Date: 20011128
Docket: IMM-1043-01
Neutral citation:2001 FCT 1310
Toronto, Ontario, Wednesday the 28th day of November, 2001
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
LUCRETIA ANTHONY
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the February 13, 2001, decision of an immigration officer refusing the Applicant's application for an exemption under s.114(2) of the Immigration Act. The Immigration Officer was not satisfied that sufficient humanitarian and compassionate grounds existed to warrant the Applicant's request for a waiver of the requirement of applying for permanent residence from outside of Canada.
[2] The Applicant came to Canada from St. Lucia as a visitor in 1994. She has a Canadian born child, who at the time of the application was two years of age. The H & C application was made on the basis that the Applicant and her daughter would suffer undue hardship if required to return to St. Lucia.
[3] The primary issue in this judicial review is whether the Immigration Officer properly considered the best interests of the Applicant's child in concluding that there were insufficient H & C grounds in this case.
[4] Since the Supreme Court of Canada decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, it is well-established that H & C decisions will not meet the standard of reasonableness if the decision-maker does not consider the best interests of children. Madame Justice L'Heureux-Dubé stated that children's best interests should be given substantial weight, and that immigration officers should be "alert, alive and sensitive to them". In Jack v. Canada (M.C.I.) (2000), 7 Imm. L.R. (3d) 35, an immigration officer's decision was found unreasonable because the reasons contained limited mention of the Canadian born child and the officer's conclusion was made without supporting analysis. In Legault v. Canada (M.C.I.), [2001] F.C.T. 315, Justice Nadon further stated that in light of the Supreme Court of Canada decision in Baker, immigration officers should compare the health care, education and quality of life available in Canada and the country of removal.
[5] The Applicant's submissions outline the following concerns regarding her and her daughter's quality of life in St. Lucia:
Ms. Anthony has advised us that she has no place to return to in St. Lucia and it would be difficult for her to re-establish her life in St. Lucia with her Canadian born daughter should she be required to return to St. Lucia and apply from there. There would also be great financial and emotional hardship on herself and her daughter.
The submissions also raise a concern regarding the standard of living available in St. Lucia in comparison to Canada, specifically the risk of illness to her child because of hygienic conditions, water and other facilities.
[6] The Immigration Officer's notes contain a brief and limited analysis of the best interests of the Applicant's Canadian born child:
I have also looked at the fact that Ms. Anthony has a Canadian born child. Although Ms. Anthony states that she would face difficulties re-establishing herself in St. Lucia with her child, it is to be noted that the child is only 2 years old and is at such a young age where she can adapt to a new lifestyle in St. Lucia. Furthermore, Ms. Anthony has indicated that she has been the child's sole caregiver given the fact that her daughter's father ended the relationship a few months after the birth of the child and has not been in touch with them from the time when they parted. Therefore, I am not satisfied that Ms. Anthony or her Canadian born child would face undue or disproportionate hardship if they were to leave Canada and seek an immigrant visa in the normal legislative manner.
[7] Thus, the above passage contains two conclusions, neither of which assess whether the conditions in St. Lucia were such that it would be in the best interests of the child to live there with her mother as opposed to remaining in Canada with her mother.
[8] In addition, despite the fact that the Applicant submitted that she had "no place to return to", the reasons indicate that the Immigration Officer noted that the Applicant stated that she "has nothing to return to". This error on the record effectively minimizes the Applicant's submissions that she had relinquished all ties to St. Lucia and allowed the Immigration Officer to assume that the threats to the child's best interests would be mitigated by the presence of the Applicant's mother and two siblings. This conclusion was made without a proper analysis of what the actual situation of the child would be in St. Lucia, and instead was based on assumptions of facts not found in the record.
[9] In my opinion, in concluding that the child was young enough to adapt to a "new lifestyle", the Immigration Officer erred in not considering the quality of life or potential hardships the child would face in St. Lucia. Consequently in my opinion, the Immigration Officer's decision was not attentive or sensitive to the interests of the Applicant's Canadian born child.
[10] Therefore, on the reasons provided for the refusal, I find that the Immigration Officer failed to undertake the type of analysis required, and thus the decision was made in reviewable error.
ORDER
1. Accordingly, I set aside the Immigration Officer's decision, and refer this matter back for redetermination by a different immigration officer.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
November 28, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1043-01
STYLE OF CAUSE: LUCRETIA ANTHONY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, NOVEMBER 27, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, NOVEMBER 28, 2001
APPEARANCES: Ishwar Sharma
For the Applicant
Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Roop N. Sharma
Barrister & Solicitor
942 Gerrard Street East
Toronto, Ontario
M4m 1Z2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011128
Docket: IMM-1043-01
Between:
LUCRETIA ANTHONY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER