Farley v. Canada (Citizenship and Immigration), 2016 FC 1232 : H&C Refusal Upheld Because Officer Properly Considered the Children’s Best Interests

Ø  Introduction

The Federal Court reviewed the refusal of an H&C application by a Guyanese mother who had been removed from Canada while her two children remained in Canada with their maternal grandparents.

The Court upheld the refusal, finding that the officer properly considered the best interests of both children and was not required to use formulaic language when conducting the assessment.

Ø  Key Principle

An officer conducting a BIOC assessment is not required to use specific or formulaic wording.

The important question is whether the officer identified the circumstances relevant to each child and meaningfully assessed their best interests.

The applicant also bears the burden of providing sufficient evidence to support the H&C request.

Ø  Background

The applicant, a citizen of Guyana, entered Canada in 1999 and had two children while in Canada. Her son was born in 1999 and her daughter in 2003.

Following her removal from Canada in 2013, both children remained in Canada with their maternal grandparents, with the applicant’s written consent.

The applicant made her third H&C application, relying on the best interests of her children, family relationships, and country conditions in Guyana.

The officer acknowledged the difficulties caused by the children’s separation from their mother but noted that they were lovingly supported by their grandparents in Canada. The officer was not satisfied that the children’s best interests would be negatively affected by the outcome of the H&C application.

Ø  Court Findings

The Federal Court found no reviewable error in the officer’s BIOC assessment.

The Court held that the officer was not required to use formulaic words or follow a particular verbal formula. It was sufficient that the officer identified factors specific to each child and assessed those factors.

The Court accepted that the officer considered the children’s circumstances and was entitled to conclude that their best interests did not depend upon their mother’s reunification with them in Canada.

The Court also upheld the officer’s assessment of the applicant’s own circumstances. The officer had identified a lack of evidence concerning the ability and willingness of the applicant’s adult children in Guyana to provide support. The burden was on the applicant to provide the evidence necessary to support her request for H&C relief.

Although the Court acknowledged that the applicant’s circumstances were sympathetic, sympathy alone did not establish a reviewable error.

Ø  Outcome

The Federal Court dismissed the application for judicial review and upheld the H&C refusal.

Case Citation:

Farley v. Canada (Citizenship and Immigration), 2016 FC 1232 CanLII