Docket: IMM-6590-13
Citation: 2015 FC 373
Toronto, Ontario, March 24, 2015
PRESENT: The Honourable Mr. Justice Brown
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BETWEEN:
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MANUEL ALEJANDRO OSORIO DIAZ
CAROLINA
RODRIGUEZ GUTIERREZ & ALEJANDRO ALFONSO OSORIO RODRIGUEZ
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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 is an application for judicial review by Manuel
Alejandro Osorio Diaz, Carolina Rodriguez Gutierrez and Alejandro Alfonso
Osorio Rodriguez [the Applicants] under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA] of a decision by an Immigration
Officer [the Officer], dated September 27, 2013, wherein the Officer refused the
Applicants’ application for permanent residence in Canada on humanitarian and
compassionate grounds [H&C]. In my opinion it should be dismissed for the
following reasons.
I.
Facts
[2]
Manuel Alejandro Osorio Diaz was born on March
20, 1979. His wife, Carolina Rodriguez Gutierrez, was born on August 21, 1978.
Their son, Alejandro Alfonso Osorio Rodriguez, was born on October 6, 2004. The
Applicants are all citizens of Mexico.
[3]
The Applicants entered Canada as temporary residents on April 27, 2008 (the father) and in August 2008 (the mother and the
son). They claimed refugee protection on September 30, 2008, and a departure
order was issued on the same date. The Immigration and Refugee Board, Refugee
Protection Division [RPD] rejected their refugee protection claims on September
30, 2009. The Applicants sought leave for judicial review of the negative
decision by the RPD, but were denied leave by this Court on February 1, 2010.
Their Pre-Removal Risk Assessment application was rejected on December 16,
2010. A warrant for their arrest and removal was issued on February 24, 2011 because
they failed to report to Canada Border Services Agency [CBSA], as directed, for
a pre-removal interview on January 20, 2011.
[4]
They applied for permanent residence in Canada on H&C grounds on June 14, 2012. The Officer refused their application on September
27, 2013. The Applicants applied for leave to apply for judicial review of the
Officer’s decision which was granted December 19, 2014.
II.
Decision under Review
[5]
The Officer first summarized the Applicants’
arguments, summarizing the facts of the case in some detail under the heading
of the form used, namely “Factors for Consideration”.
The arguments relating to both “Establishment in Canada”, and “Best Interest of the Child” are
summarized separately on the form. The Applicants do not argue that either of
these two summaries is inadequate. The Officer summarized the facts relating to
“Risk and adverse country conditions” under a
separate heading on the form, which findings are not challenged on this
application.
[6]
The Officer then set out the analysis and reasons
in the next heading on the form entitled “Decision and
Reasons”. The Officer correctly noted that the Applicants bore the onus
of satisfying the decision-maker that their personal circumstances are such
that the hardship of having to obtain a permanent resident visa from outside Canada in the normal manner would be 1) unusual and undeserved; or 2) disproportionate. The
Officer also noted the immigration procedural history of the Applicants in Canada including the fact that a warrant for their removal was active at the time of this H&C
decision.
A.
Establishment in Canada
[7]
The Officer acknowledged that the Applicants
have developed relationships with friends and members of their community since
their arrival in Canada, but found that the severing of these new relationships
would not cause hardship which would justify an exemption for the legislative
requirement to apply for immigrant visa from abroad. The Officer noted that all
of the Applicants’ family members and former friends and colleagues still reside
in Mexico and reasonably may be expected to offer support to the Applicants
upon their return to Mexico. The Officer found that even if the Applicants
might experience some difficulties in readjusting upon return to Mexico, such adjustment did not constitute hardship that is unusual and underserved or
disproportionate and would not warrant a positive exemption under H&C considerations.
[8]
The Officer acknowledged the Applicants’ steady
employment, their study of the English language, improvement of their skills,
good civil record, community involvement, volunteer efforts, and support among
their friends and community in Canada, helped the Applicants’ social and
economic integration in Canada. The Officer found that the Applicants took
positive steps in establishing themselves in Canada, but found their
integration and establishment to be as expected and not exceptional. The
Officer consequently found that the Applicants’ establishment in Canada did not justify an exemption under H&C considerations. The Officer further noted
that he had been presented with insufficient evidence to indicate that the
Applicants’ establishment was as a result of circumstances beyond their control
or a prolonged inability to leave Canada, such that it would cause them unusual
or disproportionate hardship to apply from outside Canada.
B.
Best Interest of the Child (or BIOC)
[9]
The Officer acknowledged that the minor
Applicant, after removal, will be in an environment with different
socioeconomic conditions, but found that this situation was not “an exceptional situation” or that it was “an unusual circumstance to justify a positive exemption”.
The Officer found that, as the minor Applicant is quite young and is still
learning customs and culture in Canada, moving to Mexico at this time and having
the chance to develop relationships with extended family members would not be
detrimental to his development and would not be considered unusual and
underserved or disproportionate hardship. The Officer acknowledged that Mexico
may not have the same living standard as Canada and is experiencing high degree
of violence in some areas, but found that these factors would not “have a
direct adverse impact” on the minor Applicant. The Officer considered:
the best interests
of [the child] along with the personal circumstances of this family, and find
that the applicants have not established that the general consequence of
relocating and resettling back to their home country would have a significant
negative impact on him. I have carefully examined the best interest of [the
child], and having regard to his circumstances, it is my finding that they do
not justify and exemption under humanitarian and compassionate considerations.
C.
Risk and Adverse Country Conditions
[10]
Regarding the Applicants’ allegations that there
is widespread levels of discrimination against women and that Mrs. Rodriguez in
particular would face hardship upon returning to Mexico, the Officer noted that
the Applicants had not detailed or documented Mrs. Rodriguez’s personal history
of discrimination in Mexico to allow him to assess the extent that she had been
personally or directly impacted. The Officer was consequently not satisfied
that having to return to Mexico would result in hardship for Mrs. Rodriguez
that is unusual and undeserved or disproportionate as a result of gender-based
discrimination.
[11]
Regarding the level of violence and crime, as
well as unfavourable economic conditions the Applicants would face upon
returning to Mexico, the Officer found that such conditions are generally faced
by the population. The Officer further found that Applicants had failed to
establish by means of the evidence that the hardships associated with general
country conditions amounted to unusual and undeserved or disproportionate
hardship.
III.
Issues
[12]
This matter raises the following issues:
(1)
Whether the Officer erred in assessing the
Applicants’ degree of establishment in Canada?
(2)
Whether the Officer erred in assessing the best
interest of the child?
IV.
Standard of Review
[13]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
The standard of review to be applied to an H&C decision is reasonableness: Kisana
v Canada (Minister of Citizenship and Immigration), 2009 FCA 189 at para 18
[Kisana]. Reasonableness is also the standard of review applicable to
the issue of whether the proper test was applied by an H&C Officer, which
are issues of the Officer’s interpretation of his home statute: Dunsmuir
at para 54; Alberta (Information and Privacy Commissioner) v Alberta
Teachers’ Association, 2011 SCC 61 at para 34. In Dunsmuir at para
47, the Supreme Court of Canada explained what is required of a court reviewing
on the reasonableness standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
(1)
Whether the Officer erred in assessing the
Applicants’ degree of establishment in Canada?
[14]
The Applicants submit that the Officer failed to
properly review their evidence in relation to their degree of establishment in Canada. The Applicants contend that, in the present case, the Officer had a duty to discuss
the specific factors in their evidence that led the Officer to make a particular
decision relating to whether an exemption for H&C grounds was warranted.
The Applicants also contend that the Officer failed to give weight to their
establishment in Canada at all. I am obliged to disagree with both submissions.
[15]
First of all, these issues are essentially “inadequacy of reasons” arguments. Adequacy of reasons
is not a stand-alone basis for quashing a decision, as both parties agreed and
the Supreme Court decided. Any challenge to the reasoning and/or result of a
decision must instead be made within the reasonableness standard of review: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury
Board), 2011 SCC 62 at paras 14, 22 [Newfoundland Nurses]. In this
connection, the Supreme Court explained what is required of a tribunal’s
reasons in order to meet the Dunsmuir criteria in Newfoundland Nurses
at para 16:
Reasons may not
include all the arguments, statutory provisions, jurisprudence or other details
the reviewing judge would have preferred, but that does not impugn the validity
of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion […]. In other
words, if the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir criteria are met.
In understanding
why the tribunal made its decision and assessing whether its conclusion is
within the range of possible and acceptable outcomes, this Court may look at
the factual components reported in the very decision under review itself even where
those components are set out in different boxes on the same form. In my view it
is a mistake to read only what is stated in the Reasons and Decision part of
the decision as if that part of the decision was divorced from the factual considerations
set out in the Establishment, BIOC and Risk components of the form, i.e., as
set out by the Officer under “Factors for
Consideration.” In my view a decision of this nature, whether written in
a continuous narrative, or written in boxes on a form as here, must be read
contextually as a whole.
[16]
In the present case there is no complaint with
the facts set out under the heading of Establishment, which I take to
accurately summarize the evidence going to the Applicants’ degree of
establishment in Canada. The Officer found that the Applicants’ degree of
establishment was “expected and not exceptional”.
While under no duty to either recite every fact or argument or to make explicit
findings on each constituent element, the Officer set out relevant evidence of
establishment. When that evidence (reported on the Establishment part of the
form) is read together with the discussion under Decision and Reasons as I have
found must be done, the reasons for the Officer’s conclusion on establishment are
readily determinable. Although the Applicant’s disagree with the Officer’s
conclusion, it is not the role of this Court to substitute its own opinion and
weighing of the evidence for that of the Officer, provided the reasons meet the
Newfoundland Nurses’ test and are reasonable per Dunsmuir.
These tests are met, and in my view the Officer was within his or her
jurisdiction to conclude that establishment was “expected
and not exceptional”.
[17]
The Applicants allege that they were not given
reasons only conclusions. They say that the finding their establishment was “expected but not exceptional” is a conclusion, not a
reason. I disagree. A conclusion would be a bald statement of a result, such as
for example a statement that “the test for
establishment is not made out” without more. But here, the Officer tells
us why it was not made out – because establishment was as expected but not
exceptional. In addition, the Officer gave several other reasons on the issue
of establishment. He gave them credit for steady employment, study of the
English language, improvement of their skills, good civil record, community
involvement, volunteer efforts, and support of friends and community – and did
so having identified evidence is support earlier in his reasons. Identification
of these factors lets us know what was weighed in the balance in coming to the
conclusion establishment was not exceptional. The Officer goes further to note
there was insufficient evidence to indicate that the inadequate establishment
was caused by circumstances beyond their control, or prolonged inability to
leave Canada such that it would cause them unusual or disproportionate hardship
to apply from outside Canada.
[18]
These reasons support the conclusion on
establishment. I find that these reasons allow me to determine, as I do, that
the decision falls within the range of possible, acceptable outcomes that are
defensible in respect of the facts and law.
[19]
The Applicants second main argument on the
reasons issue is that the Officer erred in discounting what establishment they
achieved while pursuing legal means to remain in Canada. The impugned
statement is as underlined below:
I now turn to the applicants’ degree of
establishment in Canada since their arrival in April 2008 (the father) and
August 2008 (mother and minor child). I have taken into consideration the
applicants’ steady employment; their study of the English language; improvement
of their skills; good civil record; community involvement; volunteer efforts;
and support among their friends and community, all of which have helped both in
their social and economic integration in Canada. While I acknowledge that
the applicants have taken positive steps in establishing themselves in Canada, I also note that they have received due process through the refugee and immigration
program and were accordingly afforded the tools and opportunity to obtain a
degree of establishment into Canadian society. I have carefully reviewed
the circumstances and submissions provided by the applicants and based on the
evidence provided, the applicants’ establishment in Canada was as expected and
not exceptional. Consequently, I do not find the applicants’ establishment in Canada justifies an exemption under humanitarian and compassionate considerations.
Furthermore, I have been presented with insufficient evidence to indicate that
the applicants’ establishment was as a result of circumstances beyond their
control or a prolonged inability to leave Canada, such that it would cause the
applicants unusual or disproportionate hardship to apply from outside Canada.
[emphasis added as noted above]
[20]
It was suggested that such a finding is
impermissible and gives rise to judicial review in light of a passage in Sebbe
v Canada (Minister of Citizenship and Immigration), 2012 FC 813 [Sebbe].
I disagree. Sebbe calls for an analysis that gives credit to refugee
claimants for initiatives they take, and other relevant circumstances, together
with an analysis and assessment of the degree of a claimant’s degree of establishment.
The analysis and assessment must of course take place within the parameters laid
down by the Supreme Court of Canada in Newfoundland Nurses, which in
this case it did. In my view an Officer does not err in noting that delays
occasioned by lawful engagement of our immigration system have assisted
applicants to become more established, because in most if not all such cases that
statement will be true. In the same way it is not an error for the Officer to
refer to an applicant as having the support of friends and community. More
generally, the Officer’s statement is a true statement because establishment is
a function of many factors over time. The more time one has, usually the more one
will become established. More time generally tends to equal, or should in most
cases, lead to a greater level of establishment.
[21]
On review of the record, I do not see the Officer
as having improperly discounted time legitimately spent within the Canadian
refugee system. Indeed, the Officer’s treatment of the Applicants may also be
viewed in light of the fact that the Officer could have, but appears not to
have, discounted the Applicant’s establishment after they unlawfully failed to
appear and an arrest warrant was issued for them in January, 2011. This Court
has indicated on several occasions that Officers should be reluctant to reward
individuals for time accumulated in Canada without a legal right to remain,
absent circumstances beyond their control: Caine v Canada (Minister
of Citizenship and Immigration), 2011 FC 1110 at para 20; Mann v Canada (Minister of Citizenship and Immigration), 2009 FC 126 at paras 12-14; Millette v Canada (Minister of Citizenship
and Immigration), 2012 FC 542 at para 41. Although the Officer did not
reject the H&C on these grounds, the Applicants failed to appear and remain
in Canada in the face of an active removal order. There is no need to supplement
the Officer’s reasons on this account, although the Court takes note of such
unlawful conduct as did the Officer.
[22]
Taken as a whole, the Officer outlined the establishment
considerations in a manner not complained of, and thereafter came to an
intelligible and transparent conclusion that falls within the range of
reasonable possible and acceptable outcomes per Dunsmuir.
(2)
Whether the Officer erred in assessing the best
interest of the child?
[23]
The Applicants submit that the Officer applied
the wrong legal test when assessing the best interest of the child, particularly
by referring to hardship when making the BIOC determination. They allege that the
Officer failed to demonstrate that he was alert, alive and sensitive to the
best interest of the child.
[24]
In Kisana at para 30 the Federal Court of
Appeal dealt with a case in which the officer “focused” on hardship in her
consideration of the best interests of the children. The Court of appeal held
that “[t]he fact that the officer focused her
consideration of the children’s best interests on the question of hardship does
not necessarily lead to the conclusion that she failed to consider their best
interests”. From this, it is apparent that mention of “hardship” in the
course of an analysis of BIOC is not enough to set aside the finding. This
finding alone may very well determine this ground for judicial review against
the Applicants.
[25]
In addition, however, the reasons as a whole
must be reviewed to determine if the Officer strayed from a proper BIOC
analysis. Mentioning hardship is not enough to trigger judicial review, as the
Federal Court of Appeal said. Indeed, even focusing on hardship may not
trigger judicial review in its view. Very often if not almost invariably, as the
Applicants did here for example, H&C applicants in their BIOC submissions allege
numerous negative adverse consequences for the child if he or she is removed,
including inferior education, lower standard of living, criminality, and possible
violence. Where, as here, the Applicants themselves alleged what may properly
be characterized as “hardship” to the child if removed, an H&C Officers should
not generally be faulted for using the word hardship in his or her analysis
because doing so is simply and accurately summarizing the very consequences alleged
by the Applicants.
[26]
Instead, a contextual analysis of the Officer’s
reasons is required where it is argued that the Officer has applied an
impermissible “hardship” analysis. This case has
similarities in this respect with Jaramillo v Canada (Minister of Citizenship
and Immigration), 2014 FC 744 at paras 69-73, where I held:
[69] After a fairly detailed review of
the evidence filed, the Officer concluded his BIOC analysis stating: “Overall,
I am unable to conclude from the information before me that having to relocate
to Columbia or Brazil would have a significant negative impact on” the
Applicants. Regarding the BIOC analysis, I do not accept the Applicants’
submission that the Officer applied the wrong legal test.
[70] Quite properly, there are neither verbal
formulas nor magic words regarding the test for BIOC. However on judicial
review, it is established that an officer must show that he or she is “alert,
alive and sensitive” to the best interests of the child or children concerned.
I conclude that the Officer met and applied this test in this case.
[71] I agree, as the Respondent
submits, that “the fact that the children might be better off in Canada in
terms of general comfort and future opportunities cannot […] be conclusive in
an H&C Decision that is intended to assess undue hardship” because the
outcome would almost always favour Canada (Vasquez v Canada (Minister of
Citizenship and Immigration), 2005 FC 91 at para 43; Hawthorne v Canada
(Minister of Citizenship and Immigration), 2002 FCA 475 at para 5 [Hawthorne];
Li v Canada (Minister of Citizenship and Immigration), 2006 FC 1292 at
para 28; Yue v Canada (Minister of Citizenship and Immigration), 2006 FC
717 at para 9; Ramotar v Canada (Minister of Citizenship and Immigration),
2009 FC 362 at para 37; Miller v Canada (Citizenship and Immigration),
2012 FC 1173 at para 25).
[72] For example, the Federal Court of
Appeal in Kisana, supra at para 30, dealt with considerations of
hardship under the rubric of BIOC and held that an officer who “focused her
consideration of the children’s best interests on the question of hardship does
not necessarily lead to the conclusion that she failed to consider their best
interests.” To the same effect is Hawthorne, supra, quoted in Kisana,
above.
[73] Given the acceptance of “hardship”
as an element in the BIOC analyses in this jurisprudence, I conclude that
reference by this Officer to “significant negative impact” does not constitute
legal error in terms of the applicable legal test.
[27]
In the case at bar, the Officer set out the evidentiary
considerations at the beginning of the decision form, in respect of which no
complaint is made. The Officer charged him or herself with the proper test,
namely best interest of the child, at the start of the BIOC assessment. The Officer
noted that removal will not put the child in an exceptional situation. He found
the child will not be in an unusual circumstance to justify a positive
exemption. He noted the child is quite young and is learning the customs and
culture in Canada, he noted he will have a chance to develop relationships with
extended family members. The Officer found there will be no direct and adverse
impact on the child. The Officer was entitled to make these findings in the
course of giving his BIOC reasons. And I note that as the Officer reached his
or her conclusion, he or she once again stated the proper test, namely best
interest of the child.
[28]
Reading the BIOC factual considerations and the
subsequent BIOC analysis and conclusion together and as a whole and in their
entirety; I do not agree that the use of the words “unusual
and undeserved or disproportionate hardship” in the discussion is
grounds for judicial review. While such reference was not appropriate, as
conceded at the hearing, I am unable to find that the Officer mis-stated or
mis-applied the legal test for BIOC.
[29]
Additionally, and importantly in my view, the
Officer found the Applicants had not established that the general consequences
of relocating and resettling back to their home country would have a significant
negative impact on the particular child in question. It is important to
reiterate that the burden lies on the Applicants to establish the BIOC claim and
to do so with relevant evidence. This Court recently addressed this issue in
words that are appropriate for the case at bar, in Landazuri Moreno v Canada (Minister of Citizenship and Immigration) 2014 FC 481 at paras 36-37:
[36] It is not enough to simply
describe general conditions which are worse in the country of removal than
conditions in Canada. The Applicant must show that he and the children would
likely be subject to these conditions personally. As I wrote in Serda at
para 31:
Finally, the Applicants have argued
that conditions in Argentina are dismal and not good for raising children. They
cited statistics from the documentation, which were also considered by the
H&C Officer, to show that Canada is a more desirable place to live in
general. But the fact that Canada is a more desirable place to live is not
determinative on an H&C application (…); if it were otherwise, the huge
majority of people living illegally in Canada would have to be granted
permanent resident status for Humanitarian and Compassionate reasons. This is
certainly not what Parliament intended in adopting section 25 of the Immigration
and Refugee Protection Act.
[37] In the absence of any personalized
evidence to the contrary, the Officer could reasonably conclude that the best
interests of the children were to remain in the care of their parents, and that
the hardships associated with relocation could reasonably be expected to be
minimal given their young ages. There was no evidence that the children would
not be able to access health care and education in Columbia or Mexico, and it was certainly not sufficient to show that Canada is a more favourable country to live
than the country of origin of their parents. It is also to be presumed that the
Officer considered the report submitted by the Applicant, even though he did
not specifically address it.
[30]
I wish to add that counsel for the Applicant made
submissions respecting the suggested protocol for assessing the best interest
of the child formulated in Williams v Canada (Minister of Citizenship and
Immigration), 2012 FC 166 [Williams]. In my view, H&C officers
are not required to follow a formula. I considered this issue in Edward
Sarian Monje v Canada (Minister of Citizenship and Immigration),
(IMM-6067-13):
[Williams] constitutes an
articulation of but one of many approaches to the [best interest of the child]
analysis. This Court upheld other approaches to a [best interest of the child]
analysis subsequent to the Williams decision: Adetunji v Canada (Minister of Citizenship and Immigration), 2012 FC 708 at para 49; Walker v Canada (Minister of Citizenship and Immigration), 2012 FC 447 at paras 36-37, 39, 41.
In Webb v Canada (Minister of Citizenship and Immigration), 2012 FC 1060
at para 13, this Court confirmed that the test set out in Williams was a
useful guideline, but was only one method of assessing the [best interest of
the child]. What really matters in assessing the [best interest of the child]
is whether the Officer is “alert, alive and sensitive” to that children’s
interests (Marteli Medina v Canada (Minister of Citizenship and Immigration),
2010 FC 504 at para 55; Leonce v Canada (Minister of Citizenship and
Immigration), 2011 FC 831 at para 17; Pannu v Canada (Minister of
Citizenship and Immigration), 2006 FC 1356 at para 38).
[31]
In summary, on the issue of BIOC, I find the
Officer applied the correct legal test, and I also conclude that the Officer’s BIOC
finding falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law. The reasons are transparent and
intelligible. Judicial review is not open on BIOC.
V.
Conclusion
[32]
Overall, I find that the Officer’s decision was
justified, transparent and intelligible both with respect to establishment and best
interests of the child. It falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law. Therefore, this
application for judicial review is dismissed.
VI.
Certification of Question
[33]
Orally and at the end of her submissions, counsel
for the Respondent requested that I certify questions relating to the Williams
decision in the event I found Williams was applicable. Counsel for the
Applicants opposed the request, noting that Williams was but one example
of how to approach the issue of the best interests of the child. Given that neither
I nor the Officer have accepted the Williams analysis, Williams
is not dispositive of this case and, accordingly, no question is certified. No
other question was proposed or arises.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application for judicial review is dismissed, no question is certified and
there is no order as to costs.
"Henry S. Brown"
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