Date: 20090409
Docket: IMM-3940-08
Citation: 2009
FC 356
Toronto, Ontario,
April 9, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
JOSELITO RAMOS FERRER
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a decision of the Immigration Appeal Division of
the Immigration and Refugee Board (IAD) dated August 20, 2008 which dismissed
Mr. Ferrer’s plea for humanitarian and compassionate relief pursuant to s.67(1)(c)
of the IRPA. Mr. Ferrer applied to the IAD for this special relief because
on September 26, 2006 an Immigration Division Member issued an exclusion order
against him based on a finding of inadmissibility for a misrepresentation made in
September 1998 with respect to his permanent residence application. In his
permanent residence application Mr. Ferrer testified that he was single with no
children. It is not disputed that, indeed, at that time he was the father of
two dependent children living with their mother in the Philippines.
[2]
Under
s.67(1)(c) of the IRPA, the IAD is required to be satisfied that at the
time of decision “taking into account the best interest of the child directly
affected by the decision, sufficient humanitarian and compassionate
considerations warrant special relief in light of all the circumstances of the
case”. Therefore, together with other factual features of the present case such
as the nature of the Mr. Ferrer’s conduct and his establishment in Canada, the IAD was required to
determine the best interests of the two children residing in the Philippines. With respect to these
children the IAD made the following important findings:
The appellant has been back to the
Philippines to visit his own children twice since landing in Canada in early September 2001. In
addition to his four-month visit in 2002, the appellant spent about six weeks
in the Philippines in 2004. Both the appellant
and his sister testified the appellant missed his children terribly. The
appellant would have more contact with his children if he was removed to the Philippines where his children presently
reside.
[…]
It is in the best interest of the
appellant’s children to have close contact with their father. It is also in the
best interest of the appellant’s children to be provided with an appropriate
level of financial support.
[…]
The best interests of the appellant’s
children are a neutral factor in this appeal. They presently do not have status
to reside in Canada. Their emotional needs are
best met by living in close contact with their father in the Philippines. However, the appellant is
able to provide a higher level of financial support for his children working in
Canada than working in the Philippines.
The preservation of the integrity of the
Canadian immigration system is an important public policy consideration raised
in this appeal. The appellant did not disclose the existence of his children to
Canadian immigration authorities at the visa post or at the port of entry. He
withheld information about the birth of his children to avoid delay and
possible problems in obtaining his permanent resident visa. The panel assigns
weight to the policy objective of preserving the integrity of the Canadian
immigration system.
Taking into consideration the best interest
of children directly affected by the decision, the appellant has not
established sufficient humanitarian and compassionate grounds to warrant the
granting of special relief in light of all the circumstances of the case.
(IAD Decision, p.5, p.7)
[3]
I find
that the IAD’s consideration of the best interests of Mr. Ferrer’s children is
wholly deficient.
[4]
In my
opinion, the appropriate approach to determining the best interests of children
is stated in Kolosovs v. Canada (Minister of Citizenship and Immigration), [2008] FC 165. While Kolosovs
addresses the care required of visa officers in making such a determination, I
find that the criteria set out at paragraphs 8 to 12 are applicable to any
decision-maker who has this responsibility, including IAD members:
I. Requirements
for Determining the Best Interests of the Child
Baker [Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817] at para. 75 states that an H&C decision will be
unreasonable if the decision-maker does not adequately consider the best
interests of the children affected by the decision:
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.
[Emphasis added]
This quote emphasizes that, although a
child’s best interests should be given substantial weight, it will not
necessarily be the determining factor in every case, (Legault v. Canada
(Minister of Citizenship and Immigration ), [2002] 4 F.C. 358(C.A). To come to a reasonable
decision, a decision-maker must demonstrate that he or she is alert, alive and
sensitive to the best interests of the children under consideration.
Therefore, in order to assess whether the Officer was “alert, alive and
sensitive”, the content of this requirement must be addressed.
A. Alert
The word alert implies
awareness. When an H&C application indicates that a child that will be
directly affected by the decision, a visa officer must demonstrate an awareness
of the child’s best interests by noting the ways in which those interests are
implicated. Although the best interests of the child is a fact specific analysis,
the Guidelines at s. 5.19, provide a starting point for a visa officer
by setting out some factors that often arise in H&C applications:
5.19. Best interests of the child
The Immigration and Refugee Protection
Act introduces a statutory obligation to take into account the best
interests of a child who is directly affected by a decision under A25(1), when
examining the circumstances of a foreign national under this section. This
codifies departmental practice into legislation, thus eliminating any doubt
that the interests of a child will be taken into account.
Officers must always be alert and
sensitive to the interests of children when examining A25(1) requests. However, this obligation only arises
when it is sufficiently clear from the material submitted to the decision-maker
that an application relies, in whole or at least in part, on this factor.
….
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 impact to the child’s education;
• matters related to the child’s gender.
[Emphasis added]
B. Alive
The requirement that a child’s
best interests be given careful consideration was reiterated by the Federal
Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration,
[2003] 2 F.C.
555 (C.A) (QL) at para. 52:
The requirement that officers'
reasons clearly demonstrate that the best interests of an affected child have
received careful attention no doubt imposes an administrative burden. But this
is as it should be. Rigorous process requirements are fully justified for the
determination of subsection 114(2) applications that may adversely affect the welfare
of children with the right to reside in Canada: vital interests of the vulnerable are
at stake and opportunities for substantive judicial review are limited.
Once an officer is aware of the best
interest factors in play in an H&C application, these factors must be
considered in their full context and the relationship between the factors and
other elements of the fact scenario concerned must be fully understood. Simply
listing the best interest factors in play without providing an analysis on
their inter-relationship is not being alive to the factors. In my opinion, in
order to be alive to a child’s best interests, it is necessary for a visa
officer to demonstrate that he or she well understands the perspective of each of the participants
in a given fact scenario, including the child if this can reasonably
determined.
C.
Sensitive
It is only after a visa officer has
gained a full understanding of the real life impact of a negative H&C
decision on the best interests of a child can the officer give those best
interests sensitive consideration. To demonstrate sensitivity, the officer must
be able to clearly articulate the suffering of a child that will result from a
negative decision, and then say whether, together with a consideration of other
factors, the suffering warrants humanitarian and compassionate relief. As
stated in Baker at para. 75:
“ … 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”
[5]
With
respect to the application of this standard in the present case, Counsel for Mr.
Ferrer made a focussed practical argument to the IAD which was not accepted.
This argument is restated in the present Application in support of the
challenge to the IAD’s decision as follows:
It is clear from the above
statement that the Tribunal considered only two possibilities with respect to
the best interests of the children. The first possibility that the Tribunal
considered was that the children could remain in the Philippines and that their
father, the Applicant will continue to have a geographically distant
relationship with them while at the same time supporting them financially at a
higher level than possible if he were to return to the Philippines.
The second alternative the
Tribunal considered was that the Applicant could be returned to the Philippines where he would be able to
better meet their emotional needs by having close contact with them, though he
would not be able to provide the higher level of financial support in the event
that he is removed from Canada.
It is submitted that the above
analysis is erroneous in that it does not take into consideration the most
probable outcome should the Applicant’s appeal be allowed.
At the hearing of his appeal,
the Applicant spoke of his desire to be reunited with his family, including his
children in Canada.
Should the Applicant’s appeal
be allowed, he would be in a position to sponsor both of his children to Canada as members of the family
class as dependents of this spouse, Divina Pote.
Obviously, the Minister was
not aware of the existence of the Applicant’s dependent children at the time
the Applicant was granted permanent resident status in Canada and they were not
examined by a visa officer, they are excluded from the family class by virtue
of s.117(9)(d) of the Immigration and Refugee Protection Regulations […]
As the Tribunal noted in its
reasons for decision, the Applicant has married his spouse who is the mother of
his two children on a trip back to the Philippines after he was granted
permanent resident status in Canada.
Due to this series of events, the Applicant’s spouse is not excluded from the
family class pursuant to section 117(9)(d) of the Regulations. Accordingly, the
Applicant’s two children would be eligible to be included on the Applicant’s
spouse’s application for permanent residence as her dependent children.
During the course of his
testimony, the Appellant indicated his desire to ultimately bring his wife and
children to be with him in Canada. It is submitted that the Act
and Regulations would function in such a way as to allow him to sponsor
them to Canada with little difficulty.
The Tribunal’s failure to
consider this likely chain of events led to its conclusion that the best
interests of the children were a neutral factor when in fact the best interests
of the Applicant’s children were a positive factor which weighed in favour of
allowing the appeal. This is because the two factors that the Tribunal balanced
on either side of either allowing or dismissing the appeal namely, the
Applicant’s ability to better meet the emotional needs of this children by
being physically near them versus the Applicant’s ability to provide a higher
level of financial support by virtue of his employment in Canada, would in fact
both be met should the Applicant’s appeal been allowed and he permitted
to sponsor his children to Canada as dependents of this spouse who is a member
of the family class.
In other words, the Tribunal
failed to appreciate that the Applicant’s children could have the best of both
worlds by being reunited with him in Canada.
Had the Tribunal not committed this error, it would certainly have considered
the best interests of the Applicant’s children to be a factor in favour of
allowing his appeal and not a neutral factor - thereby negating its value.
It is submitted that the
foregoing consideration of the best interests of a child directly affected by
its decision conducted by the Tribunal is not in accordance with the law in
that it is overly simplistic and perfunctory. The Tribunal also failed to take
into consideration the evidence that was before it.
The Tribunal’s failure in this
regard constitutes a reviewable error of law and renders the herein decision
unreasonable.
(Applicant’s Application
Record, pp. 173 – 176)
I find this to be a persuasive argument.
[6]
In my
opinion, the IAD failed to seriously consider the best interests of Mr.
Ferrer’s children as required by the standard set in Kolosovs and by the
terms of s.67(1)(c) of the IRPA. Indeed, the failure to engage in a
critical analysis of the nuanced argument advanced by Counsel for Mr. Ferrer is
evidence of this fact. It appears that the IAD’s reasoning was dominated by a
consideration of the “integrity of the Canadian immigration system”. I agree
that this might be an important factor to consider, but only after the best
interests of the children are properly addressed; only in this way can a fair
and balanced approach be taken to this important statutory requirement. In my
opinion, the failure of the IAD to follow this approach renders the decision as
unreasonable, and, therefore, I find that the decision is rendered in
reviewable error.
ORDER
Accordingly, I set aside the
IAD’s decision and refer the matter back for redetermination before a
differently constituted panel. There is no question to certify.
“Douglas
R. Campbell”
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