Docket: IMM-7934-14
Citation:
2015 FC 727
Ottawa, Ontario, June 10, 2015
PRESENT: The
Honourable Mr. Justice Shore
|
BETWEEN:
|
|
SONIA OKPERE
EZEKIEL OKPERE
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
(rendered on the bench)
I.
Overview
[1]
Although the best interests of the child are not
determinative, in and of themselves, of the outcome of a humanitarian and
compassionate [H&C] determination, they are nonetheless a significant
factor which must specifically be shown to be adequately weighed, in accordance
with the Convention on the Rights of the Child [Convention] (Kolosovs
v Canada (Minister of Citizenship and Immigration), [2008] FCJ No 211, at
para 8 [Kolosovs]).
II.
Introduction
[2]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a Senior Immigration Officer’s [officer] decision
rejecting the Applicants’ claim for permanent residence from within Canada
based on H&C grounds pursuant to subsection 25(1) of the IRPA.
[3]
The Court does not find that the officer was
alive, alert and sensitive to the best interests of the children affected. The
Court’s intervention is therefore warranted.
III.
Factual Background
[4]
The principal Applicant [Applicant] and her
9-year-old son are citizens of Nigeria.
[5]
The Applicant claims that her life is threatened
due to her refusal to succeed her late father as the village’s native doctor,
based on her Christian beliefs.
[6]
The Applicants arrived in Canada on
September 21, 2008, and were detained upon arrival.
[7]
The Applicant gave birth to her first daughter
while in detention, on October 22, 2008, and gave birth to her second
daughter on November 6, 2013.
[8]
The Applicants’ refugee claim was rejected by the
Refugee Protection Division on November 5, 2010.
[9]
On January 31, 2011, the Applicant married
a Canadian citizen. The couple filed an application for permanent residence in
the spousal category, which was denied on April 24, 2012, on the basis
that they failed to demonstrate that their marriage was bona fide.
[10]
The Applicant filed an H&C application on
August 6, 2013, which was dismissed on September 30, 2014, on the
basis that the Applicants failed to demonstrate that they would suffer unusual,
undeserved or disproportionate hardship.
IV.
Legislative Provisions
[11]
The following provisions of the IRPA are
applicable in respect of H&C applications:
|
Application before entering Canada
|
Visa et documents
|
|
11. (1) A foreign national must,
before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national
is not inadmissible and meets the requirements of this Act.
|
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
|
|
Humanitarian and compassionate considerations — request of foreign
national
|
Séjour pour motif d’ordre humanitaire à la demande de l’étranger
|
|
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.
|
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.
|
V.
Issues
[12]
The Applicants submit the following issues to be
determined by this Court:
a)
Was the officer alive, alert and sensitive to
the children’s best interests, in accordance with section 25 of the IRPA?
b)
Does the impugned decision respect the rights of
the Applicant and her children to the protection of family life?
c)
Did the officer consider the hardship that a
single mother and her children would experience, such as exclusion, isolation,
poverty, and gender violence, were they to be removed to Nigeria?
d)
Is the officer’s decision reasonable?
[13]
The Court considers that the determinative
issues can be summarized under the two following issues:
a)
Does the impugned decision adequately consider
the best interests of the children affected?
b)
Is the officer’s decision reasonable?
VI.
Analysis
[14]
The standard of review applicable to the
exercise of the officer’s discretion in assessing an H&C application,
including the best interests of the children affected, is that of
reasonableness (Mikhno v Canada (Minister of Citizenship and Immigration),
[2010] FCJ 583 at paras 21-23; Kisana v Canada (Minister of Citizenship and
Immigration), [2009] FCJ 713 at para 18).
[15]
The Applicants submit that the officer’s
findings are unreasonable, particularly in respect of the best interests of the
children, the family’s level of establishment in Canada and the hardship they
would suffer upon return to Nigeria. The Applicants further submit that their
removal would violate principles of international law and section 7 of the Canadian
Charter of Rights and Freedoms.
[16]
In considering H&C applications, officers
must be “alert, alive and sensitive” to the best
interests of the children affected and take into account, where possible, the
children’s perspective, in order for their decision to fall within the realm of
reasonableness (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 75 [Baker]; Williams v Canada (Minister of
Citizenship and Immigration), 2012 FC 166 at para 68).
[17]
Although the best interests of the child are not
determinative, in and of themselves, of the outcome of an H&C
determination, they are nonetheless a significant factor which must
specifically be shown to be adequately weighed, in accordance with the
Convention (Kolosovs, above at para 8).
[18]
The principles embodied in the Convention are
relevant in addressing the reasonableness of an H&C decision under judicial
review:
[71] The values and principles of the
Convention recognize the importance of being attentive to the rights and best
interests of children when decisions are made that relate to and affect their
future. In addition, the preamble, recalling the Universal Declaration of Human
Rights, recognizes that "childhood is entitled to special care and
assistance". [page862] A similar emphasis on the importance of placing
considerable value on the protection of children and their needs and interests
is also contained in other international instruments. The United Nations
Declaration of the Rights of the Child (1959), in its preamble, states that the
child "needs special safeguards and care". The principles of the
Convention and other international instruments place special importance on
protections for children and childhood, and on particular consideration of
their interests, needs, and rights. They help show the values that are central
in determining whether this decision was a reasonable exercise of the H & C
power.
[Emphasis added.]
(Baker, above at para 71)
[19]
A careful reading of the decision under review
reveals that the officer’s findings are primarily focused on the principal
Applicant’s failure to provide sufficient evidence demonstrating that the
welfare of the Applicant’s children would be compromised by the requirement of
filing a permanent residence application abroad.
[20]
The officer’s analysis is flawed in that the
children’s needs and interests are not adequately identified, defined and
examined (Zazai v Canada (Minister of Citizenship and Immigration), 2012
FC 162 at para 51; Legault v Canada (Minister of Citizenship and
Immigration), [2002] FCJ 457 at paras 12 and 31). Among others, the
officer’s analysis fails to identify whether it is in the best interests of the
minor Applicant to remain in Canada in order to pursue his education, and the
impact of the Applicants’ removal, and the family’s ensuing separation, on the
three children affected, including the Applicant’s Canadian-born daughters, who
are respectively one and six years old (Velji v Canada (Minister of
Citizenship and Immigration), 2014 FC 467 at para 8).
[21]
Similarly to the Court’s finding in a recent
decision rendered by Justice John A. O’Keefe, “[t]here
is no balancing of the negative and positive factors as they relate to the best
interests of the children” (Qosaj v Canada (Minister of Citizenship
and Immigration), 2015 FC 689 at para 49). Therefore, a need exists to
consider the significant specific objective and subjective evidence as per the
documents on file in respect of the current situation in Nigeria. Contrary to
the Court’s teachings in Kolosovs, the children’s best interests and
perspectives were not taken into account:
[11] 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.
[12] 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.]
(Kolosovs, above at paras 11 and 12)
[22]
It does not appear from the officer’s reasons
that the officer was alive, alert and sensitive to the best interests of the
children affected by its decision, rendering the decision unreasonable.
VII.
Conclusion
[23]
In light of the foregoing, the application is
granted and the matter is referred to a different officer for determination
anew.
Email this Content