Date: 20061220
Docket: IMM-235-06
Citation: 2006 FC 1524
Ottawa, Ontario, December 20, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
AMAPOLA DEL ALBA SEPULVEDA SOTO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] This
application for judicial review turns upon whether the officer who denied
Ms. Sepulveda Soto’s application for permanent residence from within Canada
on humanitarian and compassionate grounds met the duty upon her to be alert,
alive and sensitive to the best interests of Ms. Sepulveda's two Canadian
children. For the reasons that follow, notwithstanding the very able
submissions of counsel for the Minister, I have determined that the officer did
not meet this duty. The application for judicial review is, therefore,
allowed.
[2] Ms.
Sepulveda is a citizen of Chile who came to Canada in June 2000 on a visitor’s
visa. Since the expiration of that visa she has remained in Canada without
legal status. In June of 2002 Ms. Sepulveda married a Canadian citizen, Mr.
Brian Lang. Ms. Sepulveda and her husband are now parents of twin sons, born
in March 2003. Mr. Lang is currently ineligible to sponsor Ms. Sepulveda’s
application for permanent residence as a result of a criminal conviction for
assault (see paragraph 133(1)(e) of the Immigration and Refugee
Protection Regulations, SOR/2002-227). That ineligibility was said by Ms.
Sepulveda’s counsel to expire in October 2008. Mr. Lang advised the officer
that he supports his wife's application, and that he would sponsor her, but for
his ineligibility.
[3] The
submissions made in support of Ms. Sepulveda's humanitarian and compassionate
application focused in large part upon the impact on her children if they were
required either to leave Canada with their mother, or to remain in Canada with
their father. Mr. Lang is self-employed as a carpenter.
Ms. Sepulveda maintains the home, and cares for the children. It was
particularly noted that Mr. Lang generally works 12 hours a day, six days a
week so that he is, accordingly, unable to provide any day-to-day care for the
children.
[4] Before
turning to the officer's reasons, I review some settled principles of law that
govern humanitarian and compassionate applications where the interests of
children are raised:
- The officer's decision is to be
reviewed on the standard of reasonableness.
- "For the exercise of the
officer’s 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 [a humanitarian and compassionate] claim even when the 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 Ministers guidelines, the
decision will be unreasonable". See: Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at
paragraph 75.
- The presence of children does not
call for a certain decision. It is up to the officer to determine the
appropriate weight to be accorded to this factor, in all of the
circumstances of the case. It is not the role of the reviewing court to
re-weigh the evidence before the officer.
- The Ministerial guidelines, now
found in Chapter 5 of the Inland Processing Manual (IP 5) are of
assistance in determining whether an officer's decision is reasonable.
This is because the guidelines “are a useful indicator of what constitutes
a reasonable interpretation of the power” conferred by what is now
subsection 25(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (Act). See: Baker, at paragraph 72.
- Directions contained in IP 5
relevant to the present case include:
5.19 Best
interests of the child
[…]
Generally, factors relating to a
child’s emotional, social, cultural and physical welfare should be taken into
account, when raised. Some examples of factors that applicants may raise
include:
• the age of the child;
• the
level of dependency between the child and the H&C applicant;
• the
degree of the child’s establishment in Canada;
• the
child’s links to the country in relation to which the H&C decision is being
considered;
• medical
issues or special needs the child may have;
• the
impacts to the child’s education;
• matters
related to the child’s gender.
[…]
12.10 Separation
of parents and children
The removal of an individual
without status from Canada may have an impact on family members who do have the
legal right to remain (i.e., permanent residents or Canadian citizens). Other
than a spouse or partner, family members with legal status may include
children, parents and siblings, among others. The lengthy separation of family
members could create a hardship that may warrant a positive [humanitarian and
compassionate] decision.
In evaluating such cases,
officers should balance the different and important interests at stake:
• Canada’s
interest (in light of the legislative objective to maintain and protect the
health, safety and good order of Canadian society);
• family
interests (in light of the legislative objective to facilitate family
reunification);
• the
circumstances of all the family members, with particular attention given to the
interests and situation of dependent children related to the individual without
status;
• particular
circumstances of the applicant’s child (age, needs, health, emotional
development);
• financial dependence
involved in the family ties; and
• the
degree of hardship in relation to the applicant’s personal circumstances (see
Definitions, Section 6.6, Humanitarian or compassionate grounds).
[5] Turning
to the officer's decision, her consideration of the children's interests, in
its entirety, is as follows:
The applicant’s twin sons are
almost 3 years old. Information is not before me to show that they are in
receipt of specialized medical or educational services only available in Canada.
The decision to leave these children in Canada with their father or take them
to Chile is one that the applicant and her spouse will have to make. I note
that the children are young and they have not entered into formal education and
have the possibility of returning to Canada when they are older. Since the
father states that he supports them here, then it is hoped that he will support
them wherever they live. The issue Mr. Lang visiting these children in Chile
is also an option to maintain the relationship with these boys and their
father.
[6] In
my respectful view, these reasons fail to balance the interests at stake as
directed by section 12.10 of the IP 5.
[7] The
officer did note the young age of the children. However, factors relating to
their emotional, social and cultural welfare and their level of dependency upon
their parents were not, as directed by section 5.19 of the IP 5, considered.
It was trite for the officer to observe that the result of a negative decision
would be that the children would either have to remain in Canada with their
father, or travel to Chile with their mother. Missing was any assessment of
the impact of either alternative upon the children.
[8] The
officer was not obliged to render a positive decision. The officer was,
however, obliged by subsection 25(1) of the Act to consider the children's
interest as an important factor. In the present case, the officer failed to do
this in the manner directed by the Minister in IP 5.
[9] As
a result, the application for judicial review is allowed.
[10] Counsel
posed no question for certification, and I am satisfied that no question arises
on this record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is allowed and the
decision of the officer dated January 3, 2006 is hereby set aside.
2. The matter is remitted
for redetermination by a different officer.
“Eleanor R. Dawson”
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