Date: 20050110
Docket: IMM-9163-03
Citation: 2005 FC 15
BETWEEN:
CARMEL RICHARDS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
OVERVIEW
[1] Carmel Richards, a citizen of St. Vincent and the Grenadines, has been in Canada for approximately 10 years having arrived on a six-month visitor's visa in June, 2004. She has a Canadian-born daughter who is 6 years old. Ms. Richards' application for humanitarian and compassionate consideration, allowing her to apply for landed status from within Canada, was denied.
[2] At issue in this application for judicial review is the Immigration Officer's decision in respect of the best interests of the child. The two sentence reasons at issue are:
Regarding the best interest of her child, insufficient evidence has been provided to state child could not adjust to the social and educational system in St. Vincent at hear early age. Insufficient evidence has been provided to state St. Vincent does not have similar basic benefits and opportunities for a child's upbringing, compared to a Canadian environment to cause undeserved hardship.
[3] The question for determination is whether the Immigration Officer was "alive, alert and sensitive" to the interests of her child as required by Baker v. Canada (Minister of Citizenship and Immigration),[1999] 2 S.C.R. 817.
BACKGROUND
[4] Since Ms. Richards arrived in Canada she has supported herself, and subsequently her child, without the need of social assistance. She has no relatives in St. Vincent, all of whom are now in Canada.
[5] In her Humanitarian and Compassionate application a great deal of the focus was on Ms. Richards, her circumstances, her attachment to and involvement in Canadian society, her lack of attachment, knowledge of and employability in St. Vincent.
[6] However despite this emphasis, there was evidence of her child's dependence on Ms. Richards for financial support, the absence of any social or family support for the child in St. Vincent, the child's lack of familiarity with St. Vincent, the difficulty for her mother to secure employment and provide financial stability to the child.
ANALYSIS
[7] The Respondent argued that the Immigration Officer did consider all the evidence including evidence about relatives in Canada, the existence of Ms. Richard's child, Ms. Richard's spare time and social activities, Ms. Richard's involvement in her church and her employment circumstances. All this may be true but none of this directly focuses on the best interests of the child.
[8] In reliance on Owusu v. Canada (Minister of Citizenship and Immigration, [2004] F.C.A. No. 139, the Respondent says that in the H & C application process, the Applicant only made passing reference to her child and fell far short of making a strong case for her child's best interests.
[9] While it is true that a stronger case might have been made out, the Respondent had a statutory obligation to take account of the best interests of the child. The Court of Appeal in Owusu held that if there is no evidence of the best interests of the child, an immigration officer is under no obligation to ferret out such evidence. In this case, there was evidence to support a consideration of the best interests of the child.
[10] As found in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687, to determine if the officer's decision on the best interests of the child is reasonable, the Court must subject that decision to a "somewhat probing examination".
[11] The Immigration Officer simply held that there was "insufficient evidence" without in any way indicating why the evidence presented was not sufficient. It is not possible to say if the Officer's conclusion is reasonable if the Court cannot understand the real basis for that conclusion. Where there is evidence, it is not adequate to say that it is insufficient and leave it at that.
[12] Further, the Immigration Officer only referred to social and education adjustment and basic benefits and opportunities for the child's upbringing. No mention is made of, and the Court will not assume that consideration was given to, such factors as family relationships, emotional support or financial stability and capability as it affected the child.
[13] Given the paucity of reasons for rejection of the submissions on the child's best interests, the Court cannot conclude that the decision is reasonable. For these reasons the application for judicial review is granted. The matter will be referred back to the Respondent for a de novo determination of the H & C application.
[14] There is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9163-03
STYLE OF CAUSE: CARMEL RICHARDS v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 20, 2004
REASONS FOR ORDER: PHELAN J.
DATED: January 10, 2005
APPEARANCES:
Mr. Mark Rosenblat FOR THE APPLICANT
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Mark Rosenblat
Toronto, Ontario FOR THE APPLICANT
Mr. Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT