Docket: IMM-805-17
Citation:
2017 FC 878
Ottawa, Ontario, October 4, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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WILLARD NDLOVU
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Willard Ndlovu, is a 44 year old
citizen of Zimbabwe. He arrived in Canada on July 23, 2014, and made a claim
for refugee protection on August 5, 2014. The Refugee Protection Division [RPD]
of the Immigration and Refugee Board [Board] rejected his claim. The Refugee
Appeal Division of the Board granted the Applicant’s appeal of the RPD’s
decision and sent the matter back to the RPD for redetermination. After the RPD
denied the Applicant’s refugee claim for a second time on June 8, 2016, he
applied for permanent residence from within Canada on humanitarian and
compassionate [H&C] grounds. In a letter dated January 19, 2017, a Senior
Immigration Officer informed the Applicant that his request for an exemption to
allow his permanent residence application to be processed from within Canada
was not granted. The Applicant has 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 his application for permanent
residence.
I.
The Officer’s Decision
[2]
The Applicant’s written submissions for the
H&C application raised three factors: his establishment in Canada; the
adverse conditions in Zimbabwe; and the best interests of his three adolescent
daughters who remain in Zimbabwe in the care of a family friend.
[3]
The Officer accepted the evidence that the
Applicant has been employed and financially self-sufficient in Canada since
2015, and gave this factor positive consideration. The Officer also considered
the Applicant’s community involvement and integration as evidenced by his
volunteer activities, but noted that the Applicant had provided very little
documentary evidence concerning the nature and extent of his volunteer
activities. The Officer concluded that: “having
examined the applicant’s establishment in Canada as a whole I conclude that his
degree of establishment is not greater than what would be expected of other
individuals attempting to adjust to a new country.”
[4]
In assessing the best interests of the Applicant’s
three daughters, who were aged 16, 12, and 7 at the time of the H&C
application, the Officer noted that the Applicant’s wife had died in March 2014
and that he has no other adult family members in Zimbabwe. The Officer accepted
that the Applicant had been supporting his children financially since his
arrival in Canada. However, the Officer noted that the Applicant had provided
no evidence showing that he had been unable to support his children while in
Zimbabwe or that he personally had experienced difficulty securing employment
in Zimbabwe despite the country’s economic conditions. The Officer thus found
that: “On a balance of probabilities … the applicant
would be able to secure employment and a source of income on return to Zimbabwe
so as to provide for his three children.” Additionally, the Officer
considered that the children were staying with a family friend, Jeanette Laly
Mathebula, and further noted that while all of the children’s relatives on
their father’s side were deceased, there was an absence of evidence concerning
relatives on their mother’s side. The Officer concluded the assessment of the
children’s best interests by stating: “I find that
it is generally in the best interests of most children to have at least one
parent present in their lives… [and] it is in the best interest of the three
children concerned for the applicant to return to Zimbabwe to apply for
permanent residence in the normal fashion.”
[5]
As to the adverse security, economic, and social
conditions in Zimbabwe, the Officer considered the documentation submitted by
the Applicant along with publically available sources of information as to
country conditions. In particular, the Officer cited a 2016 report from Freedom
House which indicated that Zimbabwe had experienced modest gains in civil
liberties and judicial independence since 2015. The Officer then noted that,
while Zimbabwe continued to experience serious economic instability with high
rates of unemployment and underemployment, the Applicant failed to demonstrate
how he would be directly and personally affected by current conditions in his
country of origin. The Officer found that:
The applicant has not demonstrated that he
has ever struggled to earn sufficient income to provide for himself and his
family. The applicant is young, speaks two of Zimbabwe’s official languages
(Ndebele and English) and has significant and diverse employment experience in
his home country and abroad. Given the applicant’s particular circumstances, I
find that the applicant will be able to re-establish himself on return to
Zimbabwe.
[6]
Given the Applicant’s level of
establishment and integration in Canada, the lack of evidence concerning how
his particular circumstances would lead to a significant negative impact upon
return to Zimbabwe as well as the best interests of his children, the Officer
concluded by saying: “I am not satisfied that the
humanitarian and compassionate considerations before me justify an exemption
under section 25(1) of the Act.”
II.
Issues
[7]
Although the parties have raised several issues
in their submissions, only the following issues require consideration:
1.
What is the appropriate standard of review?
2.
Did the Officer properly consider the degree of
the Applicant’s establishment in Canada?
3.
Did the Officer properly consider the best
interests of the Applicant’s children?
III.
Analysis
A.
Standard of Review
[8]
An immigration 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 v Canada
(Citizenship and Immigration), 2015 SCC 61 at paras 44 and 45, [2015] 3 SCR
909 [Kanthasamy]). An 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 FC 358).
[9]
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 and 61, [2009] 1 S.C.R. 339.
B.
Did the Officer properly consider the degree of
the Applicant’s establishment in Canada?
[10]
The Applicant claims the Officer failed to
explain why his degree of establishment in Canada was insufficient to warrant
relief on H&C grounds, citing Chandidas v Canada (Citizenship and
Immigration), 2013 FC 258, [2014] 3 FCR 639 [Chandidas]. Because the
Officer does not explain what would constitute an extraordinary or exceptional
degree of establishment, the Applicant argues that the decision is
unreasonable.
[11]
The Respondent maintains that the Applicant is
attempting to reverse the onus of establishing sufficient grounds to warrant
H&C relief and is simply challenging the Officer’s weighing of the
evidence. According to the Respondent, the Officer considered all relevant
evidence and found that it showed little about the nature and extent of the
Applicant’s level of integration into Canadian society.
[12]
The Court’s comments in Sebbe v Canada
(Citizenship and Immigration), 2012 FC 813, 414 FTR 268 [Sebbe], are
instructive in this case. In Sebbe, Justice Zinn stated:
[21] The second area that I find
troublesome has to do with comments the officer made when analyzing
establishment. The officer writes: “I acknowledge that the applicant has taken
positive steps in establishing himself in Canada, however, I note that he has
received due process through the refugee programs and was accordingly afforded
the tools and opportunity to obtain a degree of establishment into Canadian
society.” Frankly, I fail to see how it can be said that the due process
Canada offers claimants provides them with the “tools and opportunity” to
establish themselves in Canada. I suspect that what the Officer means is that
because the process has taken some time, the applicants had time to establish
themselves to some degree. That is a statement with which one can
agree. However, what is required is an analysis and assessment of the degree
of establishment of these applicants and how it weighs in favour of granting an
exemption. The Officer must not merely discount what they have done by
crediting the Canadian immigration and refugee system for having given them the
time to do these things without giving credit for the initiatives they
undertook. The Officer must also examine whether the disruption of that
establishment weighs in favour of granting the exemption. [Emphasis in
original]
[13]
Similarly, in Chandidas, Justice Kane
remarked that:
[80] …in the present case, the officer
fails to provide any explanation as to why the establishment evidence is
insufficient. The officer reviewed the family’s degree of establishment in
detail, and referred to their work, income, family ties, courses taken, schools
attended, and community involvement in various passages of the decision. The
officer does not indicate what he would consider to be extraordinary or
exceptional establishment; he simply states that this is what he would expect
and that it would not cause unusual and undeserved or disproportionate hardship
if the family were forced to apply for a visa from outside Canada. While this
could be argued to be a reason, it is barely informative. [Emphasis in
original]
[14]
The degree of an applicant’s establishment in
Canada is, of course, only one of the various factors that must be considered
and weighed to arrive at an assessment of the hardship arising in an H&C
application. The assessment of the evidence is also, of course, an integral
part of an officer’s expertise and discretion, and the Court ought to be
hesitant to interfere with an officer’s discretionary decision. However, the
Officer in this case followed the same objectionable and troublesome path as in
Chandidas and in Sebbe. It was unreasonable for the Officer to
discount the Applicant’s degree of establishment merely because it was, in the
Officer’s view, “not greater than what would be
expected of other individuals attempting to adjust to a new country.”
[15]
The Officer in this case unreasonably assessed
the Applicant’s length of time or establishment in Canada because, in my view,
the Officer focused on the “expected” level of
establishment and, consequently, failed to provide any explanation as to what
would be an acceptable or adequate level of establishment. Moreover, the
Officer, like the officer in Sebbe, failed to consider or assess whether
disruption of the Applicant’s establishment in Canada to return to Zimbabwe to
apply for permanent residence weighed in favour of granting the exemption under
subsection 25(1).
C.
Did the Officer properly consider the best
interests of the Applicant’s children?
[16]
The Applicant contends that because of the
rampant crime and unemployment in Zimbabwe the only way for him to support his
three children is to continue to work in Canada and send remittances. In the
Applicant’s view, the best interests of the child principle is central to an
H&C analysis, and the Officer’s analysis in this case does not explain how
it would be in the children’s best interests for the Applicant to return to
Zimbabwe given that country’s economic challenges.
[17]
The Respondent says the Officer fully considered
the Applicant’s ability to support his children, noting that he had submitted
no evidence that he had personally had any difficulty finding employment in
Zimbabwe despite the economic conditions in the country. According to the
Respondent, the Officer’s conclusion that the Applicant would be able to
continue to support his children if he returned to Zimbabwe was reasonable, as
was the Officer’s finding that it is generally in the best interest of children
to have at least one parent present in their lives.
[18]
The Supreme Court in Kanthasamy noted
that the “best interests” principle is “highly contextual” because of the multitude of
factors that may impinge on a child’s best interest, and that the principle
must be applied “in a manner responsive to each child’s
particular age, capacity, needs and maturity” (at para 35). The Supreme
Court further noted in Kanthasamy that:
[39] A decision under s. 25(1) will…be
found to be unreasonable if the interests of children affected by the decision
are not sufficiently considered: Baker, at para. 75. This means that
decision-makers must do more than simply state that the interests of a
child have been taken into account: Hawthorne, at para. 32. Those
interests must be “well identified and defined” and examined “with a great deal
of attention” in light of all the evidence: Legault v. Canada (Minister of
Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), at paras.12 and 31;
Kolosovs v. Canada (Minister of Citizenship and Immigration), 323 F.T.R.
181, at paras. 9-12. [Emphasis in original]
[19]
In my view, the best interests of the Applicant’s
children in this case were not sufficiently identified, defined and examined by
the Officer “with a great deal of attention.”
The Officer’s assessment and analysis of the best interests of the children was
premised upon an assumption or finding that the Applicant would be able to
secure employment and a source of income on return to Zimbabwe so as to provide
for his three children. This conclusion, however, is speculative and cannot be
justified in view of the significant adverse economic and social conditions in
Zimbabwe as evidenced in the objective country conditions documentation before
the Officer. If anything, the evidence before the Officer suggested that
obtaining employment in Zimbabwe would likely be somewhat uncertain or
problematic for the Applicant. There was no evidence before the Officer that
the Applicant would in fact become gainfully employed; indeed, the Central
Intelligence Agency-World Factbook for Zimbabwe referenced by the Officer
states that the estimated unemployment rate in Zimbabwe was 95 percent.
[20]
The Officer’s view that the children’s best
interests would be reunification with their father in Zimbabwe is further
unreasonable because it ignored and did not address the possibility that their
best interests might be best served by maintaining the status quo (see: Jimenez
v. Canada (Citizenship and Immigration), 2015 FC 527 at paras 27 and 28,
[2015] FCJ No 488). Moreover, the Officer ignored the fact that the Applicant’s
remittances from Canada covered not only his children’s school fees but also
those of the children of Ms. Mathebula. The Officer failed to mention and
apparently did not even consider the best interests of Ms. Mathebula’s children
and their dependence upon the Applicant’s remittances from Canada to pay their
school fees.
[21]
In summary, the Officer’s assessment of the best
interests of the Applicant’s children was unreasonable because it was premised
upon an unjustifiable assumption and a speculative conclusion as to the
Applicant’s employment prospects in Zimbabwe. On this basis alone the Officer’s
decision must be set aside and the matter returned for redetermination by a
different immigration officer.
IV.
Conclusion
[22]
For the reasons stated above, the Applicant’s
application for judicial review is allowed because the Officer unreasonably
assessed not only the Applicant’s establishment in Canada but also the best
interests of the children who would be affected if the Applicant’s remittances
from Canada ceased and he was unable to secure employment and a source of
income following return to Zimbabwe.
[23]
Neither party raised a serious question of
general importance; so, no such question is certified.
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