Date: 20041208
Docket: IMM-10164-03
Citation: 2004 FC 1713
Toronto, Ontario, December 8th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
TAE EUN KIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present application concerns the reasonableness of a Humanitarian and Compassionate decision with respect to a Korean mother, and in particular, the best interests of her Canadian born infant.
[2] In her self-represented argument of October 29, 2003, the Applicant made the following statement:
As a young single mother in Korea, due to their cultural custom that both Joshua and I will be ridiculed if we were to go to Korea. The society does not allow for young single mothers to establish themselves in the society. Also my parents and a younger sister who is only 14 years old will be looked about with sneers and mockery. They have been so supportive of me helping me to establish myself in Canada during these difficult times; I do not want to humiliate them further by returning to Korea. A family honour is very important in Korean culture and although I have no honour left in me, I do not wish to ruin my family's honour by returning to Korea and exposing my misfortune. I do not wish to be a burden to my parents any longer. I have already embarrassed and dishonoured them so much that at time I feel that it will be easier for everyone if I disappeared somehow....
(Applicant's Application Record, p. 70)
[3] With respect to the Applicant's statement, in the Humanitarian and Compassionate decision of November 18, 2003, the Immigration Officer states as follows:
Ms. Kim states it will be hard to return to Korea as a single mother. She has provided insufficient evidence to back her opinion that she will be ridiculed as a single mother in Korea.
Korea is a large country. Ms. Kim lives without her family in Canada and could return anywhere in Korea and thus not cause embarrassment to her family. She has sufficient funds with which to begin a life in Korea.
I have considered the best interests of the Canadian child. Ms. Kim has full custody of her child. The ex-husband did not even show up in court to obtain visitation. The child is young and will easily assimilate in Korea. The child's best needs would be met with his mother.
(Applicant's Application Record, p.8)
[Emphasis added]
[4] Counsel for the Applicant argues that, in reaching the decision, the Immigration Officer failed to meet the test in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; that is, being "alert, alive, and sensitive to" the best interests of the Applicant's child. Counsel for the Respondent replies that, given the limited evidence supplied by the Applicant with respect to the best interests of her child, the Immigration Officer's decision is most reasonable.
[5] With respect to the evidence argument, Counsel for the Respondent cites the following paragraphs from the Federal Court of Appeal's decision in Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 (F.C.A.):
¶ 5 An immigration officer considering an H & C application must be "alert, alive and sensitive" to, and must not "minimize", the interests of children who may be adversely affected by a parent's deportation: [1999] 2 S.C.R. 817=">Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.
.....
¶ 8 H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. In our view, Mr. Owusu's H & C application did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them.
[Emphasis added]
Counsel for the Respondent argues that the evidence supplied by the Applicant is not "sufficiently clear", is essentially "no evidence", and does not "adequately raise" the best interests of her child to warrant a different determination than that provided.
[6] It is agreed that, while no obligation exists to do so, it is open to an immigration officer to ask for further evidence on an important issue raised in application material submitted.
[7] It is agreed that the issue for determination in the present judicial review is whether the Applicant did "adequately raise" the impact of her potential deportation on the best interests of her child. In my opinion the answer to this question is "yes".
[8] In my opinion, the statement made by the Applicant above quoted is so unique, and of such importance, that it is unreasonable for the Immigration Officer to deal with it in the cryptic way it was. In my opinion, the Applicant's statement is not an opinion, it is a statement of fact. If properly accepted as a statement of fact, the threat to the child of ridicule in Korea should certainly have caused the Immigration Officer to pause, contemplate, and probably ask for further information. In my opinion, given the Applicant's statement, it is erroneous to say that the child "will easily assimilate in Korea".
[9] On this basis, I find that the Immigration Officer's decision is unreasonable.
ORDER
Accordingly, I set aside the Immigration Officer's decision and refer the matter back to a different Immigration Officer for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10164-03
STYLE OF CAUSE: TAE EUN KIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 7, 2004
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: DECEMBER 8, 2004
APPEARANCES BY:
Mr. Edward F. Hung
FOR THE APPLICANT
Mr. Michael Butterfield
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Edward F. Hung
Barrister & Solicitor
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20041208
Docket: IMM-10164-03
BETWEEN:
TAE EUN KIM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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