Docket: IMM-6948-14
Citation:
2015 FC 638
Ottawa, Ontario, May 15, 2015
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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XUE FANG YANG
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of an Immigration
Officer’s [Officer] decision to deny an exemption to have the Applicant’s
permanent residence application processed from within Canada on humanitarian
and compassionate [H&C] grounds.
The central issue was
the “best interests of the child” [BIOC].
II.
Background
[2]
The Applicant, the mother of 9 year old Alex, is
a citizen of China. She is divorced, and her ex-husband lives in China as does
her 19 year old daughter. Alex was born and has lived his entire life in
Canada.
The
Applicant’s refugee protection application was refused in October 2009. The
inland permanent resident application was filed in May 2014.
[3]
The Applicant based the H&C application on
her establishment in Canada, the BIOC, and the harm and adverse country
conditions in China.
[4]
The Officer’s decision on the three grounds
advanced can be summarized as follows:
a)
Country Conditions/Hardship
The
Applicant had not raised any fear of practising her faith in China, nor was
there sufficient evidence that authorities are concerned about her religious
practices.
The
Applicant would not be required to pay the social compensation fee, which
arises from having a child outside the one-child policy.
b)
BIOC
The
child is a Canadian citizen, 8 years old at the time of the decision, who no
longer requires the services reserved for younger children.
The
child has grown up in a Cantonese culture through his grandparents’ church, and
in the Vancouver area of Chinatown/Strathcona. As such, he has been exposed to
the cultural and linguistic (his mother is most proficient in Cantonese)
realities of his mother’s home city.
The
BIOC might be enhanced by having closer access to his father.
While
there may be initial troubles adjusting, the Applicant could rely on support
from family and friends.
c)
Establishment
The
Applicant had taken positive steps to integrate but in respect of employment,
she had merely done what others in similar positions do.
[5]
The Officer finally concluded that the Applicant
had provided little evidence that the move to China would act against her son’s
interest or impede her ability to meet Alex’s “basic
needs”.
III.
Analysis
[6]
The discretion under s 25 of the Immigration
and Refugee Protection Act, SC 2001, c 27, is to be reviewed on a standard
of reasonableness (Serrano Lemus v Canada (Citizenship and Immigration),
2012 FC 1274, 221 ACWS (3d) 966).
[7]
Having said that, I reject the Respondent’s
argument that a wide discretion means that there is a wide variety of
reasonably broad acceptable outcomes. The assessment of reasonableness is
constrained by the facts and the circumstances not by the breadth of the
discretion. Even with a broad discretion, the facts may leave open a narrow
range of acceptable outcomes.
[8]
In these circumstances, the Officer’s assessment
of BIOC is unreasonable.
[9]
The Court of Appeal in Kisana v Canada
(Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360, held that
the best interests of the child is an important factor but it is not per se
determinative. However, if an officer does not perform a reasonable assessment
of that factor, then the weighing of factors under s 25 becomes tilted and
likely unreasonable.
[10]
In suggesting that the Applicant’s son had some
form of cultural equivalence to China by virtue of his exposure to Cantonese,
the Officer unreasonably discounts that the child has been educated and speaks
only English. The reliance on attendance at a Chinese church ignores the fact
that the child attended only the English part of that church. It was
unreasonable to rely on this cultural equivalency as a positive factor for
living in China.
[11]
In concluding that the Applicant had provided
little evidence that the move to China would act against her son’s interest,
the Officer ignores the evidence from a psychologist’s office (prepared by a
clinical worker). The Respondent suggests that the Court should be sceptical
of that report. If the Officer was sceptical, he had an obligation to explain
why he had reached that conclusion. If he was not sceptical, he had to explain
why he disregarded the findings.
[12]
The Officer’s suggestion that being closer to
the son’s father had an ameliorating effect on the move to China ignores that
the child has never met his father; his father is in another relationship and
with a new family.
[13]
As Justice Mactavish concluded in Duhanaj v
Canada (Citizenship and Immigration), 2015 FC 416 at paragraph 3, “the task of an immigration officer is to consider the
benefit to the children if they were to stay in Canada against the consequences
that the children will suffer if they are removed from this country”.
This
assessment must be “alert and alive to the child’s
circumstances”. This, as Justice Rennie held in Etienne v Canada
(Citizenship and Immigration), 2014 FC 937, 245 ACWS (3d), is done from the
child’s perspective.
[14]
The Officer never undertook the BIOC analysis
from that perspective nor did he address key evidence that undercut his
conclusion.
In all the
circumstances, this decision requires Court intervention.
IV.
Conclusion
[15]
Therefore, this judicial review will be granted,
the decision quashed and the matter sent back to be considered by a different
immigration officer.
[16]
There is no question for certification.
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