Date: 20120614
Docket: IMM-5529-11
Citation: 2012 FC 749
Ottawa, Ontario, June 14, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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HAYDEN
FAY DAN SHALLOW,
CHASFORD
HARBANA LOGRICK GLASGOW, AND
CAZZIE
SHY-ANN SHALLOW,
BY HIS
LITIGATION GUARDIAN HAYDEN FAY DAN SHALLOW
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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
I. Introduction
[1]
The Applicants are all citizens of St.
Vincent. Ms. Hayden Fay Dan Shallow (the Female Applicant),
arrived in Canada on December 12, 2000, on a
visitor’s visa for six months. She was followed by her husband on November 14,
2001, and by their son on July 29, 2009. The Female Applicant and her husband
also have one Canadian-born child.
[2]
The Applicants submitted an application for permanent
residence on humanitarian and compassionate (H&C) grounds under cover
letter dated January 27, 2010. In a decision dated July 27, 2011, an
immigration officer (the Officer), rejected the Applicants’ application for
permanent residence from within Canada on humanitarian and compassionate (H&C) grounds (the Decision).
[3]
The Applicants seek judicial review of the Decision. For
the reasons that follow, I have concluded that the Application for Judicial
Review will be allowed.
II. Issues
[4]
The Applicants raise the following issues:
1.
whether the Officer failed to properly assess the
Applicants’ establishment in Canada;
2.
whether the Officer failed to properly assess the hardship
to the Applicants due to poor economic and social conditions in St. Vincent;
and,
3.
whether the Officer failed to be alive, alert and sensitive
to the best interests of the children.
III. Analysis
A. What is the
appropriate standard of review?
[5]
The Court has previously held that the findings of fact and
the assessment of evidence in an H&C decision are reviewable on a standard
of reasonableness (see e.g. Gill v Canada (Minister of Citizenship and
Immigration), 2011 FC 863 at para 16, 2 Imm LR (4th) 304). As taught by the
Supreme Court, in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190, “reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process”, as well as with “whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law”.
B. Did the
Officer fail to properly assess establishment in Canada?
[6]
The Applicants argue that the Officer’s conclusion that
their level of establishment was insufficient to warrant allowing their
application was based on two findings that are not supported by the evidence or
the law. In particular, the Applicants challenge the Officer’s findings that
their establishment was (1) “caused by their own choosing and not due to an
inability to leave” and (2) that their establishment was “not an unusual
circumstance”.
[7]
As observed by Justice de Montigny in Serda v Canada (Minister of Citizenship and
Immigration), 2006 FC 356 at para 21, [2006] FCJ No 425 (QL):
It would obviously
defeat the purpose of the Act if the longer an applicant was to live illegally
in Canada, the better his or her chances were to be allowed to stay
permanently, even though he or she would not otherwise qualify as a refugee or
permanent resident.
[8]
I agree that establishment in Canada is a relevant factor. However, merely managing to evade deportation for a
lengthy period of time through various procedures and protections available
through the immigration process ought not to enhance an applicant’s “right” to
remain in Canada on H&C grounds. In this
case, the Applicants’ stay in Canada was of their own choosing. They could have returned to St. Vincent at any time and chose not to.
[9]
For this factor to weigh in favour of an applicant, much
more than simple residence in Canada must be demonstrated. And, it must always be remembered that the focus is
on the hardship to the Applicants on applying for permanent residence from
their country of origin as is required by s. 11 of the Immigration and
Refugee Protection Act, SC 2001, c 27. Unless the establishment in Canada is both exceptional in nature and not of the applicant’s
own choosing, this will not normally be a factor that weighs in favour of the
applicants. At best, this factor will usually be neutral. On this question, the
Officer did not err.
C. Did the
Officer err in assessing hardship to the Applicants?
[10]
The key argument by the Applicants on the question of
hardship in St. Vincent is that the Officer’s finding that they could support
themselves and provide a good life for their children through “sheer
‘willpower’ and determination” is not supported by the evidence of their own
“experience of futility” and the severely depressed social and economic
conditions in St. Vincent.
[11]
The Officer’s conclusion that conditions in St. Vincent did
not justify allowing the application was based on two findings: First, that the
Applicants would not necessarily experience the poor socioeconomic conditions
in St. Vincent, which were in any event, “general country conditions”, and
second, that the Female Applicant’s present circumstances were different than
the conditions in which she was raised. In particular, the Officer stated that,
The country conditions
with respect to poor economy, unemployment, lack of social services and
adequate education are general country conditions that may or may not be
experienced by [the Female Applicant] and her family. These conditions are
not unique to [the Female Applicant] and her family. [The Female
Applicant] cannot compare her family life with the life she lived through as a
child.
[Emphasis added]
[12]
While this line of reasoning superficially acknowledges the
Applicants’ submissions, it fails to engage with that evidence in any real way.
First, the Officer’s conclusion that the poor socioeconomic conditions in St. Vincent “may or may not be experienced” by the
Applicants is speculative at best, and arguably has no basis in the evidence.
The evidence (which was not explicitly cited in the Decision) appears to
demonstrate that, rather than improving, conditions in St. Vincent are
deteriorating.
[13]
Contrary to the Officer’s finding that the Female Applicant
is “relatively educated”, the Female Applicant and her husband are in fact
neither well-educated nor wealthy. The Female Applicant has a high school
education, while her husband has only seven years of elementary education, and
two years of training in carpentry and mechanics. In Canada, they have worked at a variety of temporary, domestic and manual labour
jobs. In this light, it is difficult to know what evidence could have led the
Officer to conclude that the Applicants have any reasonable prospect of
escaping the deteriorating economic conditions in St.
Vincent.
[14]
Second, the Officer’s reliance on distinguishing the Female
Applicant’s present circumstances from her childhood is also misplaced, as the
Applicants indicated that it was their family’s recent experience of poverty,
and in particular their inability to provide their son with adequate food or
medical treatment, that led them to travel to Canada. The fact that those
conditions are, sadly, “not unique to [the Female Applicant] and her family”
does not relieve the Officer from analyzing whether they constitute undue,
undeserved or disproportionate hardship (see e.g. Mooker v Canada (Minister of Citizenship and
Immigration), 2008 FC 518 at para 19, [2008] FCJ No
713 (QL)). As the Officer failed to conduct that analysis in any substantive
way, the Decision cannot be said to demonstrate justification, transparency and
intelligibility within the decision-making process.
D. Did
the Officer fail to engage with the evidence in assessing the best interests of
the children?
[15]
The Applicants’ final argument is that the Officer erred in
failing to be alert, alive and sensitive to the best interests of the affected
children, as required by law. In particular, the Applicants submit that the
Officer failed to properly identify and define the best interests of the
children and to examine them “with a great deal of attention”, pursuant to the
decision in Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475 at para 32, [2003] 2 FC 555 [Hawthorne].
[16]
In this case, the Officer was presented with extensive
submissions and documentary evidence on the situation faced by children in St. Vincent. The Applicants were not just relying on
the childhood experiences of the Female Applicant and her husband. In spite of
these submissions, the Officer gave relatively short shrift to the evidence.
[17]
I acknowledge that the fact that the children might be
better off in Canada cannot be conclusive given that H&C decisions are
intended to assess undue hardship (Vasquez v Canada (Minister of
Citizenship and Immigration), 2005 FC 91 at para 43, 268 FTR 122 [Vasquez]).
However, Vasquez does not excuse an Officer from carrying out an
assessment of the evidence before him or her. In my view, that is the problem
with the Decision.
[18]
The jurisprudence establishes that immigration officers
must identify what is in an affected child’s best interest before determining
whether the child’s interests would be compromised by their removal from
Canada, such that the family should remain in Canada on H&C grounds (Gaona
v Canada (Minister of Citizenship and Immigration), 2011 FC 1083 at para 9,
[2011] FCJ No 1337 (QL)). As Justice Décary explained for a majority of the
Court of Appeal in Hawthorne, above at paragraph 6:
To simply require that
the officer determine whether the child’s best interests favour non-removal is
somewhat artificial - such a finding will be a given in all but a very few,
unusual cases. For all practical purposes, the officer’s task 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.
[19]
The Officer’s analysis of the interests of the children
affected is quite brief. The essence of the analysis with respect to the
Canadian-born child was that her interests could be met by her parents,
“[e]specially given the resourcefulness that her parents have to provide for
her and her older brother”. The Officer also explained that it had not been
established that the children would suffer in the same way as their parents,
and found that there was insufficient evidence to indicate that they would not
be able to attend school, receive medical care, or “grow up to be good
citizens”.
[20]
Even if it is inferred from the Officer’s statements that
the Officer was aware of the children’s interests in attending school,
receiving medical care, becoming good citizens, and avoiding the suffering
experienced by their parents in St. Vincent, the Decision wholly avoids the second
part of the enquiry, as it fails to consider the degree of hardship the
children would face if removed. Rather than accepting that the best interests
of the children would likely favour non-removal, the Officer seeks to escape
that conclusion by ignoring the evidence of poor socioeconomic conditions in
St. Vincent. The Officer’s conclusion that “[i]nsufficient evidence ha[d] been
provided” is thus conclusory and unreasonable: The Officer provides no
explanation as to how the children’s parents will overcome the significant
obstacles to accessing health care and education in St. Vincent, beyond wishful
statements regarding love and ambition. The Officer has simply failed to
grapple with the evidence contained in the record.
IV. Conclusion
[21]
In sum, the Officer’s analysis of establishment discloses
no error. However, the analyses of hardship to the Applicants and the best
interests of the children are flawed to the point where I cannot conclude that
the Decision is reasonable.
[22]
In this conclusion, I am not implying that a favourable
decision on H&C grounds is an inevitable result. Indeed, I express no
opinion whatsoever on whether the Applicants should be admitted as permanent
residents on H&C grounds; that is not my job. A different officer, exercising
his or her discretion upon a careful and complete review of the record, may
well arrive at the same outcome.
[23]
Neither party proposed a question for certification. None
will be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the Application for Leave and Judicial Review is allowed,
the decision of the Officer quashed and the matter referred back for
reconsideration by a different officer; and
2.
no question of general importance is certified.
“Judith A. Snider”
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