JAIME ALBERTO ROCHA VALENZUELA Applicant v. THE MINISTER OF, 2016 FC 603

Date: 20160531 Docket: IMM-4166-15 Citation: 2016 FC 603 Ottawa, Ontario, May 31, 2016 PRESENT: The Honourable Mr. Justice Diner BETWEEN: JAIME ALBERTO ROCHA VALENZUELA Applicant And THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I.

Background [ 1 ] This is a judicial review, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [the Act], of a July 15, 2015 decision [Decision] by two Citizenship and Immigration Canada Officers [the Officers] refusing a permanent residence visa to the Applicant’s daughter on the basis of Humanitarian and Compassionate [H&C] considerations. [ 2 ] The Applicant is a citizen of Colombia and Canada.

In January 2002, he and his mother fled Colombia to Cuenca, Ecuador after the Revolutionary Armed Forces of Colombia [FARC] repeatedly attempted to recruit him. [ 3 ] In Ecuador, the Applicant entered into a relationship with Ms. Paola Gomez Valenzuela. Their daughter, Ana Paula Rocha Gomez, was born on June 28, 2004. At that time, the Applicant and his mother had fled Cuenca for Guayaquil, Ecuador after an encounter with Colombians they believed to be affiliated with FARC. [ 4 ] The Applicant and his mother then applied for refugee status in Canada from abroad.

They were granted permanent residence in Canada as Convention refugees on September 5, 2006. The Applicant became a Canadian citizen in 2014. [ 5 ] During the 2006 application process, the Applicant did not inform Canadian immigration authorities that he had a daughter. He has since stated that this was on the instruction of his mother, who felt it might delay or derail the application. [ 6 ] In March 2008, the Applicant returned to Ecuador and he and Ms. Gomez Valenzuela got married.

In 2010, he submitted an application to sponsor both his daughter and his spouse for permanent residence as members of the family class, along with submissions on H&C considerations for an exemption from paragraph 117(9) (

d) of the Immigration and Refugee Protection Regulations , SOR/2002- 227 [the Regulations], which states that: 117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if: … (d) … the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. [ 7 ] By March 2014, the relationship between the Applicant and Ms. Gomez Valenzuela had ended. The Applicant withdrew his sponsorship of Ms.

Gomez Valenzuela but continued with the H&C request for his daughter. [ 8 ] In the Decision, the Officers first noted that Ana Paula’s application for permanent residence was barred by paragraph 117(9) (

d) of the Regulations . The Officers then turned to the Applicant’s request for an H&C exemption under subsection 25(1) of the Act . While the refusal letter itself did not contain any detailed assessment of the H&C considerations, there were substantial comments made by each of the Officers in the Global Case Management System [GCMS] notes that form part of the reasons for the Decision: A . “[T]here was no support letter from the child’s mother now divorced from the sponsor regarding of [sic] her young daughter immigrating to Canada to live with her father” (Application Record at 4 [AR]). B .

The “decision of the child’s mother to continue to reside in Ecuador did not mention any particular hardship” (AR at 4). C . “During interview conducted in March 2014 of [Ana Paula’s] mother… her mother indicated the following about [Ana Paula’s] life in Ecuador: [she] is happy, healthy and well cared for in Ecuador. [Ana Paula’s] maternal grandfather is a commercial engineer and works for a company in Guayaquil. Her grandmother is a housewife and [her] mother stated that [Ana Paula] and she are very close. [Ana Paula’s] aunt is a paediatrician and her uncle is an electrical engineer.

She attends school and is doing very well” (AR at 5). D . There is “no indication that the child concerned is lacking in terms of her basic needs, love, or education, or in a situation of danger” (AR at 5). E . “A couple of months following the interview, [the Applicant] submitted a withdrawal for his spousal sponsorship undertaking in June 2014 indicating that his marriage had broken down with his wife, [Ana Paula’s] mother. As per documentation on file, [Ana Paula] has demonstrated an interest in at least visiting her father… [Ana Paula] would continue to live in Ecuador part-time with

her mother, but… would spend sufficient time in [Canada] with her father in order to comply with residency obligations. Thisscenario would entail prolonged family separation from her mother, maternal grandparents and maternal aunt/uncle in Ecuador”(AR at 5). [9] In light of all of the above, the Officers refused the application for an H&C exemption. II. Issues and Argument [10] The Applicant argues that the Officers made two errors: A. The Officers applied the wrong legal test in determining the best interests of the child [BIOC]; andB.

The Officers unreasonably ignored key evidence that the Applicant’s family in Ecuador wanted his daughter to move to Canada aswell. [11] On the question of the correct legal test, the Applicant raises three issues.

First, the Applicant argues that the Officers erred innot applying the test set out in Williams v Canada (Citizenship and Immigration), 2012 FC 166: [63] When assessing a child’s best interests an Officer must establish first what is in the child’s best interest, second the degree to whichthe child’s interests are compromised by one potential decision over another, and then finally, in light of the foregoing assessmentdetermine the weight that this factor should play in the ultimate balancing of positive and negative factors assessed in the application. (Emphasis in original) [12] The Applicant contends that the Officers erroneously focused exclusively on the conditions of Ana Paula’s life in Ecuador,entirely ignoring the benefits of residency in Canada with her father and grandmother. [13] Second, the Applicant argues that the Officers erred in looking at whether Ana Paula’s “basic needs” could be met inEcuador, finding that there is “no indication that the child concerned is lacking in terms of her basic needs, love, or education, or is in asituation of danger” (AR at 5).

The Applicant argues that applying a “basic needs” test has been rejected as a legal error by this Court. InSebbe v Canada (Minister of Citizenship and Immigration), 2012 FC 813, for example, Justice Zinn held: [15] In stating that “there is insufficient evidence before me to indicate that basic amenities would not be met in Brazil” the Officer isimporting into the analysis an improper criterion.

He appears to be saying that a child’s best interest will lie with staying in Canada onlywhen the alternative country fails to meet the child’s “basic amenities.” That is neither the test nor the approach to take whendetermining a child’s best interests. [14] The Applicant stresses that the Officers needed to focus on Ana Paula’s best interests, examine how those interests would becompromised by each option, and then weigh the pros and cons of each.

Simply examining whether she had basic amenities in Ecuadorwas an error of law. [15] Third, the Applicant argues that the Officers applied the wrong legal test in including an assessment of hardship in their BIOCanalysis. The Applicant cites Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 41 [Kanthasamy] for theproposition that hardship should not form any part of the BIOC analysis.

Here, the Officers considered it explicitly, stating that “thedecision of the child’s mother to continue to reside in Ecuador did not mention any particular hardship that would affect the child” (AR at8). [16] Beyond the question of legal errors, the Applicant also alleges that the Officers unreasonably overlooked key evidenceregarding support for the application from Ana Paula’s Ecuadorian family. This evidence included a letter from Ana Paula’s maternalgrandparents and a notarized declaration from her mother authorizing her immigration to Canada.

The Applicant relies on Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), (FC), [1998] FCJ No 1425 (FC) at para 17 for theproposition that the more important the evidence that is not mentioned specifically and analyzed in the Officer’s reasons, the morewilling this Court should be to infer from the silence that the decision was made without regard to said evidence.

The Applicant submitsthat the Officers even stated that Ana Paula’s mother had not submitted a letter of support – a significant error considering she had, infact, provided a signed declaration authorizing the application. [17] The Respondent rejects the Applicant’s arguments on both the selection of the test and the weighing of the evidence.

On thequestion of the correct test, the Respondent asserts that the Officers were “alive, alert and sensitive” to Ana Paula’s best interests, as isrequired by Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 75 [Baker],and that this remains the correct test.

Furthermore, the Officers did not err in using the language of “basic needs” or “hardship”, as thereare neither verbal formulas nor magic words regarding the test for BIOC (Jaramillo v Canada (Citizenship and Immigration), 2014 FC744 at para 70); instead, substance must prevail over form (Webb v Canada (Citizenship and Immigration), 2012 FC 1060 at para 11). [18] Regarding the second alleged error, the Respondent notes that the Officers are not obliged to comment on every piece ofevidence made available to them (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011SCC 62 at para 116 [Newfoundland Nurses]).

The Respondent further argues that both the letter of support from Ana Paula’sgrandparents and the declaration of support from Ana Paula’s mother pre-date the Applicant’s separation from his spouse and so maynot reflect their actual sentiments. Furthermore, the grandparents’ letter does not show support for permanent immigration, stating onlythat Ana Paula should “have the opportunity to visit her father periodically in his place of residence” (AR at 153-54). III. Analysis

[19] The question of whether a visa officer or officers selected the proper test in an H&C assessment is subject to a standard ofcorrectness (Taylor v Canada (Citizenship and Immigration), 2016 FC 21 at para 18). In a correctness review, this Court “will not showdeference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question” (Dunsmuir v NewBrunswick, 2008 SCC 9 at para 50 [Dunsmuir]). The assessment of evidence, on the other hand, is reviewable on the deferential standardof reasonableness standard (Veselaj v Canada (Citizenship and Immigration), 2015 FC 1386).

If the conclusion falls within possible,acceptable outcomes, and is justifiable, transparent and intelligible, it should not be disturbed (Dunsmuir at para 47). [20] Turning to the question of the correct test, I cannot agree that the Williams test is the standard to which decision-makers mustbe held. If Kanthasamy had determined that the Williams test was the correct test to apply, the Supreme Court would have said soexplicitly.

Rather, in my opinion, it is open to the decision-maker whether or not to apply Williams, so long as they are, in the words ofBaker, “alert, alive, and sensitive” to the child’s best interests, a contextual approach whereby the decision-maker must consider the“multitude of factors that may impinge on a child’s best interests” (Kanthasamy at para 15). [21] Nor do I find that the Officers applied the wrong test. Although I agree that the Decision focused excessively on the benefitsof Ana Paula’s life in Ecuador, that alone does not translate to an error in the test.

A weakness in the analysis of the evidence impacts thereasonableness of the decision, rather than the selection of the correct test. [22] Furthermore, although Kanthasamy affirmed that it is incorrect to apply an “unusual, undeserved, or disproportionatehardship” analysis when considering BIOC in an H&C context, I do not find that the Officers did so here.

The Officers’ statement that“the decision of the child’s mother to continue to reside in Ecuador did not mention any particular hardship that would affect the child”,on its own, is insufficient to conclude that the entire analysis was structured around the notion of ‘unusual, undeserved, ordisproportionate hardship’, or that the Officers decided this case through the lens of those three adjectives. [23] I therefore cannot conclude that an incorrect test was applied. That said, I find that the Officers’ assessment of the evidencewas unreasonable.

The hundreds of pages of documentary evidence made available by the Applicant painted a compelling portrait ofwhat Ana Paula’s life in Canada might be like. Little of that portrait was evident in the decision, despite the Officers’ assertion that theyconsidered all the elements on file (AR at 4). As the Supreme Court held in Kanthasamy at para 39, the Officers needed to go beyondsimply stating that they took BIOC into account: A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are notsufficiently considered: Baker, at para. 75.

This means that decision-makers must do more than simply state that the interests of a childhave been taken into account: Hawthorne, at para. 32. Those interests must be “well identified and defined” and examined “with a greatdeal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125 ,[2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 2008 FC 165 ,323 F.T.R. 181, at paras. 9-12. [24] A good life abroad certainly was not in dispute: Ana Paula clearly has strong support in Ecuador.

There are, however, twosides to every coin. The Officers should have carefully and thoroughly weighed all the relevant circumstances. Instead, they exhaustivelyreviewed the status quo – namely her life with her mother and maternal grandparents in Ecuador – and paid mere lip service to theprospect of living part-time with her father and paternal grandmother in Canada. As a result, key pieces of evidence in this regard wentunacknowledged by the Officers. There was, for instance, no mention of either the letter from Ana Paula’s grandparents or Ana Paula’smother’s authorization to immigrate.

The Officers even went so far as to note with disapproval that Ana Paula’s mother had not provideda support letter for the H&C application – drawing an unintelligible and unjustifiable distinction between a letter of support and a signedauthorization. This was precisely the kind of “perfunctory” best interests analysis that the Supreme Court warns against (Kanthasamy atparas 25 and 57). [25] The Respondent argued that neither the authorization nor the grandparents’ letter were of any significance since they wereboth signed before the Applicant’s separation. However, Ms.

Gomes Valenzuela signed her authorization after her relationship with theApplicant ended (but before the formal separation took place). More importantly, if the separation had affected Ana Paula’s relatives’feelings about the application, the Officers should have placed the onus on them to correct their previous declarations of support, ratherthan assume, automatically, that that support was withdrawn.

Finally, I would note that the Officers expressed concerns about“prolonged family separation from [Ana Paula’s] mother, maternal grandparents and maternal aunt/uncle in Ecuador” (AR at 5) withouteven considering any of the countervailing effects of prolonged separation from her father and paternal grandmother in Canada. [26] Visa officers may be presumed to know that applicants would benefit from life in Canada (Hawthorne v Canada (Minister ofCitizenship and Immigration), 2002 FCA 475 at para 5) but this does not relieve them of the obligation to identify and examine theinterests of any affected child with “significant attention” and care (Li v Canada (Public Safety and Emergency Preparedness), 2016 FC451 at para 25).

The Officers, in focusing only on the positives of life in Ecuador and the negatives of life in Canada, did not conducttheir examination with the necessary level of attention and care. [27] Finally, I do not find that the Officers’ failure to address key evidence can be saved by Newfoundland Nurses. NewfoundlandNurses does not relieve the decision-maker of the obligation to issue reasons that allow the reviewing Court to understand why theymade their decision – an obligation which permits the Court to determine whether the conclusion is within the range of acceptableoutcomes.

Without the Officers’ full assessment of the various interests at play through properly addressing the positive aspects of ashared life in both Canada and Ecuador, this Court cannot make that determination. As noted above, key pieces of evidence wentunacknowledged and unaddressed. As the Officers failed to consider the evidence as a whole, the reasons lack the balanced assessmentthat Kanthasamy and its key precursors require. As a result, I find this decision unreasonable. IV.

Conclusion [28] To apply the contextual H&C test reasonably, the Officers needed to look beyond the strong family support available to AnaPaula in Ecuador and consider what she would experience in Canada. The fact that there was “no indication that the child concerned is

lacking in terms of her basic needs, love or education, or is in a situation of danger” (AR at 5) may indeed be true but a child’s best interests connote more than basic needs. Of course, one could ultimately conclude that Ana Paula’s basic needs would not be met in Canada, thus tipping the balance in favour of Ecuador, but that weighting must be done by the Officers and not the reviewing judge. [ 29 ] In light of the above reasons, I find this decision to be unreasonable. The application for judicial review is allowed, and the file will be returned for reconsideration by different officer(

s) of the Respondent. JUDGMENT THIS COURT’S JUDGMENT is that: 1. The application for judicial review is allowed; 2. There is no question for certification; 3. There is no award as to costs. "Alan S. Diner" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-4166-15 STYLE OF CAUSE: JAIME ALBERTO ROCHA VALENZUELA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: April 19, 2016 JUDGMENT AND REASONS: DINER J.

DATED: May 31, 2016 APPEARANCES : Nicholas Hersh For The Applicant Stephen Kurelek For The Respondent SOLICITORS OF RECORD : Nicholas Hersh Barrister and Solicitor Ottawa, Ontario For The Applicant William F. Pentney Deputy Attorney General of Canada Ottawa, Ontario For The Respondent