer concluded that the positive
H&C factors were insufficient to outweigh the serious crime committed eight
years previously. This was despite the evidence mitigating the seriousness of
that offense and the evidence of the applicant's rehabilitation with the help of
his common law spouse and his pastor.
[26]
When
informed that the applicant had received a pardon, the officer quite properly
acknowledged that it was necessary to reconsider his first decision. He did so
in the form of an addendum appended to the first decision. In the introduction
to the addendum, the officer stated that he had “conducted another full
assessment of the application”.
[27]
However,
the two decisions are substantially the same with the only real difference
being the deletion of references to the criminal conviction and resulting
inadmissibility. There is no analysis to support the officer’s statement that
he dealt with the issue of the pardon and conducted a new assessment. He does
not explain why, given the important weight he had attributed to the “serious
criminal inadmissibility” which was no longer at issue, the application was
still rejected.
[28]
In
my view, therefore, the officer’s reasons for denying the application the
second time were inadequate.
[29]
Neither
party proposed a serious question of general importance for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. the style of
cause is amended to substitute the initials B.L. for the applicant’s name;
2. the application is granted and the matter is remitted
for reconsideration by a different immigration officer; and
3. no question
is certified.
“Richard G. Mosley”
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