Date: 20041217
Docket: IMM-1022-04
Citation: 2004 FC 1758
Ottawa, Ontario, this 17th day of December, 2004
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
JASWINDER SINGH SANDHAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of an immigration officer (the "H & C Officer"), made on January 21, 2004 , wherein it was determined that there were insufficient humanitarian and compassionate ("H & C") and public policy grounds to warrant processing the applicant's permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] The applicant seeks an order:
1. Quashing the decision that there was insufficient H & C grounds for the processing of the application for permanent residence from within Canada;
2. Requiring that the respondent process the application for landing from within Canada in accordance with the policy provisions set out in IP5 of the immigration manual; and
3. Remitting the matter back for a redetermination by a different officer.
Background
[3] The applicant is a citizen of India. He came to Canada in August 1996 and made a refugee claim. That claim was rejected in 1998. The applicant's relationship with his wife started in 1999. The couple began living together in May 2001 and were married on March 7, 2002.
[4] The applicant applied for landing on H & C grounds in March 2002. In March 2003, counsel for the applicant advised Immigration that the applicant's wife had given birth to a baby boy on October 24, 2002.
[5] In September 2003, the applicant received a letter from Immigration advising him that IRPA had come in force and requiring him to fill out the new application forms.
[6] The applicant's application on H & C grounds was denied on January 21, 2004. This is the judicial review of that decision.
Decision of the H & C Officer
[7] In the Humanitarian and Compassionate Narrative Form, the H & C Officer writes:
Negative h & c. Although subject has a spouse who is willing to sponsor him, she is unable to from within canada as he is out of status. I have considered the fact that a separation from his spouse and child may cause the family financial restraints and some stress, however I am not satisfied that a separation would cause the family undue and undeserved nor disproportionate hardship as subject entered into this marriage and started a family knowing that his immigration status was not finally determined. Therefore it is not unreasonable for a separation to take place under these circumstances. While I do believe that every child should benefit from the love and support from both parents, I am not satisfied that this child's best interests will not be met by his mother nor am I satisfied that the father cannot offer this love and support regardless of his whereabouts. With respect to not expecting support from his in laws, I note with interest that subject has his own parents that are obviously concerned with his well being therefore it is not unreasonable to conclude that his parents won't offer him the support he may need until such time as he resettles in India. His wife too, was employed prior to having her child and they have not provided sufficient evidence to demonstrate that she cannot regain her employment in the future to help with the financial status of this family. With respect to the fear of persecution, subject has failed to provide details that collaborate his claim and make it more than just a generalized statement of fear. I note with interest subject had a refugee claim denied and it was due to credibility. Subject has failed to provide me with grounds upon to base a decision of whether or not his statement of generalized fear of persecution warrants a further review by a specialized risk officer.
Issues
[8] The applicant proposed the following issues in his memorandum of fact and law:
1. Did the H & C Officer err in law by failing to properly consider the best interest of the applicant's child and by making unreasonable findings of fact in this regard?
2. Did the H & C Officer err in law by misapprehending and failing to consider the totality of the evidence?
3. Did the H & C Officer err in law by failing to consider the application under the old guidelines?
Applicant's Submissions
Issue 1: Best interests of the child
[9] The applicant submitted that what is required by an officer assessing an H & C application under section 25 is that the officer consider the application "with particular attention to the best interests of the children". The H & C Officer must be alert, sensitive and alive to the best interests of the children in these applications (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[10] Although the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration) [2002] 4 F.C. 358, made it clear that the best interests of the children is not a determinative factor, it is certainly an important factor that must be given due consideration. In Hawthorne v. Canada (Minister of Citizenship and Immigration) [2003] 2 F.C. 555, the Court of Appeal stated that the officer must give "a careful and sympathetic assessment of the best interests of the children".
[11] The applicant submitted that the H & C Officer makes very brief reference to the best interests of the applicant's child:
While I do believe that every child should benefit from the love and support from both parents, I am not satisfied that this child's best interests will not be met by his mother nor am I satisfied that the father cannot offer this love and support regardless of his whereabouts.
[12] The applicant submitted that the H & C Officer was in no way alert, sensitive and alive to the best interests of the applicant's child. The H & C Officer does not break down the factors that she took into account in assessing how the child's best interests could be met by the mother alone, other than to later state that there was no reason why the mother could not start working again to support her child.
[13] Moreover, the statement that the father can offer his love and support to the child regardless of his whereabouts is completely unreasonable in these circumstances and is not in accordance with the evidence that was before the H & C Officer. At the time of the decision, the child was 15 months old and in the critical stages of attachment and development. The child would be unable to communicate by telephone and would be unable to read or understand any letters written by the father. This separation will be devastating for a child of such a young age, who, by the time they are reunited, might not even recognize his father. This could permanently harm the attachment and bond between the applicant and his son.
[14] The applicant submitted that the sole reason for the H & C Officer refusing the H & C application appears to be because the father entered into a marriage and started a family knowing that he could be separated from his family. When assessing the best interests of the child, it is submitted that this factor should be irrelevant because it has nothing to do with the child's best interests. Moreover, this fact is not even true because the applicant got married before the new guidelines were promulgated and the immigration policy at that time was to give exemptions from the visa requirement to spouses in genuine marriages absent other circumstances that would warrant a refusal.
[15] Furthermore, the H & C Officer failed to consider the fact that the applicant's spouse does not have the support of her parents in assessing the best interests of the child. In the updated submissions, the applicant informed the H & C Officer that he and his wife had still not reconciled with his in-laws and that the family could therefore not be expected to receive any support from them.
[16] The applicant submitted that his parents are unable to provide emotional support for the child because they live in India. That is an aggravating factor in separating father and child because the child has no grandparents who are willing to help fill the void by the father's absence. The H & C Officer erred in failing to consider the absence of grandparents to provide emotional support to this child in the H & C Officer's assessment of the best interests of the child.
Issue 2: Failure to consider the totality of the evidence
[17] The applicant submitted that the H & C Officer misconstrued the evidence submitted by the applicant regarding his in-laws. Under the heading, Humanitarian and Compassionate Consideration, the H & C Officer states that, "subject also states his in laws will not support him if he returns". Then under the heading Decision and Rationale the Officer states, "With respect to not expecting support from his in laws, I note with interest that subject has his own parents that are obviously concerned with his well being therefore it is not unreasonable to conclude that his parents won't offer him the support he may need until such time as he resettles in India".
[18] The applicant submitted that his in-laws live in Canada and he never submitted to the H & C Officer that he required support from them for his return to India. The obvious relevance of the fact that the in-laws had not reconciled with him and his wife is that they could not be expected to be a source of financial or emotional support to their daughter and grandchild, thus causing the family undue hardship. The H & C Officer erred in misconstruing this evidence.
[19] The applicant submitted that the H & C Officer completely failed to assess the establishment of the applicant in her decision in determining whether there were sufficient humanitarian grounds to warrant an exemption. The only mention of establishment is under the heading Degree of Establishment where the H & C Officer notes that the applicant purchased a condominium and volunteers at the Sikh temple. There is no mention of the applicant's employment as an upholsterer for which he provided an employment letter. Establishment is not addressed by the H & C Officer at all in the decision and rationale portion.
[20] The applicant submitted that the IP5 guidelines state that the applicant's degree of establishment in Canada may be a factor to consider, particularly when evaluating cases where there is a separation of parents and children. The failure of the H & C Officer to assess the establishment of the applicant in her decision is an error in law.
Issue 3: Should application have been considered under the old guidelines
[21] The applicant did not rely on this issue at the hearing of the judicial review application.
Respondent's Submissions
Issue 1: Best interests of the child
[22] The respondent submitted that although the H & C Officer must always consider the best interests of the children, being "alert, alive and sensitive to them" when making the H & C decision, this does not mean that the presence of children is determinative of the application or that the children's best interests always outweigh other considerations.
[23] As long as the H & C Officer examines and weighs the interests of the children and does not minimize their best interests "in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines," it is not for the Court to re-examine the weight assigned to this factor by the H & C Officer. Whether an H & C Officer gave sufficient weight to the best interest of the child is to be determined on a case by case basis (Baker, supra,; Legault, supra).
[24] In Legault, supra, the Federal Court of Appeal, in considering the factor of children's interests, determined the following:
. . . 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.
[25] The respondent submitted that a review of the H & C Officer's Notes and Reasons reveal that the H & C Officer did consider the best interests of the child and the information presented to her in regard to the child. The applicant has failed to demonstrate in his materials that the H & C Officer failed to properly consider the information provided to her, nor that she ignored evidence or acted in bad faith.
[26] The respondent submitted that the Court of Appeal in Legault, supra, was clear in stating that the presence of children does not call for a certain result and noted that Parliament has not decided that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada.
Issue 2: Failure to consider the totality of the evidence
[27] The respondent submitted that although the H & C Officer's notes may not refer to each and every single piece of information submitted by the applicant, that is not required nor does it demonstrate that any relevant evidence was ignored. The H & C Officer's Notes and Rationale demonstrate a thorough grasp of the relevant evidence and understanding of the issues. Moreover, there is a presumption that all of the evidence was considered, which the applicant has not rebutted.
[28] The respondent submitted that the applicant's submissions to the H & C Officer dated December 6, 2002 state:
Mr. Sandhar's in laws have still not reconciled with him and his wife. As such he cannot expect any support from them. He and his wife are completely dependent upon each other. Under the circumstances, it is extremely important for Mr. Sandhar and his family, that he be allowed to stay in Canada for the processing of his application.
[29] Given the applicant's submissions, the H & C Officer's notation that the applicant does not expect support from his in-laws but that his own parents in India would be able to offer support is not unreasonable nor is it misconstruing of the evidence. The applicant is asking the Court to engage in a microscopic re-weighing of all the evidence in the case, which is not a legal basis for intervention.
Analysis and Decision
[30] Issue 1
Did the H & C Officer err in law by failing to properly consider the best interest of the applicant's child and by making unreasonable findings of fact in this regard?
The applicant's submissions dated September 30, 2003 in support of his H & C application stated, inter alia, that:
Mr. and Mrs. Sandhar are parents of newly born child, Harman Singh Sandhar, born on October 24, 2002. . . .
Mr. Sandhar is gainfully employed and his income is very important for sustaining his family together. As they have a young child, his wife's potential to work is limited because she has to put in a great deal of effort in raising the child. . . .
You are requested to take into consideration Federal Court Decision Baker vs M.C.I., which is relevant in this particular situation because a young child's welfare is involved. In case Mr. Sandhar has to leave Canada, it will adversely affect the circumstances of his wife and their child, since they will not be able to sustain themselves on their own and the family may have to sell their condominium and Mrs. Sandhar will also have financial problems meeting her day-to-day needs.
[31] The H & C Officer's analysis of the best interests of the child consisted of the following:
While I do believe that every child should benefit from the love and support from both parents, I am not satisfied that this child's best interests will not be met by his mother nor am I satisfied that the father cannot offer this love and support regardless of his whereabouts.
[32] I cannot tell from the Decision and Rationale of the H & C Officer what factors she took into consideration in determining that the child's best interests would be met by his mother. It is important to know why the H & C Officer came to this conclusion, especially when the H & C Officer also concluded that every child should benefit from the love and support of both parents.
[33] As well, if the H & C Officer's mention of "support" is taken to mean financial support, the H & C Officer has failed to address how removal of the principal source of financial support for the family would affect the best interests of the child. Additionally, how would the applicant be able to provide support "regardless of his whereabouts."? This was not addressed in the reasons. The applicant also stated in his supplementary information to the H & C Officer that due to the presence of the young child, his wife's potential to work is limited. How this would affect the best interest of the child was not addressed other than to state that his wife had been employed before having her child, and that the applicant had not provided sufficient evidence to show that his wife could not regain her employment.
[34] In my view, the H & C Officer's analysis of the best interests of the child does not show that she was "alert, sensitive and alive" to the best interests of the child as required by Baker, supra, and Hawthorne, supra.
[35] I have considered the respondent's submissions that the H & C Officer dealt with the material put forward by the applicant relating to the best interests of the child. Based on the above, I do not agree.
[36] Because of my finding on Issue 1, I need not deal with the other issues raised by the applicant.
[37] The application for judicial review is allowed and the matter is to be referred to a different H & C Officer for redetermination.
[38] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[39] IT IS ORDERED that the application for judicial review is allowed and the matter is to be referred to a different H & C Officer for redetermination.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
December 17, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1022-04
STYLE OF CAUSE: JASWINDER SINGH SANDHAR
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 2, 2004
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Lorne Waldman
FOR APPLICANT
Mielka Visnic
FOR RESPONDENT
SOLICITORS OF RECORD:
Lorne Waldman
Toronto, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT