Date: 20080910
Docket: IMM-4754-07
Citation: 2008
FC 1021
Toronto, Ontario, September 10, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
YLLI BOCERRI
ANILA BOCERRI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a negative humanitarian and compassionate (H&C)
decision with respect to a mother and father, who are citizens of Albania, and their young Canadian
born child. I find that the central issue in the decision is whether the
H&C Officer was alert, alive, and sensitive to child’s best interests.
[2]
In the
application for H&C consideration, Counsel for the Applicants made the
following argument with respect to the child’s best interests:
In addition to the above, there is also
the aspect of the negative impact that removing this family to Albania will have on their Canadian
born child, who is not subject to removal from Canada but would obviously be forced to leave
in order that he is not separated from his parents. It is submitted that Kevin
would suffer irreparable harm if he has to leave his country of birth and
re-adjust himself to life in Albania, a country which is
completely foreign to him.
[Application Record, p. 20]
[3]
In support
of this argument, the following evidence was tendered of in-county conditions
in Albania:
The Government generally respected the
human rights of its citizens; however, there were serious problems in several
areas. Police beat and abused suspects, detainees, and prisoners. Prison
conditions remained poor. The police occasionally arbitrarily arrested and
detained persons, and prolonged pretrial detention was a problem. Official
impunity was a problem. The Government occasionally infringed on citizens’
privacy rights. Political interference in the media occurred less frequently
than in previous years. Police reportedly used excessive force against
protestors. Individual vigilante action, mostly related to traditional blood
feuds, resulted in some killings and an atmosphere of fear in some areas of the
country. Societal violence and discrimination against women and children
were serious problems. Societal discrimination against Roma, the Egyptian
community, and homosexuals persisted. Child labor was a problem. [Emphasis
added]
[…]
The Government’s commitment to children’s
rights and welfare is codified in domestic law; however, in practice, there was
limited commitment.
[U.S. Department of State: Country
Reports on Human Rights Practices, 2004: Albania, Applicant’s Application Record, p. 93,
103]
[4]
On the
issue of the child’s best interests, the entire analysis in the decision under
review reads as follows:
At the same time, the relative short
period of time the applicants resided in Canada since 2003 and were employed since 2005
and the young age of their child at 3 were considered as well. In view of those
factors, despite difficulty that might arise for them and their child upon
return to Albania, the applicants were not found to have established in Canada
to a degree that severing the ties would cause them such a negative impact that
would constitute unusual and undeserved or disproportionate hardship. With the
applicants’ proper love and care, their child, if it was decided for him to
return with them, would eventually adjust to the country conditions in Albania, which were understandably
not as ideal as those in Canada.
[Application Record, p.12]
[5]
In my
opinion, the H&C Officer’s decision with respect to the child in question
is wholly deficient. It was incumbent on the H&C Officer to consider the Canadian
born child as an individual, apart from the fact that, if his parents are
required to return to Albania, he would be in their care.
As an individual, the child is entitled to an independent assessment as to
whether his best interests are served by his displacement to Albania.
[6]
An H&C
assessment of the best interests of a child involves a careful analysis of a
number of important factors, quite apart from the single factor of whether he
or she will be in the care of his parents should they be required to leave Canada (see Gurpreet Singh Gill
v. The Minister of Citizenship and Immigration 2008 FC 613, para. 17).
It is obvious that the reality of this child’s potential future life in Albania
was not squarely in the mind of the H&C Officer when the decision under
review was made and, as a result, I find that the H&C Officer was not
alert, alive, and sensitive to his best interests.
ORDER
Accordingly, I set aside the
decision under review, and refer the matter back for redetermination before
another H&C officer.
“Douglas
R. Campbell”
Email this Content