Docket: IMM-3893-16
Citation:
2017 FC 657
Ottawa, Ontario, July 6, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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WAJEEHA ZEHRA
HAMEED
MAZAHIR
MUHAMMAD HAMEED
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Applicants
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and
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
Ms. Wajeeha Zehra Hameed and her son, Mazahir
Muhammad Hameed are the Applicants in this matter. They first came to Canada in
June 2001 and obtained permanent residence status upon landing. Two weeks later
they returned to Pakistan. In 2013 the Applicants returned to Canada on a
temporary residence visa.
[2]
In August 2013, they initiated an appeal before
the Immigration Appeal Division [IAD] as a result of the loss of their
permanent resident status for failing to meet the residency requirements. In
February 2016 the appeal was denied and in May 2016 the Applicants submitted a
Humanitarian & Compassionate [H&C] application seeking consideration of
their application for permanent residence from within Canada. A Senior
Immigration Officer [Officer] denied the H&C application. It is that Officer’s
decision that is before me for review.
[3]
The Applicants argue that the Officer erred by
failing to identify and outline the test to be used in assessing the best
interests of a child [BIOC] and unreasonably applied the test. They further
argue that the Officer unreasonably assessed the hardship the Applicants would
face upon return to Pakistan. In reply, the Respondent submits that an H&C decision
of an Officer is a very fact-driven discretionary decision owed considerable
deference. The Respondent further argues that the BIOC analysis is highly
contextual, that no one specific test must be followed, and that the Officer’s
BIOC and hardship conclusions were reasonable.
[4]
The Application raises the following issues:
A.
Did the Officer fail to give adequate
consideration to Mazahir’s best interests?
B.
Did the Officer reach an unreasonable conclusion
in assessing hardship?
[5]
Having considered the parties submissions, I am
unable to identify any reviewable error on the part of the Officer that would
warrant my intervention. The Application is dismissed for the reasons that
follow.
II.
Standard of Review
[6]
The Applicants rely on Kastrati v Canada
(Citizenship and Immigration), 2008 FC 1141, 172 ACWS (3d) 180, to advance
the position that the correctness standard should be adopted when considering the
alleged failure of an Officer to articulate and apply the correct BIOC test, being
the test as set out in the Supreme Court of Canada’s decision in Kanthasamy
v Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 [Kanthasamy].
I disagree.
[7]
The consideration of a child’s best interests “is highly contextual” because of the “multitude of factors that may impinge on the child’s best
interests” (Khantasamy at para 35 citing both Canadian
Foundation for Children, Youth and the Law v Canada (AG), 2004 SCC 4 at
para 11, [2004] 1 S.C.R. 76 and Gordon v Goertz, [1996] 2 S.C.R. 27 at para 20,
134 DLR (4th) 321). The best interests principle is to be applied in a manner
that reflects each child’s particular circumstances (Khantasamy at para
35 referencing AC v Manitoba (Director of Child and Family Services),
2009 SCC 30 at para 89, [2009] SCR 181). “A decision
under s. 25(1) will therefore be found to be unreasonable if the interests of
children affected by the decision are not sufficiently considered” (Khantsamy
at para 39 referencing Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 75, 174 DLR (4th) 193).
[8]
In reviewing an officer’s BIOC analysis, a
reviewing court is concerned with the substance of the analysis in light of the
principles enunciated in the jurisprudence, and not whether the decision-maker
has articulated or set out those principles prior to engaging in that analysis.
The issue is one of sufficiency, being whether the consideration of the child’s
best interests in the context of the child’s circumstances was sufficient, and
is to be reviewed on a standard of reasonableness. In this regard, I agree with
Respondent’s position that the issues raised for consideration in this
Application all engage questions of mixed fact and law and are reviewable on
the reasonableness standard.
[9]
In undertaking this review it is also worthwhile
noting that H&C relief pursuant to section 25 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA] is intended to provide a safety
valve to address exceptional cases based on a holistic consideration of all of
the humanitarian and compassionate grounds and circumstances identified in the
application (Semana v Canada (Citizenship and Immigration), 2016 FC 1082
at para 15, 43 Imm LR (4th) 20; and Kanthasamy at paras 30 – 33). The
determination of an H&C application engages the exercise of the decision-maker’s
discretion in applying subsection 25(1) of the IRPA to the facts disclosed in
the application. That exercise of discretion is reviewable on a standard of
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008]
1 SCR 190 [Dunsmuir]). Where a reviewing court is to determine whether a
decision is reasonable it “is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process” as well as “whether the
decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law” (Dunsmuir at para 47).
[10]
A reviewing court is to show “respectful attention to the reasons offered or which could
be offered in support of a decision” (Dunsmuir at para 48 citing
David Dyzenhaus, “The Politics of Deference: Judicial
Review and Democracy”, The Province of Administrative Law ed by
Michael Taggart (Oxford, UK: Hart Publishing Ltd, 1997), 279, at 286). It is
not for a reviewing court to reweigh the evidence.
III.
Analysis
A.
Did the Officer fail to give adequate
consideration to Mazahir’s best interests?
[11]
The Applicants argue that the Officer’s BIOC analysis
is flawed in that the Officer: (1) did not assess the reality of the extent and
nature of the hardships that Mazahir will face if he were to return to Pakistan
with his mother; (2) made an inconsistent finding; (3) failed to identify
Mazahir’s interest; and (4) failed to determine whether it was in his best
interests to remain in Canada or return to Pakistan.
[12]
In the decision, the Officer undertook an
assessment of the following interests that would be impacted by Mazahir’s return
to Pakistan:
A.
The alleged tumultuous relationship between his
parents including the allegation that his father was abusive. The Officer noted
a prior IAD decision questioning the credibility of the abusive relationship
allegations and concluded that the evidence did not establish that Mazahir
would be exposed to an abusive or controlling household if he returned to
Pakistan given the earlier credibility finding;
B.
Education. The Officer noted that Mazahir was doing
well in school, and that the attributes that allowed him to perform well in
Canada would also assist him to perform at a similar level in Pakistan. The Officer
noted that the education system in Pakistan was weaker than that in Canada but
that Mazahir had attended private school in Qatar as noted in the earlier IAD
decision, and that there was no indication that this option would be
unavailable in Pakistan, The Officer also noted that his mother and two sisters
had accessed a quality education in Pakistan;
C.
Involvement in extracurricular activities, including
the sport of tennis. The Officer noted that the evidence did not indicate these
activities would be unavailable or inaccessible in Pakistan;
D.
Established friendships in Canada. The Officer
noted there were means for Mazahir to maintain contact with his current friends
and that his demonstrated social skills would assist him in establishing new
friendships in Pakistan;
E.
The high rate of poverty in Pakistan. The Officer
noted these conditions while also taking into account that Ms. Hameed’s
education, experience and resourcefulness, would likely allow her to obtain
employment and be self-supporting on return to Pakistan. The Officer also noted
that monthly financial support was being provided by Ms. Hameed’s husband and
that on this basis the poverty in Pakistan was unlikely to adversely impact Mazahir;
and
F.
Health risks to children in Pakistan, including risks
arising out of disease and violence in society. The Officer concluded that the
evidence indicated it was unlikely that Mazahir would experience a direct
negative impact as a result of these conditions.
[13]
In this case the Officer did identify and assess
Mazahir’s interests. In conducting that assessment the Officer identified the relevant
evidence and weighed it in respect of each of the interests identified.
[14]
The Applicants rely on Duhanaj v Canada
(Citizenship and Immigration), 2015 FC 416, [2015] FCJ No 397 (QL) [Duhanaj],
where Justice Anne Mactavish held that the Officer in that case erred in
failing to weigh the detriment to a child being forced to complete their
education in a substandard education system against the benefit of continuing
their education in Canada.
[15]
In my opinion Duhanaj is of little
assistance to the Applicants. Unlike Duhanaj the Officer in the present case
did not conclude that a direct negative impact would not be experienced by
Mazahir simply because the sub-optimal education conditions and health and
safety risks were common to all children. Rather the Officer acknowledged the
weaker education system and risks to health and safety. The Officer then noted
that the evidence indicated that a quality private education had been previously
provided to Mazahir in Qatar, that his sisters had received quality education in
Pakistan that allowed them to be accepted into post-secondary programs in other
countries, that there was no evidence to indicate a similar education would be
unavailable to Mazahir, and that he possessed the personal qualities to attain a
high level of education in Pakistan.
[16]
In concluding it was unlikely Mazahir would be
directly impacted by poverty, disease and violence the Officer noted that it
was likely Ms. Hameed would be self-supporting and that the financial support
of his father would continue. The Officer’s analysis considered the impact of
the conditions on children in Pakistan and did not conclude these were
unimportant factors because all other children were subject to them but rather
that Mazahir would likely not be directly impacted due to his individual
circumstances. In short, the Officer considered the factors impacting upon
Mazhid and undertook a contextual analysis of those factors. The conclusions
reached were reasonably available to the Officer.
[17]
The Applicants submit that the Officer’s
conclusion “that it would likely be in Mazahir’s best
interests not to be in a country where [the issues of poverty, disease and
violence] are occurring” is inconsistent with the ultimate conclusion
reached in the Officer’s decision. Again I disagree. The Officer’s ultimate conclusion
was reached after a balanced and reasonable consideration of the evidence with
the Officer noting that the BIOC assessment is but one element in the overall H&C
application, an element that is not determinative but must be weighed amongst
the many relevant factors considered in an H&C application (Duhanaj at
para 4).
B.
Did the Officer reach an unreasonable conclusion
in assessing hardship?
[18]
The Applicants argue that the Officer erred in
two respects in assessing hardship: (1) there was a failure to consider the
hardship that Ms. Hameed would face as a result of her gender, and her progressive
political beliefs; and (2) Ms. Hameed was expected to demonstrate a direct and
negative impact with respect to the ongoing issue of violence against women in
Pakistan when such a direct link was not required.
[19]
There are circumstances where an applicant
seeking H&C relief may rely on country conditions to support a reasoned
inference of the risks faced on return (Aboubacar v Canada (Citizenship and
Immigration), 2014 FC 714 at para 12, 460 FTR 84). However that inference
must, in my view, be drawn from a holistic consideration of the evidence. An
applicant still has the burden of establishing they would “likely be affected by adverse conditions” (Kanthasamy
at para 56).
[20]
In this case the Officer considered numerous
factors and weighed each of them in light of the circumstances of this
particular case. The Officer considered the material provided by the Applicants,
their family members and friends, as well as country conditions documents. The
Officer concluded that there was little evidence to support a conclusion that
Ms. Hameed would likely experience on return to Pakistan, or that she had ever previously
experienced, any direct negative impact with respect to legal or economic
discrimination by gender. The Officer reasonably concluded that Ms. Hameed
would likely be able to find employment and that she would likely continue to
receive financial support from her spouse. In the context of all of these
circumstances the Officer concluded that the allegations of hardship did not
warrant H&C relief.
[21]
The Applicants do not take issue with these
findings but rather argue that the Officer imposed too high a burden on them. I
disagree. The Officer did not require Ms. Hameed to demonstrate a direct negative
impact as a result of the generalized risk of gender violence. The documentary evidence
recognized that a number of factors impact on how individual women are treated
in Pakistan. These factors include social positioning, economic independence
and education, factors that were considered and addressed by Officer. When this
evidence is considered as a whole it was not unreasonable for the Officer to find
that Ms. Hameed had failed to establish that she was likely to be exposed to
hardship arising out of gender based violence.
[22]
In seeking to have this Court interfere with
that determination the Applicants are in effect asking that I engage in a reweighing
of the evidence. As noted above this is not the role of the Court on judicial
review.
IV.
Conclusion
[23]
The Officer’s conclusions are justified,
transparent and intelligible. The outcome falls within the range of reasonable
possible outcomes based on the facts and the law. The Application is dismissed.
[24]
The parties have not identified a question of
general importance for certification and none arises.
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