Kaur v. Canada (Citizenship and Immigration)

Kaur v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-08-04
Neutral citation
2017 FC 757
File numbers
IMM-5283-16
Decision Content
Date: 20170804
Docket: IMM-5283-16
Citation: 2017 FC 757
Ottawa, Ontario, August 4, 2017
PRESENT: The Honourable Mr. Justice Gascon
BETWEEN:
PARMJIT KAUR
KARTAR SINGH
JASHANPREET SINGH
HARMANPREET KAUR
Applicants
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
JUDGMENT AND REASONS
I. Overview [1] The Applicants, Mrs. Parmjit Kaur, her husband Mr. Kartar Singh, and their two minor children, Jashanpreet and Harmanpreet, are citizens of India. Mrs. Kaur arrived in Canada with her two children in April 2009, and Mr. Singh followed more than 30 months after, in December 2011. They all sought to obtain refugee protection upon their respective arrival, but their claims were denied in November 2011 and in March 2016, respectively.
[2] In early May 2016, the Canada Border Services Agency [CBSA] met Mrs. Kaur and her children, and informed them that they would have to leave Canada by the end of June 2016. Shortly after, Harmanpreet, who was 12 years old at the time, started having anxiety problems. Twice, she made suicide attempts. She kept saying that she would rather die than return to India and be separated from her father again.
[3] On May 10, 2016, the Applicants applied for permanent resident status pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. This provision gives the Minister of Immigration, Refugees and Citizenship discretion to exempt foreign nationals from the ordinary requirements of the IRPA if the Minister is of the opinion that such relief is justified by humanitarian and compassionate [H&C] considerations, including the best interests of any child directly affected. In November 2016, an immigration officer [Officer] denied the Applicants’ H&C application, finding that they had failed to demonstrate that their personal circumstances justified granting a discretionary exemption based on H&C grounds [Decision].
[4] The Applicants now seek judicial review of the Decision. They contend that the Officer’s conclusions are unreasonable for three reasons. First, the Officer failed to apply the proper legal tests and took a too narrow approach to the best interests of the children affected, in particular Harmanpreet; second, the Officer erred in his assessment of the Applicants’ establishment in Canada and in his finding that it was minimal and insufficient; third, many of the Officer’s findings amount to pure speculation. The Applicants thus ask this Court to quash the Officer’s Decision and to order another immigration officer to reconsider their claim for discretionary relief on H&C grounds.
[5] The only issue to be determined is whether the Officer’s Decision is reasonable.
[6] For the reasons that follow, and despite the fact that Harmanpreet’s story certainly attracts sympathy, I must dismiss this application for judicial review. Having considered the Officer’s findings, the evidence before him and the applicable law, I can find no basis for overturning the Decision, whether on the treatment of the best interests of the children, on the Applicants’ establishment in Canada, or on the various findings made by the Officer in the assessment and weighing of the H&C factors at stake. The Decision thoroughly reviewed the evidence on each of those fronts and the Officer’s conclusions fall within the range of possible, acceptable outcomes based on the facts and the law. There are no reasons justifying the intervention of this Court.
II. Background A. The Decision [7] In the Decision that is rather comprehensive and written in French[1], the Officer started by summarizing the Applicants’ immigration history before turning to the three main submissions made by them to support their claim that H&C considerations justify obtaining permanent residence in Canada. These were the family’s establishment in Canada; the adverse country conditions in India; and the best interests of the children.
(1) Establishment in Canada [8] The Officer first analyzed the Applicants’ establishment in Canada. In terms of work-related establishment, Mrs. Kaur indicated that she had been unemployed until 2015, but that she now owned a transportation company, as well as a fashion boutique. The Officer was satisfied that she owned a transportation company. However, the Officer found the evidence clearly insufficient (“nettement insuffisante”) to demonstrate that Mrs. Kaur played any real role in the company. As for the fashion boutique, Mrs. Kaur only provided an insurance document addressed to her relating to a store bearing the name “Fancy Indian Clothing Store”. As Mrs. Kaur had no other documents, such as a tax declaration or a registration certificate, the Officer was not satisfied that she owned the boutique.
[9] The Officer then turned to Mr. Singh’s work-related establishment in Canada. The Officer observed that Mr. Singh had probably received social welfare until 2013, and had started working in 2014. The Officer also noted that Mr. Singh reported a total income of $19,000 in 2014, which resulted in a taxable income of $6,000.
[10] Based on his review of the evidence, the Officer concluded that the Applicants had not been financially independent since their arrival in Canada and had not proven their ability to support themselves financially with their incomes, without some assistance from the State. He added that several bills in evidence showed outstanding accounts. Mrs. Kaur and Mr. Singh’s work-related establishment in Canada was therefore negatively considered by the Officer.
[11] Mrs. Kaur and Mr. Singh also claimed that they were well integrated in their community, had done volunteer work and had developed social relationships with many persons in Canada. They provided a letter from a sikh temple as well as some 29 letters from various acquaintances to support this. The Officer gave no weight to this last group of letters, as they all used similar wording, with no proof as to the identity of their authors. Finally, the Officer did not give any weight to the fact that the Applicants had bought belongings in Canada and had no criminal records, as he found that anyone who stays in Canada for some time is expected to accumulate things and not to violate the law.
[12] The Officer ultimately found that, in light of the evidence, the Applicants’ degree of establishment in Canada and links with the country were not significant. He concluded that, despite having spent several years in the country, the Applicants were only able to show a very limited degree of establishment (“très faible degré d’établissement”) in Canada, and that this was a negative factor in the overall assessment of the Applicants’ H&C application. The Applicants’ limited links with Canada would thus create only few difficulties for them if they were removed to India.
(2) Adverse country conditions in India [13] On a second H&C ground, the Applicants claimed that they would be persecuted if they had to return to India. However, the Officer noted that their refugee claims, which were based on that same fear, had been found not credible by the Canadian immigration authorities, and rejected.
[14] The Officer acknowledged that poverty exists in India, but found that the mere fact that Canada is in better economic health does not justify the granting of an H&C application. Moreover, the Officer observed that the unemployment rate was lower in India than in Canada, and that there would be no reason why Mrs. Kaur and Mr. Singh would not be able to find jobs in India upon their return.
[15] Given that the Applicants did not show that they would suffer any difficulty attributable to adverse country conditions in returning to India, that they had spent most of their lives in India, and that they spoke Punjabi, English and French, the Officer decided that he would not afford any weight to this factor in his evaluation.
(3) Best interests of the children [16] The Officer’s lengthiest and more detailed comments in the Decision were made on the best interests of the two children, Jashanpreet and Harmanpreet. On this front, the Officer first acknowledged that both are going to school in Canada, have good grades and are well integrated, and that their teachers appreciate them.
[17] Although Mrs. Kaur claimed that her children would face extreme poverty should they return to India, the Officer found that she had not been able to prove this statement. The fact that the general standard of living is greater in Canada than in India was not viewed as being enough to grant an H&C application. The Officer also noted that the children’s mother tongue was Punjabi, which should help their reintegration in India.
[18] The Officer then turned to Harmanpreet’s fragile psychological state. The Officer was aware of the fact that Harmanpreet had made two suicide attempts when she learned from the CBSA that her mother, her brother and her would have to leave Canada. Following that, Harmanpreet had to be taken care of by the provincial child protection services. The thought of being sent back to India and separated from her father was then unbearable for Harmanpreet. The Officer referred to letters from psychologists and to reports from the child protection services. He noted that, since these events, Harmanpreet has benefited from psychological counselling and that she and her family accepted the help offered.
[19] The Officer indicated that, while Mrs. Kaur knew that she would have to return to India eventually (as she was without status), it is likely that Harmanpreet only learned about this when the CBSA met with her mother, her brother and her, and told them they had to leave the country, which could explain her extreme reaction. The Officer, however, noted that the situation had changed since the psychologists’ report and that Harmanpreet would most likely not be separated from her father if the H&C application was declined and she was to return to India. Since Mr. Singh had no status in Canada following the dismissal of his refugee claim, the Officer found it reasonable to expect that Mr. Singh would go back to India with his wife and children. Moreover, the Officer found that Harmanpreet’s psychological counselling sessions certainly helped her get through this situation, and that she would have more time to get accustomed to her departure. The Officer also explained that, in light of the temporary resident status of Mrs. Kaur and her children until the end of August 2017, the Applicants could choose the right time to leave in order to limit the consequences on Harmanpreet.
[20] The Officer found that the best interests of the children were to stay in Canada with their two parents, as it is usually the case for children who have spent most of their conscious lives in Canada. The Officer found that, should they return to India, they would most probably have difficulties adapting to their new lives at first, but that they would eventually adapt to their new country.
[21] The Officer concluded that the impact of the removal would be important on the two children, especially Harmanpreet. He therefore afforded an important weight (“un poids important”) to this factor in his global evaluation of the H&C application. He found that their best interests would be somewhat affected (“compromis dans une certaine mesure”), but mostly in the short term during the adaptation period. Even though the Officer indicated that it was an important factor, he concluded that the best interests of the children were not a determinative element (“un élément déterminant”) in the present case, sufficient to grant the requested relief despite the other dimensions of the file. In reaching this conclusion, the Officer referred to the fact that the children will not be separated from their parents, that they speak Punjabi and English, that they are relatively young (which will facilitate their integration), and that they will have members of their extended family in India, contrary to their current situation in Canada.
(4) Conclusion and weighing of the factors [22] In his conclusion, the Officer restated that Mrs. Kaur and Mr. Singh had shown minimal establishment in Canada, and were not able to demonstrate that they were capable of supporting themselves. Their limited links with Canada (“peu de liens”) was described by the Officer as a negative element in his global assessment of the application. The Officer also found that the Applicants failed to demonstrate how the country conditions in India would raise humanitarian considerations. The Officer acknowledged that the best interests of the children would be to stay in Canada, and that Harmanpreet will most probably be upset (“bouleversée”) when she will learn that the H&C application is denied. The Officer indicated that the family would nonetheless be able to leave Canada all together and that they could decide the best moment to leave Canada in order to limit the consequences on the children.
[23] The Officer indicated that the best interests of the children was undoubtedly a positive factor, but that it was the sole positive one in the Applicants’ request, as the only other factor to which weight was afforded, namely establishment in Canada, was found to be negative. In the result, the Officer concluded that the best interests of the children were not adversely affected (“compromis”) to such an extent as to be a determining factor sufficient, in and of itself, to justify the granting of residence on H&C grounds.
B. The standard of review [24] It is not disputed that the applicable standard of review in analyzing a discretionary decision based on H&C applications under subsection 25(1) of the IRPA is reasonableness (Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy] at para 44; Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker] at para 62). Findings on the sufficiency of H&C grounds involve the exercise of discretion by immigration officers and the application of a specialized legislation to particular facts, for which the applicable standard of review is reasonableness.
[25] When reviewing a decision on the standard of reasonableness, the analysis is concerned with the existence of justification, transparency and intelligibility within the decision-making process, and the decision-maker’s findings should not be disturbed as long as the decision “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] at para 47). In conducting a reasonableness review of factual findings, deference is warranted and it is not the role of the Court to reweigh the evidence or the relative importance given by the decision-maker to any relevant factor (Kanthasamy v Canada (Citizenship and Immigration), 2014 FCA 113 [Kanthasamy FCA] at para 99). This is especially the case where expertise arises from the specialization of functions of administrative tribunals having familiarity with a particular legislative scheme (Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd, 2016 SCC 47 [Edmonton] at para 33). Under a reasonableness standard, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, and the decision is supported by acceptable evidence that can be justified in fact and in law, a reviewing court should not substitute its own view of a preferable outcome (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 17).
[26] This standard requires deference to the decision-maker as it “fosters access to justice [by providing] parties with a speedier and less expensive form of decision making”, and as the reasonableness standard is “grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing” (Edmonton at paras 22 and 33). The Supreme Court has repeatedly said that reasonableness “takes its colour from the context” and “must be assessed in the context of the particular type of decision-making involved and all relevant factors” (Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29 at para 22; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59).
III. Analysis [27] While the Applicants raise three arguments in their challenge of the Decision, their main focus is on the unreasonable treatment by the Officer of the best interests of the children affected, in particular Harmanpreet. At the oral hearing before the Court, it was clear that this issue drove the Applicants’ position as counsel for the Applicants focused her submissions on the evidence regarding Harmanpreet’s mental health and fragile state.
A. The assessment of the best interests of the children was reasonable [28] The Applicants claim that the Decision is unreasonable in light of the Officer’s treatment of the best interests of the two children involved and the ensuing conclusions on its limited weight. The Applicants assert that the Officer did not adhere to the principles set forth in Kanthasamy and that the reasons fail to demonstrate adequate consideration of Harmanpreet’s unique circumstances and two suicide attempts. More specifically, counsel for the Applicants argues that the Officer misapplied the tests and approaches articulated in Kanthasamy and unreasonably minimized Harmanpreet’s situation.
[29] I respectfully disagree.
[30] I accept without hesitation that Harmanpreet’s situation attracts sympathy and, in that regard, I do share the concerns and worries expressed by the Applicants about her. I am also mindful that, even if the “best interests of the child” factor is not a decisive factor in an H&C application, it remains an extremely important one (Baker at para 75). However, I cannot agree with the Applicants that, in this case, the Officer’s treatment of the best interests of Jashanpreet and Harmanpreet ignores the teachings of Kanthasamy, is unreasonable and falls outside the range of possible, acceptable outcomes. I concede that I might not have reached the same conclusion as the Officer. However, on an application for judicial review, it is not my role to substitute my views for those of the Officer.
(1) The approach to H&C considerations [31] Relying on Kanthasamy, the Applicants first contend that the Officer failed to assess and determine whether Harmanpreet’s situation “would excite in a reasonable person in a civilized community a desire to relieve her misfortunes”. I do not share that view.
[32] In Kanthasamy, the Supreme Court clarified the legal test that representatives of the Minister must use to assess H&C applications under paragraph 25(1) of the IRPA. Prior to that decision, hardship was the general test used although the courts had acknowledged that it was not the only one. In Kanthasamy, the Supreme Court established that Chirwa v Canada (Minister of Citizenship and Immigration), [1970] IABD No 1 [Chirwa] provided an important governing principle for H&C assessments. The Supreme Court expressed the view that “the successive series of broadly worded “ humanitarian and compassionate” provisions in various immigration statutes had a common purpose, namely, to offer equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Chirwa, at p. 350” (Kanthasamy at para 21).
[33] The Supreme Court acknowledged that the hardship tests continue to apply, but added that the words “unusual and undeserved or disproportionate hardship” should be treated as “descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1)” (Kanthasamy at para 33). Therefore, looking at the issue of H&C considerations solely through the lens of hardships is no longer sufficient and the language of “unusual and undeserved or disproportionate hardship” must not be used by immigration officers in a way that limits their ability to consider and give weight to all relevant H&C considerations in a particular case (Kanthasamy at para 25).
[34] Further to my review of the Officer’s reasons, I am not convinced that the Decision failed to apply the Chirwa approach or that the Officer looked at the matter through the limited lens of hardships. It is true that the Officer does not expressly use the words “factors that would excite in a reasonable in a civilized community a desire to relieve the misfortunes of another” in the Decision, but immigration officers do not have to recite this language explicitly in order to comply with the approach elaborated in Kanthasamy. There are no magic formulae or special words that officers must resort to. It suffices if the reviewing court can be satisfied that the approach outlined in Kanthasamy transpires from the reasons and if it can conclude that the decision-maker has, in his or her analysis, properly considered not just hardships but all relevant H&C considerations in a broader sense.
[35] I find that this is manifestly the case here. There is no passage in the Decision indicating that the Officer looked at the matter through the narrow perspective of hardships and applied a wrong legal test. The Officer did not travel on this narrow road that immigration officers should now avoid. On the contrary, in assessing the Applicants’ situation, including the best interests of Harmanpreet, the Officer instead adopted the more holistic approach enunciated by the Supreme Court in Kanthasamy. In my view, a reading of the Decision reveals that the Officer showed compassion and concern for Harmanpreet’s misfortunes, and considered numerous H&C factors. I point out that the Officer expressly stated his empathy for her (“[j]’éprouve beaucoup d’empathie pour la jeune fille”) and specifically referred to Harmanpreet’s fragile mental state, her expected difficulties upon removal (“un retour en Inde […] sans doute difficile”) and the context of her suicide attempts.
[36] The Officer’s reasons do not reflect, in my view, the attitude of a person insensible and unresponsive to the misfortunes of others or not animated by a desire to relieve them. As Justice Roy said in Delille v Canada (Immigration, Refugees and Citizenship), 2017 FC 508 [Delille], an immigration officer must be guided by a concern to address circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Delille at para 42). However, the fact that immigration officers have to be desirous to relieve the misfortunes of an applicant does not mean that they have to automatically find that an H&C relief is merited. The Applicants appear to suggest that the Chirwa/Kanthasamy language calls for a given result. This is not how I read it and, in my opinion, this is not what it entails. The approach necessitates a certain mindset and disposition on the part of immigration officers, and it dictates a certain path to be followed in their analysis of the evidence in order to echo the overarching purpose of H&C provisions like subsection 25(1) of the IRPA. But, immigration officers still retain their discretion to assess the evidence, equipped as they are with their specialized expertise in handling immigration matters. In other words, the Chirwa/Kanthasamy approach to H&C applications defines the road to be taken, but it does not prescribe the destination to be ultimately reached by the decision-makers.
[37] As indicated in Delille, in order to properly apply the test and to follow the teachings of Kanthasamy, it is very relevant to assess the personal conditions of an applicant and all relevant H&C considerations in a particular situation should be weighed (Delille at para 42). This is what the Officer did. In my view, the question set out in Chirwa and Kanthasamy was considered and answered by the Officer on this record, albeit not in favour of the Applicants. The factual situation here is vastly different from the context considered by Justice Roy in Delille.
(2) The test for the best interests of the children [38] The Applicants further plead that the Officer also erred in the application of the more specific test governing the best interests of the children. Here again, the Supreme Court clarified the relevant test in Kanthasamy. It held that a decision under subsection 25(1) of the IRPA will be found unreasonable “if the interests of children affected by the decision are not sufficiently considered”, in the sense that “decision-makers must do more than simply state that the interests of a child have been taken into account” by ensuring that those interests are “’well identified and defined’ and examined ‘with a great deal of attention’ in light of all the evidence” (Kanthasamy at para 39). Immigration officers have the duty to consider the children’s best interests “as an important factor”, give them “substantial weight”, and “be alert, alive and sensitive to them” (Kanthasamy at para 38; Baker at paras 74-75).
[39] The bottom line in assessing this factor is that it is not enough for an immigration officer to simply say that the best interests of the children have been considered. In order to escape judicial scrutiny, the reasons must reflect that these interests are “well identified and defined” and are effectively examined by the officer “with a great deal of attention in light of all the evidence”. Ultimately, the officer must be “alert, alive and sensitive” to these interests in what is a “highly contextual” analysis because of the “multitude of factors that may impinge on the child’s best interests” such as his or her age, capacity, needs and maturity (Kanthasamy at paras 35 and 38-39; Baker at para 75).
[40] Where a child’s interests are “minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable” (Baker at para 75, cited in Kanthasamy at para 38). However, immigration officers are not required to adhere to a “magic formula” in the exercise of their discretion (Canada (Minister of Citizenship and Immigration) v Hawthorne, 2002 FCA 475 [Hawthorne] at para 7). No rigid test is prescribed or required for the analysis or to demonstrate that an immigration officer has been “alert, alive and sensitive” to the best interests of the children (Onowu v Canada (Citizenship and Immigration), 2015 FC 64 at paras 44-46; Webb v Canada (Citizenship and Immigration), 2012 FC 1060 [Webb] at para 13). In other words, form should not be elevated over substance (Taylor v Canada (Citizenship and Immigration), 2016 FC 21 at para 12; Webb at para 11).
[41] In order to demonstrate that an immigration officer is alert, alive, and sensitive to the best interests of the children, it is of course necessary for his or her analysis to address the “unique and personal consequences” that removal from Canada would have for the children affected by the decision (Tisson v Canada (Citizenship and Immigration), 2015 FC 944 at para 19; Ali v Canada (Citizenship and Immigration), 2014 FC 469 at para 16).
[42] Again, I am satisfied that, in this case, the Decision amply demonstrates that the Officer conducted this type of analysis and was alert, alive and sensitive to the best interests of the two children, in particular Harmanpreet. The Officer looked specifically at their situation and did not fail to engage in the analysis. He was aware of their history and concerns and referred extensively to the children’s conditions in the Decision. The Officer specifically said that he studied the best interests of the children with a great deal of attention (“avec beaucoup d’attention”). Unlike the situation found to be unreasonable by the Supreme Court in Kanthasamy, the Officer gave sufficiently serious consideration to Harmanpreet’s age and mental health, and to the general impact of her return to India in terms of contacts with her family, her worries about being separated from her father, her studies and her psychological state. The Officer was obviously sensitive to her two prior suicide attempts, and referred to them repeatedly. The Officer considered her psychological treatments, the fact that she was afraid to be separated from her father and the disruption caused by the removal. The Officer looked at her circumstances as a whole and did not show a “literal obedience” to the evidence of “unusual and undeserved or disproportionate” hardship (Kanthasamy at para 45). In fact, the Officer did not rely on these adjectives in the Decision.
[43] When the reasons are read as a whole, it is clear to me that the Officer was very mindful of the fact that Harmanpreet had made two suicide attempts, recognized that she suffered from anxiety and depression and that she had to be taken care of by the child protection services in order to protect her from herself. The Officer also acknowledged that she did not want to go back to India and to be separated again from her father. The Officer, however, found that her fear to be separated from her father would not materialize now, as Mr. Singh is without status and will likely return to India with his wife and children. The Officer also found that Harmanpreet has received psychological support and counselling since her suicide attempts. The Officer further mentioned that Harmanpreet, her brother, and her mother all had temporary resident permits which would allow them to stay in Canada until August 2017 and that they would therefore be able to decide the appropriate moment to leave the country before that date.
[44] In my opinion, the Decision communicates the Officer’s empathetic efforts to understand the evidence as well as openness and sensitivity to Harmanpreet’s situation. The Officer’s extensive analysis went beyond the simple hardship and reflected all H&C considerations. However, the Officer noted that some countervailing factors contributed to limit the adverse impact of the removal on the best interests of the children. On that front, he mentioned the fact that the children will not be separated from their parents, that they speak Punjabi and English, that they are relatively young (which will facilitate their integration), and that they will have members of their extended family in India, contrary to their current situation in Canada. For those reasons, the Officer concluded that the best interests of the children, while positive, was not a determinative factor sufficient to grant the H&C relief sought by the Applicants.
[45] I find that the Decision is replete with words showing compassion on the part of the Officer and illustrating how all H&C dimensions were considered in the assessment of the best interests of Harmanpreet. The Officer gave full and fair consideration to each of the factors supporting the Applicants’ application. Nowhere does the Decision exhibit a lack of sensitivity towards the misfortunes of Harmanpreet. It does not lack intelligibility and it provides all the elements to understand the context of the various findings. A reading of the Decision thus convinces me that the Officer has addressed the evidence in a manner that is consistent with the Supreme Court’s teachings in Kanthasamy and the underlying equitable nature and purpose of the H&C process.
[46] Contrary to the situation in Herreno c Canada (Citoyenneté et Immigration), 2017 CF 412, this is not a case where the Officer can be said to have failed to be alert, alive and sensitive to the best interests of Harmanpreet, to have omitted to identify and define those interests, or to have neglected to treat them with attention. The Officer demonstrated sympathy and made efforts to gain a full understanding of the real life impact of a negative H&C decision on the best interests of Harmanpreet. He was able to “articulate the suffering of a child that will result from a negative decision” (Kolosovs v Canada (Citizenship and Immigration), 2008 FC 165 at para 12, cited in Dowers v Canada (Immigration, Refugees, and Citizenship), 2017 FC 593 at para 12). The fact that the Officer did not reach the conclusion hoped for by the Applicants does not render the Decision unreasonable.
[47] I should emphasize that the mere presence of children does not necessarily call for a certain result and their interests will not always outweigh other considerations or mean that there will not be other reasons for denying an H&C claim (Kanthasamy at para 38). The best interests of the children “[do] not necessarily trump other factors for consideration in an H&C application” even if they are an important factor (Semana v Canada (Citizenship and Immigration), 2016 FC 1082 at para 28). It is only one factor to be weighted among others (Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 at para 72; Hawthorne at para 5; Canada (Minister of Citizenship and Immigration) v Legault, 2002 FCA 125 [Legault] at para 12). Once an immigration officer has analyzed the best interests of the children, “it is up to her [or him] to determine what weight, in her [or his] view, it must be given in the circumstances” (Legault at para 12).
[48] It is also important not to lose sight that subsection 25(1) of the IRPA remains a responsive exception to the ordinary operation of the IRPA. On that note, the Supreme Court in Kanthasamy underlined that “[t]here will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1), […] nor was s. 25(1) intended to be an alternative immigration scheme” (Kanthasamy at para 23). An H&C exemption is an exceptional and discretionary remedy (Legault at para 15). This relief sits outside the normal immigration classes or refugee protection streams by which foreign nationals can come to Canada permanently, and it acts as a sort of safety valve available for exceptional cases. Such an exemption is not an “alternative immigration stream or an appeal mechanism” for failed asylum or permanent residence claimants (Kanthasamy FCA at para 40).
[49] In order to remain within the boundaries of reasonableness, the Officer had to consider the children’s best interests as “an important factor, give them substantial weight, and be alert, alive and sensitive to them” (Baker at para 75). Furthermore, in conducting the analysis, the Officer had a duty to clearly identify and define the children’s best interests, and examine those interests with a great deal of attention in light of all of the evidence. I am unable to conclude that such an analysis was not undertaken here.
(3) The best interests of the children were not minimized [50] The Applicants also argue that, after recognizing Harmanpreet’s fragile state, it was unreasonable for the Officer to conclude that her best interests would only be compromised in the short term. They claim that by using the words “dans une certaine mesure”, the Officer was in fact “minimizing” the best interests of the children and Harmanpreet’s psychological problems, in contravention with the Supreme Court’s pronouncement in Baker (Baker at para 75, cited in Kanthasamy at para 38).They submit that Harmanpreet had acted upon suicidal thoughts twice, and that it was reasonable to believe that she would likely to commit a suicide attempt again if her application is denied.
[51] With respect, I do not agree. Counsel for the Applicants made a valiant effort to portray the “dans une certaine mesure” passage in the Decision as a reflection of a minimization of the best interests of the children, in the sense proscribed by Baker. However, by clinging to those few words and focusing on them in isolation to the adjacent conclusions of the Officer, the Applicants ignore the four elements expressly singled out by the Officer in the following sentences and precisely explaining why the Officer concluded that the best interests of the children would only be affected in the short term. Far from discounting the best interests of the children, the Officer in fact found that Jashanpreet’s and Harmanpreet’s best interests would be to remain in Canada with their parents, and that it was a positive factor favourable to the Applicants. The Officer, however, concluded that it was not sufficient to warrant a favourable decision because of other alleviating factors. This is the context in which the words “dans une certaine mesure” were used in the Decision. It was not to diminish or minimize the best interests of the children.
[52] I should add that it is not minimizing the best interests of the child to say that the evidence is insufficient to support an H&C relief. The Applicants are interpreting “minimize” as implying that the best interests of a child should always be enough to yield a positive result as soon as they arise, irrespective of what they amount to. This is not what was meant by Baker. An immigration officer is not minimizing the best interests of the child if he or she finds that the evidence offered on the various H&C considerations at stake is insufficient. Once again, the Applicants wrongly equate the test developed in Baker and Kanthasamy with a certain result, and this is obscuring the Applicants’ view of the Decision. The approach established by Kanthasamy does not mean that H&C considerations and the best interests of the children shall always win the day. It is still a discretionary and exceptional relief, highly dependent on facts and context, and the outcome will vary with the circumstances.
[53] I can understand that the Applicants may disagree with the weight given to Harmanpreet’s condition and psychological state by the Officer, but it is not this Court’s role to interfere with the weight attributed by the Officer to the different H&C considerations. Taken as a whole, the Officer’s Decision denying the H&C application is transparent. The Officer provided intelligible reasons for concluding that the Applicants did not meet their onus of establishing, on balance, that they should be permitted to apply for permanent residency from within Canada for H&C reasons. The Officer did not use the hardship framework in a way that fettered his discretion or caused him to discount relevant evidence. It was simply open to the Officer to find that the record did not justify relief in this case.
[54] I make one final observation. The test that a reviewing court has to apply on a judicial review like this one is reasonableness and deference, and this has not been modified by Kanthasamy. True, in Kanthasamy, the Supreme Court established that the approach of immigration officers to H&C considerations shall not be limited to hardships, and it developed a roadmap and criteria to assess the best interests of the children. But it did not change the test to be applied by a reviewing court on judicial review. Reasonableness and deference are still the standards to be applied by a reviewing court in H&C matters. While immigration officers must now refrain from looking at H&C considerations and the best interests of the children through the narrow lens of hardships, the reviewing courts are still required to look at the decision-makers’ findings through the lens of reasonableness and deference.
[55] Kanthasamy should thus not be interpreted as if it erected a new standard of review when H&C applications are challenged. The overarching principle remains deference, and this imposes discipline on the reviewing court. On judicial review, it is not the role of the reviewing court to substitute its views for those of the decision-maker, even though the court might have reached a conclusion different from that of the decision-maker. Decisions un