Docket: IMM-5283-16
Citation:
2017 FC 757
Ottawa, Ontario, August 4, 2017
PRESENT: The
Honourable Mr. Justice Gascon
|
BETWEEN:
|
|
PARMJIT KAUR
|
|
KARTAR SINGH
|
|
JASHANPREET
SINGH
|
|
HARMANPREET
KAUR
|
|
Applicants
|
|
and
|
|
MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Defendant
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants, Mrs. Parmjit Kaur, her
husband Mr. Kartar Singh, and their two minor children, Jashanpreet and
Harmanpreet, are citizens of India. Mrs. Kaur arrived in Canada with her two
children in April 2009, and Mr. Singh followed more than 30 months after, in
December 2011. They all sought to obtain refugee protection upon their respective
arrival, but their claims were denied in November 2011 and in March 2016,
respectively.
[2]
In early May 2016, the Canada Border Services
Agency [CBSA] met Mrs. Kaur and her children, and informed them that they would
have to leave Canada by the end of June 2016. Shortly after, Harmanpreet, who
was 12 years old at the time, started having anxiety problems. Twice, she made
suicide attempts. She kept saying that she would rather die than return to
India and be separated from her father again.
[3]
On May 10, 2016, the Applicants applied for
permanent resident status pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. This provision gives the Minister
of Immigration, Refugees and Citizenship discretion to exempt foreign nationals
from the ordinary requirements of the IRPA if the Minister is of the opinion
that such relief is justified by humanitarian and compassionate [H&C]
considerations, including the best interests of any child directly affected. In
November 2016, an immigration officer [Officer] denied the Applicants’ H&C application,
finding that they had failed to demonstrate that their personal circumstances
justified granting a discretionary exemption based on H&C grounds
[Decision].
[4]
The Applicants now seek judicial review of the Decision.
They contend that the Officer’s conclusions are unreasonable for three reasons.
First, the Officer failed to apply the proper legal tests and took a too narrow
approach to the best interests of the children affected, in particular
Harmanpreet; second, the Officer erred in his assessment of the Applicants’ establishment
in Canada and in his finding that it was minimal and insufficient; third, many
of the Officer’s findings amount to pure speculation. The Applicants thus ask this
Court to quash the Officer’s Decision and to order another immigration officer
to reconsider their claim for discretionary relief on H&C grounds.
[5]
The only issue to be determined is whether the Officer’s
Decision is reasonable.
[6]
For the reasons that follow, and despite the fact
that Harmanpreet’s story certainly attracts sympathy, I must dismiss this application
for judicial review. Having considered the Officer’s findings, the evidence
before him and the applicable law, I can find no basis for overturning the Decision,
whether on the treatment of the best interests of the children, on the
Applicants’ establishment in Canada, or on the various findings made by the
Officer in the assessment and weighing of the H&C factors at stake. The Decision
thoroughly reviewed the evidence on each of those fronts and the Officer’s conclusions
fall within the range of possible, acceptable outcomes based on the facts and
the law. There are no reasons justifying the intervention of this Court.
II.
Background
A.
The Decision
[7]
In the Decision that is rather comprehensive and
written in French,
the Officer started by summarizing the Applicants’ immigration history before
turning to the three main submissions made by them to support their claim that
H&C considerations justify obtaining permanent residence in Canada. These
were the family’s establishment in Canada; the adverse country conditions in
India; and the best interests of the children.
(1)
Establishment in Canada
[8]
The Officer first analyzed the Applicants’
establishment in Canada. In terms of work-related establishment, Mrs. Kaur
indicated that she had been unemployed until 2015, but that she now owned a transportation
company, as well as a fashion boutique. The Officer was satisfied that she
owned a transportation company. However, the Officer found the evidence clearly
insufficient (“nettement insuffisante”) to demonstrate that Mrs. Kaur played any real role in the company.
As for the fashion boutique, Mrs. Kaur only provided an insurance document
addressed to her relating to a store bearing the name “Fancy
Indian Clothing Store”. As Mrs. Kaur had no other documents, such as a
tax declaration or a registration certificate, the Officer was not satisfied
that she owned the boutique.
[9]
The Officer then turned to Mr. Singh’s work-related
establishment in Canada. The Officer observed that Mr. Singh had probably received
social welfare until 2013, and had started working in 2014. The Officer also
noted that Mr. Singh reported a total income of $19,000 in 2014, which resulted
in a taxable income of $6,000.
[10]
Based on his review of the evidence, the Officer
concluded that the Applicants had not been financially independent since their
arrival in Canada and had not proven their ability to support themselves
financially with their incomes, without some assistance from the State. He
added that several bills in evidence showed outstanding accounts. Mrs. Kaur and
Mr. Singh’s work-related establishment in Canada was therefore negatively
considered by the Officer.
[11]
Mrs. Kaur and Mr. Singh also claimed that they
were well integrated in their community, had done volunteer work and had
developed social relationships with many persons in Canada. They provided a
letter from a sikh temple as well as some 29 letters from various acquaintances
to support this. The Officer gave no weight to this last group of letters, as
they all used similar wording, with no proof as to the identity of their
authors. Finally, the Officer did not give any weight to the fact that the
Applicants had bought belongings in Canada and had no criminal records, as he
found that anyone who stays in Canada for some time is expected to accumulate
things and not to violate the law.
[12]
The Officer ultimately found that, in light of
the evidence, the Applicants’ degree of establishment in Canada and links with the
country were not significant. He concluded that, despite having spent several
years in the country, the Applicants were only able to show a very limited degree
of establishment (“très faible degré d’établissement”) in Canada, and that this was a negative
factor in the overall assessment of the Applicants’ H&C application. The
Applicants’ limited links with Canada would thus create only few difficulties
for them if they were removed to India.
(2)
Adverse country conditions in India
[13]
On a second H&C ground, the Applicants
claimed that they would be persecuted if they had to return to India. However, the
Officer noted that their refugee claims, which were based on that same fear, had
been found not credible by the Canadian immigration authorities, and rejected.
[14]
The Officer acknowledged that poverty exists in
India, but found that the mere fact that Canada is in better economic health
does not justify the granting of an H&C application. Moreover, the Officer observed
that the unemployment rate was lower in India than in Canada, and that there
would be no reason why Mrs. Kaur and Mr. Singh would not be able to find jobs in
India upon their return.
[15]
Given that the Applicants did not show that they
would suffer any difficulty attributable to adverse country conditions in
returning to India, that they had spent most of their lives in India, and that
they spoke Punjabi, English and French, the Officer decided that he would not
afford any weight to this factor in his evaluation.
(3)
Best interests of the children
[16]
The Officer’s lengthiest and more detailed
comments in the Decision were made on the best interests of the two children,
Jashanpreet and Harmanpreet. On this front, the Officer first acknowledged that
both are going to school in Canada, have good grades and are well integrated,
and that their teachers appreciate them.
[17]
Although Mrs. Kaur claimed that her children would
face extreme poverty should they return to India, the Officer found that she had
not been able to prove this statement. The fact that the general standard of
living is greater in Canada than in India was not viewed as being enough to
grant an H&C application. The Officer also noted that the children’s mother
tongue was Punjabi, which should help their reintegration in India.
[18]
The Officer then turned to Harmanpreet’s fragile
psychological state. The Officer was aware of the fact that Harmanpreet had made
two suicide attempts when she learned from the CBSA that her mother, her
brother and her would have to leave Canada. Following that, Harmanpreet had to
be taken care of by the provincial child protection services. The thought of
being sent back to India and separated from her father was then unbearable for
Harmanpreet. The Officer referred to letters from psychologists and to reports
from the child protection services. He noted that, since these events,
Harmanpreet has benefited from psychological counselling and that she and her
family accepted the help offered.
[19]
The Officer indicated that, while Mrs. Kaur knew
that she would have to return to India eventually (as she was without status),
it is likely that Harmanpreet only learned about this when the CBSA met with her
mother, her brother and her, and told them they had to leave the country, which
could explain her extreme reaction. The Officer, however, noted that the
situation had changed since the psychologists’ report and that Harmanpreet would
most likely not be separated from her father if the H&C application was
declined and she was to return to India. Since Mr. Singh had no status in
Canada following the dismissal of his refugee claim, the Officer found it reasonable
to expect that Mr. Singh would go back to India with his wife and children.
Moreover, the Officer found that Harmanpreet’s psychological counselling
sessions certainly helped her get through this situation, and that she would
have more time to get accustomed to her departure. The Officer also explained
that, in light of the temporary resident status of Mrs. Kaur and her children
until the end of August 2017, the Applicants could choose the right time to
leave in order to limit the consequences on Harmanpreet.
[20]
The Officer found that the best interests of the
children were to stay in Canada with their two parents, as it is usually the
case for children who have spent most of their conscious lives in Canada. The
Officer found that, should they return to India, they would most probably have
difficulties adapting to their new lives at first, but that they would eventually
adapt to their new country.
[21]
The Officer concluded that the impact of the
removal would be important on the two children, especially Harmanpreet. He
therefore afforded an important weight (“un poids important”) to this factor in his global evaluation of the H&C
application. He found that their best interests would be somewhat affected (“compromis
dans une certaine mesure”), but mostly in the short term during the adaptation period. Even
though the Officer indicated that it was an important factor, he concluded that
the best interests of the children were not a determinative element (“un élément déterminant”) in the present case,
sufficient to grant the requested relief despite the other dimensions of the
file. In reaching this conclusion, the Officer referred to the fact that the
children will not be separated from their parents, that they speak Punjabi and
English, that they are relatively young (which will facilitate their
integration), and that they will have members of their extended family in
India, contrary to their current situation in Canada.
(4)
Conclusion and weighing of the factors
[22]
In his conclusion, the Officer restated that
Mrs. Kaur and Mr. Singh had shown minimal establishment in Canada, and were not
able to demonstrate that they were capable of supporting themselves. Their
limited links with Canada (“peu de liens”) was
described by the Officer as a negative element in his global assessment of the
application. The Officer also found that the Applicants failed to demonstrate
how the country conditions in India would raise humanitarian considerations.
The Officer acknowledged that the best interests of the children would be to
stay in Canada, and that Harmanpreet will most probably be upset (“bouleversée”) when she will learn that the
H&C application is denied. The Officer indicated that the family would
nonetheless be able to leave Canada all together and that they could decide the
best moment to leave Canada in order to limit the consequences on the children.
[23]
The Officer indicated that the best interests of
the children was undoubtedly a positive factor, but that it was the sole positive
one in the Applicants’ request, as the only other factor to which weight was
afforded, namely establishment in Canada, was found to be negative. In the
result, the Officer concluded that the best interests of the children were not adversely
affected (“compromis”)
to such an extent as to be a determining factor sufficient, in and of itself,
to justify the granting of residence on H&C grounds.
B.
The standard of review
[24]
It is not disputed that the applicable standard
of review in analyzing a discretionary decision based on H&C applications
under subsection 25(1) of the IRPA is reasonableness (Kanthasamy v Canada
(Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] at para 44; Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]
at para 62). Findings on the sufficiency of H&C grounds involve the
exercise of discretion by immigration officers and the application of a
specialized legislation to particular facts, for which the applicable standard
of review is reasonableness.
[25]
When reviewing a decision
on the standard of reasonableness, the analysis is concerned with the existence
of justification, transparency and intelligibility within the decision-making
process, and the decision-maker’s findings should not
be disturbed as long as 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 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, deference
is warranted and it is not the role of the Court to reweigh the evidence or the
relative importance given by the decision-maker to any relevant factor (Kanthasamy
v Canada (Citizenship and Immigration), 2014 FCA 113 [Kanthasamy FCA]
at para 99). This is especially the case where expertise arises from the
specialization of functions of administrative tribunals having familiarity with
a particular legislative scheme (Edmonton (City) v Edmonton East (Capilano)
Shopping Centres Ltd, 2016 SCC 47 [Edmonton] at para 33). Under a
reasonableness standard, as long as the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
decision is supported by acceptable evidence that can be justified in fact and
in law, a reviewing court should not substitute its own view of a preferable
outcome (Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 17).
[26]
This standard requires deference to the
decision-maker as it “fosters access to justice [by
providing] parties with a speedier and less expensive form of decision making”,
and as the reasonableness standard is “grounded in the
legislature’s choice to give a specialized tribunal responsibility for
administering the statutory provisions, and the expertise of the tribunal in so
doing” (Edmonton at paras 22 and 33). The Supreme Court has
repeatedly said that reasonableness “takes its colour
from the context” and “must be assessed in the
context of the particular type of decision-making involved and all relevant
factors” (Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 at
para 22; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 59).
III.
Analysis
[27]
While the Applicants raise three arguments in
their challenge of the Decision, their main focus is on the unreasonable
treatment by the Officer of the best interests of the children affected, in
particular Harmanpreet. At the oral hearing before the Court, it was clear that
this issue drove the Applicants’ position as counsel for the Applicants focused
her submissions on the evidence regarding Harmanpreet’s mental health and
fragile state.
A.
The assessment of the best interests of the
children was reasonable
[28]
The Applicants claim that the Decision is
unreasonable in light of the Officer’s treatment of the best interests of the two
children involved and the ensuing conclusions on its limited weight. The
Applicants assert that the Officer did not adhere to the principles set forth
in Kanthasamy and that the reasons fail to demonstrate adequate
consideration of Harmanpreet’s unique circumstances and two suicide attempts.
More specifically, counsel for the Applicants argues that the Officer
misapplied the tests and approaches articulated in Kanthasamy and unreasonably
minimized Harmanpreet’s situation.
[29]
I respectfully disagree.
[30]
I accept without hesitation that Harmanpreet’s
situation attracts sympathy and, in that regard, I do share the concerns and
worries expressed by the Applicants about her. I am also mindful that, even if
the “best interests of the child” factor is not
a decisive factor in an H&C application, it remains an extremely important
one (Baker at para 75). However, I cannot agree with the Applicants
that, in this case, the Officer’s treatment of the best interests of
Jashanpreet and Harmanpreet ignores the teachings of Kanthasamy, is
unreasonable and falls outside the range of possible, acceptable outcomes. I
concede that I might not have reached the same conclusion as the Officer.
However, on an application for judicial review, it is not my role to substitute
my views for those of the Officer.
(1)
The approach to H&C considerations
[31]
Relying on Kanthasamy, the Applicants
first contend that the Officer failed to assess and determine whether
Harmanpreet’s situation “would excite in a reasonable
person in a civilized community a desire to relieve her misfortunes”. I
do not share that view.
[32]
In Kanthasamy, the Supreme Court clarified
the legal test that representatives of the Minister must use to assess H&C
applications under paragraph 25(1) of the IRPA. Prior to that decision, hardship
was the general test used although the courts had acknowledged that it was not
the only one. In Kanthasamy, the Supreme Court established that Chirwa
v Canada (Minister of Citizenship and Immigration), [1970] IABD No 1 [Chirwa]
provided an important governing principle for H&C assessments. The Supreme
Court expressed the view that “the successive series of
broadly worded “ humanitarian and compassionate” provisions in various
immigration statutes had a common purpose, namely, to offer equitable relief in
circumstances that “would excite in a reasonable [person] in a civilized
community a desire to relieve the misfortunes of another”: Chirwa, at p.
350” (Kanthasamy at para 21).
[33]
The Supreme Court acknowledged that the hardship
tests continue to apply, but added that the words “unusual
and undeserved or disproportionate hardship” should be treated as “descriptive, not as creating three new thresholds for relief
separate and apart from the humanitarian purpose of s. 25(1)” (Kanthasamy
at para 33). Therefore, looking at the issue of H&C considerations solely through
the lens of hardships is no longer sufficient and the language of “unusual and undeserved or disproportionate hardship”
must not be used by immigration officers in a way that limits their ability to consider and give weight
to all relevant H&C considerations in a particular case (Kanthasamy
at para 25).
[34]
Further to my review of the Officer’s reasons, I
am not convinced that the Decision failed to apply the Chirwa approach
or that the Officer looked at the matter through the limited lens of hardships.
It is true that the Officer does not expressly use the words “factors that would excite in a reasonable in a civilized
community a desire to relieve the misfortunes of another” in the
Decision, but immigration officers do not have to recite this language explicitly
in order to comply with the approach elaborated in Kanthasamy. There are
no magic formulae or special words that officers must resort to. It suffices if
the reviewing court can be satisfied that the approach outlined in Kanthasamy
transpires from the reasons and if it can conclude that the decision-maker
has, in his or her analysis, properly considered not just hardships but all
relevant H&C considerations in a broader sense.
[35]
I find that this is manifestly the case here. There
is no passage in the Decision indicating that the Officer looked at the matter through
the narrow perspective of hardships and applied a wrong legal test. The Officer
did not travel on this narrow road that immigration officers should now avoid.
On the contrary, in assessing the Applicants’ situation, including the best
interests of Harmanpreet, the Officer instead adopted the more holistic
approach enunciated by the Supreme Court in Kanthasamy. In my view, a
reading of the Decision reveals that the Officer showed compassion and concern
for Harmanpreet’s misfortunes, and considered numerous H&C factors. I point
out that the Officer expressly stated his empathy for her (“[j]’éprouve beaucoup d’empathie pour la jeune fille”)
and specifically referred to Harmanpreet’s fragile mental state, her expected
difficulties upon removal (“un retour en Inde […] sans
doute difficile”) and the context of her suicide attempts.
[36]
The Officer’s reasons do not reflect, in my
view, the attitude of a person insensible and unresponsive to the misfortunes
of others or not animated by a desire to relieve them. As Justice Roy said in Delille
v Canada (Immigration, Refugees and Citizenship), 2017 FC 508 [Delille],
an immigration officer must be guided by a concern to address circumstances
that “would excite in a reasonable [person] in a
civilized community a desire to relieve the misfortunes of another” (Delille
at para 42). However, the fact that immigration officers have to be desirous to
relieve the misfortunes of an applicant does not mean that they have to automatically
find that an H&C relief is merited. The Applicants appear to suggest that
the Chirwa/Kanthasamy language calls for a given result. This is not how
I read it and, in my opinion, this is not what it entails. The approach
necessitates a certain mindset and disposition on the part of immigration
officers, and it dictates a certain path to be followed in their analysis of
the evidence in order to echo the overarching purpose of H&C provisions
like subsection 25(1) of the IRPA. But, immigration officers still retain their
discretion to assess the evidence, equipped as they are with their specialized
expertise in handling immigration matters. In other words, the Chirwa/Kanthasamy
approach to H&C applications defines the road to be taken, but it does not
prescribe the destination to be ultimately reached by the decision-makers.
[37]
As indicated in Delille, in order to
properly apply the test and to follow the teachings of Kanthasamy, it is
very relevant to assess the personal conditions of an applicant and all relevant
H&C considerations in a particular situation should be weighed (Delille
at para 42). This is what the Officer did. In my view, the question set out in Chirwa
and Kanthasamy was considered and answered by the Officer on this record,
albeit not in favour of the Applicants. The factual situation here is vastly different
from the context considered by Justice Roy in Delille.
(2)
The test for the best interests of the children
[38]
The Applicants further plead that the Officer also
erred in the application of the more specific test governing the best interests
of the children. Here again, the Supreme Court clarified the relevant test in Kanthasamy.
It held that a decision under subsection 25(1) of the IRPA 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). Immigration officers have the duty to consider
the children’s best interests “as an important factor”,
give them “substantial weight”, and “be alert, alive and sensitive to them” (Kanthasamy
at para 38; Baker at paras 74-75).
[39]
The bottom line in assessing this factor is that
it is not enough for an immigration officer to simply say that the best interests
of the children have been considered. In order to escape judicial scrutiny, the
reasons must reflect that these interests are “well
identified and defined” and are effectively examined by the officer “with a great deal of attention in light of all the evidence”.
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” such as his or her age, capacity,
needs and maturity (Kanthasamy at paras 35 and 38-39; Baker at
para 75).
[40]
Where a child’s interests are “minimized, in a manner inconsistent with Canada’s
humanitarian and compassionate tradition and the Minister’s guidelines, the
decision will be unreasonable” (Baker at para 75, cited in Kanthasamy at para 38). However, immigration officers are not required to adhere to a “magic formula” in the exercise of their discretion (Canada (Minister of Citizenship and
Immigration) v Hawthorne, 2002 FCA 475 [Hawthorne] at para 7). No rigid test is prescribed or required for the analysis
or to demonstrate that an immigration officer has been “alert, alive and sensitive” to the best interests of the children (Onowu
v Canada (Citizenship and Immigration), 2015 FC 64 at paras 44-46; Webb v Canada
(Citizenship and Immigration), 2012 FC 1060 [Webb]
at para 13). In other words, form should not be elevated over substance (Taylor v Canada
(Citizenship and Immigration), 2016 FC 21 at para 12; Webb at para
11).
[41]
In order to demonstrate that an immigration
officer is alert, alive, and sensitive to the best interests of the children,
it is of course necessary for his or her analysis to address the “unique and personal consequences” that removal from Canada would have for the children affected by
the decision (Tisson v Canada (Citizenship and Immigration), 2015 FC 944
at para 19; Ali v Canada (Citizenship and Immigration), 2014 FC 469 at
para 16).
[42]
Again, I am satisfied that, in this case, the Decision
amply demonstrates that the Officer conducted this type of analysis and was alert, alive and sensitive to the best
interests of the two children, in particular Harmanpreet. The Officer looked
specifically at their situation and did not fail to engage in the analysis. He was aware of their history and concerns and referred extensively to
the children’s conditions in the Decision. The Officer specifically said that
he studied the best interests of the children with a great deal of attention (“avec
beaucoup d’attention”). Unlike
the situation found to be unreasonable by the Supreme Court in Kanthasamy, the Officer gave
sufficiently serious consideration to Harmanpreet’s age and mental health, and
to the general impact of her return to India in terms of contacts with her family,
her worries about being separated from her father, her studies and her psychological
state. The Officer was obviously sensitive to her two prior suicide attempts,
and referred to them repeatedly. The Officer considered her psychological
treatments, the fact that she was afraid to be separated from her father and
the disruption caused by the removal. The Officer looked at her circumstances
as a whole and did not show a “literal obedience”
to the evidence of “unusual and undeserved or
disproportionate” hardship (Kanthasamy at para 45). In fact, the
Officer did not rely on these adjectives in the Decision.
[43]
When the reasons are read as a whole, it is
clear to me that the Officer was very mindful of the fact that Harmanpreet had
made two suicide attempts, recognized that she suffered from anxiety and
depression and that she had to be taken care of by the child protection
services in order to protect her from herself. The Officer also acknowledged that
she did not want to go back to India and to be separated again from her father.
The Officer, however, found that her fear to be separated from her father would
not materialize now, as Mr. Singh is without status and will likely return to
India with his wife and children. The Officer also found that Harmanpreet has received
psychological support and counselling since her suicide attempts. The Officer
further mentioned that Harmanpreet, her brother, and her mother all had
temporary resident permits which would allow them to stay in Canada until
August 2017 and that they would therefore be able to decide the appropriate
moment to leave the country before that date.
[44]
In my opinion, the Decision communicates the
Officer’s empathetic efforts to understand the evidence as well as openness and
sensitivity to Harmanpreet’s situation. The Officer’s extensive analysis went
beyond the simple hardship and reflected all H&C considerations. However, the
Officer noted that some countervailing factors contributed to limit the adverse
impact of the removal on the best interests of the children. On that front, he
mentioned the fact that the children will not be separated from their parents,
that they speak Punjabi and English, that they are relatively young (which will
facilitate their integration), and that they will have members of their
extended family in India, contrary to their current situation in Canada. For
those reasons, the Officer concluded that the best interests of the children,
while positive, was not a determinative factor sufficient to grant the H&C
relief sought by the Applicants.
[45]
I find that the Decision is replete with words
showing compassion on the part of the Officer and illustrating how all H&C
dimensions were considered in the assessment of the best interests of
Harmanpreet. The Officer gave full and fair consideration to each of the
factors supporting the Applicants’ application. Nowhere does the Decision exhibit
a lack of sensitivity towards the misfortunes of Harmanpreet. It does not lack
intelligibility and it provides all the elements to understand the context of
the various findings. A reading of the Decision thus convinces me that the
Officer has addressed the evidence in a manner that is consistent with the
Supreme Court’s teachings in Kanthasamy and the underlying equitable
nature and purpose of the H&C process.
[46]
Contrary to the situation in Herreno c Canada
(Citoyenneté et Immigration), 2017 CF 412, this is not a case where the
Officer can be said to have failed to be alert, alive and sensitive to the best
interests of Harmanpreet, to have omitted to identify and define those
interests, or to have neglected to treat them with attention. The Officer demonstrated
sympathy and made efforts to gain a full understanding of the real life impact
of a negative H&C decision on the best interests of Harmanpreet. He was
able to “articulate the suffering of a child that will
result from a negative decision” (Kolosovs v Canada (Citizenship and
Immigration), 2008 FC 165 at para 12, cited in Dowers v Canada
(Immigration, Refugees, and Citizenship), 2017 FC 593 at para 12). The fact
that the Officer did not reach the conclusion hoped for by the Applicants does
not render the Decision unreasonable.
[47]
I should emphasize that the mere presence of
children does not necessarily call for a certain result and their interests
will not always outweigh other considerations or mean that there will not be
other reasons for denying an H&C claim (Kanthasamy at para 38). The
best interests of the children “[do] not necessarily
trump other factors for consideration in an H&C application” even if they are an important factor (Semana v Canada
(Citizenship and Immigration), 2016 FC 1082 at para 28). It is only one factor to be weighted among others (Kisana v Canada
(Citizenship and Immigration), 2009 FCA 189 at para 72; Hawthorne at
para 5; Canada (Minister of Citizenship and Immigration) v Legault, 2002
FCA 125 [Legault] at para 12). Once an immigration officer has analyzed
the best interests of the children, “it is up to her
[or him] to determine what weight, in her [or his] view, it must be given in
the circumstances” (Legault at para 12).
[48]
It is also important not to lose sight that subsection
25(1) of the IRPA remains a responsive exception to the ordinary operation of
the IRPA. On that note, the Supreme Court in Kanthasamy underlined that “[t]here will inevitably be some hardship associated with
being required to leave Canada. This alone will not generally be sufficient to
warrant relief on humanitarian and compassionate grounds under s. 25(1), […]
nor was s. 25(1) intended to be an alternative immigration scheme” (Kanthasamy
at para 23). An H&C exemption is an
exceptional and discretionary remedy (Legault at para 15). This
relief sits outside the normal immigration classes or refugee protection
streams by which foreign nationals can come to Canada permanently, and it acts
as a sort of safety valve available for exceptional cases. Such an exemption is not an “alternative
immigration stream or an appeal mechanism” for
failed asylum or permanent residence claimants (Kanthasamy FCA at para
40).
[49]
In order to remain within the boundaries of
reasonableness, the Officer had to consider the children’s best interests as “an important factor, give them substantial weight, and be
alert, alive and sensitive to them” (Baker at para 75). Furthermore, in conducting the analysis,
the Officer had a duty to clearly identify and define the children’s best interests,
and examine those interests with a great deal of attention in light of all of
the evidence. I am unable to conclude that such an analysis was not undertaken
here.
(3)
The best interests of the children were not
minimized
[50]
The Applicants also argue that, after
recognizing Harmanpreet’s fragile state, it was unreasonable for the Officer to
conclude that her best interests would only be compromised in the short term. They
claim that by using the words “dans une certaine mesure”,
the Officer was in fact “minimizing” the best
interests of the children and Harmanpreet’s psychological problems, in
contravention with the Supreme Court’s pronouncement in Baker (Baker
at para 75, cited in Kanthasamy at para 38).They submit that Harmanpreet had
acted upon suicidal thoughts twice, and that it was reasonable to believe that
she would likely to commit a suicide attempt again if her application is
denied.
[51]
With respect, I do not agree. Counsel for the
Applicants made a valiant effort to portray the “dans
une certaine mesure” passage in the Decision as a reflection of a
minimization of the best interests of the children, in the sense proscribed by Baker.
However, by clinging to those few words and focusing on them in isolation to
the adjacent conclusions of the Officer, the Applicants ignore the four
elements expressly singled out by the Officer in the following sentences and precisely
explaining why the Officer concluded that the best interests of the children
would only be affected in the short term. Far from discounting the best
interests of the children, the Officer in fact found that Jashanpreet’s and
Harmanpreet’s best interests would be to remain in Canada with their parents,
and that it was a positive factor favourable to the Applicants. The Officer,
however, concluded that it was not sufficient to warrant a favourable decision
because of other alleviating factors. This is the context in which the words “dans
une certaine mesure”
were used in the Decision. It was not to diminish or minimize the best
interests of the children.
[52]
I should add that it is not minimizing the best
interests of the child to say that the evidence is insufficient to support an
H&C relief. The Applicants are interpreting “minimize”
as implying that the best interests of a child should always be enough to yield
a positive result as soon as they arise, irrespective of what they amount to. This
is not what was meant by Baker. An immigration officer is not minimizing
the best interests of the child if he or she finds that the evidence offered on
the various H&C considerations at stake is insufficient. Once again, the
Applicants wrongly equate the test developed in Baker and Kanthasamy
with a certain result, and this is obscuring the Applicants’ view of the
Decision. The approach established by Kanthasamy does not mean that
H&C considerations and the best interests of the children shall always win
the day. It is still a discretionary and exceptional relief, highly dependent
on facts and context, and the outcome will vary with the circumstances.
[53]
I can understand that the Applicants may disagree
with the weight given to Harmanpreet’s condition and psychological state by the
Officer, but it is not this Court’s role to interfere with the weight
attributed by the Officer to the different H&C considerations. Taken as a whole, the Officer’s Decision denying the H&C
application is transparent. The Officer provided intelligible reasons for
concluding that the Applicants did not meet their onus of establishing, on
balance, that they should be permitted to apply for permanent residency from
within Canada for H&C reasons. The Officer did not use the hardship
framework in a way that fettered his discretion or caused him to discount
relevant evidence. It was simply open to the Officer to find that the record
did not justify relief in this case.
[54]
I make one final observation. The test that a reviewing
court has to apply on a judicial review like this one is reasonableness and
deference, and this has not been modified by Kanthasamy. True, in Kanthasamy,
the Supreme Court established that the approach of immigration officers to H&C
considerations shall not be limited to hardships, and it developed a roadmap
and criteria to assess the best interests of the children. But it did not change
the test to be applied by a reviewing court on judicial review. Reasonableness
and deference are still the standards to be applied by a reviewing court in
H&C matters. While immigration officers must now refrain from looking at H&C
considerations and the best interests of the children through the narrow lens
of hardships, the reviewing courts are still required to look at the
decision-makers’ findings through the lens of reasonableness and deference.
[55]
Kanthasamy should
thus not be interpreted as if it erected a new standard of review when H&C
applications are challenged. The overarching principle remains deference, and
this imposes discipline on the reviewing court. On judicial review, it is not
the role of the reviewing court to substitute its views for those of the
decision-maker, even though the court might have reached a conclusion different
from that of the decision-maker. Decisions under subsection 25(1) of the IRPA
are highly discretionary and they are entitled to deference. The reviewing
court should not find an immigration officer’s decision unreasonable simply
because it considers the result unpalatable and would itself have come to a
different result.
[56]
The issue is not how alert, alive or sensitive
the reviewing court would have been to the best interests of the child. The
question is whether the immigration officer was, and whether his or her
assessment falls within the range of possible, acceptable outcomes. The issue
is not whether the H&C considerations at play before the officer would have
convinced the reviewing court to rule in favour of an applicant. The issue is
whether these considerations were properly analyzed by the officer and whether
the decision is reasonable and procedurally fair.
[57]
This remains true even in situations like this
one where the factual context of an application is more prone to elicit
sympathy. Even in such cases, a reviewing court must resist the temptation to
determine an application for judicial review on the basis of the conclusion it
might have reached had it been in the shoes of the decision-maker. I can understand
that sympathy could more easily draw a reviewing court to yield to that
temptation. But the sympathy of a case is not the benchmark against which a
reviewing court can decide to intervene or not. Reasonableness is, and it
remains the standard that I am required to apply in the circumstances, no
matter how harsh it may look to the Applicants.
[58]
Considering that the Officer actually concluded that
the best interests of the children was an important positive factor in favour
of granting the application, in seeking to have this Court interfere with the
Officer’s determination, the Applicants are in effect asking that I engage in a
reweighing of the evidence and a re-assessment of the H&C evaluation
conducted by the Officer. This is not the role of the Court on judicial review.
This case is reminiscent of what was not the situation in Dellile
and to which Justice Roy alluded at paragraph 46 of his decision. Here, it is a
situation where the Applicants make allegations that certain evidence was
ignored or not given enough weight by the Officer. This must be discarded as it
is simply an attempt to make this Court re-weigh the evidence.
[59]
Considerable deference is owed to the Officer’s weighing
of H&C factors (Wang v Canada (Public Safety and Emergency Preparedness),
2016 FC 705 at para 29). Therefore, as long as the totality of the evidence was
properly examined, the question of weight remains entirely within the expertise
of the immigration officer (Lopez v Canada (Citizenship and Immigration),
2013 FC 1172 at para 31). On the evidence, I cannot find that the Officer’s
analysis or conclusions were unreasonable.
B.
The Officer’s findings are not speculative
[60]
As a second ground of judicial review, the
Applicants also claim that the Officer speculated on a number of fronts, rendering
the Decision unreasonable. They contend that it was pure speculation to
conclude: (1) that Harmanpreet’s reaction would be different now that she has
had more time to mentally prepare for her departure and that such a departure
would somehow be less traumatizing for her; (2) that Mr. Singh would
return to India with his wife and children; and (3) that Mrs. Kaur and her
children would be able to choose the most ideal time to leave Canada. The
Applicants submit that speculative reasons that are not drawn from the evidence
are unreasonable (Inniss v Canada (Citizenship and Immigration), 2015 FC
567 [Inniss] at para 18; Lao v Canada (Citizenship and Immigration),
2008 FC 219 at para 23).
[61]
Again, I do not share the Applicants’ views and
do not find that the Officer’s findings amount to pure speculation.
[62]
Speculation is not to be confused with inference.
It is acceptable for a decision-maker to draw logical inferences based on clear
and non-speculative evidence (Laurentian Pilotage Authority v Corporation
des pilotes du Saint-Laurent central inc, 2015 FCA 295 at para 13). In the
same vein, it is well accepted that a decision-maker can rely on logic and common sense to make inferences from known
facts. While an immigration officer cannot engage in speculation and
render conjectural conclusions, he or she can draw logical inferences from the
evidence (Dhudwal v Canada (Citizenship and Immigration), 2016 FC 1124
at para 21; Ma v Canada (Citizenship and Immigration), 2015 FC 838 at
para 54). A reasoned inference is not speculation.
[63]
Here, I am not convinced that the Officer
speculated when reaching the impugned findings singled out by the Applicants. I
am instead satisfied that the Officer based these inferences and conclusions on
the evidence.
[64]
I do not find that it was speculative to infer
that there was no reason why Mr. Singh would not leave Canada with his wife and
children, when there was clear and cogent evidence indicating that he is
without status in Canada and will need to leave eventually. Similarly, the inference
that Mrs. Kaur and her children would be able to choose the most ideal time to
leave is also anchored in the evidence, as the Officer made this conclusion
after having mentioned that they still had temporary resident permits valid
until August 2017. It was therefore not unreasonable for the Officer to infer that
they would not have to leave as soon as his Decision was issued, and that they
would be able to decide when they want to leave, before the expiry of the
permits. The statement that Harmanpreet’s extreme reaction from May 2016 might
not occur again is also a reasonable inference based on the evidence on record.
The psychological evidence established that Harmanpreet’s suicide attempts were
caused by her fear of returning to India and being separated from her father.
With the evidence on the absence of status of her father, it was reasonable and
certainly open to the Officer to conclude there was no reason to believe that
she would be separated from her father should they need to return to India.
Moreover, there was evidence allowing to infer that the family would be able to
prepare for the departure and to leave at the most appropriate time for
Harmanpreet. The Officer noted that, while the need to depart might have come
to her as a surprise in 2016, Harmanpreet has had some time since those events
to digest the information and to prepare mentally for a possible departure. In
addition, Harmanpreet received and continues to receive counselling and
psychological help for her anxiety and depression problems.
[65]
The situation here is fundamentally different
from the cases relied on by the Applicants, such as Douglas v Canada
(Citizenship and Immigration), 2007 FC 740 at para 19 or Inniss at
para 18. In those cases, the speculative findings were not grounded in the evidence
and were not supported by it.
[66]
Again, the issue before this Court is not
whether I would have reached the same conclusion as the Officer, but 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). This is the case here, and there is therefore no
reason for the Court to intervene.
C.
The conclusion on the low degree of establishment
is reasonable
[67]
Finally, the Applicants claim that the conclusion
on their establishment in Canada is unreasonable. They contend that they had provided
several documents proving their establishment in Canada, including letters from
friends; various documents showing that Mrs. Kaur owns a transport company and
a fashion boutique; a letter from Mr. Singh’s employer demonstrating that he holds
a permanent, full-time job; school certificates and report cards showing that
both children are well integrated; bank statements and a copy of the lease for
their home. To conclude that they had close to no sufficient establishment was
simply untrue and unreasonable, say the Applicants.
[68]
I disagree.
[69]
In the Decision, the Officer reviewed the evidence
in detail and it was certainly open to him to conclude as he did. There was
evidence supporting the findings that the Applicants were not financially
self-supporting since their arrival. It was also reasonable to conclude that the
evidence filed with regard to Mrs. Kaur’s companies was insufficient to show
their existence. There was certainly enough evidence to allow the Officer to find
that, while some ties were established in Canada, this did not rise to the
level of humanitarian concerns. In a context where hardship is not demonstrated,
an immigration officer is entitled to afford negative weight to an applicant’s
establishment in Canada, as long as the officer takes into consideration all
evidence on H&C factors, explains why he or she reached this conclusion,
and the conclusion is supported by the evidence on record (Judnarine v
Canada (Citizenship and Immigration), 2013 FC 82 at para 32; Da Silva v
Canada (Citizenship and Immigration), 2011 FC 347 at paras 16-17; Frank
v Canada (Citizenship and Immigration), 2010 FC 270 at paras 35-38).
Indeed, an immigration officer “has the expertise and
experience necessary to permit him or her to identify the level of
establishment that is typical of persons who have resided in Canada for the
same approximate length of time as the Applicants and, therefore, to use this
as a yardstick in assessing their establishment” (Villanueva v Canada
(Citizenship and Immigration), 2014 FC 585 at para 11). Once again, deference
is owed to the immigration officer in this context (El Thaher v Canada
(Citizenship and Immigration), 2012 FC 1439 at para 43).
[70]
The question remains whether the conclusions
reached by the Officer fall within a range of possible, acceptable outcomes.
This Court is not entitled to reweigh the evidence or to substitute its own
assessment to that of the Officer’s. Furthermore, a judicial review is not a “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local
30 v Irving Pulp & Paper, Ltd, 2013 SCC 34 at para 54), and the Court
should approach the reasons with a view to “understanding, not to puzzling over every possible inconsistency,
ambiguity or infelicity of expression” (Canada (Minister of Citizenship and Immigration) v Ragupathy,
2006 FCA 151 at para 15). Reviewing courts should also
take care not to overly dissect or parse the reasons given by a decision-maker,
and instead give respectful attention to such reasons. In the present case, the
Officer decided to draw negative inferences from employment evidence of the
Applicants and their lack of financial independence. Based on that evidence, the
Officer concluded that the weak ties of the Applicants to Canada will cause few
difficulties if they return to India. This finding is heavily based on the
particular factual situation of the Applicants, it is explained in the Decision
and supported by the evidence, and it bears all the attributes of a reasonable
conclusion.
[71]
This was a very factual analysis, reached by the
Officer on the basis of his specialized expertise in immigration matters, and
it is not the role of a reviewing court to revisit that. Under the
reasonableness standard, as long as the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
decision is supported by acceptable evidence that can be justified in fact and
in law, the reviewing court should defer to the decision-maker.
IV.
Conclusion
[72]
For all the reasons detailed above, the Officer’s
Decision dismissing the Applicants’ request on H&C grounds represented a reasonable outcome based on the law and the evidence. On a standard of reasonableness, it suffices if the
decision subject to judicial review falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law. I
have no hesitation to conclude that this is the case here. Therefore, I must
dismiss the application for judicial review. I do so somewhat reluctantly,
though, as I may not have reached the same conclusion as the Officer. However,
on an application for judicial review, I cannot substitute my views for those
of the Officer. If I were to do so, I would not be fulfilling the role devolved
to this Court on judicial review.
[73]
Neither party has proposed a question of general
importance to certify. I agree there is none. The parties
agree that the style of cause should be changed to replace the name of the applicant
Paramjeet Kaur by Parmjit Kaur. The judgment will order accordingly.
Email this Content