Docket: IMM-1973-16
Citation:
2016 FC 1224
Vancouver, British Columbia, November 3, 2016
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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CYNTHIA MURGUIA
CEREZO
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The present Application concerns a decision
dated April 22, 2016 in which the Applicant’s request for humanitarian and
compassionate relief pursuant to s. 25(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 was rejected. I find that the decision is
unreasonable because it is based on a fundamental misunderstanding of the
grounds upon which the request was made, and a failure to apply the law with
respect to finding the best interests of the Applicant’s children.
I.
The Officer’s Fundamental Misunderstanding
[2]
The uncontested facts and grounds upon which the
request for relief was based are described in the following passage from
Counsel for the Applicant’s submission in support of the request dated
September 3, 2015:
Cynthia is a citizen of the Philippines and
came to Canada on 13 March 2008 as a temporary foreign worker. She had a job
offer as a sales person at "Treasures Tunes 'n Things" in Chilliwack,
BC. The owner and manager of the store was Salvatore Dominelli
("Salvatore"), Cynthia's now husband.
Cynthia and Salvatore worked together every
day in the store and fell in love. The couple married on 20 December 2008 and
their son Joseph was born on 31 October 2009. Around that time, Cynthia and
Salvatore submitted a spousal sponsorship application. They mailed the
application to the CIC Processing Centre from the post office in Chilliwack by
regular mail.
However, they recently learned that the
application was either never received or processed. This came to light when
CBSA officers contacted Cynthia about her lack of status about one month ago.
We do not have a mail receipt or a copy of
2009 application. However, we do have a copy of the receipt for the $550
application fee, which is included at Tab 9. Also included is a copy of a
letter of support that had been written for the 2009 application.
The couple had been told by friends and
acquaintances that spousal sponsorship applications can take some time to be
processed and so they were not worried about CIC's 'silence'. They assumed that
their application was in queue and that Cynthia's immigration status was
regularized as she was married to a Canadian citizen and they had applied for
permanent residency for her.
Later, the couple learned that Salvatore
may not be approved as a sponsor because he was in arrears for child support
payments. See enclosed statutory declaration about the circumstances
surrounding these arrears. The couple then believed that this issue became the
reason for the delay in the application.
On 18 June 2015, the couple's second child
Jacob was born. Cynthia's husband is now 65 years old and is a designated
person with disability. Cynthia is therefore the primary caregiver and mainstay
for the family.
To be considered for an exemption on humanitarian
and compassionate grounds, an applicant must demonstrate that to make the
application from outside Canada would cause hardship that is unusual and
undeserved, or that is disproportionate. I submit that Cynthia and her
Canadian spouse and children would all face disproportionate hardship if she
were to be returned to the Philippines. […]
[Emphasis added]
(Tribunal Record. pp. 145-146)
[3]
The Officer’s understanding of the grounds upon
which the relief was requested is established by the following statements in
the decision:
The applicant is a 33 year old woman from
Roxas City in the Philippines. She has a Canadian citizen husband as well as
two children who are six years old and 10 months old. Mrs. Cerezo's
humanitarian and compassionate (H&C) grounds are based on her establishment,
the best interest of the child (BIOC), and adverse country conditions.
The applicant states that Mr. Dominelli
is unable to sponsor her because he is in arrears of child support. She is seeking an exemption from the in-Canada eligibility
criteria so that she may apply for permanent residence from within Canada.
(Decision, p.2)
[…]
In H&C applications, it is the applicant
who bears the burden of proof. In the absence of any further supporting
documentary concerning the applicant's husband, I find that the applicant's
affidavit and accompanying documents are of insufficient weight to demonstrate
that Mr. Dominelli is, on a balance of probabilities, ineligible to sponsor
Mrs. Cerezo under the spousal category.
I note that Mrs. Cerezo's separation from
Mr. Dominelli need not be a permanent one. Mr. Dominelli, if eligible, could
make a spousal sponsorship application on the applicant's behalf. The
applicant has provided little information to substantiate the statement that
she would be unable to immigrate to Canada under the spousal category.
Therefore, Mrs. Cerezo's re-unification in Canada with Mr. Dominelli could be
accomplished through a visa office. An H&C application is not meant to be
an alternate means of applying for permanent resident status in Canada.
[Emphasis added]
(Decision, pp.3-4)
[4]
From the statements, I find that the Officer
misconstrued the basis of the Applicant’s request for H&C relief as having
to do with a sponsorship problem, and, as a result, did not properly and fairly
consider the Applicant’s disproportionate hardship submission.
II.
The Officer’s Best Interests Findings and
the Law
[5]
With respect to the best interests of the
Applicant’s children, the following paragraphs from the decision state key
findings:
Mrs. Cerezo has two children, Joseph and
Jacob, who are six years old and 10 months old respectively. The oldest has
begun school while the youngest is still an infant. I acknowledge that it
appears that the Cerezo-Dominelli family are a tight and cohesive family unit.
Moreover, I recognize that the children still depend on their parents to
meet their daily needs due to their young age. Given these factors, I find that
it is in the best interest of both children to remain with their parents.
(Decision, p. 5)
[…]
I have also considered BIOC in relation to
the two Dominelli children. I acknowledged that it is in the best interest
of the applicant's children to remain with both parents and that their
interests are better served in Canada. Nevertheless, I found that the
children have supportive extended family, access to education, housing, and
health care in both Canada and the Philippines. Additionally, I am mindful that
it is ultimately up to the applicant and her husband to decide where their
children reside. The couple can choose to be reunited in the Philippines, Mrs.
Cerezo can take the children by herself, or Mr. Dominelli could provide for the
children in Canada. If Joseph and Jacob were to accompany one or both parents
to the Philippines, I have found that there was insufficient evidence to
conclude that the children's well-being and development are likely to be
significantly negatively impacted.
I also remark that BIOC is only one of many
important factors that the decision-maker must consider when making an H&C
decision that directly affects a child. The purpose of section 25 of IRPA is to
give the Minister the flexibility to deal with extraordinary situations which
H&C grounds compel the Minister to act. In this particular case, I find
that the weight accorded to the BIOC is not enough to justify an exemption
because of the insufficient evidence demonstrating a negative impact on the
children if the applicant leaves Canada.
[Emphasis added]
(Decision, pp. 6-7)
[6]
In my opinion the Officer’s analysis of the best
interests of the children is conflicted to the point of being unintelligible.
Having found that “it is in the best interest of the Applicant's
children to remain with both parents and that their interests are better served
in Canada” it is counter-indicated to then find that, nevertheless,
serious dislocation and separation is tolerable. It is this hardship upon which
the H&C application is based, and which was apparently neglected. In my
opinion, the decision is devoid of sensitivity towards the children.
[7]
In Kanthasamy v. Canada (Citizenship and
Immigration), 2015 SCC 61 (Kanthasamy) at paragraphs 39 and 40, the
Supreme Court of Canada provides clear direction on reaching a reasonable determination
of a child’s best interests:
A decision under s. 25(1) will therefore be
found to be unreasonable if the interests of children affected by the decision
are not sufficiently considered: [Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817], at
para. 75. This means that decision-makers must do more than simply state that
the interests of a child have been taken into account: [Hawthorne v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 475], at para. 32.
Those interests must be "well identified and defined" and examined
"with a great deal of attention" in light of all the evidence: Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and
Immigration), 323 F.T.R. 181 [2008 FC 165], at paras. 9-12.
Where, as here, the legislation specifically
directs that the best interests of a child who is "directly affected"
be considered, those interests are a singularly significant focus and
perspective: [A.C. v. Manitoba (Director of Child and Family Services),
[2009] 2 S.C.R. 181, at paras. 80-81].
[8]
In the decision in Kolosovs, cited with
approval in the above passage from Kanthasamy, at paragraph 8 the
specific issues engaged in arriving at a reasonable determination of a child’s
best interests are stated:
Baker at
para. 75 states that an H&C decision will be unreasonable if the
decision-maker does not adequately consider the best interests of the children
affected by the decision:
The principles discussed above
indicate that, 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. [Emphasis in the original]
[…] To come to a reasonable decision, a
decision-maker must demonstrate that he or she is alert, alive and sensitive to
the best interests of the children under consideration. Therefore, in order to
assess whether the Officer was "alert, alive and sensitive", the content
of this requirement must be addressed.
[9]
Kolosovs at
paragraph 12 states the content of sensitivity:
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. As
stated in Baker at para. 75:
" ... 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]
[10]
Thus, the engagement of sensitivity is
fundamental to rendering a decision on the best interests of a child. In the
present case, I find that the Officer’s failure to apply sensitivity to the
situation faced by the children resulted in a decision which minimized their
interests.
III.
Result
[11]
For the reasons provided, I find the decision
under review is unreasonable.
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