Date:
20130125
Docket:
IMM-2719-12
Citation:
2013 FC 82
Ottawa, Ontario,
January 25, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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DROUPATI JUDNARINE
AND TULSIKUMAR JUDNARINE
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act] for judicial review of a
decision by a Senior Immigration Officer [the Officer] dated March 7, 2012
wherein the applicants’ permanent residence application was refused. This
conclusion was based on the Officer's finding that there were insufficient humanitarian
and compassionate [H&C] grounds to warrant an exception allowing the
applicants’ permanent residence application to be made from within Canada.
I. Background
[2]
Ms.
Droupati Judnarine [the principal applicant, or PA], and Tulsikumar Judnarine,
her 15-year-old son, are citizens of Guyana. In 2007, the PA’s husband, who was
the minor applicant’s father, died unexpectedly. The following year, on July
14, 2008, the applicants arrived in Canada on visitor visas. The PA’s mother,
two brothers, and three sisters all reside in Canada and are all Canadian
citizens. The PA’s siblings support her and her son financially and the
applicants reside with one of the PA’s sisters and her family.
[3]
On
or about August 26, 2008, the applicants submitted an H&C application.
Pursuant to a request from Citizenship and Immigration Canada, on March 2,
2011, the applicants submitted additional information and documentation for
their application. They alleged they would suffer unusual and undeserved
hardship if ordered to leave Canada, given the fact that all of the PA’s family
lives in Canada, that it was in the best interest of the minor applicant to
remain in Canada, and that the applicants would suffer hardship by returning to
Guyana. The applicants provided supporting documentation, including numerous
letters of support and a recent report card for the minor applicant.
[4]
Since
first submitting their H&C application more than four years ago, the
applicants have remained in Canada under renewed visitor visas.
[5]
The
Officer reviewed the applicants’ establishment in Canada, the best interests of
the child directly affected by the removal, and the risk the PA faced in her
country of origin, and found that the applicants had not established unusual
and undeserved or disproportionate hardship on any of these grounds.
[6]
With
respect to the PA’s establishment in Canada, the Officer noted that all of the
PA’s five siblings reside in Canada, as well as her mother, three nephews, a
niece, and two aunts, and that her father is deceased. The Officer stated that
the PA’s family showed tremendous support through their letters and that they
vowed to help her and her son financially.
[7]
The
Officer acknowledged that according to the PA’s siblings, the PA was fundamental
in helping her brothers who have health problems by cleaning and cooking for
them, and that she also helps her sister. However, the Officer noted that the
PA had not submitted any evidence to demonstrate that she had any involvement
with other activities that might show she had integrated into the community,
such as volunteer work or professional or linguistic studies.
[8]
The
Officer found that the PA had family support, but that her mother and five
siblings made a conscious decision to move to Canada and leave the PA in Guyana, and it would be reasonable for them to expect that permanent separation from the
applicants might occur.
[9]
Regarding
best interests of the minor applicant, the Officer acknowledged that children
residing in Canada may enjoy better social and economic opportunities than they
would in Guyana, but found no evidence to suggest the minor applicant could not
attend school in Guyana. The Officer also acknowledged that it was reasonable
to assume it would cause the minor applicant some difficulties to leave behind
his friends and family in Canada, but he was convinced that with the help of
his mother he could overcome these difficulties, and noted the child was
returning to a culture he was familiar with.
[10]
Finally,
with respect to the risk the PA faces in Guyana as a single and widowed mother,
the Officer found there was insufficient evidence the PA might face a greater
risk in Guyana than any other single and widowed mother in that country and
noted documentary evidence stating that Guyana has effective mechanisms to
investigate and punish crime. The Officer found that although the PA may face
difficulties in re-adapting to life in Guyana, she had left her native country
at the age of 43, she speaks the language there, she is familiar with the
customs and way of life, whatever skills she has are readily transferable, and
that her family members are willing to help her financially.
[11]
The
Officer therefore refused the application.
II. Issues
[12]
Three
issues are raised in the present application:
A.
Did
the Officer err in assessing the applicants’ establishment in Canada and risk in the country of origin?
B.
Did
the Officer apply the wrong test for the best interests of the child?
C.
Did
the Officer err in assessing the best interests of the child?
III. Standard
of review
[13]
The
parties agree that the proper standard of review is if the Officer’s decision
is reasonable (Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18; Sinniah v Canada (Minister of Citizenship and
Immigration), 2011 FC 1285 at para 23 [Sinniah]; Williams v Canada (Minister of Citizenship and Immigration), 2012 FC 166 at para 18 [Williams]).
[14]
The
standard of reasonableness is concerned with “the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47 [Dunsmuir]; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).
[15]
However,
failure to consider the proper legal test for the best interest of the child is
a question of law. It is therefore reviewable on the correctness standard (Segura
v Canada (Minister of Citizenship and Immigration), 2009 FC 894 at para 27
[Segura]; Williams, above, at para 22).
[16]
As
the Supreme Court of Canada held in Dunsmuir, above, at paragraph 50:
When applying the correctness standard, a reviewing
court will not show deference to the decision maker's reasoning process; it
will rather undertake its own analysis of the question. The analysis will bring
the court to decide whether it agrees with the determination of the decision
maker; if not, the court will substitute its own view and provide the correct
answer. From the outset, the court must ask whether the tribunal's decision was
correct.
IV. Analysis
A. Did the Officer err
in assessing the applicants’ establishment in Canada and risk in the country of
origin?
[17]
The
applicants submit it was unreasonable for the Officer to draw a negative
inference from the fact the PA had not “undertaken any professional, linguistic
or other study that shows integration into Canadian society” given that the Officer
was aware the PA was authorized to be in Canada as a visitor and did not have a
study permit.
[18]
The
applicants also assert the Officer ignored evidence of a job offer the PA had
received which was conditional on her obtaining permanent resident status.
Similarly, the applicants argue the Officer ignored the fact that since the
PA’s husband died, the PA has been unable to support herself and her son and that
her relatives in Canada have been supporting both of them.
[19]
Further,
the applicants maintain that the Officer erred by failing to consider whether
the applicants could be considered de facto family members as a result
of their dependency with family members in Canada, even though this was part of
the applicants’ submissions to the Officer, and that the Officer failed to
consider how the death of the PA’s husband would create hardship for the
applicants if they were required to apply for permanent residence from outside
Canada.
[20]
With
respect to the Officer mentioning that the PA had not undertaken studies in
Canada, the respondent submits this observation was reasonable in the context
of the establishment analysis and that the fact remains that the PA could have
applied to vary her visa to be allowed to study in Canada if she so desired,
which may have strengthened her establishment in Canada.
[21]
The
respondent submits the PA’s job offer does not support a positive consideration
under the establishment factor because it does not demonstrate any level of
establishment during her four years in Canada. Accordingly, the respondent
asserts the Officer was not required to mention it.
[22]
With
respect to the applicants’ argument about the impact of leaving her family in Canada, the respondent asserts it was reasonable for the Officer to point out that the applicants’
family members made the decision to immigrate to Canada and that the family
could expect this decision might result in permanent separation from the
applicants.
[23]
Since
the PA is actually a daughter and sister within the family unit in Canada, the respondent submits it would not be reasonable for her to be considered a de
facto family member.
[24]
Moreover,
the respondent admits that while the Officer may not have specifically
referenced the death of the PA’s husband, he was aware of this fact given his
references to the PA being a widowed and single mother.
[25]
In
terms of the applicants’ financial position if forced to apply for permanent
residence from Guyana, the respondent submits that the Officer acknowledged the
applicants’ family’s vow to assist them financially and there is no evidence
the family would withdraw their support should the applicants return to Guyana.
[26]
The
respondent also notes that there are no submissions on the applicants’
relationship with their deceased husband/father’s relatives, if any, who may be
living in Guyana and able to offer emotional and financial support.
[27]
Finally,
the respondent submits that in any event, the death of a relative, while sympathetic,
is not considered “unusual” or unanticipated by the Act.
[28]
In
reply, with respect to the Officer’s failure to mention the PA’s job offer, the
applicants submit the respondent cannot assess this evidence after the decision
has been rendered by stating that it does not demonstrate establishment.
Rather, it was the Officer’s duty to evaluate this evidence and assign it
whatever weight he felt was necessary.
[29]
With
respect to the respondent’s observation about the deceased husband’s family in Guyana, the applicants submit this is irrelevant given that it was not addressed in the Officer’s
decision and was not a ground of refusal.
[30]
Finally,
in response to the respondent’s argument that the death of a relative is not “unusual”
under the Act, the applicants submit that a death of a relative still might
qualify as disproportionate hardship, and the Officer in the present case
failed to consider whether the death of the PA’s husband would qualify as such.
[31]
In
Raudales v Canada (Minister of Citizenship and Immigration), 2003 FCT
385, [2003] FCJ No 532 at para 19 [Raudales], Justice Eleanor Dawson
found that absent a proper assessment of the applicant’s establishment in
Canada, a proper determination could not be made regarding whether it would
cause unusual and undeserved or disproportionate hardship to the applicant to
apply for permanent residence from abroad. It is a reviewable error to assess
establishment in Canada without adequate reference to the applicant’s
particular circumstances (see Raudales, above, at para 18 and Amer v Canada (Minister of Citizenship and Immigration), 2009 FC 713 at paras 12 and 13).
[32]
However,
I do not agree with the applicants that it was unreasonable for the Officer to
draw a negative inference from the fact that the PA had not undertaken any
professional, linguistic or other study during the four years she was in Canada. As the respondent points out, the PA may have applied to vary her visa and acquire
a study permit.
[33]
I
also do not agree that the Officer erred by not mentioning the job offer the PA
included with her application that was conditional on her acquiring permanent
resident status. This job offer is not relevant to the establishment the
applicants had Canada in the period preceding their application.
[34]
Further,
under his analysis of the risk the applicants face in their country of origin,
the Officer acknowledged that the PA is a “single mother” and “widowed” and
evaluated the risk she would face in Guyana if forced to return there to apply
for permanent resident status in Canada. The Officer also noted the following:
The applicant left her native country at the age of
43; she speaks the language and is familiar with the customs and way of life.
English is also her first language. Whatever skills she possesses are readily
transferable. Her family members are willing to help financially.
[35]
These
findings demonstrate that the Officer did consider what circumstances the PA
would face in Guyana as a single, widowed mother, and his decision was not unreasonable
in this regard.
[36]
As
for whether it was reasonable for the Officer to not directly address the
applicants’ submission in their H&C application that they could be
considered de facto family members as a result of their dependence on
family members in Canada, Citizenship and Immigration Canada’s Operation Manual
IP-5 for the processing of H&C applications made in Canada [the Manual]
defines a de facto family member as follows:
De facto family members are persons who
do not meet the definition of a family class member. They are, however, in a
situation of dependence that makes them a de facto member of a nuclear
family in Canada.
[37]
The
Manual states that a son, daughter, brother or sister who does not have a
family of their own, or an elderly relative or unrelated person who has resided
with the family for a long time, are potential examples of a de facto
family member. Therefore, even though the PA actually is a daughter and sister
within her family unit, she could potentially be considered a de facto
family member.
[38]
Although
the respondent is correct that the Manual is not binding on officers, it is
noteworthy that among the factors the Manual states officers should consider in
evaluating a de facto family relationship are the level of
dependency, the stability and duration of the relationship, the ability and
willingness of the family to provide support, and whether there is family
outside Canada who is able and willing to provide support (see section 12.6 of
the Manual).
[39]
In
Frank v Canada (Minister of Citizenship and Immigration), 2010 FC 270 at
paras 29 and 30 [Frank], Justice Luc Martineau concluded the following
from these sections of the Manual:
What is clear from the foregoing is that de facto
family member status is limited to vulnerable persons who do not meet the
definition of family members in the Act and who are reliant on the support,
both financial and emotional, that they receive from persons living in Canada. Therefore, de facto family member status is not normally given to
independent and functional adults who happen to have a close emotional bond
with a relative residing in Canada, as is the case in the present application.
I do not believe John, above, created an
obligation for all immigration officers to explicitly consider the issue of de
facto family members in every case. It is clear in the present
application that the officer considered the applicant's relationship with his
family in Canada, and without evidence that the officer failed to consider any
other relevant criteria in determining the H&C application, the Court
should not intervene. [Emphasis added]
[40]
Similarly,
in Archibald v Canada (Minister of Citizenship and Immigration), 2012 FC
647 at para 9 [Archibald], Justice Danièle Tremblay-Lamer stated the
following:
I am unable to accept the applicant's argument that
the Officer applied the wrong guidelines and failed to consider her de facto
family members who are in Canada. Although the Officer may not have included a
separate heading titled "De facto family members" in the decision,
it is clear from the reasons for the decision that she considered the
applicant's family members in Canada…
[41]
However,
in Okbai v Canada (Minister of Citizenship and Immigration), 2012 FC 229
at para 19 [Okbai], Justice Ronald J. Rennie stated the following:
Finally, the Officer erred by failing to consider
the H&C considerations that were relevant to disposition of the
application: family reunification and the applicant's de facto
dependency on her sister in Canada. Family reunification is only one of several
objectives identified in the IRPA and officers have discretion to weigh
the statutory objectives against one another. Notwithstanding this
discretion, officers are not entitled to decline to consider a relevant factor
that is supported by the evidence in an application. Neither the CAIPS
notes nor the decision letter indicate that the Officer gave any thought to any
of the suite of considerations relevant to the disposition of H&C
applications. [Emphasis added]
[42]
I
find the present case is more analogous to Frank and Archibald,
above, than to Okbai, above. In my view, therefore, the Officer did not
err by not explicitly considering the issue of de facto family members.
B. Did the Officer apply
the wrong test for the best interests of the child?
[43]
The
applicants submit the Officer applied the wrong legal test by imposing the
burden of showing “unusual and undeserved or disproportionate” hardship with
respect to the best interests of the child analysis.
[44]
The
respondent argues that both this Court and the Federal Court of Appeal have
made it clear that the form of a decision should not be elevated above its
substance (Hawthorne v Canada (Minister of Citizenship and Immigration),
2002 FCA 475 at para 3; Segura, above, at para 29, citing de Zamora v
Canada (Minister of Citizenship and Immigration), 2005 FC 1602 at para 18
and Kamal Webb v Canada (Minister of Citizenship and Immigration), 2012
FC 1060 at para 11). The respondent submits that in the case at bar, like the
Court found in Segura, on a reading of the decision as a whole, the Officer
in the present case applied the correct test and conducted a proper analysis.
[45]
I
must disagree. The Officer did not apply the correct test in evaluating the
best interests of the minor applicant. Like in the Sinniah case,
the Officer in the present case appears to have applied the wrong legal test,
by requiring a significant negative impact on the child that would be “i)
unusual and undeserved or ii) disproportionate”, rather than evaluating what
was actually in the best interests of the minor applicant and weighing that
against the other factors relevant to an H&C application. He incorrectly
elevated the test for the best interests, not only in form but also in
substance.
[46]
I
acknowledge there are decisions of this Court that seem to set a slightly
different standard for officers who are evaluating the best interests of the
child in the context of an H&C application than the Court set out in Sinniah.
The respondent refers the Court to Segura at para 29, where Justice Russell
Zinn stated the following:
As Justice Mosley observed in De Zamora v. Canada (Minister of Citizenship and Immigration), 2005 FC 1602 at para. 18 substance
ought to prevail over form. "I do not read Hawthorne as deciding
that the use of [the term 'undeserved hardship] by an immigration officer in
considering the children's best interests constitutes reviewable error or
renders the decision as a whole unreasonable." I agree. It is not the use
of particular words that is determinative; it is whether it can be said on a
reading of the decision as a whole that the officer applied the correct test
and conducted a proper analysis.
[47]
In
my view the Officer’s decision in the present case is incorrect, because
although the Officer labelled his analysis “best interests of the child” and
stated he is “alive, alert and sensitive regarding the best interests of the
child”, the question the Officer clearly posed himself in his analysis under
this heading was whether removing the child “would have a significant negative
financial, emotional, social or physical impact on him that would be i) unusual
and undeserved or ii) disproportionate”. As Justice James Russell states in Williams,
at para 67:
A child's best interests are certainly not
determinative of an H&C application and are but one of many factors that
ultimately need to be assessed. However, requiring that certain interests
not be "met" or that a child "suffer" a certain amount
before this factor will weigh in favour of relief, let alone be persuasive in
the decision, contradicts well-established principle that officers must be
especially alert, alive and sensitive to the impact of the decision from the
child's perspective. Furthermore, this would seem to contradict the
instruction of the Supreme Court of Canada that this factor be a primary
consideration in an H&C application that must not be minimized. [Emphasis
added]
[48]
Moreover,
the Officer here failed to adequately or reasonably consider the impact of the
father’s death on the child, and the hardship to be faced by the child in being
forced to return to Guyana. The interests of the child were not well-identified
or defined by the Officer.
[49]
On
the basis alone, this application must be granted. It is therefore unnecessary
for me to address the third issue.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.)
The
applicants’ application for judicial review is granted and the matter is
remitted to a different Officer for reconsideration;
2.)
No
question is certified.
"Michael D.
Manson"
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