Docket: IMM-3821-14
Citation:
2015 FC 642
Ottawa, Ontario, May 19, 2015
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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LUCIANNA CELISE
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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]
In this application for judicial review brought
under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], Lucianna Celise challenges the decision of a Senior
Immigration Officer to reject her application for permanent residence on
humanitarian and compassionate [H&C] grounds. For the reasons that follow,
this application is dismissed.
I.
Background
[2]
The applicant is a citizen of Saint Lucia. She entered Canada on April 14, 2001 and made a refugee claim more than ten years
later, in October 2010. As it was being processed, she had a daughter, who is a
Canadian citizen.
[3]
The Refugee Protection Division rejected the
applicant’s refugee claim in May 2012. There is no indication in the record of
an application for judicial review of that decision.
[4]
The applicant submitted an H&C application
on June 18, 2012 without the assistance of counsel. The application provided
very little information about the applicant’s personal circumstances.
[5]
Ms Celise wrote she was living with a cousin in Toronto. In 2011, the applicant’s mother came to Canada to help her raise her daughter. The
applicant described herself as “being in a relationship”
but said nothing about the involvement of the father in her daughter’s life. She
had worked as a baby sitter but was on social assistance at the time of the
application. Her community involvement was limited to membership in a church
and donating to the Sick Kids Foundation.
[6]
The applicant’s explanation of the humanitarian
and compassionate reasons that prevented her from leaving Canada was brief:
If I were to live Canada and go back to my
country I would not have a comfortable home for me and my daughter to stay,
because my mom and most of my family member lost homes as a result of hurricane
Tomas which hit the island on October 30, 2010.
My mom also lost her only source of income
as a local farmer because her banana plants were also destroyed by the
hurricane.
[7]
Ms Celise further wrote that her main goal was
to do the best for her daughter. She asked for a chance to raise her child in Canada where she could enjoy the great advantages of being a Canadian.
[8]
By decision dated March 28, 2014, the Officer
rejected the H&C application. Ms Celise applied for leave and judicial
review thereafter. While the leave application was pending, the Court stayed
her removal from Canada.
[9]
In the decision under review, the Officer
observes that the applicant bore the onus of proving that her personal
circumstances are such that the hardship of having to obtain a permanent visa
from outside Canada in the normal manner would be unusual and undeserved or
disproportionate.
[10]
The Officer recalls that the Refugee Protection
Division rejected the applicant’s refugee claim. Pursuant to subsection 25(1.3)
of the IRPA, he will not consider those risk allegations when deciding
whether to grant an H&C exemption. Despite saying this, the Officer
immediately discusses those risks. He acknowledges the abuse suffered by the
applicant in Saint Lucia but concludes that there is insufficient evidence that
anyone is still interested in harming her 14 years later. Furthermore, she
could benefit from the assistance of a functioning police and judicial system
and various nongovernmental organizations in Saint Lucia.
[11]
The Officer considers the applicant’s statements
and photographs pertaining to the damage a hurricane caused to her family home
in Saint Lucia in 2010. The applicant did not state whether or not the home has
been repaired. Moreover, the applicant’s mother continued to reside in that
home until she came to Canada in 2011. There is insufficient evidence to
establish that the applicant could not obtain adequate living arrangements in Saint Lucia, while awaiting the normal processing of her application for permanent
residence. The purpose of H&C discretion is not to facilitate convenience.
In the Officer’s view, the applicant did not establish that she would face
unusual and undeserved or disproportionate hardship if she were to relocate to Saint Lucia.
[12]
The Officer next considers the applicant’s
establishment in Canada. He concludes that she is an adaptable and resourceful
individual who has succeeded in resettling abroad. Returning to Saint Lucia will pose some hardship but she would not be returning to an unfamiliar place,
language or culture. Her establishment in Canada is not beyond the normal
degree one would have expected.
[13]
The Officer concludes with the best interests of
the child [BIOC]. The applicant’s three year old daughter is a Canadian citizen
who has never visited Saint Lucia. The applicant provided no evidence about
custodial arrangements with the child’s father. The Officer understands that
his decision will mean that the applicant will have to make a choice: “No matter the decision, it will mean that Ashley may face
long-term separation from one of her parents.” Neither situation is
ideal but it is not contrary to her best interests: “Although
in many cases the presence of two loving parents in the family is considered
desirable, families exist in many forms, some through necessity and others
through choice.” Being raised by a single parent who provides a safe and
loving environment is not contrary to the child’s best interests. Should the
child go to Saint Lucia with her mother, she would also be surrounded by other
family members. The Officer explains that the child is young, so the impact of
relocation outside of Canada with her mother should be minimal. There is no
evidence that the child will be denied access to education, medicine or other
social services.
[14]
Upon consideration of the BIOC and the personal
circumstances of the applicant, the Officer concludes that H&C
considerations do not justify granting an exemption.
II.
Issue
[15]
The determinative issue before the Court is
whether the Officer erred in his analysis of the best interests of the child.
III.
Standard of Review
[16]
The applicant submitted that the Officer’s
choice of legal test is reviewable on correctness, while his application of the
test to the facts is reviewable on reasonableness. The respondent countered
that the standard of reasonableness should govern the entire application.
[17]
I agree with the applicant. As I recently
explained in Gonzalez v Canada (Citizenship and Immigration), 2015 FC
382 at paras 23-35, I do not interpret recent appellate authorities as
overturning the well-established principle that an Officer’s choice of a legal
test in the H&C context should be reviewed on correctness. It is
uncontroversial that the application of the proper test to the facts is
reviewable on reasonableness. While Gonzalez only involved a hardship
analysis, the jurisprudence makes no distinction between that analysis and the
BIOC analysis with respect to the standard of review: see Williams v Canada (Citizenship and Immigration), 2012 FC 166 at para 22.
IV.
Submissions of the Parties
[18]
The applicant argued strenuously that the
Officer applied the wrong legal test when assessing the BIOC. In her view, the
Officer’s analysis was erroneously rooted in hardship, even though the courts
have proclaimed that children will rarely deserve hardship: Williams; Singh
Sahota v Canada (Citizenship and Immigration), 2011 FC 739; Canada
(Minister of Citizenship and Immigration) v Hawthorne, 2002 FCA 475 at
paras 4, 32-33 and 40-41 [Hawthorne]; Beharry v Canada (Citizenship
and Immigration), 2011 FC 110; Sinniah v Canada (Citizenship and
Immigration), 2011 FC 1285; Mangru v Canada (Citizenship and
Immigration), 2011 FC 779; Pearson v Canada (Citizenship and
Immigration), 2011 FC 981.
[19]
According to the applicant, it is a reviewable
error to conclude that removal is not against the BIOC simply because the child
may have access to the basic amenities of life outside of Canada: Sebbe v Canada (Citizenship and Immigration), 2012 FC 813 at paras 13-18. It is also
a reviewable error for the Officer to fail to consider the impact of
non-removal on the child’s best interests: Joseph v Canada (Citizenship and Immigration), 2013 FC 993 at paras 15-20 and 23-24.
[20]
The applicant further submitted that the Officer
not only erred in his choice of legal test but also assessed the BIOC
unreasonably. She contended that a BIOC analysis must begin with what a child
has in Canada and what the child might lose by leaving the country with a
parent: Hawthorne, above, at para 41; Williams, above, at paras
63-64; Pokhan v Canada (Citizenship and Immigration), 2012 FC 1453 at
paras 12-15; Judnarine v Canada (Citizenship and Immigration), 2013 FC
82 at paras 45-48; Dina v Canada (Citizenship and Immigration), 2013 FC
216 at paras 8-11; Begum v Canada (Citizenship and Immigration), 2013 FC
824 at paras 52-63; Thomas v Canada (Citizenship and Immigration), 2012
FC 1517 at paras 27-32.
[21]
The applicant submitted that the Officer erred in
finding that the BIOC would be met if the child were to accompany her mother to
Saint Lucia. He never considered whether the BIOC would be better met by
allowing the child to remain in Canada with the applicant. He unreasonably dismissed
evidence that the applicant’s home was damaged by a hurricane. Finally, he
erred in speculating that the applicant has family members who can help her
look after her daughter in Saint Lucia. Her application made clear that her
mother now lives in Canada and did not mention any other family members in Saint Lucia.
[22]
The respondent countered that the Officer did
not subsume the BIOC analysis into a hardship analysis. Nor did the Officer
conclude that the BIOC would be met in Saint Lucia simply because the child
would have the basic amenities of life. To the contrary, argued the respondent,
the Officer considered various factors relevant to the BIOC, namely: the
applicant is the child’s primary caregiver; there is no evidence of the
father’s involvement with the child; and the child should be able to adjust to
life in Saint Lucia. The Officer did not conduct a hardship analysis either in
form or in substance.
[23]
The respondent also expressed the view that Williams
does not create a binding legal test: Webb v Canada (Citizenship and
Immigration), 2012 FC 1060 at para 13; Kobita v Canada (Citizenship and Immigration), 2012 FC 1479 at para 50; Diaz v Canada (Citizenship and Immigration), 2015 FC 373 at paras 24-25. The respondent observed that
in Hawthorne, above, at para 7, the Federal Court of Appeal held that
there is no “magic formula” for assessing the
BIOC.
[24]
According to the respondent, the applicant
provided insufficient evidence to substantiate her allegation that her family
home in Saint Lucia is uninhabitable and that she would be unable to secure
housing elsewhere if that were the case. Finally, any error about the presence
of family members in Saint Lucia, including the mother, was immaterial to the
decision.
V.
Analysis
[25]
I have concluded that the Officer committed no
reviewable error.
[26]
The starting point for any BIOC analysis is the
statement provided by the Supreme Court in Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75: “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”.
[27]
The Federal Court of Appeal provided further
guidance in Hawthorne. The majority reasons did not hesitate to speak of
“hardship” when analyzing the BIOC. In
particular, Justice Décary wrote the following at paras 4-7:
[4] The “best interests of the child” are
determined by considering the benefit to the child of the parent’s non-removal
from Canada as well as the hardship the child would suffer from either her
parent’s removal from Canada or her own voluntary departure should she wish to
accompany her parent abroad. Such benefits and hardship are two sides of the
same coin, the coin being the best interests of the child.
[5] … 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.
[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.
[7] …When this Court in Legault
stated at paragraph 12 that the best interests of the child must be “well
identified and defined”, it was not attempting to impose a magic formula
to be used by immigration officers in the exercise of their discretion.
[Emphasis added]
[28]
In Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189, Justice Nadon endorsed the majority
reasons in Hawthorne. The parties have not identified any decision from
the Court of Appeal which has expressed reservations with them.
[29]
However, the applicant has correctly referred to
cases from this Court which require something more of Officers deciding H&C
applications. Specifically, my colleague Justice Russell made the following
comments in Williams, above, at paras 63-64:
[63] 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.
[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?”
[All emphasis in the original]
[30]
Numerous cases have followed Williams and
infirmed H&C decisions which did not use the formula it prescribes. While
these decisions often rely on the passage found in Hawthorne, above, at
para 9, to the effect that “[c]hildren will rarely, if
ever, be deserving of any hardship”, they appear to disregard the Hawthorne
majority’s other comments made at paras 4-7. I do not read Hawthorne as
providing any authority for the test created in Williams. To the
contrary, the Court of Appeal cautioned that there is no “magic formula” for an H&C assessment. Its comment
at paragraph 9 was simply intended to explain that “unusual
and undeserved or disproportionate hardship” is not a technical term and
that it can be applied flexibly to children, who quite obviously never deserve
hardship. In my view, it was not an invitation to scuttle the hardship analysis
altogether when children are involved.
[31]
This Court has not consistently applied the Williams
test. I have already expressed the view that it may be a useful guideline but
that it is not mandated by the governing authorities: Webb, above, at
para 13. Justice Rennie (then a member of this Court) made the same point in Beggs
v Canada (Citizenship and Immigration), 2013 FC 903 at para 10. In Diaz,
above, at paras 24-25, Justice Brown observed that “mention
of “hardship” in the course of an analysis of the BIOC is not enough to set
aside the finding”, and that “even focusing on
hardship may not trigger judicial review”.
[32]
In sum, I maintain the view that the Williams
formula is not required by the legislative text or the appellate authorities. I
am also concerned that it may reduce the BIOC analysis to a pro forma requirement,
since the BIOC would almost always favour a grant of H&C relief at the
first step. Consequently, all that would be required of Officers at that step
would be the rote repetition that the BIOC favours non-removal. The real work
would have to be done at the second step, i.e. weighing the BIOC against
countervailing considerations.
[33]
In my respectful opinion, this approach is insensitive
to context. It analogizes cases where children face serious emotional and
physical suffering with cases where children face nothing more than removal to
a less developed country in the company of competent parents. If the latter
scenario were sufficient for a grant of H&C relief – or at least a
presumption that such relief should be granted, unless there are exceptional
countervailing factors at the second step – the problem identified by Justice
de Montigny in Serda v Canada (Citizenship and Immigration), 2006 FC 356
at para 31 would materialize rather quickly:
…the fact that Canada is a more desirable place to live is
not determinative on an H & C application (Vasquez v. Canada (M.C.I.),
2005 FC 91; Dreta v. Canada (M.C.I.), 2005 FC 1239); if it were
otherwise, the huge majority of people living illegally in Canada would have
to be granted permanent resident status for Humanitarian and Compassionate
reasons. This is certainly not what Parliament intended in adopting section
25 of the Immigration and Refugee Protection Act.
[Emphasis added]
[34]
Since the Williams formula is not mandatory, the
Officer committed no reviewable error. He performed a reasonable BIOC analysis
which took various relevant factors into account. Any imperfections in his
analysis can be remedied by reference to the record: Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62.
[35]
Indeed, the record reveals that the applicant submitted very little
evidence to the decision-maker in support of all aspects of her application,
including the BIOC. As the Court of Appeal held in Owusu v Canada (Minister
of Citizenship and Immigration), 2004 FCA 38 at para 5, “an applicant has the burden of adducing
proof of any claim on which the H & C application relies”. In light of the scant evidence provided overall and, in
particular, the deficient evidence on the involvement of the child’s father in
her life and the condition of the house in Saint Lucia, the Officer rendered a
reasonable decision.
[36]
As I noted above, the applicant was
self-represented when she completed her H&C application. At the hearing,
her counsel relied on Sebbe, above, at para 13 to argue that the Officer
should have taken on the role of parens patriae with respect to the
child, and solicited additional information on her circumstances, before
rendering his decision. With respect, I decline to follow Sebbe on this
point. No jurisprudential or doctrinal authority was cited for the proposition.
In fact, in Kisana, above, at para 37, the Court of Appeal warned that
analogies between immigration law and other areas of the law with respect to
the BIOC analysis are often inapposite. And as has often been stated, the onus
rests on the applicant to provide sufficient information upon which the Officer
may make a decision as to whether the grounds for an exemption have been made
out.
[37]
Counsel for the applicant also argued that the
Officer erred by failing to consider the possibility that she might remain in
Canada and the benefits that such a decision would confer to her child. In
support of his argument, he pointed to Pokhan, above, at para 14. It is
true that the Officer’s language can be read in this way. However, despite the
quality of counsel’s oral submissions, I cannot conclude that the Officer
committed a reviewable error. In Hawthorne, above, at para 5, the Court
of Appeal explained:
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.
[Emphasis added]
[38]
The Officer’s reasons withstand scrutiny in
light of this presumption. He can be understood to have decided that, although
remaining in Canada with her mother would accord with the child’s best
interests, those interests would not be compromised by her mother’s removal to
such an extent that the removal ought to be avoided, in light of the factors
favouring removal. Once again, the fact that it might be more desirable for a
child to live in Canada as opposed to another country cannot establish a
presumption that an H&C application ought to be approved.
[39]
Contrary to the applicant’s assertion, her
H&C application did mention the presence of other family members in Saint Lucia. She wrote: “my mom and most of my family member [sic]
lost homes”, thus implying that other relatives live in that country. In
any event, the Officer’s erroneous assumption that her mother still resides in Saint Lucia was not determinative to his BIOC analysis or his analysis of the hardship
faced by the applicant herself. The other factors considered by the Officer support
the outcome he reached.
[40]
In the result, I am satisfied that the Officer
gave due consideration to the information provided by the applicant and that
there was no need for him to solicit further information in the circumstances.
His conclusion that H&C relief was unwarranted falls within the range of
acceptable outcomes that are defensible in respect of the facts and the law.
VI.
Conclusion
[41]
This application is dismissed.
[42]
The respondent proposed a question for
certification irrespective of the outcome. With minor stylistic and grammatical
modifications, the question reads as follows:
In a best interests of the child analysis,
is an Officer required first to explicitly establish what the child’s best
interests are, and then to establish the degree to which the child’s interests
are compromised by one potential decision over another, in order to show that
the Officer has been alert, alive and sensitive to the best interests of the
child?
[43]
The applicant opposed the certification of this
question. .
[44]
In light of the outcome, I believe it is
appropriate to certify the question proposed by the respondent. In essence, it
asks whether an Officer conducting a BIOC analysis is bound by the formula
established in Williams and followed by this Court in certain cases but
not others. It is a serious question of general importance because there is
uncertainty as to the law on the appropriate BIOC test. Hawthorne has
not received a consistent interpretation in the subsequent jurisprudence. Furthermore,
the question would be dispositive of an appeal, since the Officer did not apply
the Williams formula in the decision under review. If that formula were
mandatory, the applicant could succeed in establishing a reviewable error.
[45]
This case is distinguishable from others where
the Court declined to certify a similar question, either because the Officer
committed a reviewable error that was not connected to the Williams
formula (e.g. Webb) or because the Officer did employ the Williams
formula in rendering a negative decision which was upheld (e.g. Martinez
Hoyos v Canada (Citizenship and Immigration), 2013 FC 998).
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