Federal Court Decisions

 

 

 

Date: 20070323

Docket: IMM-2180-06

Citation: 2007 FC 288

Ottawa, Ontario, March 23, 2007

PRESENT:     The Honourable Mr. Justice Beaudry

 

 

BETWEEN:

MOHAMMAD KAFEEL QAZI

Applicant

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               The Applicant brings this application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, [2001, c. 27] (the Act), of a decision, by V. Huang, Immigration Officer (the Officer), dated April 20, 2006, wherein the Officer refused to grant the applicant’s application for a permanent resident visa from within Canada on humanitarian and compassionate (H&C) grounds, pursuant to subsection 25(1) of the Act.

 

 

ISSUES

[2]               Did the Officer fail to consider the best interests of the applicant’s Canadian born children in arriving at its decision?

 

[3]               This application is dismissed for the reasons set out below.

 

BACKGROUND

[4]               At the time of the hearing, the applicant was deported to his home country Pakistan, following the dismissal by this Court of a stay of removal order on December 4, 2006.

 

[5]               The applicant first arrived in Canada with a false passport on October 28, 1990 and lived on social assistance from February 2, 1991. The applicant filed a refugee claim on July 11, 1991 and an immigration warrant was issued on January 27, 1992, to be executed on March 11, 1992.

 

[6]               On August 1, 1993, the applicant married Bano Samina, a Canadian citizen from his home country because as he admitted, she would be able to obtain permanent residence for him. Effectively, Mrs. Samina submitted a spousal application for permanent resident status for the applicant on August 26, 1993. Their union produced three Canadian born children: a son, Ajlal Ahmed Qazi, born on September 1, 1994; and two daughters, Annam Fatima Qazi, born on December 13, 1995 and Fiza Fatima Qazi born on July 16, 2003.

 

[7]               On August 12, 1993, a deportation order was issued against the applicant and on August 23, 1993, he withdrew his refugee claim without prejudice. The applicant’s spousal application was refused on October 1, 1993. Consequently, on February 14, 1994, the applicant submitted an application for permanent resident status based on H&C grounds, and was deemed a permanent resident on March 20, 1995.

 

[8]               On July 8 1998, the applicant was convicted of three offences of sexual assault; sexual interference with a minor under 14 years; and invitation to sexual touching resulting from the sexual abuse of his hosts’ daughter, aged 6-9, during eight different incidents, over a period of three years, from January 1990 to May 1993. Following a trial by judge and jury, the applicant was found guilty and sentenced on October 8, 1998, to five years in prison. Appeal from conviction and sentence was dismissed by the Court of Appeal for Ontario, on December 10, 2001 (see R. v. Qazi, [2001] O.J. No. 4935 (Ont. C.A.)); and an application for leave to appeal to the Supreme Court of Canada was dismissed on February 25, 2002 (see R. v. Qazi, [2002] S.C.C.A. No. 93).

 

[9]               In light of these criminal convictions, the applicant is a member of the inadmissible class of persons described by paragraph 36(1)(a) of the Act. On May 13, 1999, the applicant was served with a notice pursuant to subsections 70(5) and 53(1) of the former legislation, the Immigration Act, R.S.C. 1985, c. I-2, that the Minister would seek an opinion that the applicant was a danger to the public in Canada. On October 6, 1999, the Minister declared the applicant to be a danger to the public and he was ordered deported on November 15, 1999.

 

Previous proceedings

[10]           On July 19, 2000, Justice James K. Hugessen overturned the Minister's danger opinion for failure to disclose the two reports upon which it was based and sent the matter back for re-determination (see Qazi v. Canada (Minister of Citizenship and Immigration), (2000) 192 F.T.R. 136 (F.C.T.D.)).

 

[11]           The applicant was released from incarceration by statutory release in February 2002 after an immigration detention review. While in detention, an inquiry into his case was held and his permanent resident status was revoked. On October 25, 2002, the applicant submitted an H&C application. Also on October 29, 2002, the applicant was notified in person that he was eligible to apply for a Pre-Removal Risk Assessment (PRRA). The applicant submitted an application for a PRRA, on the basis of his fear of political persecution in Pakistan based on his and his family's political activities during the 1980s.

 

[12]           The applicant received a negative PRRA on March 7, 2003. It was not until February 21, 2005, nearly two years after, that the applicant was called in to receive the negative decision with respect to his application for protection. On March 15, 2005, the applicant attended the PRRA office where he received the negative PRRA decision. No explanation was offered for this delay, except that it was characterized simply as a mistake.

 

[13]           On March 16, 2005, the applicant filed an application for judicial review of this negative PRRA decision on the grounds that he was denied procedural fairness and natural justice because of this undue delay in the delivery of the decision. In a decision dated December 7, 2005, Justice Richard Mosley dismissed the application because the applicant presented no evidence that he was prejudiced by the delay (see Qazi v. Canada (Minister of Citizenship and Immigration), 2005 FC 1667, [2005] F.C.J. No. 2069 (QL). At paragraph 24, the Court stated as follows:

In the absence of any evidence demonstrating that the applicant has been prejudiced by the delay in providing him with the PRRA decision, I am unable to conclude that the applicant has been denied procedural fairness or natural justice.

 

 

[14]           On April 30, 2003, the applicant received a negative decision on his H&C application and on July 16, 2003, he submitted a second H&C application. On October 29, 2003, counsel for the applicant sent an updated submission for this H&C application. Similarly, on December 6, 2005, counsel sent another updated submission for the applicant’s second H&C application detailing the risks he faces in Pakistan, his establishment in Canada and documentation seeking to establish that the best interests of his Canadian-born children warranted a favourable decision on his H&C application.

 

[15]           On April 20, 2006, the applicant received a detailed negative decision to his second H&C application, which forms the basis of the present application for judicial review.

 

DECISION UNDER REVIEW

[16]           The Officer’s decision is outlined in Appendix “A” of the cover letter informing the applicant of the negative decision. Appendix “A” is a detailed document based on Chapter 5 of the Immigration manual: (IP) inland processing, published in 1993 by the Minister, which specifically deals with “Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) grounds”.

 

[17]           Because the single contested issue in this case deals with the alleged failure of the Officer to appropriately consider the best interests of the applicant’s three Canadian-born children, I deal below only with those relevant passages of the decision with direct or indirect reference to the best interests of the children.

SECTION 5 –HUMANITARIAN OR COMPASSIONATE FACTORS

1.      Spousal, family or personal relationship that would create hardship if severed? (Provide details including degree of/ability to support)

 

§         married to cc wife since 1993

§         has three children out of this relationship

§         has maintained a close knitted family and strong relationship among themselves in spite of criminal incarceration

§         only breadwinner of the family; wife and children would rely on social assistance without subject’s financial support

§         wife and children have provided supporting letters/affidavits (1999, 2003, 2005)

§         brother and wife’s extended family in Canada also provided supporting letters

§         close relationship with brother and wife’s family in Canada

 

2.      Children of applicant in Canada? (consider links with applicant’s country of origin, family members in country of origin, degree of establishment in Canada, etc –see IP5-8.5)

 

§         three Canadian born children in Canada (age 2, 10, 11)

 

3.      Hardship or sanctions upon return to country of origin?

 

§         [. . .]

§         wife does not have any family left in Pakistan; has been away from Pakistan since 1992; she would be separated from her family support system in Canada; would be difficult to adjust if returned to Pakistan

§         relocation to Pakistan is not a viable option for wife or their children; if forced to decide to accompany applicant to Pakistan, wife would encounter unpleasant and difficult situation

 

4.      [. . .]

5.      Degree of establishment demonstrated? (Provide details of employment in Canada, community involvement, upgrading)

 

§         [. . .]

§         has been married since 1993 and has three children born in 1994, 1995 and 2003

 

[. . .]

 

SECTION 6 – DECISION AND REASONS

 

INSUFFICIENT H&C GROUNDS. A11(1) EXEMPTION REFUSED

 

[...] There are supporting letters provided from wife, children, […]. Counsel submitted that wife and children may recourse to welfare again if applicant not allowed staying in Canada. I note that applicant has been working and supporting his family. I also note that there is no indication of any inability that prohibits wife to work outside of home. Counsel submitted that wife’s extended family (father, mother and siblings) are all living in Canada and are supportive.

 

The three children are young and are totally dependent on parents. It is for their best interest to be with the parents. It does not appear adopting to a new country at this age would represent unusual hardship. Their ability to adopt relocation to Pakistan, according to the psychological assessment by Dr. Haley, would be greatly dependent upon parent’s response and their ability to establish economically [my emphasis). Counsel submitted that applicant’s wife would encounter unpleasant and difficult situation if forced to relocate to Pakistan in that she does not have any family left in Pakistan, would be difficult to adjust and would be separated from her family support in Canada. I note that all of wife’s family is in Canada. They have provided letters to support applicant’s H&C application. However, they have not demonstrated dependency to the point that hardship would be undeserved if severed. I also note that applicant and wife lived in their home country since birth until coming to Canada in their twenties (wife came to Canada in 1992). Applicant has many siblings living in Pakistan. He completed his educational upgrading and has learned new skills during incarceration, which would appear to be in his advantage to broaden his employment opportunity in Pakistan. I am therefore not satisfied hardship to resettle in Pakistan would be disproportionate.

 

[...] Psychological reports and maintenance counseling [sic] reports on file indicated that applicant has low risk for recidivism. […] Though counsel submitted that applicant has not been convicted of any subsequent offences since released from imprisonment, I have considered that applicant was convicted of serious crime. He does not have a good civil record in Canada. Bearing in mind that the immigration program is to facilitate the reunion in Canada of Canadian citizen and permanent residents with their close relatives, and the evaluation of the best interest of the children, I also bear in mind that the program also ensures the well being of Canada, to maintain the integrity of the organization, the security and safety of Canadians.

 

Having considered the totality of this case, I have conclude [sic] that there are insufficient humanitarian and compassionate factors in this case to demonstrate hardship to apply for the permanent resident visa in the normal manner would be unusual, undeserved or disproportionate.

 

 

RELEVANT LEGISLATION

[18]           The normal manner for entering Canada is outlined in section 11 of the Act, which provides as follows:

 

[19]           A foreign national may forego the normal channels and apply for permanent resident status from within Canada based on humanitarian and compassionate considerations. This exemption is set out in subsection 25(1) of the Act, which states as follows:

 

[20]           Permanent resident status can be revoked on the grounds of serious criminality, pursuant to paragraph 36(1)(a) of the Act, which provides as follows:

 

ANALYSIS

Standard of review

[21]           The Supreme Court of Canada has established that the standard of review applicable to H&C considerations pertaining to the issue of the best interests of the child is reasonableness simpliciter. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Justice L’Heureux-Dubé held at paragraph 62:

62     These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.

 

[22]           To succeed, the applicant must show that there are no reasons that would support the approach taken by the Officer to the interests of the applicant’s Canadian-born children when reaching its H&C decision. In the words of Justice Iacobucci at paragraph 56 in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 :

56.       [. . .] An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.

 

 

Did the Officer fail to consider the best interests of the applicant’s Canadian born children in arriving at its decision?

 

[23]           Both parties make substantive arguments on the sole issue as to whether the Officer failed to consider the best interests of the applicant’s Canadian born children in its rejection of the H&C application. These are summarized below.

 

The applicant

[24]           The applicant submits that the Officer’s decision is not supported by any reasons and cannot withstand a probing examination. In particular, the Officer failed to conduct a thorough assessment of the best interests of the applicant’s children. The applicant adds that despite finding that it is in the children’s best interests to remain with their parents, the Officer failed to provide cogent reasons as to why it is not in the children’s best interests to do so in Canada. The Officer erred by assuming that the children would leave Canada in order to join their father in Pakistan without giving any thought to the possible hardship should they remain in Canada with their mother. Finally, the applicant submits that in arriving at its decision, the Officer not only failed to follow the guidelines of IP5 but also breached its statutory obligations under the Act, as well as international human rights covenants to which Canada is a signatory.

 

[25]           With respect to the latter, the applicant submitted among other instruments, Article 3 of the United Nations Convention on the Rights of the Child, which requires that the best interest of the child be a primary consideration. In the same vein, the applicant submitted the applicant’s Canadian born children have a right to grow up in Canada and a right to be cared for by their parents under Article 7 of the United Nations Convention on the Rights of the Child.

 

[26]           The applicant relies on a number of cases to support its arguments. These bear to be highlighted and are set out in the following paragraphs.

 

[27]           First, the applicant cites several passages from Baker, above, including the following where Justice L’Heureux-Dubé wrote at paragraphs 73 and 75:

73.     The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.

 

75.     The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. 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.

 

 

[28]           Second, the applicant cites Justice Marc Nadon in Legault v. Canada (Minister of Citizenship and Immigration), 2001 FCT 315, [2001] 3 F.C. 277 (F.C.T.D.) at paragraph 60 for the proposition that the officer should have considered whether Canada is a ‘better place’ than the country to which the children would be taken by their parents. In fact, the applicant submits that the Officer did not conduct an assessment of whether Canada would be a better place for the children than Pakistan. Moreover, the Officer makes selective reference to Dr. Haley’s psychological report, thereby totally ignoring the negative effects on the family and the probable depression of the mother should they all leave for Pakistan. This would imply that the parents will not have a good response to re-establishing in Pakistan, and that this will have an adverse effect on the children’s ability to adapt to life in Pakistan.

 

[29]           Third, the Officer did not consider the possible impact on the best interests of the children if the applicant were to return alone to Pakistan and leave the children with their mother. Had this assessment been done properly, the Officer would have considered the psychologist’s report pertaining to the emotional and financial hardship that would result from the separation of the mother and children from the father. Indeed, Dr. Haley summed up her findings as follows:

In summary, it is highly likely that a deportation of Mr. Mohammad Qazi to Pakistan will have a major negative effect on his family regardless of whether they accompany him or stay in Canada without him. [. . .] the result is likely that the children will have adjustment problems and Mohammad will have great difficulty coping with the negative impact on his family. This is very likely to lead to a cycle of family dysfunction, which would be very difficult, if not impossible, to reverse.

                                                                                                [emphasis in the original]

[30]           Fourth, with respect to the Officer’s silence on the children’s schooling and community involvement, the applicant submits that this is a reviewable error as in Jack v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1189 (F.C.T.D.) (QL), at paragraph 4:

4.  […] There is no reference whatsoever regarding the Canadian born child’s involvement in schooling and in the community in Canada. Equally, there is absolutely no analysis of what the impact on the Canadian born child would be if his mother was forced to leave Canada and chose to leave without him; […]

 

 

[31]           Fifth, the applicant draws the Court’s attention to the decision of the Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2002] F.C.J. No. 1687 (F.C.A.) (QL) at paragraphs 4 and 6, as well as to the decision of this Court in Raposo v. Canada (Minister of Citizenship and Immigration), 2005 FC 118, to highlight the position that the Officer failed to properly consider how the removal of the father would affect the best interests of the applicant’s Canadian-born children.

 

[32]           Finally, it is enough to refer in passing to this Court’s decision in Wynter v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1107 (F.C.T.D.) (QL) at paragraph 40, where Justice Max M. Teitelbaum criticized the Officer, the same as in the present matter for the curt manner in which the best interests of the child were disposed of. “It cannot be said that the immigration officer’s decision was made in accordance with the principles enunciated in Baker.” I am also grateful for the applicant’s reference to Koud  v. Canada (Minister of Citizenship and Immigration), 2001 FCT 856, [2001] F.C.J. No. 1237 (F.C.T.D.) (QL) at paragraph 18:

18     First, the immigration officer wrote [TRANSLATION] "a child of this age might have very little or no difficulty in adapting". That observation is a conclusion made with no analysis and no foundation, because there was no assessment of the situation that the child would be in if he returned to Congo with his mother or remained in Canada without her. The immigration officer was required to do a more thorough investigation.

 

 

[33]           For all these reasons, including the many instances where the Officer did not follow the IP5 guidelines, the applicant submits that the decision should be quashed and returned to a different Officer for redetermination.

 

The respondent

[34]           The respondent rejects wholesale the position of the applicant. The Officer made findings regarding the credibility of the applicant’s evidence, which were reasonably open to her on the record. The respondent further submits that the Officer did not base her decision on an erroneous finding of fact or without regard to the voluminous evidence that was before her. More notably, the respondent underscores the position that there is no evidence to suggest that the officer refused to consider any evidence, ignored any evidence or made erroneous findings with respect to the best interests of the children. In fact, she could not but help to have considered the plight of the young children.

 

[35]           Relying on Baker, the respondent submits that the Officer was sensitive, alert and alive to the best interests of the children but this does not mean that the best interests of the children would mandate the outcome of each case. Indeed, it goes without saying, the respondent argues that it is always in the best interests of the children to remain in Canada with their parents. However, the Officer has other factors to weigh in the balance including public policy considerations before exercising its discretion to grant the permanent resident exemption on H&C grounds.

 

[36]           Among the other factors that the Officer must consider is that of security, one of the new priorities Parliament has imprinted on Canada’s immigration system, as is embodied in the Act, which is a marked departure from the old Immigration Act, above. In this light, the respondent draws the Court’s attention to the Supreme Court of Canada’s reiteration of this clear legislative intent at paragraph 10 of  Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539:

10     The objectives as expressed in the IRPA indicate intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. This marks a change from the focus in the predecessor statute, which emphasized the successful integration of applicants more than security: e.g. see s. 3(1)(i) of the IRPA versus s. 3(j) of the former Act; s. 3(1)(e) of the IRPA versus s. 3(d) of the former Act; s. 3(1)(h) of the IRPA versus s. 3(i) of the former Act. Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.

 

 

[37]           Such pronounced legislative priority would of necessity conflict with Canada’s international engagements under the Convention of the Rights of the Child, for example. However, as the respondent submits, in reliance on this Court’s unreported decision in Arya v. Canada (Minister of Citizenship and Immigration), IMM-1279-06, (Dawson J., March 14, 2006) in case of conflict of laws, the international instruments would not override clearly expressed Canadian legislation.

 

[38]           Finally, the respondent submits that the criticisms levied by the applicant against the Officer’s decision go counter to Canadian jurisprudence, which provides that foreign nationals cannot rely on the existence of Canadian born children to delay or defeat the execution of their lawful removal from Canada.  In particular, Justice Robert Décary in Canada (Minister of Citizenship and Immigration) v. Legault, 2002 FCA 125, [2002] 4 F.C. 358 (C.A.) stated at paragraph 12:

12.     In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada (see Langner v. Canada (Minister of Employment and Immigration) (1995), 29 C.R.R. (2d) 184 (F.C.A.), leave to appeal refused, [1995] 3 S.C.R. vii).

 

                                                                        [my emphasis]

 

(See also Justice Judith Snider in John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 583 (T.D.) (QL) at paragraph 32)

                                                                       

 

 

[39]           The respondent examines the Officer’s decision and notes that it is trite law that the decision maker is presumed to have considered all the information before her. Also, it is accepted Canadian jurisprudence that the decision maker is not required to make reference to every piece of evidence before it. Indeed, the Officer in this case, as indicated in Appendix “A”, did refer in detail to the applicant’s extensive immigration history dating back to his first arrival in 1990. The Officer documents his negative PRRA decision, his first H&C application, his establishment in Canada, his criminal convictions, the applicant’s sexual offender training while incarcerated, the applicant’s undertaking of pardon proceedings, the psychological assessments, the applicant’s low recidivism rate, the emotional and economic dependency of the applicant to and with his wife and three children, the letters from the children, and other letters of support from the applicant’s parents and his brother, as well as those from his in-laws, and members of the community in Canada, to cite but a few items in the details contained in Appendix “A”, of  the Officer’s decision. As such, the respondent submits the Officer was alive to the various intricacies of the applicant’s life and that of the best interests of his children and it is erroneous to allege that the Officer ignored or misconstrued the information before her.

 

[40]           The respondent further submits that even if the best interests of the child were overlooked, which it rejects as unfounded, the Officer’s findings are reasonable and can withstand probing examination. In particular, the respondent notes that the Officer was correct in her comments of the lack of economic independence of the applicant’s wife, who as a stay-at-home-mother was not in a position to work when the applicant committed a serious criminal offence and was incarcerated. The applicant’s spouse and young children became a burden to the state, which are not factors that would be favourable to an application on H&C grounds.

 

[41]           In the grand scheme of things, notes the respondent, the applicant’s complaints call into question the weight the Officer attributed to different aspects of this complex case. Such complaints are irrelevant as the reviewing Court is not called upon to reweigh the evidence or call into question the weight the Officer gave to different elements of fact based evidence. The weighing the Officer was called upon to make was done in accordance with the spirit of IP5, and the objectives of the Act. The Officer weighed all the relevant H&C factors, and found in the final analysis that in spite of the sensitivity toward the interests of the children, the weight of the other factors, including serious criminality, albeit tempered by psychological reports of low recidivism rate and the reestablishment of the applicant once he was released from prison, all weighed in the balance to find that there were insufficient grounds to find that the applicant would suffer undue and undeserved hardship were he to be removed from Canada.

 

Applicant’s reply

[42]           The applicant responds that it has raised a serious issue of law upon which its application might succeed. In particular, the applicant states that while the applicant has applied for a pardon, there is no guarantee that he will get a pardon, without which, he cannot legally return to Canada. Also, while the applicant agrees that the line of jurisprudence which says that the applicant cannot rely on the existence of Canadian-born children to thwart his removal from Canada, Justice Décary in Legault, did refer extensively to the IP and the Officer in this case has breached several aspects of these guidelines.

 

[43]           The applicant underlines that he does not pose a threat to public safety or security and indeed the danger opinion against him was quashed and the Minister did not appeal. Moreover, at no time did the Officer consider the potential hardship that would befall the children if they were to remain in Canada with their mother and be separated from their father, who would be removed to Pakistan. At no time did the Officer explain why she believed that it was in the children’s best interests to be removed to Pakistan, a country they have never set foot in before. The applicant reiterates the jurisprudence and immigration guidelines, which in its view support the position that the Officer was not sensitive, alert and alive to the best interests of the children.

 

 

 

The Courts findings

[44]           Having examined the three volumes of documents that constitute this long and checkered case, I am particularly indebted to the able arguments presented by counsel for both parties. While the arguments of the applicant are persuasive, I am constrained to put the best interests of the children as a factor in the context of the entire file. The Officer undertook a careful and methodical assessment and reporting of all of the facts and factors, which must be considered in its assessment of the decision whether to exercise the Minister’s discretion and accord the applicant permanent resident status from within Canada.

 

[45]           The following three factors underpin my finding. First, the decision of the Officer withstands probing scrutiny in that she is alive to the fact that the applicant was separated from his children and spouse for a period of four and a half years prior to obtaining statutory release on a five-year sentence. The family unit was able to withstand this rude test of shame and separation and pick up the pieces, such that the applicant was able to remove his family from the welfare rolls within 15 days of his release and indeed increase the family size, with the arrival of baby Fiza Qazi on July 16, 2003. Was it not then reasonably open to the Officer to consider that the hardship that would result from obtaining the applicant’s permanent residence through the normal manner from outside Canada would not be disproportionate and undeserved hardship such that the best interests of the children should trump all else?

 

[46]           Second, the decision of the Officer was reasonably open to it because there are reasons that would support the decision made. Most notably, with respect to the best interests of the children, it must be noted that it is the applicant and not the children whose removal from Canada was at issue. Also, the fact that the Officer considered only the option of life in Pakistan is not an error. Indeed, it is automatically assumed that remaining in Canada would be a private decision and not one based on a public decision that resulted in the application for permanent resident status from outside the country (Pakistan). I find nothing unusual or unreasonable in the Officer’s consideration of the hardship that would occur in Pakistan. Indeed, it is only logical that the Officer should consider the degree of hardship its decision would create were the applicant to make his application from Pakistan. 

 

[47]           As stated by Justice Décary writing for the Federal Court of Appeal at paragraphs 6 and 7 in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687 (QL):

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, which militate in favour of or against the removal of the parent.

 

 

[48]           Third, as noted at the outset of these reasons, the applicant was deported from Canada on December 4, 2006. I note also that the applicant has applied for a pardon. Should he be successful, it is open to the applicant to apply for permanent resident status through the normal manner provided in the Act.

 

[49]           The parties declined to submit questions for certification. None arise in this case.

 

                                                         

JUDGMENT

 

THIS COURT ORDERS that:

1. The application for judicial review is dismissed.
2. No question is certified.

 

“Michel Beaudry”

 

 

 

 

 

 

 

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-2180-06

 

STYLE OF CAUSE:                          MOHAMMAD KAFEEL QAZI and

THE MINISTER OF CITIZENSHIP AND                                     IMMIGRATION

                                                           

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      March 14, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          Beaudry J.

 

DATED:                                             March 23, 2007

 

 

 

APPEARANCES:

 

Chantal Desloges                                                                      FOR APPLICANT

                                                                                               

 

Amina Riaz                                                                               FOR RESPONDENT

                                                                                               

SOLICITORS OF RECORD:

 

Green & Spiegel                                                                       FOR APPLICANT

Toronto, Ontario

 

John Sims, Q.C.                                                                       FOR RESPONDENT

Deputy Attorney General of Canada

Toronto, Ontario