Garcia Diaz v. Canada (Citizenship and Immigration)

Garcia Diaz v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2021-04-13
Neutral citation
2021 FC 321
File numbers
IMM-6332-19
Decision Content
Date: 20210413
Docket: IMM-6332-19
Citation: 2021 FC 321
Toronto, Ontario, April 13, 2021
PRESENT: Mr. Justice Andrew D. Little
BETWEEN:
GRABIEL GARCIA DIAZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This application for judicial review arises from a decision of a visa officer on an application for permanent residence based on a sponsorship or, alternatively, for permanent residence based on an exemption under subs. 25(1) of the Immigration and Refugee Protection Act (the “IRPA”), SC 2001, c 27, on humanitarian and compassionate (“H&C”) grounds.
[2] The applicant, Mr Grabiel Garcia Diaz, is a citizen of Cuba and resides there. His mother, Ms Margalis Diaz Rodriguez, is a citizen of Cuba and resides in Canada. Ms Diaz Rodriguez was the applicant’s proposed sponsor and the applicant is her only child. She is a permanent resident of Canada and has lived here since 2004. She has lived alone since her divorce from her Canadian husband in 2013. She has no other relatives in Canada and applied to sponsor her son under the Immigration and Refugee Protection Regulations (the “IRPR”), paragraph 117(1)(h), the so-called “lone Canadian” provision.
[3] In 2016, Ms Diaz Rodriguez applied to sponsor the applicant to come to Canada as a permanent resident. The visa officer concluded that she could not sponsor Mr Garcia Diaz under the applicable provisions of the IRPR. The officer also declined to grant the applicant an exemption on H&C grounds.
[4] The applicant submits that in denying the application for H&C relief, the officer failed to provide him with procedural fairness. The applicant contends that he should have had an opportunity to make submissions about the best interests of his child before the officer made an adverse H&C decision. The child is a boy born in 2008 who resides in Cuba with his mother. The child’s mother has full custody of the child, though a custody agreement entitles the applicant to “normal” access to his son (every other weekend, half of the school breaks and half of the holidays).
[5] In this case, although there was evidence about the child filed with the H&C application, the two written submissions filed on behalf of the applicant did not make arguments about the best interests of that child. In this Court, the applicant contended that if the officer intended to assess the child’s best interests under the H&C application, the officer should have provided the applicant with a further opportunity to argue, in effect, that it is in his Cuban child’s best interests that the applicant leave Cuba and come to Canada as a permanent resident on an H&C exemption to be with his lonely mother, the child’s biological grandmother.
[6] The applicant also challenged the reasonableness of the officer’s decision concerning the officer’s assessment of the best interests of the child and the officer’s assessment of the mental health evidence related to his mother, Ms Diaz Rodriguez.
[7] For the reasons that follow, I must conclude that on the facts in this case, the applicant was aware of the case to meet and had a meaningful opportunity to make submissions on his application, particularly as it concerned the best interests of his child in Cuba. The process was procedurally fair to the applicant.
[8] I also conclude that the officer did not commit a reviewable error that justifies the intervention of this Court on judicial review.
[9] Accordingly, this application must be dismissed.
I. Facts and Events Leading to this Application
[10] At the outset, I would like to recognize the challenges Ms Diaz Rodriguez has been facing. Since separating from her former husband in 2012, she has lived alone in Canada, with no family here and in particular, without her beloved son close to her for love and support. Even before her separation and for more than a decade before today, she has attempted to reunite with her son in Canada. Her mental health has suffered. Despite the challenges she has faced, she has persisted and succeeded in building up her own small business as a highly skilled seamstress, to support herself and her son.
[11] In late 2003, Ms Diaz Rodriguez married a Canadian man in Cuba. She landed in Canada in September 2004. The couple separated in January 2012 and were divorced in Cuba in 2013.
[12] The applicant was not able to accompany his mother to Canada when she moved here in 2004. He was, however, listed as a non-accompanying dependent on Ms Diaz Rodriguez’s application for permanent residency. At the time, the applicant was 17 years old and had not completed his two–year mandatory military service in Cuba. For that reason, he could not immediately accompany his mother to Canada. After he completed his military service, Ms Diaz Rodriguez and her husband applied to sponsor him to come to Canada. Ms Diaz Rodriguez was approved as a sponsor in late May 2008 and sent in the application for processing in June 2008.
[13] From there, several unfortunate but well-meaning deceptions and misunderstandings affected the progress of the applicant’s attempts to secure permanent residence. While the first (2008) application was pending, the applicant advised Ms Diaz Rodriguez that he and a girlfriend had fallen in love and were expecting a child. The applicant did not tell his mother the entire truth at that time. Ms Diaz Rodriguez understood at the outset that her son and the woman were living together as a couple in Cuba, in what could be called a “common law” relationship in Canada. Ms Diaz Rodriguez also testified that she mis-translated the words for “living together” from Spanish into “common law” in English, even though the applicant did not have a “common law” relationship as she now understands it under Canadian law. Ms Diaz Rodriguez later learned that in reality, the applicant only had a sexual relationship with the woman and that she had become pregnant. They were living under the same roof during the pregnancy but they were not a romantic couple.
[14] After she learned of the perceived “common law” relationship of her son, Ms Diaz Rodriguez disclosed it to Canadian immigration officials for the purposes of the applicant’s pending application for permanent residence. At the time in 2008-2009, Ms Diaz Rodriguez understood that her son’s relationship caused him to be ineligible for sponsorship and she ultimately withdrew her son’s application. It was only later, after she learned the truth about the applicant’s relationship, and following her own divorce, that she discovered she had misunderstood the Canadian sponsorship requirements and her son was still eligible to be sponsored.
[15] Given her new understanding that her son’s relationship with his child’s mother in Cuba was not “common law” or its equivalent, Ms Diaz Rodriguez applied again to sponsor him. She submitted a second application for permanent residence on his behalf in 2016.
[16] The applicant’s second application for permanent residence is the one at issue in this judicial review application.
[17] The applicant (or more precisely, Ms Diaz Rodriguez) filed numerous documents to support the second application, including a Statutory Declaration from Ms Diaz Rodriguez dated September 14, 2016 and two letters from professional representatives (an immigration consultant and a lawyer), one dated in 2016 and another in 2019. I will describe the relevant contents of each of these three documents. There are additional documents related to the custody of the child and to the medical evidence, which I will also discuss later in these reasons. The applicant did not file a statement or statutory declaration.
Ms Diaz Rodriguez’s Statutory Declaration
[18] Ms Diaz Rodriguez’s Statutory Declaration described her meeting and marrying her husband in Cuba, and her arrival in Canada in September 2004. As described above, Ms Diaz Rodriguez explained that at the time she was sponsored, her son (the applicant) was included on her application as a non-accompanying dependent. After he completed his two-year military service in Cuba, she could still sponsor him.
[19] In paragraphs 5 to 13 of her Statutory Declaration, Ms Diaz Rodriguez explained that while the applicant was carrying out his military service, he met a woman on one of his holiday leaves and they started a sexual relationship. She explained that he had no long-term plans to be with this woman. After he completed his military service, he returned to live with his grandmother. The woman claimed she was pregnant with his baby. Ms Diaz Rodriguez testified that the woman “pursued him and pursued him until it became apparent that she was not going to relent, so the applicant resigned himself to the idea that he could be the father” and decided to have the woman come and live with him and his grandmother to help her out and provide some support. Ms Diaz Rodriguez testified that she was devastated by these events and understood that the applicant’s relationship status was “common law”, but that in fact the applicant and the mother of his child lived under the same roof but not as a couple. Ms Diaz Rodriguez stated that “[t]his arrangement was set up entirely to ensure the mother had a safe place to be while she was pregnant, to have the baby and to care for the baby in the early months after its birth.” Her son misled her into believing that he and the woman were in love, so Ms Diaz Rodriguez would not be so angry and disappointed.
[20] Ms Diaz Rodriguez testified that “[m]y son became attached to his child but he knew he would have to leave him behind because the mother would not allow him [the child] to go” [i.e., to Canada]. The applicant allowed the mother of his child to stay in the applicant’s grandmother’s home for longer than anticipated so he could give his son the appearance of a family, but the applicant and his child’s mother were not intimate and did not consider themselves to be a couple.
[21] According to Ms Diaz Rodriguez’s testimony, the mother left many times, taking “my grandson with her when she entered relationships with other men”. Ms Diaz Rodriguez testified that there was an agreement that “gave custody of my grandson Gabriel to his mother”.
[22] Ms Diaz Rodriguez then explained in detail the events leading to the second application to sponsor the applicant to come to Canada. She described her relationship with her only child, her feelings of guilt that her son remained in Cuba because of her mistake about his eligibility to be sponsored, and her guilt and unhappiness at being unable to share all of the wonderful things and opportunities that she has had in Canada. She explained that she and her husband had separated and then divorced, and that she was now “all alone”. She testified that she has no family in Canada and no emotional support from family. Ms Diaz Rodriguez testified that the applicant was the only person she had in the world that was close to her and that they communicated usually on a daily basis by telephone or text message. She provides him with some financial support. She visits Cuba as frequently as possible given her work obligations and when she can afford to travel.
[23] Ms Diaz Rodriguez also advised that she owns her own house through an agreement made with her ex-husband and that she is fully financially self-sufficient, with a full-time job as a dressmaker/seamstress. She testified that if the applicant were allowed to come to Canada, he would live with her until he is settled and she would support him. She testified that the applicant has opportunities and qualifications to work in the construction industry. The record included one offer to employ and one offer to interview the applicant from the owners of two construction companies.
The Consultant’s Letter
[24] As noted, Ms Diaz Rodriguez submitted two letters from her professional representatives to support the application for her son.
[25] First, Ms Diaz Rodriguez applied to sponsor the applicant for permanent residence in Canada by letter dated September 14, 2016 sent by a regulated Canadian immigration consultant and paralegal (the “Consultant’s Letter”). She requested that the application be processed under the family class regime and under paragraph 117(1)(h) of the IRPR. Her position was that while her parents in Cuba were still living, she was unable to sponsor them due to their extremely poor physical and mental health condition and their inability to travel from Cuba to Canada. Because she had no other family or relatives in Canada, she maintained that she could sponsor the applicant. In the alternative, she requested that the application be considered for an H&C exemption under subs. 25(1) of the IRPA.
[26] The Consultant’s Letter contained five single-spaced pages. It described Ms Diaz Rodriguez’s background leading to the application. It explained why her parents could not be sponsored, given their advanced ages (77 and 83 at the time), poor health and because it was impossible for them, health-wise, to travel to Canada even if they were sponsored and approved. The Consultant’s Letter explained that Ms Diaz Rodriguez and the applicant have a very close relationship and that she pretty much completely raised her son on her own, providing both emotional and financial support. This close relationship with her son continued while she was with her husband in Canada. After her divorce, Ms Diaz Rodriguez continued to rely heavily on the applicant for emotional support. The letter explained that she had made 23 trips to visit her son in Cuba between 2004 and 2016.
[27] The Consultant’s Letter described Ms Diaz Rodriguez’s life in Canada and then turned to describe the “Applicant’s life in Cuba”. The Consultant’s Letter advised that the applicant has one child from whom he was “recently estranged,” but the child and his mother have “recently returned to his [the applicant’s] hometown”, having lived in another city with the mother’s common-law partner for some time. The letter stated that the applicant “does not know how long his child will be in his life this time”. It confirmed that the mother has custody of the child and that she comes and goes from the applicant’s life when she meets a new man that she wants to be with. The Consultant’s Letter stated that the applicant “never had any long-term plans to be with his child’s mother. He only took her into his home at the time for the welfare of his soon–to-be-born child. The mother has full custody and has no interest in including the applicant in his son’s life”.
[28] I pause to note that the Consultant’s Letter did not make any express submissions about the best interests of the child, the applicant’s son. It did, as just noted, address the certain aspects of the child’s life and relationship with the applicant in 2016.
[29] The Consultant’s Letter then described the supporting documentation related to the mental health assessments of Ms Diaz Rodriguez. It quoted passages from a psychologist’s report that diagnosed Ms Diaz Rodriguez with a major depressive disorder of “severe severity”, which coexisted with anxious stress. The psychologist strongly cautioned that if her son were not granted permission to enter Canada, Ms Diaz Rodriguez “may very well suffer from a prolonged and debilitating depression and psychological breakdown… To deny her the opportunity to reunite with her only son constitutes extreme psychological hardship.”
[30] The Consultant’s Letter went on to discuss potential employment for the applicant and his integration into Canadian society and financial considerations. The letter concluded by summarizing the application, noting that the applicant was previously eligible to come to Canada but due to a misunderstanding, Ms Diaz Rodriguez had withdrawn her support to sponsor her son.
Counsel’s Letter
[31] Over two years later, legal counsel for Ms Diaz Rodriguez sent a supplementary submission by letter dated April 15, 2019 (“Counsel’s Letter”). The Counsel’s Letter began by stating that counsel had been recently retained to represent Ms Diaz Rodriguez in her application to sponsor the applicant as a member of the “Family Class” under paragraph 117(1)(h) of the IRPR. Counsel’s Letter advised that counsel was providing “further submissions and evidence” and that “[t]hese submissions and evidence supplement prior submissions and evidence, and in no way replace them” [original emphasis]. Counsel’s Letter addressed both positions taken by Ms Diaz Rodriguez: that the applicant was a member of the family class under the IRPA, and that if not, the applicant requested an exemption on H&C grounds.
[32] On pages 2-4, Counsel’s Letter described the pertinent facts, including the personal history of Ms Diaz Rodriguez and the applicant and many of the facts set out above. Counsel’s Letter confirmed that during the processing of the application in 2008, the applicant disclosed to Ms Diaz Rodriguez that he had met a woman and had a “purely physical” relationship, which resulted in a pregnancy. The Counsel’s Letter advised that the applicant and his partner were never married or common-law partners nor had they the intention to be in a long-term relationship. They lived in the same house for some time as the applicant wanted to ensure that the mother and child’s needs were cared for. Counsel’s Letter confirmed that the applicant did not disclose to Ms Diaz Rodriguez the true nature of his relationship with the mother of his child, leading Ms Diaz Rodriguez to believe erroneously that they were deeply in love. Counsel’s Letter set out Ms Diaz Rodriguez’s misunderstanding of the couple’s relationship.
[33] Counsel’s Letter described Ms Diaz Rodriguez’s divorce and the applicant’s attempts to visit Canada on a Temporary Resident Visa. The applicant submitted several applications for such a visa, all of which were refused. In one case, the visa application disclosed that the applicant had a “common-law partner, one dependent son…”
[34] Pages 4-10 of Counsel’s Letter submitted that the applicant was a member of the family class under IRPR paragraph 117(1)(h). Pages 10-14 contained submissions concerning the applicant’s H&C application. Counsel’s Letter made submissions on the law applicable to H&C application and Ms Diaz Rodriguez’s mental health, stating that she was diagnosed with major depression and prescribed antidepressants. She was referred to a psychotherapist. The inability to bring the applicant to Canada over the previous 13 years had been “gravely traumatic” to her. The letter set out in detail certain excerpts from a mental health report prepared by a psychologist. It emphasized that she lived alone, without any family members to assist her or provide much-needed emotional support. She had a very limited support network. Counsel’s Letter noted her feelings of guilt arising from her mistake in the original sponsorship application. The letter noted that loneliness and long-term frustration arising from the inability to be re-united with the applicant had taken a toll on her health and that she was considering giving up everything she has built in Canada to return to Cuba, where she would have a diminished quality of life and not earn an income comparable to the one she earns in Canada. The applicant would lose financial support from her and they would probably live in poverty. The letter also referred to Ms Diaz Rodriguez as a productive member of Canadian society, employed as a seamstress with her own business and her own home.
[35] Counsel’s Letter closed by referring to hardship for the applicant in Cuba, noting that there is no burden to establish that the applicant had been personally affected by country conditions in Cuba.
[36] Counsel’s Letter did not make any express submissions about the best interests of the applicant’s son (i.e., Ms Diaz Rodriguez’s grandson).
II. The Officer’s Decision
[37] The decision at issue in this application is described in the Notice of Application as a “decision made by an officer in the Immigration Section [in the Canadian embassy in Mexico City]… dated August 29, 2019 and communicated on August 29, 2019 denying an application for permanent residence made on humanitarian and compassionate grounds and as a member of the family class…”
[38] The just-referenced letter to the applicant dated August 29, 2019 advised the applicant:
“Your sponsor does not have the minimum income necessary to sponsor you.”
“In addition you failed to meet the requirements of the family class, as set out in section 117 of the Regulations …”
“You do not meet the requirements of R 117(1)(h) because your sponsor has a relatives [sic] whom she may otherwise sponsor. You are not, therefore, a member of the Family Class.”
“I have taken into consideration the humanitarian and compassionate factors involved in your application but I do not find that they are sufficient to overcome your failure to meet the requirements for sponsorship in the Family Class”.
I note that the conclusion that Ms Diaz Rodriguez had relatives (her elderly and infirm parents) whom she may otherwise sponsor was not an issue in this application, although it was unclear on what basis the officer made the determination that they could be sponsored given their poor health and inability to travel.
[39] In response to a request, by letter dated October 29, 2019, a representative of the Canadian embassy in Mexico provided a copy of the Global Case Management System (“GCMS”) entries relevant to the decisions described in the August 29, 2019 letter, as well as many previous communications. GCMS entries on August 19, 2019 related to the negative determination of the application for inclusion in the Family Class.
[40] The GCMS notes on August 29, 2019 included the following entries:
Lock-In date: 19 Sept. 2016. At Lock-In, PA [principal applicant] was aged 29 years old. His son was 8.
[…]
The main H&C ground of this application is the mental state of the sponsor who is said to have devoted 13 years to reuniting with her son… After her separation and divorce (2012-2013) she was alone and found out she might be able to sponsored her son. The next efforts to reunite appear to have been this sponsorship in 2016 and two applications for TRVs [Temporary Resident Visas] in 2017.
Letters on file from sponsor’s GP dated June 2016 and August 2017 state that SPR [sponsor] is suffering from severe emotional stress (2016) to Major Depression and the inability to bring her son to Cda has been “gravely traumatic” (2017).
Psychologist Dr. J. Pilowsky writes on 6 July, 2016, that Ms Diaz Rodriguez suffers from depression, anxiety and guilt over being separated from her son and living in better conditions than he has in Cuba (inter alia). Pilowsky writes that she meets diagnostic criteria for “Major Depressive Disorder of Severe severity (single episode) coexisting with “anxious distress” there has been suicidal ideation. She told the psychologist that she had been diagnosed with depression “many years ago”. At the time of the assessment Pilowsky said she impressed as being on the cusp of a psychological collapse” … “I strongly caution that if Ms Diaz Rodriguez’s son is not granted permission to enter Canada, she may very well suffer from a prolonged and debilitating depression and psychological breakdown. This outcome would be extremely undue and undeserving considering her continued efforts to work and be self-sufficient, while simultaneously attempting to sponsor her son.”
The sponsor’s paternal grandfather died of suicide, according to the family information form on file, and her mother has now made an attempt at suicide, according to her medical report. Psychologist and GP do not indicate whether these events were disclosed to them. The sponsor had been diagnosed with depression “many years ago”.
I am not satisfied that the sponsor’s mental state is entirely or mainly due to separation from her son.
Custody docs on file grant custody of the PA’s son to his mother, with normal access for [the applicant], although they refer to his departure to Canada. In considering the best interests of this child, I note that he and his father are in “proper communication” (as of 30 January, 2015) when he was 6 years old, and the father was to have him every other weekend, half of the school breaks and half of the holidays. His mother declares that the PA has complied with his responsibilities. I am not satisfied that it would be in the best interests of this little boy to remove his father from Cuba.
The PA is not a member of the family class. The sponsor does not meet the minimal necessary income to sponsor him. He has responsibilities towards his son in Cuba. I am not satisfied that the humanitarian and compassionate factors in this application outweigh the failure to meet the requirements of R 117(1)(h) and R133(1)(j).
[Underlining added.]
[41] As may be seen, the officer made detailed GCMS notes on two issues: (1) Ms Diaz Rodriguez’s mental health (including her diagnoses, some facts related to them and the fact that she was alone in Canada after her divorce); and (2) the applicant’s son in Cuba.
III. Overall Legal Principles
H&C Applications
[42] Subsection 25(1) of the IRPA gives the Minister discretion to exempt foreign nationals from the ordinary requirements of that statute and grant permanent resident status in Canada, if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. The H&C discretion in subs. 25(1) is a flexible and responsive exception to the ordinary operation of the IRPA and the IRPR, to mitigate the rigidity of the law in an appropriate case: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 SCR 909 (Abella J.), at para 19.
[43] Humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the [IRPA]”: Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338, at p.350 as quoted in Kanthasamy at paras 13 and 21. The purpose of the H&C provision is provide equitable relief in those circumstances: Kanthasamy, at paras 21-22, 30-33 and 45.
[44] Subsection 25(1) has been interpreted to require that the officer assess the hardship that the applicant(s) will experience on leaving Canada. Although not used in the statute itself, appellate case law has confirmed that the words “unusual”, “undeserved” and “disproportionate” are appropriate to describe the hardship contemplated by the provision that will give rise to an exemption. Those words to describe hardship are instructive but not determinative, allowing subs. 25(1) to respond flexibly to the equitable goals of the provision: Kanthasamy, at paras 33 and 45. An applicant may raise a wide variety of factors to show hardship on an application for H&C relief. The H&C determination under sub. 25(1) is a global one, and relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: Kanthasamy, at paras 27-28.
[45] The discretion in subs. 25(1) must be exercised reasonably. Officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 (L'Heureux-Dubé J.), at paras 74-75; Kanthasamy, at paras 25 and 33.
[46] With respect to the interests of a child directly affected under subs. 25(1), an officer must always be alert, alive and sensitive to the child’s best interests: Baker, at para 75; Kanthasamy, at para 38; Canada (Minister of Citizenship and Immigration) v. Hawthorne, 2002 FCA 475, at para 10. An officer must also abide by the guiding admonition that children will rarely, if ever, be deserving of any hardship: Kanthasamy, at para 59.
[47] The onus of establishing that an H&C exemption is warranted lies with the applicant: Kisana v. Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360 (Nadon JA), at paras 35, 45 and 61. Lack of evidence or failure to adduce relevant information in support of an H&C application is at the peril of the applicant: Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38, [2004] 2 FCR 635 (Evans JA), at paras 5 and 8.
Standards of Review
[48] On issues of procedural fairness, the standard of review is correctness. More precisely, whether described as a correctness standard of review or as this Court’s obligation to ensure that the process was procedurally fair, judicial review of procedural fairness involves no margin of appreciation or deference by a reviewing court. The ultimate question is whether the party affected knew the case to meet and had a full and fair, or meaningful, opportunity to respond: see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121 (Rennie, JA) (“CPR”), esp. at paras 49, 54 and 56; Baker, at para 28. In Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, de Montigny JA said “[w]hat matters, at the end of the day, is whether or not procedural fairness has been met” (at para 35).
[49] The standard of review of the officer’s substantive H&C decision is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Baker, at paras 57-62; Kanthasamy, at para 44. In conducting a reasonableness review, a court considers the outcome of the administrative decision in light of its underlying rationale, in order to ensure that the decision as a whole is transparent, intelligible and justified: Vavilov, at para 15. The onus to demonstrate that the decision is unreasonable is on the applicant: Vavilov, at paras 75 and 100.
[50] The focus of reasonableness review is on the decision made by the decision maker, including both the reasoning process (i.e. the rationale) that led to the decision and the outcome: Vavilov, at paras 83, 86; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 SCR 6, at para 12. The starting point is the reasons provided by the decision maker: Vavilov, at para 84. The reviewing court must read the reasons holistically and contextually, and in conjunction with the record that was before the decision-maker: Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, at para 31; Vavilov, at paras 91-96, 97 and 103.
[51] When reviewing for reasonableness, the court asks whether the decision demonstrates the hallmarks of reasonableness (i.e., justification, transparency and intelligibility) and whether the decision is justified in relation to the relevant factual and legal constraints that bear on the decision: Vavilov, at para 99. To intervene, the reviewing court must be satisfied that there are “sufficiently serious shortcomings” in the decision such that it does not exhibit sufficient justification, intelligibility and transparency. Flaws or shortcomings must be more than superficial or peripheral to the merits of the decision, or a “minor misstep”. The problem must be sufficiently central or significant to the outcome to render the decision unreasonable: Vavilov, at para 100.
[52] The reviewing court does not determine how it would have resolved an issue on the evidence, nor does it reassess or reweigh the evidence on the merits: Vavilov, at paras 75, 83 and 125-126; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR 339, at paras 59, 61 and 64; Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113, [2015] 1 FCR 335, at para 99; Owusu, at para 12. The task of the reviewing court is to assess whether the decision maker reviewed and drew conclusions from the evidence and submissions in a manner that conforms to Vavilov principles.
IV. Analysis
[53] I will address each of the issues raised by the applicant in turn.
Best Interests of the Child
Procedural Fairness
[54] Although the H&C application focused on the mental health of the applicant’s mother, the applicant focused in this Court on procedural fairness as related to the officer’s assessment of the best interests of the child (“BIOC”).
[55] The applicant submitted that the officer erred by conducting a BIOC analysis with respect to his non-accompanying child without giving him an opportunity to make submissions on the issue. The applicant noted that he did not raise the child’s best interests as an H&C factor warranting consideration by the officer in his application for permanent residence. The applicant submitted that in law, an officer has a duty to be alert, alive and sensitive to the best interests of a child who may be adversely affected by a parent’s removal from Canada, but only when it is sufficiently clear from the material submitted on the H&C application that the applicant relies on this factor, at least in part (citing Owusu, at para 5). The applicant further argued that the Federal Court of Appeal in Kisana “clearly established” that fairness may require an officer to obtain further and better information concerning the BIOC, for example by way of issuing a procedural fairness letter, depending on the facts of each case.
[56] The applicant submitted that he did not ask the officer to consider his child’s best interests on this H&C application, and therefore had not put forward “any evidence as to his child’s best interests”. On this submission, the officer’s finding that the child’s best interests should be weighed against other H&C factors raised in the application “could not have been anticipated”. Following this line of argument, the applicant maintained that at a minimum, the officer should have provided the applicant with notice that his child’s best interests were a concern and should have granted the applicant the opportunity to make submissions on that issue. According to the applicant, those submissions might have altered the outcome of the H&C application.
[57] The respondent disagreed. The respondent submitted that the applicant must have known that IRPA subs. 25(1) requires an officer to take into account the best interests of a child directly affected, and must have been aware that the interests of his child could or should be considered in his H&C application. The respondent argues that the applicant must have been aware of the relevance of his child to the H&C application because he filed custody documents which confirmed that he had been granted regular access to his son. The respondent also noted the applicant filed evidence from the child’s mother stating that the applicant had complied with his responsibilities regarding his son. According to the respondent, the best interests of his child were clearly raised on the evidence submitted with the H&C application, and the applicant had an opportunity to address the issues. In that context, the officer had no duty to ask for additional information.
[58] The respondent further submitted that both this Court and the Federal Court of Appeal have concluded that the H&C provision obliges the decision-maker to consider the best interests of a child when deciding whether H&C considerations justify exempting an applicant from the normal selection criteria and granting permanent resident status. The respondent referred to a number of decisions, including de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 FCR 655 (Evans JA), at para 105 and Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358 (Décary JA), at paras 11-12. The respondent further submitted that the Federal Court of Appeal’s decision in Owusu only holds that an officer has no duty to consider the best interests of an affected child when it is not raised or relied on in the H&C application; the Court did not decide that the officer may not do so. The onus was on the applicant to provide any evidence he wanted the officer to consider about the best interests of his son in Cuba. His own failure to elaborate or present adequate legal submissions on the best interests of his child does not give rise to a breach of procedural fairness.
[59] In reply, the applicant sought to distinguish the cases relied upon by the respondent on their facts. The applicant submitted that this Court is being asked, for the first time, to treat the BIOC element of IRPA subs. 25(1) as though it were a “regulated criterion” for H&C applications, similar to the criteria for permanent residence in other classes under the IRPA or IRPR. That, the applicant contended, would place an obligation on the applicant to present evidence even though he did not rely upon his child’s best interests in his application, something the law does not require. The applicant further submitted that the respondent’s authorities establish that where an issue of concern to an officer is not one that arises directly from the requirements of the statute or regulations, as in this case, a duty to provide an opportunity for the applicant to address the officer’s concerns may arise (citing Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501 (Mosley J.), at para 21-24). The applicant disputed that the evidence clearly raised the issue of the child’s best interests, as the respondent contended.
[60] For the reasons set out below, I agree substantially with the respondent based on the evidence and circumstances of this case. Having regard to the evidence in the record, the officer was not obliged to provide the applicant with an additional opportunity to make submissions related to the best interests of his child and how those interests should be assessed on his H&C application. As I will explain, the evidence filed by the applicant sufficiently raised the best interests of the applicant’s child in Cuba as an issue. The applicant filed two written submissions more than two years apart in which he had an opportunity to made submissions on why the BIOC should not prevent him from becoming a permanent resident of Canada, but he did not do so. In the circumstances, there was no breach of procedural fairness.
[61] I should note several points that the applicant did not argue. First, the applicant did not submit that he would have adduced additional evidence related to the BIOC, nor point to any specific evidence that he would have adduced, if the officer had drawn the BIOC issue to his attention. The applicant only contended that the officer should have asked for additional BIOC submissions from the applicant. Second, the applicant did not argue that the child was not “directly affected” under IRPA subs. 25(1). Third, the applicant did not contend that a child in Cuba who has never been to Canada could not be considered in a BIOC assessment: see Owusu, at para 13.
[62] As discussed, on procedural fairness, the ultimate question is whether the party affected knew the case to meet and had a full and fair, or meaningful, chance to respond: CPR, esp. at para 56; Baker, at para 22. The duty of procedural fairness “is ‘eminently variable’, inherently flexible and context-specific”: Vavilov, at para 77; Baker, at paras 22-23. If a duty of procedural fairness arises, the procedural requirements imposed by the duty are to be determined with reference to the context and all the circumstances, including the Baker factors: Vavilov, at para 77; Baker, at paras 21-28; Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2 FC 413.
[63] The Federal Court of Appeal a