Date: 20000720
Docket: IMM-3785-99
BETWEEN:
VERDETTE D. JACK
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of an immigration officer to reject the applicant"s application for landing from within Canada on humanitarian and compassionate grounds. The decision is dated the 16th of July, 1999. No reasons for the decision were provided to the applicant.
[2] Computer-generated notes that form part of the tribunal record, and that, in accordance with the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)1 (hereinafter "Baker"), I take to be the reasons for the decision, record that the applicant entered Canada, from her home in Trinidad and Tobago, in November, 1988 to visit her mother, who was herself visiting Canada at the time. The applicant has remained here ever since, "...because of better opportunities." The applicant has three children under the age of eighteen, two of whom were born in Trinidad and Tobago and remain there in the care of the applicant"s mother. The third child, nine years of age at the time the notes were made, was born in Canada and lives here with his mother. The notes indicate that neither the applicant nor her child in Canada receive any support from the child"s father and that there is no strong bond between child and father. The notes recite only some of the history of the applicant"s employment in Canada, at low rates of pay, which history is documented, and efforts on the part of the applicant to upgrade her skills. Finally, the notes acknowledged the applicant"s church attendance and the fact that, apart from her youngest child, she has no family in Canada. By contrast, it is noted that the applicant"s parents and her two older children are in Trinidad and Tobago.
[3] The notes conclude with the following analysis and conclusion:
| Ms. Jack has been in Canada for over 10 years. She has been employed for most of her stay in CDA and has had some community involvement. She has a 9 year old CDN born child and two other minor children as well as her parents in her homeland. Ms. Jack fears that if she returns to Trinidad she would not be able to find employment and therefore would have difficulty supporting her children. Based on the information provided I am not satisfied that subject would face undue or disproportionate hardship should she return to her homeland. Although she has a CDN born child, she also has 2 minor children in her homeland as well as her parents. Her C.C. child is young enough to adjust to the change should she choose to take him with her and she does have a family to return to. |
| Based on all the foregoing, it is my opinion that there are insufficient H & C grounds to warrant a waiver of A9 (1) in this case. |
[4] The foregoing would appear to constitute the sum-total of the immigration officer"s analysis. Particularly worthy of note is the very limited reference to the Canadian born child. That reference is limited to a conclusion, without any supporting analysis, to the effect that the child "...is young enough to adjust to the change should she [the applicant] choose to take him with her...". 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; this, despite the acknowledgement that neither the applicant nor the Canadian born child receive any support from the child"s father and that there is no strong bond between the child and father.
[5] Worthy of note, though I conclude of less importance, is the lack of any reference whatsoever as to whether the applicant is qualified for consideration under the respondent"s "illegal de facto residents policy...".
[6] In I. G. v. Canada (Minister of Citizenship and Immigration)2, my colleague Mr. Justice Lemieux engaged in an extensive analysis of the impact of Baker on the duties of immigration officers on an application for landing from within Canada on humanitarian and compassionate grounds, particularly where there is a child or children who will be impacted by the decision. Following that analysis, in applying it to the facts before him, he wrote at paragraphs 37 to 39:
| In my view, it is evident the Supreme Court of Canada"s decision in Baker mandates a new perspective and a new emphasis by immigration officers when rendering humanitarian and compassionate decisions under the Immigration Act. Where children are involved the immigration officer must consider the children"s best interests as an important factor, must give those interests substantial weight and be alert and alive to them. While Baker focussed upon a consideration of children"s interests, what L"Heureux-Dubé J. said has wider application than just children"s interests but also embraced the interests of the adult applicant. |
| This aspect of Baker is clear when L"Heureux-Dubé J. stated at paragraph 72: |
| ...immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. [emphasis mine] |
| Not only does Baker require a more focussed approach by immigration officers, it places a new and more "hands-on" responsibility by a reviewing judge. A reviewing judge must take a "hard look" at the H & C decision, must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination in the evidentiary foundation. |
| Reviewing the decision of the Immigration Officer in this case I am struck by the fact the analysis of humanitarian considerations is exclusively in respect of the applicant, ... herself. In those reasons, there is an absence of consideration of the interests of either the Canadian or foreign born child. |
[7] At approximately the same time as my colleague wrote the foregoing, I was engaging in a similar analysis in Navaratnam v. Canada (Minister of Citizenship and Immigration)3. In paragraphs 12 to 14 of my reasons in that matter, I wrote:
| The Baker decision focussed extensively on the interests of children such as Jerusha. Madame Justice L"Heureux-Dubé concluded in paragraph 65: |
| In my opinion, the approach taken to the children"s interests shows that this decision was unreasonable in the sense contemplated in Southam, ... |
| Madame Justice L"Heureux-Dubé continued in paragraph 65: |
| The officer was completely dismissive of the interests of Ms. Baker"s children. ...I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section [subsection 114(2) of the Immigration Act], notwithstanding the important deference that should be given to the decision of the immigration officer. |
| I am satisfied that here, as in Baker, on the material before the Court, the immigration officer "...was completely dismissive of the interests of [Jerusha]". |
| Madame Justice L"Heureux-Dubé continued in paragraph 67: |
| 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. |
| In paragraph 73, Madame Justice L"Heureux-Dubé concluded: |
| 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. |
| I am satisfied that the same must be said on the facts of this matter and the same result must follow. |
| That is not to say that the decision under review was not reasonably open to the immigration officer, but rather that, in reaching the decision under review, the failure to emphasize the rights, interests, and needs of Jerusha and to provide special attention to childhood in the rationale eventually provided for the decision, resulted in a decision that, whatever its ultimate merit, was simply not "...alive, attentive, or sensitive..." to the interests of Jerusha and "...did not consider [her] as an important factor in making the decision, ..." with the result that the decision, on the analysis provided, was simply not reasonably open to the decision maker. [citation omitted] |
[8] I reach precisely the same conclusion on the facts of this matter as I reached in Navaratnam. To paraphrase my own words in the last paragraph quoted above from that decision, I am satisfied that the decision here under review must be set aside. That is not to say that the decision was not reasonably open to the immigration officer, but rather that, in reaching the decision, the failure to emphasize the rights, interests, and needs of the Canadian born child of the applicant and to provide special attention to childhood in the rationale eventually provided for the decision, resulted in a decision that, whatever its ultimate merit, was simply not "...alive, attentive or sensitive..." to the interests of the applicant"s Canadian born child and "...did not consider that child as an important factor in making the decision,..." with the result that the decision, on the analysis provided, was simply not reasonably open to the decision maker.
[9] Referring back to the quotation from I.G. v. Canada (Minister of Citizenship and Immigration, particularly the last paragraph thereof, I note that, as there, the immigration officer whose decision is here under review appears not to have focussed at all on the interests of the applicants" foreign born children to whom she provides support from Canada.
[10] For the foregoing reasons, this application for judicial review will be allowed, the decision of the immigration officer that is under review will be set aside and the matter will be referred back to the respondent for redetermination by a different officer.
[11] Neither counsel recommended certification of a question. No question will be certified.
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J. F.C.C.
Ottawa, Ontario
July 20, 2000
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