Docket: IMM-2891-13
Citation:
2014 FC 582
Ottawa, Ontario, June 19, 2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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SARAH FELIX
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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
[1]
This is an application for judicial review of
the decision of K. Carlile, a Senior Immigration Officer at Citizenship and
Immigration Canada [the Officer], pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. The Officer refused to
exempt the Applicant’s permanent residence visa application from the selection
criteria of the Act on humanitarian and compassionate [H&C] grounds pursuant
to section 25 of the Act.
I.
Issue
[2]
The issues in the present application are
whether the Officer’s decision is reasonable with respect to the hardship
facing the Applicant in returning to St. Lucia and whether the Officer failed
to be alert, alive or sensitive to the best interests of the Applicant’s
Canadian child.
II.
Background
[3]
The Applicant is a citizen of St. Lucia. She was born on October 29, 1970.
[4]
According to her Personal Information Form [PIF]
narrative, the Applicant began a relationship with a man named Allan Marius
when she was 17 years old. It deteriorated after a few months, and by 1991 he was
abusive. She recounts several incidences of physical and verbal abuse. She did
not report these threats to the police. In 1992 she left her home and quit her
job at a grocery store to avoid Mr. Marius. She worked at a manufacturing
facility from 1992 to 1996 and at a hotel from 1996 to 2003.
[5]
On May 25, 2003, the Applicant left St. Lucia for Canada and has resided in Ontario since that time. In 2007, she gave birth to a son,
Jacob. The Applicant alleges that Jacob’s father is unknown.
[6]
On July 8, 2009, the Applicant was involved in a
motor vehicle accident. She received rehabilitative treatment from a
physiotherapist. A letter from her doctor indicates that as of June, 2012, she
is generally healthy, but continues to use medication to ease pain resulting
from her accident.
[7]
On December 2, 2010, a prior H&C application
made by the Applicant was rejected. Leave to seek judicial review of that
decision was subsequently denied. In 2012, the Applicant made a claim for refugee
protection. It was denied on December 21, 2012.
[8]
Currently, the Applicant is employed full-time
with a staffing company. Reference letters indicate that she attends church and
occasionally volunteers at Jacob’s daycare centre. According to a letter from
his teacher, Jacob is an intelligent, friendly child, who is active and engaged
in school.
[9]
On June 19, 2012, the Applicant submitted the
H&C application at issue in this application. In the written submissions
provided with her application, the Applicant states that she is established in
her community and would suffer hardship if she was made to return to St. Lucia. This hardship was described as including:
•
The danger posed by Mr. Marius and being a
survivor of domestic abuse;
•
Difficulty in finding employment and supporting
herself financially due to the poor economic situation in St. Lucia and her age;
•
Difficulty in receiving appropriate medical
care;
•
The hardship suffered by the Applicant’s mother,
who would forgo the financial assistance she is receiving from the Applicant’s
wages in Canada; and
•
The hardship suffered by Jacob, including the
loss of Canada’s education and healthcare system;
[10]
The Officer acknowledged the Applicant was
established in Canada, accepting her history of employment, lack of a criminal
record, community involvement, and letters of support from friends. However,
the Officer found that the Applicant’s degree of establishment was not greater
than what would be expected of similarly-situated individuals, and did not by
itself warrant an exercise of discretion on H&C grounds.
[11]
The Officer noted that according to subsection 25(1.3)
of the Act, considerations appropriate to a refugee analysis under section 96
and 97 of the Act are not to be considered in the H&C application. This
includes the risk that would be faced by the Applicant from Mr. Marius on her
return to St. Lucia. However, the Officer did consider the Applicant’s hardship
related to returning to St. Lucia as a survivor of domestic abuse.
[12]
The Officer cited the 2011 United States
Department of State Report on Human Rights for St. Lucia for the proposition
that the police in St. Lucia are willing to arrest perpetrators of domestic
violence and have done so. The St. Lucia police force also maintains a
Vulnerable Persons Unit to handle domestic violence. In addition, the Family
Court in St. Lucia can issue protective orders and there are government support
services available for victims of abuse. Based on this, the Officer concluded that
redress would be available to the Applicant in St. Lucia to mitigate future
hardship that the Applicant would experience as a survivor of domestic abuse.
[13]
The Officer also reviewed country condition
reports for St. Lucia which shows that crime has risen in recent years. However,
the Officer found that the crime rate in St. Lucia would have no
disproportionate impact on the Applicant and that police forces respond to
victims of crime.
[14]
The Officer acknowledged the poor economic
situation in St. Lucia and that the Applicant’s age would likely present a barrier
to employment. However, the Officer found that the Applicant’s history of
employment and her resourcefulness would assist her in finding a job. In
addition, the Officer found that the worst unemployment in St. Lucia occurs in rural areas and if the Applicant moved to an urban environment she
would be more likely to find employment. The Officer also found that there was
no evidence that the Applicant’s injuries have hampered her ability to find and
maintain employment.
[15]
The Officer acknowledged that health care in St. Lucia may not be as comprehensive as Canadian healthcare. Despite this, there was no
information suggesting that the Applicant requires further medical treatment or
therapy. While the Applicant alludes to taking painkillers to manage ongoing
pain, there was no evidence that she was taking them as of the date of the
hearing, or that painkillers would be unavailable in St. Lucia.
[16]
With regard to the Applicant’s mother, the
Officer found that either the Applicant’s siblings, or the Applicant would,
after obtaining employment in St. Lucia, be able to provide financial support.
[17]
With regard to the best interests of Jacob, the
Officer found that despite Jacob’s Canadian citizenship, it would be in his
best interest to return to St. Lucia with the Applicant. The Officer concluded
that Jacob’s young age, intelligence and good humour will help him establish a
new daily routine and make new friends in St. Lucia. Based on the Officer’s
findings regarding the safety and employment prospects of the Applicant, he
would be safe and well-provided for. In addition, the Officer cited a UNICEF
report entitled “A Study of Child Vulnerability in Barbados, St. Lucia and St. Vincent and the Grenadines” in finding that school-aged education is compulsory in
St. Lucia and that there is no indication that Jacob would be unable to access
training or education available in St. Lucia. Likewise, the UNICEF report
states that healthcare for children is accessible in hospitals and major health
centres and there is no evidence that Jacob would be unable to access that
care.
III.
Standard of Review
[18]
The standard of review is reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, at paras 47, 50; Gill v Canada (Minister of Citizenship and Immigration), 2011 FC 863, at para 16).
IV.
Analysis
A.
Hardship
[19]
For the reasons that follow, while I accept the
Respondent’s position that the Officer was reasonable in considering hardship
of the Applicant, I find the Officer was unreasonable in his analysis dealing
with the best interests of the Applicant’s son, Jacob.
[20]
While in many instances the Officer gave little
attention to aspects of the evidence on hardship, his reasoning was reasonable
with respect to the hardship directed towards the Applicant, given the
exceptional nature of the H&C remedy.
[21]
With regard to the economic situation, the
Officer noted that “…the economy in St. Lucia is poor and that high rates of unemployment and poverty are serious, ongoing issues.”
He considered the Applicant’s work history and her personal characteristics and
determined that she would not face unusual, undeserved or disproportionate
hardship. While I believe the Officer’s analysis was weak, it was at least intelligible.
The Respondent was not obligated to cite all the documentary evidence and the
Applicant’s arguments amount to a call for this Court to re-weigh the evidence
before the Officer.
[22]
Likewise, the Officer’s findings regarding the
risk posed by Mr. Marius and the high crime rate in St. Lucia was reasonable.
As is stated in Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2014 FCA 113, at paras 48-49, a generalized risk is
insufficient to warrant undue hardship in a section 25 analysis. With regard to
the risk posed by Mr. Marius, I believe the Respondent was reasonable in
assessing the various forms of redress available to the Applicant in deciding
whether the risk posed by Mr. Marius would constitute undue hardship. I do not
see the Officer’s analysis as importing a section 96/97 analysis into a section
25 analysis – rather, I believe it was assessing undue hardship based on risks
that would be relevant to both analyses.
[23]
I do not think the Applicant fulfilled her
evidentiary burden to show that she required any ongoing medical treatment in St. Lucia. A letter by her doctor stating that she sometimes relies on pain medication is
not a sufficient indication that the she requires it on an ongoing basis or
would be unable to obtain it in St. Lucia at a reasonable price.
[24]
Moreover, given my finding above regarding the
reasonableness of the Officer’s decision in relation to the Applicant’s
employment prospects, and the fact that the Applicant has siblings, I do not
think the Officer’s analysis unreasonably failed to consider the Applicant’s
mother.
B.
Best Interest of the Child
[25]
However, the Officer’s analysis with respect to the
Applicant’s son Jacob is unreasonable. The task of analyzing the best interests
of the child in the H&C context is described in Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475 [Hawthorne],
at para 6:
To simply require that the officer determine
whether the child's best interests favour non-removal is somewhat artificial -
such a finding will be a given in all but a very few, unusual cases. For all
practical purposes, the officer's task is to determine, in the circumstances of
each case, the likely degree of hardship to the child caused by the removal of
the parent and to weigh this degree of hardship together with other factors,
including public policy considerations, that militate in favour of or against the
removal of the parent.
[26]
I believe that Justice James Russell’s decision
in Williams v Canada (Minister of Citizenship and Immigration), 2012 FC
166 [Williams], at para 63 also provides useful guidance as to how this
analysis should be conducted:
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.
[27]
There is nothing from Hawthorne or any
other higher-level court that would suggest that Williams enforces a
strict analytical formula in assessing the best interests of the child.
However, regardless of the formula used, or the order in which the analysis was
conducted, the thrust of the Officer’s analysis was not focused on determining
what was in the best interests of the child. The Officer concluded that “…it would be in Jacob’s best interests to return to St. Lucia with the applicant and to not be separated from her”. I agree with the
Applicant that this is an unjustifiable and unintelligible conclusion. There is
no way to justify the conclusion that it would be in a six or seven-year-old
child’s best interest to move him from Canada’s health and education system and
the stability of his mother’s current employment situation into a developing
country where his mother’s income would be precarious at best, and the health
and education systems are documented as weak.
[28]
The Officer did not heed the guidance from Hawthorne to weigh the degree of hardship on Jacob or weigh it against other
factors relevant to the section 25 analysis. This is evident as the Officer
makes virtually no reference to negative impacts on Jacob and only refers to
various aspects of relocating to St. Lucia as meeting his needs.
[29]
While it is in a different factual context, I adopt
Justice Judith Snider’s characterization of similar findings from Shallow v Canada (Minister of Citizenship and Immigration), 2012 FC 749, at paras 19-20 – these
are “wishful statements” that are not reflective of a reasonable H&C
analysis.
[30]
The Officer was also unreasonable in that his
ostensible analysis of Jacob’s best interests seems to instead focus on
determining whether relocating to St. Lucia would meet Jacob’s needs, or, at
least, not harm him. This is evident in several instances:
•
“I find that the redress
that is available in St. Lucia would….allow the applicant to provide a safe
environment for Jacob”;
•
“I have previously found
that the applicant would likely be able to obtain employment in St. Lucia that would enable her to provide a stable home for Jacob”;
•
“I do not find…that the
rate of crime in St. Lucia would cause a direct, negative impact to either the
applicant or to Jacob”; and
•
“There is little…to
indicate that Jacob would be unable to access the health care that is available
for children in St. Lucia...(or in the) applicant’s materials to support the
applicant’s statement that the health care that is available for children in
St. Lucia would be inadequate to meet Jacob’s needs”.
[31]
This analysis echoes the type which was
cautioned against by Justice Russell Zinn in Sebbe v Canada (Minister of Citizenship and Immigration), 2012 FC 813, at paras 15-16:
15 In stating that "there is insufficient
evidence before me to indicate that basic amenities would not be met in Brazil" the Officer is importing into the analysis an improper criterion. He appears
to be saying that a child's best interest will lie with staying in Canada only when the alternative country fails to met the child's "basic
amenities." That is neither the test nor the approach to take when
determining a child's best interests. As Justice Russell recently held in Williams
v Canada (Minister of Citizenship and Immigration), 2012 FC 166, at
paragraph 64:
There is no basic needs minimum which if
"met" satisfies the best interest test. Furthermore, there is no hardship
threshold, such that if the circumstances of the child reach a certain point on
that hardship scale only then will a child's best interests be so significantly
"negatively impacted" as to warrant positive consideration. The
question is not: "is the child suffering enough that his "best
interests" are not being "met"? The question at the initial
stage of the assessment is: "what is in the child's best interests?"
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.
[32]
While the Respondent is correct that the best
interests of the child are not determinative in an H&C application, given
the Officer’s unreasonable consideration of Jacob’s interests here, I believe
they are of sufficient importance to allow this application for judicial review.
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