Docket: IMM-5556-15
IMM-5561-15
Citation:
2016 FC 840
Ottawa, Ontario, July 20, 2016
PRESENT: The
Honourable Mr. Justice Southcott
|
BETWEEN:
Docket:
IMM-5556-15
|
|
JACQUELINE
FREMAH
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
|
and
|
|
BETWEEN:
|
|
Docket: IMM-5561-15
|
|
EVELYN FAKAA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants, Ms. Jacqueline Fremah and Ms.
Evelyn Fakaa, are citizens of Ghana. Their mother, Ms. Comfort Anane, moved to
Canada in 2005 and lives here with the Applicants’ half-brothers, Luke and
Richmond. The Applicants have applied for permanent residence in Canada,
sponsored by their mother who is a naturalized Canadian citizen. However,
because their mother did not declare the Applicants as family members when she
applied for permanent residence, they are excluded from applying as members of
the family class. The Applicants have therefore sought an exemption from this
exclusion on humanitarian and compassionate [H&C] grounds.
[2]
A Citizenship and Immigration Canada officer decided
that H&C factors did not warrant granting an exemption. Each of the
Applicants has applied separately for judicial review of the officer’s
decision. This Judgment and Reasons apply to both applications.
[3]
As explained in more detail below, I am allowing
these applications, because the officer did not consider the emotional impact
that continued separation from her daughters would have on Ms. Anane and the
resulting impact upon her two sons, Luke and Richmond. Consideration of H&C
grounds requires taking into account the best interests of affected children.
Despite submissions by the Applicants on this impact upon Ms. Anane and her
sons, the officer failed to take this into account, making the resulting
decision unreasonable.
II.
Background
[4]
While the Applicants are now adults, they were
15 and 21 years old at the time of their applications for permanent residence.
Their half-brothers, Luke and Richmond, were 3 and 5 years old at the time of
the applications. Ms. Fakaa also has two half siblings in Ghana, Kwabena and
Baba, who are unrelated to Ms. Anane.
[5]
Ms. Anane was born in Ghana but was sponsored to
come to Canada as a permanent resident by her ex-husband in 2005. In her own
application for permanent residence, she did not declare her daughters as
family members. The Applicants first applied for permanent residence in 2010
under Ms. Anane’s sponsorship. However, their applications were rejected under
section 117(9)(d) of the Immigration and Refugee Protection Regulations,
SOR 2002-227, the effect of which is to exclude undeclared family members from
membership in the family class.
[6]
In May 2012, the Applicants submitted new
applications for permanent residence, again supported by the sponsorship of
their mother. They requested that the officer reviewing their application
consider whether there were sufficient H&C grounds under section 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], including the best interests
of children affected by the decision, to overcome the consequences of section
117(9)(d).
[7]
Those applications for permanent residence were
rejected on February 24, 2014. The Applicants sought judicial review of that
rejection, which was overturned by the Federal Court on June 29, 2015. In an unreported
decision in files IMM-2982-14 and IMM-298-14, Justice McVeigh concluded that
the officer had failed to consider the best interests of Luke and Richmond, had
not properly applied the test for consideration of the best interests of a
child, and had not properly considered evidence of country conditions in Ghana.
[8]
Following this Federal Court decision, the
Applicants updated their applications for permanent residence, but these were
rejected again on November 6, 2015. The decision rejecting those applications
is the subject of this judicial review.
III.
Impugned Decision
[9]
The reasons for the officer’s decision are
contained in notes in the Global Case Management System. The officer refers to
the Federal Court decision returning the permanent residence applications for
redetermination and then reviews the facts relevant to the decision, noting the
Applicants’ exclusion under section 117(9)(d) of the IRPR. The officer then
proceeds to the assessment of these facts.
[10]
That assessment begins by noting that, following
Justice McVeigh’s judgment, the officer will assess the best interests of each
of the children involved in the applications. The officer refers to these
children being the Applicants and their four half siblings, noting that the
previous decision that had been reviewed by Justice McVeigh had not considered
the interests of Kwabena and Baba.
[11]
The officer first considers the best interests
of the Applicants, stating that the interests to be examined are whether they
should go to Canada or stay in Ghana. The officer takes into account Ms.
Anane’s decision not to include the Applicants on her application for permanent
residence and notes that she believed at that time that it was in the best
interests of her daughters to remain in Ghana while she established herself in
Canada. Referring to the Applicants’ living situation in Ghana, the officer
observes that, while emotional support from their mother may be deficient due
to the distance, they appear to receive all the care they need. They are
healthy and have done well in school. The officer refers to Ms. Fakaa’s
attendance at a private university in Ghana and notes that, while private
universities are expensive, public universities enjoy a good reputation and
offer a broad choice of recognized diplomas.
[12]
Turning to the country condition documentation,
the officer observes that Ghana is no longer a third world country and that
economic, gender equality and health care conditions are improving. While
gender discrimination in the labour market still exists, the Applicants’ coming
to Canada would also affect their linkage to employment opportunities in Ghana.
Referring to Ms. Anane’s intention to take advantage of her daughters’ presence
to allow her to work more, the officer observes she would then be less
frequently present for all four of her children, including Luke and Richmond.
This would also place a heavy burden upon the Applicants. Overall, the officer
concludes that it is in the Applicants’ best interests to remain in Ghana.
[13]
The officer then considers whether it is in the
best interests of Luke and Richmond to be reunited with the Applicants or to
continue to maintain a distance relationship with them. The officer canvasses
the history of their relationship and observes that, if they were not reunited
in Canada, they could still continue to maintain contact. Placing significant
weight on the concern about leaving Luke and Richmond in the care of the
Applicants so that Ms. Anane could work more, the officer concludes that it is
in their best interests to remain separated from the Applicants.
[14]
Noting that there was extremely limited
information on Kwabena and Baba, and that they had not grown up with Ms. Fakaa,
the officer determines that being separated from her would have a limited
impact on them.
[15]
The decision concludes by stating that, after
examining thoroughly all the elements on file, identifying the best interest of
all the children involved, and after weighing all the factors, the officer was
not satisfied that there were sufficient elements to warrant an exemption to
the Applicants’ exclusion.
IV.
Issues and Standard of Review
[16]
The Applicants raise the following issues for
the Court’s consideration:
A.
The Applicants argue that the officer
misunderstood Justice McVeigh’s decision, in that the officer’s analysis
focused solely on the best interests of the children involved, to the exclusion
of consideration of the hardship upon Ms. Anane resulting from separation from
the Applicants;
B.
The Applicants argue that the officer engaged in
conjecture and speculation in analysing the country condition documents,
reaching conclusions on the conditions in Ghana which are unsubstantiated by
the documentary evidence and inconsistent with that evidence; and
C.
The Applicants argue that the officer erred in
the assessment of the best interests of the children, in reaching the
conclusion that it would be in their best interests for the Applicants to
remain in Ghana because of the adverse impact of Ms. Anane working more if the
Applicants were to join her in Canada.
[17]
The parties agree that these issues are to be
reviewed on a standard of reasonableness.
V.
Analysis
[18]
My decision to allow these applications for
judicial review turns on the first issue raised by the Applicants. Their
argument is that, in following the guidance of Justice McVeigh’s decision,
which focused on the analysis of best interests of the children, the officer
failed to consider any H&C factors other than those interests. The
Applicants point to the evidence and submissions before the officer on the
emotional impact on Ms. Anane of ongoing separation from her daughters and
argue that the resulting hardship was not taken into account. They rely on both
the content and structure of the decision, which first sets out facts and
submissions relevant to Ms. Anane and the children and then proceeds to assess
the best interests of each of the children and reach a conclusion, without
including a section considering hardship.
[19]
The Respondent points out that the decision
begins with a statement that the officer has taken into account H&C grounds
and the best interests of the children directly affected, The Respondent argues
this demonstrates that not only the children’s interests were considered and
that the portion of the decision setting out facts demonstrates the officer’s
awareness of the hardship said to be faced by Ms. Anane. The Respondent also
notes that the portion of the decision containing the officer’s assessment
refers to the officer having taken into consideration the emotional hardship
for all the parties involved, referring to the Applicants, their mother, Luke
and Richmond, and extended family.
[20]
While the Respondent’s submissions on this issue
focused on establishing that hardship faced by Ms. Anane was considered, the
Respondent also raised at the hearing the question whether such hardship is
relevant to the H&C consideration, given that the Applicants and not Ms.
Anane are the foreign nationals who are seeking permanent residence and
exemption under section 25 of IRPA. The Applicants’ position on this point is
that H&C factors should be considered globally in relation to the affected
family, not just the person requesting the exemption.
[21]
Neither party argued this point in any detail.
However, it is unnecessary for me to address this point, as my decision is
based on the officer’s failure to consider the effect that ongoing separation
from her daughters may have on Ms. Anane’s ability to care and provide for Luke
and Richmond. The emotional impact of this separation on Ms. Anane is relevant
to the best interests of her two sons.
[22]
The Applicants’ submissions in support of their
applications for permanent residence expressly raised this factor. I agree with
their position that the decision does not demonstrate that this factor was
given any consideration by the officer. The officer’s reference to considering
the emotional hardship for all parties involved is a general statement and is
not accompanied by any analysis of the emotional hardship faced by Ms. Anane.
More importantly, the portion of the decision analyzing the best interests of
Luke and Richmond reaches the conclusion that it is in their best interests to
remain separated from their sisters, without considering at all the impact that
such separation will have upon their mother’s emotional capacity to care for
them.
[23]
It may have been available to the officer to
conclude that the best interests of Ms. Anane’s sons were not affected by this factor,
or that any such effect still did not warrant granting their sisters an
exemption. However, my conclusion is that the officer was required to consider
this factor and that the failure to do so makes the decision unreasonable. As
this conclusion requires that the applications for judicial review be allowed
and the applications for permanent residence be returned for redetermination on
H&C grounds, it is not necessary for me to consider the other issues raised
by the Applicants.
[24]
Neither party proposed any question of general
importance for certification for appeal, and none is stated.
Email this Content