Docket: IMM-5424-19
Citation: 2021 FC 193
Ottawa, Ontario, March 3, 2021
PRESENT: The Honourable Justice Fuhrer
| BETWEEN:
|
| BRUNO DE OLIVEIRA BORGES
|
| CLAUDIA CECILIA MACEDO DE ARAUJO
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| Applicants
|
| and
|
| MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicants are spouses. They and their two minor children are citizens of Portugal. The family has lived in Canada for about eight years. Both Applicants have worked in Canada and integrated into their community, while their children have lived most of their lives in Canada. Having been refused a work permit and visitor status extensions, the Applicants applied for permanent residence within Canada, seeking exemption from the in-Canada selection criteria on humanitarian and compassionate grounds. A Senior Immigration Officer refused the application. The Applicants now seek judicial review of that decision.
[2]
There is no dispute that the presumptive reasonableness standard of review is applicable to the matter before me: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 10. I find that none of the situations rebutting such presumption is present in this matter. To avoid judicial intervention, the decision must bear the hallmarks of reasonableness – justification, transparency and intelligibility: Vavilov, at para 99. The party challenging the decision has the onus of demonstrating that the decision is unreasonable: Vavilov, at para 100.
[3]
The main issue for determination thus is the reasonableness of the Officer’s decision in two respects, namely: (i) the best interests of the children, and (ii) the Applicants’ establishment in Canada. The Applicants also object to the segmented approach they say the Officer adopted in assessing their application.
[4]
For the more detailed reasons below, I find that the Officer’s assessment of the children’s best interests unreasonable and as such, the issue is determinative in the circumstances of this case. I therefore grant the Applicants’ judicial review application.
II.
Analysis
[5]
As a preliminary matter, the documentary evidence contained in the certified tribunal record, including passport and birth certificate documentation, discloses that the male Applicant’s full name is Bruno de Oliveira Borges. At the hearing, I drew the parties’ attention to the omission of the word Borges from the male Applicant’s name in the style of cause. They agreed an amendment is warranted to add it. Because the omission appears to be clerical in nature on the face of the record, I thus order the style of cause amended accordingly.
[6]
Turning to the issue of the children’s best interests, in my view the Officer erred in several respects rendering the decision unreasonable. First, while the Officer acknowledged at the outset of the assessment that the best interests of the child considerations should be given significant weight, the Officer concluded the assessment by giving them only “some positive weight”
in this case. The Officer is correct that the children’s best interests are not necessarily determinative in the assessment of a humanitarian and compassionate application. I nonetheless find that to accord them only “some positive weight”
is unintelligible and contrary to the Supreme Court of Canada’s instruction that 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”
[emphasis added]: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 [Baker] at page 864.
[7]
Second, I find the Officer failed to apply the highly contextual, best interests principle in a manner responsive to each child’s particular age, capacity, needs, maturity and level of development: Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII), [2015] 3 S.C.R. 909 [Kanthasamy] at para 35. Rather, the Officer focused unduly on the “care and support”
provided by the parents. This is exemplified in my view by the Officer’s finding that “whatever adjustments their children will have to make, they will do so with the care and support of both [their] parents.”
[Emphasis added.] On its face, this finding evinces a failure to identify and define the children’s interests and needs, and to examine them with a great deal of attention: Kanthasamy, above at para 39. Further, this finding does not demonstrate that the Officer determined the likely degree of hardship to each child in this case caused by the parents’ removal and weighed such degree of hardship, together with other factors favouring or disfavouring the removal of the parents: Hawthorne v Canada (Minister of Citizenship and Immigration), 2002 FCA 475 at para 6.
[8]
Contrary to the Respondent’s argument, I find the Officer neither framed nor identified the interests and needs of the children in any meaningful way. Instead, the Officers’ reasons are premised on the assumption that the family would be returning to Portugal, and that the children’s best interests would be served with their parents’ care and support, rather than identifying and giving those interests significant weight: Zima v Canada (Citizenship and Immigration), 2019 FC 986 at para 22.
[9]
Further, to the extent the Officer was of the view there was no objective evidence that the children would be unable to attend school, obtain health care and participate in extra-curricular activities, I find this highlights the Officer’s failure “to ask the question the Officer is mandated to ask: What is in [each] child’s best interest?”
: Sebbe v Canada (Citizenship and Immigration), 2012 FC 813 [Sebbe] at para 16. This is especially so in the case of the 7-year old child who came here at 1 year and essentially has known no other life other than the one in Canada. As noted in the same paragraph of Sebbe, it is perverse to suggest that a child’s interests in remaining in Canada are balanced if the alternative meets their basic needs.
[10]
Third, I find there is no justification or intelligibility in equating the adaptability of 4- and 1-year olds to that of children who are 10 and 7 years of age.
[11]
Fourth, I also find the Officer’s opinion that it would be in the best interests of the children to be reunited with their family in Portugal lacks transparency. The evidence on record indicates that the male Applicant, during his formative years, was separated from his father and two older brothers when they moved to another country for about twelve years; hence, he was never close to them. It thus is unclear what family the Officer had in mind regarding reunification and how this would be in the children’s best interests.
III.
Conclusion
[12]
For the above reasons, I therefore grant the Applicants’ judicial review application. The Officer’s decision is set aside, including the reasons, for redetermination by a different Officer.
[13]
Neither party raised a serious question of general importance for certification and I find that none arises.
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