Docket: IMM-3766-16
Citation:
2017 FC 381
Ottawa, Ontario, April 19, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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CHRISTY ARULRAJ
ALAGARATNAM
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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, Christy Arulraj Alagaratnam, is a
45 year old citizen of Sri Lanka of Tamil ethnicity. In 2006, he and his wife
and three children fled Sri Lanka and arrived in India where they became
registered as refugees at a refugee camp in Tamil Nadu, a southern Indian
state. The Applicant left Tamil Nadu in March 2011 and eventually made his way
to Canada in March 2013, where he claimed refugee protection. The Refugee
Protection Division [RPD] of the Immigration and Refugee Board dismissed the
Applicant’s claim in May 2014. His application for a pre-removal risk
assessment was rejected in early July 2016, and his application for permanent
residence on humanitarian and compassionate grounds was refused by a Senior
Immigration Officer in a decision dated July 25, 2016. The Applicant has now
applied under subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], for judicial review of the Officer’s decision.
I.
Background
[2]
The Applicant lived in Sri Lanka and worked as a
fisherman during the civil conflict between the Liberation Tigers of Tamil
Eelam [LTTE] and the Sri Lankan authorities who suspected Tamil fisherman were
involved in smuggling for the LTTE. The Applicant claimed that Sri Lankan
authorities detained and tortured him and continually subjected him to
harassment, interrogations, and threats due to his ethnicity and occupation,
compelling him and his family in 2006 to flee to India where they claimed
refugee protection. Although the Applicant and his family were registered as
refugees, they were not afforded any permanent status in India and had to live
in a refugee camp in Tamil Nadu.
[3]
In March 2011, the Applicant left India, leaving
his family behind at the refugee camp, and proceeded to travel through numerous
countries before entering Canada on March 18, 2013. Upon entering Canada, the
Applicant made a claim for refugee protection, but the RPD dismissed his claim
in a decision dated May 2, 2014, determining that he was neither a Convention
refugee nor person in need of protection. This Court denied the Applicant’s
application for leave and judicial review of the RPD’s decision on August 25,
2014. Subsequently, the Applicant applied in October 2014 for permanent
residence on humanitarian and compassionate [H&C] grounds. While his
H&C application was pending, the Applicant’s removal from Canada was
scheduled for November 26, 2014, but this Court stayed his deportation on
November 24, 2014.
[4]
The Applicant’s H&C application was refused
on January 27, 2015 but, after the Applicant applied for leave and judicial
review of the negative H&C decision, the Respondent consented to a
redetermination of the application by another immigration officer, and the
Applicant was offered a pre-removal risk assessment [PRRA]. Accordingly, the
Applicant submitted a PRRA application and, also, on August 4, 2015, he
provided supplementary submissions for his H&C application. On July 7,
2016, the Applicant’s PRRA application was refused, and this Court denied his
application for leave and judicial review of the negative PRRA decision on
October 19, 2016. In a decision dated July 25, 2016, the Officer who
reconsidered the H&C application refused that application, and it is this
decision which is presently under review.
[5]
The Applicant says he has established bonds in
Canada and has secured employment, currently working two jobs in the restaurant
industry to support his family in Tamil Nadu. He also has relatives in Canada
with whom he resides and he is involved in his local church. The Applicant states
that his family receives a stipend of $65 per month from the refugee camp, and
that he sends them an additional $700 to $1,000 per month to help pay for
additional costs, such as food and his children’s education. Before the
Applicant secured employment in Canada, his brother in the United Kingdom had
been supporting his family, but his brother can no longer do so since he is now
married with his own children to support.
II.
The Officer’s Decision
[6]
The Officer noted at the outset of the decision
that, in view of the Supreme Court of Canada’s decision in Kanthasamy v
Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy],
the previously applied “unusual and undeserved, or
disproportionate” hardship test would not be applied in assessing the
Applicant’s H&C application. The Officer further noted the H&C factors
advanced by the Applicant, specifically: the best interests of the Applicant’s
children; his fear of returning to Sri Lanka based on his profile as a Tamil
fisherman; his fear of returning as a Christian; and his establishment in
Canada.
[7]
The Officer then turned to the best interests of
the Applicant’s two sons, who were aged 18 and 21 at the time, and his
daughter, who was 14 years old, noting that his wife and two younger children
continued to live in a refugee camp and that his oldest son was studying hotel
management. The Officer acknowledged the Applicant’s submission that, apart
from the modest assistance which the family receives through the camp, his
financial contributions are their only means of support towards their expenses
including the children’s tuition fees. The Officer further acknowledged the
letter from the Applicant’s daughter which noted that the family receives only
3200 Indian rupees per month from the Indian government and that this amount is
not enough to support them.
[8]
The Officer then reviewed the Applicant’s
history of financial contributions, noting that “although
not a determinative factor the circumstances permeating around an individual’s
historical circumstances can be a good indicator of future or anticipated
challenges.” After reviewing the Applicant’s personal history for the
two years before he entered Canada, the Officer stated there was “insufficient evidence…to indicate that the Applicant was able
to assist his family financially” during this time period, or “to indicate that his children were adversely affected with
regard to their academic progress or that their best interests were compromised
on account of economic challenges.” The Officer found that there was
insufficient documentary evidence that the Applicant’s brother had supported
the Applicant’s wife and the children during this period, stating that:
The applicant’s wife notes that her
brother-in-law had been assisting with covering the expenses when the applicant
was not working, but this is no longer an option as he is now married. I note
insufficient documentary evidence, for example, a statement from the
brother-in-law to corroborate the afore-mentioned. In the alternative, I have insufficient
information to indicate why the applicant could not continue to support his
family upon his return to Sri Lanka once he re-establishes himself and how this
could adversely affect the best interests of his children or subject his wife
to hardships.
[9]
The Officer identified the option of the
Applicant’s family returning to Sri Lanka, and in this regard found:
…that there [is] insufficient evidence
before me to indicate that the best interests of the children could be
compromised if they were to return to Sri Lanka and join the applicant….there
may be a period of re-adjustment, but …they will be returning to a familiar
culture and they have familial connections….a return by everyone to Sri Lanka
affords the family an opportunity to be re-united as a family unit and the
children could enjoy the benefits of having the physical presence of their
father back in their lives. The children would also no longer be residing in a
refugee camp….I have not been provided with sufficient evidence to satisfy me
that the children’s return to Sri Lanka with their parents could be detrimental
to their well-being/development and therefore not be in their best interests.
[10]
After assessing the best interests of the
Applicant’s children, the Officer proceeded to address the Applicant’s fear of
returning to Sri Lanka based on his profile as a Tamil fisherman, noting that
since the time the Applicant had fled Sri Lanka “there
has been a significant change in the country conditions and many Tamils are
returning back to Sri Lanka.” The Officer referred to the assistance
provided by the United Nations High Commissioner for Refugees [UNHCR] to Sri
Lankans to voluntarily return to Sri Lanka and to the thousands of returnees
who had done so with no assistance from the UNHCR. In the Officer’s mind, the
UNHCR’s participation in this return “suggests a
confidence that the returnees are safe to return to Sri Lanka.”
[11]
The Officer addressed the Applicant’s statement
that, as a Tamil with his profile, he would face discrimination and adverse
country conditions in Sri Lanka. The Officer acknowledged the documentary
evidence about the increased military presence in the north and the reporting
of Singhalese businessmen and fishermen regularly obtaining government
advantages over their Tamil counterparts. The Officer also noted, however, that
the Applicant had not provided evidence that his mother, sister, and brother
still in Sri Lanka have faced any such discrimination, and that the Tamil
National Alliance had won 16 seats in the 2015 election and the leader of that
party was appointed as the Opposition Leader.
[12]
The Officer then addressed the Applicant’s
submissions about adverse country conditions for people with the Applicant’s
profile, noting that while similar issues had been considered by the RPD, the
test in a refugee claim and an H&C application are different. The Officer
looked to the RPD’s decision and found that there was insufficient evidence
that the Applicant fit the profile of a Tamil from the north perceived to have
links with the LTTE. The Officer acknowledged that, while some sources state
that some Tamils are detained and questioned upon return and that failed
refugees from Western countries may be more readily associated with the LTTE,
there was no evidence that the Applicant would be perceived as being involved
with the LTTE upon his return to Sri Lanka. The Officer also reviewed the risk
profiles outlined by the UNHCR, including specific risks for people who are
suspected of certain links with the LTTE. The Officer noted that the Applicant’s
mother and siblings continue to reside in Jaffna, but there was: “insufficient evidence…to indicate that the authorities had
imputed them with an adverse political opinion on account of the applicant’s
brother’s profile” as an individual fleeing Sri Lanka and seeking
refugee protection in England. There also was, in the Officer’s view, “insufficient evidence to indicate that the applicant could
be subjected to hardship in Sri Lanka based on his brother’s profile.”
[13]
The Officer reviewed a letter from the
Applicant’s mother, noting that its origin could not be verified because it was
not an original document and not accompanied by any envelope, post-mark or
explanation as to how the Applicant received it. The Officer also noted that
the letter bore no sender’s address and was signed as “Loving
mother” without any name, making it unclear as to who actually wrote it.
The Officer remarked that the contents of the letter were “very brief and abstract” and there was no explanation
as to the cause of the suffering referred to in the letter. In the Officer’s
view, it appeared that the Applicant’s mother was “more
concerned about the financial challenges the applicant’s wife and children may
experience if the applicant returns to Sri Lanka.” After noting the mother’s
fears and the presence of the Navy and the police in large numbers, the Officer
quoted from the letter: “ ‘If you also come here, do
you thinks they will leave you alone.’ [sic].” The Officer noted
that the Applicant’s mother was “not an objective documentary
source with no interest in the outcome of this application”; and for
this and the other reasons stated, the Officer awarded the letter “little weight to corroborate the applicant’s fear of
returning to Sri Lanka and associated hardships.”
[14]
The Officer then addressed the Applicant’s fears
of being interrogated by the Sri Lankan authorities for suspected ties to the
LTTE related to his occupation as a fisherman, something which the Applicant submitted
to the Officer heightened his risk of being detained, mistreated or harassed
upon return to Sri Lanka. The Officer acknowledged that, while some evidence
indicated that Tamil fishermen are imputed with supporting the LTTE and
consequently targeted, the UNHCR documentation did not highlight fishermen as
being at a particularly higher risk profile. The Officer noted that it had been
over nine years since the Applicant was a fisherman and there was “insufficient evidence to indicate how the authorities would
learn of his previous fishing activities upon his return to Sri Lanka.”
[15]
The Officer concluded his analysis of the
Applicant’s fear of returning to Sri Lanka based on his profile as a Tamil
fisherman from the north by stating:
I have considered the applicant’s noted
profile cumulatively in a forward-looking perspective. I find that overall, in
consideration of the information before me, the applicant has not presented
sufficient objective evidence, including details to demonstrate discrimination
and/or associated hardships based on his profile of a Tamil from the north of
Sri Lanka and the other cited and considered profile factors or to indicate
personal characteristics which would suggest he would attract the adverse
interest of the authorities on his return to Sri Lanka and be subjected to
discriminatory treatment.
[16]
With respect to the Applicant’s submission that
he would face discrimination and economic hardship upon return to Sri Lanka
because he could no longer work as a fisherman, the Officer acknowledged the
evidence which demonstrated that Tamils have greater difficulty in obtaining
and renewing fishing licences post-war. The Officer found, however, that there
was “insufficient evidence to indicate that the
applicant was denied opportunities to work as a fisherman or his ability to
fish and earn money was restricted by the denial of or difficulties in obtain a
fishing permit.” The Officer further found, in view of the Applicant’s
history since departing Sri Lanka, that there was “insufficient
evidence to indicate that he could face economic challenges if he chose not to
resume to his fishing occupation.”
[17]
The Officer then noted that the Applicant had
held various jobs since leaving Sri Lanka, including owning a fruit shop in
India, and “also demonstrated his ability to be
financially self-sufficient during his sojourn in Canada…as a hard-working,
resourceful and dedicated individual.” The Officer concluded in this
regard as follows:
I have insufficient evidence to indicate why
the applicant could not utilise his entrepreneurial skills combined with his
positive personality traits to secure a similar business venture or employment
upon his return to Sri Lanka. Whilst I acknowledge that he may experience some
challenges with respect to re-assimilating into life in Sri Lanka,…he has
family members who reside there and [I] have insufficient evidence to indicate
why they could not assist the applicant with the initial re-integration
process. …the applicant would be returning to a familiar culture and to his
native-land where he was born and educated.
[18]
As to the Applicant’s establishment in Canada,
the Officer stated that it was “a positive factor”
as he was currently self-sufficient and working with two different employers.
Yet, there was, in the Officer’s view, “insufficient
evidence” to indicate a level of interdependency upon the Applicant’s
relatives or friends in Canada such that geographical separation could result
in challenges to the Applicant, his relatives or friends. There also was “insufficient evidence” to indicate to the Officer
that the Applicant’s involvement with the church was to such an extent that his
departure would result in hardships to the church. The Officer found that,
while there was “some establishment in Canada,”
it was reasonable to assume that a certain level of establishment would take
place during the several years that the refugee process takes to run its
course.
[19]
The Officer then turned to review the Applicant’s
fear of discrimination based on his Christian faith, noting that this fear had
not been presented to the RPD. The Officer stated there was “insufficient evidence to elaborate on any previous hardships
experienced by the applicant in Sri Lanka on account of his religion.”
The Applicant submitted to the Officer that he is a devout Christian and he
would personally face “severe hardships,
discrimination, and worse if returned to Sri Lanka.” The Officer
acknowledged the UNHCR report submitted by the Applicant which stated that
Christians are currently subjected to hate speech, discrimination, and acts of
violence throughout Sri Lanka. The Officer conducted his own research as well,
concluding that there are constitutional and legal protections against
religious discrimination and the acts of discrimination against Christians in
Sri Lanka were targeted towards evangelical Christian groups and physical
places of worship. The Officer found that the materials did not suggest signs
of growth in anti-Christian sentiment beyond fairly isolated examples of
physical harm.
[20]
The Officer found overall that:
…in
consideration of the information before me, the applicant has not presented
sufficient objective evidence, including details to demonstrate a fear of
discrimination in the future in Sri Lanka based on his profile of a Christian.
I also find insufficient evidence to indicate that he could be subjected to
hardships based on his Tamil ethnicity from the north and perceived to be
associated with the LTTE because of his cumulative profile of individuals who
are targeted for human rights’ abuses. In terms of establishment…the applicant
has been working in Canada, has made some friend and he is [a] member of a
Church. The applicant also has some familial ties. Whilst I acknowledge the
applicant’s ties to his relatives in Canada, …the competing family ties (wife,
children, mother and siblings) are quantitatively tipped in favour of outside
of Canada….cumulatively such factors are insufficient to indicate that the
applicant is well established in Canada. Consequently, establishment is a
factor that I have given little weight in my assessment of this application.
I have, on the other hand, given far more
positive consideration to the applicant’s demonstrated ability to adjust and
find employment in different cities and countries and his devotion to assist
his family in India. Based on the information before me the applicant could
continue with that role upon his return to Sri Lanka. I also note that the
applicant’s return to his native-land affords his family an opportunity to
reside again as a family unit, and in this regard find that it would be in the best
interests of the applicant’s children.
[21]
The Officer concluded by stating there were insufficient
H&C considerations to justify granting an exemption under subsection 25(1)
of the IRPA and refused the application.
III.
Issues
[22]
This application for judicial review raises the
following issues:
1.
What is the appropriate standard of review?
2.
Was the Officer’s analysis of the best interests
of the children reasonable?
3.
Was the Officer’s discretion fettered by
misunderstanding the scope of a risk assessment?
4.
Did the Officer’s assessment of the hardship the
Applicant would face ignore evidence and, therefore, render the decision
unreasonable?
5.
Did the Officer improperly negate the Applicant’s
establishment in Canada as a favourable factor?
IV.
Analysis
A.
Standard of Review
[23]
An officer’s decision to deny relief under
subsection 25(1) of the IRPA involves the exercise of humanitarian and
compassionate discretion and is reviewed on the reasonableness standard (Kanthasamy
at para 44). Under this standard of review, the Court must determine whether
the Officer’s decision “falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” and whether the decision is justifiable, transparent, and
intelligible: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1
SCR 190. Those criteria are met if “the reasons allow
the reviewing court to understand why the tribunal made its decision and permit
it to determine whether the conclusion is within the range of acceptable
outcomes”: Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011] 3 S.C.R. 708.
[24]
It warrants note that the Supreme Court in Kanthasamy
applied a reasonableness standard of review, yet ultimately concluded that the
officer had inappropriately fettered her discretion by a literal obedience to
the adjectives “unusual and undeserved or
disproportionate” hardship, leading her “to see
each of them as a distinct legal test, rather than as words designed to help
reify the equitable purpose of the provision” (para 45).
[25]
As to the standard of review for an allegation
that an administrative decision-maker has fettered their discretion, this is
somewhat unsettled in the jurisprudence. In Stemijon Investments Ltd v
Canada (Attorney General), 2011 FCA 299, 341 DLR (4th) 710 [Stemijon],
Justice Stratas explained how fettering of discretion was traditionally an
automatic ground for setting aside a decision, but now it should be subsumed
into the reasonableness analysis:
[21] The appellants’ submissions, while
based on reasonableness, seem to articulate “fettering of discretion” outside
of the Dunsmuir reasonableness analysis. They seem to suggest that “fettering
of discretion” is an automatic ground for setting aside administrative
decisions and we need not engage in a Dunsmuir-type reasonableness
review.
[22] On this, there is authority on the
appellants’ side. For many decades now, “fettering of discretion” has been an
automatic or nominate ground for setting aside administrative decision-making: see,
for example, Maple Lodge Farms Ltd. v. Government of Canada, 1982 CanLII
24 (SCC), [1982] 2 S.C.R. 2 at page 6. The reasoning goes like this.
Decision-makers must follow the law. If the law gives them discretion of a
certain scope, they cannot, in a binding way, cut down that scope. To allow
that is to allow them to rewrite the law. Only Parliament or its validly
authorized delegates can write or rewrite law.
[23] This sits uncomfortably with Dunsmuir,
in which the Supreme Court’s stated aim was to simplify judicial review of the
substance of decision-making by encouraging courts to conduct one, single
methodology of review using only two standards of review, correctness and
reasonableness. In Dunsmuir, the Supreme Court did not discuss how
automatic or nominate grounds for setting aside the substance of
decision-making, such as “fettering of discretion,” fit into the scheme of
things. Might the automatic or nominate grounds now be subsumed within the
rubric of reasonableness review? On this question, this Court recently had a
difference of opinion: Kane v. Canada (Attorney General), 2011 FCA 19
(CanLII). But, in my view, this debate is of no moment where we are dealing
with decisions that are the product of “fettered discretions.” The result is
the same.
[24] Dunsmuir reaffirms a
longstanding, cardinal principle: “all exercises of public authority must find
their source in law” (paragraphs 27-28). Any decision that draws upon something
other than the law – for example a decision based solely upon an informal
policy statement without regard or cognizance of law, cannot fall within the
range of what is acceptable and defensible and, thus, be reasonable as that is
defined in Dunsmuir at paragraph 47. A decision that is the product of a
fettered discretion must per se be unreasonable.
[26]
In Frankie’s Burgers Lougheed Inc v Canada
(Employment and Social Development), 2015 FC 27, 473 FTR 67, the Court
followed this approach:
[24] With respect to the fettering of
discretion issue that has been raised, it is not necessary to definitively
determine whether the standard of review is correctness or reasonableness,
since the result is the same: a decision that is the product of a fettered
discretion must per se be unreasonable (Stemijon…at paras 20-24).
[27]
More recently, in Gordon v Canada (Attorney
General), 2016 FC 643, 267 ACWS (3d) 738, the Court noted the unsettled
question as to whether a correctness or a reasonableness standard of review
applies to an allegation that an administrative decision-maker fettered their
discretion, observing that:
[25] Some confusion exists regarding
the appropriate standard of review where the fettering of discretion is at
issue.
[26] Traditionally, the fettering of
discretion has been reviewable on the correctness standard: Thamotharem v.
Canada (Minister of Citizenship & Immigration), 2007 FCA 198 at para
33, 366 NR 30.
[27] However, the Federal Court of
Appeal has recently posited that post- Dunsmuir, the fettering of
discretion should be reviewed on the reasonableness standard, as it is a kind
of substantive error. The Federal Court of Appeal has, however, also been
careful to say that the fettering of discretion is always outside the range of
possible, acceptable outcomes, and is therefore per se unreasonable: Stemijon
at paras 23-25…
[28] It is sufficient to state in this
case that the fettering of discretion is a reviewable error under either
standard of review, and will result in the decision being quashed: JP Morgan
Asset Management (Canada) Inc. v. Minister of National Revenue, 2013 FCA
250 at paras 71-73, 450 N.R. 91; see also Stemijon Investments, above,
at para 23. Simply put, if the Minister’s Delegate fettered her discretion, her
decision should be set aside regardless of the standard of review applied.
[28]
For the purposes of this case, it is sufficient
to conclude that, regardless of the standard of review to be applied to the
fettering of discretion issue raised by the Applicant, if the Officer fettered
his or her discretion that would constitute a reviewable error under either standard
of review and would require that the decision be set aside.
B.
Was the Officer’s analysis of the best interests
of the children reasonable?
[29]
The Applicant argues that the Officer’s decision
does not meet the standard set forth by the Supreme Court in Kanthasamy
because it failed to properly identify and define the children’s best interests
and examine them with a great deal of attention in light of all the evidence.
According to the Applicant, the Officer’s finding that it was in the children’s
best interests to leave the refugee camp and return to Sri Lanka ignores or is
highly dismissive of the fact that the children have been declared refugees and
endorses a violation of international law and the principle of non-refoulement.
The Applicant says the Officer’s justification for this finding ignored
evidence of former Sri Lankan asylum-seekers, in particular Tamils, being
detained and ill-treated or tortured after returning to Sri Lanka and evidence
that, since the end of the war, there has been an erosion of democratic and
human rights and continued torture of LTTE suspects. The Applicant further says
the Officer provided inconsistent and incoherent reasons about the financial
support of the Applicant’s family and improperly rejected or ignored evidence
that the Applicant’s brother had financially supported his family while the
Applicant travelled to Canada.
[30]
The Respondent maintains that the Officer
reasonably considered the best interests of all three children, including the
two sons who were not minors. According to the Respondent, the Officer did not
violate the principle of non-refoulement by suggesting that the children could
return to Sri Lanka but merely stated that return of the Applicant and his
family to Sri Lanka was an “option” open to them
and, ultimately, it would be the family’s choice. The Respondent states the
Officer was aware that the Applicant and his family fled Sri Lanka, yet the
Officer also recognized that numerous Tamils in India are returning to Sri
Lanka. The Respondent further submits that the Officer reasonably concluded
that, in the absence of any letter from the Applicant’s brother, there was
insufficient documentary evidence to show that his brother had financially
supported his family.
[31]
The Supreme Court in Kanthasamy noted
that the “best interests” principle is “highly contextual” because of the multitude of
factors that may impinge on the child’s best interest, and that the principle
must be applied “in a manner responsive to each child’s
particular age, capacity, needs and maturity” (at para 35). The Supreme
Court further noted in Kanthasamy that:
[39] A decision under s. 25(1) will…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.
[32]
The best interests of the Applicant’s children in
this case were not sufficiently considered, identified, defined and examined by
the Officer “with a great deal of attention.”
The Officer’s assessment and analysis of the best interests of the children was
premised upon an assumption that the Applicant and his family could be reunited
in Sri Lanka. This assumption, however, cannot be justified, is unintelligible
and, in view of the fact that each of the Applicant’s children has been
recognized by the Indian government as a refugee from Sri Lanka, is also perverse.
The Officer’s view that the children’s best interests would be reunification
with their father in Sri Lanka is unreasonable because it ignored and did not
address the possibility that their best interests might be best served by
maintaining the status quo (see: Jimenez v. Canada (Citizenship and
Immigration), 2015 FC 527 at paras 27, 28, [2015] FCJ No 488). The
Applicant’s daughter clearly stated in her letter which was before the Officer
that: “If my father doesn’t support us. My mother can’t
take care of us alone. So if my father doesn’t support us we wouldn’t be able
to study and live. For us Indian government offers only 3250 rupees for a
month, which is not even enough for our food needs. So we are living in a
critical situation.”
[33]
Moreover, the Officer’s determination as to the
best interests of the Applicant’s children presumed that the Applicant could
continue to support his family upon his return to Sri Lanka once he
re-established himself there. This presumption is speculative though, and hence
unreasonable, since there was no evidence before the Officer that the Applicant
would become gainfully employed in the country from which he and his family
fled as refugees; if anything, the evidence before the Officer suggested that
obtaining employment in Sri Lanka could be somewhat uncertain or problematic
for the Applicant by virtue of his Tamil ethnicity. The Officer in this case
failed to consider how the best interests of the Applicant’s children might be
compromised or adversely affected if the Applicant was unable to continue to
support them by remittances from Sri Lanka.
[34]
In summary, the Officer’s assessment of the best
interests of the Applicant’s children was unreasonable because it was premised
upon an unintelligible assumption and a speculative conclusion as to the
Applicant’s employment prospects in Sri Lanka. On this basis alone the Officer’s
decision must be set aside and the matter returned for redetermination by a
different immigration officer.
[35]
In view of my determination as to the Officer’s
unreasonable assessment of the best interests of the Applicant’s children, it
is unnecessary to consider the remaining issues as noted above.
V.
Conclusion
[36]
The Officer’s assessment of the best interests
of the Applicant’s children was unreasonable. The Officer’s decision must be
set aside and the matter returned for redetermination by a different
immigration officer.
[37]
Neither party raised a serious question of
general importance; so, no such question is certified.
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