Date:
20130729
Docket:
IMM-6506-12
Citation:
2013 FC 824
Ottawa, Ontario,
July 29, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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SULTANA NARNIGER BEGUM MOHAMMAD
RUSLAAN HOSSAIN
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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
JUDGMENT AND JUDGMENT
[1]
This is an
application brought pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA) seeking judicial review of
a decision of an immigration officer (the Officer) dated June 6, 2012. The
Officer refused the Applicants’ application for permanent residence which was
based on humanitarian and compassionate (H&C) grounds pursuant to
subsection 25(1) of the IRPA.
Background
[2]
The
Applicants are citizens of Bangladesh. The principal Applicant is 56 years old,
the minor Applicant is her 15 year old son. They entered Canada in 1999 when the minor Applicant was one year old and have remained here since that
time.
[3]
The
Applicants claimed refugee protection in the year of their arrival. In her
Personal Information Form (PIF) the principal Applicant claimed to fear
domestic violence which she had been subjected to by her husband in Bangladesh. The Convention Refugee Determination Division (CRDD) heard the Applicants’
claim and denied it in February of 2000.
[4]
In
December of 2004, the Applicants requested that their application for permanent
residence be considered on H&C grounds pursuant to subsection 25(1) of the
IRPA. The basis of the request was the principal Applicant’s fear of violence
at the hands of her husband should she return to Bangladesh; their
establishment in Canada; the hardship the son would suffer if they were forced
to return to Bangladesh; and, the best interests of the minor Applicant. By
decision dated June 6, 2012, the Officer denied the request. It is this decision
which is the subject of the present judicial review (the Decision).
Decision Under
Review
[5]
The
Officer found that the factors to be considered in the Applicants’ H&C
application were hardship relating to the risk of harm upon return to Bangladesh; family or personal relationships that, if severed, would create hardship; the best
interests of the child; degree of establishment in Canada; and, ties or
residency in any other country.
[6]
The
Officer reviewed the Applicants’ 1999 refugee claim as well as their
Pre-Removal Risk Assessment (PRRA) application which was denied in July 2004.
The Officer noted that the CRDD did not find the principal Applicant’s claim as
to her abusive spouse to be credible because her complaints to the police
lacked detail and were made several years apart. She was also not credible because
she is well educated and would have known of women’s help groups or of
legislation enacted for the purposes of protecting women. The Officer noted
that the principal Applicant’s credibility was also seriously harmed because
the CRDD found she could have found assistance in Bangladesh, but chose not to
seek such help. Furthermore, while she had the opportunity to stay away from
her husband, she chose not to and this was indicative of her lack of subjective
fear. The Officer noted that the principal Applicant cited the same risk to
support the H&C application.
[7]
The
Officer reviewed the evidence submitted by the principal Applicant in support
of her fear of domestic violence but attributed little weight to this and found
that the Applicants had not addressed the credibility issues raised. The
Officer accepted the country condition information submitted by the Applicant
with respect to the treatment of women in Bangladesh and noted that it
established that much of the violence against women is predicated on the wealth
or poverty of the women involved. The Officer noted that the principal Applicant
is well educated and described herself in her PIF as “born and brought up in a
respectable family”. Therefore, it was reasonable to presume that the
Applicant is from a wealthy family in Bangladesh and not similarly situated
with the impoverished and vulnerable women depicted in much of her supporting
documentation.
[8]
The
Officer quoted portions of the country conditions information and while noting areas
of concern, the documentation indicated that Bangladesh was making “serious
efforts” to support women’s rights. Ultimately, the Officer concluded that the
evidence did not support that the Applicants would face risk or harm from the
principal Applicant’s husband or, if needed, that redress from such risk or
harm could not be obtained. The Applicants did not face hardship relating to
risk or harm that would constitute unusual, undeserved or disproportionate
hardship if they were required to return to Bangladesh.
[9]
As
to establishment in Canada, the Officer noted that the principal Applicant was
working in Canada without a valid work permit. As her reported income for 2008
to 2011 was between $16,200 and $18,600, it was reasonable to assume that her
income was below the poverty line and, as such, was not necessarily indicative
of establishment in Canada.
[10]
The
Officer also considered the Applicants’ community activities, family and
friends in Canada. The Officer noted that the principal Applicant had not identified
her cousin in Canada or provided a letter of support from her cousin. Although
the Applicants had provided letters in support attesting to the Applicants’
good character in support for their permanent resident claims, the Officer
noted that the citizenship and immigration status of the authors of those
letters was uncertain. The Officer stated that if the authors of those letters
were in the same immigration position as the Applicants then this would impact
the positive nature of their support.
[11]
The
Officer concluded that the evidence did not support a finding that the
Applicants have become established in Canada to the extent that severing their
ties here would amount to unusual, undeserved or disproportionate hardship.
[12]
As
to the best interests of the child, the Officer acknowledged the minor
Applicant’s involvement at school. The Officer noted that the minor Applicant
does not speak Bengali but found “it is reasonable to assume that he has some
grasp of the language, given his and his mother’s involvement in the Bengali
community in Canada”. The Officer noted the unidentified cousin of the minor
Applicant’s mother and the letters of support provided by his close friends and
others in the community. The Officer stated that there was no information to
indicate that the minor Applicant has not maintained contact with his father or
elder brother in Bangladesh, to support a finding that they pose a risk to him,
or, that his extended family would be unable to support him during his
re-integration.
[13]
The
Officer referred to a report on country conditions and concluded that the
principal Applicant’s circumstances did not suggest that her son would be unable
to access schools and healthcare, among other necessities, if he were to return
to Bangladesh.
[14]
The
Officer concluded by noting that the H&C process is not intended to eliminate
all hardship. Rather, it is designed to provide relief from unusual,
undeserved or disproportionate hardship. The Applicants did not convince the
Officer that their situation merits an exemption on the H&C grounds.
Issues
[15]
The
Applicants submit that there are five issues in the present application which I
have summarized as follows:
1. What is the standard of
review?
2. Did the Officer err in
the assessment of the best interests of the child?
3. Did
the Officer err in the assessment of the hardship that the Applicants would
face upon their removal to Bangladesh?
4. Did the Officer err in
the assessment of the Applicant’s establishment?
5. Did
the Officer breach the principles of fairness by relying on extrinsic evidence
without affording the Applicants an opportunity to respond?
[16]
Aside
from the standard of review issue, which requires consideration in any judicial
review application, I believe the issues may be more simply stated as follows:
1. Did the Officer breach
the principles of procedural fairness?
2. Was the Officer’s
decision reasonable?
Standard of
Review
[17]
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 (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir] at para 57).
[18]
The standard
of review for
H&C decisions has been determined to be reasonableness (Rodriguez
Zambrano v Canada (Minister of Citizenship and Immigration),
2008 FC 481 at para 31; Rehmat Din v Canada (Citizenship and
Immigration), 2013 FC 356 at para 5; Kisana v Canada (Minister of Citizenship and Immigration),
2009 FCA 189 at para 18). Reasonableness is concerned with the
justification, transparency and intelligibility of the decision-making process,
but also with whether the decision falls within a range of possible, acceptable
outcomes defensible in respect of the facts and law (Dunsmuir, above, at
para 47).
[19]
The appropriate standard of
review for issues of procedural fairness is correctness (Khosa v Canada (Minister of
Citizenship and Immigration), 2009
SCC 12, [2009] 1 S.C.R. 339 [Khosa] at para 43; Newfoundland and Labrador Nurses'
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 22; and
Liu v Canada (Minister of Citizenship and Immigration), 2008 FC 836 [Liu]
at para 11). No deference is owed to decision makers on these issues (Dunsmuir,
above, at para 50). The Court must determine whether the process
followed by the decision-maker satisfied the level of fairness required in all
of the circumstances. The Court may withhold relief if the error is purely
technical and occasioned no substantial wrong (Khosa, above at para 43;
Pla v Canada (Minister of Citizenship and Immigration), 2012 FC 560
at para 16; Hidalgo v Canada (Minister of Citizenship and Immigration),
2011 FC 1334 at para 11)),
[20]
Prior
case law has held that an officer’s reliance on extrinsic evidence obtained on
the internet without disclosing it to the applicant and providing the applicant
with an opportunity to respond is a breach of procedural fairness and subject
to the correctness standard of review (Arteaga v Canada (Minister of
Citizenship and Immigration), 2013 FC 778 [Arteaga] at para 19; Kambo
v Canada (Citizenship and Immigration), 2012 FC 872 at para 24).
Positions of the
Parties
[21]
The
Applicants submit that the Officer erred in assessing the best interests of the
child by ignoring evidence. The record contains a letter from the minor
Applicant to the Officer that states, “I don’t know any of my family in Bangladesh.” Yet, in the Decision, the Officer states that there was no information “to
indicate that the minor applicant had not maintained contact” with his family
in Bangladesh and that his father, brother and grandparents, aunts and uncles
in Bangladesh must be acknowledged as forming an integral part of his
upbringing. Further, the Officer erred by failing to consider the impact that
removal would have on the child and only considered whether the child would
have basic amenities in Bangladesh, not what is in his best interests.
[22]
The
Officer also erred in assessing the hardship that the Applicants would face
upon their removal to Bangladesh. The Officer found that the principal Applicant
was from a wealthy family in Bangladesh and, therefore, is not amongst the impoverished
and vulnerable woman depicted as at risk in counsel’s supporting documentation.
Yet, conversely, the Officer finds that the principal Applicant is an impoverished
woman in Canada. The Applicants submit that it is an error to find that their
family would support them if they were in Bangladesh, while observing that it
does not support them in Canada. Further, there was no evidence to support the
Officer’s assumption that the principal Applicant came from a wealthy family
and that she would regain this wealth if she returned to Bangladesh.
[23]
The
Applicants also argue that the Officer erred in considering their familial
situation from which they came 13 years ago. The Officer should have considered
the Applicant’s current situation.
[24]
The
Applicants submit that the Officer also erred in assessing their establishment
in Canada. The Officer erred in doubting the status of the individuals who
wrote letters of support on the Applicants’ behalf. There was no reason to
question whether the authors of the letters were Canadian permanent residents
or Canadian citizens. Furthermore, their status should have no impact on the
weight given to the letters. The Applicants also argue that it was
unreasonable for the Officer to find that, because the Applicants have an
income that is below the poverty line, they are not established in Canada. The Officer should have also considered as positive factors that the principal Applicant
is a hard working single mother who has never received social assistance and
pays her taxes yearly.
[25]
Regarding
procedural fairness, the Applicants argue that the Officer considered and
relied on extrinsic evidence without providing them with notice or an
opportunity to respond to that evidence. In particular, the Officer considered
documentation concerning the principal Applicant’s university, her past
employer, prior country conditions, and the filing of first information
reports, none of which had been disclosed to the Applicants. The Officer
therefore breached the principles of natural justice and procedural fairness.
[26]
The
Respondent submits that the Applicants are merely asking this Court to reweigh
the evidence. The Officer provided cogent and comprehensive reasons for the Decision
and made no reviewable errors.
[27]
With
respect to the best interests of the child analysis, the Respondent submits
that the Officer acknowledged the significant documentation submitted in
support of the Applicants’ application and specifically referred to the minor
Applicant’s submissions. Further, the Officer found that the child would have
family in Bangladesh who would support his reintegration and there was no
evidence to conclude that support would not be forthcoming. Further, while the
minor Applicant’s letter says that he does not know anyone in his family, this
does not mean he does not have contact with them via telephone or
correspondence. The Officer’s Decision was reasonable in light of the fact
that there was minimal evidence on the impact of the minor Applicant should he
return to Bangladesh. The best interests of the child do not outweigh all
other factors considered in an H&C application and the weight assigned to
each factors is not to be re-examined by the Court.
[28]
The
Respondent submits that the Officer’s assessment of hardship was also
reasonable. The Officer found that the Applicants would not face unusual,
undeserved, or disproportionate hardship if they were removed to Bangladesh, particularly because they have family in Bangladesh who could assist them to
reintegrate. The Officer also properly considered the Applicants’ situation in Bangladesh prior to coming to Canada, as well as the Applicants’ situation in Canada. The Respondent submits that the Officer did not make inconsistent findings.
[29]
The
Officer also made no error with respect to the findings related to the Applicants’
establishment in Canada. It was open to the Officer to afford little weight to
the letters submitted in support of the Applicants’ H&C application, the
letters also did not demonstrate that the Applicants’ removal would cause
unusual, disproportionate or undeserved harm. It is not enough to establish
that the Applicant is a welcome addition to Canadian society. The Officer
weighed the positive and negative factors concerning establishment in Canada and reasonably found that they did not rise to the level of unusual, undeserved or
disproportionate hardship.
[30]
Regarding
the alleged breach of procedural fairness, the Respondent argues that none of
the evidence referred to by the Applicants was extrinsic evidence.
Analysis
Procedural
Fairness
[31]
The
Applicants argue that the Officer’s reliance on extrinsic evidence was a breach
of procedural fairness. Specifically, evidence regarding the principal
Applicant’s university, past employer, country conditions in Bangladesh in or around 2000, and, the filing of First Information Reports in Bangladesh. The Applicant submits that the Officer relied on this information in making
the hardship assessment.
[32]
In
Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20 at
para 17, Justice Mosley
referred to Muliadi v Canada (Minister of Employment and Immigration), [1986]
2 FC 205 (FCA) and Haghighi v Canada (Minister of Citizenship and
Immigration), [2000] 4 FC 407 (FCA) and stated, with respect to reliance on
extrinsic evidence, “(t)he question is whether meaningful facts essential or
potentially crucial to the decision had been used to support a decision without
providing an opportunity to the affected party to respond to or comment upon
these facts.”
[33]
In
the present case, the evidence that the Applicant argues was extrinsic is
referred in the risk and adverse country conditions section of the Decision.
This section primarily addresses hardship related to the principal Applicant’s
claim that if she returned to Bangladesh she would face risk or harm arising
from domestic violence. In addressing this issue, the Officer acknowledged the
information provided by the principal Applicant regarding the treatment of
women in Bangladesh, but noted that much of the violence against women is
largely predicted by the wealth or poverty of the women involved.
[34]
The
Officer then noted that the principal Applicant’s application indicated that
she attended the University of Rajshahi from 1974 to 1980 and from 1986 to 1987
obtaining a Bachelor of Arts degree and a Master’s degree in geography and
education. The Officer included extracts from the University’s website and also
remarked, based on another website, on the University’s ranking within the top
one hundred universities of India, Pakistan, Sri Lanka and Bangladesh.
[35]
The
Officer continues:
The PA received a university education and two
Master’s degrees at a point in the history of Bangladesh when the country was
facing considerate turmoil and poverty from the famine beginning in 1974 and
flooding in 1998 according to an April 2000 assessment concluded by the United
Kingdom Home Office. The PA was gainfully employed as a teacher at the Oxford International School in Dhaka, Oxford International School (OIS) is an English medium co-education School, which follows “the academic programme of the University of Cambridge” in the United Kingdom. The PA’s PIF, which she signed in March 1999, indicates
that the PA was residing in Dhaka prior to coming to Canada, and was “born
and brought up in a respectable family” and she referred to the plight of
women in Bangladesh as wishing to use her education to “help this distressed
part of society”. I note that she does not allude to herself in these
particular comments. The information before me supports that it is reasonable
to presume that the PA is from a wealthy family in Bangladesh and documentation
has not been provided by the PA and her counsel to dispel this assumption. The
PA indicates that her parents and siblings continue to reside in Bangladesh. As a result I do not find that the PA is similarly situated to the
impoverishment and vulnerable women depicted in much of the applicant and her
counsel’s supporting documentation.
[36]
As
stated by Justice Gagné
in Arteaga, above, the general rule to be distilled from the
jurisprudence considering the use of information unilaterally obtained from the
internet by a decision-maker is that when the information that is relied on
contains novel and significant information that an applicant could not
reasonably anticipate, then fairness dictates that the applicant should have
the opportunity to challenge its relevance or validity (para 24).
[37]
In
this case, the Officer obtained the information about the principal Applicant’s
university, its ranking and the school where she taught from websites. I do
not agree with the Respondent that such materials are not extrinsic evidence merely
because they are publicly available on the internet. Extrinsic evidence, in
the context of an H&C decision, is evidence that does not form a part of
the submissions of the Applicant nor of the immigration record of the
Respondent concerning the Applicant and the disclosed tribunal record which
includes online national documentation packages (NDP), addressed further below.
[38]
The
internet provides instant access to a vast amount of information on any given
subject, some of this information is accurate, and some of it is not. In my
view, even if the information were not to be considered as extrinsic because it
can be found on the internet, then there would also have to be some obvious
connection to the information, and the use intended to be made of it by an
officer, such that an applicant could reasonably expect that such information
would be accessed and utilized in the context of the particular decision being
made by the officer. That is not the situation in this case.
[39]
As
to the Officer’s reference to the 2000 U.K. Home Office assessment, Citizenship
and Immigration Canada describes the information it holds in relation to
country conditions on its website. NDPs are stated to be a compilation of publicly
available documents that report on country conditions regularly reviewed and
updated as country conditions change. The website also states that it is the
responsibility of those participating in the refugee protection proceedings to
review the documents contained in the NDP for their home country as the Refugee
Protection Division (RPD) may consider them when deciding a claim. Further,
that the RPD may decide to use other documents as well, such as reports
produced by the IRB Research Directorate, media articles etc, and that copies
on any additional documents which the RDP finds useful will be sent to the
parties before the hearing.
[40]
Thus,
country conditions reports found within the NDPs are publicly available and an
applicant is aware that an officer would refer to such reports for decision
making purposes. However, in this case, it is not as clear that it was
reasonable to expect the Applicants to know that the Officer would conduct
research on country conditions in Bangladesh which prevailed twelve years earlier
or the intended purpose for which that information was obtained. In any event,
it was extrinsic evidence as it was not included in the current NDP and was not
disclosed to the Applicants. Where an immigration officer relies on a document
from a non-standard site, i.e. a site not regularly cited in the NDP, there is
a duty to disclose novel and significant evidence which affects the decision (Radji v Canada (Minister of Citizenship and Immigration), 2007 FC 835 at para 15).
[41]
As
I have found that the information at issue was extrinsic, the question then becomes,
did the Officer rely upon it to reach the Decision without providing the
Applicant with an opportunity to respond?
[42]
In
this situation the Officer interpreted the country condition information submitted
by the Applicants as being such that violence against women in Bangladesh is largely predicted by the wealth or poverty of the women involved, wealthy
women apparently being less at risk. Evidence of the principal Applicant’s wealth
would support the Officer’s determination that the Applicant was largely not at
risk of harm in this regard.
[43]
The
Officer reviewed the website of the university that the principal Applicant
attended, another website pertaining to the university’s ranking, Bangladesh
country conditions prevailing at the time of her university attendance and the
website of the school where she taught in Bangladesh concluded that the
Applicant was not at a risk of hardship arising from domestic violence as she
must be from a wealthy family. The basis of this conclusion was that the
Applicant attended a high ranking university and could afford to do so during a
time when Bangladesh was suffering from the effects of famine then flooding. The
Officer clearly relied on this extrinsic evidence because in referring to it
and the extracts from the principal Applicant’s PIF the Officer stated “The
information before me supports that it is reasonable to presume that the
Applicant is from a wealthy family in Bangladesh and documentation has not been
provided by the PA and her counsel to dispel this assumption”.
[44]
Not
only did the Officer rely on extrinsic evidence to reach a conclusion as to the
principal Applicant’s family’s wealth, the Officer then went on to state that the
Applicant did not provide evidence to dispel that assumption. In my view, it
was a breach of procedural fairness to obtain and rely on extrinsic evidence
for the purpose of supporting an inference that had not been put to the
Applicants and then to fault them for not having responded to that inference.
It was also unreasonable to expect the principal Applicant to anticipate that
the inferred wealth of her family twelve years ago would form the basis of the
Officer’s finding that she would personally be unlikely to be at a risk of
hardship due to domestic violence if she returned to Bangladesh. This is
particularly so as the Officer also noted in the establishment portion of the
Decision that the Applicant’s income tax returns for 2008-2011 were between
$16,200 and $18,600 and that “as a worker without other discernable means of
support it is reasonable to presume that the PA’s yearly income is below
Canadian poverty figures and as such is not necessarily indicative of
establishment in Canada”.
[45]
It
should also be noted that the Officer’s interpretation of the country
conditions submitted by the Applicant is suspect. For example, the 2005 article
entitled “Violence against women: a statistical overview, challenges and gaps
in data collection and methodology and approaches form overcoming them,”
prepared by the Bangladesh National Women Lawyers Association states that, “Women
of all economic strata are vulnerable to maltreatment and abuse by husbands,
in-laws and other family members.” Furthermore, the August 1, 2006, Responses
to Information Requests BGD101506.E states, “Domestic abuse reportedly affects
women in Bangladesh from different income groups.” The Officer also quotes the
US Department of State Country Reports on Human Rights Practices for Bangladesh in 2010 which states that, “There are no adequate support groups for victims of
domestic violence.”
[46]
The
Officer stated that information and evidence presented by the Applicants as
well as publicly available documentation did not support a finding that the
Applicants faced a direct personal hardship relating to risk or harm from the
principal Applicant’s husband. The Officer should have put the extrinsic
evidence used to reach an inference that may have been material to the outcome
of the H&C application, to the Applicants for their response. Therefore, I
find that there was a breach of procedural fairness and for that reason the
Decision must be quashed.
[47]
Given
that the issue of procedural fairness is depositive of this matter, it is unnecessary
for me to proceed further. However, because I am of the view that the Officer’s
determination that the minor Applicant would not suffer any unusual,
underserved or disproportionate hardship if he were to be removed to Bangladesh was unreasonable, I will also briefly address that issue.
Best
Interests of the Child
[48]
Justice
Décary of the Federal Court of Appeal wrote 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” (Hawthorne v Canada (Minister of
Citizenship & Immigration),
2002 FCA 475 at para 9).
[49]
In
Baker v Canada (Minister of Citizenship & Immigration),
[1999] 2 S.C.R. 817 at para 75, the Supreme Court of Canada stated the
following about the analysis of the best interests of the child:
[75] […] for the exercise of the discretion to
fall within the standard of reasonableness, 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. That is not to say that children's
best interests must always outweigh other considerations, or that there will
not be other reasons for denying an H & C claim even when children's
interests are given this consideration. However, where the interests of
children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision
will be unreasonable.
[50]
In
Kolosovs v Canada
(Minister of Citizenship & Immigration), 2008 FC 165 at paras 9-12, Justice
Campbell expanded on the Supreme Court’s terminology of “alert, alive, and sensitive”:
[9] The word alert implies awareness. When an
H&C application indicates that a child that will be directly affected by
the decision, a visa officer must demonstrate an awareness of the child's best
interests by noting the ways in which those interests are implicated […]
[…]
[11] […] in order to be alive to a child's best
interests, it is necessary for a visa officer to demonstrate 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.
[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.
[51]
The
Applicants submit that the Officer erred by ignoring the evidence that was on
the record. I agree with the Applicants and find the Officer minimized the best
interests of the child.
[52]
I
acknowledge that decision-makers are presumed to have considered all of the
evidence before them. Therefore, they are not required to make specific
reference to every piece of evidence in the record. Failure to analyse
evidence that contradicts a tribunal’s decision will be found to be
unreasonable only when the evidence that is overlooked is critical, contradicts
the tribunal’s conclusion and ultimately the reviewing Court finds that the
omission indicates the tribunal’s unwillingness to consider the materials
before it (Herrera Andrade v Canada (Minister of
Citizenship and Immigration), 2012 FC 1490 at para 9). However,
“the more important the evidence that is not mentioned specifically and
analyzed in the agency's reasons, the more willing a court may be to infer from
the silence that the agency made an erroneous finding of fact “without regard
to the evidence”” (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration) (1998), 157 FTR 35, [1998] FCJ No1425 (QL) (TD) at para 17).
[53]
The
certified tribunal record contains a letter from the minor Applicant which was
before the Officer. It states, in part:
[…] I want to stay in Canada because I understand English very well and I don’t know how to speak or write in the language
of Bangladesh. I want to see my friends and family all the time and I want a
good future in Canada. I don’t know anyone of my family in Bangladesh.
[54]
The
Officer’s finding that the Applicants would not face unusual, undeserved or
disproportionate hardship upon their return to Bangladesh largely rests on the finding
that the Applicants would receive support from their family in Bangladesh. It appears that this latter finding was made without regard to the evidence
that the minor Applicant presented to the Officer.
[55]
At
page 10-11 of the Decision, the Officer wrote:
I note that submissions also indicate that the PA’s
son speaks both English and French, and does not speak Bengali as his mother
does; although it is reasonable to assume that he has some grasp of the language,
given his mother’s involvement in the Bengali community in Canada.
[…]
Information has not been provided to indicate that the
child has not maintained contact with his father or elder brother in Bangladesh
or to support that they pose any risk whatsoever to the child. I further note
that documentation has not been provided to support that the PA’s family in Bangladesh, including the child’s grand-parents, aunts, uncles, and their families in Bangladesh would not be available for support in his re-integration to Bangladesh society.
[56]
And
at page 15:
The child’s father, only brother, grand parents, and
all his aunts and uncles reside in Bangladesh and they must be acknowledged as
also forming an integral part of the child’s upbringing.
[57]
The
Officer states that no evidence was provided showing that the minor Applicant
did not maintain contact with his father or elder brother in Bangladesh. Yet, the minor Applicant wrote to the Officer to say, “I don’t know anyone of
my family in Bangladesh.” While in the best interest of the child analysis the
Officer states that the minor Applicant’s father and brother reside in Bangladesh and must be considered to form an integral part of his upbringing, the minor Applicant
has not been in Bangladesh since he was one year old. In fact, in the risk and
adverse country conditions of the Decision, the Officer stated that the
principal Applicant had not provided information to support that her husband or
her elder son continue to reside in Bangladesh.
[58]
Furthermore,
the Officer assumed that the child has some grasp of the Bengali language, yet
the child indicated he does not speak or write that language.
[59]
From
this it can be concluded that the Officer failed to give due consideration to the
minor Applicant’s letter and misapprehended the involvement and support
available from his extended family in Bangladesh.
[60]
The
Respondent distinguishes Kolosovs, above, from the present application.
I agree that the facts can distinguish that case from the facts underlying this
application. However, the general principle from Kolosovs survives. The
Court must ask whether the Officer was “alert, alive, and sensitive” to the
best interests of the child. I am not convinced that the Officer was in this
case.
[61]
Other
than stating that the minor Applicant is 15 years old, is in grade nine, on the
honour roll of his school and acknowledging letters of support from the child’s
close friends and others in the community, the Officer does not state the ways
in which the best interests of the minor Applicant would be impacted by a
return to Bangladesh.
[62]
Further,
the Officer states, “As previously indicated, the circumstances of the PA do
not suggest that her child would be of such a profile in Bangladesh that he would not be able to access schools and healthcare, among other necessities if he
were to return to Bangladesh.” This presumably is a reference to the Officer’s
assumption, which was based in part on the extrinsic evidence, that the
principal Applicant comes from a wealthy family. It ignores the fact that in Canada, the principal Applicant’s reported income is below the poverty line. It appears to
assume that the principal Applicant’s family remains wealthy and will support
both her and her son. While that may be the case, I cannot accept that these
are well founded assumptions based on the evidence.
[63]
The
Officer also states, “The documentation before me does not support that the
child’s basic amenities such as education and health care would not be
available to him in Bangladesh”. The test, of course, is not whether the basic
amenities would be available to the child in Bangladesh, rather, it is what is
in the child’s best interests. The Officer’s analysis was insufficient given
that the minor Applicant has been in Canada since he was one year old and stated
that he does not know his relatives in Bangladesh or speak the language.
Conclusion
[64]
The
application for judicial review is allowed and the decision is remitted back
for re-determination before a different officer(s) at Citizenship and Immigration
Canada. No question of general importance for certification has been proposed
and none arises.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is allowed
and the decision is remitted back for re-determination before a different
officer at Citizenship and Immigration Canada. No question of general
importance for certification has been proposed and none arises.
“Cecily Y. Strickland”
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