Date: 20150407
Docket: IMM-5271-13
Citation:
2015 FC 419
Ottawa, Ontario, April 7, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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DONOVAN JONES
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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
I.
Introduction
[1]
This is an application for judicial review
pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a negative decision rendered on July 22, 2013 on an
application for permanent residence based on humanitarian and compassionate [H&C]
grounds. The applicant is seeking to have the decision quashed and referred
back to a different officer for reconsideration.
[2]
For the reasons that follow, the application is allowed.
II.
Background
[3]
The applicant is a 39-year-old man citizen of
Jamaica, who was sponsored to Canada by his single mother in 1988. At that
time, he was 15 years old. He entered Canada on June 28, 1989 as a permanent
resident. He became involved in serious criminal activity including drug
trafficking, assault, robbery, dangerous driving, possession of drugs, and
failure to attend court.
[4]
The applicant subsequently lost his status in
Canada after being found to be criminally inadmissible and was ordered to be
removed on October 28, 2004 by the Immigration Division.
[5]
The applicant obtained a temporary stay of
removal on October 28, 2006 to be reviewed on or about March 22, 2009. The applicant
failed to inform the Immigration Appeal Division [IAD] of his new address as
required and therefore failed to attend his appeal review hearing. On August
14, 2009 his appeal was declared abandoned. His subsequent application to have
his appeal re-opened was dismissed and his judicial review application was
rejected on January 25, 2011.
[6]
The judge in the judicial review application
indicated that the applicant would appear “to be a
strong candidate for an H&C decision.” On March 1, 2013, an immigration
officer [the Officer] of Citizenship and Immigration Canada [CIC] refused his
ensuing H&C application pursuant to section 25 of IRPA. The applicant requested
that this decision be reconsidered on the basis of new evidence regarding his support
and involvement with his children. After considering the new materials, the
request was denied. The original H&C decision and its reconsideration are
the subject matter of this application.
III.
Impugned Decision
[7]
The Officer considered and assessed the evidence
in both matters including the following:
a.
The applicant’s establishment in Canada for
approximately 24 years at the time of the decision, including his employment
and claims that he was the main financial support for his spouse and ten
children in Canada;
b.
The applicant’s ability to adapt to the
conditions of his home country, including his ability to support himself and to
continue providing financial support to his family in Canada;
c.
The applicant’s community ties, including his
volunteering and part-time work activities;
d.
The applicant’s health considerations and the
treatment for his condition in his home country;
e.
The applicant’s family ties, including the
alternate non-exclusive relationships with the mothers of his ten children and
the frequency of contact with his family members, acknowledging that his family
members will face some hardship if the applicant were required to leave Canada;
f.
The best interests of the applicant’s children,
including the documentary evidence to support his presence and involvement with
all of his ten children and the impact on the care and development on his
children if he is required to leave Canada; and
g.
The applicant’s significant criminal history of
convictions for multiple serious offences over a ten year period, including his
risk of recidivism and evidence to indicate his remorsefulness or acceptance of
responsibility for his actions.
[8]
The Officer weighed all of the relevant factors
and rejected the H&C application primarily due to the insufficiency of
evidence. In particular, the Officer concluded that there was insufficient evidence
concerning the applicant’s involvement and support of his children such that it
did not outweigh the negative attributes of his significant criminal record.
[9]
After the H&C application was rejected, the
applicant sought reconsideration of the decision based on new evidence
describing how his responsibility for his children had materially and
substantially changed since the evidence had been presented for the purposes of
the H&C application. Letters from the Peel Children’s Aid Society [CAS]
specified that on April 9, 2012, five of the applicant’s children were removed
from their mother’s care and custody on consent and were placed in the
applicant’s care. This was in addition to the two children who were already
residing with him. CAS indicated that the children would be at risk of harm if
the mother continued to have custody due to a number of child protection
concerns. The children were to remain in the applicant’s care under CAS’ supervision
for six months. CAS stated that placing the children with their father was
believed to be in their best interest. CAS also indicated that staff at the
children’s schools had noted that, since being in the applicant’s care, the
children’s attendance had improved and their negative behaviors had diminished.
[10]
CAS stated that, as the primary caregiver of his
children, the applicant was responsible to meet all of their needs, including
providing them with food, clothing shelter, and medical and dental care. CAS
stressed the importance of the applicant fulfilling these responsibilities. He
was also advised to readjust the Canada Child Tax Benefit [CCTB] to reflect his
new responsibilities and to assist him financially to fulfill the children’s
needs.
[11]
In June 2013, evidence was introduced from the
children’s schools that, according to information provided by the parents, the children
were residing with the applicant. In addition, there was evidence that the
applicant was receiving the CCTB and Ontario Child Benefit for the period of
July 2012 to June 2013. Similarly, a drug benefit eligibility card for the
children was introduced along with evidence of assistance payments from the
Region of Peel to the end of June 2013, again naming the applicant as the
parent.
[12]
However, the Officer gave little weight to the
CAS letters because they were dated in April and May 2012 and did not speak to
the current status of the children’s care when the matter was heard in June
2013. The Officer noted that the applicant had again failed to respond to her
question as to whether alternatives of care and support were available for the
children, despite asking for this information in the H&C decision.
[13]
The Officer stated that the applicant had not
sufficiently demonstrated that he had provided for the children’s clothing,
food, and housing, or that their medical and dental needs were met as was
specifically stated as a requirement in the 2012 CAS letters. Beyond providing
documents that he was in receipt of government funding and credits on behalf of
the children, he had not provided evidence to support his financial
contribution or demonstrated that he was the primary financial support for his
children in Canada.
[14]
The Officer referred to the applicant being
sentenced to a peace bond on April 8, 2013 after being charged with assault on
May 26, 2012. The Officer had asked for an update on any criminal proceedings
against the applicant in the first decision and none had been provided. She
gave negative consideration to the fact that the applicant was not forthcoming
about these proceedings as requested. Moreover, a charge related to a domestic
assault arose after the court order awarded the applicant care and custody of
the children. For all these reasons, the Officer rejected the reconsideration
request.
[15]
In light of the children’s’ situation and the
Federal Court of Appeal decision in Kisana v Canada (Citizenship and
Immigration), 2009 FCA 189, [2010] 1 FCR 360 [Kisana], the Court
requested submissions from the parties on whether there had been a failure of
procedural fairness by the omission of the H&C officer to require the
applicant to provide updated information from the CAS regarding the current parenting
status of the children placed under the applicant’s care and custody in the spring
of 2013 along with any other relevant information pertaining to this issue and
any in respect of certifying a question for appeal on the issue.
IV.
Issues and Standard of Review
[16]
The issue of whether the Officer erred in
assessing the evidence and particularly, the best interests of the children in
light of the new evidence introduced in the reconsideration of the case is
reviewed on a reasonableness standard found to be applicable to the judicial
review of H&C decisions (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190,
2008 SCC 9; Kanthasamy v Canada (Citizenship and Immigration), 2013 FC
802 at para 10, [2014] 3 FCR 438, aff’d 2014 FCA 113).
[17]
The further issue of whether the duty of procedural
fairness required the Officer to request additional evidence on the best
interests of the children is to be reviewed on the correctness standard (Mission
Institute v Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 79; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 43). However, I adopt the hybrid standard recently enunciated by the
Federal Court of Appeal in Forest Ethics Advocacy Association v National
Energy Board, 2014 FCA 245, 246 ACWS (3d) 191 (see also: Re: Sound v
Fitness Industry Council of Canada, 2014 FCA 48 at paras 34-42, 455 NR 87
and Maritime Broadcasting System Ltd. v Canadian Media Guild, 2014 FCA
59 at paras 50-56, 373 DLR (4th) 167). The procedural fairness issue is to be
determined on the correctness standard, but the Court must give some deference
to the Officer’s procedural choices.
V.
Analysis
A.
Assessment of the evidence
[18]
Based on the deferential test of reasonableness,
I conclude that the Officer’s assessment of the evidence, apart from the
procedural fairness issue in regard to the best interests of the children in
light of the new evidence introduced in the reconsideration, falls within an
acceptable range of reasonable outcomes and is justified by intelligible and
transparent reasons. In this regard, I disagree with the applicant’s contention
that the reasons demonstrate “reviewer’s contempt,”
such as by introducing a personal and highly moral judgment into the
consideration of the children’s best interests in her remarks about the
applicant’s infidelity.
[19]
As mentioned, the Officer’s review of this issue
was detailed in pointing out problems and lack of supporting evidence. The
reference to “infidelity” related to the
applicant’s fathering two children within five months from different mothers
while in a six-year relationship with one of the mothers, which was
subsequently repeated with another woman thereafter. This is not behaviour that
is to be condoned when the children, who are the basis of the applicant’s claim
to remain in Canada, end up being found at risk when left residing with the
mother and are under the care of the applicant under the supervision of the
CAS. It is fair background evidence to a claim based on the best interests of
the children. I do not find in any event, that it had any effect on the
Officer’s decision.
B.
Failure to Update Evidence on the Best Interests
of the Children
[20]
The main point of concern is this matter is whether
a breach of procedural fairness occurred when the Officer failed to seek
further evidence about the children’s current situation in light of her
conclusion that the evidence was insufficient to demonstrate that the
applicant’s removal would jeopardize their best interests.
[21]
In the spring of 2012, the applicant was
assigned sole care and custody of five to seven of his children for six months,
which included responsibility for their financial and other well-being, under CAS’
supervision. At that time, CAS stated that placing the children with the applicant
was believed to be in their best interest. The Officer may not be aware that an
order placing the children under the care of their father, as supervised by CAS,
requires the sanction of a family law court (either the Ontario Court of
Justice or the Family Court of the Superior Court of Justice). Such an order is
only made upon being persuaded that the children were at risk, in this case if
left with their mother, and that their best interest was best served by placing
them under the applicant’s care.
[22]
There are comments in the CAS’ 2012 letters that
some of the children had been experiencing behavioural issues and that these
issues were mitigated by the applicant’s new role as the primary caregiver. When
the Officer’s decision was made the fact that the children remained in the
applicant’s custody and care was corroborated by some evidence, admittedly of
reduced weight, from the school documents and the documents showing that the
applicant received government grants and credits paid on behalf of the children
in 2013.
[23]
Conversely, the most probative evidence on the
risk to the children that was introduced for the purposes of the
reconsideration dates back to April and May 2012 and is found in CAS’ files.
This evidence should have been updated to June 2013 to establish that the applicant
continued to have sole custody of the children and that this arrangement
remained in their best interests. In particular, CAS’ files would contain evidence
accumulated as a result of its ongoing supervision functions that would confirm
the extension of the initial six-month care and custody supervision order and describe
how well the applicant had carried out his responsibilities towards his children.
The absence of this evidence is significant, particularly in light of the unreported
domestic assault charges which occurred after the applicant took custody of the
children. Other probative evidence demonstrating that he was providing
financial and emotional support for his children would also have been readily
available from various reliable third-party sources, such as CAS, schools, and
government agencies.
[24]
In Kisana, the Federal Court of Appeal
considered the certified question of whether “fairness
imposed a duty on the officer to obtain further information concerning the best
interests of the children […] if she believed that the evidence was
insufficient?”
[25]
Justice Nadon, speaking for the majority, concluded
that the question could not be answered in the affirmative given the highly
factual and variable circumstances of each H&C application. He did not,
however, rule out the possibility that there may be occasions where fairness
may or will require an officer to obtain further and better information,
concluding that whether fairness so requires will depend on the facts of each
case.
[26]
In what is admittedly a long excerpt from
Justice Nadon’s decision, I cite paragraphs 44 to 57 of his reasons in which he
distinguished cases of this Court, without concluding they were in error. In
view of my decision to apply the distinctions in Kisana, a fulsome
description of the decision is required, with my emphasis noted:
44 The appellants argue that in
the circumstances of this case, the officer was obliged to make an effort to
obtain further information regarding the best interests of the children if she
was of the opinion that what was before her was insufficient. The
respondent argues that an applicant bears the burden of making his or her case
on an H&C application and that, in the circumstances of this case, the
officer was not under any duty to assist the appellants in discharging that
onus.
45 It is trite law that the content
of procedural fairness is variable and contextual (see: Baker, above, at
paragraph 21; and Khan v. Canada (Minister of Citizenship and Immigration),
2001 FCA 345, [2002] 2 F.C. 413). The ultimate question in each case is whether
the person affected by a decision "had a meaningful opportunity to present
their case fully and fairly" (see: Baker, above, at paragraph 30).
In the context of H&C applications, it has been consistently held that the
onus of establishing that an H&C exemption is warranted lies with an
applicant; an officer is under no duty to highlight weaknesses in an
application and to request further submissions (see, for example: Thandal,
above, at paragraph 9). In Owusu, above, this Court held that an H&C
officer was not under a positive obligation to make inquiries concerning the
best interests of children in circumstances where the issue was raised only in
an "oblique, cursory and obscure" way (at paragraph 9). The H&C
submissions in that case consisted of a seven-page letter in which the only
reference to the best interests of the children was contained in the sentence:
"Should he be forced to return to Ghana, [Mr. Owusu] [page381] will not
have any ways to support his family financially and he will have to live
every day of his life in constant fear" (at paragraph 6).
46 In support of their view that
there was a duty upon the officer to make further inquiries, the appellants
rely on two Federal Court decisions, namely, Del Cid v. Canada (Minister of Citizenship
and Immigration), 2006 FC 326; and Bassan v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 742, 15 Imm. L.R. (3d) 316. In Del
Cid, above, O'Keefe J. expressed the view that the officer had an
obligation to make further inquiries regarding the best interests of the
children. However, he recognized this duty specifically in respect of
Canadian-born children (at paragraphs 30 and 33). His finding was also
contingent on his view that the evidence initially placed before the officer
was sufficient to merit further inquiries (at paragraph 43 of these reasons).
47 It is important to note that in Del
Cid, above, there was evidence before the officer that the applicant's
very young children were negatively affected by the separation: they were
unable to eat, cried for extensive periods of time, were integrated into the
Canadian system and spoke English as their language, and would be losing the
love and support of their custodial parent. Failure to balance these factors
made the officer's decision unreasonable.
48 In Bassan, above, McKeown
J. expressed a view similar to that expressed by O'Keefe J. in Del Cid,
above, when he said at paragraph 6:
An H and C officer must make
further inquiries when a Canadian born child is involved in order to show that
he or she has been attentive and sensitive to the importance of the rights of
the child, the child's best interests and the hardship that may [page382] be
caused to the child by a negative decision. As
stated by Madam Justice L'Heureux-Dubé, such further inquiry "is essential
for an H and C decision to be made in a reasonable manner".
49 For the reasons that follow, I
need not express a view as to the correctness of the decisions in Del Cid
and Bassan, above. However, to the extent that these decisions
reached a conclusion inconsistent with these reasons, they should not be
followed.
[…]
56 There can be no doubt that the
officer could have asked more questions in order to obtain additional
information with regard to the twins' situation in India, but, as we shall see,
she was under no duty to do so in this case. It may be that the pointed and
narrow questions disclosed by the CAIPS notes probably did not constitute the
most effective manner of obtaining information from these applicants,
particularly in light of the lack of documentary evidence provided by them. However,
the vacuum, if any, was created by the appellants' failure to assume their
burden of proof. In these circumstances, the officer's poor interviewing
techniques, if that be the case, are, in my view, insufficient to justify
intervention on our part.
57 The appellants have failed to
specify what areas of investigation or inquiry the officer should have pursued,
other than in the following respects. At paragraph 3 of their memorandum, they state
that although the officer asked the girls "what their lives were like with
their aunt and how they were doing in school", she did not ask them
"how they coped without their parents, if they missed them or if they had
any particular problems because of separation from them". They then affirm
at paragraph 25 of their memorandum that "it is implicit in the officer's
reason for rejecting the application that had the officer been satisfied that
the twins were being supported by their parents and had ongoing contact with
them -- which were asserted but not supported by corroborative evidence -- the
results might well have been favourable to the girls".
58 With respect to the first point, I
fail to see the necessity of asking questions with regard to whether the
children missed their parents or whether the separation caused them any
particular problem. In my judgment, there would have been no purpose in
asking these questions, considering that Mr. Carpenter, in his letter of
March 6, 2006, had already indicated that the separation was having a
considerable emotional impact on the family and that it "would be harsh
and inhuman" to prevent the parents from raising their children in Canada.
Further, one has to assume that the officer was capable of realizing that it
must have been difficult for children of that age to be permanently separated
from their parents.
59 With respect to the second
point, it is difficult, if not impossible, to say whether the officer's
decision would have been different had she received additional evidence
concerning the nature of the relationship between the parents and their
children and, more particularly, with regard to the frequency of their
contacts, i.e. daily, weekly, monthly, etc. However, the appellants' assertion
on this point does not lead to the conclusion that the officer ought to have
pursued the matter further.
60 Given that the appellants were
represented by an immigration consultant, that the girls were clearly asked to
bring to the interview documents pertaining to "communication with your
sponsor, e.g. cards/letters, telephone bills", and considering that their
aunt had accompanied them to the interview and was also interviewed and thus
had the opportunity of providing an explanation with regard to the children's plight,
I cannot conclude that the officer had a duty to make further inquiries. I
have not been persuaded that, in the circumstances of this case, fairness
required the officer to provide them with another opportunity to produce
documents and/or information in support of their application.
61 The burden was on the
appellants to demonstrate to the officer that there were sufficient H&C
grounds to [page386] grant them an exemption from the requirements of the Act
and its Regulations. They were unable to meet that burden. Hence, I conclude
that the officer did not have a duty to make further inquiries.
62 Because of the highly factual and
variable circumstances of each H&C application, I cannot see how the
certified question can be answered in the affirmative. However, I do not
rule out the possibility that there may be occasions where fairness may or will
require an officer to obtain further and better information. Whether fairness
so requires will therefore depend on the facts of each case.
[Emphasis added.]
[27]
The facts in this case straddle those in Kisana,
Del Cid v Canada (Citizenship and Immigration), 2006 FC 326, 146 ACWS
(3d) 1055 [Del Cid] and Bassan, 2001 FCT 742, 15 Imm LR (3d) 316
[Bassan]. Kisana looms over this case inasmuch as the Officer has
provided the applicant, who was represented by counsel, with a further
opportunity to present evidence on the best interests of the children. It is
difficult to conclude that she was not sensitive to the children’s interests or
that any reviewable error exists in her finding that the evidence presented was
insufficient, especially when the party was represented and provided the
special opportunity of a reconsideration, bearing in mind the deference owed to
the Officer’s procedural choices.
[28]
However, the absence of proper evidence may be
accounted for on any number of reasons, including poor lawyering (which may
involve retainer issues, as was raised in some of the documentation in this
application) or a genuine misunderstanding by the applicant as to the
particularity of evidence required to demonstrate his continuing parental obligations.
On the other hand, it is also possible that the situation had changed since
2012 and the applicant no longer has sole care and custody of the children.
Obviously, if the absence of critical evidence is due to the first two causes
described above, the applicant may very well be the central figure in the
children’s lives, meaning that his removal could have a serious harmful effect
on their best interests. If full weight is given to such evidence, it could
well result in a decision granting permanent residency to the applicant.
[29]
The factors mentioned in Kisana that
militate in favour of the imposition of a duty to make further inquiries in the
present case include:
A. A duty appears to be recognized specifically in respect of
Canadian-born children;
B.
There was probative evidence before the Officer that
the applicant’s removal would negatively affect his children who had been found
to be at risk of harm under their mother’s care and placed in the applicant’s
care by qualified authorities and that this was confirmed to be in their best
interests by a family law court;
C.
Unlike in Kisana, an important purpose would
be served in obtaining further information from CAS, as it would provide
probative and reliable evidence on the best interests of the children in
remaining with the father, including an opinion on the impact of his removal,
all of which would serve to assist the H&C officer’s decision; and
D. Also unlike in Kisana, it is not difficult, nor impossible,
to say that information from CAS confirming the applicant’s important role in
the affected children’s lives would be a highly significant factor in the Officer’s
decision-making process and that the decision could very well be different from
that which was rendered.
[30]
In my view, the evidence demonstrated that there
was a serious possibility, even a probability, that the applicant’s children, who
had been previously determined to be vulnerable and at risk by qualified
experts, would suffer unduly if the father was removed. The risks are such that
they are more than comparable and probably exceed those of the children in Del
Cid and Bassan, which imposed a duty to seek further information
from the Officer. The fact that the children were placed with the father by CAS
in 2013 is such a significant and overriding fact in relation to their best
interests, that Madam Justice L’Heureux-Dubé’s direction in Baker v Canada
(Citizenship and Immigration), [1999] 2 S.C.R. 817 should apply that “such further inquiry is essential for an H & C decision
to be made in a reasonable manner.” I conclude that the Officer could
not have been alert, alive and sensitive to the affected children’s interests
by simply accepting that a failure to provide updated evidence was sufficient
to allow her “to determine, in the circumstances of
[this] case, the likely degree of hardship to the [children] 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” (Hawthorne v Canada (Citizenship
and Immigration), 2002 FCA 475 at para 6, [2003] 2 FC 555).
C.
Should Applicants and their Counsel be Required
to Certify the Provision of Complete and Updated Evidence on the Best Interests
of their Children?
[31]
It is of concern to the Court that it is setting
aside a decision of an H&C Officer on an issue that arises primarily
because the applicant and his counsel failed to provide complete and updated
evidence on the best interests of the affected children. Realistically,
decision-makers in the immigration and refugee regime cannot be responsible for
ensuring evidence on the best interests of children is brought before them.
They do not have the mandate to place the best interests of children first and
foremost as in the family courts of the provinces. In addition, they do not
have the benefit of the more fulsome record on the children’s best interests
that normally results from the adversarial processes and the involvement of institutions
like children’s aid societies in custody cases.
[32]
In my view, new rules should be put in place
imposing obligations on applicants making submissions based on the best
interests of children to provide all relevant and updated evidence that are
pertinent to this issue, particulars of which should be specified in the rules.
In addition, counsel acting for applicants on these cases should certify that
they have explained the obligations on the applicants to bring forward all
pertinent evidence on the best interests of the children and that have
understood this obligation. The exact details of such an obligation could be readily
worked out with the assistance of the organizations representing refugees and
other immigrants, who it is imagined would endorse such a rule.
[33]
If such rules were in place, not only would
cases of this nature not recur, but decision-makers in these matters would be
confident that they are making decisions in relation to the best interest of
the children with the knowledge that they have all the relevant information on
which to make an informed and recent decision.
VI.
Conclusion
[34]
I allow the application and refer the matter
back to a different officer for consideration. The parties agreed that this was
not a case warranting certification of a question for appeal and none is
certified.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
the application is allowed and the matter is
referred back to a different officer for consideration; and
2.
no question is certified for appeal.
"Peter Annis"
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