Date:
20100302
Docket: IMM-2536-09
Citation: 2010 FC 244
Vancouver, British Columbia, March 2, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MANOEL SEVERO RACHEWISKI and
JULIANA CRISTINA DA CUNHA (RACHEWISKI)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a Citizenship and
Immigration Officer dated May 4, 2009, wherein it was determined that the
Applicants would not be afforded an exemption from applying for permanent
residence in Canada outside the country, on humanitarian and compassionate
grounds. For the reasons that follow I find that the application is dismissed.
[2]
The
Applicants are adult citizens of Brazil. The female applicant
came to Canada in 2000, the
male applicant in 2001. They met in Canada. The record indicates at
one point that they were married later in 2001 although elsewhere it is stated
that they were in a common-law relationship. They have two children, both born
in Canada. The
children are in early elementary school. The Applicants have other
relatives in Canada as well as Brazil.
[3]
The
Applicants each entered Canada on a visitor’s Visa. They remained in Canada notwithstanding
the expiry of their Visas. It was not until some seven or eight years later
that the Applicants approached an immigration consultant who filed an
application for exemption from the requirement to apply for permanent residence
outside Canada on humanitarian
and compassionate grounds. This application was filed on May 5, 2008, and was
accompanied by material including a psychological assessment report of
their youngest child and many letters and documents attesting to the community
service provided by the Applicants, particularly the female applicant. The male
applicant works in the construction trade dealing with drywall and taping. The
female applicant is a homemaker. The record shows that the Applicants are
in all respects a model family with no criminal record, a good record of
community service and well able to support themselves and their children.
[4]
The
letter submitted with the Applicants’ application made with the assistance of
an immigration consultant summarizes their submissions as follows:
Since their arrival in Canada, Mr.
Rachewiski and Ms. de Cunha have adapted to and integrated into Canadian
society through his employment, their strong emotional ties with Canadian
family members and friends and through their active involvement in the community,
volunteer their time and efforts to help their fellow citizens.
[5]
As
to the children, the letter addressed the best interests of the two children in
saying:
Mr. Rachewiski and Ms. de Cunha have two
(2) Canadian born sons, Callum and Oliver Rachewiski.
If Mr. Rachewiski and his wife are forced
to leave Canada and forced to return to Brazil, the consequences on the Canadian born
children would be severe. In effect, they would be deprived of living in the
country of their birth and would also lack the benefits of Canadian education
and medical attention to which they are duly entitled to.
Callumis [sic] has been attending nursery
school since September 2007 and he will be going into Junior Kindergarten in
September of 2008.
Callum has been assessed by the
Children’s Therapy Services at Soldier’s Memorial Hospital with features of Autism Spectrum
Disorder. He has been identified as having Speech and Language delays. Callum
would greatly benefit from the support and programs available to him in Canada
which he may otherwise lack if his parents are forced to return to Brazil.
Both Callum and Oliver are well
established in Canada. Callum is presently
enrolled to attend Kindergarten at St. Jean de Brebeuf School in Bradford. The
children have participated in various skating and swimming programs. They are
members of GoodLife fitness where they also take part in children events.
Enclosed please find certificates of accomplishment for the activities that
both Callum and Oliver have been involved in.
[6]
The
Officer appropriately summarized the basis of the Applicants’ submissions in
her reasons as follows:
The applicant’s humanitarian and
compassionate grounds are based on:
Establishment based on employment
history, ability to be self-supporting, civil record, integration into and
adaptation to Canadian society, emotional ties to Canada and Best Interest of the
child.
[7]
The
Officer provided seven pages of reasons for her decision refusing the
application. She concluded:
I have considered all information
regarding this application as a whole. Having reviewed and considered the
grounds the applicant has forwarded as grounds for an exemption, I do not find
they constitute an unusual and undeserved or disproportionate hardship. I am
not satisfied sufficient humanitarian and compassionate grounds exist to
approve the exemption request.
The application is refused.
[8]
Applicants’
counsel before me sought to set aside this decision on five grounds:
1. The
inadequacy of the reasons;
2. That
the Officer failed to address the proper test as set out in section 25 of the Immigration
and Refugee Protection Act, S.C. 2000, c. 27, as amended (IRPA);
3. That
the Officer made perverse findings and ignored relevant evidence;
4. That
the Officer did not take into account properly the best interests of the
children; and
5. That
the decision was, on the whole, unreasonable, biased and lacking in fairness.
[9]
The
Respondent’s counsel takes the position that this case is simply a classic
scenario of persons who enter the country asserting that they are merely
visitors but whose real intention is to stay. They waited years before
attempting to regularize their status through a Humanitarian and Compassionate
application. In the meantime, they have two children in Canada, the male
applicant secured employment, the female applicant integrated herself into the
community all without legal status. They finally attempted to secure legal
status years later through the Humanitarian and Compassionate process, their
application was considered and rejected. The decision was correct and the
reasons given were adequate and appropriate considering the best interests of
the children.
H & C
Applications Generally
[10]
Section
25 of IRPA is an exception to the general requirement that those persons
seeking to become permanent residents of Canada and are otherwise
inadmissible may be exempted from those requirements or other considerations,
if the Minister is of the opinion that an exemption is justified for
“humanitarian and compassionate” (H & C) considerations, taking into
account the best interests of a child directly affected or by public policy
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.
(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 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.
(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.
|
[11]
Considerable
jurisprudence has developed in respect of these provisions. The Supreme Court
of Canada decision in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 is the
fundamental authority in dealing with such a provision, in that case section 114(2)
of the predecessor statute. Justice L’Heureux-Dubé for the majority wrote at
paragraph 15:
Applications for
permanent residence must, as a general rule, be made from outside Canada, pursuant
to s. 9(1) of the Act. One of the exceptions to this is when admission is
facilitated owing to the existence of compassionate or humanitarian
considerations. In law, pursuant to the Act and the Regulations, an H
& C decision is made by the Minister, though in practice, this decision is
dealt with in the name of the Minister by immigration officers: see, for example,
Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565,
at p. 569. In addition, while in law, the H & C decision is one that
provides for an exemption from regulations or from the Act, in practice, it is
one that, in cases like this one, determines whether a person who has been in
Canada but does not have status can stay in the country or will be required to
leave a place where he or she has become established. It is an important
decision that affects in a fundamental manner the future of individuals' lives.
In addition, it may also have an important impact on the lives of any Canadian
children of the person whose humanitarian and compassionate application
is being considered, since they may be separated from one of their parents and/or
uprooted from their country of citizenship, where they have settled and have
connections.
[12]
In
Baker, L’Heureux-Dubé J. wrote in respect of the guidelines to be
followed in exercising discretion in H & C case at paragraph 72:
Third, the
guidelines issued by the Minister to immigration officers recognize and reflect
the values and approach discussed above and articulated in the Convention. As
described above, immigration officers are expected to make the decision that a
reasonable person would make, with special consideration of humanitarian values
such as keeping connections between family members and avoiding hardship by
sending people to places where they no longer have connections. The guidelines
show what the Minister considers a humanitarian and compassionate decision, and
they are of great assistance to the Court in determining whether the reasons of
Officer Lorenz are supportable. They emphasize that the decision-maker should
be alert to possible humanitarian grounds, should consider the hardship that a
negative decision would impose upon the claimant or close family members, and
should consider as an important factor the connections between family members.
The guidelines are a useful indicator of what constitutes a reasonable
interpretation of the power conferred by the section, and the fact that this
decision was contrary to their directives is of great help in assessing whether
the decision was an unreasonable exercise of the H & C power.
[13]
Justice
Pelletier (as he then was) in Irimie v. M.C.I. (2000), 10 Imm. L.R. (3d)
206 (F.C.T.D.), [2000] F.C.J. No. 1906, provided useful guidance
as to the approach to be taken in the exercise of discretion under these
provisions and, in particular, unusual, disproportionate and undeserved hardships.
He wrote at paragraphs 12, 17, 20 and 26:
12 If
one then turns to the comments about unusual or undeserved which appear in the
Manual, one concludes that unusual and undeserved is in relation to others who
are being asked to leave Canada. It would seem to follow that the hardship
which would trigger the exercise of discretion on humanitarian and
compassionate grounds should be something other than that which is inherent in
being asked to leave after one has been in place for a period of time. Thus,
the fact that one would be leaving behind friends, perhaps family, employment
or a residence would not necessarily be enough to justify the exercise of
discretion.
…
17 Objection
was also taken to the fact that the H & C officer noted that the applicants
had purchased a home but commented that they had done so knowing that they were
subject to a departure order. Counsel for the applicants took the position that
everyone who applied for relief under subsection 114(2) of the Act knew that
they could be required to leave. If this should become a ground for not
allowing the application, there would be no successful applications, he argued.
In fact, counsel is correct to this extent: the risk of the loss of assets
acquired while in Canada is common to all who are in Canada without
permanent resident status. That possibility is therefore not unusual. Whether
such a loss is undeserved may well vary with the circumstances but in general,
one would think that if one assumes a certain risk, the occurrence of the
eventuality giving rise to the risk does not create undeserved hardship. The
hardship is a function of the risk assumed.
…
20 The
guidelines could be seen as limiting a decision-maker's discretion as to when
establishment can be considered as a factor for an H & C determination.
Without anything more than reference to the guidelines themselves, I cannot
agree with the applicants that the H & C officer was required to give some
weight to their degree of establishment in Canada. It is a
factor to be considered, but it is not, nor can it be, the determining factor,
outweighing all others. The degree of attachment is relevant to the issue of
whether the hardship flowing from having to leave Canada is unusual
or disproportionate. It does not take those issues out of contention.
…
26 I return to
my observation that the evidence suggests that the applicants would be a
welcome addition to the Canadian community. Unfortunately, that is not the
test. To make it the test is to make the H & C process an ex post facto
screening device which supplants the screening process contained in the
Immigration Act and Regulations. This would encourage gambling on refugee
claims in the belief that if someone can stay in Canada long enough to
demonstrate that they are the kind of persons Canada wants, they will be
allowed to stay. The H & C process is not designed to eliminate hardship;
it is designed to provide relief from unusual, undeserved or disproportionate
hardship. There is no doubt that the refusal of the applicants' H & C
application will cause hardship but, given the circumstances of the applicants'
presence in Canada and the state of the record, it is not unusual, undeserved
or disproportionate hardship. Whatever standard of review one applies to the H
& C officer's decision, it meets the standard. The application for judicial
review must therefore be dismissed.
[14]
The
Minister exercises discretion in determining whether a particular applicant
meets the criteria. As the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 wrote at paragraph
47, the Court is to concern itself with the justification, transparency and
intelligibility of the decision and whether it falls within a range of possible
outcomes:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within
the range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes.
In judicial review, reasonableness is concerned mostly with the existence
of [page 221] justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
[15]
In
providing justification, intelligibility and transparency, the Supreme Court in
Baker states that it is important that reasons be provided for the
decisions made. L’Heureux-Dubé J. wrote at paragraph 43:
In my opinion, it is
now appropriate to recognize that, in certain circumstances, the duty of
procedural fairness will require the provision of a written explanation for a
decision. The strong arguments demonstrating the advantages of written reasons
suggest that, in cases such as this where the decision has important
significance for the individual, when there is a statutory right of appeal, or
in other circumstances, some form of reasons should be required. This
requirement has been developing in the common law elsewhere. The circumstances
of the case at bar, in my opinion, constitute one of the situations where
reasons are necessary. The profound importance of an H & C decision to
those affected, as with those at issue in Orlowski, Cunningham, and Doody,
militates in favour of a requirement that reasons be provided. It would be
unfair for a person subject to a decision such as this one which is so critical
to their future not to be told why the result was reached.
[16]
It
is important to note however that in Baker no reasons were initially provided.
Subsequently, the Officer’s notes were provided. These notes constituted
adequate reasons as set out in paragraph 44 of Baker:
In my view, however, the reasons requirement was
fulfilled in this case since the appellant was provided with the notes of
Officer Lorenz. The notes were given to Ms. Baker when her counsel asked for
reasons. Because of this, and because there is no other record of the reasons
for making the decision, the notes of the subordinate reviewing officer should
be taken, by inference, to be the reasons for decision. Accepting documents
such as these notes as sufficient reasons is part of the flexibility that is
necessary, as emphasized by Macdonald and Lametti, supra, when courts evaluate
the requirements of the duty of fairness with recognition of the day-to-day
realities of administrative agencies and the many ways in which the values
underlying the principles of procedural fairness can be assured. It upholds the
principle that individuals are entitled to fair procedures and open
decision-making, but recognizes that in the administrative context, this
transparency may take place in various ways. I conclude that the notes of
Officer Lorenz satisfy the requirement for reasons under the duty of procedural
fairness in this case, and they will be taken to be the reasons for decision.
[17]
Frequently,
the Court is taken microscopically through the reasons provided by an Officer
in counsel’s endeavour to demonstrate shortcomings, omissions and
mistakes. There is no requirement that the reasons be of a quality attributable
to the Supreme Court of Canada or that they detail every piece of evidence
provided and every argument raised. They are to be an intelligible and
transparent justification of the result sufficient to enable the reader to
appreciate whether the decision was within the appropriate bounds of
reasonableness.
[18]
I
turn to the requirement of section 25 of IRPA that the Minister take
into consideration the best interests of a child directly affected. The Federal
Court of Appeal addressed this consideration in Hawthorne v. Canada
(Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555,
where it stated that it is generally implicit that a child will be less well
off to be sent to some less fortunate country. What the Officer must do is
assess the likely degree of hardship and weigh it against other factors
including public policy that militate for or against removal of the parties.
Décary J.A. wrote at paragraphs 5 and 6;
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.
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.
[19]
In
considering the best interests of a child it is expected that a parent will
provide evidence that will give the Officer sufficient information to assess
the matter. As Evans J.A. for the Federal Court of Appeal said in Owusu v. Canada (Minister of
Citizenship and Immigration), [2004] 2 F.C.R. 635 at paragraph 3:
The Applications Judge
held that the immigration officer had erred in law in rejecting Mr. Owusu's H
& C application because she had not been sufficiently
attentive to the best interests of his children, who had always lived with his
wife, their mother, in Ghana. Nonetheless, the Judge in his discretion decided
not to set aside the decision, on two grounds. First, Mr. Owusu had
unaccountably failed to provide any evidence to support the allegation that his
deportation to Ghana would be contrary to the best interests
of his children because he would be unable to find work and support them
financially. Second, if the matter were remitted for redetermination by another
officer on the same material, the application was bound to be
rejected.
[20]
There
is no express duty placed upon the Officer to make inquiries of the Applicant
to update information whether as to the child or country conditions or
otherwise. It is expected that an Applicant will provide such information as is
appropriate as it becomes known to him or her. Justice Mackay wrote in Arumugam
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 985, 211 F.T.R. 65 at paragraph
17:
In my
opinion, although the IO did not seek new or updated country information from
the applicant or elsewhere after the interview in March 1999, except for the
PDRCC decision, there was no duty on the IO to do so. It was open to the
applicant to submit further relevant information following the interview at any
time before the decision, whether it be personal or related to the changing
circumstances in Sri Lanka. The
applicant did not do so. The IO rendered a decision based on the evidence
provided to her. I cannot agree that the process was unfair or that the
decision was unreasonable where the applicant did not take any initiative to
provide further information concerning country conditions which, in his
opinion, deteriorated through 1999. The responsibility of the IO was to
consider the application to apply for admission on h&c grounds on the basis
of the evidence provided by the applicant, and any evidence available from the
applicant's immigration records or provided by the Minister. This the officer
did.
[21]
With
these general comments providing a framework for the issues to be considered
here I turn to the specific issues raised by the Applicants’ counsel.
Issue #1 -
The inadequacy of the reasons
[22]
There
is no question that seven pages of reasons for the decision to refuse the
application were provided by the Officer of the Applicants. The concern raised
by the Applicants’ counsel is whether they were in fact adequate. In that
regard my attention was drawn to two decisions in particular – one is that of Justice
Harrington in Espino v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1255, 301 F.T.R. 155, where he
said at paragraph 11:
A recital of the facts with the
conclusion not based on any analysis does not constitute a reasoned decision.
[23]
The
other is a decision of Justice Heneghan in L.Y.B. v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1167, [2009] F.C.J. No.
1470, where she wrote at paragraphs 20 and 21:
20 However, the manner in which the Officer purported to reject the
Applicant's application on the basis of insufficiency of evidence is problematic.
I agree with the Applicant's submission that the Officer in fact made the
decision on credibility grounds but failed to disclose and identify those
grounds. In short, the Officer did not believe the evidence presented by the
Applicant but she did not express that disbelief. The Officer purported to
reject the PRRA application on one ground, that of insufficient evidence, but
in reality, she rejected the application on the basis of credibility concerns.
21 Surely
this is improper and in my opinion, a breach of the obligation to provide
adequate reasons for the decision. "Adequate reasons" means the
"real" reasons for a decision. In this regard, I refer to the
decision in Hilo v. Canada (Minister of Employment and
Immigration), 15 Imm. L.R. (2d) 199 (F.C.A.)
where the Federal Court of Appeal said the credibility findings must be
expressed in "clear and unmistakable terms." The problem here is that
the Officer in fact cloaked the credibility concerns in the language of
sufficiency of evidence. That does not meet the legal requirements.
[24]
The
general principles set out in these decisions are appropriate, however, much
depends on knowing what the actual decision that they were dealing with said.
The present decision for the first two pages simply sets out information in the
context of a form; the next two pages itemize in detail the various factors
taken into consideration by the Officer in point form. The last two pages plus
a final paragraph set out a narrative of the Applicants’ circumstances and arguments
raised together with the conclusions reached by the Officer. I am satisfied
that these reasons taken as a whole are sufficiently intelligible and
transparent and justified so as to enable the Applicants to understand what was
considered by the Officer and the conclusions reached in respect of the
relevant issues. One does not expect and the Officer should not be put to a
higher standard than that exhibited by these reasons. One should not expect,
for instance, a classic response to a law school examination where a candidate
is expected to follow a formula such as – on one hand – on the other hand – I
have determined …because . . . .
[25]
The
reasons here are sufficient.
Issue #2 - That the Officer
failed to address the proper test as set out in section 25 of the Immigration
and Refugee Protection Act, S.C. 2000, c. 27, as amended
[26]
Applicants’
counsel argues that the Officer applied a test as to whether the hardship that
the Applicants would face would be “unusual and undeserved or
disproportionate.” This is precisely the test to be applied. Counsel has
pointed to some phrases used in some decisions to argue that a lesser or more
compassionate test has been used.
[27]
As
discussed with respect to general considerations the correct test is that as
applied by the Officer.
Issue #3 - The
Officer made perverse findings and ignored relevant evidence
[28]
Applicants’
counsel argues that the Officer approached the matter from the point of view
that the Applicants had come to Canada and remained illegally
for several years before making their claim and that this coloured the
Officer’s view of the matter and lead to the conclusion to reject the request
for exemption. Elsewhere in argument, this was expressed as bias or filtering.
[29]
Counsel
correctly points out that section 25 is expressly drafted so as to deal with
those who do not otherwise qualify within the usual provisions of IRPA.
[30]
In
particular, Applicants’ counsel points to the following paragraph of the
Officer’s Reasons:
Applicant and his wife have been able to
integrate and adapt to Canadian society. They have both maintained employment,
been involved in their community, had two children and have made friends. I am
satisfied that they have adapted and integrated into Canadian society. I am
satisfied that many people are able to do this as applicant and his wife have.
I am not satisfied that this factor is sufficient reason to justify an
exemption under humanitarian and compassionate consideration; there are legal
avenues to follow to obtain Permanent Resident status in Canada. I am satisfied that the
applicant and his spouse would be able to access these avenues in the normal
manner from outside Canada at a Canadian consulate as everyone else in Brazil
can do.
[31]
I
find that the Officer is not filtering her decision nor expressing bias in
making such a statement. What the Officer is saying is that there would be no
undue or undeserved hardship if the Applicants were to return to Brazil and make an
application there in the normal manner. A return to Brazil does not
change or affect their ability to do so in the normal way.
Issue #4 - The
Officer did not take into account properly the best interests of the children
[32]
The
concerns raised by the Applicants deal in particular with their youngest son
Callum. The Officer gave consideration to the circumstances of the child in her
reasons:
Applicant, his wife, Juliana, and
children have family members in Canada. Juliana’s sister and family reside in
Sherbrooke, Quebec. Applicant states that
despite the distance between their residences they have a very close
relationship with one another’s families. I am satisfied that there is a
familial tie and if applicant and his wife had to leave Canada there would be some emotional
hardship. However, I am not satisfied that the hardship they would face would
be considered unusual and undeserved or disproportionate.
Two Statements of live birth have been
provided showing that applicant and his wife have two boys born in Canada who are now 4 & 6
years old. No birth certificate was provided. Applicant has indicated that his
son Callum has been diagnosed with features of Autism Spectrum disorder by the
Children’s Therapy Services at Soldiers’ Memorial Hospital in Orillia. He states that in effect, if
he and his wife are forced to return to Brazil their children would follow and this
would significantly negatively impact both of their children.
I am well aware of the legal need to
consider the best interest of the child and in doing so have read the
information provided including the 5 page report provided by client, done by
Ann Johnston, Dip. C.S., C. Psych. Assoc., Psychological Associate, Children’s
Therapy Services. As I am not a doctor and only able to read this information
the same as any person who does not have a medical degree I have quoted the
following sections in regards to applicant’s statements above. It is noted that
this report is written regarding Callum Rachewiski who at the time of the
referral for a psychological assessment was 3 years old.
The report indicates: “He demonstrated
entirely appropriate social interaction and communication skills and there were
no concerns in this regard.” “Callum did not appear to be demonstrating any red
flags for Autism Spectrum Disorder in today’s session”. “In conclusion Callum
was not felt to be demonstrating any features of an Autism Spectrum
Disorder and there are no concerns in this regard”. I have also reviewed the information
that the report also states, again referring to Callum, “…his cognitive
development is average but somewhat scattered and this may be related at
least in part to the fact that English is his second language….” . ” . I am not
satisfied that this factor has significant weight as the report does not seem
to support the applicant’s statement that his son was diagnosed with Autism
Spectrum Disorder.
I have also reviewed other information
regarding the Best Interest of the Child. Both children were born in
Canada and as Canadian citizens have the right to return to Canada at any time in their life.
The oldest boy Callum is presently 6 years old and has been in school, has
friends, the youngest child, Oliver is 4 years old and as indicated has
been in different social activities for children and would also have friends. I
am satisfied that having to leave the friends that they have made would cause
some emotional hardship on both boys, however, I am not satisfied that this
hardship would be considered unusual and undeserved or disproportionate. They
are both young and would be able to make more friends. As indicated their first
language is not English, therefore it would be reasonable to expect them to
have little trouble adapting to school in their first language if they had to
leave Canada and go to Brazil with their parents.
[33]
Applicant’s
counsel draws attention to the Psychological Assessment Report respecting
Callum and in particular to the Recommendations :
·
Monitoring
to ensure continued progress will be very important.
·
It will
be important that Callum’s learning skills be monitored.
[34]
Respondent’s
counsel points out other portions of the Report where it is written:
·
Overall
Callum did not appear to be demonstrating any red flags for Autism Spectrum
Disorder in today’s sessions.
·
In
conclusion Callum was not felt to be demonstrating any features of Autism
Spectrum Disorder and there are no concerns in this regard
[35]
Applicants’
counsel sought in their Application Record to introduce evidence as to later
reports as to Callum’s condition. This evidence was not before the Officer. I
refused to have regard to this evidence. As reviewed in the general comments
previously, the parents have an obligation to bring such matters to the
Officer’s attention if relevant.
[36]
I
find that the Officer gave appropriate consideration to the interests of the
child.
Issue #5 -
The decision was, on the whole, unreasonable, biased and lacking in fairness
[37]
This
issue was essentially a repeat of earlier issues cast in different wording. I
find no reviewable error in this regard.
Certification
[38]
No
party requested certification and I find no reason to do so.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
a. The
Application is dismissed;
b. There is no
question for certification; and
c. No order as
to costs.
“Roger
T. Hughes”