Date:
20120611
Docket:
IMM-8579-11
Citation:
2012 FC 731
Toronto, Ontario, June 11, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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OLAWUNMI ISLAMIYAT RAJI AND
MALIK AJIBOLA T. RAJI
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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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REASONS FOR
ORDER AND ORDER
[1]
The
present Application concerns a decision of an Officer of Citizenship and
Immigration Canada (Officer) refusing exemption from the in-Canada selection
criteria for an application of permanent residence based on Humanitarian and
Compassionate (H&C) or public policy considerations. The Applicant is a
citizen of Nigeria who bases her application on risk upon return to Nigeria, her degree of establishment in Canada, and best interests of her children in Canada. The Applicant has two children in Canada: an 11 year-old son who is a citizen of Nigeria, and a 4 year-old Canadian born daughter.
[2]
In
conducting a best interests of the children analysis, the Officer made the
following findings:
[…] I do not find that there are
inadequate medical facilities in Nigeria to take care of her daughter’s medical
condition if she chooses to take her to Nigeria. I am not satisfied that
the applicant’s daughter would be subjected personally to a risk to her life if
removed to Nigeria. I do not find the applicant’s daughter will be at risk of
death in Nigeria and find that the hardship of her return to Nigeria along with
his [sic] mother to apply for a permanent residence visa unusual and
undeserved or disproportionate.
[…]
[…] I have considered that the
daughter was born in Canada; however, I do not find that the general
consequences of relocation and resettling back in Nigeria with her mother would
have significant negative impact to her that would amount to unusual and
undeserved or disproportionate hardship. […]
I note the children are eleven
and four years old respectively and while I am sympathetic to the emotional
hardship that the eleven year old may experience due to his separation from his
school friends, there is insufficient evidence before me that separation
from his friends here in Canada would result in unusual and undeserved or
disproportionate hardship. Whatever adjustments the children will have to
make in Nigeria they will have the support of their mother who is the caregiver
in their lives. I acknowledge that there will be some hardship for the
children in returning and re-settling in Nigeria, however, I have been
presented with insufficient evidence that the children will sever any bonds
that have been established with either their friends or family and I am not
satisfied that returning to Nigeria with their mother will deprive them of the
basic necessities of life. Furthermore, I do not find the hardship of their
return to Nigeria to obtain a permanent resident visa unusual and undeserved or
disproportionate.
[Emphasis added]
(Decision, pp. 13 – 16)
Counsel for the Applicant argues
that these findings were made in reviewable error based on the decision in E.B.
v Canada (MCI), 2011 FC 110 where Justice Mactavish makes the following
statements at paragraphs 11 – 13:
The first is the test or tests
that the Officer appears to have used in assessing the children's best
interests. At various points in the analysis the Officer discusses the best
interests of the children in terms of whether the children would suffer
"unusual and undeserved and disproportionate hardship" if they were
required to return to Guyana. However, the unusual, undeserved, or
disproportionate hardship test has no place in the best interests of the child
analysis: see Arulraj v. Canada (MCI), 2006 FC 529, [2006] F.C.J. No.
672 (QL) and Hawthorne v. Canada (MCI), 2002 FCA 475, 297 N.R. 187, at
para. 9.
I am mindful that the mere use of
the words "unusual, undeserved or disproportionate hardship" in a
'best interests of the child' analysis does not automatically render an H&C
decision unreasonable. It will be sufficient if it is clear from a reading of
the decision as a whole that the Officer applied the correct test and conducted
a proper analysis: Segura v. Canada (MCI), 2009 FC 894, [2009] F.C.J.
No. 1116 (QL), at para. 29.
It is not at all clear that the
Officer applied the correct test in this case. In addition to the repeated use
of the term "unusual and undeserved or disproportionate hardship" in
the Officer's analysis of the best interests of the children, the Officer also
looked at the situation of the children to see if they were in "an
exceptional situation" or "unusual circumstance to justify a positive
exemption". Neither of these tests is appropriate in a 'best interests of
the child' analysis.
[3]
The
Applicant argues that the RPD’s continual use of the term “unusual and
undeserved or disproportionate hardship” made it integral to the H&C
determination and trivialized the best interests analysis. I agree with this
argument.
[4]
In addition, the analysis provided
by the Officer does not conform to what is, in my opinion, an “alert, alive and
sensitive” consideration of the Applicant’s two children (see Kolosovs v
Canada (MCI), 2008 FC 165, at paras. 9 – 12).
[5]
For the reasons provided above I
find that the decision was made in reviewable error.
ORDER
THIS
COURT ORDERS that:
1.
The
decision presently under review is set aside, and the matter is referred back
to a differently constituted panel for redetermination.
2.
There
is no question to certify.
“Douglas R. Campbell”
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