Date:
20120907
Docket:
IMM-9464-11
Citation:
2012 FC 1060
Ottawa, Ontario,
September 7, 2012
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
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KAMAL WEBB
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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]
Kamal
Webb seeks judicial review under s. 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (hereafter IRPA) of the decision made by an
Immigration Officer rejecting his application for an exception from the visa
requirements for non-declared dependents.
[2]
Mr.
Webb is a citizen of St. Vincent and the Grenadines. The only member of his
immediate family residing in St. Vincent is his mother. His father and two
older siblings were sponsored to come to Canada as permanent residents in 1995
by his step-mother. At the time, the father neglected to declare Kamal,
reasoning that his infant son would be best raised by his mother on the island
and could be sponsored later. The applicant cannot now be sponsored by his
father as he is excluded from the family class pursuant to s.117 (9) (d) of the
Immigration and Refugee Protection Regulations, SOR/2002-227 (hereafter
the Regulations). An overseas application to sponsor Kamal was refused for that
reason in 2009.
[3]
Kamal,
then aged 21, came to Canada in June 2010 on his third trip as a visitor to
spend time with his father, step-mother and siblings, including two younger
half-siblings. In September 2010 he filed an application for an inland
exemption on humanitarian and compassionate grounds (“H&C”). Among the
positive factors cited in his submissions was the development of a close
relationship with his half-sister Alika, aged twelve at the time of the
application, and extended family members. It was noted that his older sister
intended to sponsor their mother when the sister had completed her
post-secondary studies. That would leave Kamal as the sole member of the family
in St. Vincent. The submissions also addressed economic and other difficulties
in St. Vincent and the lack of post-secondary education opportunities.
ISSUES:
[4]
The
issues raised by the applicant are as follows:
1. Did the
officer apply the wrong test for the best interest of the child?
2. Did the
officer apply the wrong test to measure hardship?
3. Did the
officer err in considering the H&C factors separately?
4. Did the
officer ignore some evidence?
5. Are the
officer’s reasons regarding establishment reasonable?
ANALYSIS:
[5]
The
standard of review for H&C decisions – considering the officer’s exercise
of discretion - is reasonableness: Hamam v Canada (Minister of Citizenship
and Immigration), 2011 FC 1296 at para 27; Torres de Zamora v Canada (Minister of Citizenship and Immigration), 2005 FC 1602 at para 10; and Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18. The adequacy
of the officer’s reasons is also reviewable on a reasonableness standard: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at para 22.
[6]
Whether
the officer applied the correct legal test is a pure question of law reviewable
on a standard of correctness: Lopez Segura v Canada (Minister of Citizenship
and Immigration), 2009 FC 894 at para 15 and 28-28; Herman v Canada
(Minister of Citizenship and Immigration), 2010 FC 629 at para 12; and B
L v Canada (Minister of Citizenship and Immigration), 2012 FC 538 at para
11.
Did the Officer
apply the wrong test for the best interests of the child?
[7]
The
applicant submits that the officer applied the wrong test in assessing the best
interests of Alika. He submits that the officer applied the unusual and
undeserved or disproportionate hardship test which has been found to be an
error: Arulraj v Canada (Minister of Citizenship and Immigration), 2006
FC 529 at para 14. The applicant alleges that the officer made no
conclusion as to what was the best interest of the child, merely acknowledging
the family bond, and did not weigh that conclusion with the other factors.
[8]
The
applicant relies on the following
statement in Williams v Canada (Minister of Citizenship and
Immigration), 2012 FC 166 at para 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. [Underlining in the original]
[9]
The
respondent contends that this statement reflects a “rigid, mathematical
approach” not required by the governing authorities. He points to the following
comment by the Federal Court of Appeal in Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475
at para 7:
The
administrative burden facing officers in humanitarian and compassionate
assessments - as is illustrated by section 8.5 of Chapter IP 5 of the Immigration
Manual reproduced at para. 30 of my colleague's reasons - is demanding
enough without adding to it formal requirements as to the words to be used or
the approach to be followed in their description and analysis of the relevant
facts and factors. When this Court in Legault stated at paragraph 12
that the best interests of the child must be "well identified and
defined", it was not attempting to impose a magic formula to be used by
immigration officers in the exercise of their discretion.
[10]
It
is well established that an officer conducting a H&C assessment must be alert,
alive and sensitive to an affected child’s best interests: Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at para 75; Hawthorne, above, at para 11; and Legault v Canada
(Minister of Citizenship and Immigration), 2002 FCA 125 at para 12. It is
up to the officer to assess the weight of this factor with the other H&C
factors: Legault, above, at para 11; and Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 24.
[11]
Simply
using the language of unusual and undeserved or disproportionate hardship is
not an error if the best interests of the child were correctly assessed: Pannu v Canada
(Minister of Citizenship and Immigration), 2006 FC 1356 at paras 38-41; Lopez
Segura v Canada (Minister of Citizenship and Immigration), 2009 FC 894
at paras 29-33; Substance must prevail over form: Lopez Segura, at
para 29.
[12]
Here,
it is clear that the officer was “alert, alive and sensitive” to the best
interests of the applicant’s half-sister. The officer noted that the applicant
and Alika had developed a close sibling relationship during the relatively
brief period during which Kamal had been in Canada. It was apparent that Alika
would continue to enjoy the support of her parents and extended family in Canada. The officer considered that the sibling relationship would continue through calls
and on-line contacts and visits to and from St. Vincent. The evidence was that
Jamal and Denzel, his adult half-sibling, had maintained contact through
on-line video and messaging.
[13]
An
assessment of the best interests of the child in the circumstances of a case
such as this does not conform readily to the type of analysis described in Williams,
above. In my view, the Williams formula provides a useful guideline for
officers to follow where it may be helpful in assessing a child’s best
interests but it is not mandated by the governing authorities from the Supreme
Court and the Federal Court of Appeal. In Williams, the interests of
the Canadian born child in question were directly and significantly affected
by the removal of his mother as he had to leave Canada with her. Here, it is
likely that Alika’s interests would best be served by the applicant remaining
in Canada. But it is difficult to see how an officer could assess the degree
to which that interest would be compromised by a negative decision and weigh
that in the ultimate balancing of positive and negative factors. As stated in
the paragraph cited from Hawthorne above, immigration officers are not
bound by any magic formula in the exercise of their discretion.
[14]
Here,
the officer did not err in assessing the best interests of the child.
Did the Officer
apply the wrong test to measure hardship?
[15]
The
applicant submits that the officer applied the wrong legal test for the assessment
of hardship on return in requiring that the applicant be personally affected.
The requirement to show personalized risk is only relevant for a pre-removal
risk-assessment. Hardship analysis is broader and country conditions are
relevant to determine if the applicant will suffer unusual and undeserved or
disproportionate hardship if removed and thus must be considered.
[16]
Here,
the officer noted the high poverty, low employment, high criminality, poor
educational opportunities, and difficult access to health care in St. Vincent and the Grenadines. She also noted that the applicant desired to pursue
post-secondary studies in Canada. The officer found that a return to share the
general conditions in his country, while difficult, would not amount to unusual
and undeserved or disproportionate hardship.
[17]
It
is clear from the reasons that the officer did not evaluate risk to life or
risk of torture or unusual treatment as in a pre-removal risk analysis. A
determination of disproportionate hardship requires the evaluation of personal
circumstances. The officer was simply not convinced that the general conditions
of St. Vincent and the Grenadines would constitute unusual and undeserved or
disproportionate hardship. That was a finding reasonably open to the officer on
the evidence. She found that the applicant produced insufficient evidence that
he would be personally affected by the conditions. This does not demonstrate
that the officer applied the incorrect test.
Did the Officer
err in considering the H&C factors separately?
[18]
The
applicant submits that the officer erred in considering the H&C factors in
isolation. He argues that the officer evaluated each factor independently and
did not globally assess and balance them. Moreover, he contends, the officer
did not assess if the cumulative effect of all of the factors resulted in
unusual and undeserved or disproportionate hardship. The respondent argues that
the officer could not balance the factors because there was nothing to balance,
the applicant having spent so little time here. He “came here on vacation two
years ago, has stayed, played basketball and gone to church”.
[19]
The
respondent’s operational manual IP 5 Immigrant Applications in Canada made on Humanitarian and Compassionate Grounds, serves as a guide to the Court in
determining reasonableness: Garas v Canada (Minister of Citizenship and
Immigration), 2010 FC 1247 at para 30. It states the following at Section
5.10:
Individual
H&C factors put forward by the applicant should not be considered in
isolation in a determination of the hardship that an applicant would face;
rather, hardship is determined as a result of a global assessment of H&C
considerations put forth by the applicant. In other words, hardship is assessed
by weighing together all of the H&C considerations submitted by the
applicant.
[20]
The
officer noted all of the positive elements for granting the application. She
concluded that the evidence with respect to his family ties to Canada, the best
interests of the child, the conditions in his country of origin and his
establishment and integration in Canada did not justify granting the requested
exemption. In my view, she weighed together all of the considerations submitted
by the applicant. While I may have arrived at a different conclusion in the interest
of family unification, I am required to defer to the officer’s assessment of
the evidence.
Did the Officer
ignore some evidence?
[21]
The
applicant submits that the officer ignored some of the evidence and engaged in
speculation with respect to his educational opportunities in the Caribbean and whether he could attend a Canadian post-secondary institution.
[22]
The
officer’s reasons summarize the applicant’s submissions at the outset and again
when the officer considered each factor in her analysis. Her conclusions are
based on the evidence provided by the applicant. She clearly considered the
positive and negative evidence of hardship including country conditions and the
applicant’s attachment to his family. For the most part, her conclusions were
reasonable and based on the evidence.
[23]
It
was open to the officer to find that the applicant’s parents could support him
in St. Vincent considering that they had done so previously and were supporting
him in Canada. It was also open to her to conclude that the applicant could
find employment since he had done so in the past. The officer reasonably
concluded that separation from his family did not constitute unusual and
undeserved or disproportionate hardship as it is a normal consequence of
leaving Canada: Singh, above, at para 51; and Buio v Canada (Citizenship and Immigration), 2007 FC 157 at para 36.
[24]
The
officer misapprehended the evidence regarding the applicant’s education and
educational goals. She found that there was insufficient evidence that the
applicant would be accepted in his desired program; however he had provided
evidence regarding his educational achievements in St. Vincent and the program
requirements. While the respondent argues that there is no evidence that the
applicant had applied to a Canadian school, the submissions indicated that the
reason was that tuition fees were high for international students. The officer
did not mention this evidence and it was speculation for her to imply that he
might not be accepted.
[25]
The
officer also stated that there is insufficient evidence to demonstrate that the
applicant could not attend an affordable university in his region. The
applicant had submitted that there was no university in St. Vincent. The
closest university was the University of West Indies which has campuses in Barbados, Trinidad and Jamaica. The applicant submitted that the cost of attending any one of those
campuses would be too high. It is not clear from the officer’s reasons that she
took this concern into account.
[26]
These
errors would not on their own be sufficient to allow the application but
contribute to the finding I have reached on the next issue and my conclusion.
Are the
officer’s reasons regarding establishment reasonable?
[27]
Since
the decision of the Supreme Court of Canada in Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
adequacy of reasons, unless reasons are absent, is not an independent ground of
review and is to be reviewed on the reasonableness standard following the guidance
of the Supreme Court in Dunsmuir v New Brunswick, 2008 SCC 9.
[28]
The
applicant submits that the officer repeated the error discussed in Adu v Canada (Minister of Citizenship and Immigration), 2005 FC 565 at para 20:
… the officer reviewed
the evidence of establishment in Canada offered by the applicants in support of
their applications, and then simply stated her conclusion that this was not
enough. We know from the officer's reasons that she did not think that the
applicants would suffer unusual, undeserved or disproportionate harm if they
were required to apply for permanent residence from abroad. What we do not know
from her reasons is why she came to that conclusion.
(See also Tindale v Canada (Minister of Citizenship and Immigration), 2012 FC 236; Ventura v Canada (Minister of Citizenship and Immigration), 2010 FC 871 at paras 28-32; Cobham v Canada (Minister of Citizenship and Immigration), 2009 FC 585 at paras 25-28; and Rolfe v Canada (Minister of Citizenship and Immigration), 2005 FC 1514.
[29]
The
officer summarized the applicant’s level of establishment in stating that he
had a network of friends, went to church, did some volunteering, had no
criminal record and had not benefited from social services. The officer then
concludes that she was not satisfied that the applicant had the level of
establishment and integration in Canada that would cause unusual and undeserved
or disproportionate hardship if he returns to St. Vincent and the Grenadines.
She states further that she did not consider the hardship caused by the
applicant’s voluntary prolonged establishment to be unusual, undeserved or
disproportionate “as foreigners must weigh the pros and cons of lengthy
settlement in a country in which they do not benefit from permanent resident
status.”
[30]
This
is not a case where the applicant had taken advantage of every opportunity
permitted under Canada’s laws to delay removal and develop ties that might
support an establishment claim. This is an instance of a child, now adult, left
behind through no error of his own when his father and older siblings took
advantage of an opportunity to immigrate. He now hopes to make his way in this
country, as they have done. This is a young man who had done well at school in
his native land and has long dreamed of joining his family here. He did not
have the time and means to become more established in the short period before
his application was decided. It is difficult to see what else he might have
done to become established without a work permit or the financial ability to
pay international student fees. For that reason, I am unable to understand the
officer’s conclusion that the applicant was not sufficiently
established.
[31]
The
respondent argues that the officer’s reasons are clear when read in light of
the evidence. It is not the role of the Court to weigh the evidence or to
extrapolate reasoning from evidence and conclusions. The absence of reasoning
in the officer’s assessment of establishment renders her conclusion
unintelligible and unjustifiable.
[32]
I
am satisfied, therefore, that this matter needs to be reconsidered.
CERTIFIED
QUESTION:
[33]
The
respondent has proposed that the Court certify the following question as a
serious question of general importance:
In a H&C application, is the officer required to
follow the test set out in Williams v Canada (Minister of Citizenship and
Immigration), 2012 FC 166 at paragraph 63 in order to demonstrate that s/he
is being alert, alive and sensitive to the best interests of the child?
[34]
The
applicant is opposed to the certification of this question on the ground that
the test in Williams is consistent with the jurisprudence. He proposes
no question for certification.
[35]
In
Zazai v. Canada (Minister of Citizenship and Immigration), 2004 FCA 89
at para 11 the threshold for certification was articulated as: “is there a
serious question of general importance which would be dispositive of an
appeal”. In this matter, the question would not be dispositive of an appeal as
the officer was attentive to the best interests of the child and that issue was
not determinative.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is granted and the
matter is remitted for reconsideration by a different officer. No question is
certified.
“Richard G. Mosley”
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