Date: 20011120
Docket: IMM-5652-00
Neutral citation: 2001 FCT 1274
BETWEEN:
WU, YU YING
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant seeks judicial review of an immigration officer's decision dated October 18, 2000, wherein her humanitarian and compassionate application pursuant to s. 114(2) of the Immigration Act was denied.
A. Factual background
[2] The Applicant is a citizen of Taiwan, with a young son who is a Canadian citizen. The Applicant requested processing of her application for permanent residence from within Canada on humanitarian and compassionate (H & C) grounds. The basis of this request is her son's medical conditions, respiratory and skin problems exacerbated by the climate in Taiwan, and fear of spousal and child abuse from her ex-husband who had previously beat her and threatened the life of her and her son.
[3] The Immigration Officer refused the application on the basis that the Applicant failed to satisfy her that she would suffer "unusual and undeserved or disproportionate hardship" from having to obtain an immigrant visa from outside Canada. This standard is in direct reference to the Immigration Manual which sets out the following guidelines regarding the basis upon which H & C applications are to be considered:
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.
The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision-makers when they exercise their discretion in determining whether sufficient H & C considerations exist to warrant the requested exemption from A9(1).
Unusual and undeserved hardship
The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act or Regulations, and
The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.
Disproportionate hardship
Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.
B. The issue
[4] The Applicant challenges the substance of the Immigration Officer's decision. It is agreed that, as stated in the Supreme Court of Canada decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the appropriate standard of review for H & C decisions is reasonableness simpliciter.
[5] The central issue in this judicial review is whether or not the Immigration Officer erred by failing to properly consider the best interests of the Applicant's Canadian-born child.
C. Analysis
[6] The Supreme Court decision in Baker not only outlined the standard of review applicable to the discretionary H & C decisions, but also the standard to be applied in assessing the reasonableness of the decisions when children's interests are at issue. Madame Justice L'Heureux Dubé wrote the often quoted statement:
[para 75] ... 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] The Immigration Manual recognizes that H & C decisions may have an impact on family members who have a legal right to remain in Canada. Section 8.5 discusses the special category of separation of parents and dependent children and specifically states: "The geographic separation of family members could create a hardship that may warrant a positive H & C decision."
[8] In evaluating such cases, immigration officers are directed to balance the various interests at stake; Canada's interest, the family interests and the circumstances of all of the family members, with particular attention to be given to the interests and situation of the applicant's children. Officers are further directed to consider the age, needs, health and emotional development of the applicant's child. These guidelines provide a reference point to help determine whether immigration officers exercise their discretion in a reasonable manner.
[9] The Baker decision demonstrates that it is not sufficient for an immigration officer to merely consider the best interests of the child in reaching a decision; the child's interests are also to be accorded substantial weight. The Manual also mandates a specific assessment of the child's interests and situation. Consequently, there is some obligation on an immigration officer to demonstrate that he or she has conducted a deeper examination of the child's interests and how they would be affected by the deportation of an applicant.
[10] In considering the situation and interests of the Applicant's Canadian born child, in the present case the Immigration Officer concluded:
I have also considered the medical situation of the applicant's Canadian citizen son. The applicant provided a letter dated 26/09/00 from Dr. Hou confirming that her son's respiratory and skin problems are exacerbated in Taiwan due to the hot, humid and damp weather in that country. Dr. Hou does not, however, specify that these conditions are life-threatening nor does he indicate the type of treatment required for these medical conditions. Further, he cannot confirm that medical treatment for these conditions does not exist in Taiwan. At her interview, the applicant stated that her son receives treatment for these ailments in Taiwan. She also stated that this treatment, when received by her son, immediately alleviates his symptoms. Dr. Hou's letter also states that the applicant's son's condition of thalassemia is an inherited life-long one and is not life-threatening. I am satisfied, therefore, that the applicant's son's medical conditions are not life-threatening and that there is medical treatment and medication available to him in Taiwan.
[11] While it is clear that the Immigration Officer properly turned her mind to the interests of the child, in my opinion, she imported irrelevant criteria into her analysis by judging the child's medical condition according to the standard of whether it is "life threatening". This is an extremely high standard that would in most circumstances exclude the situation of most children. More importantly, this standard is not required by the jurisprudence or the Immigration Manual. In my opinion, such a standard is unreasonable in that the suffering that children experience, whether arising from a medical condition or from psychological sources, should not have to be life-threatening in order for humanitarian and compassionate considerations to apply. In applying this criteria, the Immigration Officer effectively minimized the interests of the child. Consequently, I find the decision is unreasonable.
O R D E R
[12] Accordingly, I set aside the Immigration Officer's decision and refer this matter back for redetermination by another immigration officer.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, British Columbia
November 20, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5652-00
STYLE OF CAUSE: Wu, Yu Ying v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 20, 2001
REASONS FOR ORDER OF THE COURT BY: Campbell J.
DATED: November 20, 2001
APPEARANCES:
Kenneth Specht FOR APPLICANT
Emilia Pech FOR RESPONDENT
SOLICITORS OF RECORD:
Sahmet & Company FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia