Docket: IMM-786-14
Citation:
2015 FC 64
Ottawa, Ontario, January 16, 2015
PRESENT: The
Honourable Madam Justice Gagné
|
BETWEEN:
|
|
ANTHONIA ONOWU
|
|
EMMANUEL ONOWU IN HIS OWN RIGHT, AND
|
|
AS LITIGATION GUARDIAN TO THE MINORS,
|
|
DAVE ONOWU, JOEL ONOWU AND
|
|
EMMANUELLE ONOWU
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
The applicants seek judicial review of a
decision made by a Senior Immigration Officer [Officer], dated January 14,
2014, whereby she refused their application for permanent residence from within
Canada, based on humanitarian and compassionate grounds [H&C], pursuant to
subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [Act].
[2]
For the reasons that follow, this application
for judicial review will be dismissed.
II.
Background
[3]
This application is filed by the principal
applicant, a 51 year-old male, citizen of Nigeria, and his dependants: a 41
year-old female Nigerian spouse, a 12 year-old son born in Nigeria, together with an 11 year-old son and a 5 year-old daughter born in Hong Kong. The principal
applicant and his spouse also have a 2 year-old Canadian born son who is not
included in their application.
[4]
In February 2010, the applicants arrived in
Canada from Hong Kong. They later filed a first H&C application and refugee
claim which were both refused; they were denied refugee status in September
2012 by the Immigration and Refugee Board for reason of being excluded by
Article 1E of the Convention relating to the Status of Refugees, as they had
permanent resident status in Hong Kong.
[5]
In their first H&C application form, it was
disclosed that the principal applicant had permanent status in Hong Kong while
his spouse and 12 year-old son held dependent visas; the 5 year-old daughter
and 11 year-old son both held the right to abode, and were born in Hong Kong.
[6]
In March 2013, the applicants filed a second
H&C application for which they received a negative determination by letter
dated January 14, 2014. This is an application for judicial review of that
decision.
III.
Decision Under Review
[7]
The Officer concluded that the applicants had
not shown they would face undue, disproportionate, or unusual hardship should
they have to leave Canada to make an application for permanent residence under
subsection 11(1) of the Act; the factors raised by the applicants were
insufficient to warrant exceptional consideration for exemption.
[8]
According to the Officer’s application summary,
the applicants had expressed “establishment” and “the best interests of the
children” as two factors at issue.
[9]
The Officer listed all the documentation
submitted by the applicant family and remarked before beginning her analysis
that “an essential part of an application for Humanitarian and Compassionate
grounds is backing up statement with evidence, whenever possible.”
A.
Best Interests of the Children (BIOC)
[10]
The Officer acknowledges that an H&C
decision must consider the best interests of the children [BIOC]; she duly notes
that such interests, as they exist in the legislation, do not outweigh all
other factors in a case, but nevertheless should be given substantial weight.
She notes the age of the children applicants, that there was a Canadian born
child and considers the principal applicant’s views as regards the children’s
interests: (i) that departure from Canada would be detrimental because it would
cause them “severe economic and/or educational
disruption” as remaining children in Canada, as they are dependent on him
to fulfill their financial, material, educational, psychological and emotional
needs; (ii) that his child has sickle cell anaemia and cannot receive care for
his condition in Nigeria; and (iii) that their children would be deprived of
opportunities in Canada, and if left behind, would undermine the thriving
family environment in which they have grown accustomed to.
[11]
The Officer notes the evidence demonstrating the
two applicant boys are performing well academically but that no doctor’s letter
is submitted in support of Dave’s sickle cell anaemia nor any documentation
provided to support the assertion that medical treatment could not be obtained
in Nigeria.
[12]
The Officer reasons that there is little chance
the applicants would be separated against their will in the event of removal
because “generally speaking if a family leaves Canada,
they would go as a group” and as regards the Canadian born child, the
parents still have an option of choosing whether the child would accompany them
to Nigeria.
[13]
At the end of the analysis, the Officer wrote as
follows:
It is generally accepted that children are best
situated if they remain with their family. In addition, Canada has a good
school and medical system. I accept that the children would benefit from living
in Canada permanently.
B.
Establishment
[14]
According to the Officer, the level of
establishment which the applicants have shown is “no more
than would be seen in anyone who is in Canada on a work or study authorization”.
She does not consider three years long enough to demonstrate “a deep seated attachment and rooting in Canada” which would lead them to suffer hardship should they leave to apply for
permanent residence through the usual legislative course.
[15]
The Officer first discusses how the hardship
envisioned under the “establishment factor” is “based
upon the premise that the reason for staying in Canada for an extended period
of time was beyond their control”. She cites, as an example, the
scenario where a home country experienced unsafe conditions and removals to that
country are suspended.
[16]
Second, the Officer accepts the submission that
the children applicants would suffer educational disruption should they leave
Canada but does not accept that economic disruption would result; “it is my opinion based upon his work history that the male
Applicant would be successful in finding work to support his family wherever he
wishes to live.” As such, the Officer notes the principal applicant’s
submission that he has a history of stable employment accompanied by good
financial management, business practice in Canada, home ownership and
integration in the community of their church. This included paying taxes,
contributing to the Canadian economy and being “very
honest, hard working and law abiding with no criminal charges”.
C.
Hardship
[17]
In the final section of her decision, the
Officer concludes that the applicants have not demonstrated the level of
hardship envisioned by the legislation. She summarizes her view of the evidence
before her:
The overall picture placed before me shows that
the Applicant family has been working in Canada, paying taxes, running a small
business, going to Church, attending school, receiving medical treatment and
volunteering. The hardship of returning to their country, include uprooting the
children, and finding work and a place to live in Nigeria.
[18]
She notes the methodology in reaching a
decision; considering “the individual elements and the
cumulative effect of those elements” as assessed by weighing together
all of the H&C considerations submitted by the applicants and the fact that
the onus is on the applicants to show how their personal circumstances would
either result in unusual and undeserved or disproportionate hardship in the
event of having to apply for a permanent resident visa from outside of Canada.
Citing Pelletier J. in Irimie v Canada (Minister of Citizenship and
Immigration), 2000 FCJ No 1906 [Irimie] at para 12, the Officer
seemed to consider the applicants’ level of hardship as analogous:
[…] [T]he hardship which would trigger the
exercise of discretion on humanitarian and compassionate grounds should be
something other than that which is inherent in being asked to leave after one
has been in place for a period of time. Thus, the fact that one would be
leaving behind friends, perhaps family, employment or a residence would not
necessarily be enough to justify the exercise of discretion.
[19]
The Officer accepts Nigeria as the home country
of the applicants, notwithstanding the lack of evidence before her supporting
the applicants’ submission that: “[h]aving left Hong Kong
in February 2010 and arriving in Canada in February 2010 with the intention to
make Canada their permanent residence, all the applicants have lost their
status in Hong Kong – regardless of whether it is a right of abode or a temporary
residence based on a dependent visa.”
IV.
Issues and Standard of Review
A.
Written Submissions vs. Oral Submissions
[20]
The applicants’ written submissions are somewhat
unclear and they are implicitly revised in their reply.
[21]
At the hearing however, counsel for the
applicants articulated the following issues:
(1)
Did the Officer apply the wrong test in
determining the applicants’ establishment in Canada?
(2)
Did the Officer apply the wrong test to assess
the BIOC?
(3)
Did the Officer err in providing inadequate
reasons?
[22]
All three issues are reviewable on a standard of
reasonableness (for the first two issues, see Blas v Canada (Minister of
Citizenship and Immigration), 2014 FC 629 at paras 15-16; Serrano Lemus
v Canada (Minister of Citizenship and Immigration), 2014 FCA 114) and Kanthasamy
v Canada (Minister of Citizenship and Immigration), 2014 FCA 113 [Kanthasamy]
per Stratas J. at para 36-37, discussing Agraira v Canada (Minister of
Public Safety and Emergency Preparedness), 2013 SCC 36; and for the third
issue, see Newfoundland & Labrador Nurses` Union v Newfoundland &
Labrador (Treasury Board), 2011 SCC 62 [N.L.N.U.] and Jnojules v
Canada (Minister of Citizenship and Immigration), 2012 FC 531 at para 15).
[23]
Therefore, the task in the case at bar is to
determine whether the Officer’s legal tests and reasons demonstrate “the existence of justification, transparency and
intelligibility” and allow the decision to fall within “the range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190 [Dunsmuir] at para 47 and Canada (Minister
Citizenship & Immigration) v Khosa, 2009 SCC 12 at para 59).
V.
Analysis
A.
Preliminary Remarks
[24]
Some of the applicants’ arguments and the
evidence on which they rely was not before the Officer and are found in an
affidavit sworn by the principal applicant. This includes purporting to new
H&C considerations, such as fear of persecution in Nigeria (I note their
submissions to the Officer discussed persecution in Hong Kong rather) and the
health conditions of his Canadian child.
[25]
With the exception of issues related to
procedural fairness and jurisdiction, it is trite law that the Court must
assess a decision based upon the record before the decision-maker. Therefore,
no consideration will be given to those findings of facts or arguments which
were not initially elaborated in the application before the decision-maker (Ribeiro
Gadelha Simas Reis v Canada (Minister of Citizenship & Immigration),
2012 FC 179 at para 58; Smith v Canada, 2001 FCA 86 at paras 5-8;
see also Rodriguez Quiroa v Canada (Minister of Citizenship &
Immigration), 2007 FC 495 at para 28).
(1)
Did the Officer apply the wrong test in
determining the applicants’ establishment in Canada?
[26]
The applicants submit that the Officer applied
the wrong test in determining their establishment in Canada by choosing a
standard which: (i) compares or assesses their establishment against that of “anyone who is in Canada on a work or study authorization”;
(ii) refers to “a demonstration of a deep seated
attachment and rooting in Canada”; and (iii) considers the individual
elements and the “cumulative effects of those elements”
–a test only appropriate for determining persecution in refugee and Pre-Removal
Risk Assessment [PRRA] cases. The applicants argue there is no basis for the
test applied by the Officer; her analysis should have been guided by Appendix B
of the Inland Processing Policy Manual, Chapter 5, “Immigrant Applications in
Canada made on Humanitarian or Compassionate Grounds” [Guidelines].
[27]
Pointing to pages 45-36 of the Tribunal Record,
the respondent argues that from his perspective, the real problem lies with the
applicants’ failure to discharge the onus required by subsection 25(1) of the
Act, a high threshold (Landazuri Moreno v (Minister of Citizenship and
Immigration), 2014 FC 481 at para 22; Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, at para 28; and Owusu v
Canada (Minister of Citizenship and Immigration), 2004 FCA 38 [Owusu]
at para 8).
[28]
Accordingly, the respondent argues, the Federal
Court of Appeal has held that the hardship faced, “should
be something other than that which is inherent in being asked to leave the
country after one has been in place for a period of time. Thus, the fact that
one would be leaving behind friends, perhaps family, employment or a residence
would not necessarily be enough to justify the exercise of discretion” (Ahmad
v Canada (Minister of Citizenship and Immigration), 2008 FC 646 at para 49;
see also Kanthasamy at para 41).
[29]
The respondent also asserts the Officer chose
and applied the correct test — “hardship as outlined in
the legislation” and no new test is created. No formulaic approach
exists and by considering the “overall picture”
placed before her, the Officer balanced the positive and negative factors.
[30]
In my view, when the analysis is considered as a
whole, the Officer considered the applicants’ establishment in Canada in a way
that is defensible and acceptable on the facts before her as presented by the
applicants’ submissions and supporting documentation. Her language of
reference, or various modes of expression and comparison, in saying that the
applicants’ establishment was not exceptional for the purposes of an H&C application
does not, in and of itself, create a wrong standard. The Officer reasoned by
analogy to Pelletier J. in Irimie—that she did not see the hardship that
would result from the applicants’ establishment in Canada to be beyond asking
one to “leav[e] behind friends, perhaps family,
employment or a residence”. And it was fully reasonable for her to adopt
such an approach.
[31]
The legislator has chosen not to prescribe a
particular test to be applied by a decision-maker when determining whether to
grant H&C relief. As Noël J. noted in Paz v Canada (Minister of
Citizenship & Immigration), 2009 FC 412 [Paz] at para 28, the
Supreme Court of Canada has confirmed in Suresh v Canada (Minister of
Citizenship & Immigration), [2002] 1 S.C.R. 3 that applicants have “no right to a particular outcome or to the application of a
particular test” He continues: “[t]he lack of
official test or strict parameters is not justification for a judicial review
of the decision of a Minister’s delegate; it is simply the nature of a
discretionary decision”. Subsequently, Paz has been read as
standing for the proposition that an applicant does not have an absolute right
to the application of a particular legal test in the evaluation of his or her
H&C considerations (Iamkong v Canada (Minister of Citizenship &
Immigration), 2011 FC 355 at para 36).
[32]
In Kanthasamy at paras 50-52, Stratas J.,
writing for the Federal Court of Appeal, specified that the factors enumerated
in the Guidelines are reasonable types of matters that an officer must consider
on H&C grounds when raised by an applicant, but they are not law. The
Guidelines cannot fetter the discretion of decision-makers. Therefore, there is
no mechanical way in which an officer must approach such factors. Though he or
she must consider them depending on the context and the factual circumstances.
[33]
For the decision-maker, the purpose of the
administrative factors is to promote consistency in decision-making, shedding
light on how he or she is to meaningfully understand “usual
and undeserved, or disproportionate hardship” which has recently been
explicitly stated by the Federal Court of Appeal as the only “appropriate
standard” which can be understood to exist for purposes of drawing structural
boundaries around a decision-maker’s discretion in H&C decisions (see Kanthasamy,
paras 45-47 vis-à-vis Baker v Canada (Minister of Citizenship &
Immigration), [1999] 2 S.C.R. 817 [Baker], at paras 53-54). With
respect to the factors particularly, as mentioned in the foregoing, in order to
meet the appropriate standard of subsection 25(1), the Officer was not required
to approach them in a mechanical fashion.
[34]
This conclusion can be easily extrapolated from Kanthasamy,
above, at paragraph 53; in the same way the Federal Court of Appeal saw fit to
say the manual does not present a closed list of factors to consider under
subsection 25(1), neither can it be said that whatever list is said to exist
ought to be approached formulaically by decision-makers.
[35]
As for this Court, it has been held that the
Guidelines are useful in evaluating the reasonableness of an officer’s exercise
of discretion on an H&C application (Baker, at paras 53 and 72). In
addition, the factors “encompass the sort of consequences
that, depending on the particular facts of particular cases, might meet the
high standard of hardship associated with leaving Canada, associated with
arriving and staying in the foreign country, or both” (Kanthasamy
above, at para 50).
(2)
Did the Officer apply the wrong test to assess
the BIOC?
[36]
The applicants submit the Officer applied the
wrong test to determine the BIOC. Accordingly, they argue that while some
interests were mentioned, the approach employed is not “alive,
alert or sensitive” to the interests of the applicant children and the
Canadian born child; the analysis does not weigh the BIOC against other factors
and as such, the interests of the children are minimized, which makes the
decision unreasonable. They argue the test set out by this Court in Williams
v Canada (Minister of Citizenship and Immigration), 2012 FC 166 [Williams]
at para 63 should have been employed.
[37]
The applicants cite the following from the
Officer’s reasons, in which appears her assessment of the BIOC:
It is generally accepted that children are best
situated if they remain with their family. In addition, Canada has a good
school and medical system. I accept the children would benefit from living in
Canada permanently.
[38]
The applicants argue that the passage nowhere
demonstrates if and how the Officer balanced the BIOC with other factors; that
being the educational interests of the children and the child who has sickle
cell anaemia. The applicants also note the Canadian child has a medical
condition, which was not submitted to the Officer because the child is excluded
from the H&C application. The applicants concede the Officer mentioned the
child with sickle cell anaemia in her reasons, but argue that notwithstanding
the lack of documentation: a) the applicant submitted to the Officer that
treatment was unavailable in Nigeria; b) documentary evidence was submitted
proving the child was receiving specialized treatment in Canada; and c) the
same Officer took it upon herself to make assumptions, absent documentary
evidence, in other circumstances; for instance, as mentioned above, the fact
the principal applicant “would be successful in finding
work to support his family wherever he wishes to live.”
[39]
Therefore, they argue the Officer was not
justified in dismissing the submission that treatment was unavailable in
Nigeria and that she failed to appreciate how the children had never lived in
Nigeria, as they were previously in Hong Kong, a location they could not
return.
[40]
The respondent argues that the Officer applied
the right approach by being simply alert, alive and sensitive to the BIOC,
which is in line with Baker; no formulaic approach as set out in Williams
is required.
[41]
The respondent submits that given the evidence
before her, the Officer not only chose the right test, but applied it
effectively; the Officer was alert, alive and sensitive as she adequately
stated the law on the BIOC, the age of the applicants and quoted the
submissions of the applicants, an accurate summary, in conjunction with
whatever evidence supported, including the child with sickle cell anaemia, and
the concerns of being separated from the Canadian child. Secondly, the respondent
points the Court to Owusu at paras 5 and 8:
[5] An immigration officer considering
an H & C application must be "alert, alive and sensitive" to, and
must not "minimize", the best interests of children who may be
adversely affected by a parent's deportation: Baker v. Canada (Minister of
Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.) at para. 75.
However, this duty only arises when it is sufficiently clear from the material
submitted to the decision-maker that an application relies on this factor, at
least in part. Moreover, an applicant has the burden of adducing proof of any
claim on which the H & C application relies. Hence, if an applicant
provides no evidence to support the claim, the officer may conclude that it is
baseless.
[…]
[8] H & C applicants have no right
or legitimate expectation that they will be interviewed. And, since
applicants have the onus of establishing the facts on which their claim rests,
they omit pertinent information from their written submissions at their peril.
In our view, Mr. Owusu's H & C application did not adequately raise the
impact of his potential deportation on the best interests of his children so as
to require the officer to consider them. [Emphasis added]
[42]
Accordingly, the respondent argues that the
submissions of the applicants were deficient because they did not provide
enough supporting documentation; the evidence supporting the best interests of
the ill children is deficient.
[43]
I recognize that the children’s best interests
were not first identified as the starting point (Chandidas v Canada (Minister of Citizenship & Immigration), 2013 FC 258 at para 63).
[44]
However, I agree with the respondent, the
caselaw is clear: there is no requirement that a decision-maker employ the Williams
approach in order to demonstrate she was “alert, alive
and sensitive” to the “best interests of a child”,
as required by Baker. Consistent with Hawthorne v Canada (Minister of
Citizenship and Immigration), [2003] 2 FC 555 [Hawthorne], this
Court has upheld a variety of different approaches and has explicitly confirmed
the Williams test as only one of those several methods available to
decision-makers in assessing the “best interests of the
child” (Webb v Canada (Minister of Citizenship and Immigration),
2012 FC 1060 [Webb] at para 13).
[45]
In Webb, the applicant similarly relied
on paragraph 63 of Williams to argue there was a reviewable error.
Mosley J. found that the approach was not practical; in a comparable way to the
case at bar, it is difficult to see how the Officer could have assessed the
degree to which the interests of the applicant children, including the Canadian
child, would be compromised by a negative decision given the focus of the
submissions, their minimal length and lack of supporting documentation relating
to Dave’s disease and unavailable treatment in Nigeria. The submissions focus,
on a vague and general basis, the negative impact leaving Canada would have on
the children’s future as regards their desirability to learn, opportunities,
separation and living adaptability.
[46]
The question is not whether the decision-maker
chose and applied the right test but rather whether he or she chose and applied
a reasonable approach. In order for an approach to be reasonable, the Officer’s
analysis must demonstrate that he or she is “alert, alive
and sensitive” to the BIOC (Baker, above at para 75).
[47]
An officer cannot duly satisfy this requirement
if he or she fails to separate analytically the BIOC assessment from the
H&C analysis, the latter underscored by the “usual
and undeserved, or disproportionate hardship” standard. The source of
the duty exists jointly in subsection 25(1) of the Act, unlike the factors
which stem from the Guidelines. This Court has set aside decisions on the mere
basis that the BIOC was measured against a standard of “usual
and undeserved, or disproportionate hardship” (see for example, Medina
Moya v Canada (Minister of Citizenship and Immigration), 2012 FC 971 at
paras 27-28).
[48]
The Federal Court of Appeal has held that an officer
is not “alert, alive and sensitive” if he or she
fails to well identify and define the child’s best interests (Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at para 12). At that
point, the obligation is fulfilled, and pursuant to his or her discretion, it
is up to the officer to determine what weight, in his or her view, which must
be given in the circumstances.
[49]
However, the officer’s capacity to well identify
and define the BIOC is subservient to the onus which lies on the applicants,
with a caveat. I agree with the respondent that the paragraph cited above is
key (Owusu above, at para 5). The intensity of the BIOC analysis will
depend on the length and focus of the applicant’s submissions and the evidence
adduced, but the latter is not absolute. In Owusu, the Federal Court of
Appeal had found the applicant omitted pertinent information at his own peril
because he did not sufficiently raise the impact of his potential deportation
on the best interests of his children. However, the Court later implied that in
circumstances where not enough supporting documentation is adduced, a positive
obligation can be imposed on the officer for further inquiry, that is, if the
impact on the children is sufficiently raised in the submissions; the
submissions must not be “oblique, cursory and obscure”
(Owusu at para 9).
[50]
In Griffiths v Canada (Minister of
Citizenship and Immigration), 2011 FC 434 [Griffiths], Near J. found
that the decision-maker had a positive obligation to inquire and discuss the
risk alleged by the applicant in his PRRA narrative, despite lack of evidence,
because his submissions about being branded an informer after his refugee
hearing were “not couched in comparable obscurity”
to the submissions in Owusu (at para 18). But in that case, the
decision-maker committed a reviewable error because he failed to consider the
informer allegation as a risk whatsoever in his reasons, which the Court
determined was not merely raised in passing by the applicant (Griffiths above,
at paras 12 and 15). Owusu was distinguished from Griffiths in
very different circumstances than the case at bar. Here, the Officer mentioned
the applicant child’s illness and the evidence submitted as a result. She
seemed to have implied she could not fully consider the BIOC without a doctor’s
note.
[51]
Hussain v Canada (Minister of Citizenship and
Immigration), 2006 FC 719 [Hussain] is
however more useful in the case at bar. Lemieux J. had found that despite
country conditions in Pakistan, the applicants had failed to raise lack of
schooling, health care and employment opportunities in Pakistan before the
decision-maker; as such, the submissions were too oblique, cursory and obscure
to impose a positive obligation on the officer to inquire further into the
BIOC.
[52]
While I note the impugned decision provided a
fuller analysis, the facts in that case are strikingly similar to those of Hussain:
the applicants had demonstrated that the children of school age had developed
bonds in Canada, they adapted well to living and integrating into the Québec
French Public School Educational System, there was a Canadian born child who
was seventeen months, and the principal applicant, who also did not provide
evidence that he could not find work in Pakistan (at para 9). Among other
submissions, the applicants argued the BIOC analysis was deficient for reason
of ignoring the lack of educational opportunities in rural Pakistan and health
services available to the children in that country.
[53]
In the case at bar, I find that the substance of
the applicants’ submissions are “oblique, cursory and
obscure” for the purposes of requiring the Officer to inquire further in
the BIOC analysis, absent adequate evidence. I note that in Owusu, the
Court commented on the length of the submissions, but I think the principle
applies equally to the substance.
[54]
First, the applicants’ submission of the
negative impact resulting from educational interruption is abstract and
includes no discussion about the ability to continue education in Nigeria.
Second, in relation to separation from the Canadian child, contrary to the
applicants’ submission, the child was mentioned, and no reference to illness is
made, only the following appears in the application form: “My son (Ikenna) is a Canadian citizen and he looks up to me. I
have endeavoured to be the best father for him. Since he was born, I have been
there for him and I have ensured that he receives the right care and guidance
to make him not only a productive part of Canada but also a God fearing
person.” At page 55 of the Tribunal Record, counsel for the applicants
submitted to the Officer the financial or emotional dependency of the Canadian
child to his parents, saying “[t]here is more than a
simple biological relationship. They have an ongoing relationship of care,
support and interdependence”; and the discussion continues with a
similar tone in the pages that follow. But as regards to substance, no details
are provided. A statement of live birth was submitted as part of the
application.
[55]
I note the following from Hawthorne as
particularly helpful:
5 The officer does not assess the best
interests of the child in a vacuum. The officer may be presumed to know
that living in Canada can offer a child many opportunities and that, as a
general rule, a child living in Canada with her parent is better off than a
child living in Canada without her parent. The inquiry of the officer, it
seems to me, is predicated on the premise, which need not be stated in the
reasons, that the officer will end up finding, absent exceptional
circumstances, that the "child's best interests" factor will play in
favour of the non-removal of the parent. In addition to what I would
describe as this implicit premise, the officer has before her a file wherein specific
reasons are alleged by a parent, by a child or, as in this case, by both,
as to why non-removal of the parent is in the best interests of the child. These
specific reasons must, of course, be carefully examined by the officer.
[Emphasis added]
[56]
I do not see any specific reasons submitted to
the Officer which required her to engage in a fuller analysis; no reasons were
given particularly explaining why the Canadian child could not be cared for, in
his best interests, in Nigeria. I also note that when Décary J.A. in Hawthorne
discussed the hardship facing children as one side of the coin, the Federal
Court of Appeal had not yet decided Owusu (and Hawthorne was not
discussed in Owusu).
[57]
This case, to some extent, resonates with Hawthorne,
but with respect, it is distinguishable. In Hawthorne, the Federal Court
of Appeal did not find the Officer’s treatment of the BIOC well identified or
defined notwithstanding the Officer’s excuse that there was lack of proof—the
Court found the Officer’s analysis as dismissive. For one reason, the applicant
had expressed concern that her child would live with her father, whom she
believed was charged with the sexual abuse of his step-daughter. The Court
found that the Officer committed a reviewable error by dismissing the
submission for lack of evidence since no documents showed the father had been
charged; the applicant however still provided evidence suggesting that a
children’s aid society had concerns about Mr. Allen’s suitability as a parent.
[58]
In the case at bar, the applicants did not give
the Officer a real opportunity, through their submissions or supporting
documentation to appreciate the medical condition Dave suffers, let alone the
impact care in Nigeria would have on him. The principal applicant does not
mention his son’s illness in his application form, and when asked if him or his
family members listed in the application for permanent residence “had any serious disease or physical or mental disorder”
he did not check “yes” (Tribunal Record, p 28).
The following is what appears in the submission made by his counsel,
accompanying the application, at the very end (Tribunal Record, p 56) :
I also ask the reviewing officer to consider
the medical condition for Dave Onowu. I understand that he has sickle cell
amenia and that he is unable to get in Nigeria the kind of medical treatment that
he has been receiving in Canada.
[59]
In conjunction an appointment slip from the
SickKids hospital listing various tests to be done by the sick child Dave, was
submitted, and an eye-doctor appointment notice. Nowhere is there a diagnosis
or explanation of the illness or treatment, no details are given such that the
Officer could have inquired further in the BIOC analysis. An officer cannot be
expected to be well-versed in medical knowledge.
[60]
In light of the foregoing, I am satisfied that
the Officer was “alert, alive and sensitive” to the BIOC given the quality of
the submissions raised and the amount of evidence before her; the approach
employed was reasonable.
(3)
Did the Officer err in providing inadequate
reasons?
[61]
The applicants contend the Officer’s reasons are
unreasonable because they do not appear logical, transparent or intelligible (Dunsmuir,
above). Accordingly, counsel submits the reasons are vague; in saying the
applicants did not demonstrate a deep seated attachment and rooting in Canada,
the Officer did not explain how she reached her conclusion nor what “deep seated attachment and rooting” actually means.
Particularly, the applicants argue the Officer should have described the type
and extent of establishment which would be considered “deep
seated and rooted”.
[62]
In a similar vain, the applicants argue the
Officer did not provide a full-fletched comparison of the applicants’
establishment to “someone who is on a study or work
permit”—nor was the standard actually described.
[63]
The applicants also submit the reasons do not
show how the Officer balanced the positive and negative factors in determining
establishment. Facts not favouring exemption were not discussed in the reasons;
the applicants rely on the following extract in the reasons:
The overall picture placed before me shows that
the Applicant family has been working in Canada, paying taxes, running a small
business, going to Church, attending school, receiving medical treatment and
volunteering. The hardship of returning to their country, include uprooting the
children, and finding work and a place to live in Nigeria.
[64]
The applicants argue that in over 120 pages of
documents submitted, the Officer’s reasons are not a fair summary; the applicants
rely on the following written by the applicants:
“Since we came to Canada, we have been working
and we have been self-supporting. We have been active within the community and
the Church, we preach at the Church and we mentor young children. Within the
community, people look up to us for guidance and direction. We have been able
to raise our kids in an environment of Christian thinking and aspirations. We
have been paying taxes and we contribute to the Canadian economy. We have our
own business and we own our own house. Since our arrival in Canada, we have
been very honest, hard working and law abiding with no criminal charges.”
[65]
Rather, they argue, the passage fails to
appreciate the picture of children bearing a multitude of different
citizenships, experiencing hardship and risk in a country they do not know,
facing risks of hardship despite a failed refugee claim and a child with a
serious medical condition; far beyond a situation akin to an individual on a
study or work authorization.
[66]
However, the applicants concede that no PRRA
evidence was submitted before the Officer and that the only medical evidence of
child illness is the appointment letter and a brief mention in counsel’s letter
submitted.
[67]
They also scrutinize the conclusion that the
principal applicant “would be successful in finding work
to support his family wherever he wishes to live” because it is
baseless—the reasons do not provide a justification for such a conclusion.
Accordingly, by failing to state the evidentiary burden, the statement is
speculative and inadequate.
[68]
The respondent submits that the reasons are
directly reflective of the amount and quality of evidence submitted by the
applicants. As regards the Officer’s conclusion about the principal applicant
finding work, the respondent argues the Officer’s reasons explicitly specify
that his conclusion is drawn from the “work history”
which includes the principal applicant’s experience in Hong Kong, there is no
speculation about his potential to work in Nigeria. The applicant did not
provide documentation to support the claim that he could not find employment in
Nigeria.
[69]
Respectfully, I cannot agree with the
applicants, they have isolated small sections in the reasons to assert lack of
justification, transparency and intelligibility—but as a whole, the reasons are
adequate: they reveal why the application was unsuccessful, somewhat the
process by which the Officer arrived at her conclusions (she stated the facts,
summarized the submissions, the state of the law), a basis for this Court to
assess possible grounds for judicial review, and how she found the supporting
documentation as insufficient.
[70]
The reasoning process is not flawless,
particularly the balancing of positive and negative factors, but this isn’t a
requirement—among other things, all that is required is that the reasons show
the decision-maker followed a reasoning process that merely sets out and
reflects consideration of the main relevant factors (VIA Rail Canada Inc v
Canada (National Transportation Agency), [2001] 2 FCR 25 at para 22). On a
standard of reasonableness, the Officer’s reasoning process falls within the
acceptable range because it clearly shows explicit and thoughtful consideration
of the main relevant factors.
[71]
With sympathy, I can see how the Officer’s
choice of expressing the benchmark of establishment (i.e. concepts such as “deep seated and rooted”) under the Act is not ideal nor
meaningful in the eyes of the applicants who have found their hardworking
activities and fruits of their labour canvassed in all but a couple of
sentences. But this Court has held that “when notes are the
method used to provide reasons, the threshold for adequacy of reasons is fairly
low”; the law is clear that administrative officers are not required to
provide detailed reasons for their decisions in a way similar to that expected
of adjudicative administrative tribunals—such a requirement would be
inappropriate (He v Canada (Minister of Citizenship and Immigration),
2012 FC 33 at para 39 and Ozdemir v Canada (Minister of Citizenship &
Immigration), 2001 FCA 331 [Ozdemir] at para 11).
[72]
Further, this Court is required to respectfully
appreciate “that a wide range of specialized decision-makers routinely render
decisions in their respective spheres of expertise, using concepts and language
often unique to their areas and rendering decisions that are often counter-intuitive
to a generalist” (N.L.N.U. above, at para 13).
[73]
As regards the volumes of supporting
documentation submitted by an applicant, “[d]ecision-makers
are not bound to explain why they did not accept every item before them. Much
depends on the significance of that evidence when it is considered in light of
the other material on which the decision was based” (Ozdemir
above, at para 9).
[74]
I am satisfied that the Officer discussed the
evidence sufficiently in light of all the material submitted. The reasons show
that she considered what was at stake for the family—given whatever supporting
evidence and submissions presented. The reasons may not canvass hardship nor
risk to the extent the applicants would have hoped, but that is because most of
the documentation submitted is oriented towards showing self-sufficiency,
adaptability, community outreach and educational performance in Canada—not the
probability of hardship nor lack of medical treatment in Nigeria.
VI.
Proposed Question for Certification
[75]
At the hearing, counsel for the respondent
submitted the following question for certification:
•
In H&C applications is the Officer required
to follow the test set out in Williams v Canada (Minister of Citizenship and
Immigration), 2012 FC 166 at para 64 in order to demonstrate that she is
“alert, alive and sensitive” to the best interests of the child?
[76]
The respondent has asked to certify this
question on few occasions - to name a few: Gomez Jaramillo v (Minister of
Citizenship and Immigration), 2014 FC 744 at paras 76-77 and Martinez Hoyos v Canada (Minister of Citizenship and Immigration), 2013 FC
998 at para 40. For this Court to certify a question, it must be a serious
question of general importance that transcends the interests of the parties to
the litigation and dispositive of the matter (Zazai v Canada (Minister of Citizenship & Immigration), 2004 FCA 89 at para 11). I am
satisfied that in Hawthorne, the Federal Court of Appeal has already
dealt with the crux of the issue, and no question of general importance arises.
VII.
Conclusion
[77]
For the reasons discussed above, the application
for judicial review will be dismissed and no question of general importance
will be certified.
Email this Content