Date:
20170404
Docket: IMM-3138-16
Citation:
2017 FC 340
Toronto, Ontario, April 04, 2017
PRESENT: The
Honourable Madam Justice Simpson
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BETWEEN:
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DAVID SHTJEFHILAJ
LINDITE
SHTJEFHILAJ
DIANA
SHTJEFHILAJ AND
ORNELA
SHTJEFHILAJ (BY HER LITIGATION GUARDIAN
DAVID
SHTJEFHILAJ)
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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
I.
Background
[1]
The Applicants applied for judicial review of a
decision of a senior immigration Officer [the Officer], dated July 11, 2016 [the
First Decision]. The First Decision was supplemented by a letter dated
July 19, 2016 [the Update Letter], and by a note made on the same date [the
Note], (collectively the Decision). The Decision denied the Applicants’
application for permanent residence on humanitarian and compassionate [H&C]
grounds. This application is brought pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA].
II.
The Note
[2]
The Applicants’ H&C application was made on
October 9, 2015, and was initially refused in the First Decision. However, the
Applicants changed counsel and made additional submissions [the Additional
Submissions] dated July 13, 2016. The Update Letter advised them that the
Additional Submissions had been accepted and considered, but that the refusal
was maintained. The Note explained the reasons for the Update Letter.
[3]
The Application for leave and judicial review
was perfected on September 30, 2016. However, the Applicants had not received
the Note by this time, because it was not included in the response to the Rule
9 Request [the Request]. The Note was not received until October 26, 2016, when
the Respondent filed an Affidavit by the Officer sworn on October 24, 2016. It
exhibited the Note and said that she had prepared it on July 19, 2016. This
meant that the Applicants did not receive the entire Decision until after they
perfected their Application and filed their Memorandum of Fact and Law. However,
the Applicants were not prejudiced because they filed a Reply Memorandum on November
4, 2016. It addressed the entire Decision, including the Note.
III.
The H&C Application
[4]
The Principal Applicant and his wife are
citizens of Albania. Their two daughters Diana (19 years old) and Ornela (16
years old) are citizens of the United States.
[5]
In the First Decision, the Officer noted that
the only evidence before her showed that husband and wife had worked as a cook
and waitress since 2013 and 2015, respectively. The Officer found that while
the Applicants had “achieved a level of establishment
through employment and friendships in their community…it is not above what
would be expected after 4 years in Canada.”
[6]
In the Note, the Officer described the evidence provided
with the Additional Submissions. It included letters from employers and friends;
a letter from the pastor of the family church; a letter from a relative; a
letter from the building superintendent at their apartment; income tax
documents and bank statements; Ornela’s report card and a reference from her
teacher; and country condition reports.
[7]
The Officer found that notwithstanding the
Applicants’ employment, financial self-sufficiency and community friendships,
their establishment was still not above “what would be
expected.”
[8]
A social worker interviewed Ornela twice and in
her Report [the Report] summarized Ornela’s concerns about relocating to
Albania. They included a concern that she would lose her current friends and
that the language barrier would negatively impact her ability to make new
friends and succeed in school. She was worried that her marks would drop and
this would negatively affect her opportunities for further education and a
career. She was also worried that she would lose the significant support of her
older sister, Diana, who planned to attend Humber College in Toronto. The
Report included the Social Worker’s opinion that Ornela was at a stage in her
development when she needed peer support.
[9]
The Officer noted that Albania has a public
school system and that because she is an American citizen, Ornela could return
to the US for her post-secondary education. The Officer reasoned that since
both Ornela’s parents speak fluent Albanian “she must
understand and speak Albanian to some extent.” The Officer concluded
that Ornela’s adaptation to life in Albania was “not an
impossible feat” given that she would have family support and had already
demonstrated resiliency to change when she came to Canada. The Officer
concluded that Ornela could continue her Canadian friendships from Albania
using long distance technology. In the Note, the Officer suggested that in
Albania, the family could pursue private schooling or tutoring for Ornela, and
the Officer repeated her conclusion that the quality of life the family would
have in Albania would not be substandard to a level that would put Ornela’s
wellbeing in jeopardy.
IV.
Issues
A.
Was the failure to provide the Note until after
the application was perfected a breach of procedural fairness?
B.
Was the analysis of establishment reasonable?
C.
Was the analysis of Ornela’s best interests reasonable?
V.
Discussion and Conclusions
A.
Was the failure to provide the Note until after
the application was perfected a breach of procedural fairness?
[10]
The Applicants were concerned that the Note
might have been prepared after their application for leave was perfected.
However, since I accept the Officer’s evidence that it was made on July 19,
2016, I have found no breach of procedural fairness.
B.
Was the analysis of establishment reasonable?
[11]
The Applicants’ letters of support show that
they are hardworking, self-supporting members of their community. They are
admired by their employers, friends, family and members of their church. Their
daughters are well liked by friends and family and Ornela has the respect and
admiration of a teacher at her school. In sum, the evidence shows that this is
a happy, hardworking, well-adjusted family. The Officer acknowledges that this
degree of establishment is a positive factor, but says it is not exceptional in
the sense that it is what would be expected after 4 years.
[12]
The Applicants criticize this conclusion saying
that the Officer fails to explain what level of establishment would be
exceptional. However, it is important to recall that the issue is not the
degree to which the Applicants have become established. Rather, the question is
whether the degree of establishment they have achieved, whatever it may be, is
such that if required to leave Canada, they will experience unusual, undeserved
or disproportionate hardship other than the hardship normally associated with a
departure. In my view, when the Officer said the establishment was what would
be expected, she meant and was really saying that their circumstances were
ordinary and that there was nothing about them that would meet the hardship test.
In other words, they would experience the usual impact of separation – the loss
of jobs and friends. On the facts of this case, I have concluded that this
aspect of the Decision is reasonable.
C.
Was the analysis of Ornela’s best interests
reasonable?
[13]
The only child at issue is Ornela and, in my
view, the analysis of her best interests was unreasonable because it was
unrealistic. For example, the Officer has no basis for her speculation that
Ornela speaks Albanian, especially when the Report says she is concerned about
the language barrier. Further, it was unreasonable of the Officer to find
Ornela to be resilient and able to cope with a move from Canada to Albania
based on her move from Michigan to Ontario. The two moves are not comparable.
[14]
The Report’s conclusion that a return to Albania
would have a “profound negative impact on Ornela”,
was largely based on the language barrier which will make it hard for her to
make friends at a stage in her development when she needs peer support. The
Officer addressed this concern by suggesting that her Canadian friendships
could be sustained over the internet. In my view, it is not reasonable to
conclude that Canadian teenagers will take the time necessary to maintain their
friendships with Ornela when they are unlikely to see her again.
[15]
Lastly, although no test is established for the
best interests of the child, I find it unreasonable of the Officer to conclude
that her best interests are only impacted in a negative manner if her
well-being will be in “jeopardy” in Albania, or if
she faces “an impossible feat” adapting to life
in Albania.
VI.
Conclusion
[16]
The application will be granted.
VII.
Certification
[17]
No questions were posed for certification for
appeal.
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