Docket: IMM-4067-16
Citation:
2017 FC 597
Ottawa, Ontario, June 15, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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YANDI LUO,
SHUXIN CAO AND SHUNXIN CAO
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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.
Overview
[1]
The Principal Applicant [PA] and her two
daughters, Shuxin and Shunxin, arrived in Canada in July 2011 from Trinidad
& Tobago. Their claim for refugee protection was dismissed. This is a judicial
review of a decision of Citizenship and Immigration Canada [CIC], dated September
9, 2016, denying their application for permanent residence on humanitarian and
compassionate grounds [H&C], pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
The PA is a citizen of China. Her country of
last permanent residence is Trinidad & Tobago. She is the mother and sole
provider for her three children: two daughters who are citizens of Trinidad
& Tobago; and a son who is a citizen of Canada. The PA is divorced from
their father who resides in Trinidad & Tobago. She argues that the H&C
decision is unreasonable and that the H&C Officer [the Officer] failed to
properly consider the evidence of establishment and the best interests of the
children [BIOC].
[3]
For the reasons that follow, this judicial
review is dismissed.
II.
H&C Decision under review
[4]
The Officer considered the issues of establishment
in Canada, adverse country conditions in China and in Trinidad & Tobago,
and the best interests of the three children.
[5]
On the issue of establishment, the Officer concluded
that the PA failed to demonstrate a significant degree of establishment in
Canada. While the PA had become employed in January 2016, for the majority of
her time in Canada, she had not worked and collected Social Assistance
Benefits. The Officer concluded that her employment history did not demonstrate
that she would be able to support herself and her children in Canada.
[6]
On the other hand, the Officer attributed
positive weight to the following factors: the PA made efforts to improve her
language skills; she was a volunteer; her daughters were enrolled in school;
and, the family was involved in their church.
[7]
The PA claimed that she would be face
discrimination in China as a single mother. She also argued that education is
very costly, and that there is a lack of freedom in China. With regard to Trinidad
& Tobago, she contended that her children would be in danger of being
kidnapped or killed.
[8]
In the absence of evidence to support the claims
of adverse country conditions, the Officer concluded:
“I note that the
applicants have not provided any documentary evidence, such as research reports
or articles concerning country conditions in China and in Trinidad and Tobago,
to support the PA’s statements. In the absence of any supporting documentary
evidence I do not find that the applicants’ H & C materials are sufficient
to demonstrate, either that there are adverse country conditions in China and
in Trinidad and Tobago, or in the event that there are adverse conditions in
these countries, that the applicants would experience a direct, negative affect
as a result of them.”
[9]
While the Officer did note that the children
would likely undergo a period of adjustment upon resettlement in China or in Trinidad
& Tobago, he did consider the fact that the PA and the two minor applicants
had previously lived in Trinidad & Tobago, and the age of the children, as
being factors which would assist in the transition.
[10]
After examining the circumstances and documents
in support of the applicants’ claim, the Officer was not satisfied that the
H&C considerations justified an exemption under subsection 25(1) of the
IRPA.
III.
Issues
[11]
The PA argues that the H&C decision is
unreasonable on two main grounds:
- Is the Officer’s
decision with respect to establishment reasonable?
- Did the Officer
err in the BIOC analysis?
IV.
Standard of review
[12]
The standard of review for an H&C
application is reasonableness (Kisana v Canada (Citizenship and Immigration),
2009 FCA 189 at para 18). Therefore this Court should not intervene unless the
Officer’s conclusions do not fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
V.
Analysis
A.
Is the Officer’s decision with respect to
establishment reasonable?
[13]
The PA argues that the Officer failed to
undertake an empathetic approach in considering the issue of establishment. She
submits that his consideration was too narrow in focus. She also argues that
the Officer failed to consider the progress she has made in the five (5) years since
she has been in Canada.
[14]
The Officer noted however that five (5) years does
not constitute a considerable period of time. The Officer also noted that the applicants
have few family members in Canada and that the father of the children resides
in Trinidad & Tobago.
[15]
The Officer acknowledged that the PA has secured
full time employment in January 2016, and earns $11.50/hour. However, the
Officer noted that for the majority of the time she has been in Canada (July
2011- January 2016) the PA has been unemployed and in receipt of Social Assistance
Benefits. Therefore, the Officer concluded that the PA’s employment history
does not demonstrate that she will be able to support herself and her children
in Canada.
[16]
The Officer attributed positive weight to the
fact that the PA made efforts to improve her language skills. He also
considered the fact that her two daughters were enrolled in school, and their
involvement in their church as positive factors.
[17]
Nevertheless, the Officer determined that these
were not sufficient to demonstrate a significant degree of establishment in
Canada.
[18]
The Officer considered the factors raised by the
applicants in their evidence, including the hardships they would face if they
were to resettle in Trinidad & Tobago or China. In considering this, the Officer
noted: the severance of friendships; the PA’s employment history; the PA’s
efforts to improve her English; her volunteer record; and the children’s
achievements.
[19]
Overall, the Officer’s consideration and treatment
of the evidence was reasonable. It is not the role of this Court to reweigh the
evidence (see Canada (Citizenship and Immigration) v Khosa , 2009 SCC 12
at paras 4 and 59).
[20]
The Officer’s analysis of the applicants’ degree
of establishment does not give rise to any reviewable errors.
B.
Did the Officer err in the BIOC analysis?
[21]
The PA argues that the Officer erred in his BIOC
analysis by taking a narrow approach and failing to adopt a “holistic approach”, as enunciated by the Supreme
Court of Canada in Kanthasamy v Canada (Citizenship and Immigration),
2015 SCC 61 [Kanthasamy].
[22]
In Kanthasamy, the SCC directed that an
officer must engage in a highly contextual analysis (see Kanthasamy at
para 35). The SCC noted that the concept of “unusual, undue and disproportionate hardship” is inapplicable. However, officers are not prohibited from
considering the hardship which may be faced by a child if they are not granted
an exemption under subsection 25(1) of the IRPA (Kanthasamy at
para 41; Canada (Minister of Citizenship and Immigration) v Hawthorne,
2002 FCA 475 at para 9). The analysis of the BIOC must be well identified and
defined, and be considered attentively in light of the evidence (see Kanthasamy
at para 39).
[23]
Additionally, the officer must be “alert, alive and sensitive” to the best interests of the children (Baker v Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 75); however the
mere presence of children does not necessarily call for a specific result (Canada
(Minister of Citizenship and Immigration) v Legault, 2002 FCA 125 at para
12).
[24]
Here, the Officer’s reasons demonstrate that he
identified the BIOC considerations and examined them in light of the
submissions of the applicants. The Officer considered the following: the PA is the sole caregiver and that there is no indication that
the children’s basic needs are not being met; the children would have to
undergo a period of readjustment if they had to resettle; the majority of the
applicants’ relatives reside in China and there is nothing in the evidence to
suggest that they would not assist the children in adjusting to life there;
alternatively, there was nothing in the materials to suggest that the children
would not benefit from being closer to their father in Trinidad & Tobago;
and Shuxin and Shunxin would likely excel in school and make friends elsewhere
as a result of their academic and social skills.
[25]
The Officer considered the H&C submissions
regarding Shuxin and Shunxin’s best interest to remain in Canada, as they are both
attending school and have a network of friends in Canada. He found that
although they would experience some sadness upon having to leave friends behind
and resettle, the documentation from their school indicated that they have good
academic and social skills which would assist them to adjust in either China or
Trinidad & Tobago.
[26]
The Officer also concluded that the applicants’
evidence failed to demonstrate that there are adverse country conditions in
China or Trinidad & Tobago with respect to the children.
[27]
The Officer’s reasons demonstrate that he fully considered
the factors raised by the applicants in relation to the BIOC. It is not the role of the Officer to locate evidence in support of the applicants’
H&C application as the burden of proof rests on the applicants (see Lu v Canada (Citizenship and Immigration), 2016 FC 175 at para 42).
[28]
The Officer did not err in his assessment of the
evidence and of the various factors relevant to the BIOC analysis.
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