Docket: IMM-5035-13
Citation:
2015 FC 719
Ottawa, Ontario, June 8, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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RICHARD ANTHONY
MCKENZIE and
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ALLECIA ALLEN
MCKENZIE
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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’ application for permanent
residence from within Canada on humanitarian and compassionate (H&C)
grounds was rejected by an officer of Citizenship and Immigration Canada. They
are now applying for judicial review of this decision pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act].
[2]
The applicants seek an order setting aside the
negative decision, returning the matter to a different officer for redetermination
within 30 days of such order and costs on a solicitor client basis.
I.
Background
[3]
The applicants are citizens of Jamaica. On July
19, 2008, they entered Canada and were granted visitor status for six months.
They later applied for an extension, which was subsequently granted.
[4]
The principal applicant has lived in Canada
since 2008 doing pastoral work. The female applicant is a student in pastoral
studies.
[5]
On February 6, 2008, they gave birth to their
daughter, Glorie-Ann Mckenzie, a Canadian citizen.
[6]
On June 28, 2012, the principal applicant’s
temporary resident status as visitor expired.
[7]
The female applicant’s temporary resident status
as visitor expired on June 21, 2012. She was issued a multiple entry student
visa on January 9, 2012, which was valid until December 30, 2014; however, she
did not present herself at a Canadian land port of entry to have the study
permit issued.
[8]
On October 24, 2012, the applicants submitted an
application on H&C grounds with the assistance of Mr. Prescod of Prescod
International Immigration Services (prior consultant).
[9]
The applicants claim that they also obtained Mr.
Prescod for other legal services, which included the female applicant’s study
permit. They claim Mr. Prescod failed to advise the female applicant that she needed
to activate it at a port of entry.
II.
Decision Under Review
[10]
In a decision dated July 5, 2013, the officer
found the applicants do not qualify for an exemption under H&C grounds and
ordered them to leave Canada forthwith.
[11]
For establishment, the officer found although
the applicants’ establishment and integration in Canada is admirable, the
officer was not satisfied that they were established or integrated to the
extent that leaving Canada would cause unusual, undeserved or disproportionate
hardship.
[12]
In making this determination, the officer
reviewed the letters from the Makarios Ministries and Brampton Church of God
Deliverance Ministries. It was found the principal applicant no longer
performed duties for Makarious Ministries; and he sometimes preached at the
Brampton Church of God Deliverance Ministries. The officer noted there was
little evidence as to the amount of time the principal applicant dedicated in
relation to his performance of religious duties and that it was unknown if the
principal applicant was currently assisting this Ministry; therefore, it was found
this Ministry would not be negatively impacted.
[13]
The officer also reviewed the letter from Solid
Rock Christian Assembly where the applicants volunteer for preaching and
community activities. It was found although the applicants’ departure may cause
inconvenience to the Ministry and its members, it would not cause a significant
negative impact. There was insufficient evidence that severing ties from this Ministry
would result in unusual and underserved or disproportionate hardship.
[14]
The officer then reviewed the letter from the
Toronto Friendship Centre where the principal applicant provided pastoral care
and outreach services. The officer found, should the principal applicant leave
Canada, there was insufficient evidence that the Centre would be unable to make
alternate arrangements for pastoral care and outreach services. Therefore, the
principal applicant’s departure would not result in a significant negative
impact to the Centre, the individuals attending the Centre or to the principal applicant
himself.
[15]
The officer further acknowledged the letters on
how the applicants developed family relationships with many “needy people” and changed their lives. This included
Kevin Anderson whose letter was dated two years ago and Donlyn Skinner. The
officer noted that these letters demonstrated community involvement, but there
was insufficient evidence that these people were dependent on the applicants.
[16]
Also, the officer observed that the principal
applicant was a pastor in Jamaica from January 2004 to July 2008. The officer
found there was insufficient evidence to establish that he could not return to
Jamaica and continue to perform duties in a church in Jamaica.
[17]
The officer then noted the female applicant was
issued a multiple entry student visa on January 9, 2012, which was valid until
December 30, 2014; however, she did not present herself at a Canadian land port
of entry to have the study permit issued. Although the officer considered the
explanation provided by the female applicant, the officer found she did not
have legal immigration status in Canada. Further, the officer found the
applicants did not articulate any hardship should the female applicant be
unable to complete her studies in Canada.
[18]
For the best interests of the child, the officer
found the child residing in Jamaica would not result in a significant negative
impact to her well-being. There was insufficient evidence to demonstrate she
would not have access to adequate services, support and facilities in Jamaica.
Also, the child would retain her Canadian citizenship regardless of where she
was to reside.
[19]
Therefore, the officer found there was
insufficient evidence of unusual and undeserved or disproportionate hardship to
warrant an exemption from the requirements of the Act.
III.
Issues
[20]
The applicants raise three issues for my
consideration:
1.
The officer committed an error on the face of
the record as the officer employed the wrong legal test as in Pokhan v
Canada (Minister of Citizenship and Immigration), 2012 FC 1453, [2012] FCJ
No 1569 [Pokhan], in assessing the best interests of the Canadian born
child, Glorie-Ann, who was five years old at the time of the officer’s
decision.
2.
The officer erred in law and in fact in refusing
the applicants’ application for permanent residence on H&C grounds.
3.
The applicants were denied procedural fairness
due to the incompetence of their previous consultant in specifically failing to
allow them an opportunity to respond to the issue of the female applicant not
being in possession of a valid study permit which factor formed part of the
refusal.
[21]
The respondent raises one issue in response: the
officer’s finding that there were insufficient H&C grounds to grant the
applicants’ permanent residence application was not unreasonable.
[22]
In the respondent’s further memorandum, it
objects to the admission of the further affidavit submitted by the applicants
and raises one additional issue: the applicants have not complied with Federal
Court Procedural Protocol.
[23]
In my review, there are five issues:
A.
Is the evidence from the further affidavit
admissible?
B.
What is the standard of review?
C.
Was the applicants’ prior counsel incompetent as
to deny them procedural fairness?
D.
Did the Board misunderstand the test for the
best interests of the child assessment?
E.
Was the Board’s decision reasonable?
IV.
Applicants’ Written Submissions
[24]
The applicants submit the standard of review for
questions concerning the application of facts is that of reasonableness and a
purely legal question is that of correctness. They argue the standard of
correctness should be applied when reviewing the legal test used by the officer
in examining the best interests of the child and the standard of reasonableness
applies to the officer’s application of evidence.
[25]
The applicants submit the applicable legislation
in this case is found in subsection 25(1) of the Act.
[26]
First, for the best interests of the child, the
applicants submit the officer erroneously referred to basic and adequate
services rather than “best interests” in its assessment. The present case is
similar to Pokhan and that in the present case, the officer erred in
applying the wrong legal test in assessing the best interests of Glorie-Ann.
They argue the officer committed the following errors: i) the officer never
considered the best interests of the child if her parents were permitted to
stay in Canada only that she will leave and live in Jamaica; ii) the officer
determined that the child would have access to adequate services, support and
facilities in Jamaica; and iii) the officer used adequate and basic care as a
standard, rather than the best interests legal test.
[27]
Second, the applicants submit the officer erred
in law in applying the test of unusual, undeserved or disproportionate hardship
to those who would be affected by the applicants’ departure. The officer’s
recognition of the applicants’ community involvement as “admirable” is at odds with the officer’s conclusion
that their departure would not have a negative impact. They argue the officer
erred in fact in assuming that Kevin Anderson no longer resides with them.
Their departure would cause Mr. Anderson hardship.
[28]
Third, the applicants submit they were denied
procedural fairness due to the incompetence of their previous consultant. They
argue the officer erred in fact in concluding that the female applicant did not
articulate any hardship in not being able to complete her studies. They observe
that the consultant advised the immigration officer that he never received the
letter instructing the female applicant to validate her study permit, yet the
letter was found in the file returned to them. The consultant failed to address
the issue of hardship and disruption to the female applicant’s schooling. They
further provide that a complaint has been reported to the Immigration
Consultants of Canada.
V.
Respondent’s Written Submissions
[29]
The respondent submits an officer’s assessment
of an H&C application is generally subject to a reasonableness standard of
review (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 45, 47, 48, 49
and 53, [2008] 1 S.C.R. 190). Unlike the applicants’ submission, the respondent
argues the question as to whether the officer applied the right test in the
analysis of the best interests of the child is also determined on the standard
of reasonableness (Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at paragraph 18, [2010] FCR 360 [Kisana]; and Moya v
Canada (Minister of Citizenship and Immigration), 2012 FC 971 at paragraphs
25 and 26, [2012] FCJ No 1046).
[30]
The respondent submits section 25 of the Act,
providing for the H&C considerations, is an exceptional and discretionary
remedy (Serda v Canada (Minister of Citizenship and Immigration), 2006
FC 356 at paragraph 20, [2006] FCJ No 425). The respondent argues that it
cannot be “a back door when the front door has, after
all legal remedies have been exhausted, been denied in accordance with Canadian
law”(Mayburov v Canada (Minister of Citizenship and Immigration),
[2000] FCJ No 953 at paragraph 39, 6 Imm LR (3d) 246). The respondent quotes
paragraph 5.10 of the IP-5 Guidelines which defines the notion of “unusual and undeserved” and “disproportionate”.
[31]
First, the respondent submits that the officer’s
assessment for the best interests of the child is proper. It argues that there
is no specific “formula” that an officer is expected to follow in conducting
the best interests of the child analysis (Hawthorne v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475 at paragraph 7, [2003] 2 FC 555
[Hawthorne]; and Miller v Canada (Minister of Citizenship and
Immigration), 2012 FC 1173 at paragraph 24, [2012] FCJ No 1253 [Miller]).
Here, the officer acknowledged the applicants attempted to provide their
daughter with the best available care in Canada and considered the love and
support she would get from her parents should they reside in Jamaica; but also
found there was insufficient evidence that they would not be able to provide
her with basic necessities in Jamaica. Unlike what the applicants submitted,
the officer here did not indicate that the best interests of a child would only
be relevant where basic amenities would be denied. The best interests of a
child to reside with her parents in Canada is only one factor that must be
weighed. The respondent submits the officer reasonably considered the submissions
regarding the child’s best interests and concluded that the applicants had
failed to establish that an exemption was warranted.
[32]
Second, the respondent submits the officer
considered relevant factors when assessing the applicants’ level of
establishment and there is no merit to the applicants’ argument. The officer
considered work experience as well as community involvement. It argues that
this Court’s jurisprudence holds that hardship is inherent in having to leave
Canada after residing here for a period of time (Irimie v Canada (Minister
of Citizenship and Immigration), [2000] FCJ No 1906, 101 ACWS (3d) 995).
Here, the applicants’ allegations amount to a disagreement with how the officer
assigned weight to the various factors.
[33]
Third, the respondent submits the incompetence
of counsel alleged by the applicants is not substantially related to the
H&C application. It argues in proceedings under the Act, the incompetence
of counsel will only constitute a breach of natural justice in “extraordinary
circumstances.” The applicants must demonstrate that there is a reasonable
probability that the result would have been different, but for the incompetence
of the representative (Memari v Canada (Minister of Citizenship and
Immigration), 2010 FC 1196 at paragraph 36, [2012] 2 FCR 350; and Huynh
v Canada (Minister of Employment and Immigration), [1993] FCJ No 642 at
paragraphs 14 and 15, 65 FTR 11). The respondent argues the applicants’
allegations lack persuasive value. Here, the officer considered the female
applicant’s submissions and rejected her explanation and further observed that
there was no articulation of hardship should the female applicant be unable to
complete her studies. Also, there was no evidence submitted to the officer
demonstrating that there was no comparable institution in Jamaica. Therefore,
the respondent objects to the inclusion of any information in the applicants’
affidavit that was not before the decision-maker.
[34]
Also, the respondent submits that the applicants
will be held to the consequences of their choice of counsel (Cove v Canada
(Minister of Citizenship and Immigration), 2001 FCT 266 at paragraphs 5 and
6, [2001] FCJ No 482 [Cove]; El Ghazaly v Canada (Minister of
Citizenship and Immigration), 2007 FC 1329 at paragraph 20, [2007] FCJ No
1724; and Betesh v Canada (Minister of Citizenship and Immigration),
2008 FC 173 at paragraph 15, [2008] FCJ No 231 [Betesh]). It further
points out the alleged incompetence and negligence are only supported by the
applicants’ affidavit evidence. Any potential further omissions are clearly
speculative. The respondent submits that therefore, the applicants have not
submitted the “very clear proof” required to
establish that his former immigration consultant was incompetent.
VI.
Applicants’ Further Written Submissions
[35]
The applicants argue their allegations are not
merely a disagreement on the assigned weight of the evidence. They also argue
the incompetence of prior counsel is not only substantiated by affidavit
evidence, but also the letter that was subsequently found in the released file.
[36]
They submitted additional affidavit evidence
containing the following material: i) status update on the complaint; ii)
documents concerning Glorie-Ann, indicating that she is excelling in Canada;
iii) letters of support which they would have submitted had they been properly
informed by their prior consultant; and iv) the principal applicant is
currently counselling an innocent victim and his family involving gun violence.
VII.
Respondent’s Further Written Submissions
[37]
In the respondent’s further memorandum, it
submits as a preliminary issue that the applicants’ further affidavit contains
evidence that was not provided to the officer prior to the decision. Therefore,
it objects to the admission of this evidence.
[38]
The respondent is at issue with the applicants’
submissions on the incompetence of counsel. The respondent provides analysis
under the three elements below.
[39]
Firstly, it submits the applicants have not
complied with Federal Court Procedural Protocol. It provides that the new
protocol which came into effect on March 7, 2014 requires the applicants who
are pleading incompetence, negligence or other misconduct by their former
counsel or authorized representative as a ground for relief must: “1) satisfy themselves that there is some factual foundation
for the allegation; and 2) notify the former counsel or authorized
representative in writing with sufficient details of the allegations and advise
that the matter will be pled in an application described above.” This is
to provide notice to counsel and an opportunity to respond (Vieira v Canada
(Minister of Public Safety and Emergency Preparedness), 2007 FC 626 at
paragraph 29, [2007] FCJ No 848 [Vieira]). The respondent argues that
although the application was initiated prior to this date, leave was granted in
September 2014, after the protocol was implemented. It observes that it is
unclear if the applicants served a copy of the perfected application to their
prior consultant. Therefore, the respondent argues the applicants should not be
allowed to rely on the argument of incompetence of counsel.
[40]
Secondly, the respondent submits the performance
requirement is not met for a breach of natural justice. Without the benefit of
an actual finding from a disciplinary committee regarding the applicants’
complaint, there is insufficient evidence in this case to base a finding of
incompetence (Dukuzumuremyi v Canada (Minister of Citizenship and
Immigration), 2006 FC 278 at paragraphs 9 and 10, [2006] FCJ No 349 [Dukuzumuremyi]).
It is a high threshold. In Odafe v Canada (Minister of Citizenship and
Immigration), 2011 FC 1429 at paragraphs 8 and 9, [2011] FCJ No 1762 and Teganya
v Canada (Minister of Citizenship and Immigration), 2011 FC 336 at
paragraphs 29, 30 and 37, [2011] FCJ No 430, this Court ruled this high
threshold was not met despite the mistake made by prior counsel.
[41]
Thirdly, the respondent submits the outcome
would not have been different (R v GDB, 2000 SCC 22 at paragraphs 27 to
29, [2000] 1 S.C.R. 520 [GDB] ) as to entitle the applicants to relief
because the incompetence of counsel alleged by the applicants is not
substantially related to the H&C application.
VIII.
Applicants’ Letter Reply
[42]
The applicants faxed a letter to this Court
providing email proof that communication was made to the prior consultant
pertaining to this case. They state the requirement for the new protocol has
been met.
IX.
Analysis and Decision
A.
Issue 1 - Is the evidence from the further
affidavit admissible?
[43]
The applicants’ further affidavit provides four
additions to the evidence: i) status update on the complaint; ii) documents
concerning Glorie-Ann indicating that she is excelling in Canada; iii) the
letters of support that would have been provided to the officer had the
applicants been advised by their previous consultant following his conversation
with the officer; and iv) the principal applicant is currently counselling an innocent
victim and his family involving gun violence.
[44]
An application for judicial review is limited to
a review of the evidence that was before the decision-maker (Tabanag v
Canada (Minister of Citizenship and Immigration), 2011 FC 1293 at paragraph
14, [2011] FCJ No 1575 [Tabanag]; Mahouri v Canada (Minister of
Citizenship and Immigration), 2013 FC 244 at paragraph 14, [2013] FCJ No
278 [Mahouri]; and Isomi v Canada (Minister of Citizenship and
Immigration), 2006 FC 1394 at paragraph 6, [2006] FCJ No 1753 [Isomi]),
except where a breach of procedural fairness is alleged.
[45]
First, the information related to the status
update on the complaint process goes to proving the applicants’ allegation of
incompetence of counsel. This allegation arose after the decision-maker had
made the determination. I see no reason to not admit this piece of evidence;
therefore, I would allow it to be admitted.
[46]
Second, the documents concerning Glorie-Ann were
not in front of the decision-maker. This evidence should have been submitted as
a part of the applicants’ H&C application. It is not my role to review
evidence that was not before the decision-maker. Therefore, this evidence is
not admissible.
[47]
Third, the letters of support that form part of
the applicants’ claim of hardship were not in front of the decision-maker. The
applicants claim they failed to submit this evidence due to the incompetence of
their prior consultant. This evidence thereby goes to proving the applicants’
allegation of incompetence of counsel in the context of procedural fairness. I
would therefore allow it to be admitted and consider it in my analysis below.
[48]
Fourth, the information regarding the principal
applicant counselling an innocent victim and his family involving gun violence
was not in front of the decision-maker. It is not my role to review evidence
that was not before the decision-maker. Therefore, this evidence is not
admissible.
B.
Issue 2 - What is the standard of review?
[49]
Where previous jurisprudence has determined the
standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (Dunsmuir at paragraph 57).
[50]
The issue of counsel incompetence in the context
of procedural fairness is reviewable on a standard of reasonableness (GDB
at paragraph 27):
Incompetence is determined by a
reasonableness standard. The analysis proceeds upon a strong presumption that
counsel’s conduct fell within the wide range of reasonable professional
assistance. The onus is on the appellant to establish the acts or omissions of
counsel that are alleged not to have been the result of reasonable professional
judgment. The wisdom of hindsight has no place in this assessment.
[51]
For questions of fact or mixed fact and law
decided on an H&C grounds application, the standard is reasonableness (Mikhno
v Canada (Minister of Citizenship and Immigration), 2010 FC 386 at
paragraphs 21 to 23; [2010] FCJ No 583; Singh v Canada (Minister of
Citizenship and Immigration), 2009 FC 11 at paragraphs 21 and 37; [2009]
FCJ No 4; Dunsmuir at paragraph 53; and Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 57 to 62,
[1999] SCJ No 39 [Baker]).
[52]
As for the assessment of the best interests of
the child, in Miller, Mr. Justice David Near found at paragraph 15: “[w]hether the Officer applied the correct legal test is a
legal question, to be reviewed on the standard of correctness. The Officer’s
conclusions, however, on the best interests of the children will be reviewed on
a standard of reasonableness.”
[53]
The standard of reasonableness means that I
should not intervene if the decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (Dunsmuir at paragraph 47; and
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph
59, [2009] 1 S.C.R. 339 [Khosa]). As the Supreme Court held in Khosa
at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute
its own view of a preferable outcome, nor can it reweigh the evidence.
C.
Issue 3 - Was the applicants’ prior counsel
incompetent as to deny them procedural fairness?
[54]
The new protocol which came into effect on March
7, 2014, “Re Allegations Against Counsel or Other Authorized Representative in
Citizenship, Immigration and Protected Person Cases before the Federal Court” requires
the applicants who are pleading incompetence, negligence or other misconduct by
their former counsel or authorized representative as a ground for relief must: “… satisfy him/herself, … that there is some factual
foundation for this allegation” and “… notify
the former counsel or authorized representative in writing with sufficient
details of the allegations and advise that the matter will be pled in an
application described above.” This is to provide notice to counsel and
an opportunity to respond (Vieira at paragraph 29).
[55]
In this case, the applicants have provided
factual foundation for their allegation of incompetence of their prior consultant.
Also, they have provided email proof that communication was made to the prior
consultant pertaining to this allegation.
[56]
Therefore, in my opinion, the applicants have
complied with the Federal Court Procedural Protocol. Below, I will examine the
merits of the applicants’ allegation of incompetence of counsel.
[57]
In GDB, the Supreme Court of Canada
reviewed the test in examining counsel incompetence in the context of
procedural fairness. It is twofold: i) the performance component; and ii) the
prejudice component.
26 The approach to an ineffectiveness
claim is explained in Strickland v. Washington, 466 U.S. 668 (1984), per
O’Connor J. The reasons contain a performance component and a prejudice
component. For an appeal to succeed, it must be established, first, that
counsel’s acts or omissions constituted incompetence and second, that a
miscarriage of justice resulted.
[…]
28 Miscarriages of justice may take
many forms in this context. In some instances, counsel’s performance may have
resulted in procedural unfairness. In others, the reliability of the trial’s
result may have been compromised.
29 In those cases where it is
apparent that no prejudice has occurred, it will usually be undesirable for
appellate courts to consider the performance component of the analysis. The
object of an ineffectiveness claim is not to grade counsel’s performance or
professional conduct. The latter is left to the profession’s self-governing
body. If it is appropriate to dispose of an ineffectiveness claim on the ground
of no prejudice having occurred, that is the course to follow (Strickland,
supra, at p. 697).
[Emphasis added]
[58]
First, I will examine the performance component.
The onus is on the applicants to establish that the acts or omissions of
counsel fall outside of reasonable professional judgment (GDB at
paragraph 27).
[59]
In the present case, the applicants state that
the consultant advised the immigration officer that he never received the
letter instructing the female applicant to validate her study permit, yet the
letter was found in the file returned to the applicants. The consultant failed
to address the issue of hardship and disruption to schooling. The applicants
further provide that a complaint has been reported to the Immigration
Consultants of Canada and the latest update provides that this complaint is
being processed. This, to me, is a clear indication of negligence by counsel.
[60]
Second, for the performance component to matter
in the context of procedural fairness, this incompetence has to establish
prejudice. In order to be successful in an allegation of incompetence of
counsel, there must be an exceptional case where “counsel’s
alleged failure to represent or alleged negligence are obvious on the face of
the record and have compromised a party’s right to a full hearing” (Dukuzumuremyi
at paragraph 18).
[61]
The respondent argues the incompetence of
counsel alleged by the applicants is not substantially related to the H&C
application. I disagree. Although the female applicant’s study permit might not
have impacted the officer’s overall determination, the evidence in the further
affidavit on the hardship element is substantially related to the application.
[62]
Nonetheless, I find the present case is
analogous to Betesh where the evidence is insufficient to provide that
the result might be different. Here, I am not satisfied that the applicants
have presented sufficient evidence to warrant a new hearing. First, they have
not shown the result might have been different if the officer had considered
the additional letters of support they submitted in the further affidavit.
Second, the letters of support are similar to the ones they have previously
submitted.
[63]
Therefore, I find the alleged incompetence of
counsel does not establish a breach of procedural fairness.
D.
Issue 4 - Did the Board misunderstand the test
for the best interests of the child assessment?
[64]
I agree with the respondent that there is no
specific “formula” that an officer is expected to follow in conducting the best
interests of the child analysis (Hawthorne at paragraph 7; and Miller
at paragraph 24). In my opinion, the best interests of the child assessment is
better examined based on the reasonableness of the officer’s analysis.
[65]
Mr. Justice Near reviewed in Miller the
jurisprudence on the test for the best interests of the child assessment:
24 This Court has established that “what
is required when conducting a best interests of the child analysis in an
H&C context is an assessment of the benefit the children would receive if
their parent was not removed, in conjunction with an assessment of the hardship
the children would face if their parent was removed or if the child was to
return with his or her parent” (Segura v Canada (Minister of Citizenship and
Immigration), 2009 FC 894, [2009] F.C.J. No. 1116 at para 32; Hawthorne
v Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2002]
F.C.J. No. 1687 at para 4). The obligation of officers to be “alert, alive
and sensitive” to the best interests of the children has further been
described as demonstrating “an awareness of the child’s best interests by
noting the ways in which those interests are implicated” (Segura, above,
at para 34; Kolosovs v Canada (Minister of Citizenship and Immigration),
2008 FC 165, [2008] F.C.J. No. 211 at para 9). Form is not to be elevated above
substance when reviewing an officer’s determination of the best interests of
the child.
[Emphasis added]
[66]
Therefore, I will examine the officer’s
assessment of the best interests of the child in the context of the “alert, alive and sensitive” requirement below.
E.
Issue 5 - Was the Board’s decision reasonable?
[67]
I find the officer’s decision was reasonable.
The officer’s analyses of establishment, hardship and best interests of the
child were transparent and intelligible.
[68]
Section 25(1) of the Act governs the determination
for an H&C application. It states:
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25. (1) Subject
to subsection (1.2), the Minister must, on request of a foreign national in
Canada who applies for permanent resident status and who is inadmissible —
other than under section 34, 35 or 37 — or who does not meet the requirements
of this Act, and may, on request of a foreign national outside Canada — other
than a foreign national who is inadmissible under section 34, 35 or 37 — who
applies for a permanent resident visa, examine the circumstances concerning
the foreign national and may grant the foreign national permanent resident
status or an exemption from any applicable criteria or obligations of this
Act if the Minister is of the opinion that it is justified by humanitarian
and compassionate considerations relating to the foreign national, taking
into account the best interests of a child directly affected.
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25. (1) Sous
réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se
trouvant au Canada qui demande le statut de résident permanent et qui soit
est interdit de territoire — sauf si c’est en raison d’un cas visé aux
articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit
de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de
résident permanent, étudier le cas de cet étranger; il peut lui octroyer le
statut de résident permanent ou lever tout ou partie des critères et
obligations applicables, s’il estime que des considérations d’ordre
humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt
supérieur de l’enfant directement touché.
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[69]
Insofar as establishment is concerned, I find
the officer’s determination was reasonable. The officer considered the
applicants’ work experience as well as community involvement. Here, the officer’s
reasoning was transparent and intelligible. I agree with the respondent that
the applicants’ allegations amount to a disagreement with how the officer
assigned weight to the various factors submitted by the applicants. Therefore,
it is not my role to reweigh the evidence.
[70]
Insofar as hardship is concerned, I find the
officer was reasonable in the determination. The applicants submit the officer
erred in fact to assume that Mr. Anderson no longer resided with the
applicants. If the applicants were to leave, this would result in hardship for
Mr. Anderson. However, it is the applicants’ duty to establish hardship.
Although the officer’s assumption did not align with the factual situation, I
can understand why the officer made the determination in light of the letter
being two years old. The officer was not unreasonable to make this assumption
in the absence of a more recently dated letter of support.
[71]
Further, although the applicants submit the
officer erred in law in applying the test of unusual, undeserved or
disproportionate hardship to those who would be affected by the applicants’
departure, they do not explain what errors in law the officer made. I find,
rather, their arguments establish the errors in fact.
[72]
Therefore, I find the officer’s assessments of
establishment and hardship were reasonable.
[73]
Next, I find the officer’s assessment of the
best interests of the applicants’ child was reasonable.
[74]
A child’s best interests are an important factor
to be given substantial weight; however, it will not necessarily be the determining
factor in every case (Kolosovs v Canada (Minister of Citizenship and
Immigration), 2008 FC 165 at paragraph 8, [2008] FCJ No 211).
[75]
Baker at
paragraph 75 states that an H&C decision will be unreasonable if the
decision-maker does not adequately consider the best interests of the children
affected by the decision, and requires the decision-maker to be “alert, alive and sensitive” to these interests:
The principles discussed above indicate that
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.
[Emphasis added]
[76]
Mr. Justice Douglas Campbell defined the meaning
of “alert, alive and sensitive” in the case of Kolosovs
at paragraph 9:
The word alert implies awareness.
When an H&C application indicates that a child that will be directly
affected by the decision, a visa officer must demonstrate an awareness of
the child’s best interests by noting the ways in which those interests are
implicated.
[Emphasis added]
[77]
Also, Justice Campbell reviewed the Guidelines:
IP5 Immigrant Applicants in Canada made on Humanitarian or Compassionate
Grounds at paragraph 9 of Kolosovs:
5.19. Best interests of the child
The Immigration and Refugee Protection Act
introduces a statutory obligation to take into account the best interests of a
child who is directly affected by a decision under A25(1), when examining the
circumstances of a foreign national under this section. This codifies
departmental practice into legislation, thus eliminating any doubt that the
interests of a child will be taken into account. Officers must always be alert
and sensitive to the interests of children when examining A25(1) requests.
However, this obligation only arises when it is sufficiently clear from the
material submitted to the decision-maker that an application relies, in whole
or at least in part, on this factor.
…
Generally, factors relating to a child’s
emotional, social, cultural and physical welfare should be taken into account,
when raised. Some examples of factors that applicants may raise include:
•
the age of the child;
•
the level of dependency between the child and
the H&C applicant;
•
the degree of the child's establishment in
Canada;
•
the child's links to the country in relation to
which the H&C decision is being considered;
•
medical issues or special needs the child may
have;
•
the impact to the child's education;
•
matters related to the child's gender.
[78]
The element of “alive” was analyzed by Justice
Campbell at paragraph 11 in Kolosovs, that the best interests factors
need to be considered accumulatively:
Once an officer is aware of the best
interest factors in play in an H&C application, these factors must be
considered in their full context and the relationship between the factors and
other elements of the fact scenario concerned must be fully understood. Simply
listing the best interest factors in play without providing an analysis on
their inter-relationship is not being alive to the factors. In my opinion, in
order to be alive to a child’s best interests, it is necessary for a visa
officer to demonstrate that he or she well understands the perspective of each
of the participants in a given fact scenario, including the child if this can
reasonably [be] determined.
[Emphasis added]
[79]
In Kolosovs, Justice Campbell defined the
element of sensitivity at paragraph 12 as a clear articulation of the suffering
of a child from a negative decision:
It is only after a visa officer has gained a
full understanding of the real life impact of a negative H&C decision on
the best interests of a child can the officer give those best interests
sensitive consideration. To demonstrate sensitivity, the officer must be able
to clearly articulate the suffering of a child that will result from a
negative decision, and then say whether, together with a consideration of other
factors, the suffering warrants humanitarian and compassionate relief.
[Emphasis added]
[80]
Here, I find the officer’s reasoning about the
best interests of the child does display the requirements of being “alert, alive and sensitive.” I am satisfied that the
officer understood the perspective of the child and that the officer was aware
of the applicants’ interests and the impact that a refusal of the H&C
application could have on her future.
[81]
In particular, the officer acknowledged the
applicants attempt to provide their daughter with the best available care in
Canada and considered the love and support she would get from her parents
should they reside in Jamaica, but also found there was insufficient evidence
that they would not be able to provide her with basic necessities in Jamaica.
The officer found if the child resides in Jamaica, it would not result in a
significant negative impact to her well-being.
[82]
Further, I disagree with the applicants’ reading
of the officer’s analysis. The officer did not use adequate and basic care as a
standard. In my view, the officer considered the level of care the applicants’
child would likely receive should she return to Jamaica with her parents.
[83]
Therefore, I find the officer’s assessment of
the best interests of the child was reasonable.
[84]
Cumulatively, I find the officer’s decision was
reasonable.
[85]
For the reasons above, I would deny this
application.
[86]
The applicants submitted the following proposed
serious question of general importance for my consideration for certification:
Given the Federal Court Protocol on
allegations of negligence by previous counsel issued March 4, 2014, should the
Court take into account the results and findings of complaints to the ICCRC?
[87]
The respondent opposes the certification of this
question.
[88]
I have considered the submissions of counsel and
the guidelines set out in Canada (Minister of Citizenship and Immigration)
v Liyanagamage, [1994] FCJ No 1637 at paragraphs 4 to 6, 176 NR 4. In my
view, the question would not be dispositive of the appeal as no finding of negligence
has yet been made. The matter is only proceeding to a hearing. Therefore, I
will not certify the proposed question.
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