Federal Court Decisions

Date: 20020322

Docket: IMM-6117-00

Neutral citation: 2002 FCT 317

Ottawa, Ontario, this 22nd day of March, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                        JOSEPHA MARIA DOS REIS

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985, c. I-2 of the decision of an immigration officer (the "officer") dated November 6, 2000, wherein the officer denied the applicant's request for an exemption from the landing requirement on the basis of humanitarian and compassionate considerations under section 114(2) of the Immigration Act, supra.

[2]                 The applicant seeks an order to set aside the decision of the immigration officer, and to refer the matter back for redetermination by a different immigration officer in accordance with the principles of administrative fairness and in accordance with such direction as this Honourable Court considers to be appropriate.

Background

[3]                 The applicant arrived in Canada on November 5, 1994. She was granted visitor status that remained valid until 1995. The applicant was not granted any further extensions of her visitor status but continued to remain in Canada.

[4]                 In February 1996, the applicant met Jose Luis Rocha. The applicant and Mr. Rocha began dating. In August, 1997 they moved in together. According to the applicant, the couple began experiencing problems in December, 1997 as Mr. Rocha was abusive to her. The applicant left Mr. Rocha and moved out in March, 1998. In August, 1998, the applicant gave birth (in Canada) to Mr. Rocha's child. The daughter of the applicant is a Canadian citizen.

[5]                 The applicant lived with her brother, his wife and their three children before and after her time living with Mr. Rocha. The applicant's brother is disabled and is unable to work. The applicant claims to help her brother's family with household work and contributes to paying the bills.

[6]                 The applicant applied for an exemption from the landing requirement on the basis of humanitarian and compassionate considerations under section 114(2) of the Immigration Act, supra.

[7]                 As communicated to the applicant in a letter dated November 6, 2000, the officer decided that an exemption from the landing requirement would not be granted.

Applicant's Submission

[8]                 The applicant submits that the application was not dealt with in accordance with the principles of administrative or procedural fairness. The applicant submits that the applicant did not have a meaningful opportunity to present the various types of evidence relevant to their case and have it fully and fairly considered.

[9]                 The applicant submits that the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, found that the officer considering her humanitarian and compassionate grounds application was not required to interview Ms. Baker in that case because all "the information relevant to making this decision" was contained in the materials provided by counsel.    However, the applicant submits that failure to interview the applicant, in this case, resulted in the decision being made without all of the relevant information and resulted in a denial of fairness to the applicant.

[10]            The applicant submits that the officer made an adverse finding of credibility and given the significance of the decision being made, an interview ought to have been held to give the applicant an opportunity to satisfy the officer's credibility concerns.

[11]            The applicant submits that the officer was informed that because of threats by Mr. Rocha, the applicant had been advised by her family lawyer not to pursue her application for custody and child support until her immigration situation was "stabilized". The applicant submits that the officer was further advised that since the immigration application had been submitted, the family lawyer would be proceeding with the custody and support application. The applicant submits this in fact occurred but the officer, despite being notified in the lawyer's letter of July 7, 2000, proceeded to make this decision without inquiring as to whether any result had been achieved.

[12]            The applicant submits that in situations involving marriage breakdown, officers are expected to consider whether there is a Canadian child who would suffer if the applicant had to leave Canada. The applicant submits that the officer failed to pay particular attention to the interests and situation of the applicant's child.

[13]            The applicant submits that the evidence before the officer demonstrated that the applicant was entirely self-supporting and that the applicant's admission to Canada would not have a negative impact on the health, safety and good order of Canadian society.

[14]            The applicant submits that the decision of the officer to deny the applicant's request for landing on humanitarian and compassionate grounds was not reasonable.

Respondent's Submissions

[15]            The respondent submits that the appropriate standard of review in assessing humanitarian and compassionate decisions is the reasonableness simpliciter standard.

[16]            The respondent submits that information that was not before the immigration officer and which post-dates the decision is not properly before this Court.

[17]            The respondent submits that an interview is not required for humanitarian and compassionate applications. The respondent submits that the officer did not provide sufficient evidence to support her claims, and that it is not a valid argument to suggest that the decision is wrong because the applicant could have put in more or better information.

[18]            The respondent submits that the decision maker should consider the best interests of children as an important factor but not as a primary factor. The respondent submits that the officer was alert, alive and sensitive to the interests of the child. Further, the respondent submits that the officer gave more weight to this factor than is required in Baker, supra as the officer wrote "I appreciate that the best interest of the child is a primary concern."

[19]            The respondent submits that there is insufficient evidence that the child's best interests would not be met if she were to leave Canada with her mother.

[20]            The respondent submits that the applicant's materials did not provide evidence that the applicant expected to be sponsored by Mr. Rocha and that there was no proof in respect of the alleged abuse.

[21]            The respondent submits that the officer did not commit a reviewable error and submits that the decision was reasonable. The respondent submits that the judicial review criteria for assessing the exercise of a statutory discretion is narrow and does not give the Court a right to review the decision on its merits.

Relevant Statutory Provisions

[22]            Subsection 9(1) of the Immigration Act, supra states:

[23]            Subsection 114(2) of the Immigration Act, supra states:

Issue

[24]            Did the officer make a reviewable error?

Analysis and Decision

[25]            The standard of review to be applied to the officer's decision is reasonableness simpliciter.

[26]            The remarks of the officer include the following:

In August 1998, their daughter Ashley Marie was born. Mr. Rocha denies paternity. Ashley is a Canadian born child. I have given this serious weight and consideration. I have also considered the existence of the Canadian born child in accordance with the Baker decision. I appreciate that the best interest of the child is a primary concern. Ashley is a Canadian citizen which she will retain regardless of her place of residence. Her rights as a Canadian are not being denied. The final decision to take Ashley back to Portugal rests with her mother. It is noted that Ashley has lived with her uncle and his family since her birth. By their own statement she has bonded with them and her cousins. There is insufficient evidence that Ashley's best interests will not be met if she were to leave Canada with her mother.

With respect to the issue of child support, I appreciate that the father has legal obligations to support his daughter. The statement of it being unlikely that she would not be in a position to enforce a support order against Mr. Rocha if removed from Canada is well taken. However, there is insufficient evidence to support that her presence in Canada would facilitate her position. It is noted that the subject has had two years to resolve this issue.

[27]            In considering the issue of child support and legal obligations of the father, the officer noted that it would be unlikely for the applicant to be able to enforce a support order if removed from Canada. Yet the officer determined that this was not sufficient to grant an exemption of the landing requirement. Further, the officer concluded that there was insufficient evidence to support the proposition that the applicant would be able to receive and enforce support payments in Canada. The officer could have explored this topic further if the officer had granted the applicant an interview. It would be unreasonable to believe that the child would not receive support payments from the father in any application to the Canadian courts. The officer should have explored this matter further and in my opinion, the failure to do so constitutes a reviewable error.

[28]            In Baker v. Canada, Madam Justice L'Heureux-Dubé at paragraphs 67 and 68 states:

Determining whether the approach taken by the immigration officer was within the boundaries set out by the words of the statute and the values of administrative law requires a contextual approach, as is taken to statutory interpretation generally . . . In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself . . .

The objectives of the Act include, in s. 3(c):

to facilitate the reunion in Canada of Canadian citizens and permanent residents with their close relatives from abroad;

Although this provision speaks of Parliament's objective of reuniting citizens and permanent residents with their close relatives from abroad, it is consistent, in my opinion, with a large and liberal interpretation of the values underlying this legislation and its purposes to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada. The obligation to take seriously and place important weight on keeping children in contact with both parents, if possible, and maintaining connections between close family members is suggested by the objective articulated in s. 3(c).

The officer had an obligation to place important weight on keeping the applicant's child in contact with both parents.

[29]            When considering the rights of the Canadian born child, the child would be better served not to be separated from her mother. If the applicant was required to leave Canada, and if the child went with the mother to Portugal, then the mother may not be able to receive and enforce support payments. Further, the child would be geographically separated from and may not be able to visit with her father. If the applicant was allowed to remain in Canada, then the applicant would be in a better position to collect support payments (which would presumably benefit the child), and the child would be more likely to be visited by her father. As it now stands, a full consideration of the Canadian born child suggests that it is in the best interests of the child to allow the applicant an exemption from the landing requirement on humanitarian and compassionate grounds.

[30]            At paragraph 75 of Baker, supra, Madam Justice L'Heureux-Dubé further elaborated on the importance of considering the interests of children as follows:

The principles discussed above indicate 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. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.

[31]            In my view, the interests of the applicant's Canadian born child was minimized in the decision of the officer, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines and as a result, the decision is unreasonable.

[32]            For the above reasons, the application for judicial review is allowed and the matter is referred back to a different officer for redetermination.

[33]            The applicant submitted three serious questions of general importance for my consideration for certification if the application for judicial review was not granted. Since the application for judicial review is being granted, it is not necessary that I consider these questions.

ORDER

[34]            IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different officer for redetermination.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

March 22, 2002