Date:
20120625
Docket: IMM-9651-11
Citation: 2012 FC 813
Ottawa, Ontario,
June 25, 2012
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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RODRIGO
SEBBE
PATRICIA
ANGELICA GOMES GONCALVES
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Applicants
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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 applicants seek to set aside a decision of a
Senior Immigration Officer dated November 17, 2011, rejecting their request
under subsection 25(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 for permanent residence on humanitarian and compassionate (H&C)
grounds.
Background
[2]
The applicants, Rodrigo Sebbe and his wife Patricia
Angelica Gomes Goncalves, are citizens of Brazil. They have a four-year-old
daughter, Leticia, who is a Canadian citizen by birth.
[3]
The applicants came to Canada in March 2004 as visitors. After their visitor status expired,
they stayed in Canada
illegally, hoping that they would not be discovered; however, Mr. Sebbe was
arrested and detained by the Canada Border Services Agency in July 2006.
[4]
After the arrest and detention, the applicants
claimed refugee status but their claim was dismissed by the Refugee Protection
Division of the Immigration and Refugee Board on February 12, 2008.
[5]
In January 2007, before their refugee claim had
been determined, the applicants applied for permanent residence on H&C
grounds. They referred to their establishment in Canada as a positive factor as well as the fact that Mr. Sebbe had worked
as a stucco mason and had a contracting business. The applicants attended a
church in Canada and did
volunteer work in the community. They pointed to problems with crime in Brazil, saying they had nothing to return
to because of the threats Mr. Sebbe faced. Further, as immigrants returning to
Brazil from abroad, they would
be perceived as wealthy and targeted for kidnapping and ransom demands. The
applicants updated their H&C application several times. Most notably, they
forwarded a copy of Leticia’s birth certificate on October 5, 2009.
[6]
The applicants also applied for a Pre-Removal
Risk Assessment (PRRA), which the Officer rejected on November 14, 2011. He
found they had not rebutted the Board’s initial finding that state protection
was available.
[7]
The same Officer considered the H&C
application and refused it on November 16, 2011, finding that the applicants’
establishment in Canada would
not lead to unusual and undeserved or disproportionate hardship if they had to
return to Brazil. He also
found conditions in Brazil
would not result in hardship for the applicants and would not have a negative
impact on Leticia which would amount to unusual and undeserved or
disproportionate hardship.
[8]
The Officer noted the applicants’ seven year
stay in Canada and found they
had received due process through the refugee system. The applicants had
established themselves in Canada through the purchase of a home and had created links with the
community. However, it was noted that they had done these things knowing they
could be returned to Brazil at
any time. The Officer concluded the applicants’ establishment in Canada was not exceptional and did not
justify an H&C exemption.
[9]
The Officer also pointed out that the applicants
have no family in Canada but have many family members living in Brazil. Their family in Brazil could help them become
re-established. The hardship the applicants face from having to relocate to Brazil was not unusual, undeserved, or
disproportionate and did not suggest an H&C exemption was necessary in
their case.
[10]
The Officer found Leticia would have better
opportunities in Canada.
However, there was no evidence before him that her basic needs would not be met
if she had to return to Brazil
with her parents. Like her parents, Leticia had no family in Canada and would be returning to a country
where she had support from many family members. Having considered Leticia’s
interests, the Officer found resettling in Brazil would not amount to unusual and undeserved or disproportionate
hardship for her.
[11]
Although the applicants said they faced a risk
in Brazil because they would be
perceived as wealthy, the Officer found they had not provided any evidence to
prove that threat. They also said they faced hardship from the threat of
kidnapping, extortion, and unemployment, but the Officer found all Brazilians
faced these problems. The documentary evidence before him showed Brazil is a democracy with free and fair
elections and an independent judiciary. Brazilians could also bring lawsuits
for human rights violations. Although Brazil faced problems with crime, the government was making efforts to
protect its citizens. The Officer concluded that any risk the applicants faced
in Brazil was general and did
not amount to unusual and undeserved or disproportionate hardship.
Issues
[12]
In my view, the only serious issue in this
application is whether the Officer’s analysis of the best interests of Leticia
was reasonable. That issue includes the question as to whether the Officer
applied the correct test when examining the child’s best interests, and how
that factor was weighed when making the H&C determination.
Analysis
[13]
I agree with the Minister that the applicants
provided little evidence and made few submissions as to the best interests of
their daughter. However, officers are under a duty to consider children’s best
interests when conducting H&C determinations, when there is some evidence
before them. Children are not separately represented in these proceedings and the
role of the officer is akin to that of parens patria. This is
particularly true when the child is a Canadian citizen and his or her parents
are not.
[14]
The Officer’s analysis of Leticia’s interests is
contained in a single paragraph:
I note that the
applicant has a Canadian-born daughter born on November 13, 2008. Although the
applicant’s daughter may enjoy better social and economic opportunities in Canada, there is insufficient evidence
before me to indicate that basic amenities would not be met in Brazil. I note further that the
applicant’s daughter has no other family in Canada besides her mother and father. The families of both her parents
reside in Brazil. Therefore,
it is my finding that the applicant’s daughter will not be returning to a
country where she has no social or family support. I have considered the best
interests of the applicant’s daughter along with the personal circumstances of
this family and found that the applicant has not established that the general
consequences of relocating and resettling back to their home country, would
have a significant negative impact on his daughter that would amount to
unusual and undeserved or disproportionate hardship.
[emphasis added]
[15]
In stating that “there is insufficient evidence
before me to indicate that basic amenities would not be met in Brazil” the Officer is importing into the
analysis an improper criterion. He appears to be saying that a child’s best
interest will lie with staying in Canada only when the alternative country fails to met the child’s “basic
amenities.” That is neither the test nor the approach to take when determining
a child’s best interests. As Justice Russell recently held in Williams v Canada (Minister of Citizenship and
Immigration), 2012 FC 166, at paragraph 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?"
[16]
Undoubtedly placing a child in an environment
where his or her basic needs are not met can never be said to be in that
child’s best interest. However, to suggest that the child’s interest in
remaining in Canada is balanced
if the alternative provides a minimum standard of living is perverse. This
approach completely fails to ask the question the Officer is mandated to ask:
What is in this child’s best interest? The Officer was required to first
determine whether it was in Leticia’s best interests to go with her parents to
Brazil, where she had never been before, or for her to remain in Canada where she had “better social and
economic opportunities.” Only once he had clearly articulated what was in
Leticia’s best interest could the Officer then weigh this against the other
positive and negative elements in the H&C application.
[17]
I agree with the Minister that it is not a
reviewable error merely to use hardship language with respect to children.
However, the reasons must still show, “on a
reading of the decision as a whole that the officer applied the correct test
and conducted a proper analysis:” Segura
v Canada (Minister of Citizenship and Immigration), 2009 FC 894, at para 29.
[18]
In this case, the Officer says that Leticia’s
basic needs will be met and there would not be a significant negative impact on
her that amounted to unusual and undeserved or disproportionate hardship. It
is clear that the Officer has looked at what hardship Leticia would face in Brazil. The analysis of her interests is
such that one cannot point to anything that suggests he fully analysed what her
best interests were. As Justice Décary held in Hawthorne v. Canada (Minister of Citizenship
& Immigration), 2002 FCA 475 at para 9:
"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."
[19]
These errors render the decision unreasonable
and the application must be returned. However, I wish to comment briefly on
two other matters that I find troubling.
[20]
The Officer assesses the applicants’ risk in
returning to Brazil and says:
“I acknowledge that Brazil is
experiencing some difficulties with increasing levels of crime, however, this
is a risk that is faced by the population generally.” This analysis may be
appropriate when looking at returning the two adult applicants to their country
of origin. However, the Officer gives this fact no consideration when
examining Leticia’s best interests. She is a Canadian citizen who has never
been to Brazil. Is it in her
best interests to go with her parents to a country “experiencing some
difficulties with increasing levels of crime?”
[21]
The second area that I find troublesome has to
do with comments the officer made when analyzing establishment. The officer
writes: “I acknowledge that the applicant has taken positive steps in
establishing himself in Canada,
however, I note that he has received due process through the refugee programs
and was accordingly afforded the tools and opportunity to obtain a degree of
establishment into Canadian society.” Frankly, I fail to see how it can be
said that the due process Canada offers claimants provides them with the “tools
and opportunity” to establish themselves in Canada. I suspect that what the
Officer means is that because the process has taken some time, the applicants
had time to establish themselves to some degree. That is a statement
with which one can agree. However, what is required is an analysis and
assessment of the degree of establishment of these applicants and how it weighs
in favour of granting an exemption. The Officer must not merely discount what
they have done by crediting the Canadian immigration and refugee system for
having given them the time to do these things without giving credit for the
initiatives they undertook. The Officer must also examine whether the
disruption of that establishment weighs in favour of granting the exemption.
[22]
The Officer also writes: “Furthermore, the
applicant knowingly purchased various items including a house, with the full
knowledge that he was a failed refugee claimant and there was a possibility
that he may have to return to Brazil.”
[23]
The Officer has taken a perverse view of the
evidence of establishment forwarded by the applicants. Is every investment,
purchase, business established, residence purchased, etc. to be discounted on
the basis that it was done knowing that it might have to be given up or left
behind? Is the Officer suggesting that it is the preference of Canadians that
failed claimants do nothing to succeed and support themselves while in Canada? Is he suggesting that any steps
taken to succeed will be worthless, because they knew that they were subject to
removal? In my view, the answers to these questions show that it is entirely
irrelevant whether the persons knew he or she was subject to removal when they
took steps to establish themselves and their families in Canada. While some may suggest that in
establishing themselves applicants are using a back-door to gain entry into Canada, that view can only be valid if the
applicants have no real hope to remain in the country. In virtually all these
cases applicants retain hope that they will ultimately be successful in
remaining here. Given the time frame most of these applicants spend in Canada, it is unrealistic to presume that
they would put their lives on hold awaiting the final decision.
[24]
The proper question is not what knowledge they
had when they took these steps, but what were the steps they took, were they
done legally, and what will the impact be if they must leave them behind.
[25]
Neither party proposed a question for
certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this application is allowed, the application for an
exemption from inland processing on humanitarian and compassionate grounds is
remitted to a different Officer for determination, the applicants are at
liberty to supplement the materials and submissions already made, and no
question is certified.
"Russel W. Zinn"
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