Sanchez v. Canada (Citizenship and Immigration), 2015 FC 1295 : H&C Refusal Upheld Because Officer Reasonably Assessed the Children’s Best Interests and Family’s Hardship

Outcome: Judicial Review Dismissed

Ø  Introduction

The Federal Court reviewed the refusal of a Colombian mother’s application for permanent residence on humanitarian and compassionate grounds, together with her three American-born children.

The family argued that the officer had inadequately assessed the children’s best interests, their establishment in Canada, and the hardship of relocating to Colombia.

The Court upheld the refusal because the officer had reasonably considered the evidence, including the benefits of remaining in Canada and the children’s interests in staying with their mother.

Ø  Key Principle

The fact that Canada offers children more favourable living conditions does not, by itself, require approval of an H&C application.

An officer must be “alert, alive and sensitive” to the children’s best interests, but no single formula is mandatory for conducting that assessment.

The decision must be read as a whole to determine whether the officer meaningfully considered the children’s circumstances and weighed their interests alongside the other relevant factors.

Ø  Background

The principal applicant, Ms. Sierra Alarcon, was a Colombian citizen who left Colombia for the United States in 2004, alleging fear of the Revolutionary Armed Forces of Colombia.

Her three children were born in the United States and were American citizens.

She alleged that her former partner subjected her to physical and psychological abuse. She fled to Canada with the children in December 2011.

Their refugee claims were rejected in October 2013, and leave to seek judicial review was subsequently refused.

The family applied for H&C relief in 2014, relying on their establishment, the children’s circumstances, and the difficulties they would face in Colombia.

The officer refused the applications in January 2015, finding that the evidence did not justify an exemption under the framework applied at that time.

Ø  Court Findings

The Federal Court rejected the argument that the officer had to follow the specific three-step approach described in Williams when assessing the children’s best interests.

That approach provided useful guidance, but the controlling question was whether the officer had been sufficiently attentive and sensitive to the children’s interests.

Reading the decision as a whole, the Court found that the officer had considered the benefits to the children of remaining in Canada.

The Court also addressed the officer’s comments that the mother could choose whether the children accompanied her to Colombia or stayed with a guardian in the United States.

Although the wording could have been more prudent, the Court found no reviewable error. It understood the officer to have recognized that remaining with their mother served the children’s interests, while acknowledging the mother’s ultimate responsibility for deciding their arrangements.

The Court rejected the argument that less favourable conditions in Colombia necessarily made the refusal unreasonable.

It found that the applicants had not provided sufficient evidence showing how those conditions would directly and personally affect them.

The Court also considered the mother’s employment, improved English, the children’s school performance, and the family’s claim that the children were recovering from earlier trauma.

Under the hardship framework then applied, the evidence did not establish that their Canadian establishment would make departure more difficult than the usual consequences of leaving Canada.

Ø  Outcome

The Federal Court dismissed the application for judicial review, leaving the H&C refusal in place. No serious question of general importance was certified.

Historical Note: This decision preceded the Supreme Court of Canada’s decision in Kanthasamy v. Canada, 2015 SCC 61. Its reliance on “unusual and undeserved or disproportionate hardship” should therefore be understood within the H&C framework applied at that time.

Case Citation:

Sanchez v. Canada (Citizenship and Immigration), 2015 FC 1295 CanLII