On Aug. 9, 2024, Federal Court Justice Michael Battista granted Armando Paja’s and Armela Zenelaj’s application for judicial review: Paja v. Canada (Citizenship and Immigration) 2024 FC 1244.
The judge sent their case to be redetermined by a different immigration officer because the “officer’s findings were unreasonable given the factual and legal constraints in the applicants’ case.”
Federal Court Justice Michael Battista
The parents argued it is in the best interests of their children, who don’t speak Albanian and are not familiar with Albanian culture, that the applicants receive Canadian permanent residence. Evidence before the immigration officer indicated that the older child has strong relationships here and is doing well in school.
Justice Battista held that the immigration officer also applied incorrectly the established test for determining a child’s best interests.
“Jurisprudence establishes that an assessment of the best interests of a child requires the selection of the best option available for the well-being and development of a child, not merely the avoidance of difficulties or hardship,” Justice Battista wrote, citing Osun v. Canada (Citizenship and Immigration), 2020 FC 295, and other jurisprudence.
The immigration officer’s findings “make it clear that the officer unreasonably applied a hardship analysis rather than a best interests of the child analysis,” the judge found.
Justice Battista pointed to the officer’s statements that:
… There is also little indication that the level of instruction in Albania would impair them in the future.
… the submissions are insufficient for me to find that their well-being would be impacted by this.
… I find insufficient evidence before me that the well-being of these children would be compromised should they leave for Albania.
… I am unable to conclude that their departure from Canada would directly compromise the best interest of either of their children.
The officer also made a clear finding that it was more likely than not that it was in the children’s best interests to remain in Canada, but then failed to give this finding “substantial weight,” Justice Battista said.
He repeated the top court’s admonition in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, that “for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them.”
On this score, the officer said: “While I consider that it would probably be in their best interest to not to have to go through with a move to Albania for immigration purposes for their parents, the weight I can give this is limited considering that little has been demonstrated regarding what would await them there.”
Counsel for the applicant parents, Howard C. Gilbert of Toronto, told Law360 Canada that the decision illustrates how the principle of children’s best interests should be interpreted and applied in immigration and refugee cases.
Howard C. Gilbert
“I think that’s a very forward-looking perspective, and it’s a broad perspective because quite often Canada is the better option for a child in their future development than going back to their country of origin, or in this case, their parents’ country,” Gilbert told Law360 Canada.
Many H&C applications are from failed refugee claimants coming from developing countries with deplorable human rights conditions, he remarked. “So when you’re … future-looking, Canada will often be a better option for the child’s well-being and development. So this broadens, and perhaps crystallizes, the importance of the best interest of a child analysis in an H&C application.”
Counsel for the Attorney General of Canada, Prathima Prashad, could not be reached for comment immediately.
The two Canadian children were born here after their parents arrived from Albania in 2016.
(Once one of Europe’s poorest countries, Albania is now considered an upper “middle-income” country, with a population of 2.8 million and per capita annual GDP of $6,743, according to the World Bank Group.)
The parents’ asylum claims in Canada were rejected. The father’s claim was excluded based on article 1E of the Refugee Convention (he was found to be neither a Convention refugee nor a person in need of protection) while the mother’s claim was found to be “manifestly unfounded,” the Federal Court’s decision states.
The father’s appeal to the Refugee Appeal Division was rejected, as were the parents’ applications for leave to apply for judicial review in Federal Court.
The parents’ subsequent H&C application and pre-removal risk assessment were refused. The judicial review application before Justice Battista challenged as unreasonable the denial of a second H&C application the pair submitted.
In addition to the best interests of their children, the parents’ second failed H&C application relied on adverse country conditions in Albania, the family’s establishment in Canada during the intervening eight years since the parents arrived, and the mental health challenges of the mother and anticipated lack of support for her in Albania.
Justice Battista described the immigration officer’s 12-page decision with “substantive reasons” as “commendable for its thoroughness.”
However, its evidentiary and legal “missteps” rendered the decision unreasonable, he held.
These missteps included the officer’s treatment of the evidence documenting the mother’s mental health condition, Justice Battista said.
In 2016, the mother was diagnosed with a major depressive disorder of moderate severity and post-traumatic stress disorder (PTSD) with dissociative symptoms. In 2021, a psychotherapist confirmed that her symptoms were consistent with complex PTSD, generalized anxiety and mild to moderate depression.
The judge said the immigration officer appeared to find the 2016 psychological report to be dated, yet the officer was unclear about whether the officer accepted the report and the diagnosis or whether the officer believed the mother’s mental health condition had disappeared or had diminished.
Given the centrality of the report to the couple’s application, “the officer was unreasonably unclear about its role in the ultimate decision,” Justice Battista held.
The immigration officer also said “little weight” was assigned to the 2021 report, given that it appeared to be based on “self-reporting,” and also failed to describe the potential mental health effects of the mother’s return to Albania.
Citing case law, the judge held this justification for assigning little weight to the report was unreasonable on both counts.
Justice Battista said the purpose of the 2021 report was to determine the nature of, and the extent to which, the applicant suffered from psychological or emotional difficulties and to make recommendations for treatment, “not to speculate on future harm.”
“The discounting of evidence based on what it does not say rather than what the evidence says, as the officer did in this case, is unreasonable,” the judge held.
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