Date: 20060314
Docket: IMM-2104-05
Citation: 2006 FC 329
Ottawa, Ontario, March 14,
2006
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
MANJIT
SINGH JAKHU
Applicant
- and -
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1] This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision
by an immigration officer, dated March 22, 2005, which refused to grant the
applicant an exemption on humanitarian and compassionate (H&C) grounds to
permit inland processing of his permanent residence application.
[2] The
applicant, Manjit Singh Jakhu, seeks an order quashing the immigration
officer’s decision and remitting the matter for redetermination by a different
immigration officer.
Background
[3] The
applicant, a citizen of India, stated that he is a Punjabi Sikh who fled
India because he
was being persecuted by the police on suspicions that he had connections with
terrorists. In November 2000, police raided the applicant’s home and beat him
and his wife. They were taken to the police station for interrogation, where
his wife died of a heart attack. The applicant came to Canada in December
2000 and made an unsuccessful claim for refugee status. He left behind three
children in India in the care
of his parents.
[4] Soon after
arriving in Canada, the applicant met his second wife, a permanent resident of Canada who had also
been recently widowed. They were married on March 1, 2001. On April 6, 2001,
the applicant filed an application for a permanent resident visa from within Canada on H&C
grounds (the H&C application), which was supported by his wife’s
sponsorship application.
[5] On December
5, 2001, the applicant’s wife gave birth to their son, Herinder. The baby was
delivered prematurely by Caesarean section. The applicant’s wife had
difficulties looking after the baby while recovering from her operation, and
due to financial constraints, the applicant could not take time off work to
look after her. They did not have any family members in Canada and the
applicant’s wife’s parents were deceased. They applied, unsuccessfully, for a
visitor visa for the applicant’s mother to come to Canada to help out.
[6] Because of
these circumstances, it was decided that the applicant’s wife would travel to India with the
baby and stay with the applicant’s parents who could look after her and the
baby. It was expected that she would remain in India for four to
six months before returning to Canada. Unfortunately, on January 20, 2002, a
little over one week after arriving in India, she passed
away from complications related to her delivery, and baby Herinder was left in
the care of the applicant’s parents. Herinder returned to Canada with his
babysitter in March 2002. Since then, Herinder has been in the care of the
applicant, apart from a trip to India from December 23, 2002
to June 1, 2003, during which Herinder was cared for by the applicant’s
parents. Herinder is also cared for by his live-in babysitter.
[7] The H&C
application was referred to a Pre-Removal Risk Assessment (PRRA) officer to
assess the issue of risk upon return. This resulted in a negative risk opinion
dated November 8, 2004.
[8] On March 22,
2005, an immigration officer refused the H&C application. This is the
judicial review of that decision.
Reasons for
the Decision
[9] The
immigration officer considered the applicant’s degree of establishment in
Canada, the risk upon return to India, and the best interests
of the applicant’s four children. The officer made the following findings.
[10] Degree of
Establishment
The
immigration officer noted that the applicant has worked and amassed some
savings and formed connections within his community during the four years that
he has been in Canada. The immigration officer, however, was not
satisfied that the applicant’s personal ties to Canada are more or less
important than those he formed as a result of blood or community ties in his
country of origin, where his close family members reside. The immigration
officer stated that the applicant’s savings and job skills learned in Canada may assist
him during the period of adjustment and upon his return to his country of
origin.
[11] Risk upon
Return
The
immigration officer had read the negative risk opinion and noted the reply
submissions of counsel. The officer decided that the risk opinion was
reasonable and the issue of risk had been adequately dealt with.
[12] Best
Interests of the Children
The
immigration officer noted the unfortunate events of the death of the
applicant’s sponsor/second wife and the premature birth of their son, Herinder.
[13] Based on the
doctor’s assessment that was provided, the immigration officer found that
Herinder is progressing well and does not have a medical condition requiring
special medical attention. It was also noted he is cared for by a live-in
babysitter in Canada and a
reference letter was provided by the babysitter.
[14] The
immigration officer was satisfied that Herinder should be able to adjust to his
new surroundings if the applicant were to return to India with the
child. The immigration officer stated that Herinder appears to have adjusted to
previous travel and care arrangements when he travelled to India in 2002 and
2003 and was left in the care of the applicant’s parents in India. The
immigration officer found minimal documentary evidence attesting to the
applicant’s concern that his parents are unable to care for Herinder due to
their age. It was noted that the applicant’s father is 59 years old while his
mother is 56 years old, and they currently live with three sons and three
grandchildren in their family home. It was further noted that the applicant’s
wife and son had travelled to India for the express purpose of being cared for
by the applicant’s parents, and the applicant was able to make care
arrangements for his son in India. The immigration officer was not satisfied
that the applicant could not make similar care arrangements if he were to take
Herinder with him to India.
[15] The
immigration officer found that Herinder’s best interests would be served by
reuniting him with his close and extended family upon his return to India. Herinder
would benefit from the care, guidance, support and rebuilding of family ties
with his close and extended family, which he had enjoyed during his past stays
in India. It was also
noted that Herinder had travelled with his babysitter.
[16] With respect
to the applicant’s three other children in India, who are all
under the age of 12, the immigration officer stated that they had enjoyed a
relationship with Herinder while he was in India. The
immigration officer found that the best interests of the applicant’s three
children in India would be
served upon the applicant’s return to his country of origin, because the
children would enjoy the physical presence, care and guidance of their natural
father.
[17] The
immigration officer was therefore not satisfied that the applicant would
experience undue, undeserved or disproportionate hardship if required to apply
for a permanent resident visa in the normal manner outside of Canada.
Issues
[18] The applicant submitted the
following issues for consideration:
1. Did
the immigration officer fail to be alert, alive and sensitive to the best
interests of the applicant’s Canadian born child and his other children?
2. Did
the immigration officer fail to properly consider the applicant’s degree of
establishment in Canada?
Applicant’s
Submissions
[19] The applicant
submitted that the jurisprudence required the officer to be alive, alert and
sensitive to the best interests of the children involved.
[20] The applicant
submitted that the best interests of a child cannot be considered in a vacuum
but should be contextualized and determined based on the specific circumstances
of the case (see, generally, Momcilovic v. Canada (Minister of
Citizenship and Immigration), 2005 FC 79 and Qureshi v. Canada
(Minister of Citizenship and Immigration) (2000), 196 F.T.R. 85 at
paragraph 18 (T.D.)). In the present case, we are dealing with a Canadian born
child who has lost his mother and is being raised by his father and a female
caregiver who lives in the same house as him.
[21] The applicant
submitted that the immigration officer gave short shrift to the role of Herinder’s
caregiver in his life and the hardship he would endure if he were to be
separated from her. It was submitted that she is currently the only maternal
influence in his life, and has travelled with him to India and back. It
was submitted that Herinder has formed a deep attachment to her, but the
immigration officer did not consider the impact that separation will have on
the child. The applicant submitted that the immigration officer erred by
failing to take this important factor into consideration in the assessment of
the interests of the child (see Momcilovic, above).
[22] The applicant
further submitted that the immigration officer erred in the analysis of the
degree of establishment by failing to consider that the applicant had formed
attachments in Canada after he met and married his second wife. It
was submitted that as the applicant’s wife was a permanent resident of Canada,
he reasonably expected that he would be sponsored by his wife and allowed to
remain in Canada permanently.
He therefore conducted his affairs with a view toward his permanent
establishment in Canada, and established much deeper roots in Canada than he
would have had he not been eligible to be sponsored by his wife. The applicant
submitted that his firm establishment was attested to by the numerous letters
from friends, co-workers and community leaders.
[23] The applicant
submitted that the fact that he may be able to start his life over again in India should not
have been relevant to the immigration officer’s assessment. It was submitted
that given the unique context in which this application was made, after the
sudden death of his spouse/sponsor, and given his establishment in Canada on
the basis that he was eligible for sponsorship, the immigration officer was
bound to evaluate whether applying from abroad would cause the applicant
disproportionate hardship.
Respondent’s
Submissions
[24] The
respondent submitted that the applicant is not entitled to a particular
outcome. To successfully challenge a negative H&C decision, the applicant
must show that the immigration officer erred in law, acted in bad faith, or
proceeded on an incorrect principle (see Tartchinska v. Canada
(Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161 at
paragraph 17 (T.D.)). The standard of review is that of reasonableness (see Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at 857 to 858).
[25] The
respondent submitted that the weighing of relevant factors is not the function
of a court reviewing the exercise of ministerial discretion. So long as the
totality of the evidence was properly examined, the question of weight remains
entirely within the expertise of the immigration officer (see Lee v. Canada (Minister of
Citizenship and Immigration), 2005 FC 413 at paragraphs 7 and 13).
[26] In response
to the applicant’s argument that the immigration officer gave short shrift to
the role of the caregiver and the impact of separation on the child, the
respondent submitted that the applicant failed to provide evidence of any
consequences the child might face if separated from his caregiver. It was
submitted that the brief letter provided by the caregiver only makes reference
to the child to state that she is the “baby boy’s Baby sitter”. The respondent
submitted that the immigration officer did consider the minimal evidence
provided regarding the caregiver by noting the reference letter from the
caregiver. It was submitted that the immigration officer need not go further in
the analysis.
[27] The
respondent submitted that the immigration officer’s reasons illustrate that she
was alive, alert and sensitive to the interests of the applicant’s child. The
respondent submitted that in reaching a conclusion that an H&C exemption
was unwarranted, the immigration officer balanced the interests of the affected
child with the other factors in the application, such the applicant’s
establishment in Canada and his and his son’s family ties to India.
[28] The
respondent submitted that the officer’s reasons demonstrate a thorough consideration
of the applicant’s establishment in Canada. It was submitted that
hardship suffered by the applicant must be more than the mere inconvenience or
the predictable costs associated with leaving Canada (see Irimie
v. Canada (Minister of
Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 at paragraphs
12, 17 and 26 (T.D.)). The respondent submitted that on the facts of this case,
it cannot be said that it was unreasonable for the officer to determine that
the applicant would not suffer undue or undeserved hardship if he were to apply
to immigrate to Canada through the normal procedure.
Analysis and
Decision
[29] Standard of Review
The appropriate standard
of review for a decision of an immigration officer on an H&C application is
reasonableness simpliciter (see Baker, above).
[30] Issue 1
Did the immigration officer fail to be
alert, alive and sensitive to the best interests of the applicant’s Canadian
born child and his other children?
Subsection 25(1)
of IRPA requires the decision-makers in H&C applications to take into
account the best interests of children directly affected.
[31] In the present case, the applicant’s son, Herinder,
is a child directly affected by the decision. Herinder was being cared for by a
friend’s mother during the day when the applicant was at work. The officer
noted in her notes taken at the interview:
. . . I then noticed child appears
comfortable with the babysitter.
[32] Submissions presented to the officer contained the following extract:
It is incumbent on you to
consider Mr. Jakhu’s son. In his short life, he has already known too much
tragedy. He has never known the love and warmth of his mother. His father has
been the centre of his world for as long as he can remember. They have an
exceptionally strong bond, and Mr. Jakhu spends every minute of his free time
with this son. During the day Mr. Jakhu’s son is looked after by a friend’s
mother in the house where he rents a room. Mr. Jakhu’s son is also very
attached to her. She is the only maternal figure in his life, and he has a deep
attachment to her.
In Canada, he has stability and a sense of
belonging and family. He will be starting school in September with his
playmates and cannot wait. Though he has lost his mother, he is a happy well
adjusted young boy, who has opportunities in Canada, that he would certainly
not have in India.
[33] The notes and the submissions indicate to me that the applicant’s
son had a good relationship with his babysitter. From the record, I would agree
that she is the only maternal figure that he has.
[34] I have reviewed the officer’s decision and I can find no analysis or
discussion of the possible effect on Herinder due to his separation from his
babysitter. In my view, the officer must at least address this evidence in reaching
her decision. I believe it is particularly so in this case as the officer
stated:
I have carefully reviewed all
of the information presented and available to me and I do not make this
decision lightly.
[35] I am of the opinion that the decision is not reasonable as the
information concerning the babysitter does not appear to have been considered.
I cannot know what the officer’s decision might have been had this analysis
been carried out.
[36] As a result, the application for judicial review is allowed and the
matter is remitted to a different officer for redetermination.
[37] Because of my finding on Issue 1, I need not deal with the remaining
issue.
[38] Neither party wished to submit a proposed serious question of
general importance for my consideration.
JUDGMENT
[39] IT IS ORDRED that the application for judicial review is
allowed and the matter is remitted to a different officer for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
An
H&C application is permitted under section 25 of IRPA, which provides:
|
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister's own initiative, examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status
or an exemption from any applicable criteria or obligation of this Act if the
Minister is of the opinion that it is justified by humanitarian and
compassionate considerations relating to them, taking into account the best
interests of a child directly affected, or by public policy considerations.
(2)
The Minister may not grant permanent resident status to a foreign national
referred to in subsection 9(1) if the foreign national does not meet the
province's selection criteria applicable to that foreign national.
|
25.
(1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier
le cas de cet étranger et peut lui octroyer le statut de résident permanent
ou lever tout ou partie des critères et obligations applicables, s'il estime
que des circonstances d'ordre humanitaire relatives à l'étranger — compte
tenu de l'intérêt supérieur de l'enfant directement touché — ou l'intérêt
public le justifient.
(2)
Le statut ne peut toutefois être octroyé à l'étranger visé au paragraphe 9(1)
qui ne répond pas aux critères de sélection de la province en cause qui lui
sont applicables.
|
Email this Content