Date: 20041215
Docket: IMM-3381-04
Citation: 2004 FC 1744
Calgary, Alberta, Wednesday the 15th day of December 15, 2004.
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
VALVERINE OLIVIA CILBERT,
Applicant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
[1] The decision under review concerns a humanitarian and compassionate plea by a mother, the Applicant, not to be required to leave Canada because of undue hardship that would be suffered by her autistic Canadian born child, Liam.
[2] At the time of the humanitarian and compassionate application being made, Liam was living with his father. In the negative decision rendered, the Immigration Officer's focus was on the degree of contact between the Applicant and Liam. As is evident from the following passage of the decision rendered, the Immigration Officer implicitly found that Liam would not suffer any undue hardship by his mother's removal because the degree of contact between the two had not been established to her satisfaction:
I have considered the additional hardship of separation on Liam due to his Autistic Disorder. Evidence was advanced that, because of this condition, Liam is particularly vulnerable emotionally. The experts who provided their opinion have stated that children w/autism "need stability and continuity in their lives" and "benefit from predictability and structure". Specific to Liam, experts have stated "[he] has significant difficulty making adjustments to demands and expectations outside of himself, so transitions, and unfamiliar routines and people, are emotionally distressing for him" [statement made in a Psychological Assessment prepared by Laurie ROBINSON in 1999, when Liam was 4 years old, he will be 9 years old in AUG2004]. Also, "when Liam's schedule of visits w/his mother is changed or he does not get to see her for his regular visits, he becomes extremely distraught" [statement made in SEP2003 by Jennifer HAWTHORN, Support Worker at Liam's school]. In assigning weight to the best interest of this child when rendering my decision, I considered that little evidence was presented of a predictable, regular, structured and continuous routine of visits to his mother. If Liam visited every Wednesday and every two week-ends, as the custody agreement specifies, PA would be able to confirm this schedule w/certainty. It raises concerns when the mother of an autistic child is unable to recall the details of her son's scheduled visits [When he is dropped off/picked-up? How long he stays? What days he spends w/her? What night he sleeps over?] If routine and predictability is central to providing a stable environment where autistic children can thrive, there are important concerns in this particular case.
(Tribunal Record, p.12 )
[3] I completely agree with Counsel for the Applicant's argument as follows:
55. In minimizing the harm that Liam would suffer from being separated from his mother, Officer Bissonnette directly contradicts virtually all of the evidence that was before her regarding this issue. It was the unanimous conclusion of everyone who is familiar with Ms. Cilbert and Liam, including mental health professionals, that despite the actual custody arrangements the two are very close, and would suffer greatly if separated. Furthermore, there is no suggestion in any of the evidence of that the closeness of their bond, and the resultant harm upon separation, are at all linked to the specific amount of time the two spent together. The bond simply exists, and the harm would therefore be real, regardless of whether they see each other once a day, once a week, or once a month.
56. It is therefore submitted that in reaching the conclusion that the harm to Liam would be minimal, the officer committed a reviewable error by ignoring and contradicting evidence that was properly before her.
(Applicant's Memorandum of Argument)
[4] In the decision rendered, the Immigration Officer provided no critical analysis of the evidence of hardship that would be experienced by Liam if his mother was removed from Canada. Without such critical analysis, I am unable to find that the Immigration Officer was alert, alive, and sensitive to Liam's best interests, which I find is an essential requirement of reaching the humanitarian and compassionate decision under review. As a result, I find the decision was made in reviewable error.
ORDER
Accordingly, I set aside the Immigration Officer's decision and refer the matter back to a different immigration officer for redetermination.
"Douglas R. Campbell"
JUDGE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3381-04
STYLE OF CAUSE: Valverine Olivia Cilbert v. The
Minister of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: December 15, 2004
REASONS FOR ORDER AND ORDER : CAMPBELL J.
DATED: December 15, 2004
APPEARANCES:
Ms. Lorna K. Gladman FOR APPLICANT
Ms. Camille N. Audain FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Lorna K. Gladman
Calgary, Alberta FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT