Docket: IMM-3483-11
Citation: 2012 FC 17
Ottawa, Ontario, January 5, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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PAULA GLENDA SYLVESTER
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION AND THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
is an application pursuant to subsection 72(1) and paragraph 72(2)(b) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of
a decision of an officer of Citizenship and Immigration Canada (the officer),
dated April 6, 2011, wherein the applicant’s permanent residence application
was refused (the decision). This conclusion was based on the officer’s finding
that there were insufficient humanitarian and compassionate (H&C) grounds
to warrant an exception allowing the applicant’s permanent residence
application to be made from within Canada.
[2] The
applicant requests that the officer’s decision be set aside
and the application be referred back to Citizenship and Immigration Canada
(CIC) for redetermination by a different officer.
Background
[3] The applicant, Paula
Glenda Sylvester, is a citizen of Grenada. As a child and young woman, she was physically
and psychologically abused by her mother because she had been conceived by an
interracial union between her mother, who identifies as being white, and a
black man. The applicant’s attempts to seek help from her father were denied
because he claimed he had too many children (ten) to care for. The applicant
was also sexually abused by an older cousin who threatened to kill her should
she report the abuse to the police. Seeking to escape the abuse, the applicant
fled to Canada, arriving as a visitor
on July 18, 1990. Since fleeing Grenada, the applicant has never returned and has maintained
no contact with her family there.
[4] Upon the applicant’s
arrival in Canada, she stayed in a
rooming house. There her friend’s uncle stole money from her and raped her. In
fear of being deported, the applicant did not report this abuse.
[5] In 1997, the applicant
was in a relationship with a man named Alfred Charles. The couple lived
together between May and September 1997. On December 15, 1997, the couple’s son
Yannick N’Kimie Charles was born. He is a citizen of both Canada (by birth) and Grenada (as a child born abroad
to a Grenadian mother). Since birth, the applicant has been her son’s primary
caregiver. By court order, the applicant was granted full custody of her son in
2005. At the same time, Alfred Charles began paying court ordered support and
having regular visits with his son.
[6] The applicant was
employed as a cleaner from 1993 to 2005. In 2005, when her employer moved away,
the applicant became unemployed and thereafter suffered from anxiety and
depression. Since then, she had been in receipt of Ontario Works social
assistance.
[7] Between 2001 and 2005,
the applicant was enrolled as a part-time student at Parkdale Project Read; a
community-based adult literacy program. Since her loss of employment in 2005,
the applicant has been enrolled on a full-time basis in this program.
[8] In February 2005, the
applicant filed a claim for refugee protection. In a decision dated July 21,
2005, the Refugee Protection Division (RPD) found that the applicant was not a
Convention refugee or a person in need of protection. In coming to this
determination, the RPD relied on the length of time (fifteen years) that the
applicant had lived in Canada illegally, which it found suggested an absence of
subjective fear of removal and the improving availability of state protection
for abuse of women in Grenada. The RPD also acknowledged that:
The
[applicant] stated she no longer has reasons to fear her mother who is old now;
she also acknowledged that perhaps her fear of her cousin is only in her head.
[9] Finally, the RPD stated
that H&C considerations were not within its mandate. The applicant filed an
application for leave for judicial review of this decision and it was denied on
April 20, 2006.
[10] On June 11, 2004, the
applicant filed an H&C application for an exemption from the requirement to
file a permanent residence visa from outside Canada. On January 9, 2008, in response to a
request for updated information on her circumstances, the applicant filed
additional submissions. These latter submissions described the applicant’s
immigration history, economic establishment and community involvement in Canada and close relationship
with her son. The submissions also cited documentary evidence on country
conditions in support of the claim that the applicant would face unusual and
undeserved hardship if returned to Grenada. This included evidence of widespread poverty,
high rates of unemployment and lack of access to education. The submissions
also stated that the impact of hurricanes in 2004 and 2005 on existing gender
inequities would magnify the hardship faced by the applicant should she return
to Grenada. Finally, a summary of
the family violence that the applicant suffered at the hands of her mother and
cousin when she lived in Grenada was also included.
[11] In a letter dated March
17, 2008, the applicant filed additional submissions to support her H&C
application. This consisted of a letter from Dr. Ellen Fantus, a registered
psychologist, assessing the applicant’s son. Dr. Fantus acknowledged the close
relationship between mother and son, stating that the applicant was not only a
parent but also her son’s best friend. The applicant’s son was having some
social problems at school, leading to declining grades, and the psychologist
recommended that he attend a summer camp program and social skill groups in the
community.
[12] In response to a request
for an additional update on the applicant’s current situation, the applicant
filed further submissions in a letter dated February 9, 2010. These submissions
stated that the H&C grounds outlined in the previous letter of January 2008
still existed and largely reiterated the applicant’s case history, social
establishment in Canada and factors related to
links with family members.
[13] On October 27, 2010, the
applicant submitted an application for a pre-removal risk assessment (PRRA).
Officer’s Decision
[14] In a letter dated April
6, 2011, the officer denied the applicant’s permanent residence application
from within Canada on H&C grounds.
[15] In the notes to file
that form part of the decision, the officer noted the number of materials in the
assessment that were considered, including the:
- request for
exemption from the permanent resident visa requirement;
- supplementary
submissions made up to November 12, 2010;
- H&C submissions
and cases;
- PRRA application
and submissions;
- RPD’s reasons for
decision; and
- documentary
evidence obtained from independent research.
[16] The officer acknowledged
that a positive H&C decision is an exceptional response to a particular set
of circumstances and that the onus is on the applicant to satisfy the officer
that her personal circumstances, including the best interests of any affected
children, are such that the hardship of having to obtain a permanent resident
visa from outside Canada would be unusual or underserved or disproportionate.
[17] Turning to the risk
factors, the officer noted that the same allegations of risk were put forth in
both the applicant’s refugee claim and her PRRA application. The officer also
highlighted the lower threshold in H&C assessments as opposed to PRRAs. The
officer then acknowledged the risk factors on which the applicant’s H&C
application was based, namely: hardship or sanctions upon return to Grenada,
establishment in Canada and best interests of
her son.
[18] The first risk factor
was based on the applicant’s claims that if returned to Grenada she would face hardship
at the hands of her cousin who had abused her and molested her for many years
and had threatened to kill her if she went to the police. This was allegedly
her reason for coming to Canada in 1990 and for later
filing a refugee claim to the RPD in 2005. After briefly reviewing the RPD’s
finding, the officer reviewed documentary country evidence on Grenada and found that
individual rights are protected, the State is attempting to, and has somewhat
succeeded in, improving the situation of violence against women and Grenada is a democratic country
with a functioning judiciary and police. The state has also begun addressing
corruption. The officer found insufficient evidence of the applicant being
targeted or threatened and insufficient evidence that she would not be able to
obtain state protection should she seek it.
[19] Turning to the question
of establishment, the officer acknowledged that the applicant had been in Canada for approximately 20
years. Between 1993 and 2005, she was employed as a cleaner. When her employer
moved away in 2005, the loss of her job caused her some stress and she has
since been receiving social assistance. However, as no medical evidence was
submitted and as the country evidence showed that facilities were available for
mental health patients in Grenada, the officer found that the applicant would
not suffer hardship if required to deal with her medical conditions in Grenada.
[20] The officer noted that
the applicant had enrolled as a full-time student in the Project Read literacy
program and was developing reading, writing, computer technology and other
skills. In addition, the applicant was involved in her community with her
church and associated committees. The officer acknowledged the applicant’s good
civil record, but noted that no evidence was submitted on her fiscal management
in Canada. In summary, as her
prolonged stay in Canada had been within her
control, the officer found insufficient evidence to support a finding that the
applicant was so integrated into Canadian society that departure would cause
unusual or undeserved or disproportionate hardship.
[21] With respect to the best
interests of the child, the officer acknowledged the evidence that the
applicant’s Canadian-born son was well-established in his school in Ontario. However, although not
determinative, the officer noted that no progress reports or reference letters
from his teachers had been provided. Further, although evidence of a visit with
a registered psychologist was submitted, the officer noted that there was no
evidence that the child received ongoing counselling. The psychologist’s report
mentioned that the child had a stepbrother living in Ohio; however, no evidence
was submitted to suggest that the siblings maintained a relationship. In
addition, the evidence suggested that the child had only recently begun having
a real relationship with his father.
[22] The officer acknowledged
the applicant’s submissions that the child would be deprived of a meaningful
relationship with his father if sent to Grenada and conversely be deprived of a meaningful
relationship with his mother if she was sent back while her son remained in Canada with his father.
However, the officer noted Grenada’s commitment to children’s rights and welfare, free
education and English being one of the official languages. Further, as a
citizen of both Canada and Grenada, the officer found that there was no legal obstacle to the
child residing in Grenada. Therefore, although it
is in the best interests of most children to remain with the parents, the officer
found that it would be a parental decision as to which parent the child would
remain with. Based on the evidence, the officer did not find that there would
be a significant negative impact on the child if the applicant relocated to Grenada.
[23] Finally, the officer
found that although the applicant had been away from her home country since
1990, the fact that she was a citizen, had family there and that her new skills
were transferable to Grenada, supported a finding
that she would be able to re-establish there.
[24] In summary, the officer
highlighted that the H&C process is not designed to eliminate all hardship.
It is designed to provide relief from unusual, undeserved or disproportionate
hardship. Although a return to Grenada might cause hardship, the officer was not persuaded on the
evidence before it that the ensuing hardship would be unusual, undeserved or
disproportionate.
Issues
[25] The applicant submits
the following points at issue:
1. Whether the officer
ignored evidence and failed to have regard to the totality of the evidence?
2. Whether the officer
failed to conduct an adequate assessment of the best interests of the child
directly impacted by the decision?
3. Whether the officer
applied the wrong test when assessing risk and/or hardship in the applicant’s H&C
application?
[26] I would phrase the
issues as follows:
1. What is the appropriate
standard of review?
2. Did the officer ignore
evidence in assessing the H&C application?
3. Did the officer conduct
an inadequate analysis of the best interests of the child impacted by the decision?
4. Did the officer apply the
wrong test in assessing risk or hardship?
Applicant’s Written Submissions
[27] The applicant submits
that the officer failed to conduct any assessment of two of the primary
hardship factors put forward in her application, namely, the abuse suffered by
the applicant at the hands of her mother; and the impact that Hurricane Ivan,
which struck in 2004, and subsequent hurricanes in 2005 would have on her
attempts to reintegrate into life in Grenada.
[28] The officer’s lack of
analysis of the mother’s abuse was especially egregious as it directly
contradicted the officer’s finding that the applicant would be able to rely on
support from her family if returned to Grenada. The applicant submits that this was patently
unreasonable. The applicant also submits that the officer failed to consider
the country evidence that the destruction caused by the hurricanes had created
a specific gendered impact that marginalized Grenadian women and their children
both socially and economically.
[29] Based on the officer’s
findings, the applicant submits that a reasonable inference can be drawn that
these hardship factors were ignored by the officer. This failure to deal with
primary submissions, which were supported by several references on the record,
is a reviewable error.
[30] The applicant also
submits that the officer did not conduct an adequate analysis of the best
interests of the applicant’s son by applying the wrong test and making
unreasonable findings in light of the evidence.
[31] The applicant submits
that the jurisprudence requires an officer to be “alert, alive and sensitive”
to, and not minimize the best interests of a child who may be adversely
affected by their decision. This is a separate analysis from considering
whether there is an “unusual, undeserved or disproportionate hardship”.
Therefore, the officer erred in his decision by considering whether the child
would suffer “unusual, undeserved or disproportionate hardship”. Rather, the officer
should have considered whether removal would be in his best interest and how
these interests relate to other hardship factors assessed in the application.
[32] The applicant also
submits that the officer made unreasonable findings based on the evidence before
it. These findings demonstrate that the officer was not alert, alive and
sensitive to the best interests of the child. The applicant submits that there
was no evidence to suggest that the child would remain in Canada should his mother be
removed. Rather, all the evidence, including the fact that the mother had sole
custody as well as the reported dependence of the son on his mother, indicated
that he would leave Canada with his mother if she was removed. There would
therefore not be any parental decision, as stated by the officer, as it was
certain that the child would stay with his mother. As the officer failed to
realize this, the officer did not consider the financial repercussions of the
mother and child being removed to Grenada. This would include both the economic
difficulties caused by the aftermath of the recent hurricanes and the loss of
court ordered support payments from the father due to a lack of enforcement
mechanism for an Ontario court decision in Grenada.
[33] The applicant submits
that the Officer erred in law by applying the wrong test when assessing risk in
her H&C application. Rather than assessing the risk according to the tests
under section 96 and 97 of the Act, the officer should have conducted a
broader, more holistic assessment, with regard to public policy considerations
and the best interests of any child impacted by the decision. However, in the decision,
the applicant submits that the officer made very similar findings to those made
in her assessment on risk in the PRRA decision. This was problematic because,
unlike a PRRA application or a refugee claim, state protection is not intended
to be a determinative factor in an H&C application. The applicant submits
that the officer should have assessed whether it would be undue emotional
hardship to force the applicant to re-enter an environment wherein she was
previously repeatedly abused and would potentially have to seek redress from
the authorities to avoid further assaults. In the decision, the officer failed
to question whether, despite the existence of protection from harm, the
applicant’s circumstances on removal nonetheless warranted H&C relief.
Respondents’ Written Submissions
[34] The respondents submit
that there is no right or wrong answer to an H&C application. As long as
the officer applies the proper principles and considers and assesses all of the
evidence, including evidence pertaining to the best interest of the child, the
decision should not be set aside. The appropriate standard of review for
H&C decisions is reasonableness.
[35] The respondents
highlight basic principles that they submit must be considered in assessing the
officer’s decision. First, no one is entitled to a positive H&C decision.
These decisions are highly discretionary and as long as the officer fairly
considers the relevant evidence and makes a reasoned decision, the decision
cannot be faulted. Further, the Minister’s discretionary power to grant an
exemption on H&C grounds from the requirement that permanent resident
applications be filed from abroad is an exceptional remedy.
[36] The respondents also
submit that the H&C process is not designed to eliminate any kind of
hardship but rather to provide applicants relief from unusual and undeserved or
disproportionate hardship. Applicants bear the burden of satisfying the high
threshold of demonstrating that they would suffer such hardship if required to
apply from abroad. The hardship must be greater than that which would arise
from having to leave after having been in place for a period of time.
[37] The respondents submit
that the CIC manual entitled “Immigrant Applications in Canada made on Humanitarian
and Compassionate Grounds” (IP5) provides that positive H&C applications
may be granted to applicants who remain in Canada without status if this is due to
circumstances beyond their control. However, an applicant that remains in Canada illegally is not
considered in either IP5 or established jurisprudence as a person doing so due
to circumstances beyond their control. Finally, an officer’s reasons should be
read as a whole, not microscopically so as to find errors therein.
[38] Turning to the case at
bar, the respondents submit that the officer did appropriately consider and
weigh all of the information pertaining to the applicant and her son. This
included both the evidence favouring the applicant’s position and also an
acknowledgment by the officer that the following evidence was missing:
Medical evidence, including evidence
of treatment, to support her claims that she suffered from mental illness;
Documentary
evidence, such as bank accounts or tax information, to support her assertion
that she was financially stable; and
Evidence,
such as progress reports or letters from teachers, to support her assertion
that her son was well integrated in his school.
[39] The respondents also
submit that the applicant’s argument that the officer failed to consider both
her abusive mother and the aftermath of the hurricanes is without merit. These
issues were not put forth as primary hardship factors in the applicant’s
submissions from January 2008 or February 2010. These latter submissions spoke
more generally about the difficulty of returning to Grenada after being away for
twenty years and the possibility of having to face the applicant’s mother and cousin.
[40] The respondents submit
that the officer considered the evidence and submissions, including the
previous decision by the RPD which acknowledged the applicant’s previous
testimony that she no longer had reason to fear her mother. The respondents
also submit that it was open for the officer not to consider that the abuse
suffered by the applicant as a child was indicative that she would suffer
undue, undeserved or disproportionate hardship should she return as an adult.
Finally, Hurricane Ivan occurred in 2004, many years before the 2011 decision
and this factor was also not highlighted as particularly important in the
applicant’s submissions. The officer therefore did not err in not specifically
addressing the hurricane or its aftermath on the country.
[41] The respondents note
that there is a presumption that a tribunal has considered all the documents
filed before it, even where all the materials are not explicitly mentioned in
the reasons. In this case, the respondents submit that the information on the
abusive mother and hurricane were not of such important or central nature to
the application that they necessitated specific mention by the officer.
[42] The respondents submit
that the officer properly considered the best interests of the child and this
led to a reasonable conclusion that the best interests did not warrant an
exemption in this case. The respondents refer to jurisprudence which they say
states that although the applicant and her son feel it would be in his best
interests for the mother and son to stay together, this fact alone is not
determinative of the issue. Further, the officer’s use of “unusual, underserved
or disproportionate hardship” in this analysis did not constitute a reason to
overturn the decision where the officer still properly considered and reflected
upon the child’s best interest.
[43] Finally, the respondents
highlight the fact that the issue of best interests of the child is not
determinative of H&C decisions. Once an officer has identified and defined
the interests of the child, he or she must determine what weight to give it
based on the circumstances of the case. In this case, the officer did not err
by ignoring any relevant evidence or considering any irrelevant evidence.
[44] The respondents
highlight the fact that the applicant relied on similar evidence and
submissions in both her PRRA and H&C applications. It was therefore
inevitable that there would be some overlap in the decisions on the analysis of
this evidence. It is established jurisprudence that an officer may adopt
factual findings from the PRRA decision to the analysis of an H&C
application.
[45] In summary, the
respondents submit that the applicant is essentially arguing that the officer
could only have come to one correct answer in assessing the applicant’s H&C
application. However, H&C decisions are discretionary, and the respondents
submit that the applicant has failed to demonstrate that the officer committed
a reviewable error in its decision.
Applicant’s Written Reply
[46] In reply, the applicant
submits that contrary to the respondents’ submissions, family abuse and the
hardships associated with the hurricane aftermaths were emphasized as primary
hardship factors in both her 2008 and 2010 submissions. The applicant notes
that the respondents conceded that the officer did not consider the abuse she
suffered in Grenada as her reason for coming to Canada. The failure to consider such an elemental
aspect of the applicant’s circumstances renders the officer’s decision
incomplete and unreasonable. Further, the applicant submits that the officer’s
finding that the applicant’s transition back into Grenadian society would be
eased by the presence of her family there is indicative of a complete lack of
care in reviewing the file in light of the evidence of abuse at the hands of
her family. The jurisprudence clearly provides that an officer cannot ignore
evidence.
[47] With regards to the
analysis of the best interests of the child, the applicant acknowledges that
although particular words should not be determinative of the substance of the
actual analysis, both the form and the substance of the officer’s analysis on
this factor were inadequate. Further, the officer had a duty to provide
adequate and sufficient reasons on this point. However, in this case, the officer’s
analytical analysis on this factor was limited to the last two paragraphs of
the section on best interests of the child in the decision. The other
paragraphs were merely recitations of the evidence and the applicant’s
submissions. This was therefore not a reasoned analysis that demonstrated that
the officer was alert, alive or sensitive to the child’s interests.
Analysis and Decision
[48] Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[49] It is established law
that assessments of an immigration officer’s decision
on allowing an application for permanent residence from within Canada on
H&C grounds is reviewable on a standard of reasonableness (see Kisana v
Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2009] FCJ
No 713 at paragraph 18; Adams v Canada (Minister of Citizenship and
Immigration), 2009 FC 1193, [2009] FCJ No 1489 at paragraph 14; and De
Leiva v Canada (Minister of Citizenship and Immigration), 2010 FC 717,
[2010] FCJ No 868 at paragraph 13).
[50] In reviewing the officer’s
decision on the standard of reasonableness, the Court should not intervene
unless the officer came to a conclusion that is not transparent, justifiable
and intelligible and within the range of acceptable outcomes based on the
evidence before it (see Dunsmuir above, at paragraph 47; and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12
at paragraph 59). As the Supreme Court held in Khosa above, “it is not
up to a reviewing court to substitute its own view of a preferable outcome, nor
is it the function of the reviewing court to reweigh the evidence” (at
paragraph 59).
[51] With
respect to the additional affidavit filed by the applicant, I am not prepared,
based on the facts of this case, to consider it on this application for
judicial review. The affidavit is not necessary and it was not before the
officer making the decision. Generally speaking, the record for a judicial
review application consists of the material before the officer.
[52] I
propose to deal first with Issue 3.
[53] Issue
3
Did the officer conduct an
inadequate analysis of the best interests of the child impacted by the decision?
Extensive jurisprudence has
developed on the assessment of the best interests of children under subsection
25(1) of the Act. Decisions have been found to be unreasonable where the
interests of children are minimized in a manner inconsistent with Canada's H&C tradition
(see Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraphs 73 and 75).
The assessment must be done carefully and sympathetically in a manner that
demonstrates that the officer has been alert, alive and sensitive to the best
interests of the affected children. It is not sufficient to merely state that
the interests have been taken into account or to simply refer to the children’s
interests or to the relationships with the children involved (see Hawthorne
v Canada (Minister of
Citizenship and Immigration), 2002 FCA 475, [2003] 2 FC 555 at paragraph
32). The children’s interests must be well identified and must be defined and
examined with a great deal of attention (see Hawthorne above, at
paragraph 32; and Legault v Canada (Minister of Citizenship and Immigration),
2002 FCA 125, [2002] FCJ No 457 at paragraphs 12 and 31).
[54] The onus is on the
applicant to provide evidence of the adverse effects on the children should the
applicant leave. The officer must consider any such evidence submitted (see Liniewska
v Canada (Minister of
Citizenship and Immigration), 2006 FC 591, [2006] FCJ No 779 at paragraph
20). Reasons of family reunification alone are not sufficient. Applicants must
demonstrate that applying for permanent residency from abroad would expose them
to unusual, undeserved or disproportionate hardship (see Castillo v Canada (Minister of
Citizenship and Immigration), 2009 FC 409, [2009] FCJ No 543 at paragraph
21).
[55] Further, although an
important factor, there is no prima facie presumption that the
children's interests should prevail and outweigh other considerations (see Legault
above, at paragraph 13; and Okoloubu v Canada (Minister of
Citizenship and Immigration), 2008 FCA 326, [2008] FCJ No 1495 at paragraph
48). It is up to the officer to determine what weight to give the interests of
the affected children (see Sinniah v Canada (Minister of
Citizenship and Immigration), 2011 FC 1285, [2011] FCJ No 1568 at paragraph
57). Finally, as stated by the Federal Court of Appeal in Kisana above,
at paragraph 24: “an applicant is not entitled to an affirmative result on an H&C
application simply because the best interests of a child favour that result”.
[56] In this case, the
applicant submits that the officer erred in its assessment of the best
interests of the applicant’s Canadian-born son. In the decision, the officer
acknowledged the applicant’s son’s establishment in school. However, the officer
noted the following absences from the H&C application:
No progress reports or reference
letters from the son’s teachers;
No evidence of ongoing counselling;
and
No evidence of a maintained relationship
with the son’s stepbrother living in the United States.
[57] The officer also noted
that the son and his father had only recently begun having a relationship. This
relationship would likely suffer if the son was sent to Grenada; similarly, if the son
stayed in Canada, his relationship with
his mother would likely suffer. It would therefore necessitate a parental
decision as to which parent the child would remain with. As the country
evidence showed that the state was committed to free education and children’s
rights and welfare and the English language, the son’s native tongue, was also
an official language in Grenada, the officer did not find that the applicant’s
removal would be a significant negative impact on the child that would amount
to unusual and underserved or disproportionate hardship.
[58] The applicant submits
that the officer applied the wrong test in coming to its decision on this
issue. Rather than considering whether the child would suffer “unusual,
undeserved or disproportionate hardship”, the officer should have considered
whether removal would be in his best interest and how these interests relate to
other hardship factors assessed in the H&C application. Conversely, the
respondents submit that the fact that the applicant and her son felt that it
would be in the best interests of the child that the son stay with his mother
in Canada was not determinative
of the issue. In addition, the officer’s use of the words “unusual, undeserved
or disproportionate hardship” did not constitute a reason to overturn the
decision where the officer still properly considered and reflected upon the
child’s best interests.
[59] It is established
jurisprudence that a “best interests” analysis does not require an applicant to
establish unusual, undeserved or disproportionate hardship in relation to the
best interests of any affected child (see Sinniah above, at paragraph
59; Arulraj v Canada (Minister of Citizenship and Immigration), 2006 FC
529, [2006] FCJ No 672 at paragraph 14; and Hawthorne above, at
paragraph 9).
[60] As mentioned above, the
“best interest analysis” requires an officer to demonstrate that he or she is
alert, alive and sensitive to the best interests of the children under
consideration. In Kolosovs v Canada (Minister of Citizenship and Immigration), 2008 FC 165, [2008]
FCJ No 211, Mr. Justice Douglas Campbell described the meaning of this
requirement.
[61] With regards to being
alert, the officer “must demonstrate an awareness of the child’s best interests
by noting the ways in which those interests are implicated” (see Kolosovs above,
at paragraph 9). Examples of relevant factors include:
1. the age of the child;
2. the level of dependency
between the child and the H&C applicant;
3. the degree of the child's
establishment in Canada;
4. the child's links to the
country in relation to which the H&C decision is being considered;
5. medical issues or special
needs the child may have;
6. the impact to the child's
education; and
7. matters related to the child's
gender.
[62] Mr.
Justice
Campbell described the meaning of being “alive to a child’s best interests” as
the officer demonstrating “that he or she well understands the perspective of
each of the participants in a given fact scenario, including the child if this
can reasonably determined” (see Kolosovs above, at paragraph 11).
[63] Finally, with regards to
the “sensitivity” requirement, Mr. Justice Campbell explained (see Kolosovs above,
at paragraph 12):
[…]
To demonstrate sensitivity, the officer must be able to clearly articulate the
suffering of a child that will result from a negative decision, and then say
whether, together with a consideration of other factors, the suffering warrants
humanitarian and compassionate relief. […]
[64] Returning to the decision,
it is notable that the officer draws little attention to the close relationship
between the applicant and her son that was clearly expressed throughout the
applicant’s H&C submissions. The officer does consider the child’s degree
of establishment in Canada, limited links to Grenada, medical issues and impacts to his
education. On these last two issues, the officer notes the lack of evidence, notably
the lack of ongoing counselling and lack of progress reports or reference
letters from the child’s teachers. Thus, the officer was somewhat alert to the
child’s best interests.
[65] However, the decision is
lacking in showing that the officer was alive to the child’s best interests.
The evidence suggests that the child only recently began a real relationship
with his father, and he continues to rely heavily for emotional support on his
mother, described as his “best friend”, in the psychologist’s report. Aside
from saying that the decision on where the child will live is a parental
decision, the officer does not delve into the child’s best interests as they
relate to this decision. In addition, the officer does not clearly articulate
the suffering the child would face from a negative decision and his
corresponding separation from either his father or perhaps more importantly,
the applicant, his mother.
[66] In addition, as
submitted by the applicant, the totality of the evidence suggested that if the
applicant is deported, the child would leave Canada with her. Although the country evidence
suggest stabilizing conditions in Grenada, the fact that the applicant had been
abroad for twenty years, had not remained in contact with family, had acquired
new skills in Canada but had not yet put them into practice (she remains a
full-time student) and would likely face difficulties in obtaining continued
parental support when outside Canada suggests that the applicant and her son
would face significant economic difficulties in Grenada. In Hawthorne above,
the officer’s failure to consider the financial implications for the child of
her mother's removal was found to be in part indicative of the officer’s
failure to be alert, alive and sensitive to the child's best interests (at
paragraph 10).
[67] Finally, this case is
distinguishable from Pannu v Canada (Minister of Citizenship and Immigration), 2006 FC 1356, [2006]
FCJ No 1695. In Pannu above, the officer used similar language to this
case, stating that (at paragraph 38):
I
also find that the applicant has not established that the general hardships of
relocating and resettling to another country would have a significant negative
impact to her daughter that would amount to unusual and undeserved or
disproportionate hardship.
[68] However, the officer’s
decision in Pannu above, was upheld as the officer in that case found
that the child would adapt to India
given that she spoke Punjabi, had been attending Punjabi pre-school and had
been exposed to Punjabi culture through her Sikh community in Surrey. No
similar cultural ties were alleged in this case, rendering the applicant’s
son’s ability to adjust to Grenada likely to be difficult.
[69] As such, I find that the
officer did not adequately weigh the child’s best interests in assessing the
H&C application. This factor should have been properly assessed and then
weighed against the other factors such as public policy considerations (see Mangru
v Canada (Minister of
Citizenship and Immigration), 2011 FC 779, [2011] FCJ No 978 at paragraph
27). This is similar to Mr. Justice Michael Phelan’s finding in Sahota v Canada (Minister of
Citizenship and Immigration), 2011 FC 739, [2011] FCJ No 927 at paragraph 8:
[…]
While the ultimate question in an H&C application is "disproportionate
hardship", the "best interests" analysis operates as a separate
consideration. The Officer's failure to keep the two issues distinct results in
an unreasonable assessment of the children's best interests.
[70] I therefore find that
the officer’s assessment of the best interests of the affected child was
unreasonable and the decision should be set aside for this reason.
[71] Because
of my conclusion on Issue 3, I need not deal with the remaining issues.
[72] The
application for judicial review is allowed and the matter is referred to a
different officer for redetermination.
[73] Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for
judicial review is allowed, the decision of the officer is set aside and the
matter is referred to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act, SC 2001 c 27
25. (1) The
Minister must, on request of a foreign national in Canada who is inadmissible
or who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligations of this Act if
the Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to the foreign national, taking into
account the best interests of a child directly affected.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
(2) The
following provisions govern an application under subsection (1):
. . .
(b) subject
to paragraph 169(f), notice of the application shall be served on the other
party and the application shall be filed in the Registry of the Federal Court
(“the Court”) within 15 days, in the case of a matter arising in Canada, or
within 60 days, in the case of a matter arising outside Canada, after the day
on which the applicant is notified of or otherwise becomes aware of the
matter;
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25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
(2) Les
dispositions suivantes s’appliquent à la demande d’autorisation :
. .
.
b)
elle doit être signifiée à l’autre partie puis déposée au greffe de la
Cour fédérale — la Cour — dans les quinze ou soixante jours, selon que la
mesure attaquée a été rendue au Canada ou non, suivant, sous réserve de
l’alinéa 169f), la date où le demandeur en est avisé ou en a eu connaissance;
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FEDERAL
COURT
SOLICITORS OF RECORD
DOCKET: IMM-3483-11
STYLE OF CAUSE: PAULA
GLENDA SYLVESTER
-
and -
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION and
THE
MINISTER OF PUBLIC SAFETY
AND
EMERGENCY PREPAREDNESS
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: December 13, 2011
REASONS FOR JUDGMENT
AND JUDGMENT OF: O’KEEFE J.
DATED: January 5, 2012
APPEARANCES:
Geraldine Sadoway
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FOR THE APPLICANT
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Catherine Vasilaros
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FOR THE RESPONDENTS
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SOLICITORS OF RECORD:
Parkdale Community Legal
Services
Toronto, Ontario
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FOR THE APPLICANT
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Myles J. Kirvan
Deputy Attorney General of Canada
Toronto, Ontario
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FOR THE RESPONDENTS
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