Docket: IMM-1198-11
Citation: 2011 FC 1285
Ottawa, Ontario, November 9, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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MOHANARAASA SINNIAH
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Applicant
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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 JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of a Pre-Risk Removal Assessment Officer (Officer), dated 24 January
2011 (Decision), which refused the Applicant’s request for an exemption from
the in-Canada selection criteria for permanent resident status on humanitarian
and compassionate grounds under section 25 of the Act.
BACKGROUND
[2]
The
Applicant is a 37-year-old Tamil citizen of Sri Lanka. He has most
recently been living in Canada since 16 December 2009 with his ex-wife
and their two children, Ryan and Ashwinnii. Ryan was born in 2001 and Ashwinii
was born in 2005.
[3]
The
Applicant first arrived in Canada on 5 April 1990, when he claimed refugee
status. He was granted refugee status in 1991 and gained permanent resident
status in 1992.
[4]
In
1994, the Applicant was determined to be criminally inadmissible to Canada on the basis
of three convictions and was ordered deported in 1996. After an unsuccessful
appeal of the deportation order in 1998, the Minister issued a danger opinion
against the Applicant.
[5]
In
2002, the Respondent removed the Applicant from Canada to Sri Lanka. From Sri
Lanka, he re-located to the United States, where he was granted a
temporary stay of removal in 2004. Using an American travel document issued to
him under his alias, Chinniah Moganarasa, the Applicant obtained visitor’s visas
to enter Canada. He entered
and left Canada using these
visas on several occasions between November 2005 and December 2009. During this
time, the Applicant did not obtain an Authorization to Return to Canada (ARC)
as he was required to do under subsection 52(1) of the Act, having been the
subject of an enforced removal order.
[6]
On
6 December 2009, the Applicant re-entered Canada. He came to
the attention of immigration authorities when, as the result of a driving
incident, he was arrested and charged with failure to provide a breath sample.
In 2010, the Respondent issued a deportation order against him. In February
2010, the Applicant applied for a Pre-Removal Risk Assessment (PRRA) and, in
March 2010, applied for an exemption on humanitarian and compassionate
(H&C) grounds. The same Officer processed the PRRA and H&C
applications. On 24 January 2011, the Officer refused the PRRA and the H&C
applications. The Applicant applied for judicial review of the PRRA, which the
parties settled on 6 June 2011.
DECISION UNDER REVIEW
[7]
The
Officer rejected the application for an H&C exemption. She found that the Applicant
had not demonstrated that unusual and undeserved or disproportionate hardship
would result if he were subject to the applicable provisions of the Act.
Degree of Establishment
[8]
The
Officer first considered the degree of establishment demonstrated by the Applicant.
She found that, although he had most recently been living in Canada for
approximately two years prior to the application, he was not employed during
that period, nor was he involved in any community groups or activities. His
removal from Canada would not
cause any unusual and undeserved or disproportionate hardship if he were
required to apply for permanent residence abroad, as required by subsection
20(1) of the Act, because of his limited degree of establishment.
[9]
The
Officer also considered the Applicant’s past history of entry into and exit
from Canada. She noted
that, while the Applicant had been pardoned, which removed criminal
responsibility for his convictions and eliminated that impediment to the
Applicant’s re-entry to Canada, as a removal order had been enforced
against him, he was still required to obtain an ARC if he wished to return to Canada. The Officer
noted that the Applicant had used aliases to obtain visas to enter Canada six times rather
than seeking an ARC after his deportation in 2002. On this basis, the Officer
found that the Applicant had shown a disregard for Canadian law and was willing
to mislead Canadian officials to his advantage. She also noted that when he applied
for visas under his aliases, the same grounds were present as for his H&C
application; he could have noted these grounds in an ARC application, yet he
chose to enter Canada unlawfully.
Family Ties
[10]
The
Officer considered the Applicant’s family ties to Canada and found that
neither he nor his family would suffer any unusual and undeserved or
disproportionate hardship if he were required to comply with the statutory
requirements. Three of his siblings and his ex-wife had provided letters in
support of his application for an H&C exemption. However, his family had lived
without the Applicant in Canada for several years so there was not a
significant degree of interdependence between him and his siblings in Canada. Although
the Applicant’s sister wrote that she required the Applicant to be a father
figure for her children, the Officer found that this role could be fulfilled by
her older brother, with whom she was living at the time. Because of the limited
amount of interdependence between the Applicant and his siblings, the Officer
found none of them would face more hardship than is usual when a family member
is required to leave Canada.
[11]
The
Officer also found that the Applicant’s ex-wife would not suffer unusual and
undeserved or disproportionate hardship. Although the Applicant’s ex-wife wrote
in her letter that she wants to have him remain in Canada and that life
is difficult for her without him, the Officer noted that the Applicant’s
submissions do not mention his ex-wife. The Officer accepted that the Applicant
and his ex-wife had rebuilt their relationship, as he was living with her and
their children at the time of the application, but also noted that they were
married and had a child together only after the Applicant was subject to a
deportation order in 1999. Although the Applicant and his ex-wife had been
living together for eleven months prior to the H&C application, their
relationship was not such that they would face unusual and undeserved or
disproportionate hardship were he removed to Sri Lanka and required
to apply for permanent residence from there.
The Best
Interests of the Children
[12]
The
bulk of the submissions to the Officer on the best interests of the child
concern the Applicant’s son. The Officer ultimately found that denying the H&C
application would not run contrary to the best interests of his children.
Although the Applicant had been in regular contact with both of his children
through visits, phone calls, and, most recently, living with them in his ex-wife’s
home, the Officer found that removing the Applicant from Canada would not
result in unusual and underserved or disproportionate hardship.
[13]
Despite
submissions to the contrary, the Applicant’s continued presence in Canada was not
necessary for the psychological well being of his son, Ryan. Although the
Applicant’s wife wrote in her letter in support of the application that their
son had behavioural problems which she believed to stem from the lack of a
father in his life, the Officer found that this role could be fulfilled by
someone else. Since this role could be fulfilled by someone else, the Applicant’s
removal would not cause sufficient hardship to warrant an H&C exemption.
[14]
The
Officer considered the letter of Dr. Pilowsky, a psychologist, who was retained
to assess Ryan to show the hardship that would be caused by the Applicant’s
removal. The Officer did not give much weight to the opinion of the
psychologist, in part because the letter was written after a single meeting
with Ryan and his mother approximately one month after the Applicant’s release
from detention. The Officer was also concerned that the psychologist’s
assessment seemed to be based primarily on the mother’s opinion, noting that Ryan’s
mother said he had not achieved some developmental milestones, but the
psychologist did not note any developmental delays.
[15]
According
to the Officer, Ryan’s problems were not a psychological crisis. The Officer
said that Ryan acted out because he did not get enough attention. She
considered submissions that Ryan had exhibited suicidal tendencies which had
been alleviated by the Applicant’s living with him and spending time with him.
The Officer also found that there was no indication that the Applicant’s ex-wife
had sought treatment for these suicidal concerns in the 18 months between their
onset and when the psychologist’s report was prepared. The Officer also found
that, while his mother indicated she had taken Ryan to their family doctor, the
hospital, and a counsellor to deal with his suicidal tendencies and behavioural
problems, she had not provided any documentation of these events. Ryan had
difficulties which were alleviated by the presence of his father in his life, but
the difficulties he would face if his father were removed were not uncommon for
children raised by a single parent. As such, denying the H&C exemption and
removing the applicant from Canada would not cause unusual hardship.
Risk in Sri Lanka
[16]
In
addition to establishment, family ties, and the best interests of the children,
the Officer also considered the risk that the Applicant would face if he were
returned to Sri
Lanka.
She found that the risk did not amount to unusual and undeserved or
disproportionate hardship that would allow for an H&C exemption. The Officer
noted that counsel, in support of the application, based his submissions on the
2009 UNHCR Eligibility Guidelines for Assessing the International Protection
Needs of Asylum-Seekers from Sri Lanka (2009 Guidelines). She also noted that,
since the local situation had significantly changed as a result of the defeat
of the LTTE by government forces, the UNHCR had published a new set of
guidelines (2010 Guidelines). Having advised counsel by fax that she would be
considering the 2010 guidelines in her Decision, the Officer noted that the
risk to the Applicant was different from that suggested by the 2009 Guidelines.
She noted that, unlike the 2009 Guidelines, the 2010 Guidelines no longer
called for Tamils not to be returned to Sri Lanka. She also
found that, after the Applicant was returned to Sri Lanka in 2002,
there was little to suggest that he faced difficulties while he was there. She also
found that, although Sri Lanka is a country which
still faces difficulties, any risk to the Applicant would not be more than
faced by other Sri Lankans. As such, the risk to the Applicant on being
returned to Sri
Lanka
did not constitute unusual and undeserved or disproportionate hardship and so
did not militate in favour of an H&C exemption.
[17]
Given
her assessment of the above factors, the Officer found that there was not
sufficient hardship to justify an H&C exemption.
ISSUES
[18]
The
Applicant raises the following issues:
a.
Whether
the Officer ignored the evidence going to the best interests of the child;
b.
Whether
the Officer’s determination of the risk the Applicant faced in Sri Lanka was made
without regard to the evidence;
c.
Whether
the Officer applied the wrong test for best interests of the child.
STATUTORY PROVISIONS
[19]
The
following provisions of the Act are applicable in these proceedings:
Application before entering
Canada
11. (1) A foreign national must, before
entering Canada, apply to an Officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the Officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
…
Obligation on Entry
20. (1) Every foreign national, other than
a foreign national referred to in section 19, who
seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold
the visa or other document required under the regulations and have come to
Canada in order to establish permanent residence; and
(b) to become a temporary resident, that they hold the visa or
other document required under the regulations and will leave Canada by the end of the
period authorized for their stay.
Status and Authorization to Enter
21. (1) A foreign national becomes a
permanent resident if an Officer is satisfied that the foreign national has
applied for that status, has met the obligations set out in paragraph 20(1)(a)
and subsection 20(2) and is not inadmissible.
…
Humanitarian and compassionate
Considerations — request of foreign national
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.
(1.3) In examining the request of a foreign national in Canada, the Minister may
not consider the factors that are taken into account in the determination of
whether a person is a Convention
refugee under section 96 or a person in need of protection under
subsection 97(1) but must consider elements related to the hardships that
affect the foreign national.
…
No return without prescribed
authorization
52. (1) If a removal order has been enforced, the foreign national shall not
return to Canada, unless authorized by an Officer or in other prescribed circumstances.
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Visa et documents
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
…
Obligation à
l’entrée au
Canada
20. (1)
L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est
tenu de prouver :
a) pour
devenir un résident permanent, qu’il détient les visa ou autres documents
réglementaires et vient s’y établir en permanence;
b) pour devenir un résident temporaire, qu’il détient les
visa ou autres documents requis par règlement et aura quitté le Canada à la
fin de la période de séjour autorisée.
Statut et
autorisation d’entrer
21. (1) Devient résident permanent l’étranger dont l’agent
constate qu’il a demandé ce statut, s’est déchargé des obligations prévues à
l’alinéa 20(1)a) et au paragraphe 20(2) et n’est pas interdit de
territoire.
…
Séjour pour motif
d’ordre humanitaire à la demande de l’étranger
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.
(1.3) Le ministre,
dans l’étude de la demande d’un étranger se trouvant au Canada, ne tient
compte d’aucun des facteurs servant à établir la qualité de réfugié — au sens
de la Convention — aux termes de l’article 96 ou de personne à protéger au
titre du paragraphe
97(1); il tient compte, toutefois, des difficultés
auxquelles l’étranger fait face.
…
Interdiction de retour
52. (1) L’exécution de la mesure de renvoi emporte
interdiction de revenir au Canada, sauf autorisation de l’agent ou dans les
autres cas prévus par règlement.
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STANDARD OF REVIEW
[20]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9,
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[21]
In Baker
v Canada (Minister of Citizenship and Immigration), [1999] SCJ No 39, the
Supreme Court of Canada held that, when reviewing an H&C decision,
“considerable deference should be accorded to immigration Officers exercising
the powers conferred by the legislation, given the fact-specific nature of the
inquiry, its role within the statutory scheme as an exception, the fact that
the decision-maker is the Minister, and the considerable discretion evidenced
by the statutory language” (paragraph 62). Justice Michael Phelan followed this
approach in Thandal v Canada (Minister of Citizenship and Immigration) 2008 FC 489, at
paragraph 7. The overarching standard of review on an H&C application is
reasonableness.
[22]
In Hawthorne v Canada (Minister of
Citizenship and Immigration) 2002 FCA 475, the Federal Court of Appeal held
at paragraph 6 that
the
officer’s task [in an H&C determination] is to determine, in the
circumstances of each case, the likely degree of hardship to the child caused
by the removal of the parent and to weigh this degree of hardship together with
other factors, including public policy considerations, that militate in favour
of or against the removal of the parent.
[23]
Further,
the Federal Court of Appeal held in Legault v Canada (Minister of
Citizenship and Immigration) 2002 FCA 125 at paragraph 12 that once an
officer has identified and defined the best interests of the child, it is up to
her to determine what weight it must be given in the circumstances. The degree
of hardship a child will face is a question of fact which, following Dunsmuir,
above, at paragraph 53, will attract a standard of reasonableness. The standard
of review on the first issue is reasonableness.
[24]
As
noted above, the standard of review generally applicable to an H&C
determination is reasonableness. The standard of review on the second issue is
reasonableness.
[25]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way,
the Court should intervene only if the Decision was unreasonable in the sense
that it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
[26]
In Sahota
v Canada (Minister of Citizenship
and Immigration)
2011 FC 739, Justice Phelan held at paragraph 7 that the application of the
proper legal test is reviewable on the standard of correctness. See also Garcia
v Canada (Minister of Citizenship and Immigration) 2010 FC 677 at paragraph
7 and Markis v Canada (Minister of
Citizenship and Immigration) 2008 FC 428 at paragraph 19. The standard of
review with respect to the third issue is correctness.
[27]
As
the Supreme Court of Canada held in Dunsmuir, above, at paragraph 50,
When
applying the correctness standard, a reviewing court will not show deference to
the decision maker’s reasoning process; it will rather undertake its own
analysis of the question. The analysis will bring the court to decide
whether it agrees with the determination of the decision maker; if not, the
court will substitute its own view and provide the correct answer. From the
outset, the court must ask whether the tribunal’s decision was correct.
ARGUMENTS
The Applicant
The Best Interests of the Children
[28]
The Applicant
says that the Officer was not sufficiently alert, alive, or sensitive to the
needs of his children. He quotes from the concurring opinion of Justice John Evans
in Hawthorne, above, at paragraph 32
in support of his contention that the Officer did not sufficiently consider
Ryan’s interests:
It was also common ground that an Officer cannot demonstrate
that she has been “alert, alive and sensitive” to the best interests of an
affected child simply by stating in the reasons for decision that she has taken
into account the interests of a child of an H&C applicant (Legault,
at paragraph 12). Rather, the interests of the child must be “well identified
and defined” (Legault, at paragraph 12) and “examined . . . with a great
deal of attention” (Legault, at paragraph 31). For, as the Supreme Court
has made clear, the best interests of the child are “an important factor” and
must be given “substantial weight” (Baker, at paragraph 75) in the
exercise of discretion under subsection 114(2).
[29]
When
the Officer inferred that removing the Applicant would not cause undue hardship
for Ryan, she ignored the findings in the psychologist’s report. The
psychologist’s report noted Ryan had nightmares and exhibited aggression and
anxiety, which were linked to the Applicant’s absence from Ryan’s life. In
drawing the inference she did, the Officer must have ignored the report.
[30]
The Applicant
also asserts that the Officer inferred Ryan’s psychological condition was not
genuine from the lack of treatment or counseling prescribed. She ignored the
letter in support of the application from Ryan’s mother, the Applicant’s
ex-wife. That letter states that no diagnosis of Ryan’s condition had been
made, nor had he been prescribed medication or counseling, though he was being
monitored at school and had been referred for counseling. The Applicant argues
that the inferences made by the Officer ignore this evidence.
[31]
The Applicant
also says that the Officer erroneously made an adverse inference of credibility
with regard to Ryan’s condition. This inference was drawn from the lack of
documentary support for the ex-wife’s statement in her letter that Ryan had
been taken to the hospital in relation to his psychological problems, and from
the lack of documents from his school confirming its concerns about Ryan’s
behavior.
[32]
The Officer
also erred in finding that the Applicant’s role as a father-figure in Ryan’s
life could be taken over by another relative or a community group. There was no
evidence before the Officer with respect to the availability of another
relative or a community group to take over this role so the finding was mere
speculation.
[33]
The Officer’s
finding that Ryan was not in psychological distress was also made in error
because the psychologist’s report conclusively determined that Ryan was
suffering from various psychological problems.
The Risk to the
Applicant in Sri
Lanka
[34]
The Applicant
also argues that the Officer erred in finding that he would not suffer unusual
or disproportionate hardship if removed to Sri Lanka because she ignored evidence that was
before her with respect to the risk the Applicant would face. First, the Officer
found that the Applicant would not face serious hardship if returned to Sri Lanka because he had not
faced difficulties when returned there in 2002, but she ignored the evidence
that there was a peace accord in place at that time. She also ignored evidence
that he had not left the place where he was staying because he was afraid.
[35]
Second,
the Officer erroneously found that the Applicant did not fit into a profile
group that would face hardships above and beyond those faced by ordinary Sri
Lankans. This finding ignored the 2010 Guidelines, which the Officer informed
counsel she would be considering. Specifically, the Applicant points to a
footnote in the report highlighting the difficulties faced by Tamils in Sri Lanka and the statement in
the 2010 Guidelines that young Tamil men could encounter scrutiny by police and
may sometimes be denied residence permits. The Applicant also points to a
report from the UK Border Agency which was not included in the Applicant’s
record for this application, but which was included in the Applicant’s record
for his application for judicial review of his PRRA.
[36]
Third,
the Applicant points to a statement in the 2010 Guidelines that, when
considering internal flight alternatives in North and East Sri Lanka, refugee
determination bodies should consider the lack of basic infrastructure. Refugee
determination bodies should also consider the fact that special economic zones
and high security zones prevent civilians from getting to areas used for
agriculture, fishing, cattle grazing, and other livelihood activities. Because
these risks are only faced by Tamils and not the majority of Sri Lankans, the Officer’s
finding that there would be no unusual and undeserved or disproportionate harm
to the Applicant from his removal to Sri Lanka was made in disregard of the evidence before
her.
The Respondent
[37]
The
Respondent argues that this Decision ought not be disturbed on judicial review
unless it was unreasonable because an H&C decision involves a discretionary
weighing of factors. In this case, the Officer weighed all the relevant factors
and examined all the evidence before her; hence, the Decision should stand.
An H&C Decision is
Discretionary and Exceptional
[38]
By
virtue of section 11 of the Act, a foreign national wishing to come to Canada must first apply for a
visa from outside of Canada. Under section 25 of
the Act, the Minister may grant an exemption from any applicable criteria or
obligations under the Act on H&C grounds. To qualify, the IP 5 guidelines require
that an applicant for an H&C exemption must demonstrate to the Minister
that compliance with the provisions of the Act would result in unusual and
undeserved or disproportionate hardship. The Respondent says Serda v Canada (Minister of
Citizenship and Immigration) 2006 FC 356 stands for the proposition that an H&C
exemption is necessarily discretionary and exceptional and is designed to give
the Minister the flexibility to allow for exceptions from the legislation in deserving
cases. Though there is always some hardship in leaving Canada, this hardship on its
own is not enough to justify an H&C exemption.
[39]
Taken
together, all of the above factors show that an officer’s decision in an H&C
case should be granted deference. Where all the relevant factors and evidence have
been considered, and an officer has come to a conclusion that is within the
acceptable range of outcomes, a reviewing court should not interfere. The Officer
assessed all the relevant factors and evidence, so the decision to deny the
Applicant’s request for an H&C exemption should not be interfered with by
the Court.
The Decision Was Reasonable.
[40]
The Officer
considered all the relevant factors and all the evidence before her in coming
to her Decision. The Officer considered the degree to which the Applicant had
become established in Canada. There was limited
evidence of establishment in Canada, and the affidavit in support of the application for leave
for judicial review of the Officer’s decision noted only the risk and best
interests of the children, so the Officer’s conclusion that the degree of
establishment is slight was reasonable.
[41]
The Officer
also considered the Applicant’s family ties in Canada and the best interests of his children. There
was little evidence adduced concerning the relationship between the Applicant
and his children. Therefore, it was reasonable for the Officer to give little
weight to this factor. Further, when considering the best interests of the
children, the Respondent notes that the Officer considered the psychologist’s
report with respect to Ryan’s psychological issues, the inconsistencies between
the psychologist’s report, the school report, and the ex-wife’s letter. Though
the Applicant may disagree with the conclusions of the Officer, they were based
on the evidence before her and the Court should not interfere. The best
interests of an affected child are a necessary factor in the H&C analysis
but are not necessarily determinative of an application. It was open to the Officer
to conclude that, though the H&C exemption might be beneficial to the
Applicant’s children, this did not outweigh the other factors.
Risk on Return to Sri Lanka
[42]
The Officer’s
conclusion regarding the risk to the Applicant on being returned to Sri Lanka was reasonable and based
on the evidence before her. She considered the 2010 Guidelines, which were the
most recent information available to her. She also considered the Applicant’s
prior experience after he was deported to Sri Lanka in 2002, noting that he did not suffer serious
harm at that time. This evidence was properly before the Officer and was taken
into account so her conclusions should not be disturbed.
The Applicant’s Conduct
[43]
It
was proper for the Officer to consider the past conduct of the Applicant, given
that this is a necessarily fact-specific and discretionary decision. There was
evidence before the Officer that the Applicant had misled immigration
authorities in the past and was willing to enter Canada unlawfully so it was reasonable for the Officer
to conclude that this militated against granting the H&C exemption.
[44]
The Decision
of the Officer was reasonable and so should not be disturbed because she
considered all the evidence before her and examined all the factors necessary.
The Applicant’s Reply
[45]
The
Applicant argues that the Officer erred in concluding that denying the H&C
application would not run contrary to the best interests of the Applicant’s
children. She should not have considered the fact that the psychologist’s
report was prepared for the purpose of the H&C application when she assessed
its relevance.
[46]
The Applicant
also notes that, although the Officer found that no further treatment was
recommended in the psychologist’s report, the psychologist did recommend that
the Applicant remain in Canada to provide stability
for Ryan. When the Officer found that no treatment was underway, she ignored
evidence that Ryan had in fact been signed up for counseling through his
school, though it had not yet begun.
[47]
The
Applicant also says that the Officer erred in finding there were inconsistencies
between the letter from the school and the letters from the ex-wife and the
psychologist. Because schools often use euphemisms in their letters home, the
letter from the school was not inconsistent with the other documentary evidence
provided. Rather than focusing on the fact that the letter from school did not
mention Ryan’s suicidal ideas, the Officer should have looked at the letter as
supporting the conclusion that it was in Ryan’s best interests to have the
Applicant in his life.
[48]
The
Applicant also takes issue with the Officer’s conclusions about the risk he
would face if returned to Sri Lanka. The Officer ignored the Applicant’s statement that he did
not leave his home because he was afraid the last time he was deported to Sri Lanka in 2002. The Officer
did not mention any of the possible hardships which the Applicant would face if
returned to Sri
Lanka. The
hardships are faced only by Tamils from the North, so it was incorrect for the
Officer to conclude they would be faced equally by all Sri Lankans.
Applicant’s Further
Memorandum
The Officer Applied the Incorrect
Test to the Best Interests of the Children
[49]
The
Applicant says that the Officer applied the wrong test when examining the best
interests of his children. She applied a “disproportionate hardship” test, when
she should have examined what “runs counter to the children’s best interests.”
[50]
The Officer
found that “I do not find sufficient evidence to establish that either child or
the applicant would likely face an unusual or disproportionate hardship if he
were required to leave Canada and return to Sri Lanka to apply for permanent residence from
abroad.” This statement demonstrates that the Officer applied the
disproportionate hardship test in examining the best interests of the children.
The Applicant relies on Mangru v Canada (Minister of
Citizenship and Immigration) 2011 FC 779.
[51]
The Applicant
also relies on Sahota, above, at paragraph 8, in which Justice Phelan
wrote that
The Officer’s analysis of the
“best interests of the child” is legally flawed. The Officer distorted the
analysis and applied the wrong legal test by imposing the burden of showing
“disproportionate hardship” rather than the “best interests” test mandated by Hawthorne
v Canada (Minister of Citizenship and Immigration), 2002 FCA 475.
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.
[52]
In
the present case, the Officer unreasonably blended the disproportionate
hardship analysis with the best interests analysis.
The Officer Ignored Evidence Related to
the Hardship Faced by the Applicant in Sri Lanka
[53]
The
Applicant further argues that, because she did not mention specific aspects of
the UNHCR guidelines that were related to Sri Lanka, it can be inferred that the Officer ignored
this important evidence. The Applicant relies on Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No. 1425, at paragraphs 15-16.
[54]
The
Applicant also relies on Sinnammah v Canada (Minister of
Citizenship and Immigration) 2010 FC 1054, where it was held that an
immigration officer erroneously failed to consider evidence that Tamils faced
unusual harassment in Sri Lanka.
The Respondent’s Further Memorandum
The Officer Considered the Proper Test
for the Best Interest of the Children
[55]
According
to Pierre v Canada (Minister of
Citizenship and Immigration) 2010 FC 825, simply using the language of
hardship does not constitute a reviewable error. What is more important is that
the Officer was alert, alive and sensitive to the interests of the Applicant’s
children. Though the Officer in this case used the language of hardship when
analyzing the interests of the Applicant’s children, because she was
sufficiently alert, alive, and sensitive to their best interests, her Decision
was reasonable and should stand.
Hardship Faced by the
Applicant
[56]
When
the Applicant argues that the Officer ignored evidence of the hardship he would
face if returned to Sri
Lanka, the
Respondent notes that Sinnammah, above, is distinguishable on its facts.
The present case concerns a 37-year-old male Tamil, while Sinnamah was a
determination regarding a 68-year-old Tamil widow. Further, the Sinnamah
decision was made in 2009, while the decision under review in this case was made
in 2010. As the 2010 Guidelines note, the situation in Sri Lanka changed significantly
between the issue of the 2009 Guidelines and the 2010 Guidelines. The evidence
before the Officer supported her conclusion that the Applicant would not face
undue hardship if returned. Since she examined the evidence before her and came
to a reasonable conclusion, the Decision should stand.
ANALYSIS
[57]
The
Respondent is correct to point out that the interests of children are not
conclusive in an H&C assessment and that it was up to the Officer to
determine what weight to give the interests of the Applicant’s children. See Legault,
above, at paragraphs 12-14.
[58]
In
addition, the Federal Court of Appeal has said that “an applicant is not
entitled to an affirmative result on an H&C application simply because the
best interests of a child favor that result.” See Kisana v Canada (Minister of
Citizenship and Immigration) 2009 FCA 189 at paragraph 24.
[59]
On
the other hand, the jurisprudence from this Court and the Federal Court of
Appeal is clear that a “best interests” analysis is a separate consideration
and does not require an applicant to establish unusual, undeserved or
disproportionate hardship in relation to the best interests of any affected
child.
[60]
In Mangru
v Canada (Minister of
Citizenship and Immigration), 2011 FC 779, [2011] FCJ No 978 (QL) the
Federal Court considered this issue and made the following finding:
23 The officer found
that while the children would experience hardship in starting a new life in Guyana, this did not rise to the level of unusual and undeserved
or disproportionate hardship.
24 However,
the Federal Court of Appeal and this Court have held that it is an error in law
to incorporate such a threshold in the analysis of the best interests of the
children. Mr. Justice Robert Barnes held in Arulraj v Canada
(Minister of Citizenship and Immigration), 2006 FC 529 at paragraph 14 that:
There is simply no legal basis for incorporating a burden of
irreparable harm into the consideration of the best interests of the children.
There is nothing in the applicable Guidelines (Inland Processing 5, H & C
Applications (IP5 Guidelines)) to support such an approach, at least insofar as
the interests of children are to be taken into account. The similar terms found
in the IP5 Guidelines of “unusual”, “undeserved” or “disproportionate” are used
in the context of considering an applicant’s H & C interests in staying in Canada and not having to apply for
landing from abroad. It is an error to incorporate such threshold standards
into the exercise of that aspect of the H & C discretion which requires
that the interests of the children be weighed. This point is made in Hawthorne v. Canada
(Minister of Citizenship & Immigration) (2002), [2003] 2 F.C. 555,
2002 FCA 475 (Fed. C.A.)
at para. 9 where Justice Robert Décary said “that the concept of ‘undeserved
hardship’ is ill-suited when assessing the hardship on innocent children.
Children will rarely, if ever, be deserving of any hardship”.
25 Further,
it is clear that the officer not only described the test for analyzing the best
interests of the children incorrectly, but, in fact, assessed their interests
as such.
…
27 While
the respondent is correct to note that the best interests of the children is
one factor to be weighed against the others in assessing H&C
considerations, this did not occur in the decision before me. As the Federal
Court of Appeal held in Hawthorne v Canada (Minister of Citizenship and
Immigration), 2002 FCA 475, in all but
rare cases, the best interests of the children favour non-removal. This factor
is then weighed against the other factors such as public policy considerations.
The officer’s application of the unusual, undeserved of disproportionate
hardship threshold permeates her analysis of the best interests of the children
and results in an inappropriate conclusion implying that the best interests of
the children favour the removal of the applicants. This conclusion led to an
omission of any weighing of the interests of the children against the other factors
favouring removal.
[61]
In Sahota,
above, the Federal Court came to the same conclusion at paragraph 8:
The
Officer’s analysis of the “best interests of the child” is legally flawed. The
Officer distorted the analysis and applied the wrong legal test by imposing the
burden of showing “disproportionate hardship” rather than the “best interests”
test mandated by Hawthorne v
Canada (Minister of Citizenship and Immigration), 2002 FCA 475.
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.
[62]
In
reading the Decision, it seems to me that the Officer in this case has done
precisely what the Federal Court of Appeal and this Court have said should not
be done when assessing the best interests of affected children. On page 6 of
the Decision the Officer says that “there is little before me to suggest that
removing the applicant from the current role he plays in the children’s lives
would cause them an unusual and undeserved or disproportionate hardship.” Again,
at the conclusion of the best interests portion of the Officer’s analysis, he
says “I do not find sufficient evidence to establish that either child or the
Applicant would likely face an unusual and undeserved or disproportionate
hardship if he were required to leave Canada to Sri Lanka to apply for permanent residence from abroad.”
[63]
By
requiring the Applicant to establish unusual and undeserved or disproportionate
hardship in relation to the affected children, the Officer has misconceived the
nature of the weighing process that was required of him in this case and has
placed too high a burden on the Applicant. As Justice Barnes said in Arulraj
v Canada (Minister of
Citizenship and Immigration) 2006 FC 529 at paragraph 14, “it is an error to
incorporate such threshold standards into the exercise of that aspect of the H&C
discretion which requires that the interests of the children be weighed.”
[64]
The
end result is that the Officer either applied the wrong legal test by imposing
the burden of showing “disproportionate hardship” rather than the “best
interests” test of mandated by Hawthorne, above, or unreasonably
fettered her discretion by requiring that unusual and undeserved or
disproportionate hardship related to the child must be established before the
best interests of the affected children can be weighed against the other
factors at play in this case. Either way, I think a reviewable error occurs.
[65]
I
also agree with the Applicant that the Officer commits reviewable errors which
reveal she was not alert, alive and sensitive to the best interests of the
children. There are speculative findings, for example, that Ryan “could
reasonably be viewed as a boy acting due to a lack of attention,” or that some other
male could substitute as a father in Ryan’s life, that are not supported by the
evidence and which ignore the available psychological report, as well the
evidence of the Applicant’s former spouse. There is, however, no need for me to
go into further issues at this point. The Officer acknowledged that the best
interests of the children was the strongest aspect of the application. This
being the case, the mishandling of such an important matter in the ways I have
already described means that reviewable errors have occurred and the whole
matter requires reconsideration.
[66]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is allowed. The decision is quashed and the matter is returned for
reconsideration by a different officer.
2.
There
is no question for certification.
“James
Russell”