Osorio Diaz v. Canada (Citizenship and Immigration), 2015 FC 373 : H&C Refusal Upheld Despite Work, Community Ties and a Child in Canada

The Federal Court reviewed the refusal of a family’s application for permanent residence on humanitarian and compassionate grounds.

The applicants had lived in Canada for several years, worked, improved their English, volunteered, developed community ties, and argued that returning to Mexico would negatively affect their young son.

The Court upheld the refusal. It found that the officer had reasonably considered both the family’s establishment in Canada and the best interests of their child.

Key Principle

Positive establishment in Canada does not automatically result in approval of an H&C application.

Employment, community involvement, language improvement, volunteering, and friendships are all relevant factors, but an officer may still conclude that these circumstances do not justify an exemption.

When relying on the best interests of a child, applicants should also provide personalized evidence showing how the particular child would actually be affected, rather than relying mainly on general differences between Canada and the country of return.

Background

The applicants were a married couple and their minor son, all citizens of Mexico.

They arrived in Canada in 2008 and made refugee claims, which were refused. Their judicial review and Pre-Removal Risk Assessment were also unsuccessful.

A warrant for their arrest and removal was later issued after they failed to report to CBSA for a pre-removal interview.

In 2012, they submitted an H&C application relying primarily on their establishment in Canada, their son’s best interests, and conditions in Mexico.

The officer acknowledged their employment, English studies, skills development, clean civil record, volunteering, community involvement, and friendships, but concluded that their establishment was “expected and not exceptional.”

Court Findings

The Court found that the officer had not ignored the family’s establishment.

The officer specifically considered their employment, language studies, skills, community participation, volunteer activities, and social support.

The Court held that it was reasonably open to the officer to conclude that these positive factors did not, on the evidence presented, justify H&C relief.

The applicants also argued that the officer improperly discounted their establishment because some of it accumulated while they were pursuing immigration and refugee proceedings.

The Court disagreed. It found that an officer may recognize that the passage of time within the immigration process can contribute to establishment, provided the applicant’s positive efforts are still genuinely assessed.

The Court also noted that the applicants had remained in Canada despite an active removal process after failing to report to CBSA.

Regarding the child, the officer considered his young age, his adaptation to Canada, the opportunity to develop relationships with extended family in Mexico, and the likely effects of relocation.

The Court emphasized that it was not sufficient simply to show that living conditions, education, opportunities, or general safety might be better in Canada.

Applicants must connect those conditions to the particular child and provide evidence demonstrating a likely personal impact.

Outcome

The Federal Court dismissed the application for judicial review, finding that the officer’s assessment of both establishment and the best interests of the child was reasonable.

Case Citation:

Osorio Diaz v. Canada (Citizenship and Immigration), 2015 FC 373 CanLII