The Federal Court reviewed the refusal of an H&C
application by a single mother who had lived in Canada for more than 12 years
and whose Canadian-born daughter had spent her entire life in Canada.
The Court overturned the refusal because the officer failed
to properly identify and assess the child’s best interests and instead focused
primarily on whether the child could adapt to life in the Philippines.
Key Principle
In an H&C application, the officer must be alert, alive
and sensitive” to the best interests of a child directly affected by the
decision.
The analysis must first identify what is actually in the
child’s best interests, assess how those interests would be affected by the
parent’s removal and then weigh the BIOC factor with the other H&C
considerations.
The officer cannot simply characterize a child’s relocation
as a “parental choice” or focus on whether the child could adapt to the
country of return.
Background
The applicant was a citizen of the Philippines who had lived
in Canada since 1999. She was a single mother with a Canadian-born daughter,
Renalyn, who was approximately 10 years old when the H&C application was
considered.
Renalyn had spent her entire life in Canada. Her extended
family, including her grandmother, aunts and cousins, lived in Canada, and she
attended school and had established friendships there. She had little
meaningful connection to the Philippines and limited ability to speak Tagalog.
The applicant also relied on her significant establishment
in Canada, including co-owning a convenience store, operating a cleaning
business and participating actively in her church.
The officer refused the H&C application, finding that
the applicant could support herself in the Philippines and that Renalyn could
adapt to the Filipino education system and maintain relationships with Canadian
family members through electronic communication and visits.
Court Findings
The Federal Court found that the officer’s BIOC analysis
was fundamentally deficient.
The evidence clearly established that Renalyn’s life and
connections were overwhelmingly in Canada. She had been born and raised in
Canada, attended school there, had close relationships with her Canadian family
and had no meaningful relationship with relatives in the Philippines.
Despite this evidence, the officer focused on whether
Renalyn could overcome the practical difficulties of moving to the Philippines.
The Court found that this was the wrong starting point.
The officer should first have determined what was in
Renalyn’s best interests and then assessed how those interests would be
affected by either remaining in Canada or accompanying her mother to the
Philippines.
The Court also rejected the characterization of the mother’s
decision about whether Renalyn would accompany her as simply a “parental
choice.” The Court noted that it was not realistically possible for a
responsible single mother to leave her young daughter in Canada and relocate
thousands of kilometres away.
The Court emphasized that, absent exceptional circumstances,
the best interests of a child will generally favour the non-removal of the
parent. The officer failed to begin the analysis from that proper framework
and did not adequately explain why this case was exceptional.
Because the officer failed to properly assess the child’s
interests, the BIOC factor could not be meaningfully weighed against the other
H&C considerations.
Outcome
The Federal Court allowed the application for judicial
review, returned the H&C application to a new officer for
reconsideration and awarded costs to the applicant.
Case Citation:
Bautista v. Canada (Citizenship and Immigration), 2014 FC 1008 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
