Date: 20050510
Docket: IMM-3010-04
Citation: 2005 FC 661
Toronto, Ontario, May 10th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
KEN WAZAIR ABDUL AFFEES BAGWANDEEN,
VERONA BAGWANDEEN and KENVOL KEDESH BAGWANDEEN,
by his Litigation Guardian, Ken Bagwandeen
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and SOLICITOR GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicants are a father and mother and their 12 year old son, Kenvol. They are citizens of Jamaica, and came to Canada in 1995. Shortly after coming to this country, the applicants filed applications for permanent residence from within Canada based on humanitarian and compassionate grounds ("H & C" applications). These applications were rejected, as were their subsequent claims for refugee protection.
[2] After the rejection of their refugee claims, the family then submitted a second set of H & C applications. The immigration officer charged with responsibility for the file refused these applications, finding that the applicants had failed to demonstrate that they would suffer unusual, undeserved or disproportionate harm if they were required to apply for permanent residence from abroad.
[3] The applicants now seek judicial review of the officer's decision, asserting that the officer erred by ignoring evidence and by failing to properly consider the evidence of establishment. The applicants further submit that the officer also erred by failing to adequately consider the best interests of the children affected by the decision, and by failing to provide adequate reasons for her decision.
[4] I am satisfied that this application must be allowed, as the officer ignored evidence and failed to properly consider the interests of children affected by the decision. As a consequence, it is unnecessary to address the other issues raised by the applicants.
Background
[5] The applicants had each been in Canada for some nine years when the decisions were rendered in relation to their H & C applications. During the time that they have been in Canada, Mr. Bagwandeen and Ms. Bagwandeen have each been steadily employed, and there was no evidence before the officer that either had anything other than a good civil record.
[6] The family is financially secure. In addition to supporting their own children, and a foster child overseas, Mr. and Ms. Bagwandeen have also been supporting members of their extended family in Jamaica.
[7] Ms. Bagwandeen has several family members here in Canada. In addition, in 2001, she gave birth to a little girl named Sherona. Sherona is a Canadian citizen, by virtue of her birth in this country. Her older brother, Kenvol, is enrolled in school, where he is progressing well. He is involved in a number of after-school activities, has many friends and is very close to his relatives in Canada.
Standard of Review
[8] The standard of review governing the substantive content of decisions of immigration officers in relation to H & C applications is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[9] That is, the decision must be able to withstand a "somewhat probing examination": Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
Analysis
[10] I have carefully reviewed the officer's reasons, and, as will be discussed in greater detail below, have concluded that she erred in failing to properly consider a number of relevant factors in analysing the family's applications.
[11] As a consequence, the application for judicial review will be allowed.
Failure to Consider Mr. Bagwandeen's Medical Condition
[12] The submissions filed in support of Mr. Bagwandeen's application make reference to the fact that he suffers from diabetes. Mr. Bagwandeen asserts that his diabetes is well controlled by medication, and that he is unlikely to become a major drain on the Canadian health-care system. He also says that it is difficult to obtain the medication that he requires in Jamaica. Moreover, Mr. Bagwandeen asserts that he would likely be unable to afford his medication, if he were forced to return to Jamaica.
[13] Nowhere in the officer's analysis is any mention made of Mr. Bagwandeen's health situation, or the hardship that he alleges that he would suffer in relation to his health if he were returned to Jamaica.
[14] The Minister asserts that the officer was under no obligation to consider whether Mr. Bagwandeen's medical condition warranted an exemption because the issue was not squarely raised by the application as "an H & C factor". Moreover, the Minister says, Mr. Bagwandeen made no mention of his health situation in the supplementary submissions that he filed in connection with his application.
[15] It is true that no mention was made of Mr. Bagwandeen's health in his supplementary submissions. However, these submissions were filed in response to a request from the Minister for updated information on specific topics. Although it was open to Mr. Bagwandeen to provide additional information in relation to any matter that he wished to have considered, no information with respect to Mr. Bagwandeen's health was requested.
[16] A review of the original submissions filed in connection with Mr. Bagwandeen's application discloses that while he was clearly trying to down-play the severity of his diabetes, presumably so as to avoid being found to be inadmissible on medical grounds, nevertheless Mr. Bagwandeen's ability to gain access in Jamaica to the medication that he requires was squarely put before the officer as a hardship factor. In these circumstances, it was unreasonable for the officer to simply ignore this factor in her analysis.
Failure to Consider Ms. Bagwandeen's Current Employment Situation
[17] The evidence before the officer was that Ms. Bagwandeen was working as a nanny caring for three children. This was confirmed by letters from Ms. Bagwandeen's employer. According to Ms. Bagwandeen's submissions, the children's mother died shortly before she went to work for the family, and she has since become an integral part of their family unit. Ms. Bagwandeen is evidently very close to the three children, who regard her as a mother figure.
[18] The officer's reasons indicate that Ms. Bagwandeen was working as an on-line quality control inspector, which was the position that she held prior to going to work as a nanny. No mention is made in the officer's analysis of Ms. Bagwandeen's involvement with her employer's family, and no consideration is given to the effect that her removal would have on the three motherless children.
[19] The Minister argues that the officer was not obliged to refer to every aspect of the evidence before her, pointing out that a decision-maker will be presumed to consider all of the evidence before her. It is true that there is such a presumption, but it is a rebuttable one. In my view, the circumstances of Ms. Bagwandeen's current employment were material to her application. The failure of the officer to properly identify Ms. Bagwandeen's employer, coupled with her failure to even mention the situation of the three children that Ms. Bagwandeen cares for leads to the inescapable inference that this evidence was simply overlooked by the officer.
Failure to Adequately Address Kenvol's Best Interests
[20] The applicants submit that the officer failed to properly identify Kenvol's interests, and thus was not sufficiently 'alert, alive and sensitive' to those interests. According to the applicants, the officer relied heavily on the fact that Kenvol's parents had chosen to remain in Canada, without status, and thus were to a large extent the authors of their own misfortune. The applicants point out that, as a child, Kenvol was entirely blameless and should not be penalized for his parent's choices.
[21] In addition, although there was evidence before the officer with respect to the extent of Kenvol's integration into his community, this evidence was largely ignored. Further, although information was before the officer with respect to the close relationship between Kenvol and his extended family in Canada, this information was also not addressed by the officer in her reasons.
[22] The Minister submits that the primary concern contemplated by Baker and subsequent decisions such as Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) and Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.), is that H & C officers be "alert, alive and sensitive" to the interests of children, and the effects of separation on children, parents and their close family members.
[23] The Minister contends that the officer did not err in this case as she weighed all of the relevant factors.
[24] A review of the Baker, Hawthorne and Legault decisions reveals that, in order to be alert, alive and sensitive to the interests of the child in question, an H & C officer must ensure that the child's interests are well identified and defined.
[25] There is no prima facie presumption that the best interests of the child will prevail. Rather, while an officer must be sensitive to the needs of the child, it is ultimately up to the officer to decide how much weight should be given to the needs of the child in the circumstances of a given case.
[26] I am not persuaded that Kenvol's interests were sufficiently well identified or defined by the officer in this case. The officer found that having spent all of his formative years in Canada, Kenvol had gained valuable educational and community experience that would stand him in good stead in Jamaica. The officer does not appear to have given any consideration to the effect that uprooting Kenvol from the country where he has lived since he was a toddler would have on this young man.
[27] Further, the officer does not appear to have given any consideration to the fact that Kenvol would be separated from several members of his extended family, with whom he apparently enjoys a close relationship.
[28] It was open to the officer to weigh these factors, along with the other considerations involved in an H & C determination, and to decide that Kenvol's interests were outweighed by other factors. It was not, however, open to the officer to simply ignore them.
Conclusion
[29] For these reasons, the application for judicial review is allowed.
Certification
[30] Counsel for the applicants has suggested that several questions for certification could conceivably arise in this case, depending on what my reasons were for my decision. However, no specific wording for these questions was proposed.
[31] In my view, none of the issues identified by Ms. Jackman as potentially giving rise to questions for certification are determinative of this case, and accordingly, I decline to certify a question.
ORDER
THIS COURT ORDERS that
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-3010-04
STYLE OF CAUSE: KEN WAZAIR ABDUL AFFEES BAGWANDEEN,
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: MAY 9, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: MAY 10, 2005
APPEARANCES BY:
Barbara Jackman FOR THE APPLICANTS
Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
Barbara Jackman
Jackman & Associates FOR THE APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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