Sousa Bettencourt v. Canada (Citizenship and Immigration)

Sousa Bettencourt v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2023-02-16
Neutral citation
2023 FC 225
File numbers
IMM-989-22
Decision Content
Date: 20230216
Docket: IMM-989-22
Citation: 2023 FC 225
Ottawa, Ontario, February 16, 2023
PRESENT: The Honourable Madam Justice Strickland
BETWEEN:
PAULA SUSANA SOUSA BETTENCOURT
JOAO PEDRO PATRICIO CARDOSO ROSA
BEATRIZ LUCIANA BETTENCOURT CORREIA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
[1] This is the judicial review of a decision of a Senior Immigration Officer [Officer] refusing the Applicants’ application for permanent residence. The application was based on humanitarian and compassionate [H&C] grounds pursuant to s 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
Background
[2] The Applicants are citizens of Portugal. They are the Principal Applicant, Paula Susana Sousa Bettencourt, her youngest daughter [Minor Applicant] and her common law spouse [Spouse].
[3] The Principal Applicant claims that she suffered violence at the hands of her former husband who threatened and harmed her even after she ended the relationship. She then moved to Lisbon in 2009, with her three daughters, and a few months later met her now Spouse. The Principal Applicant and her Spouse encountered financial difficulties when the business she worked for closed and her Spouse’s business struggled. The Principal Applicant has two sisters who are permanent residents of Canada and they advised her that they could sponsor the Applicants to become permanent residents of Canada. Based on this, the Applicants sold their assets in Portugal and came to Canada in June of 2013. They soon learned that they could not be sponsored by the Principal Applicant’s sisters. Regardless, they remained in Canada, worked without authorization and enrolled the Minor Applicant in school. The Principal Applicant claims that in August 2016, she and her daughter returned to Portugal but that her daughter did not adjust well. Concerned for her daughter’s mental health, the Principal Applicant and her daughter came back to Canada in February 2017 where her daughter immediately returned to her prior happy, relaxed self. However, the Principal Applicant claims that following a house move and change of schools for the 2018-2019 school year, her daughter was diagnosed with stress and anxiety. The Principal Applicant claims that her daughter was put on medication for migraines and does not cope well with change. In February 2020, the Applicants applied for permanent residence based on H&C grounds. The application was based on the best interests of the child and hardship related to both the re-traumatization of the Principal Applicant should she return to Portugal and the Applicants’ establishment in Canada.
[4] By decision dated January 17, 2022, the Officer determined that an exemption on H&C grounds was not warranted and denied the application. This is the judicial review of that decision.
Decision Under Review
[5] The Officer noted that the Principal Applicant’s statement that she is the owner of a cleaning business and found that she appears to be financially independent, based on her business and personal bank accounts. The Officer also found that the Principal Applicant demonstrated that she has access to money and to the support of family in Portugal and, as such, that there is limited hardship associated with re-establishing there. Ultimately, the Officer gave some positive weight to the Principal Applicant’s establishment in Canada, but found that this was mitigated by the fact that she made no attempt to obtain the required work authorizations or visitor extensions to remain in Canada.
[6] With respect to the Principal Applicant’s submission that she would face undue, undeserved and disproportionate hardship if she were returned to Portugal given the trauma she suffered at the hands of her former husband and associated risk of re-traumatization upon return, the Officer noted the absence of any history of domestic violence, that there was little evidence to support that anyone was willing or able to harm the Principal Applicant upon her return to Portugal and there was no evidence of any communication or further threats from her former husband. The Principal Applicant had also not provided any evidence of why a relocation to a different part of the country would not be feasible to avoid the possibility of re-traumatization. Given the lack of evidence, the Officer placed little weight on this factor.
[7] The Officer accepted that the Principal Applicant likely developed valuable friendships in Canada, but found that that separation is one of the inherent outcomes arising from the immigration process and, as such, placed little weight on this factor.
[8] With respect to the best interests of the child, the Officer noted the Minor Applicant is 17 years old and came to Canada when she was nine years old. Further, that she suffers from anxiety and depression, noting the clinical assessments submitted in support of the H&C application. The Officer acknowledged that the Minor Applicant has spent the majority of her formative school years in Canada, as well as her academic achievements, and placed some weight on this. However, while the Minor Applicant would struggle with adapting to life upon return to Portugal, the Applicants had not adduced any objective evidence confirming the appropriate treatment needed for the Minor Applicant and the unavailability of that treatment in Portugal.
[9] Moreover, with respect to the Principal Applicant’s submissions that it would be extraordinarily difficult for the Minor Applicant to learn the level of Portuguese that would be required to complete grades 11 and 12 in Portugal, the Officer found that an open source online search revealed that there are 48 international schools in Portugal, most of which follow the UK national curriculum with classes in English. Accordingly, they were not persuaded that a return to Portugal would be detrimental to the Minor Applicant’s academic development and found that the Principal Applicant has the necessary financial means to enroll her child in an international school, if necessary. The Officer ultimately concluded that the Applicants had not provided sufficient objective evidence to demonstrate that their removal from Canada would adversely affect the Minor Applicant.
[10] The Officer also noted that there was little evidence to support the Principal Applicant’s submission that when she returned to Portugal in 2016, she had made full efforts to reintegrate, such as a house purchase, rental agreement, vehicle purchase and licensing, employment, school enrolment etc., and that there was no evidence of the Minor Applicant’s alleged struggles in Portugal. In the absence of such evidence, the Officer placed little weight on this factor.
[11] The Officer accepted that returning to Portugal may pose some difficulties and that there will be a period of adjustment, but found that the Applicants would not be returning to an unfamiliar country, language or a place devoid of family. They had been able to settle in Canada, thereby demonstrating the ability to adapt to new locations, differing cultures and life changes. Further, that the adult Applicants have the necessary skills and financial capacity to successfully re-integrate in Portugal.
[12] In response to the Applicants’ submission that they would undergo unusual, undeserved, or disproportionate hardship should they be forced to return to Portugal, the Officer found that the Applicants had provided financial information to show they are financially competent, and that they have transferrable skills. Based on their ability to adapt well to Canada, the Officer placed little weight on this factor.
[13] Finally, with respect to the country condition documents evidencing Portugal’s economic crisis, issues with its health system and the Applicants’ concerns of high unemployment rates, high cost of living and taxes, and the associated low monthly income, the Officer noted country conditions in Portugal are not perfect. However, Parliament did not intend for s 25 of the IRPA to make up for the difference in the standard of living between Canada and other countries, but rather to provide flexibility to deal with extraordinary situations which are unforeseen by the IRPA. Accordingly, the Officer placed little weight on this factor.
[14] The Officer concluded by noting that they had made a global assessment of the factors raised by the Applicants, and that they were not satisfied that the H&C considerations before them justified an exemption under s 25(1) of the IRPA. Accordingly, the Officer refused the H&C application.
Issues and Standard of Review
[15] The Applicants raise many arguments, all of which fall within two main issues:
Was the decision rendered in breach of a duty of procedural fairness?
Was the decision reasonable?
[16] Issues of procedural fairness are to be reviewed on a correctness standard (Mission Institution v Khela, 2014 SCC 24 at para 79 and in Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). In Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] the Federal Court of Appeal held that although the required reviewing exercise may be best – albeit imperfectly – reflected in the correctness standard, issues of procedural fairness do not necessarily lend themselves to a standard of review analysis. Rather, the Court is to determine whether the proceedings were fair in all of the circumstances. That is, “the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” (CPR at paras 54-56; see also Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35; Ahousaht First Nation v Canada (Indian Affairs and Northern Development), 2021 FCA 135 at para 31).
[17] In assessing the merits of the Officer’s decision, there is a presumption that, as the reviewing court, this Court will apply the standard of review of reasonableness (Canada (Minister of Immigration and Citizenship) v Vavilov, 2019 SCC 65 at paras 23, 25 [Vavilov]). The parties do not submit that there are circumstances in this matter that would warrant a departure from that presumption and I find that there are none.
[18] On judicial review on the reasonableness standard, the Court “must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov at para 99).
The Decision was Not Made in Breach of the Duty of Procedural Fairness
Applicants’ Position
[19] The Applicants submit the decision was procedurally unfair as it was predicated on unforeseeable credibility findings. They submit that the duty of procedural fairness requires that applicants be given an opportunity to respond to concerns that relate to credibility, accuracy or genuine nature of information submitted by the applicant. Further, that this duty also arises where extrinsic evidence is relied upon by an officer.
[20] Specifically, the Applicants submit that the Officer doubted that the Principal Applicant has suffered from domestic violence by noting the absence of any history of domestic violence in the H&C application. However, she had addressed this in her affidavit and it is also referenced in a report by a psychotherapist [Psychotherapist Assessment], both filed in support of the H&C application. The Applicants submit that it is unclear why, unless the credibility or veracity of these documents were doubted, this was insufficient to establish that the Principal Applicant suffered domestic violence in Portugal.
[21] The Applicants also submit that the Officer improperly relied upon extrinsic evidence, without notice to the Applicants, to undermine the credibility of their claim that the Minor Applicant’s education would suffer serious setbacks upon return to Portugal as her Portuguese is not at the level of her peers of the same age. Had the Applicants been aware that the Officer had reviewed this information, they could have clarified that the international schools are generally only available to students who are not Portuguese nationals, tuition costs are very high, and the course offerings are limited.
Respondent’s Position
[22] The Respondent submits that the Officer did not render a credibility finding on the issue of whether the Principal Applicant was a victim of gender-based violence. Rather, the Officer only noted there was an insufficiency of evidence. This was a not an unreasonable finding given the lack of objective evidence to confirm the Principal Applicant’s assertions. There was also insufficient evidence to establish that when the Principal Applicant returned to Canada in 2017, that she did so because of threats of domestic violence from her former husband or because of the psychological effects of the abuse suffered during her previous marriage. Moreover, the Officer was not obliged to simply accept, as fact, the statements of an applicant that are recounted in the context of a report of a psychologist or psychiatrist (referencing Demberel v Canada (Minister of Citizenship and Immigration), 2016 FC 731 at para 47 [Demberel]).
[23] With respect to the extrinsic evidence referred to by the Officer, the Respondent cites Adewole v Canada (Citizenship and Immigration), 2014 FC 112 [Adewole] for the principle that the issue comes down to determining whether the person concerned was aware, or was deemed to have been aware, of the evidence in question (paras 27-28). In this instance, given the Applicants’ implied assertion that accessing English language high school education was impossible in Portugal and the absence of any evidence submitted by them on the point, the Applicants knew or should have known about the availability of English language high school education. The Officer therefore did not err.
Analysis
[24] The Officer considered the Principal Applicant’s submission that she would suffer hardship if she were returned to Portugal given the risk of re-traumatization arising from the abuse she previously suffered at the hands of her former husband. The Officer acknowledged the submission by the Applicants’ counsel that the risk “is real” as supported by the Psychotherapist Assessment. However, the Officer noted the absence of any history of domestic violence in the H&C application and that the Applicants had not provided evidence of domestic violence such as a divorce certificate, police records, or official medical records. The Officer found that there was little evidence to support that anyone is willing or able to harm the Principal Applicant upon return to Portugal as there was no evidence of an ongoing relationship, a significant period of time had passed, and there was no evidence of any communications of further threats by the Principal Applicant’s former husband. The Applicants also had not provided evidence explaining why a relocation to a different part of Portugal is not feasible to avoid the possibility of re-traumatization. Given the lack of evidence, the Officer placed little weight on this factor.
[25] The Applicants take issue with the Officer’s finding that there was an absence of any history of domestic violence within the H&C application as they submit that this disregards the affidavit of the Principal Applicant outlining the alleged abuse and the Psychotherapist Assessment.
[26] In my view, by addressing the claim of a risk of potential re-traumatization, the Officer was clearly aware of the Principal Applicant’s submission in that regard which was based on her narrative as found in her affidavit and as she reported it to the psychotherapist. The Officer also explicitly acknowledged the Applicants’ reliance on the Psychotherapist Assessment in support of this hardship claim. The Officer’s concern was with the sufficiency of supporting objective evidence to support the claim of risk of re-traumatization, as is demonstrated by the Officer’s next sentence noting the absence of “a divorce certificate, police records, and official medical records”.
[27] In that regard, the Applicants point to what appears to be an entry on the Principal Applicant’s birth certificate which indicates that her marriage was dissolved by declared divorce in February 24, 2011. However, this document does not speak to domestic violence or give any reason for the divorce. No other objective evidence was submitted in support of the claim of a risk of re-traumatization. I would also note that while in her affidavit the Principal Applicant states that she did not report an alleged attack after she separated from her former husband to the police as domestic violence is considered normal in Portugal and, even when reported the police do not act, no objective documentary evidence was filed to support that assertion in her H&C application.
[28] The Officer also found that there was no evidence of an ongoing relationship, that a significant period of time has passed, and there was no evidence of any communications of further threats by the Principal Applicant’s former husband or any evidence as to why she could not relocate to a different part of Portugal to avoid potential re-traumatization.
[29] In that regard, the Principal Applicant’s affidavit evidence was that the domestic violence ended when she moved to Lisbon in 2009, over 13 years ago. Her affidavit does not suggest, and there is no evidence in the record, that her former husband has subsequently had any contact with her or made threats against her. I note that she lived in Lisbon from 2009 to 2013 but provided no evidence of either any contact by her former husband or that during this period she was re-traumatized by past abuse. There was also no evidence in the record before the Officer that she sought treatment or counselling for trauma during this 13-year period. Further, she and Minor Applicant returned to Portugal in 2016 for six months and there was no evidence before the Officer suggesting that that the Principal Applicant was concerned about or was re-traumatized by that visit. Her affidavit evidence was that she returned to Portugal because “[t]he stress of living without legal immigration status was wearing” on her and that she and the Minor Applicant ultimately returned to Canada because of the mental health of the Minor Applicant. There was no evidence before the Officer suggesting that the Principal Applicant returned to Canada because of a fear of violence by her former spouse or because she was re-traumatized by being in Portugal as a result of prior abuse during her marriage.
[30] As to the Psychotherapist Assessment, it is not objective evidence and reaches its conclusions based on the recounting of events by the Principal Applicant. It cannot establish those events as fact.
[31] When appearing before me, the Applicants submitted that if the Officer had any doubt about the Principal Applicant’s submission, then they should have put this to her for clarity. However, this ignores that the onus was on the Applicants to support their H&C application with sufficient evidence. I also do not agree with the submission that the Officer subtly raised credibility as an issue evidenced by the “tone” of the reasons.
[32] In light of the evidence that was before the Officer, I am not persuaded that the Officer made credibility findings concerning the alleged prior abuse. Rather, the Officer was simply not satisfied that the Principal Applicant had adduced sufficient evidence to support her claim of a risk of re-traumatization. In that regard, the Principal Applicant failed to provide sufficient evidence of past trauma as she provided no objective evidence to support this – or even any supporting affidavits of others. Nor did she assert or did her evidence support that there was any risk of future abuse. And, significantly, her evidence did not support that she suffered re-traumatization based on her alleged prior abuse during the years she resided in Lisbon prior to coming to Canada or when she returned there with the Minor Applicant in 2016.
[33] The Officer assessed the evidence submitted and its probative value and neither believed nor disbelieved the Principal Applicant. Rather, the Officer was simply not satisfied that she had provided sufficient evidence that she would be re-traumatized, based on past abuse, should she return to Portugal (see Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067 at paras 23, 27, 34; Gao v Canada (Minister of Citizenship and Immigration), 2014 FC 59 at para 32). Further, fact-finders are entitled to significant deference where findings of sufficiency are concerned, so long as they are explained and not used to make a disguised credibility finding (Singh v Canada (Citizenship and Immigration), 2022 FC 339 at para 35; Williams v Canada (Citizenship and Immigration), 2022 FC 695 at para 24).
[34] While the Officer’s reasons could certainly have been clearer, viewed together with the evidence in the record before them, the Officer reasonably concluded that the Principal Applicant had not met her onus of providing sufficient evidence to support her claim of hardship based on re-traumatization. I am not persuaded that the Officer made a credibility finding and, therefore, that the Principal Applicant was denied procedural fairness. Rather, because of the lack of objective evidence, the Officer afforded little weight to that factor. I see no error in that regard.
[35] The Applicants also assert that they were denied procedural fairness because of the Officer’s reliance on extrinsic information. They specifically take issue with the finding that “[a]n open source search online reveals that there are 48 international schools in Portugal and that most schools follow the UK national curriculum with classes in English”.
[36] In Shah v Canada (Citizenship and Immigration), 2018 FC 537 [Shah], the applicants argued that the officer breached procedural fairness by relying on his own internet research with respect to the services available in Bangladesh to support children with autism. Justice Kane found that the officer did not breach the duty of procedural fairness owed in the circumstances of that case by referring to sources not submitted by the applicants and that an officer’s reference to online resources does not automatically trigger a duty to provide the applicant with an opportunity to respond. Rather, the jurisprudence has evolved and establishes that a more contextual approach to the treatment of such evidence is required (Shah at paras 34- 43; Alves v Canada (Citizenship and Immigration), 2022 FC 672 at paras 29-30). Further, the onus remains at all times on the applicants to support their H&C application with sufficient evidence, including with respect to the best interests of the child (Shah at para 42).
[37] In applying a contextual approach to the facts before her in Shah, Justice Kane referred to Majdalani v Canada (Minister of Citizenship and Immigration), 2015 FC 294 [Majdalani], which is factually similar to the matter now before me. In her H&C application, the applicant in Majdalani raised concerns about her daughter’s ability to complete her education in their country of origin, Lebanon, as she was no longer fluent in Arabic. There, the officer had consulted extrinsic sources to conclude that Lebanese students may request an exemption from the Arabic curriculum and pursue their studies in a different educational system. With respect to the applicant’s claim of procedural unfairness, although the Court found that the officer was clearly concerned with the sufficiency of evidence put forth by the applicants to support their concerns of the Lebanese education system, it also held as follows:
[53] Further, I am also of the view that in both cases, the information came from standard and well-known public sources, and it would have been easily accessible to the applicants. Besides, in the context of the applicants’ allegations regarding Mrs. Gedeon’s needs and Tracy’s education, the information referenced by the Officer is the type of information the applicants could have expected the Officer to consult.
[54] Both of these websites are official and widely available sources the applicants could reasonably be expected to know about. Moreover, there is nothing particularly novel or significant in the information, which is of public knowledge.
[38] Similarly, here, the type of information referenced by the Officer – that is, the availability of high school classes in English – is the type of information the Applicants could have expected the Officer to consult given their claim that the Minor Applicant lacked the level of Portuguese that would be required for her to complete grades 11 and 12 in Portugal. While the exact sources considered by the Officer are not identified, the accuracy of the information contained in those sources has not been disputed by the Applicants. Nor do the Applicants appear to dispute the availability of information pertaining to classes in English, or its novelty or significance. The only point of dispute appears to be the accessibility of these classes to the Minor Applicant. However, as the burden was on the Applicants to support their H&C application with sufficient evidence, the Officer did not breach the duty of procedural fairness by conducting an open source search as to the availability of English language schools in Portugal. Rather, the Applicants did not meet their burden of demonstrating in their H&C application that such schools exist but are not accessible to the Minor Applicant, as they now suggest in their submissions on judicial review.
[39] I would also observe here, in passing, that while the Principal Applicant states in her affidavit that the Minor Applicant cannot participate in advanced conversation in Portuguese and, should they return to Portugal, that she would not be able to find employment or complete advanced schooling given her limited language skills, earlier in her affidavit the Principal Applicant states that the Minor Applicant very quickly picked up English when she came to Canada – completing an English as a Second Language course that normally takes seven years within two years. It is not apparent from the record why the Minor Applicant would be unable to similarly improve her Portuguese language skills while attending high school in Portugal.
The Decision was Reasonable
[40] The Applicants make a number of submissions as to the reasonableness of the decision. I will address these below.
i. Best Interests of the Child
[41] The Applicants submit that the Officer applied an incorrect test for the best interests of the child by explicitly referring to a hardship analysis and focusing on the ways in which hardship could be mitigated and basic needs could be met in Portugal. Specifically, that the Officer failed to undertake a contextual analysis of the “multitude of factors that may impinge on the [children]’s best interests”, and merely considered whether the Minor Applicant would suffer hardship or be “adversely affected” should she return to Portugal (citing Nagamany v Canada (Minister of Citizenship and Immigration), 2019 F C 187 at para 38; Vincent v Canada (Minister of Citizenship and Immigration), 2022 FC 1022 at para 35 [Vincent]; Williams v Canada (Minister of Citizenship and Immigration), 2012 FC 166 at paras 65-67 etc.). The Applicants submit that the Officer incorrectly focussed on the adaptability and the availability of supports in Portugal, despite acknowledging: the Minor Applicant’s academic achievements, her strong family ties in Canada, her medical history, including that she suffers from stress and anxiety related to change, and a clinical assessment finding that the Minor Applicant would likely suffer further psychological distress if she is removed from Canada and that she would likely benefit from having a sense of stability and routine, continuing her studies, and seeing a counsellor.
[42] The Applicants also submit that the Officer failed to even mention the Principal Applicant’s two grandchildren in Canada, and did not identify, assess, or balance their interests as required by law.
[43] The Respondent submits that the Officer did not err in their best interests of the child analysis as the Officer was cognizant of the Minor Applicant’s state of mental health, but their assessment was necessarily hampered by the lack of evidence concerning the recommended or implemented treatment regiment to address the Minor Applicant’s health problems or the availability of that regime in Portugal. The Respondent also notes that although the Applicants rely on Williams to assert that the Officer erred by assessing whether the Minor Applicant’s basic needs would be met, this Court has subsequently held that there is no requirement to apply the test articulated in Williams and that an officer’s statement that applicants did not show that a concerned child would be “adversely and significantly affected” did not equate to using the wrong lens identified in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 at para 35 [Kanthasamy] (Zlotosz v Canada (Minister of Citizenship and Immigration), 2017 FC 724 at paras 22-23 [Zlotosz]).
[44] The Respondent also submits that the Officer did not err in omitting the Principal Applicant’s two grandchildren in the best interests of the child assessment, as the Principal Applicant’s closeness to her grandchildren was barely, if at all, mentioned in her submissions pertaining to that H&C factor. The Officer’s treatment of the grandchildren was commensurate with the amount of emphasis and information provided by the Applicants.
[45] Finally, the Respondent notes that there is no magic formula to an assessment of the best interests of the child. The assessment is highly contextual and officers are not required to follow any one specific test (citing Sanchez v Canada (Minister of Citizenship and Immigration), 2015 FC 1295 at paras 14, 16; Semana v Canada (Minister of Immigration and Citizenship), 2016 FC 1082 at paras 25, 31 [Semana]).
Analysis
[46] Section 25(1) of the IRPA requires that the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible (other than under section 34, 35 or 37), or who does not meet the requirements of the IRPA, examine the circumstances concerning the foreign national. The Minister may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of the IRPA if the Minister is of the opinion that it is justified by H&C considerations relating to the foreign national, taking into account the best interests of a child directly affected.
[47] In this regard, jurisprudence establishes that an H&C exemption is an exceptional and discretionary remedy, which is intended to provide a flexible and responsive exception to the ordinary operation of the IRPA, or, a discretion to mitigate the rigidity of the law in an appropriate case. There will inevitably be some hardship associated with being required to leave Canada, but this alone will not generally be sufficient to warrant relief on H&C grounds under s 25(1). Nor is s 25 an alternative immigration scheme. Rather, s 25 is intended 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” (Kanthasamy at paras 13, 19, 21, 23; Shackleford v Canada (Citizenship and Immigration), 2019 FC 1313 at paras 12, 15, 16; Marshall v Canada (Citizenship and Immigration), 2017 FC 72 at para 31; Del Pilar Capetillo Mendez v Canada (Citizenship and Immigration), 2022 FC 559 at para 49).
[48] The analysis of the best interests of a child directly affected is highly contextual and must be applied in a manner responsive to each child’s particular age, capacity, needs and maturity (Kanthasamy at para 35). Officers should 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). To demonstrate that a decision maker is alert, alive, and sensitive to the best interests of the child, it is necessary for the analysis in issue to address the unique and personal consequences that removal from Canada would have for the children affected by the decision (Semana; see also Nguyen v Canada (Citizenship and Immigration), 2017 FC 27 at para 25). That said, the burden is on an applicant to advance meaningful evidence in support of an analysis of a child’s best interests (Osorio Diaz v Canada (Citizenship and Immigration), 2015 FC 373 para 29 [Osorio Diaz]; Celise v Canada (Citizenship and Immigration), 2015 FC 642 at para 35 [Celise]; Louisy v Canada (Citizenship and Immigration), 2017 FC 254 at para 11 [Louisy]; Huong v Canada (Citizenship and Immigration), 2021 FC 1210 at para 26 [Huong]; Semana at para 37).
[49] I do not agree with the Applicants that the Officer erred by applying an incorrect test for the best interests of the child analysis. The Officer stated that, with respect to the best interests of the child considerations, they were alert alive and sensitive and acknowledged that this is an important factor that should be given significant weight in the assessment of the H&C application, although it is not necessarily a determinative factor.
[50] The Officer then specifically considered that the Minor Applicant came to Canada when she was nine years old, that she is now 17, and that she has spent the majority of her formative school years in Canada. The Officer accepted that she suffers from anxiety and depression and states that they had taken note of the clinical assessments that were submitted with the application. The Officer also noted the assertion that her Portuguese language ability is limited, as well as her academic achievements in Canada. The Officer acknowledged that the Minor Applicant will struggle with adapting to life upon return to Portugal but found that the Applicants had not provided sufficient objective evidence to demonstrate that their removal from Canada would “adversely affect the child”.
[51] In my view, the Officer did not fail to undertake a contextual analysis. Further, stating that sufficient objective evidence to demonstrate that their removal from Canada would “adversely affect the child” does not, in and of itself, demonstrate that a wrong test was applied by the Officer. As held by Justice Diner in Zlotosz:
[22] Here, the Officer observed that the Applicants did not show the child would be “adversely and significantly affected”. This does not equate to using the wrong lens identified in Kanthasamy. It is perfectly clear that while the Applicants would have preferred that the Officer come to a different conclusion, the Officer’s approach was justifiable based on the evidentiary record presented. The Federal Court of Appeal has rejected the notion that consideration of the BIOC simply requires that the officer determine whether the child’s best interests favours non-removal, as this will almost always be the case (see for instance Louisy v Canada (Citizenship and Immigration), 2017 FC 254 at para 11 [Louisy]; Garraway v Canada (Immigration, Refugees and Citizenship), 2017 FC 286 at paras 46-47; Nguyen at para 7). Rather, the law is clear that the onus rests squarely with the applicant to provide sufficient evidence on which to exercise positive H&C discretion. Here, the Officer applied a contextual approach to BIOC and found that the Applicants failed to provide such evidence.
[23] Contrary to the arguments of the Applicants, there was no requirement to apply the test articulated in Williams v Canada (Citizenship and Immigration), 2012 FC 166 [Williams]: in Kanthasamy, the Supreme Court had the opportunity to adopt Williams or any other particular test, but stayed away from that. To deviate now from the SCC and the FCA’s guidance would be inappropriate, as it would offend the doctrine of stare decisis.
[24] As a result, the Court has consistently held since Kanthasamy that there is no formula that must be used in considering BIOC. The framework for BIOC analysis remains largely unchanged since Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, in that the legal test is whether the officer was alert, alive and sensitive to child’s best interests (Ordonez at para 19).
[52] In my view, the Officer did not did not examine the best interests of the child through a basic needs and hardship lens and did not apply the wrong test. The Officer’s treatment of the clinical assessment(s) is discussed below within the analysis of health considerations.
[53] As to the Officer’s consideration of the Principal Applicant’s grandchildren, it is significant to note that in the submissions made by her counsel in support of the H&C application, the best interests of the child submissions make no reference to the Principal Applicant’s grandchildren and are solely concerned with the Minor Applicant. In her lengthy affidavit filed in support of the H&C application, the Principal Applicant merely states that her eldest daughter and her husband and two children are now in Canada, having been issued work permits as the husband is employed by a Canadian company. The Principal Applicant states that she wants to be a part of her grandchildren’s lives and it would break her heart to know they are in Canada as she is far away with little chance of being able to return to Canada if she is removed.
[54] The burden is on an applicant to advance meaningful evidence in support of an analysis of a child’s best interests (Fouda v Canada (Immigration, Refugees and Citizenship), 2017 FC 1176 at para 35; Osorio Diaz at para 29; Celise at para 35; Louisy at para 11). In that regard, it is significant to note that the Applicants in this matter not only did not specifically raise the best interests of the grandchildren as an H&C factor, they also submitted very little documentary evidence to support the grandchildren would be detrimentally impacted by the Applicant’s removal to Portugal.
[55] Although the Applicants rely on Shubar v Canada (Citizenship and Immigration), 2022 FC 186 at paragraph 2 [Shubar] to support their submission that the Officer failed to mention the Principal Applicant’s two grandchildren in Canada in their best interests of the child analysis, which rendered the decision unreasonable, Shubar is clearly distinguishable on its facts. There, and contrary to this matter, the best interests of the applicant’s grandchildren was a central submission made by the applicant:
12 The Supreme Court of Canada in Vavilov recognized that an administrative decision maker cannot be expected to respond to every argument or submission made by a party, "however subordinate": Vavilov at para 128. However, it underscored the importance of administrative decision makers showing through their reasons that they have "meaningfully grapple[d]" with the key issues or central arguments raised: Vavilov at paras 127-128. In the present case, Ms. Shubar's particular involvement in the third grandchild's life and care, and the specific impact on that child of her removal, was not merely a subordinate or passing submission. It is mentioned as part of the BIOC in the summary of "Relevant Factors" in counsel's submissions in support of the H&C application; it is described aga