Docket: IMM-7169-13
Citation:
2015 FC 416
Toronto, Ontario, April 1,
2015
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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NUSHE DUHANAJ,
SIMONE DUHANAJ,
PREN DUHANAJ
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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
[1]
The applicants, a mother and her two children,
seek judicial review of a decision refusing their application for permanent
residence in Canada on humanitarian and compassionate grounds.
[2]
I have concluded that the immigration officer
erred in assessing the best interests of the children. The application for
judicial review will therefore be granted, and it is unnecessary to address the
other issues raised by the applicants.
I.
The Best Interests of the Child Test
[3]
The jurisprudence teaches that where the best
interests of a child are raised in an application for an H&C exemption, the
task of an immigration officer is to consider the benefit to the children if
they were to stay in Canada against the consequences that the children will
suffer if they are removed from this country: Hawthorne v. Canada (Minister
of Citizenship & Immigration), 2002 FCA 475 at para. 4, [2003] 2 F.C.R.
555. The “unusual, undeserved, or disproportionate
hardship” test has no place in a “best interests
of the child” analysis: Hawthorne, above at para. 9; E.B. v. Canada (Minister of Citizenship and Immigration), 2011 FC 110 at para. 11, 383 F.T.R.
157; Sinniah v. Canada (Minister of Citizenship and Immigration), 2011
FC 1285, at paras. 62-62, 5 Imm. L.R. (4th) 313.
[4]
The best interests of children are not determinative
of the outcome of an H&C application. Rather, officers must decide whether
the children’s best interests, “when weighed against
the other relevant factors, justif[y] an exemption on H&C grounds so as to
allow them to enter Canada:” Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, at para. 38, [2010] 1 F.C.R.
360; Legault v. Canada (Minister of Citizenship and Immigration), 2002
FCA 125 at paras. 12-14, 212 D.L.R. (4th) 139.
II.
The Officer’s Analysis in this Case
[5]
I am not satisfied that the immigration officer
applied the right test in assessing the best interests of the applicant
children in this case.
[6]
One indication that the wrong test was applied is
the statement in the final paragraph of the decision. After reviewing the
various H&C factors cited by the applicants, including the best interests
of the children, the officer concludes her analysis by stating that:
I do not find
that the H&C elements presented by the applicants are sufficient, either
individually or globally, to establish that they would suffer unusual and
undeserved or disproportionate hardship if they were to apply for permanent
residence from outside of Canada. [my emphasis]
[7]
I recognize that the use of the words “unusual, undeserved or disproportionate hardship” in
a “best interests of the child” analysis will
not automatically render an H&C decision unreasonable. It will be
sufficient if it is clear from a reading of the decision as a whole that the
officer used the correct approach and conducted a proper analysis: Segura v.
Canada (Minister of Citizenship and Immigration), 2009 FC 894 at para. 29,
[2009] F.C.J. No. 1116. It is not at all clear to me, however, that the officer
applied the correct test in this case.
[8]
The officer acknowledged the submissions that
the children would “experience difficulties in Albania
as a result of adverse conditions in that country, including a high rate of
poverty, poor economic conditions, a high rate of unemployment, inadequate
health care, lack of gender equality for women, a low quality of education and
concerns over access to clean drinking water and basic sanitation”. The
officer further found that there would “likely be a
period of hard work and readjustment” for the children when they started
school in Albania. The officer was nevertheless satisfied that the children had
demonstrated that they had the skills to adapt to a new school system.
[9]
While the officer did refer to the adverse
country conditions in Albania, including the low quality of education in that
country, she found that there was little to indicate that the children “would experience a direct, negative impact as a result of
adverse country conditions”. However, the fact that all Albanian
children suffer as a result of the poor educational system does not mean that
it is not a factor that has to be taken into account in assessing the best
interests of the children in this case.
[10]
The evidence before the officer demonstrated
that while efforts have been made to improve the situation, there continue to
be very serious problems with the educational system in Albania. These include decaying infrastructure, declining educational quality, out-of-date
curricula and teaching methods, poorly qualified teachers, declining levels of
public funding for education, and a lack of modern equipment and sanitation.
[11]
Nowhere in the officer’s reasons was any
consideration given to the benefit that would accrue to these children if they
were able to continue with their education in Canada, although I accept that
the officer is presumed to know that Canada offers many advantages that may not
be available in other countries. What is more problematic, however, is that the
officer made no effort to weigh that benefit against the detriment to the
children if they were forced to complete their education in the clearly
sub-standard educational system in Albania.
[12]
Having failed to fully consider the consequences
that returning to Albania would have for the two children involved in this
case, the officer could not properly weigh their best interests against the
other H&C factors cited in support of their application. It is, moreover,
apparent from the entirety of the BIOC analysis that while the officer was
satisfied that the children would indeed face some hardship in Albania, they would eventually be able to adjust to life there. This in turn led to the
officer’s conclusion that the hardship that the children faced was not unusual
and undeserved or disproportionate.
III.
Conclusion
[13]
Having concluded that the officer used the wrong
test in assessing the best interests of the children in this case, it follows
that the application for judicial review will be granted.
[14]
I agree with the parties that the case does not
raise a question for certification.
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