Date:
20121023
Docket:
IMM-2127-12
Citation:
2012 FC 1214
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
October 23, 2012
PRESENT: The
Honourable Mr. Justice Pinard
BETWEEN:
GAEL
MUTANDA MBIKAYI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review filed in
accordance with subsection 72(1) of the Immigration and Refugee
Protection Act, SC (2001), c 27, of a decision by an immigration officer
(officer) dated February 6, 2012. The officer refused the application for
permanent residence based on humanitarian and compassionate considerations of Gael
Mutanda Mbikayi (applicant).
[2]
The
applicant is a native of the Democratic Republic of the Congo and has been in
Canada since 1996.
[3]
The
applicant’s main criticism is that the officer applied the incorrect test for
the best interests of his three children aged 9 months, six years and eight
years. To properly assess this argument, it is important to reproduce the
relevant part of the decision in question in its entirety here:
[translation]
The applicant’s Canadian children are now five and
three years old. The applicant submits evidence that his spouse is pregnant and
expecting a new baby.
The applicant submits letters from his children’s
preschool and a letter of acceptance from a new school. In a letter dated
24-5-2011 from a school that his son attended three times a week, the principal
wrote that the applicant is a father who is very present and involved in his
child’s schooling: he drives his son every morning, participates in all
extracurricular activities and attends parent meetings that he is invited to. Despite
the fact that those documents show that the applicant is involved in the care
of his children and that his absence may be hard for his family and his
children, they do not show that his departure from Canada or his absence
would cause disproportionate hardship.
I note that the spouse did not sufficiently explain
how the applicant is involved in his children’s life to demonstrate that his
absence would cause disproportionate hardship for his children.
I note that the applicant has already spent
approximately eight months in detention in Canada for criminal offences, that
is, in pre‑trial or pre-sentence custody or while serving a prison
sentence. In addition, by committing several criminal offences in Canada, the
applicant, without status in Canada, faced deportation from Canada. The
applicant did not adequately explain how the criminal offences committed were
out of his control. Despite the fact that the offences were committed before
the birth of his first child in 2006, according to his own submitted information
on the criminal offences, he committed obstruction of a peace officer on 2-6-2006,
after he married his current spouse. The applicant was criminally convicted for
that offence.
The applicant did not adequately explain how the
other members of his family in Canada, for example his mother, his brothers or
his sisters, could not provide appropriate help to his children if he is
required to leave Canada. Consequently, despite the fact that the applicant is
involved in his children’s lives and that his absence may be hard, the
applicant did not sufficiently demonstrate that his departure from Canada would
cause disproportionate hardship for his Canadian children.
[Emphasis
added.]
[4]
It
seems obvious from the officer’s decision that he did not properly consider the
best interests of the children to support that finding. The following comments
by my colleague Justice Michael L. Phelan in Sahota et al v
The Minister of Citizenship and Immigration, 2011 FC 739, apply aptly to
this case:
[7] The overarching
standard of review for H&C decisions is reasonableness (Mooker v Canada
(Minister of Citizenship and Immigration), 2008 FC 518). The issues of
proper legal test applied and procedural fairness are to be assessed under the
correctness standard (Gurshomov v Canada (Minister of Public Safety and
Emergency Preparedness), 2010 FC 1212).
[8] The
Officer’s analysis of the “best interests of the child” is legally flawed. The
Officer distorted the analysis and applied the wrong legal test by imposing the
burden of showing “disproportionate hardship” rather than the “best interests”
test mandated by Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475. While the ultimate question in an H&C
application is “disproportionate hardship”, the “best interests” analysis
operates as a separate consideration. The Officer’s failure to keep the two
issues distinct results in an unreasonable assessment of the children’s best
interests.
[5]
My
colleague Madam Justice Anne Mactavish made similar comments in Beharry et
al v The Minister of Citizenship and Immigration, 2011 FC 110:
[11] The first is the test
or tests that the Officer appears to have used in assessing the children’s best
interests. At various points in the analysis the Officer discusses the best
interests of the children in terms of whether the children would suffer
“unusual and undeserved and disproportionate hardship” if they were required to
return to Guyana. However, the unusual, undeserved, or disproportionate
hardship test has no place in the best interests of the child analysis: see Arulraj
v. Canada (MCI), 2006 FC 529, [2006] F.C.J. No. 672 (QL) and Hawthorne
v. Canada (MCI), 2002 FCA 475, 297 N.R. 187, at para. 9.
[12] I am mindful that the
mere use of the words “unusual, undeserved or disproportionate hardship” in a
‘best interests of the child’ analysis does not automatically render an H&C
decision unreasonable. It will be sufficient if it is clear from a reading of
the decision as a whole that the Officer applied the correct test and conducted
a proper analysis: Segura v. Canada (MCI), 2009 FC 894, [2009] F.C.J.
No. 1116 (QL), at para. 29.
[13] It is not at all
clear that the Officer applied the correct test in this case. In addition
to the repeated use of the term “unusual and undeserved or disproportionate
hardship” in the Officer’s analysis of the best interests of the children, the
Officer also looked at the situation of the children to see if they were in “an
exceptional situation” or “unusual circumstance to justify a positive
exemption”. Neither of these tests is appropriate in a ‘best interests of
the child’ analysis.
[6]
I
therefore agree with the respondent that the mere use of the expression “unusual,
undeserved or disproportionate hardship” or “disproportionate hardship” in the
context of an analysis of the interests of children does not vitiate, in
itself, the decision if it is clear, upon reading it, that the officer applied
the correct test and carried out a proper analysis, as we have learned from Segura
v The Minister of Citizenship and Immigration, 2009 FC 894.
[7]
However,
in this case, it is not because there was a lack or insufficiency of evidence
related to the children’s best interests, as the respondent is claiming, that
the officer can be considered as having correctly or even reasonably considered
their best interests. The above excerpt of his decision clearly shows several
times that the officer required sufficient evidence in order find that the
children would suffer “disproportionate hardship” in their father’s absence. The
officer did not consider the best interests of the children in any other way in
light of the evidence, even the limited evidence, that was submitted to him.
[8]
Given
my finding on this issue concerning the best interests of the children, there
is no need to consider the other arguments raised by the applicant.
[9]
For
these reasons, the application for judicial review is allowed and the matter is
referred back to another immigration officer for redetermination.
[10]
I
concur with counsel that there is no question for certification arising.
JUDGMENT
The
application for judicial review is allowed. The decision dated February 6, 2012,
by J. Gullickson, immigration officer, Citizenship and Immigration Canada,
is set aside and the matter is referred back to a new immigration officer for
redetermination.
“Yvon
Pinard”
Certified
true translation
Janine
Anderson, Translator
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