Date: 20080108
Docket: IMM-1646-07
Citation: 2008 FC 19
Ottawa, Ontario, January 8,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
MARIA
THERESA PHILLIP
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. OVERVIEW
[1]
This
is the case of a 64-year old grandmother who has resided in Canada for 19 years
and is the de facto mother of her daughter’s children (if not the only
caregiver). The Respondent says she is not entitled to an H&C decision in
her favour to remain in Canada. At the very least, the Respondent
committed reviewable error.
II. BACKGROUND
[2]
The
Applicant, a 64-year old citizen of Trinidad and Tobago, but born in
Grenada, has been in Canada since October 1988. Her claim for permanent
residence was denied in 2004. Her PRRA was negative in 2007 and her H&C
application, the subject of this judicial review, was started after her PRRA
application was commenced.
[3]
The
bases of the H&C claim were de facto residence (19 years in the
country), family ties, sponsorship, best interest of Canadian children (her two
Canadian-born grandchildren are in her care and custody), financial
establishment by virtue of her work and tax payments, community establishment,
other aspects of establishment, and hardship if she is returned due to her age
and lack of job prospects.
[4]
The
record is replete with evidence in support of the H&C application. Most
importantly, there is evidence of her daughter surrendering custody of the two
grandchildren, a custody order of the Ontario Court of Justice giving the
Applicant joint custody along with the father (who also had to pay support).
The court order stated that the grandchildren’s primary residence would be with
the Applicant.
[5]
In
the Respondent’s decision, the officer noted the Applicant’s accomplishments
but did not regard her establishment as “exceptional”. The officer also noted
that much of the Applicant’s problems were caused by her remaining in Canada illegally
and now facing the consequences of removal as required by law.
[6]
On
the issue of the best interests of the grandchildren, the officer assumed that
the grandchildren would be taken care of by extended family and that their
father would be involved. The officer countered the allegations of lack of
financial and moral support by the father by referring to the father’s
successful H&C application in which he included another daughter as
evidence of the father’s commitment to his two other children, the Applicant’s
grandchildren. The officer concluded the analysis of the best interests of the
children with a comment that the children’s mother should have thought of the
potential removal of the Applicant before surrendering custody.
III. ANALYSIS
[7]
There
are two significant and interrelated problems with the Respondent’s decision –
one procedural, the other substantive.
[8]
The
procedural problem is that the Respondent relied upon the content of the
father’s successful H&C application to conclude that the best interests of
the children would not be significantly harmed by removal of the Applicant.
That H&C application was not in the Applicant’s H&C filing and was
never put to the Applicant for comment.
[9]
If
any support is needed for the obvious proposition that the Applicant was
entitled to notice of this document and an opportunity to respond, it can be
found in Bara v. Canada (Minister of Citizenship and Immigration),
[1998] F.C.J. No. 992 at paragraph 15 (per Richard A.C.J. as he then was):
The officer is not required to put before the
applicant any tentative conclusions he may be drawing from the material before
him, not even as to apparent contradictions that concern him. However, if he
relies on extrinsic evidence, not brought forward by the applicant, he must
give him a chance to respond to the evidence.
[10]
Not
only was the use of the father’s H&C application a breach of fairness, it
led to or compounded a substantive error in the consideration of the best
interests of the children.
[11]
To
state, as the officer did, that she was “alert, alive and sensitive to the best
interests of the child” does not make it so (Legault v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 125). The best interests’
consideration rested firstly on the $119.00 monthly support payments required
by court order. However, there was no analysis of the father’s ability to care
for the children despite the father’s admission that he had not been able to
care for them. There was no consideration that the grandmother was their
virtual mother over the past seven years.
[12]
The
officer’s comment that the mother should have thought of the Applicant’s
possible removal before surrendering custody of the children, while apt, tends
to focus the issue on the best interests of the children towards the
questionable conduct of the parent and not on to the needs of the children.
[13]
The
officer’s reliance on the father’s H&C application and the inclusion of
another daughter therein, was not only procedurally unsound but led to a non
sequitur of reasoning. One wonders how the father’s inclusion of another
child on his application is evidence of the father’s care, attention and
concern for these two children, a matter that no doubt could have been
addressed if the Applicant had been given an opportunity to address the point.
There may be an explanation but it is not one which is immediately apparent.
IV. CONCLUSION
[14]
Therefore,
this judicial review will be granted, the decision quashed and the matter
remitted to a different officer for a new decision.
[15]
The
Applicant has asked for costs in this matter. Submissions subsequently filed
addressed a number of grounds related to costs. The fact that the Applicant is
a 64-year old grandmother who has been in Canada for 19 years
is not relevant. She was not entitled to a favourable H&C as a reward for
many years of undetected presence in Canada.
[16]
However,
in this case the Applicant has had to commence two judicial reviews and to
obtain two stays. Her judicial review of the PRRA decision was withdrawn on
consent while the H&C was pending. Upon withdrawal of that judicial review,
the Applicant was advised that the H&C was denied.
[17]
While
this conduct may not be bad faith, it has a certain air that causes one
concern. The Applicant is now faced with another H&C application. There are
special reasons for costs in respect of the Respondent’s handling of this whole
file. An award of $5,000.00 out of the $13,000.00 requested is an equitable
award. Therefore, there will be costs of $5,000.00 to the Applicant.
[18]
There
is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be granted, the decision is quashed and
the matter is to be remitted to a different officer for a new decision. Costs
are to be awarded to the Applicant in the amount of $5,000.00.
“Michael
L. Phelan”
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