Docket: IMM-4542-14
Citation: 2015 FC 1270
Ottawa, Ontario,
November 13, 2015
PRESENT: The Honourable Mr. Justice Manson
BETWEEN:
SELVIN DE JESUS BERMUDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1]
This is an application for judicial review of
the April 28, 2014 decision of Senior Immigration Officer M. Campbell [the
Officer] to refuse the Applicant’s application for permanent residence from
within Canada on humanitarian and compassionate [H&C] grounds.
I.
Background
[2]
The Applicant is a citizen of El Salvador, born
on June 16, 1981. He was granted Convention refugee status with his family in
1988 and resettled in Canada.
[3]
In 1992, his parents separated and he moved to
the United States with his mother.
[4]
Beginning in 1995, when the Applicant was
fourteen, he was a member of a localized street gang in Phoenix Arizona called
the “LCM-13”. He ceased membership in 2000, when he was eighteen.
[5]
The Applicant was deported from the United
States to El Salvador in 2008, after serving a five year sentence for an
assault occurring in 2003. Since that time he has not had any serious
convictions.
[6]
The Applicant resided in El Salvador from May to
August of 2008. While there he was threatened by gang members and police who
suspected him of being a gang member (he alleges due to his tattoos).
[7]
In August of 2008, the Applicant fled El
Salvador and arrived in Canada in December of 2008 without documentation, to
join his father and brother, and has remained here since that time.
[8]
In January of 2012, a member of the Immigration
and Refugee Board [IRB] issued a removal order against the Applicant, finding
him inadmissible pursuant to section 37(1)(a) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. The Canada Border Services Agency
[CBSA] is seeking the Minister’s opinion that the Applicant should be removed,
despite his refugee status pursuant to section 115(2) of the IRPA.
[9]
In January of 2013, the Applicant applied for
permanent residence on H&C grounds.
[10]
In a decision dated April 28, 2014, an officer
of Citizenship and Immigration Canada [CIC] denied his H&C application.
[11]
Amendments to section 25 of the IRPA came into
effect making H&C considerations no longer available to exempt an applicant
from the application of section 37(1). The Applicant’s application was filed
prior to these amendments. Accordingly, this judicial review is his final
opportunity for consideration of an exemption.
[12]
The Applicant has four children (three
biological daughters and one step-daughter). Two of them, Jazmine and Ariel,
reside in the United States with their mother, the other two, Kendra and his
step daughter Angelina, reside in Canada with their mother, his current wife.
[13]
The Officer refused the Applicant’s application
largely based on his failure to establish that he would face unusual,
undeserved, or disproportionate hardship if forced to apply for permanent
residence from outside of Canada. It is notable that the Applicant was
incarcerated for five years for assault in the United States, and was deported
from there to El Salvador in 2008, after having served his sentence.
II.
Issues
[14]
The issues in the present application are as
follows:
- Did the Officer
err in assessing the best interests of the Applicant’s children?
- Was the
Officer’s decision reasonable with respect to the best interests of the
children and considering unusual, undeserved or disproportionate hardship
to the Applicant and his family?
III.
Standard of Review
[15]
The appropriate standard of review to be applied
in assessing the issues is reasonableness. The issues involve questions of fact
and discretion, and the tribunal is interpreting its home statute and
associated statutes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 6).
IV.
Analysis
A.
Best Interests of the Children
[16]
The Applicant argues that the Officer failed to
be alert, alive and sensitive to the best interests of his four children (two
American, and two Canadian), as required by section 25(1) of the IRPA. This
factor must first be considered before it can be weighed against other
considerations. It was acknowledged in Hawthorne that in most cases the
best interests of the children will favour them remaining in Canada with their
parents (Hawthorne v Canada (Citizenship and Immigration), 2002 FCA 475
at paras 5-6).
[17]
The Officer noted the following points regarding
the Applicant’s American daughters:
- they are aged twelve and fifteen;
- they reside with their mother in the United
States;
- the Applicant is not their primary
caregiver;
- the Applicant expressed a plan to move
them to Canada but showed no evidence from them or their mother that they
wish to do so;
- the Applicant stated he supports them
financially but provided no evidence to support this assertion.
[18]
Regarding the Applicant’s Canadian daughter and
step daughter, the Officer noted:
- they are one and eight years old;
- they reside with the Applicant’s spouse,
their mother in downtown Toronto;
- the Applicant resides with his father in
Vaughan as a term of his probation;
- the Applicant is not their primary
caregiver;
- the Applicant has not expressed when or
if he plans to live with his spouse and daughters again;
- the Applicant used to take his step
daughter to school every day and give her gifts, but there was no evidence
of how often or when he spends time with her and his daughter presently;
[19]
The Officer correctly applied the appropriate
test in assessing the best interests of the Applicant’s children. First, their
best interests are to be established, and second, the degree to which those
interests will be compromised must be considered (Williams v Canada
(Citizenship and Immigration), 2012 FC 166 at para 63). There is no strict
analytical formula in assessing the best interests of children.
[20]
The Officer in the case at bar considered that
the children’s best interests would be to remain where they are with their
father in Canada, but went on to consider the degree to which the children’s
interests would be adversely affected if the Applicant’s application were refused
would not be sufficient to outweigh other factors in the H&C analysis.
[21]
The Officer noted that the Applicant is not a
primary caregiver to his children, nor does he live with them. While he has
stated intentions to move his American daughters to Canada, he did not state an
intention to reside with his Canadian daughters again, and he provided no evidence
of either potential change in circumstances.
[22]
The Applicant further provided no evidence of
fiscal support for his children, and included only vague affidavits speaking to
the influence he has on his children’s lives, without details of continuing
contact or regular support, be it emotional, physical or fiscal. Overall, the
Applicant provided insufficient evidence of the hardship his daughters would
face if his application were refused.
[23]
The Officer also noted that the Applicant’s
children and their mothers are free to remain in North America. It is the
parents’ decision together whether or not to accompany the Applicant, who is
not a primary caregiver, to El Salvador, and not a necessity or foregone
conclusion.
[24]
The Officer was reasonable in the decision of
determining the best interests of the children.
B.
Was the Decision Reasonable?
[25]
The Applicant also argues that the Officer did
not properly assess the hardship his family would face if his application were
refused. The Applicant noted several relevant considerations to this analysis:
- risk from crime in general;
- risk due to the perception that the
Applicant is a gang member;
- risk due to the perception that he is
wealthy as a North American deportee.
[26]
The Applicant argues that the Officer dismissed
his establishment in Canada on several unreasonable grounds:
- criminal record;
- supporting evidence;
- establishment through family.
[27]
The Officer’s decision was reasonable. While the
assessment of generalized conditions could have been more clearly articulated, the
Officer was working with inadequate evidence submitted by the Applicant.
[28]
Moreover, the Officer’s consideration of general
country conditions in El Salvador was also reasonable. The evidence dealing
with hardships that the Applicant might face upon returning to El Salvador: including
perception of wealth, of gang membership, and of poor socioeconomic conditions,
were reasonably considered.
[29]
General conditions were not ignored simply
because they faced the population as a whole, as the Applicant alleges. There
is no evidence that evidence was ignored in reaching this conclusion, and it
was within the range of reasonable outcomes available to the Officer.
[30]
Further, while the Applicant stated that he was
harassed by police as well as gang members in El Salvador, the Officer noted a
lack of evidence on this point, and reasonably determined that avenues of
redress had not been ruled out should the Applicant be harassed again upon his
return.
[31]
In considering establishment, the Officer again
analyzed the evidence on record and concluded that while the Applicant has
lived the majority of his life in North America, and has most of his immediate
family here, he failed to evidence a level of establishment that would warrant
the granting of an H&C exemption.
[32]
The Applicant provided little evidence of his
employment while in Canada. He further admitted to never having paid income
taxes, and despite a stated desire to do so he provided no evidence to that
effect. He further stated that he supports his children and wife financially
but provided no evidence to that effect either.
[33]
Criminal behavior has persisted in the
Applicant’s life. The Officer noted a number of charges, and acknowledged their
result (i.e. whether or not they resulted in convictions). If the results of
these charges had not been listed then it could be interpreted that the Officer
mischaracterized them, but since it was carefully clarified that they had not
resulted in convictions, they were reasonably considered (i.e. not used as
evidence of criminality in and of themselves).
[34]
The evidence provided by the Applicant’s family
was not ignored, but it was reasonably afforded little weight: the details in the
affidavits submitted were vague, and since they were not based on first-hand
knowledge, it was reasonable to take into consideration that they did not
include the sources of their information.
[35]
The Officer acknowledged that while some factors
weighed in favor of granting the Applicant’s application, overall he had failed
to establish that the level of hardship he and his family would face rose to
the level of undue, undeserved or disproportionate. In addition, while the best
interests of his children weighed in favor of him staying in Canada, they did
not weigh so heavily as to displace the other factors considered by the
Officer.
[36]
The Respondent proposed a question for
certification which was opposed by the Applicant, as found in the decision of
Justice Richard Mosley in Celise v Canada (Citizenship and Immigration),
2015 FC 642:
In a best interests of the child analysis,
is an officer required first to explicitly establish what the child’s best
interests are, and then to establish the degree to which the child’s interests
are compromised by one potential decision over another, in order to show that
the Officer has been alert, alive and sensitive to the best interests of the
child?
THIS COURT’S JUDGMENT is that:
1.
The application is dismissed;
2.
The following question is certified “In a best interests of the child analysis, is an officer
required first to explicitly establish what the child’s best interests are, and
then to establish the degree to which the child’s interests are compromised by
one potential decision over another, in order to show that the Officer has been
alert, alive and sensitive to the best interests of the child?”
"Michael D. Manson"
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