Date: 20040616
Docket: IMM-9767-03
Citation: 2004 FC 873
Vancouver, British Columbia, Wednesday, the 16th day of June 2004
Present: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
BETWEEN:
CUI WAN SU
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Immigration Officer J. Lawrence, dated November 18, 2003, which denied the Applicant's application for permanent residence from within Canada on humanitarian and compassionate grounds.
[2] The Applicant is a citizen of the People's Republic of China (PRC). She came to Canada on November 9, 1998. On the same day she was issued an exclusion order. Nonetheless, the Applicant remained in Canada where she met Mr. Bo Wei Zhou. On November 15, 2001, the couple were married. On December 18, 2001, the Applicant applied for an exemption to apply for permanent residency status from within Canada. On February 7, 2003, the couple had a son named Alex.
[3] This case raises two issues:
1. Did the Immigration Officer fail to consider the best interests of the Applicant's son?
2. Did the Immigration Officer improperly consider establishment factors?
[4] It is now well established that the standard of review for H & C decisions is reasonableness (Baker v. Canada (M.C.I.), [1998] 1 S.C.R. 982; Ek v. Canada (M.C.I.), [2003] F.C.J. No. 680).
Issue 1: Did the Immigration Officer fail to consider the best interests of the Applicant's son?
[5] The Applicant submits that Officer Lawrence failed to consider the negative effect which her return to the PRC would have upon her son, in particular that she failed to consider the emotional bonds between the mother and child, and erred in concluding that the Applicant's husband would be able to fully care for the child as a single parent.
[6] In addition, the Applicant contends that the Officer failed to consider the possible effects of the PRC's one child policy on the Applicant's son. Specifically, the Applicant alleges that if Alex returns to the PRC with her, he would not gain automatic Chinese citizenship as he had been born in Canada. As a 'black child' (a child born without prior authorization) he would be denied numerous social services particularly in the field of health and education.
[7] Finally, the Applicant submits that, pursuant to Article 3(1) of the Convention of the Rights of the Child, the Officer was obliged to make the Applicant's son's interests the primary consideration in her inquiry.
[8] In Hawthorne v. Canada (M.C.I.), [2003] 2 F.C. 555 (C.A.), at paras. 4-5, Décary J.A. described the "best interests of the child" as follows:
The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
[Underlining added]
[9] In Baker, supra, the Supreme Court found that the best interests of a child, while relevant, are not determinative of an H & C analysis. Specifically, it concluded at para. 75 that:
... the decision maker should consider the children's best interest as an important fact, give them substantial weight, and be, alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when the children's interests are given this consideration.
[Underlining added]
[10] In Hawthorne, supra, Décary J.A. further considered the relative weight which should be accorded to the best interests of the child as follows at para. 3:
First, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (leave to appeal denied by the Supreme Court of Canada, November 21, 2002, SCC 29221), stand for the proposition that the best interests of the child is an important factor that must be given substantial weight. Legault stands for the further proposition that the best interests of the child is not determinative of the issue of removal to be decided by the Minister. To the extent, therefore, that they could lead to the impression that the "best interests of the child" factor should be given some form of priority or preponderance, the words "primary consideration" found in Article 3, paragraph 1 of the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3] (see paragraph 33 of my colleague's reasons) should be read with caution. (I am assuming, [page562] solely for the sake of this discussion, that removal of a parent is an "action concerning children" within the meaning of Article 3, paragraph 1 of the Convention, which Convention, as is noted by my colleague, has been ratified by Canada but has not been enacted into domestic law.)
[11] In this case, I find that Officer Lawrence gave careful and detailed consideration to the best interests of the Applicant's son. Particularly, she noted:
· Separation of a mother and son, albeit even temporarily would be difficult;
· Both parents take a role in parenting their son;
· No evidence was provided that the father could not make alternate arrangements for child care if the mother was out of the country and he was at work;
· Evidence of difficulties "out of plan" children face in China, presented by the Applicant, was not applicable as it pertained to second children;
· The Applicant has family in China which could assist both the Applicant and her son in integrating or reintegrating into PRC society; and
· The Applicant's husband could continue to support them from Canada if the Applicant had to apply for a visa from outside the country.
[12] The evidence in the tribunal record regarding 'black children' is not conclusive and the Officer made a reasonable finding on that evidence when stating in her decision:
Whilst I am cognisant of the information and evidence presented by the applicant and her counsel with respect to out-of-plan or 'black children,' I note, as previously stated, that the preponderance of information focuses on children born in the PRC. The applicant's child was born in Canada, and is therefore not a similarly situated person. Much of the information contained within the information and evidence presented by the applicant and her counsel, as well as within publicly available documentary evidence, makes reference to second children. As previously stated, the applicant appears to be an only child, and so is not similarly situated. It is clear that, should the applicant decide to take her son to the PRC, she may have to pay for her son to have access to education and medical care. The sources consulted do not indicate, definitively, that the applicant would have to pay a fine for having an out-of-plan child because, as previously stated, the applicant's child was born in Canada and the preponderance of information refers to children born in the PRC.
[13] In light of the above fact and the citations from Baker and Hawthorne above, it is clear that the actions of the Officer were consistent with Article 3(1) of the Convention of the Rights of the Child.
Issue 2: Did the Immigration Officer improperly consider establishment factors?
[14] The Applicant submits that Officer Lawrence erred by giving negative consideration to the fact that she did not work outside of the home, particularly given that she was engaged in full-time child care and had a traditional marriage. Moreover, it is submitted that this negative consideration was illogical given that the Officer acknowledged that the Applicant's husband was able to and had, in fact, been supporting the family.
[15] In her reasons contained at page 70 of the Applicant's Record, the Immigration Officer concluded:
The applicant makes no indication that she has worked or studied in Canada, and provides no information with respect to volunteer work or involvement in the community, such as, for example, involvement in community, social or religious groups. The applicant submits that she wishes to care for her family in Canada, and to seek employment later.
[16] The Immigration Manual: Inland Processing, Chapter 5, Section 11.2, specifically directs Immigration Officers to consider factors such as whether or not an applicant has a history of stable employment and a pattern of sound financial management in Canada and whether or not an applicant has demonstrated community or volunteer involvement or has undertaken activities such as study that demonstrates integration into Canadian society.
[17] It was thus open to the Officer to consider the degree of establishment of the Applicant in Canada, including that she had never worked, studied, completed volunteer work or been involved in community, social or religious groups while in the country. The Officer did not err in considering this array of factors in her decision.
[18] Given that the Officer's decision in respect of both contentions by the Applicant was reasonable, this application will be dismissed..
ORDER
THIS COURT ORDERS that this application be dismissed.
(Sgd.) "K. von Finckenstein"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9767-03
STYLE OF CAUSE: CUI WAN SU v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: June 16, 2004
REASONS FOR ORDER AND ORDER: VON FINCKENSTEIN J.
DATED: June 17, 2004
APPEARANCES:
Ms. Laura Valdez FOR APPLICANT
Ms. Sandra Weafer FOR RESPONDENT
SOLICITORS OF RECORD:
Laura Valdez FOR APPLICANT
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, ON
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