Docket: IMM-1268-14
Citation:
2015 FC 567
Toronto, Ontario, April 30, 2015
PRESENT: The Honourable Mr. Justice Campbell
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BETWEEN:
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JUNIOR CALVERT INNISS
ROANNA LISSETTE STEPHENS
MYA STEPHENS
(BY LITIGATION GUARDIAN
ROANNA LISSETTE
STEPHENS)
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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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ORDER AND REASONS
[1]
The present Application concerns a father,
mother, and their minor child who, as citizens of St. Vincent, made an
application for permanent residence in Canada on humanitarian and compassionate
(H&C) grounds pursuant to s. 25(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (IRPA). The test to be applied on an
H&C application is whether the applicant will face unusual and undeserved
or disproportionate hardship if the application is rejected and the applicant
is forced to return to his or her country of origin. In addition, according to
the provision itself, an H&C decision must be rendered “taking into account the best interests of a child directly
affected”. Thus, in the present case, those interests were required to
be considered with respect to the minor Applicant Mya. But, as outlined below,
the mother and father’s Canadian born chiId, Jayanna, is also directly affected
by the application, and, as a result, her best interests were also required be
determined.
[2]
In a decision dated February 6, 2014, a
Minister’s delegate (Officer) rejected the Applicants’ application. A critical
issue raised by the present Application is whether the Officer properly addressed
the best interests of Mya and Jayanna. For the reasons which follow, I find
that the Officer failed to do so.
I.
The Context
[3]
The movement of the family from St. Vincent to
Canada is as follows. According to their sworn evidence, the mother arrived from
St. Vincent in December 2002, and the father arrived from St. Vincent in August
2004; they were married in Canada in 2005, and Jayanna was born in Canada in
April 2006. In November 2008, the father left Canada for St. Vincent to follow
a business proposition; the mother and Jayanna followed the father to St.
Vincent in April 2009. In July 2011, Mya was born in St. Vincent. In August
2011, the father and Jayanna returned to Canada, and because of complications
from the birth of Mya, the mother and Mya did not return until May 2012
(Certified Tribunal Record (CTR), pp. 100 -105).
[4]
The H&C application was prompted by the fact
that the father overstayed the visitor visa he obtained in August 2011 and, as
a result, an exclusion order was made which applies to all members of the
family, except Jayanna. As is set out below, the Officer confirms that the
family fled abject poverty in St. Vincent and came to Canada for a better life.
The Officer also confirms the fact that the Applicants have done this out of
the best interests of their children.
[5]
On the issue of establishment in Canada, the
Officer makes the following statement which provides important context with
respect to the experiences of the parents in St. Vincent:
I note that the applicants both have work
experience from their time living in St. Vincent previously. While I consider
that the applicants' [sic] faced financial hardship in St. Vincent, I also note
the male applicant was able to work during while residing in St. Vincent and
earn a living. I also note that although the female applicant states that she
was unable to find work in St. Vincent, that this particular time in St.
Vincent also coincided with her difficult pregnancy, and the pre-mature birth
of her daughter Mya, who was ill and remained in hospital for some time. I find
these factors as very real and compelling reasons as to why she was not
employed for at least some of her time in St. Vincent. I note these were
circumstances beyond her control. Still, I consider that the applicants
experienced a lower standard of living in St. Vincent in [sic] compared to
Canada. I also consider however that the applicants are very hardworking
individuals, who, in addition to raising two minor daughters work three jobs
between them. This demonstrates their adaptability, their hardworking nature,
and their desire to find adequate employment, regardless of their location. The
H&C process is not designed to eliminate hardship for applicants, but
rather to provide relief from unusual and undeserved or disproportionate
hardship. I do not find that the applicants have demonstrated with evidence
they will return to a situation of hardship, in light of the evidence provided.
In regards to the economic hardship the applicants'
[sic] state they faced in St. Vincent, I accept that the adult applicants (the
male applicant in particular) grew up in poverty. I note that the female
applicant states in her affidavit that the family was forced to reside in an
extra room in her mother's house for some time after returning there in
2008/2009. However, I also note that the female applicant states later in her
affidavit that she and the couple's daughter Mya resided in an apartment, where
they were unable to pay for electricity. I consider this statement, finding it
indicates that the female applicant and her daughter moved out of her mother's
residence and into an apartment. This is evidence that the family was able to
pay rent while residing in St. Vincent for some time, after initially residing
with relatives. Though the applicants state that they will receive no
assistance from their relatives in St. Vincent because they are all poor, I
note that they have resided with the female applicant's mother in the past. I
find the presence of numerous family members in St. Vincent advantageous, in
terms of social ties and family assistance, if not financial aid.
(CTR, pp. 7-8)
II.
Determining the Best
Interests of the Children: The Law
[6]
Two decisions of the Court are particularly
important with respect to the Officer’s analysis in reaching the decision under
review.
[7]
As stated in the decision in Kolosovs v Canada
(Minister of Citizenship and Immigration), 2008 FC 165 at paragraphs 8 to
12, the Officer was required to conduct a best interests of the children
analysis according to a detailed legal standard:
Requirements for Determining the
Best Interests of the Child
[Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817] at para. 75 states that an H&C decision will be
unreasonable if the decision-maker does not adequately consider the best
interests of the children affected by the decision:
The principles discussed
above indicate that, 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.
[Emphasis added]
This quote emphasizes that, although a child’s best interests
should be given substantial weight, it will not necessarily be the determining
factor in every case, (Legault v Canada (Minister of Citizenship and
Immigration), [2002] 4 F.C. 358 (C.A)). To come to a reasonable decision, a
decision-maker must demonstrate that he or she is alert, alive and sensitive to
the best interests of the children under consideration. Therefore, in order to
assess whether the Officer was “alert, alive and sensitive”, the content of
this requirement must be addressed.
A. Alert
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. Although
the best interests of the child is a fact specific analysis, the Guidelines at
s. 5.19, provide a starting point for a visa officer by setting out some
factors that often arise in H&C applications:
5.19.
Best interests of the child
The Immigration and Refugee Protection Act introduces
a statutory obligation to take into account the best interests of a child who
is directly affected by a decision under A25(1), when examining the
circumstances of a foreign national under this section. This codifies
departmental practice into legislation, thus eliminating any doubt that the
interests of a child will be taken into account.
Officers must always be alert and sensitive to the
interests of children when examining A25(1) requests. However, this obligation
only arises when it is sufficiently clear from the material submitted to the
decision-maker that an application relies, in whole or at least in part, on
this factor.
[…]
Generally, factors relating to a child’s emotional,
social, cultural and physical welfare should be taken into account, when
raised. Some examples of factors that applicants may raise include:
• the
age of the child;
• the level
of dependency between the child and the H&C applicant;
• the
degree of the child’s establishment in Canada;
• the child’s
links to the country in relation to which the H&C decision is being
considered;
• medical
issues or special needs the child may have;
• the
impact to the child’s education;
• matters related to the
child’s gender.
[Emphasis
added]
B. Alive
The requirement that a child’s best interests be given
careful consideration was reiterated by the Federal Court of Appeal in Hawthorne
v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555
(C.A) (QL) at para. 52:
The requirement that officers' reasons clearly
demonstrate that the best interests of an affected child have received careful
attention no doubt imposes an administrative burden. But this is as it should
be. Rigorous process requirements are fully justified for the determination of
subsection 114(2) [now s. 25(1) of the IRPA] applications that may
adversely affect the welfare of children with the right to reside in Canada:
vital interests of the vulnerable are at stake and opportunities for
substantive judicial review are limited.
Once an officer is aware of the best interest factors in
play in an H&C application, these factors must be considered in their full
context and the relationship between the factors and other elements of the fact
scenario concerned must be fully understood. Simply listing the best
interest factors in play without providing an analysis on their inter-relationship
is not being alive to the factors. In my opinion, 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 [sic]
determined.
C.
Sensitive
It is only after a visa officer has gained a full
understanding of the real life impact of a negative H&C decision on the
best interests of a child can the officer give those best interests sensitive
consideration. 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. As stated in
Baker at para. 75:
“ … 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.”
[Emphasis added]
[8]
The approach to be adopted in determining the
best interests of a child is specifically addressed by Justice Russell in Williams
v Canada (Minister of Citizenship and Immigration), 2012 FC 166. Justice
Russell held that it is an error for a visa officer to apply a test of hardship
when assessing the degree to which a child’s best interests may be compromised
by removal with his or her parents. More specifically, at paragraph 64 he
explained as follows:
There is no basic needs minimum which if
"met" satisfies the best interest test.
Furthermore, there is no hardship threshold, such that if the circumstances of
the child reach a certain point on that hardship scale only then will a child's
best interests be so significantly "negatively impacted" as to
warrant positive consideration. The question is not: "is the child
suffering enough that his "best interests" are not being
"met"? The question at the initial stage of the assessment is:
"what is in the child's best interests?"
[Emphasis added]
III.
The Officer’s Best
Interests Analysis
[9]
Three principal issues are addressed by the
Officer in considering how the “Best Interests of the
Children” (CTR, pp. 9 and 10) will be impacted by their potential return
to St. Vincent: dislocation, gender-based concern, and poverty. In the
following passages from the decision, the emphasis is added to highlight
the Officer’s best interests conclusions.
[10]
With respect to dislocation, the Officer
made the following findings:
In sum, Jayanna has resided in Canada for 5
out of her 7 young years. It should be noted that Jayanna is not required to
leave Canada as she is a Canadian citizen. She is able to remain in Canada
regardless of the outcome of this decision. However, it remains to be seen if
this is in her best interest, as her parents are without status in Canada. I
consider that her parents have demonstrated through their submissions that they
care for her and love her, and I find as there is minimal family in Canada, it
would be in Jayanna's best interest to remain in the loving care of her
parents, wherever they reside.
[…]
I accept that their eldest child, Jayanna
has settled into school and has made friends. She appears to be a well adjusted
and healthy 7 year old. I also note that Jayanna has personal experience in
moving from Canada to St. Vincent previously. I also note she has experience
leaving her social circle from St. Vincent, without any reported negative
consequences. I consider her age and her adaptability, and find that removal
would not compromise her interests in light of her establishment in Canada, and
in light of her personal history of moving internationally. I also note that
Jayanna is not required to leave Canada, and could remain if he [sic] parents
so wished.
In regards to Mya, I note and consider her
young age (3 years old), finding that she is very young and entirely reliant on
her parents for support. Keeping this in mind, I consider that her parents have
always put their children's best interests first, regardless of their location.
I find that removal to St. Vincent would not compromise Mya's best interests
noting she has yet to make any serious ties to Canada, and that she benefits
from numerous family members in St. Vincent. I consider her gender and her
access to education in making this finding.
[11]
With respect to gender-based concern, the
Officer made the following findings:
The female applicant states in her
affidavit that violence is a problem in St. Vincent, which she does not hope
for her daughters. While I place some weight on
this statement, I also note that none of the family members have ever faced any
community violence in the past. While objective country reports are useful for
informational context, I do not find them applicable to the applicants'
personal situation, with particular respect to the minor applicant and her
sister. I find very little grounds present indicating that the children
impacted by this decision are likely to face violence in the future by
returning to St. Vincent. I find the presence of societal violence does not
indicate that the children will face a compromise to their interests if
returned to St. Vincent.
[…]
Counsel for the applicants raises the issue
that the children impacted by this decision are both girls, and notes that
violence and discrimination against women and girls in St. Vincent is a serious
problem. I accept this factor, based on the evidence provided, and place
weight on this element. Violence against women and girls in St. Vincent is a
serious problem, which impacts women in general disproportionately. However, I
also note that these girls are raised in a loving home by their parents, who
seek to provide them with ongoing security. I note that Mya and Jayanna
benefit from family in St. Vincent. I do not find this factor in and of itself
indicative that a return to St. Vincent will cause them a personal compromise
to their best interests.
[12]
With respect to poverty, the Officer made
the following findings:
I note that poverty is a serious problem
in St. Vincent, which the applicants state has impacted these children
negatively in the past. The female applicant describes in her affidavit how she
was unable to pay her bills, pay for her outstanding health care bill, or pay
for electricity in her apartment for nearly 2 years. This is undoubtedly a
serious concern which I consider in light of the best interests of these
children, noting that despite the presence of various family members in St.
Vincent, the children were impacted negatively by their parents' low income in
St. Vincent. However, I also note that during this time, the female
applicant was raising an infant with infancy related health needs, while alone
for much of the time, and that she was unable to work. I find that although
the female applicant has faced problems finding employment in St. Vincent in
the past, that she returns with a significant amount of work experience from
Canada. I find that these factors lead me to conclude that the applicants are
no [sic] likely to return to a situation of financial destitution. This
factor leads me to conclude that although the family has suffered economic
problems in the past, that they have demonstrated they always put their
children's best interests first. I find that a return to St. Vincent will
not compromise these girls' best interests.
[Emphasis added]
[13]
The following is the Officer’s conclusion
to the best interests analysis:
For these reasons, while being alert, alive
and sensitive to the best interests of the children, and viewing the situation
from their perspective, I find that it would not cause a negative cultural,
social or emotional impact on the children in such a way so as to
warrant an exemption under s. 25(1) of the IRPA. In this
instance, the children's best interests do not outweigh other considerations
anticipated by the legislation.
IV.
My Opinion on the
Analysis
[14]
In my opinion, the Officer failed to address the
best interests of Jayanna and Mya according to law.
[15]
To meet the legal standard, the Officer was
required to provide, at the very least, a reasoned answer to two questions with
respect to Jayanna’s and Mya’s best interests: in whose care should they live;
and where should they live? The Officer did provide an answer to the first
question with respect to Jayanna: “it would be in
Jayanna's best interests to remain in the loving care of her parents, wherever
they reside” (CTR, p. 9). It appears from the decision that the same
answer was assumed with respect to Mya just because she is an infant. As a
result, her best interests were not specifically determined by the Officer.
[16]
However, the Officer failed to answer the second
question with respect to both Jayanna and Mya. It appears from the Officer’s
reasoning that, since the children’s parents had not proved establishment in
Canada to the Officer’s satisfaction, not only would they be required to return
to St. Vincent, but both children would naturally return with them. While the
Officer commented that, as a Canadian citizen, Jayanna was not required to
leave Canada with her parents, the comment was not developed for a good reason:
she would have no one to care for her in Canada except a child welfare agency.
Of course, this outcome would be contrary to the finding that Jayanna should be
with her parents.
[17]
From the way the decision reads, the possible
outcome that the children’s best interests might require that they remain
together with their parents in Canada was never an option. As a matter of law,
the best interests of the children must be determined first. Thus, if the
determination is made that the children should remain with their parents, then
it should remain open for an officer to conclude that the children should
remain in Canada with their parents.
[18]
In my opinion, the Officer’s analysis displays a
non-transparent attempt to divert away from concluding that the children, and
thus their parents, should remain in Canada, to a conclusion that the children
will somehow be able to tolerate and adapt to the serious hardships they would
face if they were required to reside with their parents in St. Vincent. This
discourse is unacceptable because it exhibits the fact that no sensitivity to
Jayanna’s or Mya’s best interests was applied. As described below, I find that
the Officer relied upon unfounded speculation and a misapplication of the
evidence on the record to reach a conclusion to the best interests analysis.
A.
Regarding dislocation
[19]
With respect to Jayanna, to legitimize her
removal from Canada on the basis that she has a “personal
history of moving internationally” is a capricious finding to make given
that her only travel outside Canada occurred when she was three years old.
[20]
With respect to Mya, there is no evidence that a
child of her age would not suffer from being dislocated from a life to which
she has become accustomed. In fact, the evidence concerning the obvious
differential that exists between life in St. Vincent and life in Canada
suggests the opposite. In addition, the evidence on the record before the
Officer is that Mya’s parents cannot rely upon family support in St. Vincent.
Therefore, it is an erroneous finding of fact for the Officer to conclude that
the support would exist upon return.
B.
Regarding gender-based concern
[21]
In my opinion, the Officer’s reasoning that
Jayanna’s and Mya’s parents can protect them from the reality of gender-based
violence in St. Vincent is pure unfounded speculation. In addition, the Officer
failed to recognize, and be sensitive to the fact that, as the children grow up
and become more independent, they may be at enhanced risk from the acute
gender-based violence which is described in the evidence on the record.
C.
Regarding poverty
[22]
With respect to this point in the Officer’s
analysis, I find that Justice Russell’s admonition is most relevant: “there is no hardship threshold, such that if the
circumstances of the child reach a certain point on that hardship scale only
then will a child's best interests be so significantly ‘negatively impacted’ ”
(Williams at para 64). As quoted above, despite finding that poverty is
a “serious problem in St. Vincent,” and that the
children’s mother was previously unable to secure employment or pay her bills,
the Officer attempts to set a standard of poverty that the children should be
able to tolerate without having their best interests compromised: something
short of “a situation of financial destitution”.
In addition, the Officer’s finding that the children’s mother now has Canadian
work experience is irrelevant; there is no evidence on the record to support
the Officer’s speculation that Canadian work experience would make a difference
to the poverty that the family would face upon return to St. Vincent. In my
opinion, the Officer’s attempt to downgrade the poverty reality exposes a profound
lack of sensitivity to Jayanna’s and Mya’s best interests.
V.
Conclusion
[23]
For the reasons provided, I find the decision
under review is manifestly unreasonable.
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