Docket: IMM-3804-13
Citation:
2015 FC 527
Ottawa, Ontario, April 23, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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ABIMELECH FIGUEROA JIMENEZ
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MIRIAM RODRIGUEZ JIMENEZ
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NOE FIGUEROA RODRIGUEZ
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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 and Background
[1]
The Applicants applied for permanent residence
from within Canada and, claiming humanitarian and compassionate [H&C]
grounds under subsection 25(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [Act], asked for exemptions from any criteria of the Act
which they did not satisfy. Their request was refused by a senior immigration
officer [Officer] and they now seek judicial review pursuant to subsection
72(1) of the Act, asking the Court to set aside the Officer’s decision
and return the matter to a different officer for re-determination.
[2]
The Applicants are a married couple from Mexico
and their 10-year-old son; their daughter is not party to the H&C
application because she is a Canadian citizen, having been born here in 2006
after the Applicants arrived in Canada on April 19, 2005.
[3]
After the authorized period of their admission
to Canada ended, the Applicants lived here without status for several years
and, eventually, the female Applicant was detected by immigration officials and
removal orders were issued against the family on June 23, 2009. On the same
day, the Applicants applied for refugee protection, claiming that they feared
they would be abducted by criminals if they returned to Mexico. On March 30, 2011, the Refugee Protection Division [RPD] dismissed the Applicants’ claims
because it found they were not credible and did not subjectively fear
persecution, and that the risk of abduction was generalized. A pre-removal risk
assessment was also refused on September 13, 2011.
[4]
In the meantime, the Applicants had applied for
H&C consideration on August 22, 2011, saying that it would not be in the
best interests of their children to remove them from Canada and that it would
cause the Applicants hardship to disturb their establishment and expose them to
the adverse country conditions in Mexico.
II.
Decision under Review
[5]
On April 25, 2013, the Officer refused to grant
the Applicants any exemptions from the requirements of the Act.
[6]
The Officer dealt first with the Applicants’
claims that they would suffer hardship because of adverse country conditions,
particularly with regard to discrimination against women, crime, poverty, and corruption.
The Officer accepted that, while all were serious problems in Mexico, there
were mechanisms for victims of crime to obtain redress. As for the other
adverse country conditions, the Officer determined that the Applicants had not
proven that “their personal circumstances are such that
the general country conditions will directly affect them to a greater extent
than the general population or that the general country conditions will cause a
hardship for the applicants that is unusual and undeserved or
disproportionate.” As the onus was on the Applicants, the Officer
rejected this aspect of their claims.
[7]
The Officer was not convinced that the
Applicants’ degree of establishment warranted relief. Although Mr. Figueroa
Jiménez had said that he was employed in Canada for all but a few months since
his arrival here, the Officer noted that there was only documentation to
support employment since 2009. His wife, Mrs. Rodriguez Jiménez, had also
claimed to have been employed as a cleaner for two years, but there was no
documentation that that was the case. The Officer did accept, however, that she
was involved in the community and that her volunteer work was appreciated. The
Officer also accepted that the Applicants had made friends here, but noted that
there was no proof that severing those relationships would cause any hardship.
Furthermore, the Officer noted that during their time in Canada the Applicants “have received due process in the refugee
protection system and therefore a measure of establishment is expected to have
occurred.” Ultimately, the Officer was not satisfied that the Applicants
“have integrated into Canadian society to the extent
that their departure would cause unusual and undeserved or disproportionate
hardship.”
[8]
The Officer then addressed the adult Applicants’
claim that removal to Mexico would negatively affect their son, who was 8 years
old at the time, and their daughter, who was then 7. The Officer observed that
the best interests of these children was a significant factor which should be
given substantial weight, but it was not determinative. Here, the children were
doing well in school, but the Officer said that both children were still of an
age where their lives revolved around their parents. There was also no evidence
that they had developed “relationships in Canada that
if severed, would have a significant negative impact.”
[9]
The Applicants had also claimed that their
children could be affected by crime and poverty and that their daughter could
suffer from gender discrimination. With respect to crime, the Officer again said
that the government was making serious efforts to protect its citizens. As for
poverty and gender discrimination, the Officer noted that both of the adult
Applicants were educated and employed in Mexico prior to their departure, and
that Mrs. Rodriguez Jiménez had gone to university for two years. The Officer
expected the children to have similar opportunities in Mexico, and said that: “[w]hile I note that children may enjoy better economic and
social opportunities in Canada, the evidence before me does not support that
they will be denied education, health care or would be targeted for abuse,
trafficking or kidnapping in Mexico.”
[10]
The Officer then noted that the children would
probably need some time to adjust to life in Mexico, but said that it is “reasonable that they have been exposed to the language and
culture of Mexico through their parents.” While they might miss the
friends they have made in Canada, they will still be with their primary
caregivers and may benefit from the support of their extended family in Mexico. The Officer therefore concluded that the Applicants “have
not established with objective documentary evidence that the best interest of
the children in this application will be negatively affected to the extent that
an exemption is warranted.”
[11]
The Officer further found that the Applicants
could re-establish themselves in Mexico. Not only did they have reasonably
transferable skills and employment experiences, but they also have family in Mexico who could likely support them emotionally.
[12]
The Officer thus refused the application, noting
that while the Applicants’ desire to remain in Canada was understandable, the
H&C process is not intended to eliminate all hardship, just that which is
unusual and undeserved or disproportionate. The Applicants chose to remain in
Canada after the RPD rejected their claims in April, 2011, to pursue other
immigration avenues, so the Officer said that it could not be “argued that the resulting hardship was not anticipated by the
Act or that it was beyond their control.”
III.
Issues and Analysis
A.
Issues
[13]
The following issues emerge from the parties’
submissions:
1.
What is the standard of review?
2.
Did the Officer erroneously assess the best
interests of the children [BIOC]?
3.
Did the Officer erroneously assess the
Applicants’ establishment in Canada?
B.
Standard of Review
[14]
The appropriate standard of review for an
H&C decision generally is reasonableness since it involves questions of
mixed fact and law: see, e.g., Kisana v Canada (Citizenship and Immigration),
2009 FCA 189 at paragraph 18, [2010] 1 FCR 360 [Kisana]; Kanthasamy
v Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30, 32
and 37, 372 DLR (4th) 539 [Kanthasamy]. The Applicants assert, however, that
correctness applies when assessing whether the Officer applied the wrong “test”
for assessing the BIOC, and in this regard relies upon Sahota v Canada
(Citizenship and Immigration), 2011 FC 739 at paragraph 7 [Sahota]
and upon Sinniah v Canada (Citizenship and Immigration), 2011 FC 1285 at
paragraph 26, 5 Imm LR (4th) 313 [Sinniah]. In my view,
such reliance is misguided since Sinniah and Sahota have been
eclipsed by decisions of the Supreme Court of Canada in recent years which have
narrowed the types of questions of law subject to a standard of correctness:
see e.g. Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association,
2011 SCC 61, [2011] 3 S.C.R. 654, at paragraphs 37-39 and 45-46 [Alberta
Teachers]; and McLean v British Columbia (Securities Commission),
2013 SCC 67 at paragraphs 25-26 and 31-33, [2013] 3 S.C.R. 895.
[15]
Furthermore, the Federal Court of Appeal has
recently confirmed that a standard of reasonableness applies when reviewing an
officer’s interpretation and application of section 25 of the Act (Kanthasamy
at paragraphs 30 and 32). In this regard, Mr. Justice James Russell recently
made the following observations in Blas v Canada (Citizenship and
Immigration, 2014 FC 629, 26 Imm LR (4th) 92 [Blas]:
[15] Up to now, there has been a
preponderance of authority from this Court holding that a standard of
correctness applies to the issue of whether an officer applied the proper legal
test in making an H&C decision under s. 25(1) of the Act: see Guxholli v
Canada (Minister of Citizenship and Immigration), 2013 FC 1267 at para 18; Alcin
v Canada (Minister of Citizenship and Immigration), 2013 FC 1242 at para
35. Some have noted a tension between this position and the presumption of
reasonableness review noted above (see Diabate v Canada (Minister of Citizenship
and Immigration), 2013 FC 129)[Diabate], and others have concluded
on that basis that a standard of reasonableness should now apply (see Tarafder
v Canada (Minister of Citizenship and Immigration), 2013 FC 817).
[16] In a pair of recent decisions dealing
with s. 25 of the Act – and in particular with the proper interpretation of the
recently added s. 25(1.3) – the Federal Court of Appeal has confirmed that a
standard of reasonableness applies when reviewing an officer’s interpretation
and application of s. 25 of the Act: see Kanthasamy v Canada (Citizenship
and Immigration), 2014 FCA 113 [Kanthasamy] and Lemus v Canada
(Citizenship and Immigration), 2014 FCA 114. Justice Stratas writing for
the Court in Kanthasamy observed that the Supreme Court applied a
standard of reasonableness to an officer’s decision under the Act in Agraira,
above, and there was no basis to distinguish Agraira in the case at hand
(at para 30). Thus, it is now clear that a standard of reasonableness applies
to an officer’s interpretation of s. 25 of the Act and the test to be applied
in giving effect to it.
[16]
I am aware that whether a reasonableness
standard applies when reviewing an officer’s interpretation of section 25 is
still open to some questions. In Gonzalez v Canada (Citizenship and
Immigration), 2015 FC 382 at paragraphs 23-34, Mr. Justice Richard Mosley
disagreed with Justice Russell’s conclusion that a reasonableness standard
applies to the test to be applied in making H&C decisions, and said that
the correctness standard was applied to the questions of statutory
interpretation in Kanthasamy. He therefore followed previous authority
and concluded “that the standard of correctness applies
to the Officer’s choice of legal test” (Gonzalez at paragraph
34).
[17]
However, while the Court of Appeal did apply the
correctness standard in Kanthasamy, it confined the use of this standard
to situations where a question had been certified. As Justice Stratas explained
at paragraph 36 of that decision:
[P]roviding the definitive answer to a certified
question on a point of statutory interpretation is the functional equivalent of
engaging in correctness review. But this is merely an artefact of having a
certified question put to us. It is not a comment on the standard of review
of Ministers’ interpretations of statutory provisions generally.
[Emphasis added]
[18]
In my view though, it is not necessary to
comment on this issue further, as the choice of standard of review will not
affect the disposition of this case. As noted in Blas at paragraph 20, even
the reasonableness standard is constrained since “certain
legal principles to be applied when assessing the best interests of a child
directly affected by an H&C decision are firmly established by the
jurisprudence, including that the threshold of unusual and undeserved or
disproportionate hardship has no application to this factor.” Indeed,
there may well be only one reasonable choice of test when an issue involves a
serious question of general importance that has previously been answered by the
Court of Appeal, since “the resulting ‘definitive
interpretation’ is meant to be binding on administrative decision-makers faced
with the same issue in the future, and binding on this Court” (Blas
at paragraph 22).
[19]
With that in mind, the Court should not interfere
if the Officer’s decision is intelligible, transparent, justifiable, and falls
within the range of possible, acceptable outcomes that are defensible in
respect of the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9
at paragraph 47, [2008] 1 S.C.R. 190. A reviewing Court can neither reweigh the
evidence that was before the Officer, nor substitute its own view of a
preferable outcome: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraphs 59 and 61, [2009] 1 S.C.R. 339. Furthermore, the Court
does not have “carte blanche to reformulate a
tribunal’s decision in a way that casts aside an unreasonable chain of analysis
in favour of the court’s own rationale for the result” (Alberta
Teachers at paragraph 54).
C.
Did the Officer erroneously assess the best
interests of the children?
(1)
The Applicants’ Arguments
[20]
The Applicants argue that the Officer applied
the wrong test to assess the BIOC, and they urge the Court to apply the
correctness standard of review to this issue. In their view, the Officer
introduced a hardship threshold into the BIOC analysis, which they argue is
contrary to the guidance in Canada (Minister of Citizenship and Immigration)
v Hawthorne, 2002 FCA 475 at paragraphs 41-45, [2003] 2 FCR 555, Evans JA [Hawthorne];
Velji v Canada (Citizenship and Immigration), 2014 FC 467 at paragraphs
4 and 7; and Etienne v Canada (Citizenship and Immigration), 2014 FC 937
at paragraph 9 [Etienne]. The Applicants further point to the formula
for assessing the BIOC in Williams v Canada (Citizenship and Immigration),
2012 FC 166 at paragraph 63 [Williams], which they submit is not a rigid
new test but, rather, a synthesis of the existing law.
[21]
The Applicants say that the Court must look at
the substance of the Officer’s assessment and not the form of the analysis.
Specifically, the Applicants argue that the Officer never identified whether it
would be in the children’s best interests to go to Mexico, and instead required
the Applicants to show that “the best interest of the
children in this application will be negatively affected to the extent that an
exemption is warranted.” The Applicants say that the Officer failed to
look at the stable income of the male Applicant in this case and, in view of Pokhan
v Canada (Citizenship and Immigration), 2012 FC 1453 at paragraphs 13-14,
never even considered the benefits that the children will receive in Canada,
such as financial stability, community support, and better access to health
care.
(2)
The Respondent’s Arguments
[22]
The Respondent argues that the Officer’s assessment
of the facts and his or her interpretation of the test with respect to the BIOC
are to be reviewed on the basis of reasonableness (Faisal v Canada
(Citizenship and Immigration), 2014 FC 1078 at paragraph 13). Whatever
standard is applied though, the Respondent says that the Officer did not err in
assessing the BIOC.
[23]
According to the Respondent, it is appropriate
for an officer to look at what hardship might be faced by children (Hawthorne
at paragraph 6), so long as that officer does not require the hardship to be
unusual and undeserved or disproportionate (citing Kisana at paragraphs
30-31). In its view, the Officer in this case simply weighed all the factors
together, and only referred to negative impacts to reject the Applicants’
factual claims that removal would expose their children to crime, poverty, and
discrimination. The Respondent argues that does not mean the Officer was
requiring the Applicants to prove that the children would face some particular
level of hardship before relief could be granted.
[24]
The Respondent states that the evidence did not
show that the children would face any dangers in Mexico based on the general
country conditions. The Applicants failed to personalize these potential
dangers to their children. The Respondent submits that the Officer did not need
to explicitly state that it would be in the BIOC to stay in Canada, since it
can be presumed that the Officer knows that the BIOC favours non-removal of the
parents (Hawthorne at paragraph 5). To the extent that Williams
suggests otherwise, the Respondent emphasizes that there is no “magic formula” for assessing the BIOC, and argues
that the framework presented in Williams should not be followed since it
contradicts Hawthorne and Kisana (citing Webb v Canada
(Citizenship and Immigration), 2012 FC 1060 at paragraph 13 [Webb]).
(3)
Analysis
[25]
In Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th) 193, the
Supreme Court of Canada set out what the reasonableness standard requires when
an officer assesses the best interests of children:
75 …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.
That is not to say that children's best interests must always outweigh other
considerations, or that there will not be other reasons for denying an H &
C claim even when children's interests are given this consideration. However, where
the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision
will be unreasonable.
[Emphasis
added]
[26]
In Kisana, the Federal Court of Appeal clarified
that:
[24] … an applicant is not entitled to
an affirmative result on an H&C application simply because the best
interests of a child favour that result. It will more often than not be in the
best interests of the child to reside with his or her parents in Canada, but this is but one factor that must be weighed together with all other relevant
factors. It is not for the courts to reweigh the factors considered by an
H&C officer. On the other hand, an officer is required to examine the best
interests of the child “with care” and weigh them against other factors. Mere
mention that the best interests of the child has been considered will not be
sufficient (Legault, supra, at paragraphs 11 and 13).
[27]
While the Officer here acknowledged that he or
she was “required to be alert and sensitive to the
interests of children…through identification and examination of all factors
related to the child’s life,” he or she was neither alert nor sensitive
to all such factors. The Officer did not look to any scenario by which it
might be in the children’s best interests to stay in Canada with their parents
and maintain the status quo. As Mr. Justice Donald Rennie noted in Etienne
at paragraph 9: “In order for an officer to be properly
‘alert, alive and sensitive’ to a child’s best interests, the officer should
have regard to the child’s circumstances, from the child’s perspective.”
[28]
Not only did the Officer here not do that, but
he or she also did not properly identify the BIOC and examine them “with a great deal of attention” or “with care” (Canada (Citizenship and Immigration) v
Legault, 2002 FCA 125 at paragraphs 13 and 31, [2002] 4 FCR 358) [Legault].
The Officer acknowledged that the documentary evidence showed that “the high crime rates in Mexico include violence in which children
are often affected” (emphasis added); yet, he or she unreasonably
discredits this objective evidence by stating in the very next sentence that
the adult Applicants “have not established that they or
their children will be targeted or that they will experience violence should
they return to Mexico”; and adding further in the sentence after that,
that the Mexican “government is making serious efforts
to protect its citizens, including children, and that laws are in place to
protect children from sexual exploitation.” In the face of this
evidence, the children would face risks if removed to Mexico and the Officer
needed to examine this possibility with care. The Officer here did not
reasonably do that.
[29]
Furthermore, the Officer’s reasons with respect
to the BIOC are replete with references to whether the children would be
subjected to a “significant negative impact” if
the requested exemption was not granted, and he or she introduced a hardship
threshold by requiring the Applicants to prove that “the
best interest of the children in this application will be negatively
affected to the extent that an exemption is warranted” (emphasis
added). The Officer’s focus on negative impacts and effects clouds and confuses
the assessment of the BIOC, and nowhere in the reasons is there any clear
identification of what really might be in the children’s best interests
other than to remain with their parents.
[30]
Accordingly, on this basis alone, the
application for judicial review should be granted.
D.
Did the Officer erroneously assess the
Applicants’ establishment in Canada?
[31]
In view of the reasons above, I find it
unnecessary to address this issue.
E.
Certified Question
[32]
At the hearing of this matter, the Respondent
proposed the following question of general importance to be certified:
In their BIOC analysis, is an officer
required first to explicitly establish what is the child’s best interest then
establish the degree to which the child’s interest are compromised by one
potential factor over another in order to show that the officer has been alert,
alive and sensitive to the best interests of the child?
[33]
This question is in large part based on the
framework for analysis of the BIOC stated by Mr. Justice James Russell in Williams,
where it is stated:
[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?” [emphasis in original]
[34]
I agree with the Applicants that the test for
certification has not been met. In Zhang v Canada (Citizenship and
Immigration), 2013 FCA 168, [2014] 4 FCR 290, the Federal Court of Appeal
stated as follows:
[9] It is trite law that to be
certified, a question must (i) be dispositive of the appeal and (ii) transcend
the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance. As a corollary,
the question must also have been raised and dealt with by the court below and
it must arise from the case, not from the Judge’s reasons…
[35]
The question proposed by the Respondent is not
dispositive of the case now before the Court, since the Officer erred by not
following the guidance from Kisana and Legault.
[36]
Furthermore, this Court has declined on several
occasions to certify a question similar to that stated above: see, e.g., Onowu
v Canada (Citizenship and Immigration), 2015 FC 64 at paragraphs 75-76; Jaramillo
v (Minister of Citizenship and Immigration), 2014 FC 744 at paragraphs
76-77; Joseph v Canada (Citizenship and Immigration), 2013 FC 993 at
paragraphs 31-33; Webb at paragraphs 33-35; and Martinez Hoyos v
Canada (Citizenship and Immigration), 2013 FC 998 at paragraphs 40 and 45.
IV.
Conclusion
[37]
In the result, the Applicants’ application for
judicial review is granted, and the matter is returned for re-determination by
another immigration officer. No question of general importance is certified.
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