Date: 20011924
Neutral citation: 2001 FCT 1155
BETWEEN:
MUTUSAMY GURUNATHAN
JAYANTHI GURUNATHAN
DHARMARAJ GURUNATHAN
THAGURAJ GURUNATHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicants seek judicial review of a decision of the Immigration Officer dated November 27, 2000 refusing the Applicants' application for permission to apply for permanent residence from within Canada on humanitarian and compassionate grounds.
[2] The issues are whether the Officer erred in failing to take into account the best interests of the children, in not conducting a risk assessment, and whether the Officer erred with respect to her findings of fact. In my view, the case revolves around whether the Officer erred in failing to take into account the best interests of the children.
[3] The Officer stated at paragraph 10 of her affidavit:I considered all of the information provided to me and I believe that I was alert, alive and attentive to the best interests of the children in making my determination. The children ... were 15 and 14 respectively at the time of the interview. I considered that they had been in Canada since December 1991, almost 9 years. I considered that they had gone to school while in Canada and that the children would have to make some real adjustments to living outside Canada but I did not see any evidence that they would not be able to manage the adjustment. The Applicants asserted they did not want their children to have the life that they did but there was no evidence before me that the children would be at risk. The parents concern that they would have to go live in a small village was not reason enough to warrant special consideration.
[4] In the Officer's handwritten notes she refers to the age and school of the two children. These handwritten notes were made at the time of interviewing the Applicants and their counsel. In her typewritten notes, which are more extensive, or the FOSS notes dated November 27, 2000, which is almost six months after the interview of April 12, 2000, the Immigration Officer stated:The Applicants have 2 children, ages 14 years and 15 years ... the children are co-applicants ... [The children] are both attending school in Canada.
She then stated later:While I empathize with the parent's concern that they do not want their children to live the lives they have lived, no evidence has been provided neither orally or in writing to indicate that the children would be at risk in Sri Lanka.
[5] Counsel also kept notes of the interview on November 27 and these notes included the following information which was conveyed to the Officer by the Applicants:Kids do not know Tamil - have learned English.
This is also confirmed by the Applicant's wife in her affidavit.
[6] In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, L'Heureux-Dubé states at page 860: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.
She then continues and states at page 863: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 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. In addition, the reasons for decision failed to give sufficient weight and consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she had been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.
It follows that I disagree with the Federal Court of Appeal's holding in Shah, supra, at p. 239, that a s.114(2) decision is "wholly a matter of judgment and discretion" ... While I agree with the Court of Appeal that the Act gives the applicant no right to a particular outcome or to the application of a particular legal test, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments, the decision must be made following an approach that respects humanitarian and compassionate values. Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. ...
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.
[7] In Legault v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 568 (FCTD) Nadon J. set out the two approaches that have been taken by judges of this Court regarding the consideration of the best interests of the children required by Baker. At paragraph 55 Nadon J. states:The first one, which I would characterize as the process approach, is the one taken in the Young, Mayburov and Russell decisions. The other approach, which I would characterize as the substantive approach, is the one taken in the other cases. Under the process approach, the Court will examine whether the immigration officer has taken into consideration the effects which the parents' departure from Canada might have upon the children. If the immigration officer has taken into consideration these effects, the Court will not intervene, even though the decision made is not a favourable one to the applicant. On the other hand, under the substantive approach, the Court will not only verify whether the officer has considered the effects of a refusal of the parents' application under section 114(2), but will go further and assess whether the ultimate decision is the correct one.
In my view, I do not have to choose between these approaches in this case, since under either approach the failure of the Officer to take into account the children's inability to speak the Tamil language is an error. It is certainly something that should have been taken into account in considering the best interests of the children. The Immigration Officer looked at the risks to the children and, since their risk was the same as the parents' risk, concluded that there would be no risk to the children. However, an analysis of the best interests of the children requires an officer to look at more than just the risk to the children. The only analysis of the best interests of the children, and a very limited one at that, is included in paragraph 10 of the Officer's affidavit referred to above. She states:... the children would have to make some real adjustments to living outside Canada but I did not see any evidence that they would not be able to manage the adjustment.
[8] I see nothing in the paragraph that indicates that the Officer was looking at the ability of the children to communicate if they were returned to Sri Lanka. In my view, there has been no analysis of the best interests of the children by the Officer based on the evidence before her. Accordingly, the matter must be returned to a different officer for re-determination in a manner not inconsistent with these reasons. As provided in the Supreme Court of Canada ruling in Baker, the best interests of the children is an important factor but not necessarily the governing factor. The Immigration Officer will have to determine whether all the circumstances, including the best interests of the children, warrant the granting of an exemption from subsection 9(1) of the Immigration Act on humanitarian and compassionate grounds.
[9] In light of my view on the best interests of the children, it is not necessary to deal with the other issues in this matter. However, in my view, it was open to the Officer to make the findings of fact that she did. I am concerned about the Officer's statement that there was no submission on risk. There was a very limited submission but it was certainly within the Officer's discretion to refuse to refer an assessment of risk to the PCDO officer.
[10] I also note that the Officer erred in considering the fact that the Applicants stayed in Canada in contravention of the Act.
ORDER
The application for judicial review is allowed. The decision of the Immigration Officer dated November 27, 2000 is quashed and the matter is returned for re-determination by a different immigration officer in a manner not inconsistent with these reasons.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
October 24, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-6368-00
STYLE OF CAUSE: MUTUSAMY GURUNATHAN
JAYANTHI GURUNATHAN
DHARMARAJ GURUNATHAN
THAGURAJ GURUNATHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, OCTOBER 18, 2001
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MCKEOWN J.
DATED: WEDNESDAY, OCTOBER 24, 2001
APPEARANCES: Ms. Chantal Desloges
For the Applicants
Ms. Mielka Visnic
For the Respondent
Page: 2
SOLICITORS OF RECORD: Green & Spiegel
Barristers & Solicitors
Box 114
Standard Life Centre
2200-121 King St. W.
Toronto, Ontario
M5H 3T9
For the Applicants
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011023
Docket: IMM-6368-00
Between:
MUTUSAMY GURUNATHAN
JAYANTHI GURUNATHAN
DHARMARAJ GURUNATHAN
THAGURAJ GURUNATHAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER