Docket:
IMM-3143-13
Citation:
2014 FC 467
Ottawa, Ontario, May 14,
2014
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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RUMINA KARMALI VELJI
SARAH SHIVJI
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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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JUDGMENT AND REASONS
[1]
This application for judicial review of a
negative decision on an application for permanent residence from within Canada
on humanitarian and compassionate grounds [H&C application] under
subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], must be allowed.
[2]
The Applicants are citizens of Tanzania and are a mother and daughter. Ms. Karmali Velji, is 46 years old. Ms. Sarah
Shivji [the Minor Applicant] was 17 years old when the H&C application was
submitted on October 12, 2011. She is now no longer a minor. They came to Canada in 2002 and 2003 respectively.
[3]
The Applicants raise two issues: (i) whether the
officer failed to properly assess the best interests of the Minor Applicant,
and (ii) whether the officer failed to properly consider the country conditions
in Tanazania and how these would personally affect the Applicants and expose
them to undue hardship on return?
[4]
In my view, the analysis of the best interest of
the Minor Applicant was unreasonable and deficient, and on this basis alone,
the application must be allowed. It was unreasonable and deficient because at
no point does the officer describe whether it would be in the best interests of
the child to remain in Canada or not. The analysis is focused entirely
on the hardship that the Minor Applicant might face if returned to Tanzania.
[5]
Although the officer states “it is in the best interests of every child to gain an
education and to have their parents’ constant love and support as they journey
through life” the officer goes on to say, “the [Minor Applicant] is now an adult and has had the
benefit of being educated and raised by her mother in Canada and they will
return to the country together. I have not been provided evidence to support
that the [Minor Applicant] cannot continue to be educated with the support of
her family in Tanzania.”
[6]
There are three issues with this analysis.
First, the officer does not identify whether, because it is in the best
interests of every child to gain an education and to have their parents’
constant love and support, it is therefore in the best interests of the Minor
Applicant to remain in Canada. Second, the officer then considers the hardship
(or lack thereof) that the Minor Applicant would face given that she is “now an adult and has had the benefit of being
educated… in Canada” (emphasis added). The officer completely changes the
frame of reference from the Minor Applicant as a child, to an adult, contrary
to the guidance set out in Citizenship and Immigration Canada’s Manual IP 5.
[7]
Third, the officer commits the error identified
by Justice Russell in William v Canada (Minister of
citizenship and Immigration), 2012 FC 166, [2012] FCJ No 184,
namely, that the officer should not impose any threshold of hardship
requirement when considering the best interests of the child. The officer here
erred by stating that the Applicants had not provided “evidence
to support that the [Minor Applicant] cannot continue to be educated with the
support of her family in Tanzania.” It was an error for the officer to require
the Applicants to lead evidence to meet some threshold level of hardship.
[8]
The proper approach would have been to
acknowledge the Minor Applicant’s interests in continuing her education and the
evidence that pursuing education beyond high school may be difficult for women
in Tanzania. Following that acknowledgment, it would then have been
appropriate for the officer to find that it was in her best interests to remain
in Canada.
[9]
It was then the duty of the officer to weigh
that factor together with all other relevant factors and decide whether there
were sufficient humanitarian and compassionate considerations to favour
granting the permanent residence application: Singh v Canada (Minister of
Citizenship & Immigration), 2009 FC 11, [2009] FCJ No 4 at para 18; see
also Webb v Canada (Minister of Citizenship
and Immigration), 2012 FC 1060, [2012] FCJ No 1147
at paras 18-20.
[10]
Having conducted a deficient analysis of the
best interests of the child, the decision is unreasonable and the H&C
application must be redetermined by a different officer.
[11]
Neither party proposed a question for
certification.
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