The Aug. 19, 2024, ruling by Justice Alan Diner is among eight decisions since July 1, 2024, that Law360 Canada has identified in which Federal Court judges have sent similar requests for relief back to be redetermined by a different immigration officer because the immigration officer at first instance failed to properly consider the individual best interests of children living in Canada with foreign nationals, i.e. failed to do the “BIOC” analysis “with a great deal of attention” in light of all the evidence, as directed by Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61.
The reasons the children’s parents (or siblings and grandparents) in these cases faced removal from Canada and sought permanent residence based on humanitarian and compassionate grounds included the applicants having been denied refugee status or having made failed immigration applications.
The successful judicial reviews over the past two months, based on flawed BIOC analyses, included applicants from Nigeria, Montenegro, Portugal, Ukraine and Russia.
Whether or not the apparently frequent incidence of immigration officers botching their analyses of children’s best interests can be described as a “trend,” recent Federal Court decisions (including two this week) show that immigration officers continue to make serious mistakes (often in the same way) when they analyze children’s best interests for the purposes of H&C applications or other kinds of relief.
This has been happening despite express guidance from the Supreme Court of Canada and repeated clear guidance (and “warning”) from the Federal Court setting out how to properly conduct a “BIOC” analysis.
Notably, in recent years Federal Court judges have repeatedly ruled in judicial reviews that immigration officers’ decisions that denied applications for relief, including H&C applications for permanent residence, were unreasonable because the officer didn’t properly analyze the children’s best interests.
Most recently, on Aug. 21, 2024, Federal Court Justice Shirzad Ahmed held that an immigration officer (whose efforts to deal with a complex set of impugned applications were commended by the judge) failed to adequately analyze the needs of a girl facing removal with her family to Montenegro, The judge described the officer’s BIOC analysis as “an appraisal of what an 8-year-old child could adapt to and the hardship she could endure. It is the antithesis of the required analysis refusing three humanitarian and compassionate applications”: Dedvukaj v. Canada (Citizenship and Immigration), 2024 FC 1300.
And ruling from the bench, following a hearing via video conference on Aug. 19, 2024, Federal Court Justice Diner granted the judicial review application in a different case involving two parents and their 15-year-old daughter (all citizens of Nigeria) on the basis that the immigration officer engaged in flawed BIOC analysis and thus unreasonably refused their application for permanent residence that was based on H&C grounds: Francis et al. v. Canada (Citizenship and Immigration), 2024 FC 1287.
Ariel Hollander, Lewis & Associates LLP
With respect to the Francis family, “the court demands officers to actually be alive and sensitive to the fact that we have minor children, and in some cases Canadian children, that are being deported back to Nigeria,” he said.
Hollander said “it’s hard to say,” based on his own cases, whether there is an emerging “trend” of unreasonable decisions by immigration officers due to their failure to properly analyze the best interests of children.
However, the Francis decision is the second positive judicial review ruling — based on flawed BIOC analysis — that clients of his have received in the past month, he said. “I’m going to the court again next week, and I go to the court twice, I think, in September on similar cases, and we’ll see what’s going to happen.”
Hollander said that in his earlier judicial review case this month, in which the decision also turned on the reasonableness of the BIOC analysis, the officer ignored that the affected minor children had never been to Nigeria. “Their entire education was in Canada, and [the officer] failed to even assess that in their decision,” he said: Yusuf v. Canada (Citizenship and Immigration), 2024 FC 1180.
In its decisions, the Federal Court has reminded immigration officers that “they have humans in front of them, they have little humans, and they have to consider their lives.”
But at the same time submissions that help immigration officers understand the affected children and their needs “are extremely important,” he emphasized.
“Every application that we do also has an affidavit that tells the story of the [applicant] person, their children, their dreams,” he said of his law firm’s approach. “And it’s extremely important, because if we are asking … the officer to be alive and sensitive [to BIOC], if we don’t provide this information — if the officer cannot see in front of them a human being, and they only see the name and the age — the officer cannot be sensitive.”
Hollander said he hopes immigration officers will more consistently heed the courts’ directions on how to analyze BIOC.
Answers to questions posed by Law360 Canada to the federal Department of Immigration, Refugees and Citizenship Canada were not available by press time.
The oral decision of Justice Diner, who was a senior certified immigration law specialist before he joined the court in 2014, turned on the best interests of the Francis family’s children, including two Canadians, born here in 2019 and 2020, after their Nigerian parents and older sister entered Canada from the United States, via an irregular border crossing, in 2018.
The parents had been living with their daughter in the U.S. since 2017. The trio’s refugee claim in Canada was rejected, as was their leave request to the Federal Court. They applied for permanent residence on humanitarian and compassionate grounds.
(The Francis ruling was handed down in the wake of another Federal Court decision Aug. 9 that sent a permanent residence application based on H&C grounds back for redetermination because the immigration officer wrongly considered whether removing two Canadian-born children, ages 6 and 3, from Canada to Albania with their parents would be a hardship for them rather than whether it was the best available option for the children’s well-being and development: Paja v. Canada (Citizenship and Immigration), 2024 FC 1244.)
In reviewing the negative decision on the Francis family’s application for permanent residence, Justice Diner said he didn’t have to rule on the applicants’ arguments that the immigration officer erred in assessing their establishment and ties in Canada, their contributions to the country (the parents were essential workers during the COVID-19 pandemic) and the personalized hardship the family would face if they are removed to Nigeria.
This was because the immigration officer’s analysis of the other basis for the family’s H&C claim — BIOC — “was effectively generic without truly assessing the best interests of the three children — with its central place in this claim,” Justice Diner held. “This criterion alone fatally flaws this decision.”
He explained that “given the central importance of the BIOC component to any H&C analysis, as outlined by the Supreme Court of Canada, the failure of this officer to have properly considered BIOC went beyond a minor misstep, rendering the decision unreasonable.”
In assessing the BIOC, the officer was required to consider the children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them, Justice Diner said, quoting a leading case, Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
“In this case, however, the officer unreasonably substituted the BIOC analysis with a hardship one, and consequently failed to assess the best interests of the children (emphasis in the original),” he reasoned.
The immigration officer’s BIOC analysis stated that “though I acknowledge general conditions in Nigeria may impact the children’s interests to some extent, I find their best interests are served by remaining with their primary caregivers, their parents, who would reasonably be able to mitigate the difficulty of relocating to Nigeria and continue to support them.”
“This is not a reasonable BIOC assessment for the Nigerian-born child, and the two very young Canadian-born children of the adult applicants” (ages 3 and 4 at the time of the decision that was made just over a year ago), Justice Diner held.
The judge highlighted the immigration officer’s statements that:
- “I acknowledge that the children will face some adjustment if they go to Nigeria, however, children are generally adaptable and there is little evidence provided to show that the children would be negatively impacted if they go to Nigeria;” and
- “While I accept general conditions in Nigeria tend to be less favourable than conditions in Canada, there is little indication that there are adverse conditions in Nigeria which would have a direct impact on the children.”
“First, the observation that because children are generally adaptable, these three young persons will be able to adjust in their relocation to Nigeria, is problematic,” Justice Diner said. “The resiliency and adaptability of children is not a substitute for their best interests.”
“Second, the officer failed to conduct a personalized evaluation assessing key factors, such as the children’s ages or their lack of connection to Nigeria in the case of the two younger children, … or where the older child (the minor applicant) spent her formative academic years as a tween and teenager and seemingly jumped to the conclusion that their best interest is best served by accompanying their parents to a country where they have little to no connection,” he wrote. “This renders the BIOC assessment unreasonable.”
Justice Diner said the immigration officer “unduly focused their BIOC analysis on hardship without assessing the H&C factors in the broader sense, including what the applicants submitted regarding why BIOC favoured them remaining in Canada, such that the officer was not alert, alive and sensitive to the evidence submitted in the H&C application.”
Supreme Court jurisprudence requires that in conducting BIOC analyses, immigration officers must be alert, alive and sensitive to the particular child’s needs and that the best interests of the children are a “significant” component of the H&C analysis: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61.
In Reducto v. Canada (Citizenship and Immigration), 2020 FC 511, the Federal Court said it is the “antithesis” of the compassion required under s. 25(1) of the Immigration and Refugee Protection Act in deciding permanent residence applications to focus on whether the directly affected children are resilient and can adapt to life’s difficulties even if they move abroad.
The national trial court’s case law also indicates repeatedly that the BIOC analysis should not be conflated with whether moving from Canada would pose a “hardship” for the children. “A lack of hardship cannot serve as a valid substitute for a BIOC analysis”: Sheorattan v. Canada (Citizenship and Immigration), 2022 FC 1366, citing Singh v. Canada (Citizenship and Immigration), 2019 FC 1633.
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