Date: 20080207
Docket: IMM-873-07
Citation: 2008
FC 165
Toronto, Ontario, February 7, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ALEKSEJS
VITALY KOLOSOVS
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
present Application, a grandfather of four Canadian born children (the
Applicant), who applied to remain in Canada as a permanent resident on
Humanitarian and Compassionate (H&C) grounds, challenges the Decision of a
Visa Officer (Officer) who found there are insufficient H&C considerations to
warrant approval of his request.
[2]
Originally
born in Russia, the Applicant worked in
Latvia for some years aboard a fish boat which entered St. John’s harbour in 1997, and as a result of the
owners of the vessel declaring bankruptcy while in that port, he left the ship
and entered the Canadian immigration system. Since his arrival, the Applicant
has, at times, held valid work permits, and when he had these permits he was hired
by Newfoundland employers who have expressed a
need for his net-making expertise. The Applicant made several applications to
remain in Canada, all of which were
unsuccessful. On his scheduled deportation date in April of 2005, the Applicant
went into “sanctuary” at West
End Baptist Church, St. John’s, Newfoundland, where he is currently
living.
[3]
The
Applicant’s H&C application consists of written submissions by the
Applicant and supporting documentation, including 26 letters of support. The
primary H&C consideration raised in the application is the best interests
of the Applicant’s grandchildren, all of who are under the age of 10, and the
harm that they will suffer if their grandfather is forced to leave Canada. The Applicant submitted that
the best interests of his grandchildren would be negatively impacted by his
removal because he is the only father figure in his grandchildren’s life and he
provides significant support to them and their single-parent 26-year-old
mother. Several of the letters of support, written by the Applicant’s daughter-in-law,
the Applicant’s potential employers, and other members of the community, note
that this support is especially important since one of the grandchildren,
three-year-old Alexsey, requires extra care because he suffers from diabetes. In
addition to the children’s best interests, the H&C application details that
the Applicant: has no citizenship; would have difficulty obtaining a job if he
were returned to Latvia as he has not been there in many years and does not
speak Latvian; has two job offers in Canada where his skills are in demand; and
is a well regarded member of the community in which he lives.
[4]
The
Officer’s legal basis for assessing the Applicant’s H&C submission is found
in s.25(1) of the Immigration and Refugee Protection Act S.C. 2001, c.
27, which specifically notes that the best interests of children should be
considered:
|
25.
(1) The Minister shall, upon request of a foreign national who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative, 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
interestss of a child directly affected, or by public policy
considerations.
|
25. (1) Le ministre doit, sur demande d’un étranger
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative, 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.
|
[Emphasis added]
[5]
The Supreme Court of Canada in
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R.
817 (QL) (Baker) recognized that this section conveys a broad discretion
on a visa officer; however, it held that an officer must exercise this
discretion reasonably, paying particular attention to the best interests of the
child and that, therefore, the appropriate standard of review of an H&C
decision is reasonable simpliciter.
[6]
Baker at para. 73 also recognizes that the guidelines
promulgated by the Minister of Citizenship and Immigration to aid visa officers
in making H&C decisions, IP 5 Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds (Guidelines), can be a “useful indicator of what constitutes a
reasonable interpretation of the power conferred by the section”.
[7]
The
Applicant argues that the Decision was unreasonable because the Officer’s analysis
of the best interests of the Applicant’s grandchildren was deficient. In
addition, the Applicant argues that the Officer breached due process by relying
on two extrinsic pieces of evidence which were never put to the Applicant. I
agree with both of these arguments.
I. Requirements for Determining the
Best Interests of the Child
[8]
Baker 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
[9]
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
[10]
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.
[11]
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
[12]
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”
II. Did the Officer Meet the Requirements
for Determining Best Interests?
[13]
The
Officer’s determination of best interests of the children in the present case
is as follows:
Best interests of the children
The applicant has 4 Canadian
grandchildren in Newfoundland. He states that those children and he would
suffer if he has to leave Canada for Latvia. He says that he is their primary
father figure and the only one who could teach them their Russian heritage. The
father of those children, the applicant’s son, was deported to Latvia in 2005.
The applicant states that the
children and their Canadian mother depend on him for emotional and financial
support.
I acknowledge that the return of
the applicant to Latvia will cause hardship to his 4 grandchildren. However,
family separation is within the normal consequences of the removal of someone
who has no recognized status to remain in Canada. I note that
there is no indication on file that this situation would mean unusual and
undeserved or disproportionate hardship.
In addition, the applicant
affirms that one of his grandchildren suffers from Type-2 diabetes. I note that
with proper treatment, the condition of the child is manageable. His situation
can be improved by eating healthy meals and snacks, enjoying regular physical
activity and taking diabetes medications (including insulin), if prescribed by
the doctor (see Type 2 diabetes: the basics on the Canadian Diabetes
Association website).
I also note that the applicant
has his own family back in Latvia, a daughter and a son.
I have considered the best
interests of the 4 Canadian children and find that the applicant has not
established that returning to Latvia and leaving them behind would have a
significant negative impact on those children that would amount to unusual and
undeserved or disproportionate hardship.
[Emphasis added]
(Decision, Tribunal Record, p.8)
[14]
In my
opinion this passage does not meet the standard set above for an alert, alive,
and sensitive determination of the best interests of the Applicant’s
grandchildren. There is no meaningful critical analysis of the best interests
of these children in their real life situation. In particular, it is obvious from
cursory acknowledgement in the decision of Alexsey’s diabetic condition that the
Officer was not alert, nor alive, to the seriousness of his health problem. The
evidence on the record with respect to Alexsey’s health, which was apparently
neglected by the Officer, is as follows:
My greatest concern is for a Russian man
from Latvia by the name of Alexei
Kolosovs. He has been in Sanctuary at the West End Baptist Church since April 26, 2005. The day of his
scheduled deportation his 2 year old grandson was in very serious condition in
the Children’s Hospital, where he had been brought 3 days earlier in a diabetic
coma…It was Alexei that was there at the birth of the children and has been the
emotional and financial (before his work permit was revoked) support of this
little family.
(Letter dated 23 February 2006, Tribunal
Record, p. 101)
He is especially close to his
grandchildren and has in fact been very much the emotional and financial
support for them. The youngest grandchildren are 2 year old twins, one of whom
is named after Alexi. This grandchild suffers with juvenile diabetes and was in
the hospital at the time Alexi was to be deported. His grandchildren need him
as a male role model in their lives.
(Letter dated 6 February 2006, Tribunal
Record p.104)
Days before his scheduled deportation in
April 2005, Mr. Kolosovs’s[sic] 2 year old grandson [also named Alexi] was
brought to the Janeway Children’s Hospital emergency room where he was
subsequently diagnosed with juvenile diabetes. His concern for his grandson’s
health and the circumstances of the rest of the family led Mr. Kolosovs to seek
sanctuary in West End Baptist church.
(Letter dated 25 November 2005, Tribunal
Record p.106)
The child was diagnosed with juvenile
diabetes, an illness that is extremely hard to control in a small child. This
little boy is one of a twin and he has had several severe relapses that
required hospitalization. Alexey loves his grandchildren, and they love him.
(Letter dated 8 September 2006, Tribunal
Record p. 130)
In my opinion, the glib use of an undue hardship standard in
the present case certainly reflects a lack of sensitivity to each of the
children.
[15]
As a
result, I find that the decision is unreasonable.
III. Was the Decision Rendered in
Breach of Due Process?
[16]
The
Applicant argues that the Decision was rendered in breach of due process
because the Officer twice relied on extrinsic evidence, but did not give the
Applicant an opportunity to consider the evidence and to respond. This
requirement is emphasized at several points in the Guidelines:
11.1 Procedural
fairness
Officers must follow
procedural fairness in making their decisions.
Officers should:
·
carefully
consider all the information before them;
·
inform
the applicant when considering outside information, giving the applicant a
chance to respond;
·
request
any additional information needed;
5.6. First-step
assessment: Toward the H&C decision
…
The decision-maker
considers the applicant's submissions in light of all the information known to
the officer. If the information is extrinsic (i.e., information from a source other
than the applicant or information to which the applicant does not have access
or is not aware is being used in the decision), this information should be
shared with the applicant, and submissions on the information should be
invited, before the information is used in the decision.
[17]
The Officer used two pieces of
information in contravention of this fairness rule: with respect to Alexsey’s
condition, general information on the treatment of Type 2 diabetes from the Canadian
Diabetes Association website; and internal
“notes to file” respecting the Applicant’s negative 2003 PRRA decision. In my
opinion, the use of each piece of information had an unfair negative impact in
the Decision.
[18]
The Canadian Diabetes Association
information appears to be geared towards adults seeking to tailor their life
style to minimize their Type 2 diabetes symptoms, and is of minimal relevance
to a young child that already has serious onset.
[19]
The Applicant’s
H&C submissions indicate he would have difficult obtaining employment in Latvia because he does not speak
Latvian and the language laws require competency in Latvian. The internal
“notes to file” are used to conclude that this was not an important factor as
follows:
Additionally,
I acknowledge that in the Note to file of the applicant’s pre-removal
risk assessment (PRRA), the officer wrote:
“Concerning the applicant’s stated risk
re denial of employment I am satisfied that this amounts to speculation. I
realize that some occupations require a proficiency in the Latvian language but
not all do. According to one source members of Russian ethnic group comprises
29.6% of the population of Latvia. I could find nothing in my research
that would allow me to conclude that they are denied employment as a general
rule”.
It is not clear whether the Applicant knew of the opinion
expressed some four years before, but, in any event, he had no notice that it
would be used to his detriment in the present H&C proceeding. Indeed, there
is no evidence concerning the reliability of the source the PRRA officer used, or
whether the language laws in Latvia had changed in the
intervening years.
[20]
As a
result, I find that the Decision was rendered in breach of due process.
ORDER
Accordingly, I set aside the Decision, and refer
the matter back for re-determination before a different visa officer.
“Douglas
R. Campbell”
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