Docket: IMM-4082-13
Citation:
2015 FC 689
Ottawa, Ontario, June 1, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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FATMIR QOSAJ
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DONIKE SHYTI
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ROVENA QOSAJ
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ERALDA QOSAJ
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ELSA QOSAJ
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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 and returning the matter to a different officer for
redetermination.
I.
Background
[3]
The applicants are a family from Albania; a
couple with their three daughters (4, 6 and 7 years old). The daughters are
American citizens born in the United States.
[4]
In 2000, the principal applicant and his spouse
fled to the U.S. due to a family feud that began in 1998. While in the U.S.,
they had three daughters (the minor applicants). The principal applicant and
his spouse made asylum claims in the U.S., but they were rejected.
[5]
On February 19, 2012, the principal applicant
came to Canada and made a claim for refugee protection on the same day. His
wife arrived in Canada in November 2011 and their children arrived in Canada in
December 2011. On June 25, 2012, they submitted an H&C application.
[6]
The applicants’ claim for refugee protection has
not yet been determined.
II.
Decision Under Review
[7]
In a decision dated May 31, 2013, the officer
rejected the applicants’ H&C application.
[8]
The applicants presented the following factors
for consideration: degree of establishment, best interests of the children and
hardship due to the family blood feud in Albania. For establishment, the
applicants submitted employment letters and letters of support from friends.
For best interests of the children, the applicants submitted that if returned
to Albania, the children would be sequestered at home due to the blood feud and
would endure psychological trauma. For hardship, they submitted they would be
forced into self-confinement due to the family feud.
[9]
Based on the evidence submitted, the officer
made the following findings.
[10]
First, the officer observed the applicants’
level of establishment in Canada and found the level was not unusual for individuals
who have resided here since February 2012.
[11]
Second, the officer observed since the
applicants have not provided any documents to establish the family feud, the
officer did not give full weight to their descriptions of hardship arising from
the family feud. The officer therefore gave little positive consideration to
this factor.
[12]
Third, the officer stated since the applicants
have provided little evidence to demonstrate that the family is currently
involved in a blood feud, it gave little weight to the statements that the
children would be in self-confinement at home and unable to attend school and
the applicants would not be able to find employment to provide for their
children if they were to return to Albania.
[13]
The officer also noted the children, although
not proficient in the Albanian language, would have their parents and other
family in Albania to assist with their language skills. As for the alleged
psychological trauma, the officer acknowledged the stressful situation which
returning to Albania might create, but found the children have demonstrated
their adaptation skills in Canada. The officer also noted they would have
support from other family members.
[14]
Therefore, the officer found the applicants
would not face unusual and undeserved or disproportionate hardship in order to
be granted an exemption on H&C grounds.
III.
Issues
[15]
The applicants raise three issues for my
consideration:
1.
Did the officer fail to properly consider the
best interests of the children?
2.
Did the officer fail to properly consider the
evidence before it and were its findings as to hardship and establishment of
the applicants unreasonable?
3.
Was the officer’s decision unreasonable as a
whole?
[16]
The respondent raises one issue in response:
have the applicants raised a serious issue or demonstrated that there is a fairly
arguable case for judicial review of the officer’s decision?
[17]
In my view, there are two issues:
A.
What is the standard of review?
B.
Was the officer’s decision reasonable?
IV.
Applicants’ Written Submissions
[18]
First, the applicants submit the officer failed
to properly consider the best interests of the minor applicants. They argue the
reasoning the children have proven that they can adapt to Albania because they
adapted to Canada is unreasonable, because Canada is extremely similar to the
U.S. in many aspects. Also, this transition will be exasperated by the adult
applicants’ imposition of self-confinement. They argue that the ability for the
parents to support the children is an important factor (see Raposo v Canada
(Minister of Citizenship and Immigration), 2005 FC 118 at paragraph 32,
[2005] FCJ No 157). They argue it is thereby in the children’s best interests
for their parents to have a job in Canada than to live with their fearful and
unemployed parents in Albania.
[19]
Also, the applicants argue the assessment of the
best interests of the children has to be considered independently and an officer
has to have the reality of a child’s potential future life squarely in mind (see
Bocerri v Canada (Minister of Citizenship and Immigration), 2008 FC
1021, [2008] FCJ No 1262 [Bocerri]). They argue this case is similar to Bocerri
because the officer in the present case also does not appear to be sensitive to
the harm that the children’s displacement will cause. Further, the applicants
submit the best interests of the children should be given substantial weight (see
Gelaw v Canada (Minister of Citizenship and Immigration), 2010 FC 1120
at paragraph 37, [2010] FCJ No 1398 [Gelaw]). They argue that similar to
Gelaw, the children in the present case had never set foot in their
parents’ home country.
[20]
Further, the applicants argue the officer was
unreasonable when it was concluded in the decision on the best interests of the
children with an “impossible obstacle” standard,
which has no basis from case law. Further, they argue the officer made a
judicially reviewable error by focusing on whether the children can adapt to
Albanian life and culture if they were deported instead of properly considering
where their best interests are adequately served.
[21]
Second, the applicants submit they have become
very well established in Canada over the last year and a half through
employment and community involvement. They submit their establishment is an
important factor and must be given significant weight (see Cobham v Canada
(Minister of Citizenship and Immigration), 2009 FC 585, 178 ACWS (3d) 421
at paragraphs 27 to 28).
[22]
Third, the applicants submit the officer was
unreasonable to give little positive consideration to the hardship that would
arise from the blood feud because the applicants did not provide documents. In Jakaj
v Canada (Minister of Citizenship and Immigration), 2012 FC 677 at
paragraph 14, [2012] FCJ No 918, this Court found a “blood
feud is essentially a private dispute between families, it is unclear what
other evidence can be expected to attest to the existence of the blood feud”.
In Chi v Canada (Minister of Citizenship and Immigration), 2002 FCT 126,
112 ACWS (3d) 132 at paragraph 50, “[i]t is well
established in the jurisprudence that the CRDD cannot disbelieve the applicant’s
evidence simply because she fails to produce documents in support of her oral
testiony [sic]”. Therefore, they argue the officer should have
given more weight to the applicants’ hardship based on the blood feud.
[23]
Fourth, the applicants submit they do not have
an internal flight alternative due to Albania’s small size and corruption.
[24]
Lastly, based on the aforementioned arguments,
the applicants submit the officer’s decision was unreasonable as a whole. They
would face unusual and undeserved or disproportionate hardship meriting an
exemption on H&C grounds.
V.
Respondent’s Written Submissions
[25]
The respondent submits the standard of review
applicable to an H&C decision is reasonableness (see Mikhno v Canada
(Minister of Citizenship and Immigration), 2010 FC 386 at paragraphs 21 to
23, [2010] FCJ No 583 [Mikhno]; and Singh v Canada (Minister of Citizenship
and Immigration), 2009 FC 11 at paragraphs 21 and 37, [2009] FCJ No 4 [Singh]).
[26]
First, the respondent submits the officer’s
establishment assessment was reasonable. It states that the officer considered
all the evidence such as the applicants’ employment history and letters of
support; so the respondent argues the applicants’ arguments are nothing more
than a disagreement with the officer’s conclusion, which is not a valid ground
for judicial review because they are asking this Court to reweigh the evidence
in their favour.
[27]
Second, the respondent submits the officer’s
hardship assessment was reasonable. It distinguishes the present case from Jakaj.
It submits in Jakaj, the claimants tendered a letter from a peace
missionary which detailed their specific story; but in the present case, no
such evidence was provided.
[28]
It also distinguishes the present case from Chi.
In Chi, oral testimony was provided and the Court ruled it could not be
disbelieved simply due to the lack of supporting documentation; whereas in the
present case, an H&C application is based entirely on the written record.
Therefore, the principle from Chi does not apply.
[29]
Third, the respondent submits the officer’s best
interests of the children assessment was reasonable. It references Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraph 75, [1999] SCJ No 39 [Baker] and Kolosovs v Canada
(Minister of Citizenship and Immigration), 2008 FC 165 at paragraph 8,
[2008] FCJ No 211 [Kolosovs] that in assessing the best interests of the
children, an officer has to be “alert, alive and
sensitive”. It argues the decision demonstrates that the officer
understood the perspective of the children and that it was aware of their
interests and the impact that a refusal of the H&C application could have
on their future.
[30]
Further, it argues even if this Court finds the
officer’s finding about adaptation as shown in Canada is unreasonable, the
officer’s decision should still stand as it is based on several other
reasonable findings. Here, the officer noted the reality of the children’s
future life in Albania and support from family in Albania. Further, regarding
self-confinement, the applicants did not establish through evidence that the
children would not be able to attend school or that the applicants would not be
able to work.
[31]
Then, the respondent distinguishes the present
case from Gelaw. The officer’s decision in Gelaw was not as
asserted by the applicants in this case overturned simply because the children
had never “set foot in their parents’ home countries”
but because the officer in Gelaw failed to consider established risks of
“early death, rape, starvation, abduction, forced
marriage, and violent discrimination” (at paragraph 35).
[32]
Lastly, the respondent argues the officer did
not err in using the term “impossible obstacle”
in the reasons. Here, the officer did not include any discussion of impossible
obstacles. The decision was thorough and well-reasoned. It simply noted at the
conclusion of the decision that the obstacles faced by the minor applicants are
not impossible. This does not render the decision unreasonable.
VI.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[33]
The respondent submits the proper standard of
review is reasonableness. I agree. Where previous jurisprudence has determined
the standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190 [Dunsmuir]).
[34]
For questions of fact or mixed fact and law
decided on an H&C grounds application, the standard is reasonableness (Mikhno
at paragraphs 21 to 23; Singh at paragraphs 21 and 37; Dunsmuir
at paragraph 53; and Baker at paragraphs 57 to 62). This means that I
should not intervene if the decision is transparent, justifiable, intelligible
and within the range of acceptable outcomes (see Dunsmuir at paragraph
47; and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59, [2009] SCJ No 12 [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.
B.
Issue 2 - Was the officer’s decision reasonable?
[35]
Subsection 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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[36]
Insofar as establishment is concerned, I find
the officer’s assessment was reasonable. It appears to me that the applicants disagree
with the officer’s assignment of weight regarding the evidence as they argue
that their establishment must be given “significant
weight”. A court reviewing for reasonableness cannot substitute its own
view of a preferable outcome, nor can it reweigh the evidence. Here, the
officer considered all the evidence such as the applicants’ employment history
and letters of support.
[37]
Therefore, the officer’s assessment of
establishment was reasonable.
[38]
Insofar as hardship is concerned, I find the
officer’s assessment was reasonable. Here, the applicants and the respondent disagree
on the type of evidence required to establish an allegation of a family feud.
[39]
I disagree with the applicants’ reliance on the
case law. In Jakaj, the claimants tendered various pieces of evidence
and this Court overturned the decision below because it found the decision
maker had misconstrued the evidence. In that case at paragraph 13, Madam Justice
Danièle Tremblay-Lamer did not say no supporting evidence was required to
corroborate the allegation of a family blood feud:
I agree. I find that the Board misconstrued
the evidence that was before it to support the existence of the blood feud. The
Board found that the letter from the Peace Missionaries was not sufficient
evidence to establish the existence of a blood feud, but it made no mention of
the letter from the Village Dignitary, the letter from the Chairman of the
village, the declaration from the applicant's father, or the letter from the
All-Nation Association for the Integration of the Prisoners and Political
Prosecuted Persons, all of which attested to the existence to the blood feud
and the risk to the applicant. Nor did the Board mention the email from the
Canadian Mission, which indicated that the NRC corroborated the existence of
the feud. Although the staff at the Canadian Mission did not contact the
Albanian police directly, the email does suggest that the police in the village
are aware of the blood feud.
[40]
In Chi, this Court overturned the
decision below because it found the decision maker failed to provide reasons
for preferring the documentation it relied on. In that case, there was
substantial documentation that supported the applicant’s fears and contradicted
the documentation relied on by the decision maker.
[41]
In both of these cases, there was evidence
provided to corroborate the allegations. In the present case, the applicants
submitted documentary evidence that corroborated that blood feuds have led to
the murder of many Albanians; however, there was no evidence that established
or related them to the blood feud they alleged.
[42]
Therefore, I can understand the officer’s
negative determination on the element of hardship since the applicants did not
produce supporting documents for the specific allegation of their family blood
feud.
[43]
Next, I find the officer’s assessment of the
best interests of the applicants’ children was not reasonable.
[44]
The assessment of the children’s best interests
is an important factor to be given substantial weight; however, it will not
necessarily be the determining factor in every case. (Kolosovs at
paragraph 8).
[45]
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]
[46]
Mr. Justice Douglas Campbell defined the meaning
of “alert, alive and sensitive” in the case 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]
[47]
Also, Mr. Justice Campbell reviewed the
Guidelines (IP5 Immigrant Applications in Canada made on Humanitarian or
Compassionate Grounds ) at paragraph 9. He noted section 5.19 which sets out
some factors that often arise in H&C applications:
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.
[48]
The element of alive was analyzed by Mr. Justice
Campbell at paragraph 11 in Kolosovs that the best interests factors
need to be considered cumulatively:
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 [sic] determined.
[Emphasis added]
Further, Mr. 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]
[49]
I have read the officer’s decision with respect
to the best interests of the children. I am not satisfied from the decision
that the officer was “alert, alive and sensitive to the
best interests of the children.” There is no balancing of the negative
and positive factors as they relate to the best interests of the children. The
case law has indicated that simply listing the factors is not sufficient.
[50]
I am also concerned about the following
statement of the officer at page 6 of the tribunal record which concludes the remarks
on the best interests of the children:
I acknowledge that relocation to a country
and being educated in their non-dominant language will be disruptive, but I am
not persuaded, based on the evidence submitted and arguments advanced, that it
would be an impossible obstacle.
This is not a proper background for the
“best interests of the children” review.
[51]
As a result, I find that the officer’s decision
was unreasonable and the matter must be referred to a different officer for
redetermination.
[52]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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