The Federal Court reviewed the refusal of an H&C
application by a Peruvian couple and their 16-year-old grandson, who was in
their custody.
The Court upheld the refusal because the officer reasonably
considered the applicants’ establishment in Canada, the best interests of the
child and the alleged age discrimination in Peru, and reasonably concluded that
the overall circumstances did not justify H&C relief.
Key Principle
The best interests of a child must be given substantial
consideration, but they are not automatically determinative in an H&C
application.
The officer must consider the child’s interests together
with all other relevant H&C factors and determine whether, taken as a
whole, they justify an exemption under section 25 of the IRPA.
On judicial review, the Court will not reweigh the H&C
factors where the officer’s assessment falls within the range of reasonable
outcomes.
Background
The applicants were a husband and wife from Peru and their
16-year-old grandson, who was in their custody.
They entered Canada in 2010 after previously residing in the
United States. Their refugee claim was refused, and they subsequently applied
for permanent residence from within Canada on H&C grounds.
They relied on their establishment in Canada,
including employment, volunteer activities, church involvement and friendships.
They also argued that their age would make it difficult to obtain employment in
Peru.
The applicants further relied on the best interests of their
grandson, who had lived in the United States from a young age and had become
established in the Canadian education system.
The officer accepted that the applicants had positive
employment, financial and community connections in Canada but found that their
level of establishment was generally consistent with what would be expected
after a similar period of residence.
Court Findings
The Federal Court found that the officer reasonably
considered the best interests of the grandson.
The officer recognized that returning to Peru could create
educational and adjustment difficulties for him and concluded that remaining in
Canada would result in less disruption to his education and daily life.
However, the officer was not required to treat the child’s best interests as
automatically outweighing every other H&C consideration.
The Court emphasized that the proper question was whether
the child’s best interests, when weighed with the other relevant factors,
justified an exemption under section 25.
The Court also upheld the officer’s assessment of the
applicants’ establishment. The officer was entitled to consider whether their
employment, church participation, friendships and other activities represented
an unusually high degree of establishment or were circumstances ordinarily
expected of persons who had lived in Canada for a similar period.
The officer also considered the applicants’ evidence
concerning age discrimination in Peru but found insufficient documentary
evidence to establish that this would create unusual and undeserved or
disproportionate hardship.
The Court therefore concluded that the applicants were
essentially asking the Court to reweigh the evidence. That was not the Court’s
role on judicial review.
Outcome
The Federal Court dismissed the application for judicial
review and upheld the refusal of the H&C application.
Case Citation:
Villanueva v. Canada (Citizenship and Immigration), 2014 FC 585 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
