Docket: IMM-2248-17
Citation:
2017 FC 1084
Ottawa, Ontario, November 30, 2017
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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FRANK
EDO-OSAGIE
CLARA
EDIAGBONYA
EREMWON DESTINY
EDO-OSAGIE
AISOSA RICHIE
EDO-OSAGIE
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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.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of a decision made by a Senior Immigration Officer (the
“Officer”) refusing the Applicants’ application for permanent residence on
humanitarian and compassionate grounds (“H&C application”).
II.
Background
[2]
The Applicants are citizens of Nigeria. Frank
Edo-Osagie and Clara Ediagbonya are the parents of Destiny, age 13, and
Ritchie, age 11. Prior to coming to Canada, they were permanent residents in
Italy for eleven years. Few details of their time in Italy have been provided.
Destiny and Ritchie were born in Italy but do not have Italian citizenship.
Frank and Clara have a third child, Harry, who was born in Canada and is a
Canadian citizen.
[3]
The Applicants entered Canada in February 2013,
and claimed refugee protection. The claim was refused in June, 2013, by the
Refugee Protection Division and the Refugee Appeal Division dismissed their
appeal on August 15, 2013. A removal order was issued against the Applicants.
The following year, the Applicants submitted their first H&C application which
was refused on October 20, 2014.
[4]
In July 2016, the Applicants submitted a second
H&C application. Submissions for this application were based on
establishment and the best interests of the children (“BIOC”).
[5]
Regarding establishment, Frank had been employed
since January 2014 and Clara had been employed since September 2016. Clara also
pursued English language training and volunteered with the Salvation Army. Both
Clara and Frank were active members in a local church and letters of support
were provided by community members.
[6]
Regarding the BIOC, both children were doing
well in school, played sports and had made a network of friends. They looked
forward to a life in Canada and the opportunities that would present. In
contrast, the education system in Nigeria has been and is in poor condition.
Documentary evidence showed underfunding and a severe lack of resources. In
some cases, schools lack basic facilities such as water, electricity and
toilets. As well, families struggle to pay for their children to attend school.
[7]
On April 28, 2017, the Officer refused the
Applicants’ H&C application.
[8]
The Officer gave little weight to the
Applicants’ establishment in Canada. He acknowledged Frank and Clara’s
employment history and community involvement and found they were productive and
contributing members of Canadian society. However, he found their establishment
was not beyond what would normally be expected, given the time it took for
their refugee claims to be processed. Furthermore, the Officer stated:
The applicants have continued to accumulate
time in Canada by their own volition without having the legal right to do so.
The applicants have been the subject of removal orders and continued to assume
their establishment efforts being fully cognizant that their immigration status
was uncertain and that removal from Canada could become an eventuality.
[9]
The Officer also found the Applicants had not
provided sufficient objective evidence to demonstrate that the children would
be adversely affected by removal from Canada. He acknowledged their integration
into the Canadian school system and that leaving this familiar environment
would be difficult. However, given their brief time spent in Canada, they had
not developed significant attachments. Furthermore, free education was
available in Nigeria. Considering the intrinsic resiliency accompanying their
young age, and their parents’ familiarity with Nigerian culture, they would be
capable of assimilating after a period of adjustment.
[10]
The Officer also found that comparative
socio-economic advantages were not a determinative factor in the BIOC analysis.
In coming to that conclusion, he acknowledged the documentary evidence and that
Canada was a more desirable place to live and offered better opportunities. While
this was an important factor, it was not sufficient to accept the H&C application.
[11]
On May 18, 2017, the Applicants applied for
judicial review of the Officer’s decision.
III.
Issues
[12]
The issues are:
- Was the
Officer’s establishment analysis reasonable?
- Was the
Officer’s BIOC analysis reasonable?
IV.
Standard of Review
[13]
The standard of review is reasonableness (Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2015 SCC 61 [Kanthasamy]
at 44).
V.
Analysis
A.
Was the Officer’s establishment analysis
reasonable?
[14]
The Applicants’ submit that the Officer did not
give them credit for their accomplishments and connections in Canada. Instead,
he discounted their establishment by crediting the Canadian immigration and
refugee system for providing time to do those things.
[15]
The evidence of establishment was not ignored
and was clearly considered by the Officer, but he found it did not constitute
an unusual degree of establishment. The Officer is entitled to deference on
such a finding, given that an exemption under subsection 25(1) of the IRPA is
an exceptional and discretionary remedy (Legault v Canada (Minister of
Citizenship and Immigration), 2002 FCA 125 [Legault] at para
15; Adams v Canada (Minister of Citizenship and Immigration), 2009 FC
1193 at para 30).
[16]
The Applicants were subject to a removal order
at least as early as 2013, five months after arrival and prior to any
employment history.
[17]
It was not unreasonable for the Officer to
negatively weigh the circumstances of the Applicants’ establishment. This Court
has often stated that applicants cannot and should not be rewarded for
accumulating time in Canada, when in fact, they have no legal right to do so (Semana
v Canada (Minister of Citizenship and Immigration), 2016 FC 1082 [Semana]
at para 48). Similarly, a decision-maker under subsection 25(1) of the IRPA may
consider the fact that the H&C grounds that an applicant claims are the
result of his or her own actions (Legault at para 19). As this Court
stated in Serda v Canada (Minister of Citizenship and Immigration), 2006
FC 356 [Serda] at para 23:
A failed refugee claimant is certainly entitled
to use all the legal remedies at his or her disposal, but he or she must do so
knowing full well that the removal will be more painful if it eventually comes
to it.
[18]
The Officer’s establishment analysis was
reasonable.
B.
Was the Officer’s BIOC analysis reasonable?
[19]
The Applicants submit that the Officer was
alert, but not alive or sensitive, to the best interests of the children. They
cite several failures of the Officer: not first determining what was in the
children’s best interest; not looking at the situation from the children’s
perspective; not considering the family’s socio-economic situation; and
equating basic needs with best interests.
[20]
The Respondent submits that a BIOC analysis is
holistic: there is no required step-by-step approach and “alert, alive and sensitive” are not discrete
categories. As well, it is implied that a child’s best interests would be to
remain in Canada and this need not be stated by the decision-maker. Finally,
the children’s best interests do not necessarily trump all other considerations.
[21]
Immigration officers must be alert, alive and
sensitive to the best interests of a child (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75). Those interests
must be well-identified and defined, and examined with a great deal of
attention in light of all the evidence and in a manner responsive to each
child’s particular age, capacity, needs and maturity (Kanthasamy at
paras 35 and 39).
[22]
There is no rigid test required in a BIOC
analysis; form should not be elevated over substance (Semana at para
25).
[23]
The Officer did not find sufficient objective
evidence was adduced to demonstrate that accompanying their parents in a return
to Nigeria would be detrimental to the children’s social, physical and
emotional development.
[24]
Moreover, the Officer decided that the
Applicants did not provided sufficient objective evidence to demonstrate that
their removal from Canada would adversely affect the three children.
[25]
The Officer did consider the negative impacts
that removal might have on the children. He noted their attachments and time
spent in Canada but found them too brief to be of significance. He was also
aware of the differences between Canada and Nigeria with respect to educational
prospects and other socio-economic factors.
[26]
While I may not agree with the Officer’s
appreciation of educational differences between Canada and Nigeria, and the
impact on the children, the Officer reasonably found that the educational and
socio-economic differences between Nigeria and Canada were not determinative. The
mere fact that living in Canada is more desirable for the children is not
sufficient, in and of itself, to grant an H&C application (Serda at
para 31).
[27]
The Officer’s statements regarding the
children’s ability to adapt in Nigeria must also be addressed. He stated, “[g]iven the intrinsic resiliency accompanying their young
age, I am satisfied they are capable of assimilating to another new scholastic
environment after an initial period of adjustment.” This Court has found
it problematic to rely on the adaptability of children (Bautista v Canada
(Minister of Citizenship and Immigration), 2014 FC 1008 at para 28):
Children are malleable – far more so than
adults – and starting with the question of whether they can adapt will almost
invariably predetermine the outcome of the script, namely that the child will
indeed overcome the normal hardships of departure, and adjust to a new life,
including learning a brand new language […]. Undertaking the analysis through
this lens renders the requirement to take into account the best interests of a
child directly affected, as statutorily required in subsection 25(1) devoid of
any meaning.
[28]
However, the Officer’s analysis did not end with
that statement. He went on to consider the children’s dependency on their
parents and the fact that Nigeria was not culturally unfamiliar to the parents.
He was “satisfied that with the support of their
parents to guide them through the transitional phase in their lives that
resettlement abroad would entail, they would adapt into the new surroundings…”
[29]
The Applicants’ H&C submissions did not
provide evidence to rebut that finding. Applicants have the onus of
establishing the facts on which their claim rests and omit pertinent
information at their peril (Owusu v Canada (Minister of Citizenship and
Immigration), 2004 FCA 38 at para 8). Here, those submissions focused on
the family’s establishment in Canada and the poor education prospects in
Nigeria. The Applicants did not explain what difficulties the children might
face in adapting to a new culture. The record contains little information about
the family’s background, language and cultural skills, knowledge of Nigeria or
time spent in Italy.
[30]
The best interests of the children will not
always outweigh other considerations (Baker at para 75). The children’s
best interests must be weighed along with other factors in favour or against
removal of the parents (Hawthorne v Canada (MCI), 2002 FCA 475 at
para 6).
[31]
As noted above, subsection 25(1) of the IRPA is
an exceptional remedy. There will inevitably be hardship associated with
removal and that alone will not generally be sufficient to warrant relief;
H&C applications are not meant to be an alternative immigration stream (Kanthasamy
at para 23).
[32]
Decisions under subsection 25(1) of the IRPA are
highly discretionary and immigration decision-makers are entitled to deference.
I find the Officer’s decision was reasonable.
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