Docket: IMM-3620-16
Citation:
2017 FC 636
Ottawa, Ontario, June 29, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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PUI YEE LEUNG
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KA KIN TAM
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Applicants
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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 Applicants, Pui Yee Leung and her 22 year
old son, Ka Kin Tam (Brion), are citizens of Hong Kong. Ms. Leung’s eldest son,
Brion, was born in Hong Kong and her younger son, Oscar, now 18 years old, was
born in Canada. After the breakdown of Ms. Leung’s marriage in 2012, she and
her two sons spent most of their time in Canada and they have remained in
Canada continuously since August 2013.
[2]
In June 2014, the Applicants applied for
permanent residence from within Canada on humanitarian and compassionate
[H&C] grounds, but their application was refused. At the time of their
H&C application, Brion was 19 years old and Oscar was 14 years old. Their
application for judicial review of the negative H&C decision resulted in
the Minister of Citizenship and Immigration consenting to the H&C
application being re-determined in light 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]. In a letter dated July 30, 2016, a
Senior Immigration Officer informed the Applicants that their H&C
application was not granted. The Applicants have 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 denying their request for
permanent residence.
I.
The Officer’s Decision
[3]
The Officer noted at the outset of the reasons
for the decision that the onus was upon the Applicants to show that sufficient
H&C considerations exist to grant an exemption under section 25(1) of
the IRPA. After noting the Applicants’ travel history to Canada and
their submissions as to their establishment in Canada, the Officer stated:
I have carefully assessed all information
and evidence with respect to the applicants’ establishment in Canada. I note
that though the applicants have stayed in Canada for short periods of time in
2011, 2012 and 2013, they last re-entered Canada in August of 2013 and
therefore have lived here continuously for approximately three years. The
principal applicant is unemployed, but is in receipt of alimony from her former
husband in the amount of approximately $100,000 per annum. The principal
applicant has accumulated a significant amount of savings and has purchased a
home in Ontario. I give some positive consideration to the principal
applicant’s self-sufficiency.
Despite this positive
factor, the Officer remarked that the Applicants’ return to Hong Kong would not
disrupt Ms. Leung’s income as she would continue to receive her support
payments and she could choose to sell her Canadian property.
[4]
The Officer then discussed Brion’s enrollment in
a diploma program in a post-secondary institution, noting that Brion struggles
academically and continues to study at the ESL level. The Officer found there
was no evidence that Brion could not continue his education upon return to Hong
Kong where, in the Officer’s view, he “would likely be
able to achieve greater success studying in his native tongue.” The
Officer then reviewed the evidence about the Applicants’ community involvement
and integration, referencing the letters which outlined their volunteer work
and involvement in their local church. The Officer gave “some positive consideration to the applicants’ volunteer
activities and their involvement with the Wismer Baptist Church” but
noted that “the evidence before me speaks little of the
impact of the applicants’ departure from Canada on their church or Christian
Communications Canada.”
[5]
As for the Applicants’ ties to Canada, the
letters submitted by the Applicants’ friends were such that the Officer
concluded that “the applicants have made some
friendships in the community and I give some positive consideration to this
factor.” The Officer accepted that the Applicants have strong
connections to their family members in Canada and it would be emotionally
difficult to leave their family members behind. The Officer placed weight on
this factor. The Officer found, however, that:
… the impact of physical separation from the
family in Canada can be offset, to a degree, by maintaining the relationship
via alternate modes of communication. The applicants adduce very little
evidence to demonstrate that they would be unable to continue their
relationship with family in Canada via the Internet, Skype, telephone and
regular mail. While clearly not ideal, this type of contact can prevent a
disruption in communication and offer the applicants and their family in Canada
continuous connection, while the applicants submit an application for permanent
residence from outside of Canada in the normal fashion. Furthermore … the
applicants can travel to Canada to visit their family here; as well, the
applicants’ family in Canada can travel to Hong Kong SAR to visit them. There
is little evidence before me to suggest otherwise.
The Officer recognized
that, while the Applicants live close to Ms. Leung’s parents and assist them
with housework and provide care when they are sick, Ms. Leung’s siblings and
extended family also live in close proximity to her parents and they would be
able to provide assistance if needed in the future.
[6]
With respect to the best interests of Brion and
Oscar, the Officer said Brion’s age precluded him from consideration in the
best interests of the child [BIOC] analysis. The Officer cited the Convention
on the Rights of the Child, Can TS 1992 No 3 [Convention], which
defines a child as an individual below the age of 18, as well as the
Humanitarian and Compassionate Assessment Manual [the Manual] which states:
BIOC must be considered when a child is less
than 18 years of age at the time the application is received. There may be
cases in which the situation of older children is relevant and should be taken
into consideration in an H&C assessment but if they are not under 18 years
of age it is not a best interests of the child case.
[7]
The Officer’s BIOC analysis focused on Oscar,
who was 14 years old at the time the H&C application had been submitted.
The Officer recognized that Oscar is a Canadian citizen by birth, but spent the
first 13 years of his life in China and would likely follow his mother and
older brother if the H&C application was refused. The Officer reviewed the
submissions and evidence, including how Oscar has “been
doing great both academically and socially and has integrated well into his
community” since coming to Canada. The Officer addressed the Applicants’
submissions that Oscar’s asthma would be exacerbated if he returned to China or
Hong Kong. The Officer reviewed the medical evidence which indicated that Oscar
had been prescribed an inhaler and medications for his asthma. The Officer
noted that the medical evidence did not indicate what exacerbates Oscar’s
medical condition, and that the Applicants had not provided any evidence to
demonstrate that Oscar’s asthma was not adequately managed while he lived in China.
The Officer further noted that the Applicants had not provided hospital records
to show that Oscar’s hospitalization was related to his asthma. The Officer
stated: “I am unable to conclude that Oscar’s medical
condition would deteriorate on return to Hong Kong or that the condition would
not be adequately treated in Hong Kong.”
[8]
The Officer discussed the Applicants’
submissions that Oscar would have difficulty completing his education in Hong
Kong because he has been completing school in English in Canada. The Officer
noted that Oscar has lived and studied in Hong Kong and China for most of his
life and that his school records from Canada indicate he still struggles with
English. The Officer also noted that Oscar could enroll in an English school in
Hong Kong since 28% of the schools in Hong Kong offer English language
instruction. With respect to Oscar’s connection to his family and friends in
Canada, the Officer acknowledged that Oscar had developed a close bond with his
grandparents and other family members and separation from them may be
emotionally difficult. The Officer also accepted that Oscar had developed
friendships and integrated into his local community. The Officer placed weight
on these factors. But at the same time, the Officer found that:
… Oscar will be in the loving care of his
mother and eldest brother. Moreover, I find that Oscar can maintain his
relationship with his relatives and friends in Canada via the telephone or
other modes of communication currently available (e. g. Skype, email etc).
Oscar can also visit his family and friends in Canada any time, for as a
Canadian citizen he has the right to return to this country at any time…
[9]
The Officer stated that Oscar’s best interests
constituted the most compelling aspect of the H&C application. However, the
Officer determined that: “this factor alone, or when
considered, globally, in conjunction with establishment and other factors
cited, is not sufficient to warrant an exemption.” The Officer concluded
his reasons for refusing the application by stating:
Overall, I acknowledge that the applicants
have continuously resided in Canada for approximately three years and that they
have a large family in Canada. I have weighed these factors against the fact
that the applicants have a history of travelling back and forth between China
and Canada. I took into consideration the fact that the family would likely be
able to re-establish themselves on return to Hong Kong, as they have sufficient
financial means, familiarity with the local culture and adequate language
skills. Finally, having carefully assessed the best interests of the principal
applicant’s Canadian-born minor son, I find that it is in the best interests of
Oscar to maintain a connection with his relatives and friends in Canada.
However, having carefully assessed all evidence presented by the applicants, I
am unable to conclude that departure from Canada would directly compromise the
best interests of Oscar. Having considered the circumstances of the applicants
and having examined all of the submitted documentation, I am not satisfied that
the humanitarian and compassionate considerations before me justify an
exemption under section 25(1) of the Act.
II.
Issues
[10]
The Applicants raise two issues:
1.
Did the Officer err by not assessing Brion’s
best interests because he was 19 years old?
2.
Was the Officer’s assessment of Oscar’s best
interests unreasonable?
III.
Analysis
A.
Standard of Review
[11]
An officer’s decision to deny relief under
subsection 25(1) of the IRPA involves the exercise of discretion and is
reviewed on the reasonableness standard (Kanthasamy at paras 44-45). An
immigration officer’s decision under subsection 25(1) is highly discretionary,
since this provision “provides a mechanism to deal with
exceptional circumstances,” and the officer “must
be accorded a considerable degree of deference” by the Court (Williams
v Canada (Citizenship and Immigration), 2016 FC 1303 at para 4, [2016] FCJ
No 1305; Legault v Canada (Minister of Citizenship and Immigration),
2002 FCA 125 at para 15, [2002] 4 FCR 358).
[12]
Under the reasonableness standard, the Court is
tasked with reviewing a decision for “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190 [Dunsmuir]. 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. Additionally, “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”; and it is
also not “the function of the reviewing court to
reweigh the evidence”: Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at paras 59, 61, [2009] 1 S.C.R. 339 [Khosa].
[13]
The parties disagree as to whether the
reasonableness standard also applies to the Officer’s interpretation of “child” for purposes of subsection 25(1) of the IRPA.
The Applicants contend that the correctness standard applies because this is a
question of whether the Officer has applied the correct legal test, while the
Respondent maintains that the reasonableness standard is presumed to apply
because the Officer is applying the Officer’s home statute. This issue remains
unsettled in the jurisprudence.
[14]
Since the Supreme Court of Canada’s decision in Kanthasamy,
this Court continues to be conflicted over the applicable standard of review to
be applied to the selection of a legal test by an H&C officer. While some
decisions continue to apply a correctness standard (see: e.g., Shrestha v
Canada (Citizenship and Immigration), 2016 FC 1370 at para 6, [2016] FCJ No
1412; Marshall v Canada (Citizenship and Immigration), 2017 FC 72 at
para 27, [2017] FCJ No 52; Gomez Valenzuela v Canada (Citizenship and
Immigration), 2016 FC 603 at para 19, [2016] FCJ No 571; Gonzalez v
Canada (Citizenship and Immigration), 2015 FC 382 at paras 23-35, [2015] 4
FCR 535), other decisions have determined that Kanthasamy requires a
reasonableness standard of review. For example, in Roshan v Canada
(Citizenship and Immigration), 2016 FC 1308 at para 6, [2016] FCJ No 1313,
Justice Bell noted that: “The Court in Kanthasamy
never departed from its opinion in Dunsmuir that the reasonableness
standard of review applies to questions of law related to the interpretation of
a tribunal’s home statute.” Similarly, in Tang v Canada (Citizenship
and Immigration), 2017 FC 107 at para 11, [2017] FCJ No 76, Justice
McDonald remarked that: “jurisprudence from this Court
supports the application of a reasonableness standard of review when the issue
is whether the correct legal test has been applied to the H&C considerations.”
[15]
One pre-Kanthasamy decision which
directly addresses the issue at hand is Ramsawak v Canada (Citizenship and
Immigration), 2009 FC 636, 182 ACWS (3d) 167 [Ramsawak], where the
Court applied the reasonableness standard to review an officer’s interpretation
of “child” under subsection 25(1) of the IRPA:
[13] The first two issues raised by the
applicants are clearly of a legal nature. The first one relates to the proper
interpretation to be given to the concept of a “child” in the analysis required
by the Supreme Court of Canada in assessing the “best interests of the child”.
The second one bears upon the proper test to apply in an application under s.
25(1) of IRPA. These legal issues, however, are clearly intertwined with
the factual matrix in which they arise; moreover, they pertain to the
interpretation of the very statute empowering the officers to make their
determinations, and it is to be assumed that the officers will have acquired a
particular familiarity with the IRPA as a result of applying it in the
normal course of their duties. For those reasons, I am of the view that the
applicable standard of review in examining the first two questions ought to be
the “reasonableness” standard.
[16]
Contrary to the Applicants’ submissions,
interpretation of the word “child” is simply an
exercise of statutory interpretation by the Officer and not an issue of whether
the Officer applied the correct legal test. Moreover, I find the reasoning in Ramsawak
persuasive, as did the Court in Saporsantos Leobrera v Canada (Citizenship
and Immigration), 2010 FC 587 at paras 28-29, [2011] 4 FCR 290 [Saporsantos
Leobrera].
[17]
As to the Applicants’ argument that the Officer
fettered his or her discretion, the jurisprudence in this regard is also
unsettled. 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]
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.
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
[18]
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 Applicants, 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.
[19]
The standard to review issues of procedural
fairness is correctness (Khosa at para 43; Mission Institution v
Khela, 2014 SCC 24 at para 79, [2014] 1 S.C.R. 502). Under the correctness
standard, a reviewing court shows no deference to the decision maker’s
reasoning process and the court will substitute its own view and provide the
correct answer if it disagrees with the decision maker’s determination (see: Dunsmuir
at para 50). Moreover, the Court must determine whether the process followed in
arriving at the decision under review achieved the level of fairness required
by the circumstances of the matter (see: Suresh v Canada (Minister of
Citizenship and Immigration), 2002 SCC 1 at para 115, [2002] 1 S.C.R. 3). When
applying a correctness standard of review, it is not only a question of whether
the decision under review is correct, but also a question of whether the
process followed in making the decision was fair (see: Hashi v Canada
(Citizenship and Immigration), 2014 FC 154 at para 14, 238 ACWS (3d) 199;
and Makoundi v Canada (Attorney General), 2014 FC 1177 at para 35, 471
FTR 71).
B.
Did the Officer err by not assessing Brion’s
best interests because he was 19 years old?
(1)
Applicants’ Submissions
[20]
The Applicants maintain that the Officer’s
failure to conduct a BIOC analysis for Brion amounted to both an error of law
and a breach of procedural fairness. They note that the definition of “dependent child” under the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations] at the time of
the H&C application in 2014 included a child who is less than 22 years of
age. The Applicants say Brion, whatever his age, is a “child”
who could reasonably be expected to be dramatically affected by his mother’s
removal from Canada. According to the Applicants, the Officer simply concluded
that Brion was precluded from a BIOC assessment because of the Manual and the
Officer’s belief that he or she lacked jurisdiction to consider Brion’s best
interests.
[21]
The Applicants argue that the Officer cannot
rely on the Manual to fetter his or her discretion, and the Officer should have
provided them with notice so they could make additional arguments in support of
their position. The Applicants further argue that the Officer erred by treating
the guidelines in the Manual as mandatory requirements, pointing to Kanthasamy
where the Supreme Court of Canada stated:
[32] There is no doubt, as this Court
has recognized, that the Guidelines are useful in indicating what constitutes a
reasonable interpretation of a given provision of the Immigration and
Refugee Protection Act…. But as the Guidelines themselves acknowledge, they
are “not legally binding” and are “not intended to be either exhaustive or
restrictive”… Officers can, in other words, consider the Guidelines in the
exercise of their s. 25(1) discretion, but should turn “[their] mind[s] to the
specific circumstances of the case”... They should not fetter their discretion
by treating these informal Guidelines as if they were mandatory requirements
that limit the equitable humanitarian and compassionate discretion granted by
s. 25(1). [Citations omitted.]
[22]
In the Applicants’ view, the status of a child
does not automatically cease upon the child turning 18 years of age. The
Applicants reference Kanthasamy where the Supreme Court stated that the “‘best interests’ principle is ‘highly contextual’ because of
the ‘multitude of factors that may impinge on the child’s best interest’”
and it “must therefore be applied in a manner
responsive to each child’s particular age, capacity, needs and maturity”
(at para 35). The Applicants submit that whether a BIOC assessment is required
is based on the particular context and not the age of the child.
(2)
Respondent’s Submissions
[23]
According to the Respondent, the Officer did not
breach any duty of procedural fairness by relying on the Manual without
providing notice to the Applicants. The Respondent says it would be an
absurdity if an officer had a duty to inform an applicant every time that
officer relied on an immigration manual, and this is especially so when the
manual directly pertains to the scheme under which the applicant has applied.
The Officer’s reliance on the Manual to determine that a BIOC analysis does not
apply to children older than 18 is, the Respondent further says, consistent
with the jurisprudence, most notably Saporsantos Leobrera. Additionally,
the Respondent says the Officer was not required to review the accuracy of the
Manual, since it accords with recent case law from this Court. In the
Respondent’s view, the Officer properly determined that a BIOC did not apply to
Brion.
[24]
The Respondent maintains that the context
surrounding the inclusion of the “best interests of a
child directly affected” language in subsection 25(1) indicates that it
was meant to be read with regard to the Convention. The Respondent says
Parliament added this language in response to the Supreme Court of Canada’s
decision in Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, [1999] SCJ No 39 [Baker], which focused on the best
interests of the child in view of the Convention. Although the Convention
is not enacted into Canadian law, the Respondent points to De Guzman v Canada
(Minister of Citizenship and Immigration), 2005 FCA 436 at para 67, [2006]
3 FCR 655, where the Federal Court of Appeal observed that Baker “endorsed the use of international law to interpret a
statutory provision as requiring immigration officers to give great weight to
the best interests of any affected children when exercising a discretion to
grant an in-country application for landing on humanitarian and compassionate
grounds.”
[25]
The Respondent rejects the Applicants’
proposition that the definition of “dependent child”
in the Regulations should be used to define “child”
under subsection 25(1) of the IRPA, citing Saporsantos Leobrera
where the Court stated:
[54] Although the Court is sympathetic
to situations of dependency, it is also cognizant, in keeping with the
presumption of consistent expression, that Parliament is presumed to have
chosen to use “child” and “dependent child” for two distinct purposes and it
would be questionable, in the absence of firm evidence to the contrary, to
import, in whole or in part, the definition of one into the other.
(3)
Analysis
[26]
The Applicants’ arguments that the Officer
should have conducted a BIOC assessment of Brion’s best interests fly in the
face of established jurisprudence in this Court. For example, in Saporsantos
Leobrera, Justice Shore thoroughly reviewed the applicable legislation,
including arguments about the applicability of the definition of “dependent child” under the Regulations, and
concluded that: “the best interests of the child
analysis is intimately tied to the Convention on the Rights of the Child
and, because of that link, the best interests of the child analysis cannot be
performed after a person reaches the age of 18 because that is the limit placed
by that instrument” (at para 63). More recently, in Norbert v Canada
(Citizenship and Immigration), 2014 FC 409, 453 FTR 303 [Norbert],
Justice Russell adopted the reasoning from Saporsantos Leobrera, stating
that:
[37] The Officer was not required to
undertake a best interests of the child analysis in this case. The Applicants
are correct to point out that there is some jurisprudence that suggests that
children over the age of 18 may, in certain circumstances, still be considered
children for the purposes of an H&C application. However, there is also jurisprudence
that says a best interests analysis is simply not available under the IRPA for
older children and, in this regard, it is my view that the reasoning and
conclusions in such cases as Leobrera, above, and Massey, above,
is to be preferred. In Massey, at para 48, the Court held that:
[48] In addition, recent
jurisprudence of this Court has held that there is no need to consider the best
interests of a person over the age of 18 as a “child directly affected” in an
application brought under s 25 of IRPA. In Leobrera v Canada (Minister of
Citizenship and Immigration), 2010 FC 587, Justice Michel Shore relied on
domestic legislation, international instruments and the jurisprudence of the
Federal Court of Appeal and Supreme Court to reach the conclusion that
“childhood is a temporary state which is delineated by the age of the person,
not by personal characteristics” (at para 72).
[27]
The Applicants correctly note that the
applicants in Norbert did not request that a BIOC analysis be completed
in respect of their 21 year old financially dependent son, while the Applicants
here specifically requested that a BIOC assessment be conducted for Brion. This
distinction, however, is one without a difference and it does not change my
view that the Officer in this case reasonably interpreted the meaning of a “child” for purposes of subsection 25(1) of the IRPA.
Indeed, the Supreme Court of Canada in Kanthasamy referenced the Manual
when stating that: “As the Guidelines note, the ‘best
interests’ principle applies to all children under 18 years of age”
and added a footnote indicating that “No province in
Canada sets the age of majority below 18 years of age” (at
para 34).
[28]
The Officer’s determination in this case not to
conduct a BIOC assessment of Brion’s best interests is justifiable,
intelligible, and transparent, and falls within the range of acceptable and
possible outcomes defensible in respect of the facts and law. The Officer’s
reasoning clearly demonstrates that the Officer relied upon the Manual and the Convention
to conclude that a “child” for purposes of
subsection 25(1) of the IRPA only applies to a child under the age of
18. The Officer’s decision on this point is reasonable and, moreover, it is
consistent with this Court’s jurisprudence in Saporsantos Leobrera and
Norbert; and also in Moya v Canada (Citizenship and
Immigration), 2012 FC 971 at paras 17-18, 416 FTR 247 [Moya]; Ovcak
v Canada (Citizenship and Immigration), 2012 FC 1178 at para 18,
[2012] FCJ No 261 [Ovcak]; and Massey v Canada (Citizenship
and Immigration), 2011 FC 1382 at para 48, [2011] FCJ No 1684 [Massey].
[29]
The Applicants’ procedural fairness and
fettering of discretion arguments are without merit. The Officer was not
required to inform the Applicants the Manual would be relied upon in the Officer’s
assessment of their H&C application. The Manual is publically available and
widely known by immigration practitioners. In my view, the Officer did not
fetter his or her discretion by relying upon the Manual and the Convention
to conclude that no BIOC assessment was required of Brion. The Officer’s
reliance on the Convention indicates that the Officer exercised his or
her discretion in considering whether Brion was a “child”
under subsection 25(1) of the IRPA.
C.
Was the Officer’s assessment of Oscar’s best
interests unreasonable?
(1)
Applicants’ Submissions
[30]
The Applicants contend that the Officer’s
assessment of Oscar’s best interests was unreasonable. According to the
Applicants, the Officer was required to be “alert,
alive and sensitive” to Oscar’s best interest by: (1) identifying his
interests; (2) determining the degree to which they would be compromised by one
decision over another; and (3) balancing this against the other factors in the
application. In the Applicants’ view, a best interests analysis makes Oscar’s
present life in Canada the relevant point of comparison, not his previous
residence in China and Hong Kong. The Applicants note that the Officer found
Oscar’s best interests were to maintain a connection with his relatives and
friends in Canada, yet the Officer concluded contradictorily that departure
from Canada would not “directly compromise” his
best interests.
[31]
The Applicants maintain that the Officer failed
not only to recognize the importance and benefits of having emotional, physical
and social support in Canada through his family and friends, but also to
acknowledge the near complete lack of similar support in Hong Kong. In the
Applicants’ view, the evidence submitted to the Officer highlights Oscar’s
strong family ties in Canada, including how his grandfather and uncles are his
only father figures. The Applicants say the Officer’s assessment of the
disruption to Oscar’s education is terse, and that the Officer unreasonably
focused on Oscar’s ability to adapt and adjust to life in Hong Kong rather than
on whether it would be in his best interests to leave Canada. The Applicants
cite Bautista v Canada (Citizenship and Immigration), 2014 FC 1008 at
para 20, 246 ACWS (3d) 167, where this Court stated that: “it is the child that must, first and foremost, be considered
when analyzing BIOC, rather than whether the child could adapt to life in
another country, accompany parents, or otherwise fit what might be in someone
else’s fate. It would be exceptional for relocation to be the better solution.”
(2)
Respondent’s Submissions
[32]
The Respondent maintains that the Officer did
not err in the assessment of Oscar’s best interests. The Respondent says the
Applicants’ submissions fail to account for the impact of Kanthasamy and
blatantly request this Court to reweigh the evidence. According to the
Respondent, the test for a BIOC analysis advocated by the Applicants emanates
from Williams v Canada (Citizenship and Immigration), 2012 FC 166 at
para 63, 212 ACWS (3d) 207 [Williams], a case which has been rejected by
subsequent jurisprudence. In this regard, the Respondent refers to Semana v
Canada (Citizenship and Immigration), 2016 FC 1082 at para 23, 271 ACWS
(3d) 389 [Semana], where the Court remarked that 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).”
[33]
The Respondent says this Court should reject the
Applicants’ open and blatant attempt to have the Court step into the Officer’s
shoes and conduct the H&C assessment. The Respondent further says it was
not unreasonable for the Officer to suggest that Oscar could maintain
relationships with family and friends overseas. In the Respondent’s view, the
Officer reasonably determined that Oscar could continue his education in Hong
Kong. The Respondent notes that the Applicants did not provide any evidence of
how Oscar would receive a substandard education in Hong Kong or how his
Canadian education would be detrimental to him continuing his education in Hong
Kong.
(3)
Analysis
[34]
I agree with the Respondent that the Applicants
are attempting to reargue the merits of their request for H&C relief and
are asking the Court to reweigh the evidence. The Officer’s decision in this
case was highly discretionary and it is to be afforded considerable deference.
The Applicants have not pointed to a reviewable error made by the Officer. The
Officer thoroughly assessed Oscar’s best interests. The Officer was clearly
alert, alive, and sensitive to Oscar’s best interests and the BIOC analysis
addressed the unique and personal consequences that removal from Canada would
have on Oscar.
[35]
The Officer accepted that Oscar’s best interests
are “to maintain a connection with his relatives and
friends in Canada.” However, his best interests could not be
determinative of the outcome because those interests must be weighed against
the other relevant factors in order to justify an exemption on H&C grounds
(see: Jogiat v Canada (Citizenship and Immigration), 2015 FC 501 at para
16, 478 FTR 315; Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 38, [2010] 1 FCR 360; Semana at para 28). In my
view, it was reasonable for the Officer in this case to conclude that Oscar’s
best interests alone, or when considered globally in conjunction with the
Applicants’ establishment and other factors, were not sufficient to warrant
H&C relief.
[36]
Moreover, the Officer’s statement that “I am unable to conclude that departure from Canada would
directly compromise the best interests of Oscar” does not, as the
Applicants suggest, contradict the Officer’s characterization of Oscar’s best
interests. The Officer said it was “in the best
interests of Oscar to maintain a connection with his relatives and friends in
Canada” and that this can be achieved through telephone or internet
communications and, as a Canadian citizen, Oscar can visit Canada at any time.
In effect, the Officer is saying that Oscar’s ability to maintain a connection
with his family and friends in Canada would not be “directly
compromised” by returning to Hong Kong because he can still communicate
with and visit them. The Officer’s decision in this regard is neither
contradictory nor unreasonable.
IV.
Conclusion
[37]
Overall, the Officer’s decision to deny the
Applicants’ application for permanent residence from within Canada is
justifiable, transparent, and intelligible, and it falls within a range of
possible, acceptable outcomes defensible in respect of the facts and law. The
Applicants’ application for judicial review is dismissed.
[38]
At the hearing of this matter, the Applicants
proposed the following question of general importance to be certified:
Is an officer assessing an H&C
application under subsection 25(1) of the IRPA precluded from
considering the bests of a child who is more than 18 years old?
[39]
The Federal Court of Appeal recently reiterated
the test for certification in Lewis v. Canada (Public Safety and Emergency
Preparedness), 2017 FCA 130, when it stated that:
36 The case law of this Court
establishes that in order for a question to be properly certified under section
74 of the IRPA, and therefore for this Court to have jurisdiction to hear an
appeal, the question certified by the Federal Court must be dispositive of the
appeal, must transcend the interests of the parties and must raise an issue of
broad significance or general importance. In consequence, the question must
have been dealt with by the Federal Court and must necessarily arise from the
case itself (as opposed to arising out of the way in which the Federal Court
may have disposed of the case): Zhang v. Canada (Citizenship and Immigration),
2013 FCA 168 at para. 9, 446 N.R. 382; Varela v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 145 at paras. 28-29, [2010] 1 F.C.R.
129; Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA
89 at paras. 11-12, 318 N.R. 365 [Zazai]; and Liyanagamage v. Canada
(Secretary of State), 176 N.R. 4 at para. 4, [1994] F.C.J. No. 1637
(F.C.A.)
[40]
In my view, the question proposed by the
Applicants does not transcend the interests of the parties and does not raise
an issue of broad significance or general importance. The answer to this
question has already been answered in cases such as Norbert and Saporsantos
Leobrera, and also in Moya at paras 17-18; Ovcak at para 18;
and Massey at para 48. I decline, therefore, to certify the Applicants’
proposed question for certification.
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