Date:
20131001
Docket: IMM-6185-12
Citation: 2013 FC 998
Ottawa, Ontario, October 1, 2013
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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JORGE ELIECER
MARTINEZ HOYOS, SOR EULANDY HIGUITA DAVID, JORGE ANDRES MARTINEZ HIGUITA AND
MARIA PAULA MARTINEZ HIGUITA (BY HER LITIGATION GUARDIAN JORGE ELIECER
MARTINEZ HOYOS)
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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]
The applicants are a family (parents and two children) from
Colombia, whose refugee claims were dismissed. Following the dismissal, they
made a humanitarian and compassionate [H&C] application under section 25 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA or
the Act], seeking to remain in Canada due to the ties they had formed here and
to the hardship they claimed they would likely incur if returned to Colombia.
At the time the H&C application was made, only one of the children, Maria
Paula, was a minor. The other, Jorge Andres, was 19 but was still attending
high school on a full-time basis and presumably was entirely dependent on his
parents.
[2]
The applicants filed very sparse submissions in support of their H&C
application. In terms of the likely impact of return to Colombia on Jorge Andres and Maria Paula, the submissions did little more than comment on their
academic records and allege that relocation and interruption in their education
would be difficult and that the children feared return.
[3]
The Officer who examined the applicants’ H&C
application dismissed it, finding that the applicants would not suffer undue,
disproportionate or undeserved hardship if required to apply for permanent
resident status from Colombia. In coming to this decision, the Officer assessed
the impact of return to Colombia on the best interests of Maria Paula but
stated that no similar analysis was required in Jorge Andres’ case as he was
not a minor.
[4]
In terms of the best interests analysis in Maria Paula’s
case, the Officer commented on the lack of submissions on the point and then stated
as follows:
In the absence of …
information, I am nevertheless alive and sensitive to the fact that the
Applicants’ [sic] have one minor child and that her best interest needs
to be considered.
Maria Paula was 8
years old when she came to Canada and today she is 11 years old. She is a
student and doing well in school as indicated by the letter of reference.
I accept that it must
be difficult for any child to move to a different country where the culture is
vastly different and I accept that it must be very difficult to return to a
country where the criminal activity is significantly higher than that of Canada. The Applicant states that his children are fearful to return to Colombia. Given the fact that the Applicant does not explain why the children are terrified to
return to Colombia, I can only speculate that it is due to the criminal
violence in Colombia that the children feel unsafe.
I find it would cause
Maria Paula anxiety and stress to undergo a major relocation back to Colombia and that she would undergo a period of adjustment while she gets used to the school system
and the lifestyle in Colombia. For these reasons I give this factor for
consideration positive weight.
[5]
In addition to considering this factor, the Officer also considered the
claimed risk due to adverse country conditions in Colombia and the degree of
the family’s establishment in Canada. In light of all the factors examined, the
Officer concluded that the H&C application should be rejected. He reasoned in
this regard that the positive factor (of Maria Paula’s best interests in
staying in Canada) was outweighed by the negative factors of there being neither
any unusual degree of establishment in Canada nor proof that the applicants
would be at risk if returned to Colombia. He concluded:
I have taken into consideration
the best interest of the child, Maria Paula. I have given this factor for
consideration positive weight as I accept that it is difficult for a child to
have relocated to a country with a vastly different culture and it must be very
difficult to move back to Colombia after she has settled in Canada and she is doing well in school.
Overall, I find that the positive
factor (best interest of the child) does not outweigh all the other factors
which have been considered. I note that, Maria Paula, most likely attended
school in Colombia and that she will most likely be able to adjust to the
school system again given time and the support of her parents and older
brother.
[6]
The applicants argue that the Officer made three reviewable errors in
reaching this decision, any one of which warrants intervention, claiming that:
1.
The Officer’s best interests of the child [BIOC] analysis was flawed
because the Officer ought to have assessed the impact of relocation on Jorge
Andres, who should be considered a “child” within the meaning of section 25 of
the IRPA, given his age and dependence on his parents;
2.
The BIOC analysis conducted with respect to Maria Paula was flawed
because the Officer failed to apply the approach to the assessment of the best
interests of children as set out in Williams v Canada (Citizenship and
Immigration), 2012 FC 166, 212 ACWS (3d) 207 [Williams], which the
applicants allege is a necessary pre-condition for an adequate treatment of the
interests of impacted children in an H&C application; and
3.
The Officer’s reasons were inadequate in that he merely recited the
evidence but did not offer an explanation for some of his key findings.
[7]
In my view, none of these points has merit, and, accordingly, this
application will be dismissed for the reasons set out below.
Standard of Review
[8]
The parties agree that the reasonableness standard of review applies to
the second and third of the errors alleged by the applicant but disagree as to
the standard of review applicable to the assessment of the Board’s
determination that Jorge Andres is not a “child” within the meaning of section
25 of the IRPA.
[9]
The applicants argue that the correctness standard should apply to
review of the Board’s decision on this point because there is conflicting
jurisprudence from this Court regarding whether individuals over the age of
majority may nonetheless be considered “children” for purposes of a BIOC
analysis under section 25 of the IRPA. Some decisions in this Court have said
yes (see e.g. Naredo v Canada (Minister of Citizenship and Immigaration)
(2000), 192 DLR (4th) 373, 187 FTR 47; Yoo v Canada (Citizenship and
Immigration), 2009 FC 343 at paras 29-32, 343 FTR 253), while others have
said no (see e.g. Saporsantos Leobrera v Canada
(Citizenship and Immigration), 2010 FC
587 at paras 30-72, [2011] 4 FCR 290 [Saporsantos Leobrera]; Moya
v Canada (Citizenship and Immigration), 2012 FC 971 at paras 7-18, 416 FTR
247). The applicants argue that determination of who is entitled to benefit
from a BIOC analysis is a matter of general importance to the legal system as a
whole, given the divided jurisprudence and the breadth of those potentially
impacted by this issue. They therefore assert that the correctness standard is
applicable to this issue since they claim that Supreme Court of Canada has
indicated that full curial review is appropriate where the point in issue is
one of general importance for the legal system as a whole (relying in this
regard on Dunsmuir v New Brunswick, 2008 SCC 9 at para 55, [2008] 1 SCR
190 [Dunsmuir]).
[10]
The respondent, on the other hand, argues that the reasonableness
standard of review applies to this question because the previous case law has
settled this issue and determined that the applicable standard is reasonableness
(see e.g. Ramsawak v Canada (Citizenship and Immigration), 2009 FC 636
at para 13, 86 Imm LR (3d) 97; Saporsantos Leobrera, at
paras 28-29). The respondent further submits that the reasonableness standard
should apply since determining who is a “child” for purposes of the BIOC analysis
under section 25 of the IRPA involves the Officer’s interpretation of
his “home” statute, which normally attracts the reasonableness standard.
[11]
I concur with the respondent that the Officer’s determination that Jorge
Andres was not a “child”, within the meaning of section 25 of the IRPA, should
be reviewed on the reasonableness standard.
[12]
In its decisions in Dunsmuir and the numerous administrative law
cases applying Dunsmuir, the Supreme Court of Canada has made clear that
the reasonableness standard is presumptively applicable to the review of
decisions made by administrative tribunals. While it is true that there are exceptions
to this presumption, contrary to what the applicants claim, the mere presence of
a question of general importance to the legal system as a whole is not alone
sufficient to engage any of those exceptions. Rather, the Supreme Court has
indicated that the exception the applicants seek to invoke arises only where
the determination being challenged raises a question of general law that is both
of central importance to the legal system as a whole and also outside
the tribunal’s area of expertise.
[13]
In Dunsmuir itself, Justices LeBel and Bastarache, writing for
the majority, put it this way at para 55:
A question of law that
is of “central importance to the legal system . . . and outside the
. . . specialized area of expertise” of the administrative decision
maker will always attract a correctness standard ([Toronto (City) v CUPE, Local 79, 2003 SCC 63,
[2003] 3 S.C.R. 77] at para. 62).
[14]
The Supreme Court has endorsed the foregoing several times (see
e.g. Nor-Man Regional Health Authority Inc v Manitoba Association of Health
Care Professionals, 2011 SCC 59 at paras
35-40, 55, [2011] 3 S.C.R. 616 [Nor-Man]; Canada
(Canadian Human Rights Commission) v Canada (Attorney General), 2011 SCC 53 at paras 18, 22-23, [2011] 3 S.C.R. 471;
Smith v Alliance Pipeline Ltd, 2011 SCC 7 at
para 26, [2011] 1 S.C.R. 160; and Alberta (Information and
Privacy Commissioner) v Alberta Teachers’ Association, 2011 SCC 61 at para
30, [2011] 3 S.C.R. 654).
[15]
Moreover, in Nor-Man, the Supreme Court expressly rejected the
argument that the applicants make in this case, to the effect that there need
only be a question of general importance considered by a tribunal for the
correctness standard to apply. There, Justice Fish, writing for the Court stated
at para 55:
The respondent also
argues that Toronto (City) stands for the proposition that a labour
arbitrator’s application of common law doctrines must be correct. In my view,
it does not. As we have seen, the application of general rules or principles of
law will not automatically be reviewed for correctness unless they raise legal
issues “both of central importance to the legal system
as a whole and outside the adjudicator’s specialized area of expertise” (Toronto (City), at para. 62, per LeBel J.; Dunsmuir, at para.
60; Smith, at para. 26).
[16]
The Federal Court of Appeal has likewise confirmed that before the
correctness standard applies to a tribunal’s decision on a point, the issue
considered by the tribunal must be both of general importance to the
legal system as a whole and outside the tribunal’s expertise. In B010
v Canada (Citizenship and Immigration), 2013 FCA 87, 359 DLR (4th) 730,
Justice Dawson, writing for the Court, stated at para 68 that she was: “… no longer satisfied that the importance of a question by
itself is sufficient to warrant review on the correctness standard”.
[17]
Chief Justice Crampton has also recently rejected the notion that
divisions in the jurisprudence of an inferior tribunal may attract review on the
correctness standard in Huang v Canada (Minister of Citizenship and
Immigration), 2013 FC 576, 229 ACWS (3d) 949 [Huang]. That case
dealt with the thorny problem of residency under the Citizenship Act, RSC
1985, c C-29, in respect of which there is more division in the case law than over
the question of who qualifies as a child for purposes of a BIOC analysis under
section 25 of the IRPA. After summarizing the various tests and referring to the
many conflicting decisions, the Chief Justice stated:
[24] What
is clear from the foregoing is that the jurisprudence pertaining to the test(s)
for citizenship remains divided and somewhat unsettled.
[25] In this context, it
is particularly appropriate that deference be accorded to a citizenship judge’s
decision to apply any of the three tests that have a long and rich heritage in
this Court’s jurisprudence.
[18]
The Ontario Court of Appeal has likewise held that the reasonableness
standard may well give rise to opposite and conflicting decisions from
administrative decision-makers on identical points but that this division in
the case law does not lead to full curial review on an issue. In Hydro
Ottawa Ltd v International Brotherhood of Electrical Workers, Local 636,
2007 ONCA 292, 85 OR (3d) 727, 281 DLR (4th) 443, the Court of Appeal
recognized that:
[E]ven if a
different approach were suggested by other arbitration decisions, the failure
of a subsequent arbitrator to follow previous decisions does not by itself make
the subsequent arbitrator’s decision patently unreasonable. The doctrine of stare decisis has no application in such circumstances.
[…] In each case the issue is whether the arbitrator’s interpretation of the
collective agreement is supportable on the record and not patently unreasonable
in that context. Lack of unanimity is the price to be paid for having
independent and specialized decision-makers in the labour relations field
protected by the standard of review of patent unreasonableness. [Citations
omitted]
[19]
The same conclusion was reached in National
Steel Car Ltd v United Steelworkers of America, Local 7135 (2006), 278 DLR
(4th) 345, 159 LAC (4th) 281 (ONCA), and in both cases the Ontario Court of Appeal
relied on the Supreme Court of Canada’s decision in Domtar Inc v Québec
(Commission d'appel en matière de lésions professionnelles), [1993] 2 SCR
756, 105 DLR (4th) 385. In that case at pages 800-01 (cited to SCR), Justice
L’Heureux-Dubé wrote for the unanimous Supreme Court that:
If Canadian administrative law has been able to evolve to the point of
recognizing that administrative tribunals have the authority to err within
their area of expertise, I think that, by the same token, a lack of unanimity
is the price to pay for the decision‑making freedom and independence
given to the members of these tribunals. Recognizing the existence of a
conflict in decisions as an independent basis for judicial review would, in my
opinion, constitute a serious undermining of those principles. This
appears to me to be especially true as the administrative tribunals, like the
legislature, have the power to resolve such conflicts themselves. The
solution required by conflicting decisions among administrative tribunals thus
remains a policy choice which, in the final analysis, should not be made by the
courts.
[20]
Although these cases were decided with respect to the patent
unreasonableness standard (which was collapsed into the reasonableness standard
in Dunsmuir), the reasoning applies equally to the reasonableness
standard. Indeed, the very definition of a reasonable decision contemplates
that there may well be diverging interpretations given to an identical
provision by different decision-makers, since the standard, itself, foresees “a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir at para 47).
[21]
Thus, contrary to what the applicants assert, the fact that there is
divided authority on whether dependants over the age of majority are “children”
in respect of a BIOC analysis under section 25 of the IRPA and the fact that
this issue may touch many claimants does not result in there being full curial
review of a decision like that made by the Officer in this case.
[22]
In addition, as the respondent rightly notes, post-Dunsmuir
decisions of this Court have held that the reasonableness standard of review is
to be applied to an officer’s interpretation of who is a “child” within the
meaning of section 25 of the IRPA (see e.g. Ramsawak v Canada (Citizenship
and Immigration), 2009 FC 636 at para 13, 86 Imm LR (3d) 97 and Saporsantos Leobrera at paras 28-29). These cases
further support the determination that the reasonableness standard is
applicable here as the Supreme Court of Canada has indicated that where the
previous jurisprudence has satisfactorily established the applicable standard
of review, that standard should be applied (see e.g. Dunsmuir at paras 57-58,
62; Northrop Grumman Overseas Services Corp v Canada (Attorney General),
2009 SCC 50 at para 10, [2009] 3 S.C.R. 309; Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53 at paras 16, 19-22,
[2011] 3 S.C.R. 471; Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at paras 48-49, 360 DLR (4th) 411).
[23]
I believe that the previous case law has satisfactorily settled that the
reasonableness standard applies to the Officer’s determination that Jorge
Andres is not a “child” within the meaning of section 25 of the IRPA. The interpretation
arises from the Officer’s home statute and is a matter falling within the area
of expertise of Citizenship and Immigration Canada officers, who are charged
with determining whether to grant H&C consideration to individuals under
section 25 of the IPRA and in articulating a BIOC analysis.
[24]
Thus, the reasonableness standard applies to the review of the Officer’s
determination that Jorge Andres was not a “child” within the meaning of section
25 of the IRPA and to his conclusion that it was therefore not necessary to
undertake a BIOC analysis in respect of Jorge Andres.
Was the Officer’s
determination regarding Jorge Andres reasonable?
[25]
Turning, next, to consideration of the reasonableness of the Officer’s
decision with respect to Jorge Andres, I concur with the respondent that the
fact that the Officer followed one of the two lines of authority on the point
must lead to the conclusion that his determination was reasonable. This case is
similar to Hao v Canada (Citizenship and Immigration), 2011 FC 46, 383
FTR 125 (Eng), in which my colleague, Justice Mosley, upheld a citizenship decision
as reasonable because the citizenship judge applied one of the three tests
recognized in the jurisprudence, holding that the applicant’s preference for a
more favourable test did not render that decision unreasonable (see also Huang
at para 25).
[26]
The same can be said here; where there are two competing lines of
authority it cannot be unreasonable for the Officer to choose one of them and
apply it. Otherwise, the mere presence of a competing line of authority would
defeat the Officer’s decision no matter which interpretation he chose.
[27]
It also must be noted that the debate regarding the error the Officer is
alleged to have made in respect of not conducting a BIOC analysis for Jorge
Andres is more illusory than real as there is no doubt that the same result
would have obtained in Jorge Andres’ case as in his sister’s if the Officer had
conducted an assessment of Jorge Andres’ best interests. Given that virtually
no information was provided to the Officer about the best interests of either
and that what little information that was provided was identical for both of
them, the Officer would inevitably have found that the best interests of Jorge
Andres did not require H&C consideration.
[28]
The Officer’s consideration of the interests of Jorge Andres was
therefore reasonable and his failure to conduct a separate BIOC analysis for
Jorge Andres does not constitute a reviewable error.
Was the Officer’s
determination regarding Maria Paula reasonable?
[29]
The applicants next argue that the BIOC analysis the Officer conducted
in respect of Maria Paula was unreasonable because the Officer failed to apply
the formulation set out in Williams. In that case, my colleague, Justice
Russell, stated at para 63 that:
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. [Emphasis in original]
[30]
The applicants argue that this sort of analysis was not conducted by the
Officer and, accordingly, the decision should be set aside as being
unreasonable.
[31]
I disagree for two reasons.
[32]
First, in my view, the applicants have misinterpreted the holding in Williams.
As I read that decision, it does not mandate that a particular formula must
always be applied by an officer in assessing the child’s best interests in every
H&C application but, rather, stands for the proposition that the best
interests of impacted children must be considered and weighed along with the
other factors in an H&C application. In addition, Williams turned on
the fact that the officer in that case erred in dismissing the application
because he held that the impacted children were not shown to have likely been
subject to “undue” hardship because it was not clear they would be beaten,
malnourished or denied medical care if they were required to leave Canada with their family. Justice Russell found this “basic needs” assessment of the
hardship factor to be erroneous in Williams.
[33]
The formula set out in Williams need not be mechanically applied
in every case as my colleague Justice Mosley noted in Webb v Canada
(Citizenship and Immigration), 2012 FC 1060 at para 13, 417 FTR 306:
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. … immigration officers are not bound by any magic formula
in the exercise of their discretion.
[34]
Second, and perhaps more importantly, the Officer was given virtually no
information about the best interests of Maria Paula. Despite this, the Officer
assessed the degree that Maria Paula’s best interests would be affected when he
discussed the advantages she likely enjoyed in Canada and how they might be
lost if she returned to Colombia. The Officer ultimately gave the best
interests of Maria Paula positive weight, which means that he had found that
her best interests favoured remaining in Canada. However, it did not outweigh
the factors favouring a return to Colombia. Thus, in substance, the Officer
conducted the Williams analysis. In the absence of any fuller submissions
or evidence on the point, his treatment of the issue was as complete as
possible and cannot be said to be unreasonable.
[35]
Thus, the second argument advanced by the applicants is without merit.
Were the Officer’s reasons
inadequate?
[36]
The applicants finally assert that the Officer’s reasons were inadequate
because he did not say how Maria Paula’s best interests were overridden by the
other factors in the application and that this renders the decision
unreasonable.
[37]
Once again, with respect, I disagree. Reasons are adequate if they allow
the parties and reviewing court to ascertain why a decision was made. In Newfoundland
Nurses the Supreme Court of Canada said at para 16 that: “if
the reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.” As I
noted at para 21 of Martin-Ivie v Canada (Attorney General), 2013 FC
772: “the reasons of a tribunal are not to be read
microscopically. Rather, it is enough if the tribunal’s reasons reflect an
understanding of the issues and evidence; it is not necessary that detailed
references to the evidence be contained in the decision”.
[38]
Here, although brief, the Officer’s reasons do provide the basis for his
decision, namely, that Maria Paula’s best interest in staying in Canada are not
so significant that they outweigh the lack of any other reason for H&C
consideration. In addition, the reasons given by the Officer must be assessed
in light of the submissions made, which, as noted, were virtually nonexistent.
It is hard to imagine how the Officer could have said more in light of the
limited material that was provided.
[39]
Thus, the Officer’s reasons were adequate.
Certified Question
[40]
Finally, the respondent proposed two questions for certification:
1. Is the
“child” spoken of in section 25 of IRPA restricted to a person under the
age of 18 years at the time the H&C application is received?
2. In
an 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 (CanLII),
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?
[41]
The applicant concurs with the certification of the first of these two
questions, asserting that it would be helpful if guidance were given by the
Federal Court of Appeal on whether individuals over the age of majority, who are
dependent on their parents, are to be considered “children” for purposes of a
BIOC analysis under section 25 of the IRPA. The applicant, however, contests
certification of the second question, arguing that the Williams criteria
are fact-dependent and do not transcend the interests of the immediate parties
in this case.
[42]
The criteria for certifying a question were recently reiterated in Lin
Zhang v Canada (Citizenship and Immigration), 2013 FCA 168, 446 NR 382. At
para 9, the Federal Court of Appeal stated:
… that to be
certified, a question must (i) be dispositive of the appeal and (ii) transcend
the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance. As a corollary,
the question must also have been raised and dealt with by the court below and
it must arise from the case, not from the Judge’s reasons.
[43]
I do not believe it appropriate to certify either of the questions
proposed as neither meets the foregoing criteria.
[44]
As concerns the first of the proposed questions, it would not be
dispositive of an appeal and has not been dealt with by me, given my
determination on the applicable standard of review and conclusion that either
interpretation of “child” in section 25 is reasonable. Moreover, the issue is
largely irrelevant on the facts of this case, given the paucity of the
submissions made with respect to the best interests of both Maria Paula and
Jorge Andres. Therefore, the first question does not meet the criteria for
certification.
[45]
As for the question regarding Williams, I agree with the
applicants that it is fact-specific and could not dispose of the appeal in
these circumstances since the Officer conducted as complete a Williams analysis
as could be done in the absence of more evidence on the best interests of Maria
Paula. Thus, the second proposed question is likewise inappropriate for
certification.
[46]
This application for judicial review will accordingly be dismissed and
no question certified under section 74 of the IRPA.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review is
dismissed;
2.
No question of general importance is certified
under section 74 of the IRPA: and
3.
There is no order as to costs.
"Mary J.L. Gleason"
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