Date: 20100211
Docket: IMM-3815-09
Citation: 2010 FC 142
Ottawa, Ontario, February 11,
2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
AMIN PIYARALI BHAI KHOJA
MINAZ SADRUDINBHAI MAMDANI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
When
applying the standard of reasonableness, a court must show deference to the
reasoning of a decision under review and must be cognizant of the fact that certain
questions before administrative entities and tribunals do not lend themselves
to one specific result. As the Supreme Court of Canada explained,
reasonableness is concerned with “the existence of justification, transparency
and intelligibility within the decision-making process”, as well as “whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v. New
Brunswick,
[2008] SCC 9, [2008] 1 S.C.R. 190 at para. 47).
II. Introduction
[2]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a May 28, 2009
decision of an immigration officer on a humanitarian and compassionate
(H&C) grounds application refusing to grant an exemption from the
requirement that the Applicants must apply for permanent residence from outside
of Canada.
III. Background
[3]
The
Applicants, Mr. Amin Piyarali Bhai Khoja and his wife, Mrs. Minaz Sadrudinbhai Mamdani,
came to Canada from the state of Gugarat, India. The
Applicants belonged to the minority Ismaili Muslim community in Gugarat.
Gugarat has been the scene of brutal religious violence in the past. In 2002,
riots broke out in Gugarat which led to the Applicant, Mr. Khoja, being beaten
by a Hindu mob. In May 2005, armed gunmen broke into the Applicants’ home,
robbed them and injured Mrs. Mamdani. The injuries resulted in Mrs. Mamdani
suffering a miscarriage.
[4]
The
Applicants came to Canada on visitor’s visas in 2005, to hear the Aga Khan, the
spiritual leader of Ismailis, speak in Toronto, but also
with the desire to leave India permanently (Tribunal Record (TR) at pp.
139, 360).
[5]
On
June 12, 2005, the Applicants were detained by the Canadian Border Service
Agency (CBSA) for attempting to cross the border into the United
States
without valid visas.
[6]
The
Applicants made a refugee claim on July 19, 2005, which was declared abandoned
on October 4, 2006.
[7]
The
Applicants’ son, Kamish Khoja, was born on May 8, 2006.
[8]
Mr.
Khoja injured his back at work on August 7, 2007 and is undergoing
rehabilitation.
IV. Decision under Review
[9]
The
immigration officer was not persuaded that the Applicants would suffer unusual
and undeserved or disproportional hardship due to risk if they were returned to
India.
[10]
The
immigration officer accepted the evidence that Mr. Khoja was beaten during the
riots in 2002 and that the Applicants were robbed in May 2005, an incident
which resulted in Mrs. Mamduri being injured and suffering a miscarriage.
The immigration officer was not satisfied that the May 2005 attack was
perpetrated by Hindu extremists, as they found a lack of corroborative evidence
on this point. As a result of this finding, the immigration officer found there
was insufficient evidence establishing a personalized risk from Hindu
extremists throughout the entirety of India.
[11]
The
immigration officer found that a number of security options were open to the
Applicants in India, including requesting state protection and moving to a part
of the country with a large Muslim population, such as Hyderabad.
[12]
The
immigration officer examined the best interests of the Applicants’
Canadian-born son, Kamish Khoja, and held that he would not face disproportionate
hardship if he relocated to India with his parents. The immigration officer
held that medical care in India is adequate to deal with Kamish’s
condition and that he would likely quickly adjust to life in India, especially
with the help of family members.
[13]
The
officer also noted that the Applicants chose to have a child in Canada at a time
when their immigration status was insecure.
[14]
The
immigration officer held that although the Applicants provided some evidence of
establishment in Canada, this connection does not mean that they would suffer
disproportionate hardship if returned to India. The
immigration officer also noted that the majority of the Applicants’ family
reside in India and could be
expected to provide support and assistance in their attempts to re-establish
their lives in India.
[15]
The
immigration officer noted that Mr. Khoja was injured on the job and was
presently undergoing rehabilitation. The immigration officer found that there
exist adequate rehabilitation services in India to assist
Mr. Khoja in finding employment.
[16]
The
immigration officer also found that Mr. Khoja possesses skills that would
assist in finding employment in India, such as an
understanding of Gugarati and English, education and work experience. The
immigration officer also held that Mr. Khoja received over $35,000 in compensation
for his injury and that these funds would aid in the re-establishment of his
family.
V. Issues
[17]
Did
the immigration officer make an unreasonable assessment of the best interests
of the child?
a)
Did
the immigration officer make an unreasonable decision by failing to take into
account the impact of the education system in India on the
child’s best interests?
b)
Did
the immigration officer make an unreasonable decision when it determined the
Applicants had an Internal Flight Alternative (IFA) in Hyderabad?
c)
Was
the immigration officer’s assessment of the long-term ability of the Applicant,
Mr. Amin Khoja, to support his family reasonable?
d)
Did
the immigration officer err by noting that the Applicants chose to have a child
at a time when their status in Canada was uncertain?
e) Did the
immigration officer err by stating that the child and his parents could apply
for a visa to come to Canada to seek medical treatment for the child?
VI. Relevant Legislative Provisions
[18]
H&C determinations
are made pursuant to subsection 25(1) of the IRPA:
|
Humanitarian and compassionate considerations
25.
(1) The
Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or on request of a foreign national outside
Canada, 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.
|
Séjour pour motif d’ordre humanitaire
25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se
conforme pas à la présente loi, et peut, de sa propre initiative ou sur
demande d’un étranger se trouvant hors du Canada, 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.
|
VII. Positions of the Parties
Applicant’s Position
[19]
For
the purpose of the officer who determines whether to grant an
application under H&C grounds, the Applicants submit that the Federal Court
has grafted additional indicia of reasonableness to the applicable legal test.
[20]
The
Applicants submit that the officer must “consider the children’s best interests
as an important factor, give them substantial weight and be alert, alive and
sensitive to” the best interests of the child. The Applicants cite the case of Kolosovs
v. Canada (Minister of Citizenship and Immigration), 2008 FC 165, 166 A.C.W.S. (3d) 352 where the
Federal Court elaborated on the terms “alert, alive and sensitive” in the
context of the best interests of the child and submit that the officer was
obliged to use the definitions as specified in this case when assessing the
best interests of the child (Kolosovs at para. 8).
[21]
The
Applicants also cite the Federal Court of Appeal in the cases of Legault v.
Canada (Minister of Citizenship and Immigration), 2002 FCA 125, 288 N.R. 174 and Hawthorne
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555 for the
proposition that the officer was obliged to identify and define the child’s
interests and to examine them with “a great deal of attention” (Hawthorne
at para. 32). If the child’s interests are “minimized” in a manner that is
inconsistent with Canada’s humanitarian tradition, the decision will be
unreasonable. Also, the Applicants cite the Federal Court of Appeal in the case
of Hawthorne for the proposition that the interests of the child must be
specifically identified and examined attentively (Hawthorne at para. 32).
[22]
The
Applicants argue that an officer must not be dismissive of the interests of a
child, or conduct a “trite analysis” of the interests. The Applicants also
submit that it is an error for an officer not to consider, or assess the impact
on the emotional or physical well-being of the child in addition to any special
needs in the child’s regard.
[23]
According
to the Applicant, the officer “must incorporate” the Minister’s Guidelines
contained in the Inland Processing 5 Manual (IP 5 Manual) into its analysis of
the best interests of the child and it is a reviewable error to fail to address
the Guidelines.
1a) Did the immigration
officer make an unreasonable decision by failing to take into account the
impact of the education system in India on the child’s best interests?
[24]
The
Applicants submit the officer failed to assess the best interests of Kamish
with regard to the education he could expect to receive in India and that
which he could expect to receive in Canada. The Applicants cite
evidence showing that India does not provide free, universal primary
education and that only 60% of children aged 6-14 are enrolled in school and
also that Muslim children have lower levels of school attendance than children
of other groups.
[25]
The
Applicants submit the officer erred by failing to address this issue.
Specifically, the Applicants argue that the failure of the officer to address
the issue of education violates the requirement that an officer must assess the
impact on the emotional or physical well-being and special needs of the child.
Also, the Applicants submit that paragraph 5.19 of the IP 5 Manual state that
an officer must take into account the impact on the child’s education when
assessing an H&C application.
1b) Did the immigration
officer make an unreasonable decision when it determined the Applicants had an
IFA in Hyderabad?
[26]
The
Applicants submit the officer’s finding that the Applicants had an IFA in Hyderabad is
unreasonable on three grounds. First, the officer did not determine whether Hyderabad was a safe
IFA for Kamish. Second, the Applicants provide evidence showing that Hyderabad is not a
safe city, as it has recently been the scene of acts of terrorist violence.
Third, the Applicants state the officer erred by failing to consider the best
interests and safety of Kamish independently of his family’s safety. The
Applicants also submit the officer erred by failing to cite evidence that ran
contrary to its determination that Hyderabad is safe.
1c) Was the immigration
officer’s assessment of the long-term ability of the Applicant, Mr. Amin Khoja,
to support his family reasonable?
[27]
The
Applicants argue that the officer failed to adequately assess the long-term
ability of the Applicant, Mr. Amin Khoja, to support his family, especially the
medical treatment for and education of Kamish.
[28]
According
to the Applicants, the officer made an unreasonable decision in determining
that Mr. Khoja would be able to find work in India in spite of his disability,
as well as to receive assistance from the government of India.
[29]
The
Applicants argue the officer erred in making these determinations by only
selectively examining the evidence regarding the treatment of disabled persons
in India.
1d) Did the immigration
officer err by noting that the Applicants chose to have a child at a time when
their status in Canada was uncertain?
[30]
The
Applicants cite the case of Mulholland v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 597, 206 F.T.R. 77 for the proposition
that the best interests of the child must be given substantial weight in spite
of the fact that his or her parents chose to have a child at a time when their
status in Canada was uncertain (Mulholland at para. 29).
1e) Did the immigration
officer err by stating that the child and his parents could apply for a visa to
come to Canada to seek medical treatment for
the child?
[31]
The
Applicants submit the officer’s finding that Kamish’s parents could apply for a
visitor’s visa to return to Canada to obtain medical treatment for Kamish was
“sheer speculation”, as it is highly unlikely that such a request would be
granted in light of their immigration history.
[32]
The
Applicants conclude by stating that the officer did not adequately address all
of the factors put forward by the Applicants with respect to the best interests
of Kamish. Specifically, the Applicants state the officer erred by not
conducting an independent analysis of Kamish’s physical well-being should he relocate
to Hyderabad, nor any
analysis of his access to education.
Respondent’s Position
[33]
The
Respondent cites the cases of Hawthorne and Legault, above, for
the proposition that the best interests of the child are just one factor to be
weighed when making a decision under subsection 25(1) (Legault at para.
12, Hawthorne at para.
32). The Respondent submits this Court is not to re-weigh the factors considered
by the H&C officer and that an officer applies the correct test when he or
she examines the best interests of the child “with care.”
1a) Did the immigration
officer make an unreasonable decision by failing to take into account the
impact of the education system in India on the child’s best interests?
[34]
The
Respondent submits the officer did not err by failing to address the issue of
Kamish’s education. The Respondent cites the case of Ebebe v. Canada (Minister of
Citizenship and Immigration), 2009 FC 936, [2009] F.C.J. No. 1146
(QL)
where the Federal Court held that the IP 5 Manual is a useful indicator of the
reasonableness of a decision, but it is not binding on the officer. The court
also held that an applicant has no expectation of a particular outcome or the
application of any legal test in an H&C decision (Ebebe at para.
10).
1b) Did the immigration
officer make an unreasonable decision when it determined the Applicants had an IFA
in Hyderabad?
[35]
The
Respondent submits the officer did not have to assess the safety of Hyderabad for Kamish,
as the Applicants have not provided any evidence to demonstrate that Kamish
would be treated differently than his parents if they were to relocate to India. The
Respondent also submits the Applicants have provided no evidence to demonstrate
they would not be safe in Hyderabad.
1c) Was the immigration
officer assessment of the long-term ability of the Applicant, Amin Khoja, to
support his family reasonable?
[36]
The
Respondent submits it was not unreasonable for the officer to find that Mr.
Khoja could find work in India. The Respondent accepts that Mr. Khoja’s
injury may prevent him from performing heavy lifting, but submits there was no
evidence before the officer that he could not do other work. Also, the Respondent
notes there was evidence before the officer relating to Mr. Khoja’s
skills, such as his education, work experience and command of English and
Gugarati, all of which add to his employability.
1d) Did the immigration
officer err by noting that the Applicants chose to have a child at a time when
their status in Canada was uncertain?
[37]
The
Respondent argues the Applicants’ use of Mulholland, above, is incorrect
on the grounds that Mulholland was interpreted by the Federal Court of
Appeal in Kisana v. Canada (Minister of Citizenship and Immigration),
2009 FCA 189, 392
N.R. 163 to
stand for the proposition that it is incorrect for an officer to effectively
ignore the interests of the child because it was the parents’ “choice” to have
a child during a transitory time in their lives. The Respondent submits this
did not happen in this case, as the officer took the best interests of the
child into consideration.
1e) Did the immigration
officer err by stating that the child and his parents could apply for a visa to
come to Canada to seek medical treatment for
the child?
[38]
The
Respondent argues it was reasonable for the officer to find the Applicants
could obtain visas to return to Canada for further medical
treatment for Kamish. The Respondent also submits the officer reasonably found
that there is adequate medical care in India and the
Applicants have not provided evidence to challenge this finding.
VIII. Standard of Review
[39]
The
parties agree that the standard of review for an H&C decision is
reasonableness. Justice Robert Barnes of the Federal Court confirmed that
reasonableness is the proper standard of review in the case of Ebebe,
above.
[40]
When
applying the standard of reasonableness, a court must show deference to the
reasoning of the decision under review and must be cognizant of the fact that
certain questions before administrative entities and tribunals do not lend
themselves to one specific result. As the Supreme Court of Canada explained,
reasonableness is concerned with “the existence of justification, transparency
and intelligibility within the decision-making process”, as well as “whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at para.
47).
IX. Analysis
[41]
It
is important that this Court properly orient itself in the law and prevailing
jurisprudence when reviewing a decision of this nature. A logical starting
point for a discussion of the best interests of the child is the case of Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
89 A.C.W.S. (3d) 777 wherein the Supreme Court of Canada held that an H&C
decision, while discretionary, must be made with sensitivity to the best
interests of the child (Baker at para. 71). The Supreme Court also held
that the Minister’s Guidelines are useful indicators of whether a decision is a
reasonable exercise of discretion (Baker at para. 72). The Supreme Court
ruled that the decision under review was unreasonable because the officer
disregarded the interests of the Canadian-born children (Baker at para.
73). The Supreme Court concluded its discussion on the best interests of the
child by stating:
[75] … The principles
discussed above indicate that, for the exercise of the 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 an H & C claim even when 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 Minister’s guidelines, the decision will be
unreasonable.
[42]
Lower
courts have clarified the approach to be taken when H&C officers assess the
best interests of the child. The most recent pronouncement from the Federal
Court of Appeal is the case of Kisana, above, where the court cited the
judgment of Justice Robert Décary in the earlier case of Hawthorne and held:
[4] The "best interests of the
child" are determined by considering the benefit to the child of the
parent's non-removal from Canada as well as the hardship the child would suffer
from either her parent's removal from Canada or her own voluntary departure should she wish
to accompany her parent abroad. Such benefits and hardship are two sides of the
same coin, the coin being the best interests of the child.
[5] The officer does not assess the best
interests of the child in a vacuum. The officer may be presumed to know that
living in Canada can offer a child many opportunities and that, as a general
rule, a child living in Canada with her parent is better off than a child
living in Canada without her parent. The inquiry of the officer, it seems to
me, is predicated on the premise, which need not be stated in the reasons, that
the officer will end up finding, absent exceptional circumstances, that the
"child's best interests" factor will play in favour of the non-
removal of the parent. In addition to what I would describe as this
implicit premise, the officer has before her a file wherein specific reasons are
alleged by a parent, by a child or, as in this case, by both, as to why
non-removal of the parent is in the best interests of the child. These specific
reasons must, of course, be carefully examined by the officer.
[6] To simply require that the officer
determine whether the child's best interests favour non-removal is somewhat
artificial - such a finding will be a given in all but a very few, unusual
cases. For all practical purposes, the officer's task is to determine, in
the circumstances of each case, the likely degree of hardship to the child
caused by the removal of the parent and to weigh this degree of hardship
together with other factors, including public policy considerations, that
militate in favour of or against the removal of the parent.
[7] The
administrative burden facing officers in humanitarian and compassionate
assessments - as is illustrated by section 8.5 of Chapter IP 5 of the Immigration
Manual reproduced at para. 30 of my colleague's reasons - is demanding
enough without adding to it formal requirements as to the words to be used or
the approach to be followed in their description and analysis of the relevant
facts and factors. When this Court in Legault stated at paragraph 12
that the best interests of the child must be "well identified and
defined", it was not attempting to impose a magic formula to be used by
immigration officers in the exercise of their discretion. (Emphasis added).
[43]
The
cases of Hawthorne and Legault, above, state that an applicant is
not entitled to a positive decision even if the best interests of the child would
favour such an outcome. In the majority of circumstances, the best interests of
the child would favour residing in Canada with his or her parents, but this is only one
factor to be weighed by the H&C officer in reaching a decision.
[44]
The
Court is mindful of the decisions of the Federal Court regarding the best
interests of the child, but also acknowledges that the Federal Court of
Appeal’s judgments in Kisana and Hawthorne, above, are the binding
authorities on the subject.
1a) Did the immigration
officer make an unreasonable decision by failing to take into account the
impact of the education system in India on the child’s best interests?
[45]
As
has been stated by the Respondent, the Court is not to re-weigh the factors
considered by the H&C officer. That being said, the question is whether the
officer failed to consider a relevant factor and whether that failure
constitutes a reviewable error.
[46]
The
Court finds that the officer’s failure to explicitly consider Kamish’s
education does not render the decision unreasonable. The officer wrote
extensively about the best interests of Kamish and examined several different
factors including medical care, family support, parental care, establishment in
Canada and the hardship that
moving to India might cause.
[47]
It
is possible for an officer to be “alive, alert and sensitive” to the best
interests of a child without explicitly examining everything related to the
growth and development of a child. As the Federal Court of Appeal stated in Hawthorne, above, there is no
“magic formula” to show that an officer was alert, alive and sensitive to the
best interests of the child (Hawthorne at para. 7). A decision made
under subsection 25(1) of the IRPA is discretionary and the standard of
reasonableness dictates that this Court is to have respect for the reasoning of
the decision-maker.
[48]
The
Court does not find that an officer making a decision on H&C grounds
must incorporate the IP 5 Manual into his or her analysis of the best interests
of the child. In the case of Hawthorne, above, the Federal Court of
Appeal refused to impose formal requirements regarding the words to be used “or
the approach to be followed in their description and analysis of the relevant
facts and factors” (Emphasis added) (Hawthorne at para. 7). It is true
that the IP 5 Manual may be used to inform a court’s review of a decision;
however, the decision-making process in H&C is discretionary and cannot be
constrained in the manner that is suggested by the Applicants.
1b) Did the immigration
officer make an unreasonable decision when it determined the Applicants had an IFA
in Hyderabad?
[49]
It
is noted that the case of Alie v. Canada (Minister of Citizenship and
Immigration), 2008 FC 925, [2008] F.C.J. No. 1149 states that it was unreasonable for the officer to determine
the best interests of the child by considering the hardship that removal from
Canada would have on the family unit (Alie at para. 8). The court held
that the determination of the officer in regard to the best interests of the
child required focus on the child and hardship that removal of the family would
have on her (Alie at para. 9). Likewise, in the case of Bocerri v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1021, 74 Imm. L.R. (3d) 274 the court held that the officer was not alert, alive and
sensitive to the best interests of the child because the officer did not
provide an independent assessment of whether it was in the best interests of
the child to be removed to Albania (Bocerri at paras. 5, 6).
[50]
When
the reasons are read as a whole, it is clear that the decision did not turn on
the officer’s determination that the Applicants had an IFA in Hyderabad. The finding that the
Applicants would not suffer disproportionate hardship if returned to India was
based on a variety of factors such as the lack of evidence regarding the
identity of the men who attacked the Applicants in 2005, the lack of a
personalized risk arising from Hindu extremists and the availability of state
protection. In spite of the officer’s remarks regarding the potential safety of
Hyderabad, it is clear that the
cases of Alie and Bocerri are distinguishable from this case. As
has been noted, the officers in Alie and Bocerri effectively
ignored the best interests of the children. In this case, while it is true that
the officer did not assess the safety of Hyderabad specifically for Kamish, it is also true that
Kamish’s best interests have not been lumped together with those of his
parents.
1c) Was the immigration
officer’s assessment of the long-term ability of the Applicant, Mr. Amin
Khoja, to support his family reasonable?
[51]
The
Applicants allege the officer made an error of fact by failing to ascribe
sufficient weight to evidence showing that persons with disabilities face
discrimination in India with regard to
employment. In particular, the Applicants state the officer erred by not
quoting more fully from the US Department of State (DOS) report regarding
conditions faced by disabled persons in India.
[52]
It
is noted that administrative agencies are presumed to have considered all of
the evidence before them and their reasons are not to be read hypercritically (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, 83
A.C.W.S. (3d) 264 at para. 16). It is also
noted that the standard of reasonableness directs a reviewing court to be
deferential to the agency’s factual findings and to not interfere unless they
are outside a range of possible, acceptable outcomes (Dunsmuir, above,
at para. 47).
[53]
It
is relevant that in this case the officer took a number of factors into account
when determining whether Mr. Khoja will be able to find employment in India, including his language
skills, education and work experience, not merely its finding that disabled
persons in India are protected. The
Court finds that it was not unreasonable for the officer to come to the
conclusion that Mr. Khoja will be able to find employment in India.
1d) Did the immigration
officer err by noting that the Applicants chose to have a child at a time when
their status in Canada was uncertain?
[54]
The
Applicants’ cite the case of Mulholland, above, for the proposition that
it is improper to fail to give appropriate weight to the best interests of the
child on account of the parents’ decision to have a child at a time when their
immigration status was uncertain. The Respondents, however, note that the
Federal Court of Appeal in Kisana, above, interpreted Mulholland
as standing “for the proposition that it is unreasonable for an immigration
officer to effectively ignore the interests of a child on the basis that it was
the parents' "choice" to have the child in the first place” (Kisana
at para. 26).
[55]
Although
it is unfortunate that the officer noted this fact, it is clear that it does
not compromise the analysis of the best interests of the child, as there is
ample evidence that the officer was alert, alive and sensitive to the best
interests of Kamish. The fact that the Applicants have a Canadian-born child
during a period of instability with regard to their immigration status, while
not an excuse for minimizing the best interests of that child, does not entitle
the Applicants to a certain outcome on an application for H&C.
1e) Did the immigration
officer err by stating that the child and his parents could apply for a visa to
come to Canada to seek medical treatment for
the child?
[56]
The
Applicants take issue with the officer’s suggestion that Kamish could return to
Canada for medical treatment if it is unavailable in India. The Applicants submit
that it was “sheer speculation” for the immigration officer to suggest this, as
Kamish’s family would have to obtain visitor’s visas in order to return to Canada with their son, the
issuance of which is not guaranteed.
[57]
It
is noted that the discussion of returning to Canada for medical care consists of two sentences
in a large section regarding the possibility of obtaining adequate medical
attention for Kamish. The reasons mention a return to Canada only as a possibility.
This is not part of a core finding in regard to the best interests of the child
as it does not, in its outcome, compromise medical care to his person. Whether
the officer was correct in his aside, outside of his core finding, is not
detrimental, as it was ascertained in his decision that medical care in the
child’s regard was available on relocation to India.
X. Conclusion
[58]
The
Court notes that the standard of reasonableness and the Federal Court of
Appeal’s formulation of the approach to be followed when determining the best
interests of the child appear amorphous, yet, allowing for flexibility. This
approach is complementary of the child’s multi-faceted best interests;
nevertheless, sight should not be lost of the whole picture to which the
legislation and the jurisprudence point: the standard of reasonableness centers
on respect for the decision-making process of administrative bodies (Dunsmuir,
above, at para. 48). Likewise, the process for determining the best interests
of the child is based around a decision-maker being alert, alive and sensitive
to the child’s interests, but, as the ruling in Hawthorne, above, shows,
it does not go so far as to impose strict formal requirements.
[59]
In
the case of the Applicants, the officer examined the evidence regarding the
availability of medical treatment in India, their safety in India as well as the treatment of disabled persons
and employment prospects; after having weighed that evidence, the officer
reached a reasonable conclusion based on that evidence. It is not for the Court
to re-weigh the evidence subsequently. As the H&C decision appears
reasonable, the Court defers to the determination of the officer.
[60]
Although
it is unfortunate that the officer chose not to address the education of Kamish
in the reasons, that does not render the decision unreasonable. It is true that
an examination of the potential education of the child is noted in the IP 5
Manual, but the Manual is not a binding statutory instrument and ought not to
be construed in that manner. As long as the reasons given indicate that the
officer was alert, alive and sensitive to the best interests of the child, as
is the case in the determination, then it is accepted that, as in this case,
there is more than one way to reach a decision that is reasonable.
[61]
For
all of the above reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that
1.
The application for judicial
review be dismissed;
2.
No serious question
of general importance be certified.
“Michel M.J. Shore”
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