Date: 20171213

Docket: IMM-2286-17

Citation: 2017 FC 1140

[ENGLISH TRANSLATION]

Winnipeg, Manitoba, December 13, 2017

PRESENT: The Honourable Mr. Justice Locke

JUDGMENT AND REASONS

I.                    Nature of the case

[1]               This decision deals with four applications for leave and judicial review of four decisions by a Citizenship and Immigration Canada senior immigration officer (the officer), ruling that the factors identified by the applicants in support of their permanent residence application on humanitarian and compassionate grounds (H&C application) did not warrant an exemption under section 25 of the Immigration and Refugee Protection Act (SC 2001, c. 27).

II.                 Facts

[2]               This is a family of ten of Colombian origin: the principal applicant, his spouse, their two children, his parents, his brother, his sister and his two nieces. The following table provides a complete list of the applicants, as well as their current status in Canada:

Note: The son (Juan Sebastian) was a minor until April 3, 2017. One of the nieces (Maria Paula) was a minor until December 31, 2016.

[3]               The applicants allegedly fled Colombia for fear of their lives and arrived in Canada on January 23 and 24, 2016. The applicants filed two refugee claims, which were dismissed by the Refugee Protection Division (RPD) on June 27, 2016. This Court rejected their application for leave and judicial review of the RPD’s decision on October 20, 2016. The applicants then filed a refugee claim, which was also dismissed. This last application is the subject of this judicial review; the joinder of the four cases filed by each family unit was ordered by Prothonotary Richard Morneau on August 18, 2017.

[4]               At the same time, a removal order was executed and confirmed on December 30, 2016, against six of the family members (see table above), but not for the principal applicant, his son, his daughter, and his brother, who chose not to comply with this removal order and are currently subject to arrest warrants for removal dated February 22, 2017 and April 5, 2017 (for the son).

III.               Decision

[5]               The applicants claimed the best interests of the minor children, the union of the four family units, the degree of establishment, and certain medical circumstances. The applicants argued that removal to Colombia would cause them serious financial distress, destroy their efforts to integrate into Canadian society, and aggravate several supposed health conditions.

[6]               The officer considered the evidence submitted by the applicants, including evidence on their establishment in Canada, the best interests of their children, family circumstances, and adverse conditions in Colombia.

[7]               The officer was not satisfied that the humanitarian and compassionate grounds warranted an exemption.

[8]               With respect to the applicants’ establishment factor, the officer took into account the applicants’ efforts to integrate into Canadian society and the support of their social and family networks, but found that the applicants’ submissions failed to establish sufficient establishment in Canada. The officer refused to give significant weight to evidence that suggested a potential for establishment in the future, such as an offer of employment that the principal applicant had reportedly received. The officer noted that the applicants’ stay was approximately one year and that ties to Canada were relatively recent and did not warrant an exemption in the context of an H&C application.

[9]               With respect to the best interests of the children, the officer considered the fact that the principal applicant’s minor daughter and niece left Canada in December 2016 and noted the lack of evidence and explanations regarding their situation since being removed from Canada. The officer held that the children had the possibility of benefiting from resources and family ties in Colombia and found that [translation] “the information and evidence in the record do not tend to satisfactorily establish how the well-being of the children would be particularly compromised.”

[10]           With respect to family circumstances, the officer noted the close ties between the family members; she did note, however, that the family’s separation resulted from the decision of several members not to leave Canada as the same time as others following the removal order.

[11]           Finally, with regard to adverse conditions in Colombia and the connection with the applicants’ health conditions, the officer noted the lack of probative evidence regarding the applicants’ current medical situation. On one hand, the officer doubted the authenticity of the applicants’ medical records, since the documents had been drafted in Spanish and were translated into French, but did not bear an official seal. On the other hand, the medical conditions described in their Canadian health records did not require ongoing or advanced medical supervision.

IV.              Issues

[12]           The applicants raised four questions:

1. Was there a breach of procedural fairness? In other words, did the officer err in assessing the H&R application on the date of her decisions and not on the date on which the H&C application was filed, and without requiring additional information or conducting independent research using the tools that were at her disposal?
2. Did the officer err in her analysis of the best interests of the children?
3. Did the officer err in her analysis of the risks and adverse conditions in Colombia?
4. Did the officer err in her analysis of the applicants’ establishment in Canada?

V.                 Analysis

A.                 Standard of review

[13]           There is no debate about the standard of review that applies in this case. Procedural fairness is subject to the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43. The other issues involve analyzing the evidence and questions of mixed fact and law, and are subject to the reasonableness standard: Rocha v Canada (Citizenship and Immigration), 2015 FC 1070 at para 19.

B.                 Procedural fairness

[14]           The applicants submit that any consideration of the facts that date from the filing date of the H&C application constitute an ex post facto analysis of the application and is erroneous. The applicants also argue that, in the case that considering the facts that dated after the filing date of the H&C application was permitted, the officer was required to seek additional information, either by asking the applicants or conducting independent research using the tools at her disposal. The applicants argue that such research would have revealed that the principal applicant had obtained his work permit in December 2016. The applicants submit that this fact might have changed the officer’s finding regarding the issue of establishment in Canada.

[15]           Furthermore, the applicants claim that it is unfair to consider certain facts that date after the filing of the H&C application without considering others (e.g. the lack of evidence regarding the children’s situation after their removal to Colombia versus the fact that the principal applicant received a work permit).

[16]           On the issue of the officer’s duty to request additional information, the case law is clear. The burden of proof rests on the applicants to prove any allegation on which they base their application: Owusu v Canada (Citizenship and Immigration), 2004 FCA 38 at para 5; Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 35 [Kisana]. There is no general obligation requiring an officer to request additional information: Kisana at paras 42 to 45 and 61. An officer’s duty to make such a request depends on the facts of each case.

[17]           In the case of the applicants, I am not satisfied that there were specific facts that required the officer to make such a request. I therefore find that the officer did not err by failing to conduct independent research.

[18]           With respect to the date on which an H&C application should be analyzed, the applicants do not cite any authority to support their contention that the applicable date should be the date on which the application was filed. Furthermore, the authorities provided by the applicants relating to the concept of an ex post facto analysis do not apply to the facts in this case.

[19]           Since the applicants, in their factum, did not take a clear position that the H&C applications should be analyzed as of the filing date, the respondent did not provide any case law on this point.

[20]           Although there is the concept of a fixed date in certain immigration contexts (where the filing date may be relevant), I am satisfied that this is not the case regarding an H&C application. Therefore, the date on which the H&C application should be analyzed is the date of the decision.

C.                 Best interests of the children

[21]           The applicants have two arguments under this heading. First, they argue that the officer erred in her consideration of the letter from the social worker who was caring for one of the principal applicant’s nieces (Maria Paula). More specifically, the applicants argue that it was unreasonable to consider the absence of the psychologist’s report to which the social worker referred. The second argument is that the officer’s analysis of the children’s best interests was unreasonable because she failed to adequately consider the hardship that the children would face in Colombia and the benefits for them in Canada.

[22]           Before considering the applicants’ arguments under this heading, I would like to note that it is settled case law that H&C applications are to be allowed only under exceptional circumstances: Tindale v Canada (Citizenship and Immigration), 2012 FC 236 at para 9; Jurado Tobar v Canada (Citizenship and Immigration), 2011 FC 1111 at para 4. Moreover, given the highly discretionary nature of H&C decisions, this Court demonstrates a high degree of deference towards this type of decision, especially since they lend themselves to a wider range of possible acceptable outcomes.

[23]           Having considered the applicants’ arguments on this issue, I am not satisfied that this is a case in which the Court should intervene. Although the officer noted the absence of the psychologist’s report to which the social worker referred in her letter, I find that the officer still gave some weight to this letter, and that her finding on this issue is based on a lack of clarification concerning Maria Paula’s circumstances in Colombia.

[24]           It is also clear that the officer weighed the considerations relating to the issue of the children’s best interests, including the adversity faced by the children in Colombia and the benefits for them in Canada.

D.                 Risks and adverse conditions in Colombia

[25]           The applicants do not clearly describe the errors committed by the officer that they allege under this heading. In their factum, they argue that the officer failed to consider the evidence as a whole, but provide few details supporting this position. No details were added at the hearing of this application.

[26]           I am not satisfied that the officer erred in her analysis of the risk and adverse conditions in Colombia.

E.                  Establishment in Canada

[27]           Under this heading, the applicants submitted the following:

1. The officer should not have focused on the amount of time spent in Canada, but rather on what the applicants built while they were in the country;
2. The officer allegedly erred in stating that the applicants’ stay in Canada was approximately one year (which was the case when the H&C application was filed) instead of 15 months (which was the case at the time of the decision);
3. The officer should have noted that the length of the stay, either 11 months or 15 months, is more significant for a child than for an adult.

[28]           In my view, the officer clearly indicated that she considered [translation] “what the applicants built during their stay.” Essentially, the applicants complained about the weight that the officer gave to the various aspects of the evidence on this subject. This is not a reason to overturn the decision.

[29]           With respect to the second and third arguments, I am satisfied that the officer understood the evidence. I was not unreasonable not to mention the facts raised in these arguments.

VI.              Conclusions

[30]           For the reasons given above, the applications for judicial review in dockets IMM-2286-17, IMM-2287-17, IMM-2290-17, and IMM-2291-17 must be dismissed.

[31]           The applicants submit two questions that they are asking me to certify as serious questions of general importance:

1. In an H&C application, can an officer undertake an ex post facto analysis when the applicant is removed from Canada?
2. Is the officer required to request additional information when undertaking an ex post facto analysis?

[32]           As noted above, the applications state that by “ex post facto” they mean after the date on which the H&C application was filed.

[33]           I refuse to certify both of the applicants’ questions; in my view, the case law is clear on both points. Therefore, there is no serious question of general importance.

JUDGMENT

THIS COURT’S JUDGMENT is that:

1.      The applications for judicial review in dockets IMM-2286-17, IMM-2287-17, IMM-2290-17, and IMM-2291-17 are dismissed.

2.      No serious question of general importance is certified.

3.      A copy of this judgment and reasons will also be filed in dockets IMM-2287-17, IMM-2290-17, and IMM-2291-17.

“George R. Locke”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: