Vancouver, British Colombia, February 9, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Amandeep Kaur Sandhu, now 16 years-old and a citizen of India, in this judicial review application challenges the June 5, 2006 decision of Jacqueline Desjardins at the Canadian High Commission in New Delhi (the Visa Officer) who determined pursuant to subsection 25(1) of the Immigration and Refugee Protection Act (the Act) that it would not be justified on humanitarian or compassionate considerations to grant her permanent resident status or exempt her from any applicable criteria or obligation of the Act or the Immigration and Refugee Protection Regulations (the Regulations).
I. The Facts
[2] On September 9, 2003, the applicant submitted an application for permanent residence in Canada under the skilled worker category. At the time of her application, she was 13 years-old. She was born on January 9, 1991, in the Punjab.
[3] In her visa application, the applicant requested an exemption from the requirements of the Act and Regulations based on section 25(1) of the Act although she did not specify which provision or requirement she was asking to be exempted on humanitarian and compassionate grounds.
[4] It was assumed by the visa officer the applicant sought an exemption from meeting either the selection criteria under the skilled worker category, then being thirteen years old and having no intended occupation, or sought exemption from paragraph 117(9)(d) of the Regulations which provides no foreign national shall be considered as a member of the family class if her sponsor, in his or her application for permanent residence, did not identify her as a non-accompanying family member.
[5] Her father had applied for and was granted permanent resident status in Canada in February of 1991 as the “unmarried” dependent son of his parents; the applicant’s mother was sponsored by the applicant’s father as his fiancée and was granted permanent residence in Canada in 1996. She did not disclose the applicant was her child or that she had been married to Mr. Sandhu in 1989 rather than being his fiancée. The applicant, therefore, was not examined when the applications for permanent residence in Canada of her father and mother were processed.
[6] In 1998, the applicant's parents fraudulently attempted to sponsor the applicant as their adopted daughter rather than acknowledging she was their natural-born child.
[7] This is the second application for permanent residence made by the applicant. She had previously made a first application as a member of the family class but was refused on September 23, 2002, by Officer Sarasa Nair at the High Commission in New Delhi. Officer Nair concluded the applicant was excluded from membership in the family class based on section 117(9)(d) of the Regulations.
[8] In connection with her second application for permanent residence, the applicant was interviewed on November 28, 2005, in New Delhi, by Officer Sarasa Nair who completed her extensive interview notes the same day and consigned them to CAIPS. She also prepared a case summary in CAIPS dated April 28, 2006.
[9] Officer Nair referred the applicant’s second application for permanent residence to the visa officer for decision.
II. The Visa Officer's Affidavit
[10] The visa officer deposed an affidavit, to which her CAIPS notes were appended, describing the considerations that she took into account in making her decision. In her affidavit she states on June 5, 2006, she conducted a complete review of the case and made her own independent assessment of the file which was based on the documentation in the file, on information obtained at the interview and on the CAIPS notes.
[11] The visa officer's affidavit is largely based on the CAIPS notes found in the file and, as such, does not transgress the rule that it would be improper for a visa officer to supplement in an affidavit the reasons given in a refusal letter or recorded in the record (see Yue v. Canada (Minister of Citizenship and Immigration), 2006 FC 717.
[12] At paragraph 9 of her affidavit, she deposes as follows:
“In reviewing the file information and Ms. Sandhu’s application, I considered the actions of Ms. Sandhu’s parents, Ms. Sandhu’s circumstances including her connection to her parents, her extended family in India, and her establishment in the only home she has ever known in India and her current enrolment and social network at school. Based on the information available to me, and bearing in mind the best interests of the child, I was not satisfied that Ms. Sandhu had demonstrated sufficient H&C grounds to warrant an exemption from the requirements of the Act and Regulations pursuant to subsection 25(1) of the Immigration and Refugee Protection Act.”
[13] She continued her analysis of the considerations she took into account in the following paragraphs of her affidavit which I reproduce:
Ms. Sandhu’s separation form her parents occurred because her parents chose to leave her to immigrate to Canada and they failed to disclose the existence of Ms. Sandhu as their daughter to the Immigration authorities. Ms. Sandhu’s parents provided false and misleading information to the Canadian immigration authorities in their attempt to sponsor Ms. Sandhu as their “adopted” daughter. The situation of the separation of the family is a result of the family’s own action and misrepresentation in their immigration applications.
I noted that Ms. Sandhu’s father did not disclose her existence to immigration authorities when he applied for and was granted permanent residence in Canada in February 1991 as the “unmarried” dependent son of his parents. Ms. Sandhu’s mother was sponsored by the applicant’s father as a fiancée and was granted permanent residence in Canada in 1996. She did not disclose Ms. Sandhu was child or that she had been married to Mr. Sandhu. Ms. Sandhu, therefore, was not examined when the applications for permanent residence in Canada of her father and mother were processed. She is, therefore, excluded from the family class pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations.”
I also considered Ms. Sandhu’s circumstances living in India without her parents. Ms Sandhu was one month old at the time of her father’s departure for Canada and four years old at the time of her mother’s departure for Canada. According to information provided by Ms. Sandhu at her interview, when her mother left for Canada in 1995, she admitted Ms. Sandhu in a boarding school. Ms. Sandhu has been studying in the boarding school and staying in the school hostel since then. Ms. Sandhu has grand parents, maternal and paternal uncles and aunts and cousins as well as friends in Punjab, the state of India in which she lives. Ms. Sandhu’s paternal grandfather, paternal uncle and his family and some cousins live about 4 or 4 ½ hours from the school hostel. She spends her school holidays with her maternal grandparents and uncles and with her paternal grandfather, uncles and cousins.
I noted that Ms. Sandhu has lived in India for 15 years without her father and for 11 years without her mother. Ms. Sandhu remembers only one visit from her father and brother and three visits from her mother. Her mother visits for 1 or 1-1/2 months. Her mother speaks to her on the telephone once or twice a week.
By letter dated June 5, 2006, I refused Ms. Sandhu’s application. In my refusal letter, I advised that I was refusing the application because I had determined that there were insufficient humanitarian or compassionate considerations to grant her permanent resident status or exempt her from any applicable criteria or obligation of the Act. The reasons are set out in my entry in the CAIPS notes dated June 5, 2006.
[My emphasis]
III. The Applicant's Affidavit
[14] The applicant filed an affidavit in support of her application in which she states she is fifteen years old, “sorely misses her parents and because her parents have been away from India since she was of a very young age, I have cherished whatever time they have been able to spend with me whenever they came to visit me in India.”
[15] The applicant deposes “after each trip when they returned to Canada, I experienced supreme loneliness. The sadness of being away from my parents eats away at my heart and quite often I cannot even concentrate on my studies.” She continues noting she cannot run to her parents in order to obtain solace from them and “life has been extremely difficult for me that sometimes when I am sitting alone and my being away from my parents hits me, I spend hours and hours crying.” She adds that being away from her parents has affected her health physically and psychologically because “like any other child, I long to be with my parents.” She notes that sometimes she has “suicidal tendencies because I feel desperately alone.”
[16] She asserts she needs to be with her parents without further delay because “I am getting at an age where physically I am developing also and I want to be close to my mother so I can discuss my growing issues with my mother.”
IV. Her Father's Affidavit
[17] Her father also filed an affidavit in support of her application. He indicates he was sponsored to Canada as a dependent child in 1989 and “at the order of my parents I was also married in 1989. I had no choice with respect to my marriage and no choice with respect to my application for permanent residence in Canada because in our culture, one is required to obey one’s parents without question.”
[18] He confirms his daughter, the applicant, was born on January 9, 1991, and his wife was sponsored in August of that year. He deposes “because of the order made by my parents, I did not include my daughter with my wife’s sponsorship and my wife, also because of the order of my parents, did not include my above daughter in her application for permanent residence.” He adds the following at paragraphs 6 and 7:
That I believe in telling the truth and each time there was a diversion from telling the truth, it hurt me a lot emotionally. However, in our culture, the concept of obedience of orders given by parents is very strong and I simply had to go along with orders. It hurt me a lot but I believe I had no choice.
That even though I made a variety of misguided applications based on my parent’s orders, applications based on wrong information were not successful.
IV. Analysis
A. The applicant's evidence
[19] I am not at all moved by the father of the applicant's evidence. He shows no remorse for his numerous successful and not so successful attempts to deceive immigration officials and causing unnecessary waste of public funds by forcing the Canadian government to undertake investigations to uncover his schemes.
[20] I do not doubt the sincerity of the applicant when she says she wants to be reunited with her mother. However, I have reservations about the consequences she feels about not being with her parents.
[21] During her interview, which was conducted in Punjabi with the applicant accompanied by her cousin, she simply stated she missed her mother and did not elaborate on the effects she identified in her affidavit. She also stated she liked staying at the hostel because she had friends there.
B. The Standard of Review
[22] The standard of review of a visa officer's decision related to an application for permanent residence in Canada based on humanitarian and compassionate considerations is reasonableness (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817) "which means a decision which is not supported by any reasons that can stand up to a somewhat probing examination… The Court must look to see whether any reasons support the decision."
C. Some Principles
[23] I take from the jurisprudence in Baker, above, and the Federal Court of Appeal's decision in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, the following principles which are derived from Justice Décary's majority reasons:
… [2] First, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (leave to appeal denied by the Supreme Court of Canada, November 21, 2002, SCC 29221), stand for the proposition that the best interests of the child is an important factor that must be given substantial weight. Legault stands for the further proposition that the best interests of the child is not determinative of the issue of removal to be decided by the Minister. To the extent, therefore, that they could lead to the impression that the "best interests of the child" factor should be given some form of priority or preponderance, the words "primary consideration" found in Article 3, paragraph 1 of the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3] (see paragraph 33 of my colleague's reasons) should be read with caution. (I am assuming, [page562] solely for the sake of this discussion, that removal of a parent is an "action concerning children" within the meaning of Article 3, paragraph 1 of the Convention, which Convention, as is noted by my colleague, has been ratified by Canada but has not been enacted into domestic law.)
[3] Second, I agree with counsel for the Minister that to insist as a matter of law that an immigration officer spell out expressly that she had considered the best interests of the child before examining the degree of hardship to which the child would be subject, is to elevate form above substance.
[4] The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
[5] The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
[6] To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial -- such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
[7] The administrative burden facing officers in humanitarian and compassionate assessments -- as is illustrated by section 8.5 of Chapter IP 5 of the "Immigration Manual: Inland Processing (IP)" reproduced at paragraph 30 of my colleague's reasons -- is demanding enough without adding to it formal requirements as to the words to be used or the approach to be followed in their description and analysis of the relevant facts and factors. When this Court in Legault stated at paragraph 12 that the best interests of the child must be "well identified and defined", it was not attempting to impose a magic formula to be used by immigration officers in the exercise of their discretion.
[8] Third, I reject the argument submitted by the intervener, the Canadian Foundation for Children, Youth and the Law, that even if a reasonable balancing of the various factors has been made by the officer, the reviewing Court must go a step further and consider whether the damage to the child's interests is disproportionate to the public benefit produced by the decision. To require such a further step would be to reintroduce through the back door the principle confirmed in Legault that the best interests of the child is an important factor, but not a determinative one.
[9] Fourth, "hardship" is not a term of art. As noted in section 6.1 of Chapter IP 5 of the Immigration Manual (reproduced at paragraph 30 of my colleague's reasons), the administrative definition of "unusual and undeserved hardship" and "disproportionate hardship" in the Manual are "not meant as 'hard and fast' rules" and are, rather, "an attempt to provide guidance to [page 564] decision makers when they exercise their discretion". It is obvious, for example, that the concept of "undeserved hardship" is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship.
[10] That being said, I agree with my colleague that on the facts of this case, the officer was not "alert, alive and sensitive" to the child's best interests, more particularly in summarily dismissing the child's own concerns and ignoring, for all practical purposes, the financial implications for the child of her mother's removal. The matter was properly sent back by Pelletier J. to the Minister for reconsideration.
V. Conclusion
[24] Counsel for the applicant principally and essentially argued the visa officer in effect failed to take into account the best interests of the applicant, as required under section 25 of the Act, because he gave excessive and overriding weight to the deceitful actions of her parents to such an extent that the decision was punitive in nature.
[25] He made a subsidiary argument the applicant asked for the reasons for decision which were not received. There is no substance to this argument as the applicant's application for leave and judicial review indicates the decision-maker's reasons were received. These are the reasons expressed in the CAIPS notes.
[26] I cannot accept counsel for the applicant's argument on the main point while accepting it would be in the best interest of the applicant to be with her parents.
[27] As stated in Hawthorne, above (which was a case different than the one before the court here because it was a question of separating a parent from her child, who had the right to remain here, by removing the parent) the best interest of the child is an important factor and should be given substantial weight in an H&C application but is not determinative of the issue. The best interests of the child must be balanced with other factors including public policy considerations. I hasten to add the wording of section 25 of the Act says just that "…is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected or by public policy considerations. [Emphasis mine]
[28] The visa officer engaged in the balancing test including the actions of her parents which breached the integrity of Canada's immigration system and the applicant's personal circumstances. I cannot conclude the balancing was unreasonable. This was the result reached by Justice Strayer in similar circumstances in the Yue above.
[29] I conclude by saying the applicant's separation from her parents is their choice, and that it need not be that way.
JUDGMENT
This judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4176-06
STYLE OF CAUSE: AMANDEEP KAUR SANDHU v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 7, 2007
REASONS FOR JUDGMENT: LEMIEUX J.
AND JUDGMENT
APPEARANCES:
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Mr. Mir Huculak
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Ms. Helen Park
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SOLICITORS OF RECORD:
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Mir Huculak Barrister & Solicitor Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada
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