Docket: IMM-2025-17
Citation: 2017 FC 1010
[ENGLISH TRANSLATION]
Ottawa, Ontario, November 8, 2017
PRESENT: The Honourable Mr. Justice Roy
| BETWEEN:
|
| JIMMY NKONGOLO MUBIAYI
|
| RUTH KAPINGA KABASELE
|
| Applicants
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
[1]
The applicants are seeking judicial review of a decision made by a senior immigration officer last March 31. This decision pertains to an application to obtain permanent residency in Canada, despite the fact that the application was not submitted from the applicants’ country of origin. The application for judicial review is submitted under section 72 of the Immigration and Refugee Protection Act (SC 2001, c. 27) [IRPA].
I.
Standard of review
[2]
As we all know, the role of a Federal Court judge is not to substitute his or her opinion for that of the administrative decision-maker, but rather to review the legality of the decision made. Thus, for some rather limited issues, the standard of review applied by the Court is that of correctness. However, in the vast majority of immigration law cases, it is the reasonableness standard that applies. This is the case in the case at hand. The Court must therefore determine whether the decision made by the senior immigration officer is legal, because that decision would be reasonable (Mission Institution v Khela, 2014 SCC 24; [2014] 1 S.C.R. 502, at para 74). Moreover, the parties agree to find that the reasonableness standard applies in the case at hand.
II.
Facts
[3]
The applicants are citizens of the Democratic Republic of the Congo who arrived in Canada in 2006 and 2008. In both cases, they made separate refugee claims that were denied. However, these refugee claim denials did not end in removals due to the temporary suspension of removals to the Democratic Republic of the Congo. In fact, this “moratorium”
is still in place.
[4]
Despite the moratorium, the applicants have submitted humanitarian and compassionate grounds applications on two other occasions. The first application was denied on January 14, 2013. The second application received the same response on August 25, 2015. The third application, which is the subject of this judicial review, was submitted on September 30, 2016, and it was denied on March 31, 2017.
[5]
This time, the applicants are citing better establishment in Canada through the employment they claim to hold here and their community involvement. They also cite the best interests of three (3) children aged 3, 5, and 7, all of whom were born in Canada. Finally, the applicants cite the unfavourable conditions in the Democratic Republic of the Congo and the consequences of the temporary suspension of removals for them. The applicants, who would like to be able to submit their permanent residence application in Canada, despite the obligation made in section 11 of the IRPA to submit the visa application abroad, cite the saving provision of subsection 25(1) of the IRPA. The immigration officer must then consider the “humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected”
.
III.
Decision for which judicial review is sought
[6]
The humanitarian and compassionate considerations raised have been reviewed by the administrative decision-maker, who ultimately rejected them. In my opinion, the decision-maker was probably correct about the applicants’ establishment, the effects of the moratorium, and the situation in the Democratic Republic of the Congo. I am less convinced about the best interests of the children.
IV.
Analysis
[7]
Ultimately, the evidence on record is very scant. Indeed, the applicants chose to not submit testimony in support of the facts by means of an affidavit. They simply decided to leave it up to the submissions of their representative, an immigration consultant. The administrative decision-maker therefore probably decided to only give little weight to those submissions, which are not supported by the applicants’ evidence, as he considered them to be uncorroborated or even contradicted by the evidence submitted. Three aspects were highlighted in the administrative decision.
A.
Establishment
[8]
The administrative decision-maker did not find the applicants’ establishment to be convincing. I did not see in any way how this finding would be unreasonable in that, given the submissions made, it involves a conclusion that would inevitably fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at para 47). For example, the applicant only submitted notices of assessment for 2009, 2010, 2011, and 2012. For subsequent years, the alleged employment income is ambiguous at best. In fact, in his IMM5669 form, the applicant reported that he was self-employed person, who, by definition, earns income other than employment. As the administrative decision-maker notes, one is either a salaried employee or self-employed. The company with which the applicants reportedly associated also seems to be shrouded in mystery. In fact, it is designated as “12345678 Québec”
, which is in itself rather remarkable.
[9]
As for the applicants’ social involvement, it does not appear to be wholly absent. However, one certainly could not describe it as broad with a network that is reportedly close-knit. This led the senior immigration officer to conclude that [TRANSLATION] “The applicants do not demonstrate substantial establishment, considering that they have been in Canada for 10 years”
. The applicants have not demonstrated how this conclusion is inappropriate, much less unreasonable.
B.
The situation in the Democratic Republic of the Congo
[10]
In their submissions in support of the permanent residence application, the applicants claim that if they are removed, they will be faced with unusual and undeserved or disproportionate hardship, given that the living conditions in the Democratic Republic of the Congo are among the most difficult in the world. I assumed that this reference was made by the applicants for descriptive purposes (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61; [2015] 3 S.C.R. 909 [Kanthasamy], at para 33). First, it is important to note that there is currently a moratorium for removing nationals of the Democratic Republic of the Congo. As the immigration officer noted, [TRANSLATION] “it is up to the applicant to demonstrate that, due to their personal situation, they risk being affected by the situation”
. Thus, the administrative decision-maker found that the lack of testimony by the applicants and the inadequacy of the evidence are highly problematic for the applicants’ case. Added to this is the moratorium, which will mean that the applicants, if they must return to their country of origin in the future, will face situations different from those that are currently ongoing and that justify said moratorium. This is why the immigration officer stated that [TRANSLATION] “(d)ue to the inadequacy of the evidence about the personal situation in the event of a return to the DRC and the TSR [Temporary Suspension of Removals], I give this factor no weight in the overall assessment of this application”.
There is nothing that I can add to this statement.
[11]
In addition, the applicants were seeking humanitarian and compassionate considerations by the fact that they are remaining in Canada without status due to the moratorium. The decision made in this regard is clear to me as being justified, intelligible, and transparent. The following can be read on page 6 of 8 of that decision:
[TRANSLATION]
It is clear that the fact of remaining in Canada without status is less enjoyable than having permanent residency. However, I feel that the applicants should instead compare their situation with the one that would exist were it not for the TSR, not with the situation of permanent residents. In fact, the purpose of a TSR is not to allow people who choose to benefit from it to provide them with treatment that is similar to that of permanent residents. The representative alleges that remaining in Canada without status, for nationals of the countries covered by a TSR, is in itself a situation that raises sufficient humanitarian and compassionate considerations to justify granting an exemption under subsection 25(1). I do not agree with this statement by the representative, as it would mean that any person who benefits from a TSR should be granted permanent residency.
[12]
My colleague, Alan Diner J., had to deal with a similar argument in Ndikumana v Canada (Citizenship and Immigration), 2017 FC 328:
[23] [TRANSLATION] The Officer did indeed analyze this argument regarding Ms. Ndikumana. He found that, although the fact of remaining in Canada without status may result in some inconveniences, it is a normal consequence of deciding to stay in Canada without status (at least during the years between the removal of the TSR in 2009, and the RAD in 2015). The Officer’s finding therefore has all the characteristics of reasonableness.
I have come to the same conclusion in the case at hand.
[13]
One can accept that a permanent residence application is submitted, despite the fact that the applicants are not at immediate risk of being deported from Canada. However, it is something else entirely to claim that humanitarian and compassionate considerations should have significant weight because these applicants cannot be deported from Canada given the moratorium that was imposed. While I am not claiming that these considerations are irrelevant, I do not see how granting them minimal weight could constitute an unreasonable decision in the case at hand. The applicants’ burden has not been discharged.
C.
Best interests of the children
[14]
It seems to me that the issue of the best interests of the children requires special attention. That special attention is owed to childhood has already been part of our law for nearly twenty (20) years now. In Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], the Court wrote:
73 The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the “humanitarian” and “compassionate” considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker’s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. […]
The Court continues in paragraphs 74 and 75 to describe what constitutes the attention to be given to the situation of children. It reads:
74 […] Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values. The Minister’s guidelines themselves reflect this approach. However, the decision here was inconsistent with it.
75 The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. This is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable.
[15]
I fear that the reasons given by the immigration officer do not show that he was alive, attentive, or sensitive to those interests. Indeed, my reading of his reasons leads me to find that he did in fact minimize those interests to then compare it with other considerations, therefore meaning that those other considerations prevailed. This is not the analytical framework that ought to exist and be applied.
[16]
When he noted that the children were 3, 5, and 7 years old, the administrative decision-maker complained that the applicants did not testify about them and that [TRANSLATION] “[n]o evidence was submitted indicating that the children are still living with the applicants, such as letters from the daycare centre, professionals, or even friends”.
This seems to have the crux of the decision-maker’s concerns, since later in the decision, he notes that [TRANSLATION] “the applicants did not submit evidence that they have custody of their three children and that they care for them”.
Despite these observations, the decision-maker states that he is satisfied that it would be in the best interests of the children that their parents remain in Canada with them. However, no attentive review of the interests of these children can be found. In fact, the decision-maker comes back to the fact that, in the current situation, the children are benefitting from the moratorium and will not be separated from their parents. This leads to the conclusion that, [TRANSLATION] “[a]s a result, I feel that denying this application likely to compromise the interests of the children, since it will be the status quo, i.e. the whole family will remain in Canada. I will therefore give little positive weight to this factor, but I feel that it is not a determining factor in this case”.
Thus, the decision-maker minimizes the best interests of the children to remain here with their parents for the sole reason that their parents will not be deported in the short term. I would like to add that I have trouble understanding the administrative decision-maker’s finding when he writes:
[TRANSLATION]
I also took the best interests of the children into account, and I have found, despite the paucity of the evidence submitted on this matter, that the interests of the children, which is to remain with their parents in Canada, is more of a positive factor than a negative one in this application.
I cannot see how the best interests of the children to remain with their parents in Canada is more positive than negative. It seems appropriate to refer to the paragraph of the Supreme Court of Canada’s majority decision in Kanthasamy:
[59] Moreover, by evaluating Jeyakannan Kanthasamy’s best interests through the same literal approach she applied to each of his other circumstances—whether the hardship was “unusual and undeserved or disproportionate”—she misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that “[c]hildren will rarely, if ever, be deserving of any hardship” (Hawthorne, at para 9. See also Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166, at paras 64–67 (CanLII)).
[17]
It seems to me that the administrative decision-maker chose to minimize the best interests of the children in finding that deportation from Canada would not be soon, given that the moratorium is still in place. In my view, this consideration is irrelevant. The best interests of the children are not to be compared with their parents’ removal, but rather with the stability of the family situation and other benefits that come with the possibility of submitting a permanent residence application now, from Canada. In my opinion, the decision-maker took too narrow of a view. The administrative decision-maker should have considered in full the best interests of the children.
[18]
As mentioned in Baker, while they merit significant weight, the best interests of the children cannot always prevail over other considerations. First, however, one must still give these interests the weight they are given in jurisprudence. In no part of the immigration officer’s decision have I found a review that is alive, attentive, and sensitive to these interests. And yet, this review depends heavily on the context and the many factors that that involves. In Kanthasamy , the majority of the Supreme Court summarized what is required as follows:
[39] A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered: 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 FC 358 (CA), at paras 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165, at paras 9–12.
[40] Where, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective […].
[Emphasis added]
[19]
In my opinion, it would be unwise to dispose of this application submitted in light of humanitarian and compassionate considerations without having a more sensitive analysis of the children’s interests. The other humanitarian and compassionate considerations raised by the applicants are of no help to them. However, the deficient review of the best interests of the children means that the decision is unreasonable (Baker, at para 73) and must therefore be returned for a new review of these best interests.
[20]
Once the review of the best interests of the children is determined on the basis of the current state of law, the administrative decision-maker will have to weigh the best interests, which constitute an important factor with substantial weight, against other considerations. There may be other reasons to deny a humanitarian and compassionate application, despite the attentive review of the children’s interests. Thus, I would not like it to be deduced from these reasons that the application under review must be approved It is rather that this Court’s role is only to review the legality of the decision and, given how the best interests of the children were handled, this decision is defective to the point that it must be overturned solely with respect to the best interests of the children.
[21]
Consequently, the sole issue of the best interests of the children must be dealt with again, as the other humanitarian and compassionate considerations submitted by the applicants have been handled reasonably. A new administrative decision-maker will therefore need to examine the children’s situation and decide whether, after that attentive review, the application submitted under section 25 of the IRPA should be approved or not.
[22]
The parties agreed that there was serious question of general importance. As a result, no questions are certified.
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