Docket: IMM-3564-16
Citation:
2017 FC 313
Ottawa, Ontario, March 24, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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JAMES
CHAKANYUKA
AGNES
CHAKANYUKA
KUDAKWASHE
MAVIS CHAKANYUKA
SIMBARASHE
CHAKANYUKA
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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
I.
Overview
[1]
This is a judicial review of the August 10, 2016
decision of a senior immigration officer [the Officer] refusing the Applicants’
applications for permanent residence in Canada on humanitarian and
compassionate [H&C] grounds. The Applicants are a family consisting of the
principal Applicant, James Chakanyuka, his wife Agnes Chakanyuka, their minor
daughter, Kudakwashe Mavis Chakanyuka [Kudakwashe], and their adult son, Simbarashe
Chakanyuka [Simbarashe].
[2]
As explained in greater detail below, this
application is allowed, because the Officer’s decision does not demonstrate any
meaningful analysis of the H&C application of Simbarashe, or the best
interests of the minor Applicant, Kudakwashe.
II.
Background
[3]
The Applicants are citizens of Zimbabwe who
arrived in Canada on December 14, 2015 and claimed refugee protection in Canada
on January 28, 2016. Their claim was refused on April 1, 2016.
[4]
On June 10, 2016, the Applicants applied for
permanent residence in Canada on H&C grounds, based on the family’s
establishment in Canada, and the best interests of their daughter, as well as
factors in their country of residence. Their applications were refused on
August 10, 2016 in the decision that is the subject of this judicial review.
III.
Issues and Standard of Review
[5]
The Applicants raise the following issues for
the Court’s consideration:
A. Did the Officer err in considering the H&C application of the
adult son?
B. Did the Officer err in considering the best interests of a child,
the minor daughter?
C.
Did the Officer err in finding that the
Applicants do not face undue hardship upon a return to Zimbabwe?
[6]
The standard of review applicable to an
officer’s findings of fact in assessing an H&C application is
reasonableness (Kanthasamy v Canada (Minister of Citizenship and
Immigration), 2015 SCC 61, at para 45; Taylor v Canada (Minister
of Citizenship and Immigration), 2016 FC 21, at paras 16-18). I consider
this standard to apply to the issues raised by the Applicants.
IV.
Analysis
A. Did the Officer err in considering the H&C application of the
adult son?
[7]
The Officer’s decision on the application of the
adult son, Simbarashe, which was based on his establishment in Canada, is
contained in a set of reasons separate from those which apply to the other
Applicants. The Applicants argue that the decision must be set aside because,
after accepting the positive nature of Simbarashe’s establishment, the Officer
reached a bald conclusion, that there were insufficient H&C considerations
to grant his application, without providing any reasons in support of that
conclusion.
[8]
The Applicants rely on the jurisprudence of this
Court, in which judicial review has been granted in the absence of reasons
justifying a decision (see Jasim v Canada (Minister of Citizenship and
Immigration), 2003 FC 1017, at paras 18-19; Bajraktarevic v Canada
(Minister of Citizenship and Immigration) 2006 FC 123, at para 18; Cobham
v Canada (Minister of Citizenship and Immigration), 2009 FC 585, at para
26; Webb v Canada (Minister of Citizenship and Immigration), 2012 FC
1060, at para 31) and in particular Adu v Canada (Minister of Citizenship
and Immigration), 2005 FC 565 [Adu], where Justice Mactavish held as
follows at paragraph 14:
[14] In my view, these 'reasons' are
not really reasons at all, essentially consisting of a review of the facts and
the statement of a conclusion, without any analysis to back it up. That is, the
officer simply reviewed the positive factors militating in favour of granting
the application, concluding that, in her view, these factors were not
sufficient to justify the granting of an exemption, without any explanation as
to why that is. This is not sufficient, as it leaves the applicants in the
unenviable position of not knowing why their application was rejected.
[9]
I am conscious that adequacy of reasons is not a
stand-alone basis for quashing a decision. Rather, the reasons must be read
together with the outcome and serve the purpose of showing whether the result
falls within a range of possible outcomes (see Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at
para 14, [Newfoundland Nurses]). However, I do not consider these
principles to detract from the reasoning in Adu, that a decision must
contain analysis, explaining how the decision-maker arrived at his or her
conclusion. Otherwise, the applicant has not received reasons at all.
[10]
I agree with the Applicants that the Officer’s
decision on Simbarashe’s application suffers from precisely the same
shortcoming identified by Justice Mactavish in Adu. The Officer referred
to school documents and a letter of reference submitted in support of the
application, identifying those elements as positive and granting them certain
weight. However, the Officer then proceeds immediately to expressing the
conclusion that, having considered Simbarashe’s personal profile, his personal
circumstances, his establishment in Canada, and his links to Canadian society,
there were insufficient H&C considerations to grant his application. The
decision discloses no analysis explaining why the positive factors were not
sufficient to grant an exemption on H&C grounds.
[11]
The Respondent argues that Simbarashe’s
establishment was not beyond what one might expect from someone who has come to
Canada with his family, made a refugee claim which failed, and then followed
that with an H&C application, all the while maintaining his studies and a
clear civil record. Also, despite the economy and high unemployment rates in
Zimbabwe, the evidence on the record demonstrated that Simbarashe was able to
be educated and employed in Zimbabwe the year after he left high school. The
Respondent submits that, in these circumstances, it was reasonable for the Officer
to conclude that there were insufficient H&C considerations to grant the
application.
[12]
I am expressing no conclusion on whether or not
it would have been reasonable for the Officer to find, based on an analysis of these
facts, that there were insufficient H&C grounds to grant the application.
Rather, the difficulty with the Respondent’s arguments is that the above
analysis, which the Respondent submits would support the Officer’s decision, is
not found in the decision. While the Court can examine the record before the
Officer in assessing the reasonableness of the decision (see Newfoundland
Nurses, at para 15), it is not the role of the Court to weigh the evidence
or to extrapolate reasoning from evidence and conclusions (see Webb v Canada
(Minister of Citizenship and Immigration), 2012 FC 1060, at para 31).
[13]
It is therefore my conclusion that the Officer’s
decision, as it relates to Simbarashe, is unreasonable and must be remitted to
another officer for reconsideration.
B.
Did the Officer err in considering the best
interests of a child?
[14]
I have reached similar conclusions on this
issue. In the portion of the decision addressing the best interests of the
minor Applicant, Kudakwashe, the Officer notes that consideration of this
principle does not mean that the interests of the child outweigh all other
factors in the case. The Officer observes that the Applicants argue
Kudakwashe’s interests would be affected if the family returned to Zimbabwe and
that they submitted a letter of confirmation that she is attending school.
However, from there, the Officer proceeds to the conclusion that the Applicants
have submitted insufficient evidence to establish that the general consequences
of having to apply for permanent residence from outside Canada would have a
significant negative impact on Kudakwashe.
[15]
Again, the decision fails to demonstrate an
analysis which explains how the Officer arrives at this conclusion. The
Applicants provided little in the way of evidence or submissions in support of
their position that the minor Applicant’s interests would be adversely
affected. However, even in connection with the one point that was expressly
raised, that Kudakwashe is attending school in Canada, the Officer noted that
fact but failed to conduct any analysis, based on country condition documents
or otherwise, as to the effect upon Kudakwashe’s education if her family were
to return to Zimbabwe to apply for permanent residence.
[16]
I agree with the Respondent’s submission that
the best interests of a child, and the fact that a child may be better off in
Canada, is not determinative of an H&C application (see Kisana v Canada
(Minister of Citizenship and Immigration), 2009 FCA 189, at para 37).
Rather, the interests of the child are one factor which an officer must examine
with a great deal of attention; it is up to the officer to determine the
appropriate weight to be accorded to this factor in the circumstances of the
case, and it is not the role of the Court to re-examine this weight (see Legault
v Canada (Minister of Citizenship and Immigration), 2002 FCA 125, at para
11). However, my conclusion that this aspect of the Officer’s decision is
unreasonable does not turn on the question whether or not the effect upon
Kudakwashe of returning to Zimbabwe would be sufficient to warrant granting the
application. Rather, the error in the decision is the failure to demonstrate
any meaningful analysis of what this effect would be and the weight to be
accorded to it.
[17]
Given this conclusion, I find the Officer’s
decision to be unreasonable as it relates to Kudakwashe and her parents, such
that the decision must be set aside and their application remitted to another
officer for reconsideration. It is therefore unnecessary for the Court to
consider the Applicants’ arguments that the Officer also erred in finding that
they would not face undue hardship upon returning to Zimbabwe.
[18]
The parties raised no question for certification
for appeal, and none is stated.
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