Docket: IMM-3383-16
Citation:
2016 FC 1029
Ottawa, Ontario, September 9, 2016
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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MAGUY KIMBULU
TSHIMWENZI
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TALINA HILLA
KAKO NZIMBI
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GABRIËL JEAN E.
NZIMBI
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Applicants
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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THE MINISTER OF
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
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Respondents
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JUDGMENT AND REASONS
I.
Overview
[1]
“Justice, justice, you
shall pursue” is a universal Biblical dictum,
often repeated in the canons of each tradition and in secular legal sources,
both by nation states and by international organizations.
[2]
The reasons for the dictum, as a watchword
phrase, with the repetition of the word “justice”,
is to ensure that all evidence in every case, is considered and, at the very
least, acknowledged to ensure that no stone will ever be left unturned.
[3]
The outcome of a case is never certain; however,
the consideration of all evidence should be a given. If it is not, then a
decision-maker did not do what is incumbent in such a responsible task.
[4]
In this case, the decision-maker stated that
evidence, clearly on record, was absent. That is unacceptable and Kafkaesque as
it was clearly on file.
[5]
The Kanthasamy judgment of the Supreme
Court (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy])
does not conclude as to how all such cases must be decided in respect of their
final respective outcomes; that is not, necessarily, to grant certain status to
children in such cases; but, rather, the Kanthasamy judgment, most
significantly, does point out what primordial considerations must be taken into
account in the case of children, due to the fragility and vulnerability of
their human condition, as acknowledged both under domestic and international
law. Both of which under law require attention which must be clearly
demonstrated in decisions in respect of children.
II.
Reasons
[6]
This judgment is in response to a motion for a
stay of removal of an Enforcement Officer’s decision refusing to defer the
removal of the principal Applicant and her two minor children, also Applicants.
[7]
The underlying application is for judicial
review of a decision in respect of an application for permanent residence on
the basis of Humanitarian and Compassionate considerations.
[8]
The principal Applicant was in a relationship
with a common-law spouse (originally from the Democratic Republic of the
Congo), father of her two minor children.
[9]
The case arises due to the abuse by the
common-law spouse which consisted of physical and psychological domestic abuse
in regard to the principal Applicant, the children, including abuse and sexual
improprieties in respect of the minor daughter.
[10]
The principal Applicant’s common-law spouse
spent time in a psychiatric hospital; had been discharged and then threatened
to kidnap their daughter to the Democratic Republic of the Congo.
[11]
Although the Applicants emanate from Europe in
which, as per the European Union, they could settle anywhere therein, and where
institutions and entities could serve to protect them, the Applicants have
clearly explained their fear and peril faced in view of a specific fact-pattern
of evidence by which to substantiate their sense of impending peril.
[12]
A child’s letter on file demonstrates their fear
of return to a situation where their father would be in their reach, a letter,
which was not, at all, acknowledged by the decision-maker, of which was said,
there was none.
[13]
The Applicants, at the outset of their stay in
Canada, withdrew their application for refugee status on recognition that their
case did lend itself more so to a request for Humanitarian and Compassionate
considerations.
[14]
A psychological report and other documents on
record demonstrate evidence of fear, anxiety and duress on the basis of peril
which the Applicants previously faced; whereas, their lives in Canada have been
given a sense of security and serenity which they had not encountered
previously prior to their arrival herein. Reference is made to Bonil Acevedo
v Canada (Public Safety and Emergency Preparedness), 2007 FC 401 at paras
53-54 [Acevedo], and the judgments cited therein, in addition to paragraph
57 of Acevedo, wherein the Baker judgment of the Supreme Court is
also specified with its pertinence to the present case, recalling the Kim
judgment, mentioned in the Kanthasamy decision of the Supreme Court
cited above.
[15]
Significant evidence on file before the Court
was not, at all, acknowledged in the underlying decision. It, therefore,
requires, at the very least, a need to be addressed, even if, but briefly.
[16]
The most recent Kanthasamy judgment specifies
most clearly that the interests of children must be “well
identified and defined”; thus, assessed “with a
great deal of attention” in light of evidence on file.
[17]
The Kanthasamy judgment does not conclude
as to how all such cases must be decided in respect of their final respective
outcomes; that is not, necessarily, to grant certain status to children in such
cases; but, rather, the Kanthasamy judgment, most significantly, does
point out what primordial considerations must be taken into account in the case
of children, due to the fragility and vulnerability of their human condition,
as acknowledged both under domestic and international law. Both of which under
law require attention which must be clearly demonstrated in decisions in
respect of children.
[18]
In view of all of the above, the conjunctive
tripartite test in the Toth judgment (Toth v Canada (Citizenship and
Immigration) (1988), 86 NR 302 (FCA)) is fully satisfied by the Applicants.
[19]
Therefore, the stay of removal is granted to the
Applicants, pending final determination of their underlying application for
leave and judicial review.
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