Date: 20050505
Docket: IMM-9895-03
Citation: 2005 FC 628
BETWEEN:
TRICIA THOMAS
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] Ms Thomas applied for judicial review of a refusal to grant her H & C application. The H & C Officer found that despite being illegally in Canada for a lengthy period, she had not provided satisfactory proof of her "establishment" here. The Officer also considered the Canadian born children's best interests and found that at ages four and one, they could adapt to a new environment and could always return to Canada.
[2] The Applicant, a citizen of Grenada, arrived in Canada when she was 10 years old. Later, she supported herself by taking house-cleaning and baby-sitting jobs. She married in 1998 and had two children. Her husband was alleged to have been abusive to her and by the time that this case was before the Court, the couple were separated and the marriage was over.
[3] For purposes of this application I have considered the latest affidavit filed to which the Respondent objected. In any event there is nothing in the affidavit which affects this decision.
[4] Despite the very fair argument and best efforts of her counsel, I can find no basis upon which the Court should intervene in the Officer's decision. Read as a whole it was balanced, thorough and respectful of the Applicant's position. Despite the factual differences, this case is similar to my decision in Garwood v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 508.
[5] As her counsel put it - the Applicant had lived on the margins of our society. The Officer's finding that she had not proven sufficient "establishment" in Canada was a reasonable one - reasonableness simpliciter being the appropriate standard of review.
[6] The Officer took account of the children's best interest and was "alert and alive" to all the issues involving the children. The Officer did not substitute the test of "undeserved or disproportional hardship" for that of "best interests" when considering the children. The factors of hardship, adaptability, family relationships were factors in the overall analysis of "best interest of the children".
[7] The Officer decided not to conduct an interview - a decision within the Officer's discretion. There is no right to an interview, however, the absence of an interview may, in the appropriate circumstances, put the reasonableness of an H & C decision at risk. It did no do so in this instance.
[8] Therefore this application for judicial review will be dismissed. There is no question for certification.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9895-03
STYLE OF CAUSE: TRICIA THOMAS
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 27, 2005
REASONS FOR ORDER: PHELAN J.
DATED: MAY 5, 2005
APPEARANCES:
Mr. Gregory Lyndon FOR APPLICANT
Mr. Stephen Gold FOR RESPONDENT
SOLICITORS OF RECORD:
Gregory Lyndon
Toronto, Ontario FOR APPLICANT
John H. Sims
Deputy Attorney General of Canada FOR RESPONDENT
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