Date: 20091014
Docket: IMM-4770-08
Citation: 2009 FC 1033
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
LUIS
FERRERA DIAZ
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application involves an immigration officer's (the Officer) assessment of the
best interests of Luna Lidia Diaz Van Cliffe, a four year old girl who was born
on February 22, 2005. The assessment was made in the context of the
dismissal of her uncle’s application of March 12, 2008 for Humanitarian
and Compassionate relief (H & C) under subsection 11(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 ( the IRPA) pending his deportation
from Canada for
criminality. The H & C decision under review is dated October 9, 2008
(the Decision).
[2]
The
Applicant is Luis Ferrera Diaz (either the Uncle or the Husband). He and his
wife Patricia Ferrera, who is a Canadian citizen (the Wife), have raised Luna in
loco parentis since she was a newborn. At that time her natural mother lost
custody due to alcohol problems and she subsequently died in a car accident.
Her natural father (the Father) has never had custody. His weekend visits with
Luna are at the home of the Uncle and his Wife and are now supervised because
the Father has been charged with sexually molesting an eight year old girl.
[3]
The
Uncle and his Wife do not have legal custody of Luna. The arrangements are
informal.
[4]
The
Uncle is being deported for the second time. He was removed to Honduras on
July 8, 1997 following a refugee claim that was unsuccessful due to
negative credibility findings. From 1998 to 2005, he lived in the United
States.
During that time he was twice deported but returned to the United
States.
He later returned to Canada, without permission, in 2005. His
convictions in Canada prior to his first deportation were as follows:
·
1991
June 4 – possession of stolen property over $1000
·
1992
March 13 – assault – 30 days and one year probation
·
1995
August 15 – assault – 2 counts – 15 days and 18 months probation
·
1995
October 23 – assault – 1 count – 90 days and 2 year probation
·
1996
February 19 – possession of a narcotic , unlawfully at large, failure to
attend court – 90 days
·
1997
April 17 – assault, failure to comply with recognizance, uttering threats – 16
months and 2 year probation
[5]
In
his Personal Information Form, the Uncle replied in the negative when asked if
he had been charged or convicted of any crimes in any country including Canada. In his Pre-removal
risk assessment dated January 8, 2008, he again answered the question in
the negative although he did refer to having been charged with drinking and
driving in the US in March 2004. The Officer concluded that these
lies showed a lack of remorse and a risk that he would re-offend.
[6]
The
Officer considered the following evidence:
·
The
Uncle works in the construction industry and is the sole breadwinner for his
Wife and Luna.
·
The
Uncle has not been convicted of a serious criminal offence in Canada for eleven
years.
·
There
is no evidence that the Wife has worked or has any marketable skills.
·
The
Uncle and his Wife have an enduring and bona fide marriage.
·
The
Uncle and his Wife have cared for Luna in a loving manner since her birth.
·
Luna
considers the Wife to be her mother.
·
Luna
was effectively abandoned by her natural mother and, if the Uncle is deported
and the Wife accompanies him, Luna will be abandoned again.
·
There
was no evidence that the Wife would separate from her Husband to care for Luna
in circumstances in which she would not have her Husband’s financial and
emotional support.
·
The
Wife accompanied her Husband when he was previously deported from Canada to Honduras.
·
The
Father cannot care for Luna. His statutory declaration dated February 28,
2008, which was before the Officer, makes that clear.
·
There
is no evidence that any other family members have shown any interest in Luna’s
care.
·
The
psychologist’s report, which the Officer accepted, indicated that Luna would be
re-traumatized by the loss of her Uncle and even more affected by the Wife’s
departure at a formative stage in her life. These further abandonments could
cause addictions and eating disorders.
[7]
The Respondent is critical
of the Applicant’s failure to adduce evidence about the Wife’s plans i.e.
whether she would leave Luna and go to Honduras or stay behind in Canada with Luna. I am not persuaded that this criticism is
justified. It may well be that there was no evidence about the Wife’s
intentions because she had not yet made a decision. It would be a heartbreaker
and I can understand why she would leave it to the last possible moment.
[8]
The Respondent also
criticizes the fact that the Applicant’s sisters were not mentioned in the H
& C application. The Officer knew of their existence from other immigration
documents. The Respondent says that the Applicant was obliged to provide
evidence about whether they were willing to help raise Luna. However, I
question the significance of such evidence. I suspect that the sudden
appearance of an unknown aunt would not materially reduce the impact on Luna of
the Wife’s abandonment. That said, I think as a general rule where the best
interests of a child are at issue, an applicant should deal with the
availability of all those who might reasonably be expected to contribute to the
care of the child.
CONCLUSIONS
[9]
I
am mindful that this Decision is to be reviewed on a standard of
reasonableness.
[10]
Applying
that standard, I conclude that the Decision as it relates to the best interests
of Luna was unreasonable when it stated:
I am satisfied that there are a
sufficient number of persons engaged in her care and adequate options to
safeguard the physical and emotional well-being of the child, even in the
absence of the applicant.
[11]
There
was no evidence to support this conclusion. The Officer’s view was based, in
part, on mere speculation that other family members in Canada “may” or
“might” assist with Luna when there was no evidence that any relative had any
such interest.
[12]
The
Officer also imagined that the Father might assume custody of Luna. This was an
unfounded speculation in circumstances in which he had only visited her at the
Uncle’s home and had been charged with molesting a child. Further, the Father
acknowledged his inability to function as a parent.
[13]
Finally,
the Officer speculated that the Wife would stay in Canada to care for
Luna. This was unreasonable given that:
·
The
Wife has a strong marriage and returned to Honduras with her Husband
at the time of his first deportation from Canada.
·
The
Wife is not related to Luna and has no legal obligation to care for her.
·
The
Wife has no means to support herself and Luna in Canada.
[14]
As
well, the Officer did not consider Luna’s fate if the Wife were to leave. In my
view, Luna would likely be placed in foster care and would be exposed to the
prospects of addiction and disease identified by the psychologist.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that, for the reasons given above,
this application is allowed.
The H & C application is
referred back for re-determination by an officer who has not previously
considered the Applicant’s file.
The Applicant is entitled to
file fresh material for the H & C application.
“Sandra
J. Simpson”
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