Date: 20170213

Docket: IMM-2349-16

Citation: 2017 FC 161

[ENGLISH TRANSLATION]

Ottawa (Ontario), February 13, 2017

Present: Locke J.

BETWEEN:

SYLVIE MUKILANKOYI ERIC MUKILANKOYI PRINCE KALENGE SELE MINZADI

Applicants

and

THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP

Respondents

JUDGMENT AND REASONS

I.  Nature of the case

[1]  This is an application for judicial review, pursuant to paragraph 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [the IRPA], of a decision made by an immigration officer from the visa section of the Canadian Embassy in Dakar [the Visa Section] to deny an application for a permanent resident visa for humanitarian and compassionate reasons pursuant to paragraph 25(1) of the IRPA. The Visa Section denied the application, concluding that the humanitarian and compassionate grounds cited did not justify waiving the criteria set out in and the obligations under the IRPA.

[2]  For the following reasons, I conclude that this application must succeed.

II.  Facts

[3]  The applicants are four brothers and sisters. They are citizens of the Democratic Republic of the Congo [DRC], and the adoptive children of Gutagenesa Rombaut Mukishi [Mr. Mukishi] and Dorothée Kimani Kuteka [Ms. Kuteka].

[4]  Mr. Mukishi and Ms. Kuteka have been legally married since 1998. Since they cannot have children of their own, they became the adoptive parents of five children:

• Prince Kalenge, who was born on May 15, 1995, and adopted on February 8, 2000, when he was 4 years old;

• Sele Minzadi, who was born on February 17, 1993, and adopted on February 8, 2000, when she was 6 years old;

• Sylvie Mukilankoyi, who was born on June 5, 1994, and adopted on July 22, 2003, when she was 9 years old;

• Eric Mukilankoyi, who was born on February 2, 1990, and adopted on July 22, 2003, when he was 13 years old;

• Glody Mukilankoyi, who was born on September 21, 1998, and adopted on July 22, 2003, when he was 5 years old.

[5]  Mr. Mukishi and Ms. Kuteka met—as best they could—their children's essential needs. They housed, dressed, fed, and loved them. Thanks to them, these adoptive children with difficult pasts say they regained a zest for life and the hope that their future would be brighter.  Below, I will set out a brief overview of the lives of each of these children before they were adopted.

A.  Prince Kalenge

[6]  Prince's birth father is Ms. Kuteka's brother. When he was born, Prince and his biological parents lived with Mr. Mukishi and Ms. Kuteka. Abandoned by his alcoholic father, Prince and his birth mother then lived with his grandmother for a period of time, during which he was often mistreated and suffered from malnutrition. Since Prince’s biological mother was unable to meet his essential needs, Ms. Kuteka officially adopted her nephew on February 8, 2000.

B.  Sele Minzadi

[7]  Abandoned by her father when she was a babe in arms, Sele and her birth mother lived in poverty. Ms. Kuteka testified that she saw an undernourished and emaciated Sele—who had not reached the age of one at the time—cry in her birth mother's arms. Saddened, Ms. Kuteka brought them clothes, money, and food over the years. When Sele was only four years old, her birth mother went back to live in her home city, leaving Sele at her aunt's residence, where living conditions were always difficult. In early 2000, Mr. Mukishi and Ms. Kuteka officially adopted Sele. In 2003, Sele's birth mother passed away.

C.  Sylvie, Eric and Glody Mukilankoyi

[8]  Eric, Sylvie and Glody are siblings. In 1999, their birth father passed away. At the time, their ages were respectively 8, 5, and 1. That same year, the Mukilankoyi children also lost their grandfather and their maternal aunt. Afterward, they were accused by their community and their family—including their grandfather and their birth mother (Ms. Kuteka's sister)—of being witches who had caused the recent deaths of their family members. Some members of the family even went so far as to force the children to walk over 200 km to receive treatments from an exorcist priest in a remote city. Mr. Mukishi and Ms. Kuteka took their nephews and nieces— who had been cast into the streets—under their wings. On June 28, 2003, the birth mother of the Mukilankoyi children passed away, once again feeding the suspicions that they had committed witchcraft. The next month, on July 22, 2003, Mr. Mukishi and Ms. Kuteka adopted Eric, Sylvie and Glody.

D.  Mr. Mukishi

[9]  In 2004, fearing for his life, Mr. Mukishi left his country for Canada, seeking asylum.  After his application for asylum was denied, Mr. Mukishi resided in Canada for a period of 10 years and became a permanent resident in 2014 when he was granted permanent residence on humanitarian and compassionate grounds. Over this 10-year period, Mr. Mukishi maintained telephone contact with his family and provided them with financial assistance. Despite the sadness brought on by this separation, he maintained hope—as his wife and children did—of one day being reunited with his family.

[10]  Mr. Mukishi then filed a sponsorship application for his wife and his five children on September 23, 2014. However, on August 1, 2014, the definition of dependent child was modified; and, from that point on, sponsorship was limited to children under 19 years of age. 

[11]  As a result of a decision made by the Canadian Embassy in Dakar dated September 9, 2015, the application for sponsorship was partly granted for Ms. Kuteka and the youngest son, Glody Mukilankoyi (who was 16 years old at the time), but it was denied for applicants Prince Kalenge, Sele Minzadi, Sylvie Mukilankoyi, and Eric Mukilankoyi because they were over 18 years of age.

[12]  On December 1, 2015, an application to reopen and reconsider this decision on humanitarian and compassionate grounds was filed with the Canadian Embassy in Dakar. The application to reopen was accepted on February 11, 2016, and the applicants were summoned for an interview in Kinshasa, DRC.

III.  Decision

[13]  On April 4, 2016, the humanitarian and compassionate considerations were dismissed by an immigration officer. In a summary letter, the officer indicates the following:

After having reviewed your application and the information provided to support it, I concluded that the humanitarian and compassionate grounds referred to in your case do not justify waiving all or some of the criteria and obligations under the Act to include Sylvie Mukilankoyi, Eric Mukilankoyi, Prince Kalenge, and Sele Minzadi. I reached this conclusion following my interviews with you and them. I explained to you that the four adults had the means to continue their education and eventually work despite their difficult—but not unusual—living conditions.

IV.  The issues

[14]  There are three issues:

1. Did the immigration officer correctly apply the analytical framework for an application for exemption under paragraph 25(1) of the IRPA?

2. Did the immigration officer commit a breach of procedural fairness by ignoring a significant and vital portion of the evidence?

3. Alternatively, is the immigration officer's decision unreasonable?

V.  Relevant provisions

[15]  The following sections of the IRPA are applicable:

[16]  The following sections of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR], are applicable:

VI.  Submissions of the parties

[17]  The applicants are raising two arguments. First, they are claiming that the immigration officer committed a mistake of law by not applying the analytical framework established in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], and made an unreasonable analysis. More specifically, the applicants are claiming that the officer's analysis was based on an assessment of the applicant's difficulties, but he did not assess the equitable relief and the compassion highlighted in their application. According to them, their application highlighted, "exceptional, substantial, and compelling humanitarian and compassionate grounds, and […] the highest degree of compassion and sympathy possible."

[18]  Secondly, the applicants are claiming that the immigration officer breached their right to procedural fairness when he ignored a significant and vital portion of the evidence and virtually all the humanitarian and compassionate grounds raised. Among other things, the applicants submit that the officer ignored the following factors despite the evidence submitted:

• a) the adverse socio-affective impacts on the children;

• b) the exacerbation caused by family separation and the effect it has on Ms. Kuteka; and

• c) the danger of retaliations against Sylvie and Eric Mukilankoyi due to the allegations of witchcraft made against them.

[19]  The respondent is arguing that the immigration officer weighed all the evidence and the relevant factors to reach a reasonable decision. He also claims that the immigration officer was under no obligation to reference all the documentary evidence in his reasons (Dandachi v Canada (Citizenship and Immigration), 2016 FC 952 at para 21). According to him, the applicants' arguments merely reflect that they disagree on the immigration officer's conclusions based on the evidence, but the decision clearly "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law." Dunsmuir v Nouveau-Brunswick, 2008 SCC 9 at para 47 [Dunsmuir].

[20]  The respondent also claims that the breaches of procedural fairness alleged by the applicants are in fact merely an issue of whether sufficient reasons were provided by the immigration officer. Thus, according to the respondent, the key is to know whether the decision is reasonable considering the body of evidence.

VII.  Standard of review

[21]  The standard of review that applies to the officer's decision is the reasonableness standard. The reasonableness standard of review pertains to the "justification, transparency and intelligibility within the decision-making process," as well as, "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). It is not the Court's role to reassess the evidence and replace the administrative decision maker's decision with its own.

[22]  However, failing to take account of relevant items of evidence represents a mistake of law (Alahaiyah v Canada (Citizenship and Immigration), 2015 FC 726 at para 17 [Alahaiyah], citing Uluk v Canada (Citizenship and Immigration), 2009 FC 122 at para 16; Esmaili v Canada (Citizenship and Immigration), 2013 FC 1161 at para 15).

[23]  It is often said that a decision made in accordance with paragraph 25(1) of the IRPA is highly discretionary and requires deference (Kanthasamy at para 111, Judge Moldaver, dissenting; Baker v Canada (Minister of Immigration, Refugees and Citizenship), [1999] 2 S.C.R. 817 at para 61 [Baker]).

[24]  However, even though—generally—discretionary decisions are given great respect, the discretionary power must be exercised in accordance with the limits imposed by the law, the principle of the Rule of law, the principle of administrative law, the fundamental values of Canadian society, and the principles of the Charter (Baker at para 56).

VIII.  Analysis

[25]  Paragraph 70(1) of the IRPR provides that an immigration officer issues a permanent resident visa if the foreign national meets the conditions it sets out, including the one that establishes that the foreign national must belong to the category under which he or she is making the application (paragraph 70(1)c) of the IRPR). Paragraph 70(2) of the IRPR sets out the three categories of permanent residents, including the family class at paragraph 70(2)a). Sections 116 and 117 of the IRPR set out the family class. Under paragraph 117(1)b), the foreign national's dependent children fall under the family class. Finally, paragraph 2(1) of the IRPR defines and limits the term "dependent child" to biological or adoptive children under 19 years of age unless the child no longer depends on either one of his parents due to his physical or mental state.

[26]  There is no doubt that if it had not been for their ages, the applicants would have fallen under the family class and could have received, as did their mother and their brother Glody, a permanent resident visa.

A.  Did the immigration officer correctly apply the analytical framework for an application for exemption under paragraph 25(1) of the IRPA?

[27]  Paragraph 25(1) of the IRPA confers a discretionary power to the minister, which enables him to grant the status of permanent resident or to waive some or all of the applicable criteria and obligations if he or she believes that humanitarian and compassionate considerations justify it. As set out by Judge Abella in Kanthasamy, the majority of the Supreme Court of Canada (SCC) endorses a flexible and discretionary approach. However, the applicants and the respondent are not interpreting the SCC's decision the same way.

[28]  The applicants are arguing that the SCC disallowed the rigid application of the "unusual, undeserved or disproportionate hardship" criterion (which is included among the Guidelines set out by the minister [Guidelines]) because it fetters the discretionary power granted by Parliament pursuant to section 25 of the IRPA (Kanthasamy at para 30). I agree. However, as Justice Richard Mosley explains, the SCC did not change the criterion nor eliminate the Guideline of "unusual, undeserved or disproportionate hardship" (Patel v Canada (Citizenship and Immigration), 2016 FC 1221 at para 42; Puna v Canada (Citizenship and Immigration), 2016 FC 1168 at para 22). Indeed, the wording "unusual, undeserved or disproportionate hardship" serves a descriptive purpose and does not create—in order to receive an exemption—three new thresholds in addition to the humanitarian and compassionate considerations, which is a fourth threshold that is already set out at paragraphs 25(1) and 33 of Kanthasamy. The three adjectives must be considered as informative—but not decisive—items, which allow for the provision to meet the objectives of fairness that underlie it with greater flexibility (Kanthasamy at para 33). Thus, the Guidelines are useful to decide whether, with respect to a particular applicant's circumstances, it is appropriate to grant an exemption, but they do not represent the only possible way to word the humanitarian and compassionate considerations that justify exercising the discretionary power set out in section 25 of the IRPA.

[29]  The applicants are relying in part on the criterion set out in 1970 by the Immigration Appeal Division in Chirwa v Canada (Minister of Citizenship and Immigration) (1970), 4 AIA 338 [Chirwa] to support their allegation that the immigration officer erroneously applied the analysis of the Kanthasamy judgment. According to this criterion, the humanitarian and compassionate considerations are stated to be "those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act" (Kanthasamy at para 13, citing Chirwa, p 364). The majority of the SCC recommends a less categorical approach regarding Chirwa, which uses the wording within it as if it coexisted with the wording found in the Guidelines. I agree with Justice Henry Brown, who—in his decision in Nguyen v Canada (Citizenship and Immigration), 2017 FC 27 at para 26—accepts that the Kanthasamy judgment brought about a change in the law, re-establishing Chirwa as one of the guiding principles, in addition to the Guidelines, to be applied to issues involving humanitarian and compassionate considerations.

[30]  The immigration officer did not limit his decision to the criterion of "unusual, undeserved or disproportionate hardship." His reasons are brief, but the notes to file reveal that he carried out an overall assessment of the application and weighed many factors. Since the approach established in Kanthasamy was pursued, the officer did not commit a mistake of law.

B.  Did the immigration officer commit a breach of procedural fairness by ignoring a significant and vital portion of the evidence?

[31]  The applicants are citing the Kanthasamy judgment at paragraph 25, in which the majority of the SCC cite the following proposal in the Baker judgment at para 74 to 75:

What does warrant relief will clearly vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them (Baker, para 74, 75).

[Italics in original]

[32]  It is true that the failure to take account of relevant items of evidence represents a reviewable mistake of law according to the correctness standard (Alahaiyah at para 17). However, though the decision maker must consider all the relevant items of evidence, the reasons do not necessarily have to refer to all these items as explained by the SCC in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v.  Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, 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, the Dunsmuir criteria are met.

[My emphasis]

[33]  This being said, when a court omits to act on relevant and contradictory evidence that was submitted to it, the reviewing court may conclude that the court did not consider this contradictory evidence in drawing its conclusion from the facts (Alahaiyah at para 35).

[34]  The reasons for the immigration officer's decision do not reflect—at first glance—a consideration of all the relevant evidence in the file and all the reasons raised by the applicants.

[35]  The Global Case Management System (GCMS) notes the immigration officer took during the interview are relevant. For example, the officer considered that the children were originally street children and that they are all attending school. Near the end of the interview, the officer shared his concerns with Ms. Kuteka and the applicants to give them a chance to respond to them:

[TRANSLATION]

I will share my concerns with you, and you will be able to respond to them. I listened to all your testimonies to make my decision. First of all, the best interests of the children cannot be considered because Sele, Éric, Sylvie and Prince are not under 18. Secondly, referring to a difficult life to ground some of the explanations provided does not prove that there are exceptional circumstances.  Their lives resemble those of many of your fellow citizens and compatriots. The difficulties (hardship) brought on by a separation at an adult age are not disproportionate or insurmountable. I am satisfied that you can pursue studies and eventually work here.

[36]  Ms. Kuteka made the following response to these statements:

[translation]

Though they are adults, they are still children. I pity them. They will die here. They don't have anyone to take care of them.

[37]  In response, the officer told Ms. Kuteka that her children are adults ([TRANSLATION] "They are adults, ma'am"). Ms. Kuteka then explained to him that they are orphans and that nobody will take care of them. She also explained that her children are called witches, but the immigration officer noted that there is no testimony from the four children in that respect and that this took place before they were adopted.

[38]  The evidence that the applicants were called witches includes the affidavits of applicants Sylvie and Eric Mukilankoyi. At paragraph 22 of her affidavit, applicant Sylvie Mukilankoyi declares the following: "To date, my mother Dorothy serves as a shield against my enemies on all sides, namely my father's brothers who still intend to kill me" (My emphasis). On his part, applicant Eric Mukilankoyi declares that "when our mother Dorothée leaves us […] our lives will once again be in danger" (My emphasis).

[39]  These two statements clearly bear witness to the fears generated in the applicants by the allegations of witchcraft made against them. In my opinion, these statements contradict the officer's conclusions, namely that (i) testimony on this subject was absent, and (ii) that this story took place before the Mukilankoyi children were adopted. It seems as if the officer did not consider these two important statements. Therefore, I conclude that the officer erred in his decision.

[40]  The respondent argues that the applicant's evidence in this respect is subjective and deserves little weight. I would have been more tempted to accept this argument had the officer at least acknowledged the existence of this relevant evidence.

C.  Alternatively, is the immigration officer's decision unreasonable?

[41]  Before assessing the reasonableness of the immigration officer's decision, the factual and jurisprudential context within which this decision was made must first be understood.

[42]  In Kanthasamy, the Court attached much importance to the two legislative objectives at paragraphs 25(1) of the IRPR, namely to "ensure the availability of compassionate relief," and to "prevent its undue overbreadth" (at para 14, 19). In other words, paragraph 25(1) concerns not only situations in which the regular application of provisions in the IRPR would be incommensurate with respect to "unusual, undeserved or disproportionate hardship," and given all the relevant and applicable humanitarian and compassionate factors, but also situations in which a person slips through the system's cracks due to an overly broad legislative provision.

[43]  In this case, the definition of a dependent child at paragraph 2(1) of the IRPR is limited to children under the age of 19 unless the child no longer depends on either of his parents due to his or her physical or mental state. A plain reading of the definition of a "dependent child" indicates that the legislator presumes that at the age of 19, unless this person is dependent due to a physical or mental state, a person will generally be autonomous. The provision also indicates that the legislator wanted to exclude from the general application of the rule particularly vulnerable persons who are not autonomous due to a dependency related to a physical or mental state. All items of evidence proving that the applicant for a permanent residence visa is not independent even though he or she has not reached the age of 19 thus deserves special attention though it is not decisive. 

[44]  The officer's reasons reflect his main concerns, that is to say that the children are adults and that their situation is no more difficult than those of other persons in the DRC. However, the reasons do not contain a detailed analysis of the applicant's independency or dependency. The officer did not linger on the only item of evidence that explained the reason why the applicants are not entirely autonomous even though they are over 18: the adverse socio-affective impacts resulting from their precarious childhood. However, there was evidence in the file in addition to testimony explaining why the applicants need their parents. This evidence was worthy of consideration.

[45]  The Court does not simply disagree with the weight given to the various items of evidence weighed by the officer. Rather, the socio-affective impact of the applicants' precarious childhood is—objectively—the only item of evidence raised that explains why the applicants believe they slipped through the cracks of the system. Though it was not decisive in itself, this item of evidence could not be ignored.

[46]  Concerning the family separation that would be caused by the officer's negative decision, the GCMS notes indicate that the difficulties being experienced by the applicants at an adult age are not disproportionate or insurmountable. According to the notes, Ms. Kuteka indicated—after the decision was transmitted orally—that she would possibly decide not to leave the DRC without the applicants. The officer invited Ms. Kuteka to take the time to make a decision, but he did not otherwise seem to have considered her fear. Despite the difficulties experienced by the applicants, their brother Glody, and their adoptive parents, due to the decision preventing the applicants from coming to Canada with the other members of their family, which was raised in their written submissions to the officer, the officer in question did not consider the extremely difficult decision Ms. Kuteka had to make, nor did he take into account the fact that the family separation does not seem to be rectifiable by other measures. In my opinion, a failure to take into account paragraph 3(1)b) of the IRPA took place, and this represents a mistake on the officer's part.

IX.  Conclusions

[47]  Due to the mistakes discussed above, this application for judicial review must succeed.

[48]  Following the discussions with the parties' solicitors during the hearing for this application, I believe that there is no serious question of general importance to certify.

JUDGMENT

THE COURT RULES that:

1. This application for judicial review is granted, and the file is returned for reconsideration before another officer.

2. No serious question of general importance is certified.

"George R. Locke"

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:		IMM-2349-16
STYLE OF CAUSE:		SYLVIE MUKILANKOYI, ERIC MUKILANKOYI, PRINCE KALENGE, SELE MINZADI v THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
PLACE OF HEARING:	Montréal (Quebec)
DATE OF HEARING:	January 25, 2017
JUGDMENT AND REASONS:	LOCKE J.
DATED:	February 13, 2017

APPEARANCES:

Guillaume Cliche-Rivard	FOR THE APPLICANT
Pavol Janura	FOR THE RESPONDENT

SOLICITORS OF RECORD:

Doyon, Nguyen, Tutunjian & Cliche-Rivard Lawyers Montréal (Quebec)	FOR THE APPLICANT
William F. Pentney Deputy Attorney General of Canada Montréal (Quebec)	FOR THE RESPONDENT