Date: 20020410
Docket: IMM-2226-01
Neutral Citation: 2002 FCT 413
Toronto, Ontario, Wednesday, the 10th day of April, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
MARIA DEL CARMEN MIER VASQUEZ
MARIA GABRIEL ARIAS MIER
JOSUE JAVIER ARIAS MIER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicants are a mother and two children, 13 and 10 years of age, who are citizens of Ecuador. They came to Canada in June 1992 and have lived continuously in Canada for over nine years. The children in particular are well-established in Canada, having attended school here and formed meaningful ties. They have no memory of Ecuador and consider Canada their home.
[2] When the Applicants first arrived in Canada, they made an unsuccessful refugee claim. Since then, the principal Applicant divorced her first husband, the children's natural father, and has remarried. Her present husband is a Canadian citizen and is sponsoring the Applicants' permanent residence application. The principal Applicant made an H & C application seeking permission to apply for landing within Canada.
[3] On, April 17, 2001, the H & C application was refused. The Applicants have brought this judicial review challenging that decision.
[4] The predominant feature of the Immigration Officer's decision is the lack of bona fides of the principal Applicant's marriage. Counsel on behalf of the Applicants confirmed during the hearing of the present case that this finding is not contested. Counsel submits, however, that regardless of this fact, the Immigration Officer failed to properly consider the best interests of the minor Applicants according to the principles outlined by the Supreme Court of Canada in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817.
[5] In respect to the H & C application, the Applicants were unrepresented. The only evidence submitted regarding the best interests of the minor Applicants was the principal Applicant's own statement and a letter from the principal and two teachers from the minor Applicants' school.
[6] The principal Applicant's statement included in the H & C application of February 2000, reads as follows:
My children and I live in Canada over the past 9 years. My children are attending school and are doing very well. An eventual departure from Canada will cause hardship not only for my children who will be deprived to continue with their education but also for my husband and I because of the separation (Applicant's Application Record, p.24).
[7] The letter from the principal and teacher of St. Conrad Catholic School dated March 8, 2001, reads as follows:
To Whom It May Concern:
It has come to our attention that Gabriella and Josue Arias have applied for Landed Immigrant Status. We are writing to request that they be given consideration regarding the potential irreparable psychological and developmental harm that would most likely occur.
These two young people have been in Canada for eight years and know it as their home. They are well assimilated to their surroundings and they have contributed in many ways to their community. Both students are academically strong and they would suffer if forced to leave school. They are all well settled and have many friends. Both students have good grades and demonstrate an eagerness to learn. As a school, we can only see harm in the long delay associated with their hearing.
We respectfully request that consideration be given to these children regarding their psychological, social and academic future. They deserve a good education and the upheaval that will occur from moving them from their school, friends and community to a place they barely remember would be irreparable harm. This will only hinder their growth psychologically, socially and academically as young Canadians.
Thank you for your consideration in this matter.
Sincerely,
Marguerite Thomson S. DiMarco S. Cannatelli
Principal Teacher Teacher
(Applicant's Application Record, p.15)
[8] Following a careful and full analysis of the lack of bona fides of the principal Applicant's marriage, in her reasons, the Immigration Officer stated only the following with respect to the best interests of the children:
In addition, I have considered the applicant's two children, Gabriela and Josue. It is understandable that they are established in Canada and that they do not want to return to their home country. I have considered that they were very young when they left Ecuador. However, in my opinion, they are still at an age where they can adjust to a new life in Ecuador. Although it may be difficult for them to adapt to a new life in Ecuador, I am not satisfied that they would suffer undue or disproportionate hardship if they were removed from Canada as I believe that their best interest is being in a safe environment accompanied by their parents, and there is no indication that this will be jeopardized by going back to Ecuador. In addition, it is to be noted that choosing to remain in Canada after their refugee claim was denied and after their removal order became effective in 1992, was a decision that Ms. Mier and her ex-husband made (Applicant's Application Record, p.9).
[9] The Applicants submit that the Immigration Officer failed to address the potential harm a forced relocation from Canada to Ecuador would cause to the children's education, development or psychological health, and that the issue of how the children would be financially supported also was not considered. Finally, the Applicants submit that Immigration Officer had no evidentiary foundation to support her conclusion that the children would not suffer undue or disproportionate hardship if they were removed from Canada and that evidence provided, being the letter from the children's school principal and teachers, was ignored.
[10] The Respondent submits that the above reasons indicate that the Immigration Officer did turn her mind to the effect of removal on the children. The letter provided from the school does not indicate that the children would face difficulties in Ecuador but simply outlines the children's ties and the obvious fact that it would be advantageous for them to remain in Canada. The Respondent submits that in balance with the Immigration Officer's other conclusions regarding the bona fides of the marriage, the decision is reasonable. In addition, the Respondent points out that the Applicants did not put forward evidence of a lack of financial support or living conditions in Ecuador.
[11] The Applicants correctly submit that Baker outlines the definitive approach to H & C applications involving children. Immigration Officers must be "alert, alive and sensitive" and give substantial weight to the children's best interests. In my opinion, the Immigration Officer arguably failed to do so in the present case. Her assessment is superficial and lacks any real consideration of what the children's actual living conditions would be in Ecuador. The question remains, however, of which party bears the responsibility for this failure.
[12] In my opinion, while the responsibility is shared between the principal Applicant and the Immigration Officer, the specific circumstances of this case are such that the Immigration Officer failed to canvass the views of the children themselves and failed to consider the material that was before her.
[13] The minor Applicants were available to speak with the Immigration Officer at the second interview. The principal Applicant submits that the Immigration Officer told her the children should wait outside. However, the Immigration Officer states that she was asked if the children's presence was necessary and she responded in the negative. She states that if she had known that the one of the minor Applicants had comments, she would have allowed her participation in the interview (Respondent's Record, p.2).
[14] In my opinion, implicit in the minor Applicants' appearance was that they had a view on the subject of their eventual fate. Whether it was the fault of the principal Applicant in not specifically asking that they be allowed to speak or the fault of the Immigration Officer in not asking if they wished to speak, the end result is that their views were not expressed. In my opinion their views should be known.
[15] I find on the facts of this case that little was known about the children, their psychological make-up, their position and needs, and the true impact of the return to Ecuador. The Immigration Officer failed to take advantage of the opportunity presented by the availability of the minor Applicants at the second interview. As a result, in my opinion, the H & C decision is flawed.
[16] In addition, the letter from the minor Applicants' school provided some insight into these questions. On the reasons provided, it is not clear that the Immigration Officer addressed these concerns. The fact that this letter was the sole documentary evidence provided regarding the best interests of the minor Applicants indicates that it is of particular significance in the present case. This court has determined that, where important evidence is not mentioned specifically, a negative inference from the silence may be made (Bains v. Canada (M.E.I.) (1993), 63 F.T.R. 312 (F.C.T.D.). Consequently, I find that the Immigration Officer was required to properly address the concerns contained within the letter. The apparent failure to do so indicates that the Immigration Officer did not meaningfully consider the best interests of the children.
ORDER
1. Accordingly, the Immigration Officer's decision is set aside and the matter is referred back to a different immigration officer for redetermination, on a direction that the redetermination be conducted on the facts as they exist at the time of the redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2226-01
STYLE OF CAUSE: MARIA DEL CARMEN MIER VASQUEZ
MARIA GABRIEL ARIAS MIER
JOSUE JAVIER ARIAS MIER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, APRIL 9, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, APRIL 10, 2002
APPEARANCES BY: Mr. Mark Rosenblatt
For the Applicants
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Mark Rosenblatt
Barrister & Solicitor
335 Bay Street, Suite 1000
Toronto, Ontario
M5H 2R3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020410
Docket: IMM-2226-01
BETWEEN:
MARIA DEL CARMEN MIER VASQUEZ
MARIA GABRIEL ARIAS MIER
JOSUE JAVIER ARIAS MIER
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER