Docket: IMM-5892-13
Citation:
2015 FC 336
Ottawa, Ontario, March 17, 2015
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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JEAN ANTHONY
LAUTURE
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MARIE MOSE
LAUTURE-ST HILAIRE
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LUDNY LAUTURE
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MARCLEY LAUTURE
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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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JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
The applicants seek judicial review of a
decision of an Immigration Officer (the Officer), dated August 19, 2013,
refusing their application for permanent residence from within Canada on
humanitarian and compassionate (H&C) grounds pursuant to subsection 25(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA).
For the reasons that follow, the application is granted.
II.
Facts
[2]
The facts may be briefly stated, as the crux of
this application lies in events subsequent to the applicants’ departure from
Haiti.
[3]
The applicants are Mr Jean Anthony Lauture (the
applicant), his wife Mrs Marie Rose Lauture St-Hilaire, and their children
Ludny Lauture and Marcley Lauture. All are Haitian nationals. The applicants
fled Haiti by reason of Mr Lauture’s work as a journalist. The applicant had
denounced, on his radio program, crimes and violence committed against women
and children. Following threats, and then an attempt on his life, he left Haiti
for the Dominican Republic in June 2003.
[4]
The applicant returned to Haiti in February
2004. When he returned, he did not return to work as a journalist, and instead
began working as a teacher in a secondary school. He organized a conference for
his students on the rule of law in Haiti. However, because of his involvement
in organizing this conference, the applicant’s wife was assaulted in February
2006, and there was another attack on the applicant’s life in September 2007.
[5]
The applicant was kidnapped on July 2, 2008.
Following the kidnapping, armed men visited the applicant’s neighbours,
thinking that it was the home of the applicant. The neighbours’ son was
kidnapped, and a ransom demanded. Once the ransom was paid both victims were released.
The applicants’ neighbours blamed the applicant for these events and demanded
that the applicants leave the neighbourhood.
[6]
The applicants claimed refugee protection upon
arrival in Canada at the Fort Erie border crossing. The Refugee Protection Division
of the Immigration and Refugee Board determined that the applicants were not
Convention refugees or persons in need of protection.
[7]
The application for humanitarian and
compassionate grounds for the applicant and his family was refused on August
19, 2013.
III.
Decision
A.
Degree of establishment
[8]
The Officer first considered the applicants’
degree of establishment in Canada. The Officer explained that upon arrival in
Canada, the applicants supported themselves financially through social
assistance. However, during that time the applicant volunteered for the
Salvation Army, the Heritage Skills Development Center, the Centre Francophone
de Toronto, the United Haitian Community of Ontario, and was a volunteer
reporter for CIUT radio. He also sits on the board of directors for Festival
Kompas Zouk Toronto, for the promotion of Creole culture.
[9]
The Officer noted that the applicant found a job
in May 2010 and currently worked as a teacher for the Alpha Toronto school, a
literacy learning centre. In respect of the female applicant, the Officer noted
that she did not work but has taken language training in Canada and hoped to
study early childhood education at university. She worked as a substitute at
the Jeanne Lajoie daycare and was a volunteer at the Montessori youth centre of
Toronto. The female applicant also volunteered for the Lung Association and was
an executive committee member of the Festival Zouk Toronto.
[10]
The Officer then turned to the couple’s
children, now aged 15 and 18 years and in secondary school. The Officer stated “[t]he representative does not add any consideration
respecting the best interests of the child in this file”.
[11]
The Officer concluded that the applicants are “generous people devoted to the community” and that
they “display humanity” and that “[n]ot only are they involved in the Haitian community in
Canada, they are also invested in the life of the Toronto community,
particularly with respect to education”. The Officer commented that
these qualities are “rare and very noble”.
[12]
However, the Officer concluded that “the fact remains that working and obeying the law are
everyday activities for many people living in Canada”.
[13]
In terms of their volunteer and community
activities, the Officer commented that “their
engagement in society is remarkable” and “there
is no doubt that the relationships they have formed within their Canadian
community over these past years are significant”. However, she concluded
that “the fact remains that this type of activity can
also be pursued in Haiti” and that she was not satisfied that the
applicants “will be unable to continue their community
and volunteer activities and form new friendships in Haiti”.
[14]
The Officer noted the letters the children wrote
to the attention of the immigration officials asking that they not be sent back
to their country and indicating they fear kidnapping in Haiti. However, she
concluded that at their young age, “it is easy to adapt
to a new school environment and to form new friendships”.
[15]
Finally, the Officer addressed the prospective
risk of kidnapping should the female applicant and minor applicants would be
returned to Haiti. The Officer noted that since June 29, 2010, such allegations
cannot be analyzed as part of an H&C application, and consequently there is
no jurisdiction to rule on risks to life or to grant protection. However, in
the interests of procedural fairness she considered the possibility of
gender-based discrimination and found that although there is discrimination
against women and children in Haiti, the female applicant is married and
therefore her risk is lowered. Further, the children will “benefit from the protection of the family unit”. She
noted that since the earthquake in Haiti, the entire Haitian population faces
poverty, violence, kidnappings, and a lack of resources and therefore the
situation affects most of the population without distinction and is “therefore not peculiar to the applicants”.
IV.
Relevant provisions
[16]
Subsection 25(1) of IRPA allows the
Minister to grant an applicant permanent resident status or exempt an applicant
from any requirements of IRPA:
25(1) The Minister shall, upon request of a
foreign national in Canada who is inadmissible or who does not meet the
requirements of this Act, and may, on the Minister’s own initiative or on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligation of
this Act if the Minister is of the opinion that it is justified by humanitarian
and compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
V.
Analysis
A.
The standard of review
[17]
The issue of whether the Officer applied the proper
legal test and assessed the best interests of the child is a question of law
reviewable on the correctness standard: Judnarine v Canada (Minister of
Citizenship and Immigration), 2013 FC 82 at para 15; Joseph v Canada
(Minister of Citizenship and Immigration), 2013 FC 993 at para 12. When
applying the correctness standard, the reviewing court “will
not show deference to the decision maker’s reasoning process; it will rather
undertake its own analysis of the question”: Dunsmuir v New
Brunswick, 2008 SCC 9 at para 50.
[18]
The issue of the Officer’s conclusion on
establishment is a question of mixed fact and law reviewable on the standard of
reasonableness. The reasonableness standard is concerned with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law: Dunsmuir at para 53.
B.
The Officer’s conclusion on establishment was
not reasonable
[19]
Section 5.14 of the Citizenship and Immigration
Canada Operational Manual IP-5 states that an applicant’s degree of
establishment in Canada may warrant a positive H&C consideration when the
period of inability to leave Canada due to circumstances beyond the applicant’s
control is of considerable duration and when there is evidence of a significant
degree of establishment in Canada. The respondent cites Justice Snider in Shallow
v Canada (Minister of Citizenship and Immigration), 2012 FC 749 at para 9,
wherein Justice Snider observed that “[f]or this factor
to weigh in favour of an applicant, much more than simple residence in Canada
must be demonstrated” and it “must always be
remembered that the focus is on the hardship to the Applicants on applying for
permanent residence from their country of origin”. That is, unless the
establishment in Canada “is both exceptional in nature
and not of the applicant's own choosing, this will not normally be a factor
that weighs in favour of the applicants”: Shallow at para 9.
[20]
Although exceptional, meaning must still be
given to the establishment factor. In deciding whether an applicant’s degree of
establishment may warrant positive H&C considerations, factors that may be
taken into account include employment history, volunteer and integration in the
community, civic record, and educational upgrading.
[21]
In the present case, the Officer concluded that
the applicants’ “engagement in society is remarkable”
and that the relations they had formed with their community were significant.
However, despite this conclusion the Officer did not weigh the establishment
factor in the applicants’ favour, and instead dismissed the factor on the basis
that community involvement also may occur in Haiti. This is not a proper
application of the establishment factor.
[22]
The Officer also concluded that there was little
evidence to suggest that the male applicant will not be able to work and
support his family in Haiti. As a result, little weight was assigned to this
factor. The Officer also dismissed the applicants’ involvement in their church
due to the fact that they were unable to show they would not be able to
practice their faith in Haiti.
[23]
Instead of assessing whether the applicants
would be able to volunteer and attend church in Haiti, the Officer should have
assessed the applicants’ evidence of employment, volunteer work, and
integration in their community in Canada. The Officer then should have
considered whether this factor favours the application, is neutral, or weighs
against the application.
[24]
The analytical error here was also considered in
Sosi v Canada (Minister of Citizenship and Immigration), 2008 FC 1300.
There, the officer had stated:
The applicants have demonstrated a very high
level of establishment in Canada in a short period of time; however, while
establishment is an important factor in assessing hardship it is not the only
factor to be considered. The industriousness of this family also tends to
demonstrate a high level of ability to re-integrate back into Kenyan society,
especially when considering the prospect of them being reunited with their
remaining children on their return. [emphasis added]
[25]
The Court held this to be an unreasonableness
analysis and at para 18 wrote:
In my opinion, the use of the conclusion
that the applicants are well established in Canada is perverse because it takes
the existence of a factor set out in IP 5 as a consideration militating towards
granting humanitarian and compassionate relief and uses it to do just the
opposite. Obviously, the proven establishment of the applicants in Canada
should work in their favour because there is absolutely no way of knowing
whether the personal abilities they used to create this establishment can be
used in Kenya to accomplish the same thing.
[26]
In other words, an analysis of the applicants’
degree of establishment should not be based on whether or not they can carry on
similar activities in Haiti. Under the analysis adopted, the more successful,
enterprising and civic minded an applicant is while in Canada, the less likely
it is that an application under section 25 will succeed. My colleague Justice
Russel Zinn made the point well in Sebbe v The Minister of Citizenship and
Immigration, 2012 FC 813 at para 21:
…However, what is required is an analysis
and assessment of the degree of establishment of these applicants and how it
weighs in favour of granting an exemption. The Officer must not merely discount
what they have done by crediting the Canadian immigration and refugee system
for having given them the time to do these things without giving credit for the
initiatives they undertook. The Officer must also examine whether the
disruption of that establishment weighs in favour of granting the exemption.
C.
The Officer employed the wrong test when
assessing the hardship of returning to Haiti
[27]
I turn next to the second error which was to
import section 97 criteria into the H&C analysis.
[28]
The applicants’ submissions highlighted their
fear of returning to Haiti where the female applicant was at risk of gendered
violence and the children were at risk of generalized violence. The applicants
also submitted that the recent earthquake and cholera outbreak would affect
them.
[29]
In the decision, the Officer concluded that the
applicants have the choice to relocate outside of the Capital, Port-au-Prince,
and that in any event, the applicants do not face a greater risk of kidnapping
than the general Haitian population. The Officer also concluded that in respect
of generalized country conditions in Haiti, the situation “affects most of the population without distinction and is
therefore not peculiar to the applicants”.
[30]
This analysis confounds an analysis pursuant to
section 97 with an H&C hardship analysis. In Diabate v Canada
(Minister of Citizenship and Immigration), 2013 FC 129, the officer had
written that although country conditions were poor in the Ivory Coast, all
citizens were affected similarly, and the applicant had not shown how he would
be differently affected. In response to this line of reasoning, my colleague
Justice Mary Gleason wrote at paras 33 and 36:
I agree with the applicant that such an
interpretation of section 25 frustrates its purpose. As indicated, section 25
exists to provide relief from the provisions of other sections of the IRPA. To
impose those requirements on an applicant seeking relief from them entirely
frustrates the section and is thus an interpretation that the Act cannot
reasonably bear. The officer imported a requirement of section 97 - that, to be
eligible for protection, an individual must face a risk "not faced
generally by other individuals in or from that country" - into her section
25 analysis. Such an interpretation strips section 25 of its function.
[…]
…It is both incorrect and unreasonable to
require, as part of that analysis, that an applicant establish that the
circumstances he or she will face are not generally faced by others in their
country of origin. Rather, the frame of analysis for H&C consideration has
to be that of the individual him or herself, which involves consideration of
whether the hardship of leaving Canada and returning to the country of origin
would be undue, undeserved or disproportionate.
[31]
I agree with Justice Gleason’s analysis and find
it to be dispositive of this application. In the present case, the Officer made
the same error. The Officer incorrectly and unreasonably required that the
applicants establish that the hardship they would be exposed to in Haiti is not
generally faced by other Haitians.
D.
The Officer failed to assess the best interests
of the children
[32]
The third error lies in the Officer’s failure to
assess the best interests of the applicant children. In my view, this issue comes
down to whether it was sufficiently clear from the material submitted to the
Officer that the application relied on the best interests of the child factor.
[33]
The applicants submit that it was sufficiently
clear that they intended to rely on the best interests of the child factor.
They base this submission on the fact that the applicant and his wife have two
children, aged 15 and 18 who were included in the application. Submissions with
respect to the children were limited to the hardship of returning to Haiti,
given the constant threat of kidnapping and various on-going human rights
abuses against women and children. Further, both children wrote letters
pleading with the Officer to approve the application. A letter from the female
applicant’s cousin was also submitted, and it explained the close relationship
between the minor applicants.
[34]
The applicants concede that the submissions on
the best interests of the children were brief; however it was clear from the
submissions and the letters that the best interests of the children were raised
as a factor in the H&C application. In addition, the applicants point to
the Officer’s consideration in her decision of the minor applicants’ fear of
kidnapping as proof that the Officer knew this was an important factor that
affected the children. The applicants submit that the Officer should have
applied the proper best interests of the child analysis and taken into account
the minor applicants’ present situation in Canada as a starting point, and not
their return to Haiti as the analytical starting point.
[35]
In response, the respondent argues that it is
the responsibility of the applicants to bring forward all relevant H&C
considerations, including clearly identifying the best interests of the
children.
[36]
In considering an H&C application, an
immigration office must be “alert, alive and sensitive”
to the best interests of children who may be adversely affected by removal from
Canada: Baker v Canada (Minister of Citizenship and Immigration), [1999]
2 SCR 817. 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”: Owusu at
para 5. Submissions that are oblique, cursory and obscure do not impose a
positive obligation on the Officer to inquire further about an issue relied on
by the applicants: Owusu v MCI, 2004 FCA 38 at para 9. Further, an
applicant “has the burden of adducing proof of any
claim on which the H&C application relies” and therefore, “if an applicant provides no evidence to support the claim,
the officer may conclude that it is baseless”: Owusu at para 5.
[37]
In Owusu, the applicant argued that the
immigration officer erred by failing to consider the best interests of his
children. Mr. Owusu lived in Canada and financially supported his children, who
lived in Ghana. The only reference to Mr. Owusu’s children in his H&C claim
was a single sentence stating: “Should he be forced to
return to Ghana [Mr. Owusu] will not have any ways to support his family
financially and he will have to live every day of his life in constant fear”.
The Federal Court of Appeal concluded that this reference was oblique, cursory
and obscure.
[38]
In my view, the present case is distinguishable.
Admittedly, the submissions in regards to the best interests of the minor
applicants were brief; however they were not “oblique, cursory and obscure”.
Both applicant children submitted letters to the Officer, which were sufficient
to trigger an analysis of the best interests of the children. For example, in Marcley’s
letter, he wrote that “every time I hear that someone
got kidnapped, I feel like I am awaiting my turn” and “I could not even sleep if my parents did not come back home
on time because I was afraid something might have happened to them” . Marcley
also wrote that “since I came to Canada I felt like
this stress that I had before was lifted off my shoulders” and “please do me a favour, do not send me back to this terrible
way of living”. Ludny expressed in her letter that “À l’école j’ai des amis” but “en Haïti, nous avons tout perdu: pas
de parents, pas d’amis, pas de maison”. Further,
Ludny wrote “et nous ne pourrons pas aller à l’école mon frère et moi si nous
retournons en Haïti”.
[39]
The Officer also failed to consider whether the
children, at the critical ages of 15 and 18 would have access to education in
Haiti. This critical consideration was unaddressed, as the Officer simply noted
that since no representations were made the matter need not be considered.
Further on in the decision, the Officer simply wrote that “at their young age, it is easy to adapt to a new school
environment and to form new friendships”. This phrase, commonly applied
by officers in assessing the interests of primary school children is, for
anyone familiar with teenagers, of dubious application in the context of
teenagers and high school.
[40]
The Officer cannot, in respect of an issue of
critical importance to the best interests of the children, such as education,
shelter behind the failure of the applicants to make representations. In this
regard, I adopt the comments of Justice Zinn, who in Sebbe at para 13
wrote:
…However, officers are under a duty to
consider children’s best interests when conducting H&C determinations, when
there is some evidence before them. Children are not separately represented in
these proceedings and the role of the officer is akin to that of parens
patria…
[41]
The Officer ought to have considered, in the
particular circumstances of Haiti, the impact of returning the children of such
an age to Haiti. Instead, the Officer dismissed any concern in this regard by
simply stating that the children were young and could adapt. The adaptability
of teenagers to changes in their environment is not the same as that of a young
child.
E.
The Officer failed to consider the implications
of a temporary suspension of removals to Haiti
[42]
I turn to the fourth error in the decision, and
that was with respect to the Officer’s failure to consider the implications of
the fact there was, and remains, a temporary suspension of removals to Haiti.
This implies that the conditions are sufficiently dire or unstable that Canada
will not removal nationals to that country.
[43]
It is unclear, in my mind, how the Officer
rationalized her conclusion that there would be no undue burden in applying from
Haiti when Canada, by its own policy decision, has determined it is unsafe or
unfair to return individuals to that very country. In this regard, I adopt the
analysis of Justice Keith Boswell in Maroukel v Canada (Citizenship and
Immigration), 2015 FC 83 at para 32, in the context of a refused H&C
application in respect of Syria:
In my view, it also was unreasonable for the
Officer, on the one hand, to conclude that country conditions in Syria are
“dangerous” and then, on the other, to ignore the direct negative impact such
conditions would have upon the Applicants since it “is not comfortable for
anyone who lives there”.
VI.
Conclusion
[44]
As the Officer’s decision is both incorrect, in
respect of the legal test, and unreasonable in respect of its application, the
application is granted. The matter is sent back for re-determination by a
different Immigration Officer, having these reasons in mind.
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