Docket: IMM-2937-16
Citation:
2017 FC 516
Ottawa, Ontario, May 19, 2017
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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IZABELLA
MOTRICHKO
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Applicant
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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]
According to paragraph 11(1) of the Immigration
and Refugee Protection Act SC 2001, c 27 (the Act), foreign
nationals seeking permanent resident status in Canada must apply for - and
obtain - a visa before entering Canada. However, paragraph 25(1) of the Act
gives the Minister of Immigration, Refugees and Citizenship (the Minister) the
discretion to exempt foreign nationals from the ordinary requirements of the Act
when the Minister is satisfied that such exemption is justified by humanitarian
and companionate (H&C) considerations.
[2]
The Applicant is a 60 years old citizen of
Israel who applied for an H&C exemption in September 2015. On June 17,
2016, an immigration officer acting on behalf of the Minister [the Officer]
denied her application. The Applicant seeks judicial review of that decision. She
claims that the Officer failed to properly apply the legal standard for
assessing the best interests of her three grandchildren. She further contends
that the Officer reached unreasonable conclusions in this respect, especially
by failing to consider how the three children would suffer as a result of her
removal from Canada. Finally, the Applicant submits that the Officer
disregarded and misconstrued important evidence that spoke to highly relevant
H&C considerations.
[3]
For the reasons that follow, the Applicant’s
judicial review application is granted.
I.
Background
[4]
The Applicant was born in Ukraine in 1956. She
divorced her first husband in 1978 due to his alcoholism and inability to
provide for the family. At the time, the couple had a child, Irena, who was
three (3) years old. After the divorce, the Applicant raised Irena as a
single-mother for the following decade. Irena is the Applicant’s only child.
[5]
The Applicant re-married in 1993 and the family
moved to Israel in 1996. At the time, Irena was pregnant and unmarried. She
gave birth to her first child, Shany, on March 6, 1997. As Irena was then only
21 years of age and a single mother, the Applicant acted as de facto
mother to her granddaughter. Up until the year 2000, when Irena finally got a
job, the Applicant provided financial support to both her daughter and
granddaughter. Caring for Shany proved especially challenging since she was
diagnosed with Type I diabetes at a very young age. Both the Applicant and Irena
had to carefully manage Shany’s disease.
[6]
In 1998, the Applicant’s second husband left the
family without warning, taking with him the family’s savings. In 2003, Irena met
her common-law spouse, Momi Cohen [Momi] who, shortly thereafter, moved in with
her and the Applicant. The following year, the couple welcomed their first
child, Eden.
[7]
The Applicant continued to provide care for both
Shany and Eden until 2008 when Irena and Momi moved to Canada to pursue
employment opportunities. The couple’s second child, and Applicant’s third grandchild,
Kevin, was born in Canada the same year.
[8]
The Applicant visited her family in Canada in
2009 for about two months and in 2011 for almost a year. During her visits, she
helped Irena and Momi with the children and with the down payment on their
house. The Applicant returned to Canada in June 2013 on a visitor visa valid
until February 2016.
[9]
Apprehending the fact that Irena and Momi might
not be financially able to sponsor her for several years, the Applicant submitted
the H&C application which underlies the present proceedings. Her H&C grounds
were based on her establishment in Canada since 2013, her close ties to Canada
through family and friends, including the level of interdependency with her
family, the best interests of her three grandchildren, the hardship that would
occur if her application were refused, and the limited support available to her
both in Ukraine and Israel.
[10]
In dismissing the Applicant’s H&C
application, the Officer noted that the Applicant H&C grounds were based on
(i) her establishment in Canada, (ii) family dependency and (iii) the best
interest of her grandchildren.
[11]
On establishment, the Officer found that given
the Applicant’s temporary status during her visits to Canada, there was no
reasonable expectation for her to remain in Canada permanently. He ruled that
her establishment in Canada was not significant enough to conclude that her
departure would result in any hardships as the Applicant has lived in Ukraine
and Israel most her life and would be reuniting with family members, namely her
father and brother, and friends.
[12]
With respect to the family dependency ground,
the Officer, while he acknowledged the Applicant’s close bond with her daughter
Irena, concluded that “in making the choice to immigrate
to Canada in 2008, […] the applicant’s daughter would have reasonably
anticipated the difficulties that the applicant, already by then a divorced
woman, would encounter in the Ukraine as she aged and is now retired”.
He further determined that there was little evidence that the two women would
be unable to maintain their close and supportive relationship, be it through
letters or via Internet. He also mentioned the possibility for the Applicant to
be sponsored as a member of the family class by her daughter in the future.
[13]
Finally, the Officer found that there was little
evidence demonstrating that the Applicant’s departure would jeopardize the best
interests of her grandchildren as the latter will still have the support of
their parents who have always been their primary caregivers. Given that the
Applicant has previously been separated from the children when Irena and Momi moved
to Canada in 2008, the Officer determined that her departure would not deprive
them from the basic necessities of life. According to him, there is
insufficient evidence that Irena and her family would be unable to meet their
everyday obligations or that Irena was unable to care for her children before
the Applicant came to Canada. He noted that there was no indication that the
oldest child, Shany, who is now an adult, would be unable to help her mother
with the younger siblings.
II.
Issue and Standard of Review
[14]
The Applicant claims that the present case
raises the following three substantive issues:
1.
Did the Officer err in law in analysing the best
interests of the grandchildren?
2.
In the alternative, was the Officer’s analysis
of the best interests of the grandchildren unreasonable? and
3.
Was the Officer’s analysis of the H&C
factors unreasonable because the Officer ignored or misconstrued important
evidence?
[15]
The issue of whether the Officer applied the
proper legal test in assessing the “best interest of
the child” [BIOC] principle is a question of law to be reviewed against
the standard of correctness (Tisson v Canada (Citizenship and Immigration), 2015
FC 944, at para 15 [Tisson]; Taylor v Canada (Citizenship and
Immigration), 2016 FC 21, at para 17).
[16]
As for the second and third questions, it is
well-settled that the Officer’s treatment of the evidence in assessing the BIOC
and the H&C factors in general is subject to the reasonableness standard of
review (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; Tisson, at para 15; Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
[1999] SCJ No 39 at para 62 [Baker].
[17]
As I am of the view that the Officer failed to
undertake a meaningful and proper analysis of the BIOC factor as required by
the case law and that this error is determinative of the present judicial
review application, there will be no need to consider the second and third
issues.
III.
Analysis
[18]
The Applicant submits that the Officer erred in
law by undertaking a cursory, ill-defined assessment of the best interests of
her three grandchildren. She says that according to Kanthasamy, the Officer was required to examine the BIOC factor in detail and
having regard to their particular circumstances, not in a highly generalized
fashion as he did. The Respondent disagrees. It claims that
no specific formula or rigid test is prescribed for an analysis of the BIOC
principle and that what Kanthasamy requires is that all relevant H&C
factors in a particular case, including the BIOC, be considered and given
weight to, not that a specific test be applied.
[19]
In Kanthasamy, the Supreme Court of
Canada held that a decision under paragraph 25(1) will be found unreasonable “if the interests of children affected by the decision are
not sufficiently considered”, in the sense that “decision-makers
must do more than simply state that the interests of a child have been taken
into account” by ensuring that those interests are “’well identified and defined’ and examined ‘with a great
deal of attention’ in light of all the evidence” (Kanthasamy, at
para 39). It reminded that even before the BIOC principle was expressly
included in paragraph 25(1) of the Act, immigration officers had the
duty to consider the child’s best interests “as an
important factor”, give them “substantial weight”,
and “be alert, alive and sensitive to them” (Kanthasamy,
at para 38; quoting from Baker, at paras 74-75).
[20]
Kanthasamy is
very much in line with Baker on how to approach the assessment of the
best interests of the child principle with the exception perhaps that Kanthasamy
made it clear that ministerial guidelines are not legally binding on
immigration officers nor intended to be either exhaustive or restrictive
although, they may assist them in the exercise of their discretion even if in
the end, they can only be of limited use.
[21]
The bottom line in assessing the BIOC factor is
that it is not enough for an immigration officer to state that the interests of
the child have been considered. In order to resist judicial scrutiny, these
interests need to be “well identified and defined”
and must be examined by the officer “with a great deal
of attention in light of all the evidence”, although immigration
officers, in so doing, are not required to adhere to a specific formula.
Ultimately, the officer must be “alert, alive and
sensitive” to these interests in what is a “highly
contextual” analysis because of the “multitude
of factors that may impinge on the child’s best interests” (Kanthasamy,
at paras 35 and 38-39; Baker, at para 75; Richard v Canada (Citizenship
and Immigration), 2016 FC 1420, at para 16). However, the BIOC factor will
not always outweigh other considerations or mean, when it is given
consideration, that there will not be other reasons for denying an H&C
application (Baker, at para 75).
[22]
Although there is no “specific
formula” for assessing the BIOC factor, there is, as we just saw, a test
that needs to be met. The issue, therefore, is whether the interests of the
Applicant’s three grandchildren were “well identified
and defined” by the Officer and examined “with a
great deal of attention in light of all the evidence”. If this was not
done, then the Officer committed a reviewable error.
[23]
The Applicant claims that the Officer failed to
carry a BIOC assessment that responded to each of the three children’s age,
capacity, needs and maturity. In particular, she says that the Officer made no
mention of the hardships any of the three children would suffer if they were
separated from their grandmother, namely the negative emotional impact of the
separation on the three children, the difficulties Shany is likely to
experience without the Applicant’s assistance to manage her diabetes and how
the disruption of the family’s work and school schedule would adversely impact
the children. She contends that the emotional and practical hardships the
children would face are clearly stated in the record and yet they were not
seriously considered by the Officer or not given the weight they deserve.
[24]
The Applicant further claims that the Officer
failed to fully address the significant role, which the Officer characterized
as being “instrumental”, she plays in taking
care of her grandchildren, including helping them with the day-to-day running
of the household, and the impact her removal would have on Irena and Momi’s ability to maintain their demanding working schedules in
order to financially provide for their children.
[25]
In sum, the Applicant submits that by
misapprehending the central role she plays in her grandchildren’s lives, the
Officer failed to undertake a meaningful and proper analysis of the BIOC factor
as required by the case law.
[26]
I agree. The Officer’s decision is deficient on a
number of accounts in this respect but what stands out is the highly
generalized nature of the BIOC assessment given the evidence on record. The
Officer merely indicated that he had carefully considered the grandchildren’s
best interests and that he was not satisfied that those interests would be
negatively impacted. In particular, he indicated not being satisfied that the
Applicant’s departure would deprive the grandchildren of the basic
necessities of their lives. These conclusions appear to rest solely on the view
that there was insufficient evidence to show that Irena and Momi, or even Shany,
would be unable to take care of Kevin and Eden.
[27]
As the Applicant claims, the analysis the
Officer was called upon to undertake was not whether the grandchildren would
manage or survive in the absence of their grandmother but how they would be
impacted, both practically and emotionally, by the departure of the Applicant
in the particular circumstances of the case. To that end, the interests of each
grandchild, including those of Shany, needed to be “well
identified and defined” and examined “with a
great deal of attention”. The Officer’s BIOC analysis falls well short
of this standard. In particular, the emotional and practical hardship these
children would face if the Applicant is forced to leave the country is not
discussed to any appreciable degree despite evidence of such hardship on
record. Even if she is now a young adult, Shany’s interests needed to be
considered as part of the BIOC analysis since she is still very much a
dependant because of her medical condition and limitations (Ramsawak c
Canada (Citoyenneté et Immigration), 2009 CF 636). The Officer only referred
to Shany as a potential replacement for the Applicant in assisting Irena in
caring for Eden and Kevin. There is no analysis of the practical and emotional
impact the departure of the Applicant would have for Shany. Yet, the evidence
shows that the Applicant was instrumental in raising and caring for Shany since
she was born.
[28]
In Taylor, the Court reminded that a
child affected by an H&C decision must be given the “full and careful attention of the decision-maker”. This
task requires, assuming relevant evidence is provided, that the “full spectrum of consequences that may result from granting,
or denying, the H&C application”, which includes education,
accommodation, personal safety and health, will be considered (Taylor,
at para 31). Again, the Officer’s BIOC analysis does not provide this full and
careful attention to the interests of the Applicant’s three grandchildren in
light of the evidence on record, especially given the central role played by
the Applicant in the lives of these children up to now.
[29]
Although I appreciate the fact that an H&C
exemption is an exceptional and discretionary remedy (Legault v Canada
(Minister of Citizenship and Immigration), 2002 FCA 125, at para 15), I
find that the Officer’s failure to undertake a meaningful and proper analysis
of the BIOC factor as required by the case law constitutes a reviewable error.
[30]
Neither party proposed a question for
certification. None will be certified.
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