Date:
20120807
Docket:
IMM-9573-11
Citation:
2012 FC 971
Ottawa, Ontario, August 7, 2012
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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DUGLY MEDINA MOYA,
CLAUDIA BENEVIDES GOMEZ,
DUGLHY MEDINA, AND MARILYN MEDINA BY HER LITIGATION GUARDIAN CLAUDIA BENEVIDES GOMEZ
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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]
This
is an application for judicial review of a decision of a Senior Immigration
Officer of Citizenship and Immigration Canada dated November 9, 2011 wherein
the Applicants’ application for permanent residence in Canada on humanitarian and compassionate grounds was not granted. The Applicants seek to set aside
that decision and have it redetermined by a different Officer. For the reasons
that follow I find that I will allow the application and will certify a
question.
[2]
The
Applicants are a family. The father and mother are citizens of Colombia. They fled to the United States where their first child was born; they were
deported to Colombia where their second child was born; they returned to the United States where their third child was born; then the family came to Canada where their fourth
child was born.
[3]
This
case turns upon the “best interests of a child” as provided for in section 25
of the Immigration and Refugee Protection Act, SC 2001, as amended
(IRPA); therefore, it is important to note the status of each child at the time
that the decision under review was made:
§ Duglhy (son) -
dual citizen of Colombia and the United States, age 20, living at home, has
part-time work and is enrolled at Humber College in Toronto
§ Melanie
(daughter) - citizen of Colombia- age 18, living at home, enrolled in the University of Toronto
§ Marilyn
(daughter) - dual citizen of Colombia and the United States, age 11, living at
home and going to school
§ Michelle
(daughter) - born in Canada, less than one year old, living at home
[4]
In
the “Factors for Consideration” portion of the decision at issue, the Officer
noted the following as to “Establishment in Canada”:
-The family received social assistance until the
applicant obtained work as a janitor in November of 2010
-Applicant and spouse have taken language training
and performed volunteer service at a food bank.
-All members of the family attend and volunteer at
church
-Children have been attending school with good
results in Canada. ---Son is beginning college.
-Some family members in Canada: Co-applicant’s
half-brother and his family. The applicant’s sister-in-law and her children are
also resident in Canada.
-Personal reference from language teacher, pastor,
community organization and a personal acquaintance
As to “Best Interest of the Child
(BIOC)” the Officer noted:
The eldest child of this family is a dual U.S. and Colombian citizen: The second child is a Colombian citizen and Convention refugee in Canada. Neither is eligible for BIOC as they were over 18 years of age when application was
received. The third child is a U.S. and Colombia dual citizen, aged 11, who has
adapted well to life in Canada. The fourth child is a Canadian-born infant.
[5]
The
Officer provided much detail later in the reasons. I will refer to this detail
when discussing the issues.
ISSUES
[6]
The
argument as presented by Counsel for each party at the hearing focused on two
issues:
1.
What
is a “child” for the purposes of section 25 of the IRPA, and was the Officer
correct in not considering the son, Duglhy (20) and daughter, Melanie (18) in
dealing with section 25?
2.
Did
the Officer err in considering the “best interests” of the two young children
against a standard of unusual or disproportionate hardship?
I will consider
these issues, in turn.
ISSUE
#1:
What is a “child” for the purposes of section 25 of the IRPA, and was the
Officer correct in not considering the son, Duglhy (20) and daughter, Melanie
(18) in dealing with section 25?
[7]
In
the summary of the Officer’s reasons respecting best interests of the child
(BIOC), which have been set out earlier, the Officer wrote in respect of Duglhy
(20) and Melanie (18):
Neither is eligible for BIOC consideration as they
were over 18 when the application was received.
[8]
In
the more detailed portion of the reasons, the Officer wrote:
I note for the record that Melanie, born 17 November
1992, was 18 years of age and Duglhy, born 05 December 1990, was 20 years of
age when this application was received. Their respective ages at that time
prevent me from assessing their particular situations under BIOC criteria. I
have assessed Marilyn, aged eleven, and Michelle, born in Canada this year, under BIOC provisions. Duglhy is assessed under other factors raised in this
application. Melanie is a protected person in Canada and is not a part of this
application, but her circumstances speak to family reunification and will be
considered in that part of this assessment.
[9]
This
position is consistent with the Guidelines published by Citizenship and
Immigration Canada, IP 5, which states, in part:
5.12
Children
– Best interests of a child
In an examination of the circumstances of a foreign
national under A25(1), IRPA introduces a statutory obligation to take into
account the best interests of a child who is directly affected by a decision
under this section. This codifies departmental practice into legislation,
eliminating any doubt that the interests of a child will be taken into account.
This applies to children under the age of 18 years as per the Convention on the
Rights of the Child.
. . .
Children 18 years and over
BIOC must be considered when a child is under 18 years
of age at the time the application is received. There may, however, be cases in
which the situation of older children is relevant and should be taken into
consideration in an H&C assessment. If, however, they are not under 18
years of age, it is not a best interests of the child case.
[10]
Guidelines
are, at best, what has sometimes been called “soft law”. If they have
incorrectly interpreted or applied the law, then they should not be followed.
The question here is whether the law has been correctly set out in the
Guidelines or correctly or reasonably followed by the Officer.
[11]
Neither
IRPA nor its Regulations define a “child”, whether for the purposes of section
25 or otherwise. I note that in 2001 a Bill was introduced in Parliament, Bill
C-384 that would have amended a number of Federal statutes to conform with the Convention
on the Rights of the Child including a provision that would have defined a
“child” by means of the Interpretation Act to be a person less than
eighteen years old (Section 17 of the Bill). The Bill was never passed. Manitoba’s Interpretation Act, CCSM c. 180, does provide such a definition. In a
sense everyone is a “child” of their parents and never stops being a child in
relation to one’s parents. However it is reasonable to interpret a “child” as
provided for in section 25 as something different than any person whatsoever.
[12]
Counsel
for the Applicants urges that a “child” as provided for in section 25 of IRPA
is the same as a “dependant child” as defined in the Immigration and Refugee
Protection Regulations, SOR/2002-227 (IRPR), section 2 “dependent child”,
which includes, among other persons, a biological child less than 22 years of
age who has been and is financially dependent on the parents. Counsel points
out that both section 2(2) and 25 of the IPRA provide that the definitions in
the Regulations can apply to and be considered to be incorporated into
the Act.
[13]
IRPA
also refers to a “minor child” (sections 30 & 60) without defining what a
“minor child” is. Is a “minor” child something different than a “child”? There
is no clear answer to this question.
[14]
Justice
Shore has recently made an extensive review of the law respecting the meaning
of the word “child” in the context of section 25 of IRPA “best interests of the
child” in Leobrera v Canada (MCI), 2010 FC 587. He concluded that a
“child” must be considered in the context of the Convention on the Rights of
the Child; he wrote at paragraphs 77 to 80:
77 The courts have a specific role to play in
the Canadian system of constitutional supremacy. Acknowledging the roles of the
executive branch, the legislative branch and recognizing the judiciary's role
as one of interpretation of the law. It is, thus, incumbent on the Federal
Court to follow the interpretation of the legislation in jurisprudence issued
by the Federal Court of Appeal and the Supreme Court.
78 It is the Court's conclusion that the
definition of "dependent child" is not determinative of whether a
person is deserving of a best interests of the child analysis. The Court finds,
based on the entirety of section 2 of the IRPR, that the definition of
"dependent child" was not intended to apply to the IRPA.
79 As has been shown, the definition of
"child" is undefined in the IRPA and the jurisprudence makes it clear
that the best interests of the child analysis has a special relationship with
the Convention on the Rights of the Child. Therefore, the Court is of the
opinion, based on the above reasoning, that the importance that the Convention
on the Rights of the Child has been unduly minimized by the earlier
jurisprudence on this matter.
80 Although the Court is sympathetic to the
position of the Applicant, as the policy behind analyzing the best interests of
the child is, as recognized by the Convention on the Rights of the Child,
partially based on the physical and mental vulnerabilities of children; and it
also recognizes that persons with disabilities may also be vulnerable, to
varying degrees, the Court cannot agree that dependency and vulnerability are
the defining characteristics of "childhood" for the purposes of
section 25. The Court consequently finds that dependent adults should not be
included in the analysis of the best interests of the child.
[15]
The
Convention on the Rights of the Child, Article 1, states:
For the purposes of
the present Convention, a child means every human being below the age of
eighteen years, unless under the law applicable to the child, majority is
earlier attained.
[16]
Applicants’
Counsel argues first that Justice Shore’s conclusions are obiter since,
in looking at paragraphs 74 and 83 of his Reasons, it is clear that he
determined the case on the basis that the Officer had improperly removed
evidence from the file and not on the basis of a definition of a “child”.
Second, Counsel argues that Article 41 of the Convention permits a
broader interpretation of the word “child” under the law of an adhering State
such as Canada. He argues that case law such as Naredo v MCI (2000), FCJ
No 1250; Swartz v Canada (2002), FCJ No 340; Ramsawak v MCI,
[2009] FCJ No 1387; and Yoo v Canada, 2009 FC 343, are representative of
cases where the Court has considered persons over the age of eighteen in
dealing with “best interests of a child” under section 25, thus the law of
Canada has broadened to include children of the age of 18 in considering the
best interests of a “child”.
[17]
However
I find that I agree with the reasoning of Justice Shore in Leobrera ,
supra, and find that a “child” as referred to in section 25 of IRPA is a person
under the age of 18 years.
[18]
I
conclude in respect of ISSUE#1 that the Officer was correct in not considering
Duglhy (20) and Melanie (18) under the provision of section 25 of IRPA, “best
interests of the child.”
ISSUE
#2: Did
the Officer err in considering the “best interests” of the two young children
against a standard of unusual or disproportionate hardship?
[19]
Consideration
was given by the Officer to Marilyn (11) and Michelle (newborn) in respect of
“best interests of the child” under section 25 of IRPA. The Officer set out
those considerations in the detailed part of the Reasons, parts of which I will
set out with emphasis added to illustrate what is at issue:
Marilyn Medina was born in the U.S. and has never
been to Colombia, where she also holds citizenship (Record of Examination of
Claudia Denevides Gomez, 16 September 2008.) Based upon her parents need to
take extensive ESL training upon their arrival in Canada, it is reasonable to
presume that she speaks Spanish. In 2008, at the age of eight years, she left
the United States and took up residence in Canada. While there is little
information before me particular to her circumstances, I accept counsel’s
submission that she, along with her older siblings, has “been studying at
school and doing very well,” This evidence supports a finding that Marilyn did,
and likely could again, adapt to the circumstances of a move to what would be,
to her, an unfamiliar country – Colombia. While I do not discount the
difficulties and hardships that would be encompassed for a young girl in a
compulsory international move, I find little to support a finding that the
specific hardships posed to Marilyn in relocating would be particularly unusual
or disproportionate.
I find the best interests of the infant
Canadian-citizen child Michelle lies with her parents, and it is presumed that
she would accompany her parents to Colombia in the event they are unsuccessful
in this application. While it may be argued the two younger children in this
family would have better access to education and health care in Canada, I find
little evidence of circumstances, such as particular health concerns, to
indicate that any comparative shortcomings in these areas in Colombia would
significantly compromise the best interests of these children. As previously
noted, the principal applicant was a businessman in Colombia, comes from an
entrepreneurial family, and has family members – parents and siblings – to
assist them in Colombia. As such, there is little reason to believe the
children will fall into poverty or that their fundamental health and education
needs will not be met in Colombia.
. . .
I have also considered the hardships that would
result for these children – and Marilyn in particular – as a result of a
break-up of the family unit. The refusal of this application would separate her
from her older sister, and very likely also her brother as he is an adult and a
U.S. citizen and might choose to return to the United States rather than
accompany his family to Colombia. Such separations are not unusual in families
when older children reach their maturity, but I am cognizant these separations
typically arise in a natural or gradual fashion and that a sudden and
potentially lengthy separation from her older siblings would pose a hardship to
Marilyn. These emotional hardships have been factored into my decision,
but I do not find them to be unusual or disproportionate so as to
warrant the exercise of my discretion solely on grounds of best interests of
the children affected.
. . .
I have considered the best interests of the two
minor children and have found that both the act of relocating to what is an
essentially foreign country, in conjunction with a separation from her eldest
sister and a possible separation from her brother, would likely pose hardships
to the third child, Marilyn, in particular. I do not, however, find that such
hardships have been demonstrated to be unusual or disproportionate
in view of the fact that Marilyn has previously demonstrated the ability to
adapt well to a similar change and in view of the fact that her older siblings
have matured and are now pursuing adult endeavours which would inevitably lead
to changes in the existing domestic arrangements and sibling relationships,
though admittedly not typically such significant or lengthy separations as may
result here.
In considering family reunification, I have given
particular attention to the emotional and practical hardships that would accrue
to the two adult children through a severance of family relationships, as these
hardships principally arise from the actions of their parents and are thus
undeserved by them. The consideration in this case, however, is whether the hardships
of the separation would be both unusual and undeserved or
disproportionate. I find, after careful consideration that they are not.
These children are not, in fact, children any longer. The son is an adult who
has options for education or employment in the U.S. and Colombia. The eldest daughter is admittedly young to live at a great distance from her parents, but
if she were resident in Colombia and was offered a place at a Canadian
university in a city where she had close family members, I find it is unlikely
her family would discourage her from going on the basis that she is too young
or would be at risk of harm including drugs and prostitution, or that the
hardships of separation from her family would be too great. I comprehend that
the separation resulting from a refusal of this application may be longer than
what might be normally experienced by a young person embarking on an education
abroad: I can not speculate in what manner or in what time frame the family may
resolve the barriers to their reunification that have resulted from choices
made over time by the principal and co-applicant.
I have both individually and globally considered the
circumstances of each of the applicants as well as those of the two family
members not included in this application with specific regard to their
establishment, the best interests of the children affected, and
the hardships that would arise from the severance of family
relationships. While I have not found unusual and undeserved or disproportionate
hardships, I have identified a number of sympathetic factors. Against these
factors, I have weighed the acts and omissions of the principal applicant and
his spouse which have led the family to their current circumstance.
[20]
It
is clear from reading these reasons that the Officer considered the “best
interests of the children” against a criteria of unusual or undeserved or
disproportionate hardship. No such criteria are provided for in section 25(1)
of IRPA, which I repeat:
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25.1
(1) The Minister may, on the Minister’s own initiative, examine the
circumstances concerning a foreign national who is inadmissible or who does
not meet the requirements of this Act 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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[21]
By
way of contrast, section 97(1)(b) of IRPA clearly, when dealing with a “person
in need of protection”, speaks of a “risk to life or a risk of cruel and
unusual treatment or punishment”. That criteria does not apply to section 25,
which deals with humanitarian and compassionate considerations. Section 25
requires that the Officer “examine the circumstances concerning a foreign
national” taking into account the best interests of a child directly affected.
[22]
The
Federal Court of Appeal in Hawthorne v Canada (MCI), 2002 FCA 475
has set out how an Officer is to consider the best interests of a child in the
context of a humanitarian and compassionate application under section 25 of
IRPA. Décary JA, for the majority, wrote at paragraphs 4 to 6 and 9:
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.
5 The officer does not assess the best interests
of the child in a vacuum. The officer may be presumed to know that living in
Canada can offer a child many opportunities and that, as a general rule, a
child living in Canada with her parent is better off than a child living in
Canada without her parent. The inquiry of the officer, it seems to me, is
predicated on the premise, which need not be stated in the reasons, that the
officer will end up finding, absent exceptional circumstances, that the
"child's best interests" factor will play in favour of the
non-removal of the parent. In addition to what I would describe as this
implicit premise, the officer has before her a file wherein specific reasons
are alleged by a parent, by a child or, as in this case, by both, as to why
non-removal of the parent is in the best interests of the child. These specific
reasons must, of course, be carefully examined by the officer.
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.
. . .
9 Fourth, "hardship" is not a term of
art. As noted in section 6.1 of Chapter IP 5 of the Immigration Manual
(reproduced at para. 30 of my colleague's reasons), the administrative
definition of "unusual and undeserved hardship" and
"disproportionate hardship" in the Manual are "not meant as 'hard
and fast' rules" and are, rather, "an attempt to provide guidance to
decision makers when they exercise their discretion". It is obvious, for
example, 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.
[23]
The
Guidelines IP 5 previously referred to set out a number of factors which,
generally, may be considered in respect of the “best interests of a
child”. They are:
Generally, factors relating to a child’s emotional,
social, cultural and physical welfare should be taken into account when raised.
Some examples of factors that applicants may raise include but are not limited
to:
§
the
age of the child;
§
the
level of dependency between the child and the H&C applicant or the child
and their sponsor;
§
the
degree of the child’s establishment in Canada;
§
the
child’s links to the country in relation to which the H&C assessment is
being considered;
§
the
conditions of that country and the potential impact on the child;
§
medical
issues or special needs the child may have;
§
the
impact to the child’s education; and
§
matters
related to the child’s gender.
[24]
There
is nothing set out in these Guidelines indicating that there must be unusual or
disproportionate hardship inflicted on a child before a “best interests”
consideration is applicable.
[25]
I
am mindful of the recent decision of the Supreme Court of Canada in Smith v
Alliance Pipeline Ltd, 2011 SCC 7, which somewhat blurs the bright line
distinction made by that Court in Dunsmuir v New Brunswick, 2008 SCC 9,
as to the standard of review. Fish J, for the majority, in Smith wrote at
paragraph 26:
26 Under Dunsmuir, the identified categories are
subject to review for either correctness or reasonableness. The standard of
correctness governs: (1) a constitutional issue; (2) a question of
"general law 'that is both of central importance to the legal system as a
whole and outside the adjudicator's specialized area of expertise'"
(Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC
63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines
between two or more competing specialized tribunals; and (4) a "true
question of jurisdiction or vires" (paras. 58-61). On the other hand,
reasonableness is normally the governing standard where the question: (1)
relates to the interpretation of the tribunal's enabling (or "home")
statute or "statutes closely connected to its function, with which it will
have particular familiarity" (para. 54); (2) raises issues of fact,
discretion or policy; or (3) involves inextricably intertwined legal and
factual issues (paras. 51 and 53-54).
[26]
I
would afford a standard of reasonableness in dealing with the Guidelines cited
above; however, the Officer has not applied those Guidelines when adopting a
standard of unusual or disproportionate hardship in considering the best
interests of a child.
[27]
This
Court has repeatedly held in cases, including Sinniah v Canada (MCI),
2011 FC 1285; Mangru v Canada (MCI), 2011 FC 779 and others, that it is
unreasonable and incorrect for an Officer to consider the “best interests of a
child” against a standard of unusual or disproportionate hardship.
[28]
Therefore,
in the present case, the Application must be allowed in that the Officer
applied the wrong test in considering the best interests of the minor children.
[29]
I
have considered whether this is a proper case for a certified question. In
respect of ISSUE #1, a question will be certified. I have received submissions
from Counsel for both parties in this regard. I will accept a simpler version
of the question proposed by Counsel for the applicants: “Is the “child”
spoken of in section 25 of IRPA restricted to a person under the age of 18
years?”
[30]
ISSUE
#2 is fact-specific to the considerations of the Officer in this particular
case. No question will be certified as to this Issue.
[31]
There
is no special reason for awarding costs.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT ORDERS AND ADJUDGES that:
1.
The
Application is allowed;
2.
The
matter is returned for reconsideration by a different Officer;
3.
The
following question is certified:
“Is
the ‘child’ spoken of in section 25 of IRPA restricted to a
person under the age of 18 years?”
4.
No
Order as to costs.
“Roger T. Hughes”
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