Docket: IMM-2454-16
Citation:
2016 FC 1420
Ottawa, Ontario, December 30, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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TYRON JOHN
RICHARD
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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
[1]
The Applicant, Tyron John Richard, seeks judicial
review of the decision of a Senior Immigration Officer [the Officer], made on
May 27, 2016, refusing his application for permanent residence from within
Canada based on humanitarian and compassionate [H&C] grounds. Mr. Richard
asserts that the Officer made a number of errors, including erring in his
assessment of the best interests of the child.
[2]
For the reasons that follow, the application for
judicial review is granted.
I.
Background
[3]
Mr. Richard is a citizen of Grenada. He has
three (3) Canadian-born daughters with his common-law spouse with whom he has
been in a relationship since 2010. He is also helping raise her two (2)
daughters from a previous relationship. In addition to the five (5) girls he is
raising, Mr. Richard has a son from an earlier relationship who does not live
with him.
[4]
Mr. Richard entered Canada in July 2003 and was
granted permanent resident status after being sponsored by his father. He was
sixteen at that time.
[5]
In July 2009, Mr. Richard was found to be
inadmissible to Canada pursuant to paragraph 36(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 due to criminal convictions in
2007 and 2008. As a result, he was issued a deportation order.
[6]
In August 2010, the Immigration Appeal Division
[IAD] of the Immigration and Refugee Board granted Mr. Richard a stay of
removal for four years, subject to certain conditions.
[7]
In November 2014, Mr. Richard’s appeal was
deemed abandoned given Mr. Richard’s failure to appear at his hearing. As a
result, Mr. Richard lost his permanent resident status. Mr. Richard
mistakenly believed that by giving his change of address to the Canadian Border
Services Agency, it would be forwarded to the IAD.
[8]
A warrant for Mr. Richard’s arrest was issued in
December 2014 and executed in January 2015. He was then placed in immigration
detention, on the ground that he was deemed unlikely to appear for removal.
[9]
On May 21, 2015, Mr. Richard submitted an
H&C application to Citizenship and Immigration Canada based on his level of
establishment in Canada, his rehabilitation from his criminal record and the
best interests of his children. Regarding the best interests of the children, Mr.
Richard submitted that separation from his daughters would have a devastating
impact on the financial, emotional and psychological well-being of the five (5)
minor children, the oldest of which was fourteen (14) years of age. In his
later representations, he submitted that an application for a protection order
was brought by the Children’s Aid Society [CAS] in late 2015 and that in the
course of these proceedings, the CAS articulated concerns regarding the ability
of the children’s mother to care for them. He argued that the outcome of these
proceedings could result in the children being placed in foster care.
[10]
Mr. Richard’s H&C application was denied on May
27, 2016. The Officer found that Mr. Richard’s criminal inadmissibility
outweighed the other positive factors, such as the best interests of Mr.
Richard’s six (6) children.
[11]
On June 9, 2016, Mr. Richard filed an
application for leave and for judicial review of the Officer’s decision.
[12]
On June 30, 2016, upon consent of the parties, Mr.
Justice Russell granted a stay of Mr. Richard’s removal from Canada
pending a decision on the application for leave and for judicial review. Mr.
Richard was subsequently released from detention in July 2016.
II.
Issues and standard of review
[13]
Although Mr. Richard has raised a number of
issues in his written and oral submissions, the determinative issue is whether
the decision of the Officer was reasonable.
[14]
The appropriate standard of review in H&C
applications is reasonableness (Rodriguez Zambrano v Canada (Citizenship and
Immigration), 2008 FC 481 at para 31. The same standard of review is
applicable to the assessment of the best interests of the child (Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61 at paras 44-45 [Kanthasamy];
Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 18; Moya
v Canada (Citizenship and Immigration), 2012 FC 971 at paras 25-26).
[15]
In reviewing a decision against the
reasonableness standard, the Court must consider the justification,
transparency and intelligibility of the decision-making process, and whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in light of the facts and the law (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 59; Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
III.
Analysis
[16]
In Kanthasamy, the Supreme Court of
Canada provided guidance on how an officer should assess an application based
on H&C grounds, particularly when the interests of children are at stake.
At paragraph 39 of its decision, the Supreme Court of Canada articulated that
it is not enough to state that the interests of the children have been
considered. The interests have to be “well identified
and defined” and they must be examined “with a
great deal of attention” in light of all the evidence.
[17]
The Minister argues that the Officer did a
thorough analysis of the best interests of the children. The Officer
acknowledged the statements made by Mr. Richard and his counsel regarding the
CAS involvement with the children and the probable outcome of the Family Court
proceedings. The Officer found that no documents had been provided to support
the health issues of Mr. Richard’s common-law partner and the concerns of the
CAS regarding her ability to care for the children in the event Mr. Richard was
removed from Canada. The Minister submits that Mr. Richard’s claims that he has
been a part of his children’s life, that the CAS is seeking a protection order
for the children because of his common-law partner’s health problems and that
the children face a risk of becoming Crown wards if he is not able to care for
them constitute important grounds for his H&C application. As a result, it
was reasonable for the Officer to require something more than the statements
made by Mr. Richard and his counsel. The onus was on Mr. Richard to establish
the claims he put forth in his H&C application, including claims regarding
the best interests of his children, with relevant evidence. Lastly, the
Minister states that the reasons in the decision clearly indicate that the
Officer gave the best interests of the children significant weight in the assessment
of the H&C application and that he was “alert,
alive and sensitive” to this factor. Therefore, the findings made by the
Officer with regards to the best interests of the children are reasonable,
based on the evidence and information available to him and in accordance with
the jurisprudence.
[18]
While I agree with the Minister that the Officer
states in his decision that he considered the best interests of Mr. Richard’s
six (6) children and that his reasons discuss the possibility of the children
becoming wards of the Crown, I find that the Officer committed a reviewable
error in finding that there was no documentary evidence before him regarding
the CAS proceedings or details from the CAS regarding the ability of Mr.
Richard’s common-law partner to care for the children. On the contrary, there
was a sworn affidavit by Mr. Richard which provided evidence on the protective
order application brought by the CAS before the Family Court. His affidavit
also detailed the CAS’s involvement in the past with his common-law partner and
her two (2) daughters.
[19]
Similarly, the Officer also had before him a
letter dated March 1, 2016 from Mr. Richard’s family lawyer who
represented him in his Family Court proceedings. The letter provides
information on the CAS proceedings and further indicates that the CAS had
articulated “very serious concerns” regarding
the ability of the children’s mother to care for them. In addition to providing
further details regarding the mother’s health condition, Mr. Richard’s lawyer
specifically states that the children are at risk of becoming Crown wards.
[20]
Considering the presumption of truthfulness of a
sworn affidavit (Zarandi v Canada (Citizenship and Immigration), 2015 FC
1036 at para 17) and the fact that the Officer did not raise any issues of
credibility with regards to Mr. Richard’s affidavit as well as the letter from
Mr. Richard’s family law counsel, it was unreasonable for the Officer to
discount this evidence without further explanation.
[21]
I also note that the Officer states in his conclusion
that he has carefully considered the best interests of the children and that it
is an important factor in an H&C application. However, immediately after,
the Officer states that it “is certainly understandable
that [Mr. Richard] would not want to be separated from his children” and
then proceeds to say that he has also considered Mr. Richard’s inadmissibility
due to his criminality. The Officer’s analysis appears to be focussing on the
interests of Mr. Richard and the effect the separation will have on him. It
specifically ignores the caution voiced by the Supreme Court in Kanthasamy
at paragraph 39:
[39] 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, 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, 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, at paras. 9-12.
[22]
While this Court is required to review the
tribunal’s decision as a whole, upon review of the decision, I find that the best
interests of the children have not been clearly laid out, nor assessed from
their own perspective. The Officer failed to identify their interests and in
particular, the ones associated with Mr. Richard’s possible removal from Canada.
As such, it is not possible to know whether the Officer turned his mind to
those interests and this therefore renders the decision unreasonable.
[23]
Moreover, I also note that when analyzing the
economic consequences of Mr. Richard’s removal from Canada, the Officer
discusses the consequences on other family members of Mr. Richard. There
is no discussion of the impact on the children. Then, when discussing the best
interests of the children, the Officer’s analysis is limited to noting that Mr.
Richard has been removed from his daughters’ lives as a result of his detention
and has not been providing any financial support to his children for a
significant period of time. The Officer also observes that their situation is
not unlike that of many other families today, struggling to have enough
financial resources available for their family and to have the time required to
raise their children. There is no other analysis on the economic impact on the
children.
[24]
The Supreme Court of Canada stated in Baker v
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph
75 that a decision is unreasonable if the interests of children affected by the
decision are not sufficiently considered. I believe this to be the case.
[25]
I also find, contrary to the Minister’s submission,
that the Officer committed a reviewable error in finding that Mr. Richard had
not provided any objective evidence regarding his full-time employment at an
automobile center from August 2014 until his detention in January 2015. In
fact, Mr. Richard provided evidence by way of a Statement of Remuneration
issued in 2014 by the Canada Revenue Agency. The Officer erred in discounting
it because it only referred to a corporate number and did not provide the
corporate name. The Minister concedes that the Officer erred with respect to
this finding but submits that the error is not determinative.
[26]
I disagree. In the present case, the Officer’s determination
of whether Mr. Richard should be granted H&C relief involved the assessment
of four (4) factors: his criminality, his establishment in Canada, the economic
consequences of his removal to Grenada and the best interests of the children. The
Officer found that Mr. Richard’s criminality in Canada outweighed the other
positive factors. To the extent that the Officer’s assessment of one of those
factors is based on an erroneous finding, it is reasonable to question whether
the error could have had an impact on the Officer’s overall assessment when
balancing which factors to afford more weight to.
[27]
For these reasons, the Court finds that the
decision is unreasonable and must be set aside.
[28]
At the hearing, Mr. Richard proposed the following
question for certification:
In special circumstances, where there is
evidence before an officer that the best interests of the children are
dramatically affected, as well as evidence before the officer that their
interests are not being adequately advanced, in those special circumstances,
does the officer have a heightened duty of fairness to inquire further about
the best interests of the child?
[29]
The Minister opposes the certification of the
question, stating that the situation is very fact specific and does not meet
the relevant criteria.
[30]
In Zhang v Canada (Citizenship and
Immigration), 2013 FCA 168 at paragraph 9, the Federal Court of Appeal
confirmed the test for certifying questions:
[9] It is trite law that to be
certified, a question must (i) be dispositive of the appeal and (ii) transcend
the interests of the immediate parties to the litigation, as well as
contemplate issues of broad significance or general importance. As a corollary,
the question must also have been raised and dealt with by the court below and
it must arise from the case, not from the Judge’s reasons (Canada (Minister
of Citizenship and Immigration) v. Liyanagamage, 176 N.R. 4, 51 A.C.W.S.
(3d) 910 (F.C.A.) at paragraph 4; Zazai v. Canada (Minister of Citizenship
and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368 (F.C.A.) at paragraphs
11-12; Varela v. Canada (Minister of Citizenship and Immigration), 2009
FCA 145. [2010] 1 F.C.R. 129 at paragraphs 28, 29, and 32).
[31]
I agree with the Minister that the question
proposed by Mr. Richard is very fact specific and is not dispositive of this
matter. Accordingly, no such question shall be certified.
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