Docket: IMM-2374-16
Citation:
2016 FC 1372
Ottawa, Ontario, December 14, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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UDAYA NISHAN
ARUNA KUMARA WATTORUTHANRIGE FERNANDO AND SULAKSHANA LAKSHANI JAYARATHNA
HEWAGE AND MANETH LOSATH FERNANDO WHATTORUTHY ANRIGE AND NELITH LOHITH W.
FERNANDO
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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
I.
Overview
[1]
Mr. Fernando, his spouse and their oldest child
[the applicants] are citizens of Sri Lanka. Their youngest child is a Canadian
citizen. Mr. Fernando arrived in Canada in May 2013. Mr. Fernando’s spouse
arrived in Canada in December 2014. Both were issued work permits which expired
in January 2016.
[2]
On the basis of Humanitarian and Compassionate
[H&C] considerations - their establishment in Canada and the best interests
of their children [BIOC] - the applicants submitted a request, pursuant to
section 25 of the Immigration and Refugee Protection Act (S.C. 2001, c.
27) [IRPA] seeking an exemption that would allow them to apply for permanent
residence from within Canada.
[3]
A Senior Immigration Officer [Officer]
considered the application and concluded that the factors and circumstances
advanced by the applicants did not justify the granting of an exemption on the
basis of H&C considerations. The application was refused.
[4]
The applicants now seek judicial review of that
decision and submit that the Officer’s decision as it relates to the BIOC was unreasonable.
The applicants also submit that the Officer failed to adequately address their
establishment in Canada.
[5]
The sole issue raised in this application is
whether the decision of the Officer was reasonable.
[6]
I am of the opinion that the Officer’s decision
addressed the factors identified in the application as well as the children’s
best interests in light of the submissions made and the evidence presented. The
decision rendered is reasonable. The application is dismissed for the reasons
that follow.
II.
Standard of Review
[7]
The applicants make reference to the correctness
standard in their submissions however they argue that the decision is
unreasonable. It is well-established in the jurisprudence that a reasonableness
standard of review is to be applied when considering the overall reasonableness
of a discretionary decision (Agraira v Canada (Public Safety and Emergency
Preparedness), 2013 SCC 36 at para 50, Kanthasamy v Canada (Minister of
Citizenship and Immigration), 2014 FCA 113 at para 44).
III.
Extrinsic Evidence
[8]
The respondent notes that the evidence contained
at pages 118 through 136 of the Applicants’ Record were not before the decision-maker.
In oral submissions, applicants’ counsel conceded that the evidence was not
before the decision-maker but advised that some of the material was contained
in the National Documentation Package [NDP] for Sri Lanka.
[9]
The respondent further notes that Exhibit “B” of Mr. Fernando’s affidavit sworn on July 5, 2016,
was not before the Officer, nor were any of the exhibits attached to Mr.
Fernando’s further affidavit sworn on October 11, 2016. This evidence relates
to the sale of a home in Sri Lanka and to the transfer of funds from Canada to
the applicants’ family in Sri Lanka. The respondent submits that this evidence
should either be struck, or otherwise not considered by the Court.
[10]
Subject to limited exceptions, none of which
apply here, only material that was before the original decision-maker may be considered
on judicial review (Rafieyan v Canada (Minister of Citizenship and
Immigration), 2007 FC 727 at para 20). While the applicants submitted that
some of the evidence contained at pages 118 through 136 of the Applicants’ Record
was taken from the NDP, the applicants failed to identify which pages this
applied to.
[11]
I have reviewed pages 118 to 136 of the
Applicants’ Record which contain a number of articles relating to dengue fever
in Sri Lanka, extracts from a 2015 Trafficking in Persons Report from the
United States Department of State, extracts from a 2015 Human Rights Watch
country report and an unidentified two-page document addressing risks to
children in Sri Lanka. The evidence is generic in nature. The applicants have
provided no explanation as to why this evidence was not placed before the
Officer, nor were any submissions made as to why the Court should now consider
this evidence on judicial review. I have not considered the evidence contained
at pages 118 to 136 of the Applicants’ Record, Exhibit “B”
of Mr. Fernando’s affidavit sworn on July 5, 2016, nor any of the exhibits contained
in Mr. Fernanado’s further affidavit sworn October 11, 2016.
IV.
Analysis
A.
Was the Officer’s decision reasonable?
[12]
The applicants argue that the Officer failed to
consider and weigh the best interests of the children. Specifically, the
applicants submit the Officer failed to consider the risks of physical and
sexual abuse the children would face in Sri Lanka including that the children
in Sri Lanka run the risk of being recruited by armed groups. The Officer
unreasonably concluded that there was insufficient evidence of hardship. The
applicants argue that many examples of the hardship the children will face,
should they have to return to Sri Lanka, were provided. The applicants further
submitted that they are established in Canada, have minimal connections to Sri
Lanka, will be unable to find employment and will live in poverty. The
applicants submit the Officer erred in concluding that the evidence did not
demonstrate sufficient hardship to warrant an H&C exemption. I disagree.
[13]
For the purpose of subsection 25(1) of the IRPA,
as was stated by Justice John Maxwell Evans, speaking on behalf of a unanimous
Federal Court of Appeal, “… an applicant has the burden
of adducing proof of any claim on which the H & C application relies.”
(Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at
para 5). The Supreme Court decision in Kanthasamy v Canada
(Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] does not
conflict with this principle (D’Aguiar-Juman v Canada (Citizenship and
Immigration), 2016 FC 6 at para 9).
[14]
A decision-maker must be alert, alive and
sensitive to a child’s best interests and give those interests substantial
weight. However, those interests will not, as a matter of course, always
outweigh other considerations (Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 75). As noted by Justice Rosalie Abella
“[t]he “best interests” principle is “highly
contextual” because of the “multitude of factors that may impinge on the
child’s best interest”. … It must therefore be applied in a manner responsive
to each child’s particular age, capacity, needs and maturity. … The child’s
level of development will guide its precise application in the context of a
particular case.” (Kanthasamy at para 35).
[15]
In this case the Officer addressed the
circumstances of the children involved by: (1) identifying their age; (2)
addressing the degree of establishment in Canada; (3) addressing links to Sri
Lanka; (4) considering conditions in Sri Lanka including the potential impact
of those conditions on the children; (5) any medical issues or special needs;
and (6) the impact of a return to Sri Lanka on their education.
[16]
The Officer acknowledged that education
standards may be higher in Canada than Sri Lanka but noted that at their
present age, the children would not receive any significant benefit from the
Canadian education system. The Officer also noted that there was little if any
evidence to support the contention that access to education in Sri Lanka may be
a challenge. With respect to health care, again the Officer noted that Canada
may have a superior health care system than Sri Lanka but also noted that there
was little evidence to point to health concerns pertaining to either child and there
was little evidence to support the conclusion that they could be adversely
affected if they were to accompany their parents to Sri Lanka. The Officer also
considered the impact of leaving friends and neighbours but noted the
children’s age and the presence of their parents and extended family in Sri
Lanka. Concerns relating to human rights conditions and the impact on the
children were found to be “brief, abstract and lacking
details”. Upon consideration of these elements, the Officer concluded
that the applicants had failed to satisfy their onus.
[17]
The Officer also considered the applicants’
evidence of establishment in Canada noting their ownership of a car, payment of
taxes, volunteer activities, and their employment record including Mr.
Fernando’s unemployed status. The Officer noted that there was insufficient
evidence to suggest the applicants’ skills and experience could not be utilized
in Sri Lanka. The Officer also noted continued connections with family in Sri
Lanka and little evidence to support the conclusion that the family would not
support their reintegration in Sri Lanka. Again, in this regard the Officer
concluded that there was simply insufficient evidence to justify a positive
H&C determination.
[18]
In this case, the applicants disagree with the
decision reached by the Officer; however disagreement with an outcome does not
render the outcome unreasonable. The Officer actively considered the evidence
and the factors advanced in support of the application. The Officer addressed
the children’s best interests and the establishment of the applicants and
reasonably concluded the applicants had failed in their onus to demonstrate
hardship.
[19]
The decision satisfies the requirements of
justification, transparency and intelligibility and 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).
V.
Conclusion
[20]
The application is dismissed. The parties have
not identified a question of general importance, and none arises.
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