Date:
20130404
Docket: IMM-6679-12
IMM-7964-12
Citation:
2013 FC 338
Toronto, Ontario,
April 4, 2013
PRESENT: The
Honourable Madam Justice Mactavish
BETWEEN:
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CORMAC JOSEPH LIDDY
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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]
Cormac
Joseph Liddy seeks judicial review of two decisions refusing his application
for permanent residence on humanitarian and compassionate grounds. Mr. Liddy
based his H&C application on several factors, one of which was the best
interests of his two young children.
[2]
I
advised the parties at the conclusion of the hearing that I was satisfied that
the immigration officer erred in her assessment of the best interests of Mr.
Liddy’s children, with the result that the applications for judicial review
would be granted. What follows are my reasons for coming to this conclusion.
Background
[3]
In
his application for H&C relief, Mr. Liddy identified a number of ways in
which the interests of his children would be negatively affected if he were required
to return to Ireland. These included the fact that the children would be
subjected to an indefinite or permanent separation from their father, the
emotional damage that the children would suffer as a result, and the negative
impact that Mr. Liddy’s removal from Canada would have on his ability to
provide financial support for his children.
[4]
The
immigration officer rendered an initial decision based upon several sets of
submissions made by Mr. Liddy, addressing, amongst other things, the best
interests of Mr. Liddy’s children. The officer concluded that an H&C
exemption was not warranted.
[5]
However,
before this decision could be provided to Mr. Liddy, the officer became aware
that Mr. Liddy had provided her office with a further set of submissions a
couple of days before the decision was made, which submissions had not been
before the officer when she made her decision. Consequently, the officer
decided to reconsider her decision in light of the additional submissions. This
resulted in a second decision being made by the officer, which once again
concluded that the circumstances identified by Mr. Liddy did not justify the
granting of a humanitarian and compassionate exemption.
[6]
Mr.
Liddy has brought applications for judicial review with respect to each of
these decisions, and these reasons pertain to both cases.
Analysis
[7]
The
officer accepted that until the couple separated, Mr. Liddy and his wife “had
shared the primary caregiver role” in relation to their children. The officer
also accepted that the break-up of Mr. Liddy’s marriage had undoubtedly been a
significant event in the lives of the children, who were six and seven years of
age at the time of the decision. The officer further accepted that the children
would likely only be able to see their father only “on occasion” if he were
removed from Canada.
[8]
The
officer addressed each of the issues raised by Mr. Liddy with respect to the
best interests of his children. In each case, the officer concluded that Mr.
Liddy had failed to demonstrate that either he or his children would face
unusual, undeserved or disproportionate hardship, were he to be removed from Canada.
[9]
The
jurisprudence teaches that where the best interests of a child are raised in an
application for an H&C exemption, the task of an immigration officer is to
consider the benefit to the children of the parent’s non-removal from Canada as
well as the hardship that the children will suffer if the parent is removed: Hawthorne v. Canada (Minister of
Citizenship & Immigration),
[2003] 2 F.C. 555, 2002 FCA 475 (Fed. C.A.) at para. 4. The “unusual,
undeserved, or disproportionate hardship” test has no place in the best
interests of the child analysis: Hawthorne, above at para. 9; E.B. v.
Canada (Minister of Citizenship and Immigration), 2011 FC 110; Sinniah
v. Canada (Minister of Citizenship and Immigration), 2011 FC 1285.
[10]
The
best interests of children will not determine the outcome of an H&C application. Rather,
it is incumbent on the officer to decide the weight to be given to the
interests of the children, in light of all of the other considerations raised
by the case: Legault v. Canada (Minister of Citizenship and Immigration),
2002 FCA 125, at paras. 12-14; Kisana v. Canada (Minister of Citizenship and
Immigration), 2009 FCA 189 at paragraph 24.
[11]
The
use of the words “unusual, undeserved or disproportionate hardship” in a “best
interests of the child” analysis will 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 used the correct approach and
conducted a proper analysis: Segura v. Canada (Minister of Citizenship and
Immigration), 2009 FC 894, [2009] F.C.J. No. 1116 (QL), at para. 29.
[12]
That
does not appear to have happened in this case. Nowhere in the officer’s reasons
is there any consideration of benefit that would accrue to Mr. Liddy’s children
if he were able to stay in Canada. Moreover, although the officer considered
each of the factors identified by Mr. Liddy in relation to the best interests
of his children, she concluded her analysis on each point with an express
finding that Mr. Liddy had failed to show that either he or his daughters would
suffer unusual, undeserved or disproportionate hardship if he were forced to
leave Canada.
[13]
It
is thus clear from the officer’s reasons that she erred by equating the
position of Mr. Liddy with that of his children, applying the “unusual,
undeserved or disproportionate hardship” test in both cases. The reasons simply
cannot be read any other way. The error was then repeated in the officer’s
second decision reconsidering her original decision in light of the submissions
that had been overlooked.
[14]
It
was also unreasonable for the officer to insist on evidence specifically addressing
the impact that the separation of the children from their father would have on
their well-being. Such evidence might be required if the situation of the
child was unusual – where, for example, a child suffered from a disability that
made him or her particularly vulnerable to disruption or separation. However,
an officer can be presumed to know that a child will generally be better off
living in Canada with her parent than having to live in Canada without a parent: Hawthorne, above at para. 5.
Conclusion
[15]
For
these reasons, the application for judicial review is allowed. Given my
conclusion with respect to this issue, it is not necessary to address the other
issues raised by Mr. Liddy in this application for judicial review, most of which
relate to the fairness of the process followed in the assessment of his
application.
[16]
I
agree with the parties that the case does not raise a question for
certification.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different immigration officer for redetermination.
“Anne L. Mactavish”
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