Docket: IMM-2673-13
Citation:
2014 FC 1008
Toronto, Ontario, October 22, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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ALCEMEBA BAUTISTA
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Alcemeba Bautista [the Applicant] is a citizen
of the Philippines bringing a judicial review for a decision rejecting her
Application for permanent residence based on humanitarian and compassionate
[H&C] grounds made pursuant to subsection 25(1) of the Immigration and
Refugee Protection Act (SC 2001, c 27) [IRPA].
[2]
The Applicant is a single mother who lives in Toronto with her 10-year-old Canadian daughter, Renalyn Bautista. The Applicant arrived in Canada on December 12, 1999, obtaining permanent residency status as a result of being
sponsored by her former husband, from whom she separated in 2000.
[3]
In 2006, the Applicant married her current
husband, a resident and citizen of the Philippines. In the course of attempting
to sponsor her spouse to come to Canada, she was directed to attend an
inadmissibility hearing before the Immigration Division of the Immigration and
Refugee Board of Canada. The result of this hearing was inadmissibility to
Canada pursuant to section 40(1)(a) of IRPA for misrepresenting material facts
in the course of her permanent residency application with her first husband,
who had been in a separate common law relationship at the time. The Removal
Order that resulted was upheld by the Immigration Appeal Division and was not
appealed further because of deficiencies in the application for judicial review.
[4]
An H&C Application was submitted on
September 15, 2011. The H&C Application stressed the best interests of her
Canadian-born daughter, Renalyn. Many of Renalyn’s close personal connections
live in Canada – her aunt and uncle (the Applicant’s sister) and her two
cousins, whom she considers siblings, live on the same floor in her building.
Renalyn’s grandmother (the Applicant’s mother) lives in the same building and
her other aunt lives in Montréal. Her biological father also lives in Toronto, whom she sees on occasion throughout the year. Renalyn visited the Philippines twice as a child, but given that she was between 2-3 years old at the time, she
has no recollection of the trips. She has a rudimentary ability to speak
Tagalog, but cannot read or write it.
[5]
The Applicant also emphasized her own personal
and economic establishment in Canada, having lived in the country for over 12
years. Aside from her family connections mentioned above, Ms. Bautista co-owns
a convenience store with her sister, owns her own cleaning business and is an
active participant in her church.
[6]
Ms. Bautista’s H&C application was rejected
on March 5, 2012 in a decision from an immigration officer in Citizenship and
Immigration Canada’s Backlog Reduction Office in Niagara Falls (CIC BRO-NF).
The Applicant subsequently sought Federal Court leave to judicially review the
H&C refusal, which was granted on November 13, 2012. Just a few days prior
to the scheduled Court hearing, the Applicant settled the matter with the
Department of Justice, agreeing to a re-determination by a different officer.
[7]
On March 25, 2013, another immigration officer
in the same CIC BRO-NF office issued a decision denying Ms. Bautista’s second
H&C application. On April 9, 2013, the Applicant filed a second Federal
Court application for leave and judicial review of this new H&C decision
[Decision], and that forms the basis of these Reasons.
II.
Decision
[8]
The Decision denied the H&C application,
finding that the Applicant’s removal from Canada would not constitute unusual,
undeserved or disproportionate hardship. With regard to the Applicant, the CIC
BRO-NF officer [Officer] found that her experiences as a business owner would enable
her to support herself if removed to the Philippines and the businesses in Canada would be able to continue without her, and that the Applicant has family in the Philippines who would be able to assist with her transition back. The Officer concluded
that while leaving Canada would be difficult for the Applicant, she had not
integrated herself into Canadian society to the extent that her departure would
cause unusual, undeserved or disproportionate hardship.
[9]
In assessing the best interests of the child
[BIOC], the Officer found that Renalyn would be able to integrate into the
Filipino school system, in spite of her lack language skills. While separation
from her family may be emotionally straining, the Officer found that these
relationships could be maintained electronically and through occasional visits.
Furthermore, the Officer found that while the quality of medical care would not
be equivalent to Canada’s, the Applicant was unable to demonstrate that Renalyn
had medical issues that either required treatment in Canada or same would be
unavailable in the Philippines. The Officer concluded that the BIOC would not
be served in the Philippines. The Officer also concluded that the decision of
the Applicant to have Renalyn accompany her to the Philippines was a parental
choice.
III.
Issues
[10]
The Applicant raised the following issues in her
written materials:
1. In rejecting the H&C, did the decision give sufficient
consideration to the BIOC?
2. Did the Officer err in the assessment of the Applicant’s degree of
establishment?
[11]
The hearing focused on the first issue, which
raises serious concerns.
IV.
Submissions of the Parties
[12]
First, the Applicant submits that the Officer
failed to conform to the structure of conducting a BIOC analysis. The Officer
did not, as per the guidance of the Federal Court of Appeal in Hawthorne v
Canada (Minister of Citizenship and Immigration), 2002 FCA 15, and Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, first
identify the best interests of the child and then determine the harm that would
ensue, and/or apply the test in Williams v Canada (Minister of Citizenship
and Immigration), 2013 FC 258, which holds that in addition to the 2 steps
above, the Officer must also determine the weight the BIOC factor plays in the
ultimate balancing of factors in the application. The Applicant argues the
Officer did not identify the best interests of Renalyn or balance various
compelling factors in the overall analysis of the application.
[13]
Ultimately, the Applicant submits that the BIOC
will not favour the removal of the parent in all but exceptional circumstances,
per the jurisprudence. The Officer characterizes Renalyn’s potential relocation
to the Philippines as a neutral factor but does not describe why this is an exceptional
case where the BIOC would favour removal of the parent. In short, while the
decision describes ways in which Renalyn could adapt to life in the Philippines, it does not provide reasons as to why this would be in her best interests. The
Officer also erred by couching the matter of Renalyn’s relocation as a parental
choice, in contradiction to the Federal Court of Appeal guidance in Hawthorne
that a BIOC analysis includes the hardship that a child would suffer from the
decision of a child to accompany a parent abroad.
[14]
Second, the Applicant contends that the Immigration
Officer did not provide a cogent analysis of the Applicant’s establishment in Canada as per Lin v Canada (Minister of Citizenship and Immigration), 2011 FC 316 at
para. 2. The Officer spoke of the Applicant’s establishment in favourable
light, but then came to the conclusion that her removal would not constitute
unusual, undeserved or disproportionate hardship without corresponding reasons.
[15]
The Respondent, on the other hand,
submits that the Officer’s BIOC analysis was reasonable. As stated in Webb v
Canada (Minister of Citizenship and Immigration), 2012 FC 1060 at para.
13, the Williams test advocated by the Applicant is a useful, but
optional, guideline. There is no formal requirement as to the words that must
be used or the approach that must be followed in H&C applications, as long
as the Officer was alert, alive and sensitive to the BIOC [Hawthorne at
para. 7]. The Officer demonstrated this sensitivity by considering several
factors, including Renalyn’s familial circumstances and her ability to adapt to
Filipino society. The Respondent submits that the
Officer, unlike the Applicant contends, did not conclude that the BIOC favoured
Ms. Bautista’s removal from Canada when finding that, “….the codification of the
principle of “best interest of a child” in the Immigration and Refugee
Protection Act requires that it be given substantial weight in the
assessment of an application however; it is only one of many important factors
that must be considered.”
[16]
As for the Officer’s analysis of establishment,
the Respondent reminds the Court that H&C approval is an exceptional,
discretionary measure: The process is not designed to eliminate hardship
inherent in being asked to leave the country, but rather unusual, undeserved
and disproportionate hardship. As the decision notes, leaving family and job is
not unusual, undeserved and disproportionate hardship which in this case, was a
consequence of staying on in Canada without proper status.
V.
Analysis
[17]
The parties agreed that the standard of review
with respect to this case is one of reasonableness, and hence, whether the
decision was within the range of possible outcomes and evidenced transparency,
justification, and intelligibility: Dunsmuir v New Brunswick, 2008 SCC
9.
[18]
While highly deferential, the Dunsmuir
test is often difficult for an applicant to meet in seeking redress, this Court
finds the Applicant has done just that in this matter: the Officer made a clear
error in its the BIOC assessment, and the framework used to undertake that
analysis with respect to young Renalyn.
[19]
Case law, including from all three levels of the
Canadian judiciary (i.e. the Supreme Court of Canada in Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Federal Court
of Appeal in Hawthorne and Kisana, and this Court in various
cases including those discussed below), speaks to the primacy of the child in any
BIOC examination, assuming that adequate evidence has been provided for the
Officer to look at the circumstances of the child in question. In this
instance, the Applicant had provided significant evidence upon which the
Officer could and should have focused in considering BIOC.
[20]
Otherwise stated, with facts such as in this
case, it is the child that must, first and foremost, be considered when
analyzing BIOC, rather than whether the child could adapt to life in another
country, accompany parents, or otherwise fit what might be in someone else's
fate. It would be exceptional for relocation to be the better solution, as
Justice Evans found for the Court of Appeal in Hawthorne:
[5] The
officer does not assess the best interests of the child in a vacuum. The
officer may be presumed to know that living in Canada can offer a child many
opportunities and that, as a general rule, a child living in Canada with her
parent is better off than a child living in Canada without her parent. The
inquiry of the officer, it seems to me, is predicated on the premise, which
need not be stated in the reasons, that the officer will end up finding, absent
exceptional circumstances, that the "child's best interests" factor
will play in favour of the non-removal of the parent. In addition to what I
would describe as this implicit premise, the officer has before her a file
wherein specific reasons are alleged by a parent, by a child or, as in this
case, by both, as to why non-removal of the parent is in the best interests of
the child. These specific reasons, must, of course, be carefully examined by
the officer.
[21]
The compelling BIOC facts of this case, as mentioned
in paragraphs 4 and 20 above, which were before the Officer, are that all of
Renalyn’s connections are to Canada: she was born in Canada, and has spent her
entire life here (over 12 years). She has grown up in close proximity to all
relevant family members, including her aunts, grandmother and cousins. She has
only ever attended school in Canada, and all her friends are in this country.
She has no meaningful contact or relationship with her father, or other
relatives that are in the Philippines. She does not speak Tagalog fluently, and
it is not obvious that she would be able in her adolescent years to cope with
learning a new language, school system, and culture. This is especially so,
given the fact that her mother has no particular ties or income stream in the Philippines that would provide for Renalyn, as she does in Canada.
[22]
Regarding parental
“choice”, it was simply never a credible possibility that this single
mother would abandon her daughter in Canada, no more than any responsible
parent would abandon their child thousands of miles away.
[23]
The Federal Court of Appeal case law is clear
that the BIOC will not favour the removal of the parent in all but exceptional
circumstances (Hawthorne, Kisana, above). That is not the premise
or framework from which the Officer assessed this case. Rather than working
from the “non-exceptional” position that would as
a starting proposition, have clearly favoured Renalyn remaining in Canada with
her mother, the Officer took, at best, a neutral approach by looking at whether
she could overcome obstacles in returning to the Philippines. Justice Annis in Joseph
v Canada (Minister of Citizenship and Immigration), 2013 FC 993 spoke to
this flaw:
[20] The
officer’s conclusion in the present case, which describes the best interest for
the children as simply remaining with their parents, fails to differentiate the
best interests of the child being removed or not from Canada. Therefore, his decision does not state any conclusion on the best interests of the
child remaining or parting depending upon the face removal of the parents,
which is the essence of the BIOC test.
[24]
Similarly, Justice Kane
in Chandidas v Canada (Minister of Citizenship & Immigration), 2013 FC 258 found that the child’s best interests was
remaining with the primary caregiver. Like in the initial H&C review in
this case, the Chandidas Officer was considering the BIOC of a 9 year
old girl (as was the case in the first H&C decision):
[69] The starting
point is to identify what is the child's best interest. The officer merely
stated early in his reasons that it was in the best interests of the children
(which means the best interest of Rhea since the two sons were over 18) to
remain with their parents. That is an odd starting point given that a
nine-year-old girl would never be expected to remain in Canada alone.
[25]
It should be noted that the instant Decision
contains only one brief boilerplate-type reference of “BIOC”
in 6 paragraphs, with no specific reference to Renalyn, or what her best
interests might be. Rather, the focus of the Decision is all about the mother,
Mrs. Bautista, with scant attention to the child. As stated recently in this
Court by Justice Zinn in Sebbe v Canada (Citizenship and Immigration),
2012 FC 813:
[16] Undoubtedly
placing a child in an environment where his or her basic needs are not met can
never be said to be in that child’s best interest. However, to suggest
that the child’s interest in remaining in Canada is balanced if the alternative
provides a minimum standard of living is perverse. This approach
completely fails to ask the question the Officer is mandated to ask: What
is in this child’s best interest? The Officer was required to first
determine whether it was in Leticia’s best interests to go with her parents to Brazil, where she had never been before, or for her to remain in Canada where she had “better social
and economic opportunities.” Only once he had clearly articulated what
was in Leticia’s best interest could the Officer then weigh this against the
other positive and negative elements in the H&C application.
[26]
Had the Applicant been the sole protagonist in
the litigation before this Court, then the matter would be reviewed on an
entirely different basis, and through an entirely different lens. However, the
case law, the policy, and subsection 25(1) itself, all dictate that one has to
pay equally close, if not more attention, to the young lives impacted in an
H&C analysis. Children, amongst society’s most vulnerable citizens, cannot
be said to be minor players on the immigration stage: their destiny must
necessarily be front and center in any H&C analysis, so that they too are
key protagonists in H&C applications. This Court has often held that
officers must be “alert, alive and sensitive” to the BIOC. As Madame Justice L'Heureux-Dubé
wrote in Baker, where the decision below was
deemed unreasonable because the Officer failed to be alert, alive and sensitive
to the BIOC:
The officer was
completely dismissive of the interests of Ms. Baker’s children. As I will
outline in detail in the paragraphs that follow, I believe that the failure to
give serious weight and consideration to the interests of the children
constitutes an unreasonable exercise of the discretion conferred by the
section, notwithstanding the important deference that should be given to the
decision of the immigration officer.
…
… for the exercise of
the discretion to fall within the standard of reasonableness, the
decision-maker should consider children’s best interests as an important
factor, give them substantial weight, and be alert, alive and sensitive to
them. That is not to say that children’s best interests must always
outweigh other considerations, or that there will not be other reasons for
denying an H & C claim even when children’s interests are given this
consideration. However, where the interests of children are minimized, in
a manner inconsistent with Canada’s humanitarian and compassionate tradition
and the Minister’s guidelines, the decision will be unreasonable. [Baker at paras. 65 and 75].
[27]
Another decision of this Court encapsulated this
requirement to view the H&C through the child’s lens, when the late Justice
Blanchard found in Mulholland v Canada (Minister of Citizenship and Immigration),
2001 FCT 597 at para. 30:
[…]
Where the Minister
purports to remove from Canada a person who has dependent children, the
Minister cannot ignore the fact that the practical consequence of her decision
is to deprive the children of the benefit of subsection 4(2) of the Act.
In those circumstances, is it not up to the Minister to rebut the conclusion
that the presence of the children is a humanitarian factor justifying the
exercise of discretion? Nothing in Baker would make such a presumption
irrebuttable. No state can consistently excuse the misconduct of adults because
of the effects on their children without creating a climate of irresponsibility
both as to the adults' conduct and as to the motives for having children. But
the rebuttal must be based upon facts in relation to the parent which would
weigh more heavily in the balance than the dependency of the children upon the
parent and their statutory, if not constitutional right, to remain in Canada.
The bald statement that the presence of the children is the result of a
parental choice does not amount to rebuttal.
[28]
To see everything through the lens of whether
one reasonably can overcome the inevitable hardships that accompany a new life,
as the Officer did in this case, resembles the H&C test that is applied to
adults. Children are malleable – far more so than adults – and starting with
the question of whether they can adapt will almost invariably predetermine the
outcome of the script, namely that the child will indeed overcome the normal
hardships of departure, and adjust to a new life, including learning a brand
new language (Tagalog in this case). Undertaking the analysis through this lens
renders the requirement to take into account the best interests of a child
directly affected, as statutorily required in subsection 25(1) devoid of any
meaning.
[29]
As the Court of Appeal state in Owusu v Canada (Minister of Citizenship and Immigration) (F.C.A.), 2004 FCA 38:
[5] An immigration officer considering
an H & C application must be "alert, alive and sensitive" to, and
must not "minimize", the best interests of children who may be
adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75. However,
this duty only arises when it is sufficiently clear from the material submitted
to the decision maker that an application relies on this factor, at least in
part. Moreover, an applicant has the burden of adducing proof of any claim on
which the H & C application relies. Hence, if an applicant provides no
evidence to support the claim, the officer may conclude that it is baseless.
[30]
The Officer in the
present case had plenty of evidence about the impact of moving on the child
herself, and failed to conduct an appropriate analysis given all the case law
cited above, precisely by either failing to consider, and/or misunderstanding
that which was relevant to the analysis of BIOC (see, for instance, Chandidas
above at para. 47).
[31]
The conclusion on
issue # 1 is that in rejecting the H&C, the Officer failed to give
sufficient consideration to BIOC and the decision was therefore unreasonable.
[32]
Having found the
first issue (BIOC) to be determinative, and having focused on that issue at the
hearing, there is no need to rule on the second issue challenged by the
Applicant (establishment).
[33]
Finally, it should be noted that the Court's
judicial resources should be reserved to litigate serious matters, as they
arise. In this case, a judicial review of the first (March 2012) H&C
decision was proceeding to litigation in this Court but was then settled
approximately a week before the hearing, after the expenditure of significant
preparation, lawyer time, court resources, and anxiety for the Applicant and
her family. One would have expected that to result in a new H&C decision
that acknowledged the settlement, rather than what is essentially a repetition
of the earlier H&C decision in March 2013 a year later. The parties and
Court once again went through all the preparatory stages and hearing for this judicial
review in order to correct errors in the Officer’s approach to BIOC, that due
to the file history were, in the Court's view, entirely avoidable. As the Applicant
states in her Affidavit:
31.
I was very happy to reach a settlement with the Department of Justice. But at
the same time, I was upset that they had waited until a week before my judicial
review hearing and after I had spent thousands of dollars to admit their
mistake. Unlike the Department of Justice, I am a single mother who does not
have large sums of money to engage in litigation for its own sake. Nevertheless,
the Department of Justice required that I not seek any costs against the
respondent as a condition of the settlement. Accordingly, I felt I had no
choice but to agree.[Applicant’s Record, pp. 24-25]
[34]
It is for this reason that the Court deems it
fit to endorse the Cost Order agreed to by the parties which reflects the
special circumstances of this case. The Costs are nominal, to acknowledge that
this is still an application that by definition involves an exemption from the
normal requirements of the Act: Ndungu v Canada (Citizenship and
Immigration), 2011 FCA 208.
[35]
It is the Court’s sincere hope that the new Officer
assigned to the matter properly considers the issue of BIOC, which has not been
properly considered to date.
[36]
Neither party suggested any question for
certification, nor is there any question deserving of certification.
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