Manriquez v. Canada (Citizenship and Immigration), 2022 FC 298

Date: 20220303

Docket: IMM-1650-21

Citation: 2022 FC 298

Ottawa, Ontario, March 3, 2022

PRESENT: Madam Justice McDonald

I. Background

[2] The Applicants – Maria Elizabeth Mora Manriquez, her spouse Antonio de Jesus Segovia Neri, and their minor son Gabriel Santiago Segovia Mora – are citizens of Mexico. The adult Applicants also have two Canadian-born children: Joshua, born in 2014, and a child born during the processing of their H&C application and who is, therefore, not referenced in the H&C application.

[3] The family arrived in Canada in 2008 on a 6-month authorization. Their son, Gabriel, was 5 months old when they arrived in Canada. He is now 13 years old.

II. Decision Under Review

[4] In considering the Applicants’ establishment in Canada, the Officer considered letters from family, friends, coworkers, their involvement in Church, and attendance at English second-language programs. However, the Officer stated their establishment was “not unusual compared to others who have been here for a similar amount of time and therefore does not merit exceptional discretion”.

[5] The Officer went on to state:

…It is noted that in addition to not abiding by conditions of the visitor status which was granted to them, their evidence does not support that they attempted to maintain or restore their authorization and instead chose to remain in Canada for over twelve years after its expiry in Mar 2009.

[6] The Officer cited Joseph v Canada (Citizenship and Immigration), 2015 FC 904 where Justice Brown wrote, “Those who disrespect and refuse to follow Canadian laws cannot by their misconduct become better placed than those who respect Canadian immigration laws and processes.” (at para 29). The Officer further highlighted that Maria’s family members had legally immigrated to the country, and reasoned they would have been aware of Canada’s immigration system. The Officer concluded:

…It would be inappropriate for the applicants to benefit from the years which they lived and worked in Canada illegally, as doing so would incentivise others similarly seeking H&C relief to remain unlawfully in Canada. As a result, a negative inference is made towards the applicants’ disregard for Canada’s immigration laws.

[7] With respect to the BIOC analysis, the Officer had evidence that Gabriel is not fluent in Spanish. The Applicants provided a report from Maria Cuervo, an Associate Professor in Spanish and Linguistics at the University of Toronto, who assessed Gabriel as having general test score of 42.5% or “above average low proficiency”. The Officer noted that this assessment did not comment on Gabriel’s ability to learn the language. The Officer conducted independent research and relied on an article summarizing a study performed by Massachusetts Institute of Technology (MIT), which concluded that “children remain very skilled at learning the grammar of a new language much longer than expected – up to the age of 17 or 18”. The Officer concluded that both Gabriel and Joshua (the Applicants’ Canadian-born son) would be able to learn Spanish as a result of having been exposed to Spanish from birth. The Officer referenced Gabriel’s report card, which demonstrates he succeeds in school both generally, and specifically in learning Italian. The Officer states “[t]his corroborates the MIT study’s findings and support Gabriel’s proficiency at learning languages”. Further, the Officer noted that because Gabriel and Joshua are fluent in English, and English is a compulsory subject in Mexican schools, this would be a benefit to them in Mexico.

[8] The Officer considered the evidence of adverse country conditions in Mexico. He noted the lack of evidence that the adult Applicants had been exposed to violence, had lower standards of education, or lack of access to health care during their upbringing. The Officer also stated that “[n]o country, including Canada can guarantee that crime, poverty or other negative factors will not occur during a child’s upbringing”.

III. Issues and Standard of Review

[9] Although the Applicants raise a number of issues with the Officer’s decision, the reasonableness of the Officer’s treatment of the BIOC is determinative of this judicial review.

[10] On the standard of review, the parties agree that the reasonableness standard as articulated in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 is applicable.

IV. Analysis

[11] H&C applications are considered pursuant to section 25 of the Immigration and Refugee Protection Act, SC 2001, c 27 which states:

Humanitarian and compassionate considerations — request of foreign national

Séjour pour motif d’ordre humanitaire à la demande de l’étranger

25 (1) Subject to subsection (1.2), 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 this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

25 (1) Sous réserve du paragraphe (1.2), le ministre doit, sur demande d’un étranger se trouvant au Canada qui demande le statut de résident permanent et qui soit est interdit de territoire — sauf si c’est en raison d’un cas visé aux articles 34, 35 ou 37 —, soit ne se conforme pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du Canada — sauf s’il est interdit de territoire au titre des articles 34, 35 ou 37 — qui demande un visa de résident permanent, étudier le cas de cet étranger; il peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des considérations d’ordre humanitaire relatives à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant directement touché.

[12] In Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 [Kanthasamy], the Supreme Court of Canada confirmed that in s 25(1) applications, the decision-maker “…should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them” (Kanthasamy at para 38). While the Court notes that this does not mean that this factor must always outweigh other considerations or that an H&C claim will be successful, a decision under s 25(1) will be unreasonable if the “well identified and defined” interests of children affected are not sufficiently examined “with a great deal of attention” (at para 39).

[13] There are two main aspects of the Officer’s BIOC analysis that Applicants challenge: the failure to properly consider the risk of violence in Mexico; and, the failure to properly consider the education impediments on removal to Mexico.