Docket: IMM-4012-16
Citation:
2017 FC 286
Ottawa, Ontario, March 16, 2017
PRESENT: The
Honourable Madam Justice Strickland
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BETWEEN:
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NATASHA
GARRAWAY,
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TASSIA GARRAWAY
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Applicants
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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]
This is an application for judicial review of
the decision of a Senior Immigration Officer (“Officer”) of Citizenship and
Immigration Canada (“CIC”) refusing the Applicants’ request for permanent
residence on humanitarian and compassionate grounds (“H&C”) pursuant to s
25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”).
[2]
For the reasons that follow, I have determined
that this application for judicial review must be dismissed.
Background
[3]
The Principal Applicant and her 10 year old
daughter, Tassia, are citizens of St. Vincent (together, the “Applicants”).
The Principal Applicant entered Canada on June 2, 2008, and her daughter
followed on July 29, 2009, at which time she was 3 years old. The Principal
Applicant has two other children, a 14 year old son, Taji, who is a citizen of St. Vincent
and resides there with his maternal grandmother, and a 4 year old son,
Kristian, who is a Canadian citizen. The Principal Applicant sought to include
Taji as a dependent under her H&C application.
[4]
The Applicants made a claim for refugee
protection in August 2010. Their claim was refused in December 2010 and their
application for leave and judicial review of that decision was denied in April
2011. An application to sponsor the Principal Applicant under the spouse in
Canada class was made by Kristian’s father, but his relationship with the
Principal Applicant ended and he withdrew the application in October 2014. The
Principal Applicant submitted a Pre-Removal Risk Assessment (“PRRA”)
application which was refused in November 2014. Judicial review of the PRRA
decision was refused on October 10, 2015. On April 7, 2016, the Applicants
submitted an H&C application which was refused on August 31, 2016. This is
the judicial review of that decision.
Decision Under Review
[5]
The Officer noted that the Applicants have
continuously resided in Canada for approximately 8 and 7 years respectively.
The Principal Applicant was unemployed and receiving social assistance until
2012; she remained employed at the time of the H&C application. The
Officer gave this factor some positive consideration. The Officer noted the
Principal Applicant’s involvement with her local church and a letter of support
in that regard, as well as a letter of support from the Principal Applicant’s
close friend and the god parent to her youngest child. These were also
afforded positive consideration. However, the Principal Applicant had
submitted little further evidence of significant integration into Canadian
society in general, or her local community in particular and the Officer
concluded that the degree of establishment was not greater than would be
expected of individuals adjusting to a new country. Thus, overall, it could
not be given significant positive consideration.
[6]
The Officer also addressed the best interests of
each of the three children concerned. With respect to Taji, the Officer noted
counsel’s submission that Taji has endured years of separation from his mother
and it is in his best interests to reunite with her in Canada. The Officer
noted, however, that Taji has spent his entire life in St. Vincent where
he attends school, likely has friends and has resided with his grandmother who
has raised him since the age of 6. Based on the limited evidence provided, the
Officer could not conclude that Taji had been unable to access education or
healthcare services in St. Vincent. The Officer agreed with the
Applicants’ counsel that it would be in Taji’s best interests to be reunited
with his mother and siblings, but noted that if this reunification took place
in St. Vincent, it would cause minimal disruption to Taji’s routine and
preserve his family and social support network.
[7]
The Officer noted that Tassia came to Canada at
the age of 3 and has spent 7 years in Canada. The Officer acknowledged that
Tassia has spent the majority of her life in Canada and that she is doing well
academically and socially. The Officer also acknowledged that there will
likely be a period of readjustment for Tassia if she returned to St. Vincent
but that she is only 10 years of age and at such a young age is likely to
readapt well to her home country. Returning to St. Vincent would also
reunite her with her grandmother and elder brother.
[8]
The Officer noted that Kristian was born in
Canada, is 4.5 years old and that counsel had submitted that Kristian suffers
from a number of health issues for which he is receiving treatment which would
likely not be available to him in St. Vincent. In that regard, the
Officer noted that the documentary evidence showed that Kristian was diagnosed
with a left hydrocele, which was repaired in April of 2016. And that while
both the Principal Applicant and her counsel asserted that he was likely to
require further treatment, there was no evidence in the record to demonstrate
that Kristian’s surgery was not successful or that he was likely to need any
further treatment for this or any other condition. Further, the Principal
Applicant had adduced no evidence to establish that similar treatment would not
be available to Kristian in St. Vincent, if needed in the future.
Kristian would also be entitled to St. Vincent citizenship through his
mother and be entitled to the benefits available to other citizens.
[9]
The Officer noted that documentary evidence
showed that primary and secondary level medical care is available in St. Vincent,
especially in urban areas such as Kingstown where the Principal Applicant is
from and where her mother and eldest son reside. Further, there was little to
no evidence that the Principal Applicant or her two eldest children have had
difficulty accessing medical services in St. Vincent in the past or that
the healthcare system in St. Vincent would not adequately address the
children’s needs in the future. Therefore, the Officer found that the
Principal Applicant’s three children would have access to health services in St. Vincent
should the need arise.
[10]
The Officer noted a letter from a nurse
practitioner dated March 18, 2016, indicating that Kristian is having
difficulty in daycare likely connected to his father’s separation from the
Principal Applicant and recommending that Kristian obtain counselling services
to address his behavioral and emotional difficulties. Further, that Kristian’s
behavioral issues were documented in a February 2016 report completed by YWCA [sic]
Childcare Services (“YMCA”). However the Officer noted that there was a lack
of evidence to demonstrate that Kristian is in receipt of any counselling
services or that he continues to experience emotional and behavioral
difficulties similar to those he experienced when he was transitioning to a new
environment. In that regard, the Officer also noted that Kristian began
attending the YMCA on January 11, 2016, and the letter adduced was dated
February 8, 2016. As well, there was little evidence to demonstrate that the
appropriate childcare and counselling services would not be available to
Kristian on relocation to St. Vincent.
[11]
The Officer also considered counsel’s submission
that the children would not have access to a Canadian education. The Officer
appreciated that Canadian education may be preferable to the education
available in St. Vincent, however, noted that there is little evidence to
demonstrate that the children would be unable to obtain secondary and
post-secondary education in St. Vincent. The Principal Applicant was able
to obtain secondary and post-secondary education in St. Vincent and there
was little evidence to suggest that her eldest son had any problems accessing
the same. Further, that information obtained from independent sources
indicated that secondary education is compulsory and available for children in
both rural and urban areas of St. Vincent.
[12]
The Officer found that, overall, the conditions
in St. Vincent may not be perfect, however, Parliament did not intend for
s 25 of the IRPA to make up for the difference in the standard of living
between Canada and other countries. Further, there was insufficient evidence
to establish that having to depart from Canada for the purpose of applying for
permanent residence would have a significant negative impact on the best
interests of the children concerned.
[13]
The Officer considered the Principal Applicant’s
statement that she had been a victim of domestic violence but noted that she
had not provided any additional documentary evidence to substantiate her
allegations of past abuse by her former partner. Further, that 8 years had
elapsed since she left St. Vincent and little evidence was adduced to
demonstrate a continued interest by her former partner in locating and harming
her today. Therefore, the Officer placed little weight on this factor.
Moreover, that the documentary evidence established that redress was available
in St. Vincent through the courts, police, government agencies and non-governmental
organizations if the Principal Applicant experienced any problems from her
former partner. The Officer concluded that overall the evidence demonstrated
that women in St. Vincent can face discrimination on the basis of gender,
including gender based violence. However, given the availability of redress,
these discriminatory factors in and of themselves did not warrant an exemption.
[14]
The Officer concluded that, having weighed all
of the factors, considered the circumstances of the Applicants and examined all
of the submitted documentation, he or she was not satisfied that the H&C
considerations before him or her justified an exemption under s 25(1) of
the IRPA.
Issue and Standard of Review
[15]
The Applicants raise only one issue, being
whether the Officer erred in the analysis of the best interests of the
children, thereby rendering the decision unreasonable.
[16]
The parties submit, and I agree, that the
Officer’s decision is reviewable on the reasonableness standard (Dunsmuir v
New Brunswick, 2008 SCC 9 at para 47 (“Dunsmuir”); Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12 at paras 57-59 (“Khosa”); Basaki
v Canada (Citizenship and Immigration), 2015 FC 166 at para 18; Richard
v Canada (Citizenship and Immigration), 2016 FC 1420 at para 14 (“Richard”)).
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 (“Kisana”); Richard
at para 14).
[17]
Reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process but also with whether the decision falls within a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law (Dunsmuir para 47). There may be several reasonable outcomes
but “as long as the process and the outcome fit
comfortably with the principles of justification, transparency and intelligibility,
it is not open to a reviewing court to substitute its own view of a preferable
outcome” (Khosa at para 59).
Positions of the Parties
Applicants’ Position
[18]
The Applicants submit that H&C officers must
be “alert, alive and sensitive” to the best interests
of children affected by their decisions, these interests are to be given “primary consideration” and should be examined “with a great deal of attention” (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (“Baker”)).
Further, consideration of the best interests of the child must be thorough and
complete, not perfunctory (Canada (Minister of Citizenship and Immigration)
v Hawthorne, 2002 FCA 475 at para 32 (“Hawthorne”)). Thus, an
officer cannot merely say that the interests of children were given significant
weight but must demonstrate that this in fact was done.
[19]
The Applicants refer to the three-part analysis
articulated in Williams v Canada (Citizenship and Immigration), 2012 FC
166 (“Williams”) for assessing whether an officer reasonably assessed
the best interests of a child. The Applicants submit that this approach has
been specifically endorsed in several recent decisions of this Court. However,
even if the Williams analysis is not precisely followed, an officer’s
reasons must identify and include an assessment of the scenario that best
protects the child’s interests. All other scenarios such as the child
remaining in Canada with or without his or her parent or accompanying him or her
to the country of removal must then be measured against this. An officer
should not ignore or fail to consider one of those scenarios (Kobita v
Canada (Citizenship and Immigration), 2012 FC 1479 at para 53; Joseph v
Canada (Citizenship and Immigration), 2013 FC 993 at paragraphs 18-20). Further,
the Supreme Court of Canada in Kanthasamy, quoted with approval a number
of findings from earlier case law with respect to the best interests of the
child analysis on an H&C application. The Applicants cite several passages
from Kanthasamy as principles that should inform this analysis (at paras
35, 36, 41 and 58). The Applicants submit that the Officer failed to conduct the
assessment of the best interests of Tassia and Kristian in accordance with
these principles.
[20]
The evidence established that Tassia has spent
virtually her entire life in Canada, that her life here revolves around her
school and church and that to require her to leave would impose significant
hardship by way of disruption to her life here and by requiring her to adjust
to a reduced standard of living in St. Vincent. She would no longer have
access to Canadian healthcare and education and would have to adjust to life in
a country with a vastly reduced status for women. The availability of state
protection does not alleviate the hardship which Tassia would face in having to
live in a society that values girls and women less than boys and men. The
Applicants also point to several pieces of supporting documentation affirming
that it would be in Tassia’s best interests to remain in Canada, including a
letter of support from the principal at her school, a letter of support from
Tassia’s grade 4 teacher and the contents of Tassia’s elementary provincial
report cards.
[21]
The Applicants submit that the Officer did not
consider the hardships Tassia may suffer but merely concluded that her age
would allow her to readjust to life in St. Vincent. While it may be trite
law that some degree of hardship is inherent in the process of deportation and
cannot be avoided, when a child is involved different criteria apply as
circumstances which may not warrant H&C relief when applied to an adult may
nonetheless entitle a child to relief (Kanthasamy at para 41). And,
while one may expect an infant or a very young child, unaware of their
surroundings to adapt easily to a new locale, the same cannot be said for a 10
year old girl who has only ever known life in Canada. In these circumstances,
it was incumbent on the Officer to consider the trauma she would suffer from
such a significant life event. The Officer was required to consider under
which scenarios Tassia’s best interests would be served and there is no
suggestion that such an assessment was done in a meaningful way.
[22]
As to Kristian, being a citizen of Canada, he is
not subject to removal but his best interests are engaged by the removal of his
mother. The benefits available to Kristian as a non-citizen of St. Vincent
would not begin to approach what is available to him in terms of healthcare,
education and employment opportunities and general well-being in Canada. His
best interests are therefore met by remaining in Canada with his family.
[23]
The Applicants submit that they provided
evidence that Kristian suffers from a number of health issues for which he is
receiving treatment and that he was scheduled for surgery in April 2016,
shortly after the H&C application was made. Letters were provided from
healthcare professionals and social workers detailing his health issues and
suggested treatment. It was argued that Kristian’s best interests would be served
by remaining in Canada with his family to continue with whatever therapies were
necessary. The Officer noted these health issues but stated that there was no
evidence that Kristian had actually undergone the surgery in question or that
he was in need of or receiving further treatment or therapies. Accordingly,
the Officer determined that his best interests would not be adversely affected
by him having to accompany his family to St. Vincent where he could
presumably receive the treatments he requires.
[24]
The Applicants submit that, while the onus was
on them to provide evidence in support of their H&C application, in this
case they filed their application in early April 2016 and the Officer rendered
the decision just five months after the application was made when the expected
processing time was around 36 months. Given that the Officer relied on the
absence of updated information relating to Kristian’s health and various forms
of treatment and that the decision was rendered sooner than the Applicant expected,
in these circumstances the Officer should have asked the Applicant for an
update on these matters before making the decision. Not doing so lacks
fairness and renders the decision unreasonable.
Respondent’s Position
[25]
The Respondent submits that there is no magic
formula to assess the best interests of children (Hawthorne at para 7).
The assessment is highly contextual and officers are not required by the Court
to follow any one specific test (Kanthasamy at para 35). A more precise
test would “risk sacrificing the child’s best interests
to expediency and certainty” (Gordon v Goertz, [1996] 2 S.C.R. 27 at
para 20). The Officer was required to be “alert, alive
and sensitive” to the children’s best interests (Kanthasamy at
paras 38 and 143; Baker at para 75). Here the Officer’s reasons
demonstrate that the interests of the children concerned were at the forefront
of the Officer’s consideration. That the Applicants would have wanted the
Officer to weigh those interests differently does not render the decision
unreasonable. Nor were the Applicants automatically entitled to a positive
decision simply because the children’s best interests may have favoured that
result (Hawthorne at para 8; Canada (Minister of Citizenship and
Immigration) v Legault, 2002 FCA 125 at paras 11-12 (“Legault”)).
The best interests of children will, in most cases, be to live with their
parents in Canada, but this is just one factor to be weighed against other
factors (Kisana at para 24; Legault at paras 11-12; Fathi v
Canada (Citizenship and Immigration), 2015 FC 805 at paras 47-48). The
Officer weighed those factors along with the best interests of the children and
reasonably concluded that an exemption was not warranted.
[26]
The Officer took into account each of the
submissions made by the Applicants with respect to the impact on Tassia of
leaving Canada. The Officer’s consideration was appropriate to the submissions
made as well as the context. Again, in most cases the best interests of a
child will be to remain in Canada, but this does not automatically allow for a
positive determination. As stated in Kanthasamy, “there will inevitably be some hardship associated with being
required to leave Canada. This alone will not generally be sufficient to
warrant relief on humanitarian and compassionate grounds under s. 25(1)”
(at para 23).
[27]
The Officer also properly considered Kristian’s
health issues. He was diagnosed with a left hydrocele (accumulation of fluid
in the testicle) which was repaired in April 2016. The Applicants’ H&C
request stated he was likely to require further treatment, but given that this
was not a definitive statement, the Officer noted that there was no evidence to
demonstrate that such further treatment was in fact needed. Further, that
there was no evidence that treatment for the hydrocele would not be available
in St. Vincent, if future treatment were required. If the Principal
Applicant had proof that further treatment was required and that such treatment
was not available in St. Vincent then she ought to have provided that
evidence as an update to the H&C application as soon as she was aware of
it. All that was before the Officer was counsel’s suggestion that treatment
would “likely” be required, there was nothing in
the medical evidence submitted that suggested further treatment was likely.
The onus was on the Applicants to adduce proof of any claim on which their
H&C application relied, failure to do so is at an applicant’s peril; as
such the Officer did not err in not requesting further information (Anaschenko
v Canada (Citizenship and Immigration), 2004 FC 1328 at para 8; Odafe v
Canada (Citizenship and Immigration), 2011 FC 1429 at para 7; Pannu v Canada
(Minister of Citizenship and Immigration), 2006 FC 1356 at para 29; Owusu
v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 8
(“Owusu”); D’Aguiar-Juman v Canada (Citizenship and Immigration),
2016 FC 6 at para 23 (“D’Aguiar-Juman”); Kisana at paras 43, 56,
61).
[28]
The Respondent submits that, as noted by the
Officer, the purpose of s 25 is not to make up for the difference in standards
of living between two countries. Thus, although Kristian may have better
healthcare, education and general well-being in Canada, the simple fact that
living in Canada is more desirable for a child is not sufficient by itself to
grant an H&C application (Sanchez v Canada (Citizenship and Immigration),
2015 FC 1295 at para 18 (“Sanchez”); Vasquez v Canada (Minister of
Citizenship and Immigration), 2005 FC 91 at paras 41-44; Dreta v Canada
(Minister of Citizenship and Immigration), 2005 FC 1239).
[29]
The Respondent also submits that, for the
reasons described in the decision, it was reasonable for the Officer to have
found that Taji’s best interests would be served by the family reuniting in St. Vincent.
And, while the Applicants argue that Tassia’s best interests would be to remain
in Canada given the hardships associated with readjusting to life in a new
country at her age, at the same time they also argue that the Officer
unreasonably found that the best interests of Taji, who is older than Tassia
and has spent his entire life in St. Vincent, would be to reunite with his
family in Canada, thereby separating him from his primary caregiver and life in
St. Vincent.
Analysis
[30]
Subsection 25(1) of the IRPA states that the
Minister may grant a foreign national permanent resident status, or an
exemption from any applicable criteria or obligations of the IRPA, if the
Minister is of the opinion that it is justified by H&C considerations
relating to the foreign national, taking into account the best interests of a
child directly affected. An H&C exemption is an exceptional and
discretionary remedy (Legault at para 15; Semana v Canada
(Citizenship and Immigration), 2016 FC 1082 at para 15 (“Semana”))
and the onus of establishing that an H&C exemption is warranted lies with
the applicant (Kisana at para 45; Adams v Canada (Citizenship
and Immigration), 2009 FC 1193 at para 29; Semana at para 16; D’Aguiar-Juman
at para 9).
[31]
The Supreme Court of Canada had occasion to
re-visit the analysis an officer must engage in when considering the best
interests of a child in the context of an H&C application in Kanthasamy.
That decision is, therefore, the current starting point of any discussion of
what that term encompasses. When discussing s 25 generally, the Supreme Court
of Canada stated that there will inevitably be some hardship associated with
being required to leave Canada but that this alone will generally not be
sufficient to warrant relief on H&C grounds (at para 23). What will warrant
relief will vary depending on the facts and context of the case, but officers
making H&C determinations must substantively consider and weigh all of the
relevant facts and factors before them (at para 25). As to the requirement under
s 25(1) to take into account the best interests of a child directly affected,
the Supreme Court of Canada stated as follows:
35 The “best interests” principle is “highly
contextual” because of the “multitude of factors that may impinge on the child’s
best interest”: Canadian Foundation for Children, Youth & the Law v.
Canada (Attorney General), [2004] 1 S.C.R. 76, at para. 11; Gordon v.
Goertz, [1996] 2 S.C.R. 27, at para. 20. It must therefore be applied in a
manner responsive to each child’s particular age, capacity, needs and maturity:
see A.C. v. Manitoba (Director of Child and Family Services), [2009] 2
S.C.R. 181, at para. 89. The child’s level of development will guide its
precise application in the context of a particular case.
…
38 Even before it was expressly included
in s. 25(1), this Court in Baker identified the “best interests”
principle as an “important” part of the evaluation of humanitarian and
compassionate grounds. As this Court said in Baker:
... attentiveness and sensitivity to
the importance of the rights of children, to their best interests, and to the
hardship that may be caused to them by a negative decision is essential for [a
humanitarian and compassionate] decision to be made in a reasonable manner....
... 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. That is not to
say that children’s best interests must always outweigh other considerations,
or that there will not be other reasons for denying [a humanitarian and
compassionate] claim even when children’s interests are given this
consideration. However, 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. [paras. 74-75]
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.
40 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., at paras. 80-81. The Minister’s Guidelines set out
relevant considerations for this inquiry:
Generally, factors relating to a
child’s emotional, social, cultural and physical welfare should be taken into
account when raised…
41 It is difficult to see how a child
can be more “directly affected” than where he or she is the applicant. In my
view, the status of the applicant as a child triggers not only the requirement
that the “best interests” be treated as a significant factor in the analysis,
it should also influence the manner in which the child’s other circumstances
are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any
hardship”, the concept of “unusual or undeserved hardship” is presumptively
inapplicable to the assessment of the hardship invoked by a child to support
his or her application for humanitarian and compassionate relief: Hawthorne,
at para. 9. Because children may experience greater hardship than adults faced
with a comparable situation, circumstances which may not warrant humanitarian
and compassionate relief when applied to an adult, may nonetheless entitle a
child to relief: see Kim v. Canada (Minister of Citizenship &
Immigration), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines
on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and
1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of
Refugees, HCR/GIP/09/08, December 22, 2009.
[Emphasis in original.]
[32]
The Applicants submit that the Officer erred in
his or her assessment of the best interests of the children by failing to
follow the three part test in Williams, or at least by not identifying
and comparing all of the possible scenarios that may engage the best interests
of the child. I am not persuaded that this is the current state of the law.
In Semana, Justice Gascon addressed the best interests principle, post-Kanthasamy,
and whether or not this included a requirement to apply the Williams approach
and concluded that it did not:
23 There was simply no obligation for
the IAD to follow the approach developed in Williams, and the IAD
decision cannot be unreasonable because it did not do so. The Williams
decision has often been rejected as creating a formal test for BIOC
assessments, and it has been found inconsistent with the jurisprudence from the
Supreme Court and the Federal Court of Appeal (Sanchez v Canada (Citizenship
and Immigration), 2015 FC 1295 at para 16; Onowu v Canada (Citizenship
and Immigration), 2015 FC 64 [Onowu] at para 44). At best, the Williams
case can provide useful guidelines which can be followed by decision-makers,
but the IAD was certainly not required to apply the precise analytical method
elaborated in that precedent (Webb v Canada (Citizenship and Immigration),
2012 FC 1060 [Webb] at para 13).
24 The BIOC test to be followed by
the IAD has been developed and enunciated by the Supreme Court in several
cases, culminating in its recent decision in Kanthasamy v Canada
(Citizenship and Immigration), 2015 SCC 61 [Kanthasamy SCC]. This
test requires the IAD to be “alert, alive and sensitive” to the best interests
of the children. Where a child’s interests are minimized “in a manner
inconsistent with Canada’s humanitarian and compassionate tradition and the
Minister’s guidelines, the decision will be unreasonable” (Baker v Canada
(Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 [Baker]
at para 75). Under that test, “[t]hose interests must be “well identified and
defined” and examined “with a great deal of attention” in light of all the
evidence” (Kanthasamy SCC at para 39; Legault at paras 12 and 31;
Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA
475 [Hawthorne] at para 32). Furthermore, the analysis needs to take
into account the “child’s level of development”, as it is necessary to be “responsive
to each child’s particular age, capacity, needs and maturity” (Kanthasamy
SCC at para 35).
25 However, no specific formula or
rigid test is prescribed or required for a BIOC analysis, or to demonstrate
that the IAD or an immigration officer has been “alert, alive and sensitive” to
the BIOC, as required by Baker and its progeny (Onowu at paras
44-46; Webb at para 13). There is no “magic formula to be used by
immigration officers in the exercise of their discretion” (Hawthorne at
para 7). In other words, form should not be elevated over substance (Taylor
v Canada (Minister of Citizenship and Immigration), 2016 FC 21 at para 12Webb
[sic] at para 11).
26 I pause to underline that, in Kanthasamy,
the Supreme Court did refer to certain passages of Williams, but
refrained from adopting the three-step approach laid out in that decision (Kanthasamy
SCC at paras 39 and 59). The Supreme Court did not even cite the specific
paragraph of Williams (i.e., para 63) setting out the three-pronged method
advocated in that decision.
27 Ultimately, the correct legal test
is whether the IAD was “alert, alive and sensitive” to the best interests of
the child in conducting a BIOC analysis (Baker at para 75; Hawthorne
at para 10; Kolosovs v Canada (Minister of Citizenship and Immigration),
2008 FC 165 at para 8). In order to demonstrate that the IAD is alert, alive,
and sensitive to the BIOC, it is of course necessary for its analysis to
address the “unique and personal consequences” that removal from Canada would
have for the children affected by the decision (Tisson v Canada (Minister of
Citizenship and Immigration), 2015 FC 944 at para 19; Ali v Canada
(Minister of Citizenship and Immigration), 2014 FC 469 at para 16).
(Also see: Nguyen v Canada (Citizenship
and Immigration), 2017 FC 27 at para 25).
[33]
Accordingly, based on the jurisprudence, the
Officer was required to be alert, alive and sensitive to the best interests of
the children, afford them significant weight, examine them with care and
attention in light of all of the evidence, and to take into account the context
of the children’s personal circumstances. In my view, the Officer did not err
in his or her assessment of the interests of either of the three children in
this matter.
[34]
I do not agree with the Applicant that the
Officer dismissed the potential hardship that Tassia would face upon her return
to St. Vincent on the basis that she is young and resilient and will
therefore be able to readjust to life in St. Vincent. The Officer
acknowledged that Tassia came to Canada when she was only 3 years old, has
spent the majority of her life here and that she is doing well both
academically and socially. The Officer also stated that there will likely be a
period of readjustment for Tassia on return to St. Vincent but that she
is only 10 years of age and therefore likely to readapt well to her home
country. The Officer pointed to the fact that Tassia’s grandparents and eldest
brother are in St. Vincent and that she will be able to reunite with them.
[35]
The record included letters from Tassia’s school
principal and her grade 4 teacher which confirm that Tassia is doing well
socially and academically, that over the last year she has shown a marked
improvement in maintaining social relationships with her classmates and is less
shy and more outgoing. The principal noted that it would be regrettable if the
gains she has made were jeopardized because she and her mother had to leave
Canada. While the Officer did not explicitly reference these letters, the
Officer is presumed to have done so (Pusuma v Canada (Citizenship and
Immigration), 2015 FC 658 at para 56), and it is apparent from the decision
that he or she did consider them.
[36]
While brief, all of the factors raised in the
Applicants’ H&C submissions were captured in the Officer’s reasons, being
Tassia’s age, that she has spent most of her life in Canada and has a level of
establishment here and that return to St. Vincent would be disruptive. As
to the Applicants’ suggestion that the Officer failed to consider the “trauma” Tassia would face as a result of the
significant life event if removed to St. Vincent, I note that there was no
evidence on the record before the Officer suggesting any such resultant
trauma. Accordingly, the Officer was not required to address this, and as
noted above, his or her reasons did acknowledge the disruption in her life and
coincident readjustment that removal would cause.
[37]
As to the Applicants’ submission that Tassia
would no longer have access to a Canadian education, this was addressed by the
Officer. The Officer stated that he accepted that a Canadian education may be
preferable to that available in St. Vincent but that there was little
evidence before him or her to demonstrate that the children would be unable to
obtain secondary and post-secondary education in St. Vincent. The
Principal Applicant had been able to do so and there was little evidence that
Taji has had any problem in accessing primary and secondary education there.
Additionally, the information obtained from independent sources indicated that
secondary education was compulsory and available. This finding is also supported
by a review of the country conditions documentary evidence found in the record.
[38]
Moreover, in Sanchez at paragraph 18, the
Court stated that the simple fact that living in Canada is more desirable for
children is not sufficient, in and of itself, to grant an H&C application, quoting
Serda v Canada (Minister of Citizenship and Immigration), 2006 FC 356 as
follows:
31 Finally, the Applicants have argued
that conditions in Argentina are dismal and not good for raising children. They
cited statistics from the documentation, which were also considered by the H
& C Officer, to show that Canada is a more desirable place to live in
general. But the fact that Canada is a more desirable place to live is not
determinative on an H & C application (Vasquez v. Canada (M.C.I.),
2005 FC 91; Dreta v. Canada (M.C.I.), 2005 FC 1239); if it were
otherwise, the huge majority of people living illegally in Canada would have to
be granted permanent resident status for Humanitarian and Compassionate
reasons. This is certainly not what Parliament intended in adopting section 25
of the Immigration and Refugee Protection Act. [My emphasis.]
[39]
The Officer accepted that the conditions in St. Vincent
may not be perfect and that different standards of living exist between
countries. The Officer acknowledged that many countries are not as fortunate in
having the same social supports, including financial and medical, as can be
found in Canada. However, that Parliament did not intend the purpose of
s 25 of the IRPA to be to make up for the difference in standard of living
between Canada and other countries.
[40]
As to access to healthcare, I have addressed
this below in the context of the Officer’s consideration of the best interests
of Kristian.
[41]
The Applicants’ main submission when appearing
before me was that the Officer had failed to address the gender discrimination
and violence, and therefore hardship, that Tassia would face as a child in St. Vincent.
In the Applicants submission to the Officer, as here, was that girls and women
face many more difficulties and dangers due to their gender in St. Vincent,
as compared to Canada, and while there may be state protection available to
those subject to gender based bias, discrimination and violence, this would not
alleviate the potential harm that Tassia would face by having to live in such a
society.
[42]
It is true that in this matter the Officer did
not include gender based discrimination and violence in the section of his or
her reasons which addressed the best interests of Tassia. However, the issue
was addressed. Under the heading, “gender-based
discrimination and violence”, the Officer noted that the Principal
Applicant asserted that she had been a victim of domestic and gender based
violence in St. Vincent at the hands of her former partner. The Officer
found that there was an absence of evidence to substantiate this, or that her
former partner, 8 years later, had any continuing interest in locating and
harming the Principal Applicant. Further, that there was an option of redress
available to her should she experience any problems with her former partner.
[43]
The Officer then went on to discuss the
documentary evidence which confirmed that gender based and domestic violence
remains a serious and pervasive problem in St. Vincent. However, that the
law provides protection for victims, including the government’s Division of
Gender Affairs which offers 19 different programs to assist women and children.
The Officer concluded that, overall, the evidence before him or her
demonstrated that women in St. Vincent can face discrimination on the
basis of gender but that it also suggested that redress in the form of services
from the government, as well as from NGOs, would be available to the Principal
Applicant, if she personally experienced gender based violence in the future.
Due to the availability of redress, the Officer did not find the factors
presented in relation to the Principal Applicant’s gender in and of themselves,
to be sufficient to warrant an exemption.
[44]
In my view, while the Officer should have also
directly addressed the gender based discrimination and violence assertions
within his or her best interest of the child analysis, the outcome would be the
same. The Principal Applicant put forward assertions of direct and personal
concerns of gender based violence, however, the Officer was satisfied that
there would be redress available to her for any future discrimination on the
basis of gender, including domestic and gender based violence. As to Tassia,
the Applicants submit that there is the potential of gender based
discrimination. This is true. However, the record contains no evidence
submitted by the Applicants addressing how gender based discrimination affects
female children differently than women and the Applicants’ submission to the
Officer addressed this issue only generally. In any event, given the Officer’s
conclusion that redress is available, I am not convinced that the failure to address
this separately, in the context of Tassia, amounts to a reviewable error
rendering the decision in whole unreasonable.
[45]
As to Kristian, I would first note that the
Principal Applicant’s submission to the Officer was that if she were removed,
Kristian would accompany her to St. Vincent, thus, this was part of the
context in which the Officer’s decision was made. The Applicants also
submitted that the benefits available to Kristian as a non-citizen of St. Vincent
would not begin to approach those that are available to him as a citizen of
Canada in terms of healthcare, education and in general. The Officer found
that Kristian is entitled to St. Vincent citizenship through his mother
and would be entitled to all of the benefits available to other citizens of St. Vincent.
As set out above, the Applicants’ submission that the Officer erred by
depriving Kristian of the better standard of living in Canada and the rights he
is entitled to as a Canadian citizen is alone not a basis for granting an
H&C exemption.
[46]
And while the Officer did not explicitly state that
it would be in Kristian’s best interests to remain in Canada with his mother,
the Federal Court of Appeal in Hawthorne held that it is necessarily
implied that a child’s best interests will be to remain in Canada with his or
her parent and is a premise which need not be stated in an officer’s reasons:
5 The officer does not assess the
best interests of the child in a vacuum. The officer may be presumed to know
that living in Canada can offer a child many opportunities and that, as a
general rule, a child living in Canada with her parent is better off than a
child living in Canada without her parent. The inquiry of the officer, it seems
to me, is predicated on the premise, which need not be stated in the reasons,
that the officer will end up finding, absent exceptional circumstances, that
the “child’s best interests” factor will play in favour of the non- removal of
the parent. In addition to what I would describe as this implicit premise, the
officer has before her a file wherein specific reasons are alleged by a parent,
by a child or, as in this case, by both, as to why non-removal of the parent is
in the best interests of the child. These specific reasons must, of course, be
carefully examined by the officer.
6 To simply require that the officer
determine whether the child’s best interests favour non-removal is somewhat
artificial – such a finding will be a given in all but a very few, unusual
cases. For all practical purposes, the officer’s task is to determine, in the
circumstances of each case, the likely degree of hardship to the child 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.
[47]
As stated by Justice Kane in Chandidas v Canada
(Citizenship and Immigration), 2013 FC 258:
64 Moreover, the officer is presumed
to know that living in Canada would offer the child opportunities that they
would not otherwise have (Hawthorne, above, at para 5) and that to
compare a better life in Canada to life in the home country cannot be
determinative of a child’s best interests as the outcome would almost always
favour Canada: (Li v Canada (Minister of Citizenship and Immigration),
2006 FC 1292, [2006] FCJ No 1613 at para 28).
[48]
Accordingly, no error in the Officer’s best
interests of the child analysis arises in this regard.
[49]
The Applicants primarily take issue with the
manner in which the Officer assessed the medical evidence concerning Kristian.
In their written argument, they submit that the Officer “stated that there was no evidence that Kristian had actually
undergone the surgery in question, or that he was in need of or receiving
further treatment or therapies. Accordingly, the Officer found that his best
interests would not be adversely affected by accompanying his family to St. Vincent,
where he could presumably receive whatever treatments he required”.
[50]
In my view, this mischaracterizes the Officer’s
reasons. The Officer did not say that there is no evidence that Kristian had
undergone the surgery in question, rather the Officer’s reasons show that the
Officer accepted that Kristian had surgery for a left hydrocele in April 2016.
The Officer stated that “a careful review of the
documentary evidence on file suggests that Kristian was diagnosed with left
hydrocele, which was repaired in April of 2016”.
[51]
The Officer’s real concern was with the lack of
evidence to show that Kristian’s surgery was not successful, that he likely
needed any further treatment for this or any other condition or that similar
treatment would not be available in St. Vincent, should the need arise.
The evidence presented by the Applicants concerning Kristian’s present and
ongoing health needs was limited: documents concerning a scheduled surgery in
April 2016 for left hydrocele repair; the submission of counsel and the
Principal Applicant in her affidavit in support of the H&C application that
Kristian is likely to require further treatment and that he suffers from a
number of unspecified health issues for which he is receiving treatment; a
March 18, 2016 letter from a primary care nurse practitioner indicating that
Kristian was having an extremely difficult time in daycare, displaying signs of
aggressive behavior towards other children and that the Principal Applicant was
in the process of arranging an appointment for Kristian with a counsellor at an
agency that provides mental health services to children; and, a February 8,
2016 report from the YMCA daycare indicating that attention needed to be paid
to Kristian’s physical aggression towards others, working on displaying signs
of empathy, verbally communicating his feelings and social skills need to be
further developed. The Officer specifically addressed all of this evidence. However,
it did not establish the existence of any ongoing or foreseeable future medical
problems or that the described behavioral problems were ongoing or that
counselling for them was being pursued.
[52]
Nor was any objective evidence submitted to
establish a lack of availability of medical services for Kristian in St. Vincent
in connection with any present or ongoing medical or behavioral issues. While
the nurse practitioner stated in her letter that it was her belief that the
counselling Kristian required would not be available in St. Vincent, she
did not indicate the basis for that belief. Similarly, while the Principal
Applicant and her counsel submitted that there was no guarantee that Kristian
would receive a similar level of treatment in St. Vincent, this was not
supported by any objective evidence.
[53]
Conversely, the Officer found that, based on the
limited evidence provided, he or she could not conclude that Taji had been
unable to access education or healthcare services in St. Vincent.
Further, that documentary evidence showed that primary and secondary level
medical care is available in St. Vincent, especially in urban areas such
as Kingstown where the Principal Applicant is from and where her mother and
eldest son reside. Additionally, there was little to no evidence that the
Principal Applicant or her two eldest children have had difficulty accessing
medical services in St. Vincent in the past or that the healthcare system
in St. Vincent would not adequately address the children’s needs in the
future. Therefore, the Officer found that the Principal Applicant’s three
children would have access to health services in St. Vincent should the
need arise.
[54]
In my view, in these circumstances, the Officer
did not err in finding that there was insufficient evidence to show that
Kristian would not have access to any healthcare that he may require in the
future nor that all three of the children would not have access to necessary healthcare
services. The onus was on the Applicants to show that an H&C exemption
should be granted and if an applicant fails to adduce sufficient relevant
information to support an H&C application, he or she does so at his or her
own peril (Ordonez v Canada (Citizenship and Immigration), 2017 FC 135 at
para 9; Owusu at paras 5-8; also see Villanueva v Canada (Citizenship
and Immigration), 2015 FC 311 at para 19 and Rocha v Canada (Citizenship
and Immigration), 2015 FC 1070 at para 17).
[55]
Similarly, as to the Applicants’ assertion that
the Officer should have requested further or updated medical information and
that it was procedurally unfair and unreasonable for the Officer not to have
done so, this argument cannot succeed. The decision was rendered almost five
months after the hearing leaving sufficient time for the Applicants to submit
any updated or additional information concerning Kristian’s medical or
behavioral care. Moreover, as noted above, the onus is on the Applicants to
provide all of the information that is relevant to support their H&C application.
Officers are not obligated to make any further inquiries or to request any
additional information (Nzeza Nsongi v Canada (Citizenship and Immigration),
2010 FC 1291 at paras 9-10; Melchor v Canada (Minister of Citizenship and
Immigration), 2004 FC 1327 at para 13; Guxholli v Canada (Citizenship
and Immigration), 2013 FC 1267 at para 25; Kisana at para 61).
[56]
In sum, in my view the Officer was alert, alive
and sensitive to the best interests of the children concerned. The Officer
devoted a significant portion of the decision to this factor; considered the
interests of each of the three children separately and with a view to the
submissions that were made by the Applicants and in the context of the
children’s particular circumstances; referenced most if not all of the
documentary evidence; and, consulted country condition documentation where none
were provided. The Officer’s reasons demonstrated that the best interests of
the children were an important factor in his or her decision.
[57]
It should also be recalled that while the
Applicants contested only the Officer’s assessment of the best interests of
Tassia and Kristian on this application, the decision not to grant an H&C
exemption was made not just on that basis but also by weighing this together
with the Applicants’ establishment as well as adverse country conditions,
specifically, gender based discrimination and violence. As noted in Legault:
11 In Suresh, the Supreme
Court clearly indicates that Baker did not depart from the traditional
view that the weighing of relevant factors is the responsibility of the
Minister or his delegate. It is certain, with Baker, that the interests
of the children are one factor that an immigration officer must examine with a
great deal of attention. It is equally certain, with Suresh, that it is
up to the immigration officer to determine the appropriate weight to be
accorded to this factor in the circumstances of the case. It is not the role of
the courts to reexamine [sic] the weight given to the different factors
by the officers.
12 In short, the immigration officer
must be “alert, alive and sensitive” (Baker, para. 75) to the interests
of the children, but once she has well identified and defined this factor, it
is up to her to determine what weight, in her view, it must be given in the
circumstances. The presence of children, contrary to the conclusion of Justice
Nadon, does not call for a certain result. It is not because the interests of
the children favour the fact that a parent residing illegally in Canada should remain
in Canada (which, as justly stated by Justice Nadon, will generally be the
case), that the Minister must exercise his discretion in favour of said parent.
Parliament has not decided, as of yet, that the presence of children in Canada
constitutes in itself an impediment to any “refoulement” of a parent illegally
residing in Canada (see Langner v. Minister of Employment and Immigration
(1995), 184 N.R. 230 (F.C.A.), leave to appeal refused [[1995] 3 S.C.R. vii
(S.C.C.)], SCC 24740, August 17, 1995).
(Also see Semana at para 28 and Ibabu
v Canada (Citizenship and Immigration), 2015 FC 1068 at para 58).
[58]
The Federal Court of Appeal in Kisana, in
reference to paras 11 and 12 above of Legault stated:
24 Thus, an applicant is not entitled
to an affirmative result on an H&C application simply because the best
interests of a child favour that result. It will more often than not be in the
best interests of the child to reside with his or her parents in Canada, but
this is but one factor that must be weighed together with all other relevant
factors. It is not for the courts to reweigh the factors considered by an
H&C officer. On the other hand, an officer is required to examine the best
interests of the child “with care” and weigh them against other factors. Mere
mention that the best interests of the child has been considered will not be
sufficient (Legault, supra, at paragraphs 11 and 13).
[59]
As I have found above, the Officer’s best
interests of the child analysis was not unreasonable. It is not the role of
the Court to reweigh the relevant H&C factors. And, viewed in whole, the
Officer’s conclusion, having considered the circumstances of the Applicants and
having examined all of the submitted documents, that he or she was not
satisfied that the H&C consideration before him or her justified an
exemption under s 25(1) of the IRPA, in light of the findings as to the
Applicants’ establishment in Canada, the availability of state protection in St. Vincent
and the best interests of the children was reasonable.
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