Legault v. Canada (Minister of Citizenship and Immigration), 2001 FCT 315

Date: 20010411

Docket: IMM-4742-99

Neutral Citation: 2001 FCT 315

BETWEEN:

ALEXANDER HENRI LEGAULT, domiciled

and residing at 1455 Sherbrooke Street West,

Apt. 607, in the City and District of Montreal,

Province of Quebec, H3G 1L2

                                                                                         Applicant

                                               - and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION, c/o the Deputy Attorney

General of Canada, Department of

Justice, having an office at Guy Favreau

Complex, 200 René Lévesque Blvd. West,

East Tower, 5^th Floor, in the City and

District of Montreal, Province of Quebec,

H2Z 1X4

                                                                                     Respondent

                                  REASONS FOR ORDER

NADON J.

[1]    This is an application for judicial review of the decision rendered by Immigration Officer Nicole Nappi ("Officer Nappi") whereby she refused the applicant's application, pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act), for an exemption, based on humanitarian and compassionate grounds, from the requirement prescribed at subsection 9(1) of the Act that his application for permanent residence be submitted from outside Canada. Subsections 9(1) and 114(2) of the Act read as follows:

[2]                The applicant, a citizen of the United States of America, arrived in Canada as a visitor in January 1982. At that time, he was married to Frances Langleben, a Canadian citizen. Shortly after his arrival, he was arrested following a request for his extradition made by the government of the United States, which alleged that he had committed fraud in that country. Extradition proceedings were conducted in Montreal before a judge of the Superior Court for the Province of Quebec, who, on March 10, 1983, dismissed the extradition application on the ground that the affidavit evidence tendered by the government of the United States was deficient.

[3]                On March 18, 1983, the applicant's wife, Ms. Langleben, filed a sponsorship application in support of his application for permanent residence. On March 31, 1983, the applicant was issued a Minister's permit which allowed him to remain in Canada for a period of one year. The ministerial permit was subsequently extended on several occasions.

[4]                On March 14, 1986, a U.S. federal grand jury returned a bill of indictment against the applicant on a number of offences, including conspiracy to commit wire and mail fraud, fraud, falsely making a bill of lading and use of fictitious names. On the basis of the indictment, a warrant for the applicant's arrest was issued on March 14, 1986, by a U.S. District Court.

[5]                On June 22, 1988, the applicant was informed that his ministerial permit would not be renewed beyond June 24, 1988 and that he would have to leave Canada on or before that date. By letter dated October 5, 1988, he was informed that his application for permanent residence in Canada had been refused because he did not have a valid U.S. passport. Consequently, the applicant was informed that he had to leave Canada on or before October 26, 1988. He made a request to the Governor-in-Council for a waiver of the passport requirement, but his request was refused on the ground that he had no valid reason for not obtaining the passport. The Consulate General of the United States in Montreal refused to issue a passport to the applicant by reason of the outstanding U.S. federal warrant for his arrest.

[6]                In February 1993, due to his failure to leave Canada by the prescribed date, three reports were made by immigration officers that the applicant was a person described in paragraphs 19(1)(c.1)(ii), 27(2)(a), 27(2)(b) and 27(2)(e) of the Act. Following those reports, the Deputy Minister of Employment and Immigration directed that an inquiry be held. However, on December 8, 1993, prior to the conclusion of the inquiry, the applicant claimed refugee status in Canada.

[7]                On December 10, 1993, the adjudicator conducting the inquiry found that in addition to being a person described in paragraphs 27(2)(b) and 27(2)(e) of the Act, the applicant was criminally inadmissible in Canada under the provisions of paragraph 27(2)(a) and sub-paragraph 19(1)(c.1)(ii) of the Act. Consequently, the adjudicator issued a conditional deportation order against the applicant.

[8]                The applicant challenged the adjudicator's decision by way of an application for judicial review before this Court. On January 17, 1995, McGillis J. allowed his application for judicial review and set aside the adjudicator's decision. However, on October 1, 1997, the Federal Court of Appeal overturned McGillis J.'s decision and dismissed the applicant's application for judicial review. On March 12, 1998, the Supreme Court of Canada dismissed the applicant's application for leave to appeal to that Court.

[9]                On September 17, 1998, the applicant's refugee claim was dismissed by the Refugee Division of the Immigration and Refugee Board (the "Board") and on November 5, 1999, I dismissed the applicant's application for judicial review of the Board's decision.

[10]            On April 1, 1998, the applicant filed an In Canada Application for Permanent Residence based on humanitarian and compassionate grounds. On August 26, 1999, the applicant's new wife, Kim-Du Trinh, a Canadian citizen, sponsored his application. On September 16, 1999, Officer Nappi denied the applicant's application, and on September 24, 1999, the applicant filed the application for judicial review which is now before me for determination.

[11]            It should be noted that the applicant has been divorced from Ms. Langleben since 1997, that he married Ms. Trinh on March 23, 1999, and that he and Ms. Trinh have been separated since April 29, 1999. It should further be noted that the applicant has seven children, six of whom were born in Canada: two with Ms. Langleben, Mathieu and Emma, now aged 17 and 15 respectively, and four with Ms. Trinh, Kayla, Alexander, Teron and Jacqueline, now aged 7, 6, 4 and 2 respectively.

Officer Nappi's Decision

[12]            As grounds for his application for an exemption from the requirements under subsection 9(1) of the Act, the applicant submitted that he had been living in Canada since 1982 and that he had two families in Canada, of which he was the sole supporter. He further submitted that his son Alexander suffered from a behavioural disorder which required therapy, and that his daughter Jacqueline was being treated for an undiagnosed medical condition and that she would probably require treatment for the rest of her life.

[13]            The applicant also submitted that he had established a successful business in Canada, creating employment for several Canadians. He further contended that he could not return to the United States to apply for landing in Canada since he would be jailed and prosecuted, and that he could not travel to any other country to make his application since he had no passport or travel documents.    The applicant stated that if he was forced to leave Canada, he would be incarcerated and therefore unable to provide for his dependants.

[14]            In her decision, Officer Nappi noted that Ms. Langleben, the applicant's first wife, had custody of their two children, but that the children visited the applicant regularly. In addition, Officer Nappi noted that the applicant paid for the children's education and gave his ex-wife an amount for child support as well as a monthly allowance, since she did not work.

[15]            Officer Nappi also indicated in her decision that Ms. Trinh, the applicant's current wife, had not worked since the birth of their first child. Therefore, the applicant supported her and the children and paid the rent and all of the expenses. Since their separation, the children had been spending one week with the applicant and one week with their mother, with the exception of the youngest child, Jacqueline, who stayed with Ms. Trinh because of her need for constant care.

[16]            After considering the above-mentioned facts, Officer Nappi came to the following conclusion with respect to the impact which the applicant's departure from Canada would have on his two families:

Il est certain que les enfants, la conjointe et l'ex-conjointe vont subir des désagréments si le requérant doit quitter le Canada mais ils subissent déjà tous les contrecoups du divorce et de la séparation. C'est déjà une forme d'absence. Les deux enfants qui ont des problèmes reçoivent déjà des soins et ils vont continuer à en recevoir même si le requérant n'est pas là. Rien ne nous permet de penser que les difficultés déjà présentes chez ces enfants seront aggravées à cause de son départ du pays. Du point de vue financier ce sera aussi plus difficile. Il se peut que les mères aient besoin d'aide tout comme n'importe quelle personne qui se trouve dans la situation où son conjoint doit faire face à la justice. Le requérant qui a des problèmes avec la justice américaine depuis 1982 a fait le choix personnel de mettre au monde 5 autres enfants. À la question : vous avez eu 5 enfants malgré le fait que vous ayez des problèmes avec la justice américaine depuis 1982 le requérant a répondu qu'il pensait qu'il serait accepté au Canada. Son épouse actuelle était aussi au courant que son mari avait des problèmes même si elle déclare ne pas connaître tous les détails de l'affaire parce que son mari a toujours répondu de façon évasive à ses questions.

[17]            With regard to the applicant's business, Officer Nappi agreed that he had created a business allowing him to support his two families and providing employment for Canadian citizens. Officer Nappi indicated that the applicant had a business partner, as well as five employees in Montreal, two in London and one in Riga. She concluded that the fact that the applicant had a partner was positive, since the subsistence of the applicant's families could be provided for by that partner if the applicant had to leave Canada temporarily.

[18]            Officer Nappi was also of the opinion that the applicant did not want to return to the United States because he was afraid of being imprisoned. She stated that Canada could not allow an individual to stay in this country in order to avoid justice in his country, and that the United States were recognized as a democratic country with a judicial system which allowed any individual to be heard and to defend himself. Officer Nappi, therefore, concluded that there were no personal and objectively identifiable risks to the applicant if he were to return to the United States, and that he would be treated like all other American citizens in the same situation.

[19]            Finally, Officer Nappi indicated that after having analysed the facts and the documents and after having met the applicant and his wife in interview, she was not satisfied of the good faith of their marriage. For all of the above-mentioned reasons, she was not satisfied that there existed sufficient humanitarian and compassionate grounds to justify an exemption from the requirements prescribed at subsection 9(1) of the Act.

Submissions

[20]            Firstly, the applicant submits that Officer Nappi failed to consider relevant criteria, namely the best interests of the children, the fact that the applicant has been in Canada since 1982, and the unfairness to which he might be exposed in the United States. According to the applicant, Officer Nappi was not attentive to the children's best interests, as required by Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817. The applicant contends that it is preposterous to consider the loss of the physical presence and financial support of a father as a "désagrément".

[21]            The applicant also claims that the length of stay and the economic commitment and benefit to Canada were not considered by Officer Nappi. At the hearing, the applicant further argued that there was no basis for Officer Nappi's conclusion that the applicant's business partner would take care of his family if he had to leave Canada.

[22]            On the issue of the consequences which might flow from his return to the United States, the applicant submits that Officer Nappi ignored the opinion of Mr. William Schaab, his New York counsel, who urged him not to return to the United States, and ignored the fact that the Canadian courts found no evidence of criminal conduct during the course of the applicant's extradition hearing.

[23]            The applicant further submits that Officer Nappi's decision is patently unreasonable and that it should be set aside. The applicant contends that the mere fact that Officer Nappi mentioned the children in her decision is not proof that they were reasonably considered, as required by Baker, supra. The applicant claims that his case for relief is overwhelming, considering that he has been in this country for 17 years, has not been hiding, has created a business, has paid taxes, is employing Canadians, has six minor Canadian children whom he supports and to whom he is a good father, and that he is likely to be prosecuted in the United States for events which occurred twenty years ago.

[24]            On the other hand, the respondent contends that the negative decision rendered by Officer Nappi is reasonable and that it was arrived at in light of all the evidence and circumstances raised by the applicant. The respondent submits that Officer Nappi was alert and alive to the interests of the children, and that she gave serious weight and consideration to those interests.

[25]            The respondent further submits that the applicant's length of stay in Canada as well as the economic aspects of his presence in this country were duly considered by Officer Nappi. The respondent contends that in the exercise of her duties to consider humanitarian and compassionate considerations, Officer Nappi had to pay attention to all aspects of what the Act stands for: not only to reunite families, but also to maintain and protect good order in Canadian society and to promote international order and justice by not allowing individuals to escape the judicial system of their country.

[26]            The respondent also submits that Officer Nappi did consider Mr. Schaab's opinion, and that she was entitled to determine that such opinion did not outweigh the risk of allowing someone to stay in Canada and enabling that individual to escape his country's judicial system. The respondent contends that although the request for the extradition of the applicant was denied in 1983, Officer Nappi was also aware of the grand jury indictment and of the U.S. warrant of arrest issued in 1986 against the applicant. In addition, the respondent submits that Officer Nappi satisfied herself that upon return to the United States, the applicant would have the opportunity to fully and fairly present his case.

[27]            Finally, the respondent contends that Officer Nappi was justified in concluding that the applicant's marriage to Ms. Trinh was a marriage of convenience for the purpose of supporting the applicant's request for ministerial exemption.

Analysis

(a) Standard of Review:

[28]            In Baker, supra, the Supreme Court of Canada determined that the appropriate standard of review for decisions made under subsection 114(2) of the Act was reasonableness simpliciter. L'Heureux-Dubé J. stated the following at pages 857 to 858:

These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court – Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.

[29]            Therefore, the issue before me is whether Officer Nappi's decision was unreasonable.

(b) The Best Interests of the Children:

[30]            With respect to the consideration of the best interests of the children in an H & C application, this issue was also discussed in Baker, supra. The facts in that case were the following: the appellant, Ms. Baker, entered Canada in 1981 and remained here illegally after that date. During her stay in Canada, she had four children. She was ordered deported in 1992, and applied in 1993 for an exemption from the requirement of having to apply for permanent residence from outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Act. Her request was denied. In the notes taken by the immigration officer, which led to the refusal, the following passage dealt with her children: "There are no H & C factors other than her FOUR CANADIAN-BORN CHILDREN. Do we let her stay because of that? I am of the opinion that Canada can no longer afford this type of generosity."

[31]            Ms. Baker's application for judicial review of the immigration officer's decision was dismissed by Simpson J., and her appeal to the Federal Court of Appeal was dismissed as well. However, the Supreme Court of Canada allowed the appeal and returned the matter to the Minister for redetermination. The Supreme Court was of the opinion, among other factors, that the interests of Ms. Baker's children had not been given proper consideration, which rendered the immigration officer's decision unreasonable.

[32]            One of the main issues discussed by the Supreme Court of Canada in Baker, supra, was the consideration which must be given to the interests of the children affected in an H & C application. L'Heureux-Dubé J., on behalf of a unanimous Court, established the principles which ought to be followed when children are involved. At pages 863 and 864, she stated the following:

The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned. In addition, the reasons for decisions failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she has been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.

It follows that I disagree with the Federal Court of Appeal's holding in Shah, supra, at p. 239, that a s. 114(2) decision is "wholly a matter of judgment and discretion" (emphasis added). The wording of s. 114(2) and of the Regulations shows that the discretion granted is confined with in certain boundaries. While I agree with the Court of Appeal that the Act gives the applicant no right to a particular outcome or to the application of a particular legal test, and that the doctrine of legitimate expectations does not mandate a result consistent with the wording of any international instruments, the decision must be made following an approach that respects humanitarian and compassionate values. Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values. The Minister's guidelines themselves reflect this approach. However, the decision here was inconsistent with it.

The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for an 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. 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. However, when 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.

[33]            Between the release of the Supreme Court's decision in Baker, supra, and the hearing of this case, this Court has had the opportunity to consider the issue of the best interests of children in the context of an H & C application in a number of cases. In six of those decisions, the application for judicial review was allowed because of the immigration officer's disregard for the interests of the children involved, against the principles established in Baker, supra. Only in three cases did the Court find that the immigration officer's reasons had sufficiently taken into account the children's best interests^[1].

[34]            I will review briefly the facts and reasons in those cases, all of which are applications for judicial review of negative H & C decisions by immigration officers pursuant to subsection 114(2) of the Act, in order to evaluate how the decision in Baker, supra, has been interpreted and applied by this Court. I will focus almost exclusively on the facts and reasons involving the children.

[35]            The first of the six cases in which the application for judicial review was dismissed is Sovalbarro v. Canada (Minister of Immigration and Citizenship) (1999), 174 F.T.R. 156, 3 Imm. L.R. (3d) 146 (T.D.), where the applicants, citizens of Guatemala, had been in Canada for four years and their children included a Canadian born son. The immigration officer's notes, which were taken to be the reasons for the decision, contained very limited mention of the children: they revealed that the applicants claimed that they "have a Canadian born child and that conditions here are better for their children", and there was a reference to the applicants' Canadian born son in parentheses in the "Officer's Recommendation" section. After considering the Supreme Court's decision in Baker, supra, McDonald J. concluded that the decision was unreasonable on the grounds that the immigration officer failed to give proper consideration to the interests of the applicants' Canadian born son and their other children.

[36]            In the next case, I.G. v. Canada (Minister of Immigration and Citizenship) (1999), 177 F.T.R. 76 (T.D.), the applicant came to Canada in 1993 from the Czech Republic. In 1996, she brought her son to Canada from the Czech Republic and gave birth to a daughter in Canada. The immigration officer, in her reasons for a negative H & C decision, which were reproduced at para. 22, referred only once to the daughter:

Another reason why subject indicates she cannot go back is due to the fact that she can't leave Ontario with her daughter. But I believe given the violent history of the child's father she would have little difficulty in obtaining full custody.

[37]            After reviewing L'Heureux-Dubé J.'s statements in Baker, supra, Lemieux J. stated the following, at para. 37:

In my view, it is evident the Supreme Court of Canada's decision in Baker mandates a new perspective and a new emphasis by immigration officers when rendering humanitarian and compassionate decisions under the Immigration Act. Where children are involved the immigration officer must consider the children's best interests as an important factor, must give those interests substantial weight and be alert and alive to them. [...]

[38]            Lemieux J. allowed the application for judicial review, and concluded at para. 40 that:

Reviewing the decision of the Immigration Officer in this case I am struck by the fact the analysis of humanitarian considerations is exclusively in respect of the applicant, Ingrid Garasova, herself. In those reasons, there is an absence of consideration of the interests of either the Canadian or Czech born child.

Such an approach by the Immigration Officer cannot be a reasonable exercise of a power which requires close attention to the interests and needs of children because children's rights and attention to their interests are central humanitarian and compassionate values in Canadian society.

[39]            In the third case, Navaratnam v. Canada (Minister of Immigration and Citizenship) (1999), 179 F.T.R. 294, the applicant, a citizen of Sri Lanka, arrived in Canada in 1995 and gave birth to a daughter in Canada in 1996. Due to the lack of official reasons for refusal of the H & C application, the notes of the interviewing officer were provided to the applicant. The notes contained no mention of the impact of the denial of the H & C application on the daughter.

[40]            In allowing the application for judicial review, Gibson J. found that in this case, as in Baker, supra, the immigration officer was completely dismissive of the interests of the daughter. He concluded at para. 14 that:

That is not to say that the decision under review was not reasonably open to the immigration officer, but rather that, in reaching the decision under review, the failure to emphasize the rights, interests, and needs of [the Canadian born child] and to provide special attention to childhood in the rationale eventually provided for the decision, resulted in a decision that, whatever its ultimate merit, was simply not "...alive, attentive, or sensitive..." to the interests of [the Canadian born child] and "...did not consider [her] as an important factor in making the decision, ..." with the result that the decision, on the analysis provided, was simply not reasonably open to the decision maker.

[41]            In Wynter v. Canada (Minister of Immigration and Citizenship) (2000), 24 Admin.L.R. (3d) 99, the applicant, a citizen of Jamaica, had two Canadian born children. In his reasons, the immigration officer indicated the following, reproduced at para. 37:

Subject's 2 cc [Canadian citizen] children are being considered. They may need little time to adjust to a new country, yet it would be subject's decision if she was to leave the children in Canada with whatever arrangement she may make, she would be free to decide what would be in the best interests of the children.

[42]            Teitelbaum J. considered the decision in Baker, supra, and concluded the following, at para. 39 and 40:

Moreover, the notes, or reasons, are especially deficient with regard to consideration of the applicant's children's best interests. While Baker makes it quite clear that such considerations are by no means determinative of the decision, it also makes it clear that such interests are an important factor [...].

[...] The immigration officer's reasons deal with the applicant's children in two sentences; one states that they are being considered and the other states that it is up to their mother to decide what is in their best interests. It is impossible to determine if and how their interests were taken into consideration. It cannot be said that the immigration officer's decision was made in accordance with the principles enunciated in Baker.

[43]            In Jack v. Canada (Minister of Immigration and Citizenship) (2000), 7 Imm.L.R. (3d) 35, the applicant came to Canada in 1988 from Trinidad and Tobago. Her third child was born in Canada. The notes from the immigration officer explaining the refusal contained the following remark regarding her child, reproduced at para. 3: "Her C.C. child is young enough to adjust to the change should she choose to take him with her and she does have a family to return to."

[44]            When considering the immigration officer's notes, Gibson J. expressed the following opinion, at para. 4:

Particularly worthy of note is the very limited reference to the Canadian born child. That reference is limited to a conclusion, without any supporting analysis, to the effect that the child "...is young enough to adjust to the change should she [the applicant] choose to take him with her...". There is no reference whatsoever regarding the Canadian born child's involvement in schooling and in the community in Canada. Equally, there is absolutely no analysis of what the impact on the Canadian born child would be if his mother was forced to leave Canada and chose to leave without him; this, despite the acknowledgement that neither the applicant nor the Canadian born child receive any support from the child's father and that there is no strong bond between the child and father.

[45]            In allowing the application for judicial review, he reiterated the same conclusion he had reached in para. 14 of the Navaratnam, supra decision, which I have previously cited.

[46]            Finally, in Naredo v. Canada (Minister of Immigration and Citizenship) (2000), 192 D.L.R. (4^th) 373; 187 F.T.R. 47, the applicants, citizens of Chile, had two Canadian born children. In his reasons for decision, the immigration officer made the following comments with respect to the children, reproduced at para. 10:

Mr. Arduengo has two Canadian born children, aged 22 and 18 years. I recognize his sons willingness to submit a family class appliction [sic]. Having children born in Canada while their immigration status was undetermined and they possibly faced the requirement of having to leave Canada was a decision Mr. Arduengo took.

It would also be their own decision if they were to leave their children, aged 22 and 18, in Canada. The parents are free to decide what would be in the best interests of the children. The children will retain their Canadian citizenship no matter where they reside.

[47]            Gibson J. was of the opinion that, against the requirements of Baker, supra, the analysis in the immigration officer's reasons relating to the interests of the applicants' children was entirely insufficient. In allowing the application for judicial review, he concluded at para. 22 that:

It was not open to the immigration officer, against the guidance provided by Baker, to simply leave the issue of what is in the best interests of the applicants' children to the applicants in circumstances where the applicants were about to be required to leave Canada to an uncertain fate in Chile. To do so, as was done here, was to be "completely dismissive" of the interests of the children. The immigration officer did not, herself, give "serious weight and consideration to the interests of the children...". Rather, she determined that the applicants would not be granted the right to apply for landing from within Canada and in so doing, left the agonizing decision of what would be in the best interests of the children to the applicants alone.

[48]            In the next three cases, the application for judicial review was dismissed. First, in his brief judgment in Young v. Canada (Minister of Immigration and Citizenship), [2000] F.C.J. No. 657 (T.D.), Pinard J. wrote the following, at para. 6 and 7:

With respect to the principal applicant's children, Baker, supra, established that in the context of applications for consideration on humanitarian and compassionate grounds, the examination of whether a decision is reasonable should focus on "the question of the approach to be taken to the interests of children". [...]

Here, the officer wrote the following in relation to the principal applicant's children and the issue of hardship at page 44 of the Application Record:

- it is noted that the daughter passed a medical M3 in 1996. Medical information on file from the Hospital for Sick Children (dated 08 July 1998) stated that the child is healthy - she requires monitoring for dental and orthodontic consideration, she may require jaw surgery in the future, and that she requires speech therapy - the Cleft Palate Program Team Assessment wishes to confer when the child is twelve. (she is presently 8).

- The Francis Case (referring rights to of [sic] CC born children) was referred to as well.

[...]

The client and family had not provided sufficient grounds to state that hardship would be excessive or undue. The daughter's passed an immigration medical and the Team Assessment information provided by the Hospital; for Sick Children [sic] does not require to see her for four years. (although individual Doctor's wish to monitor her situation on a more regular basis) I am not satisfied that this issue warrants as exceptional circumstances.

and at page 45:

Counsel indicated that the children were subjected to bias in Guyana and returning them would cause them further similar problems.

The officer also noted the following with respect to the degree of establishment of the principal applicant's children, at page 46:

[...]

- it is also noted that she and her children have only been in Canada a relatively short period of time, since 1996.

and at page 47:

The applicant and her children are not well established and continue to rely on financial assistance from social services. They have only been in Canada since 1996.

In addition, the CAIPS notes indicate that the officer considered the fact that one of the principal applicant's children was born in Canada.

In my opinion, the officer's notes demonstrate that the decision to refuse the application was made in a manner which was sensitive to the interests of the principal applicant's children and that the officer considered them an important factor in making the decision.

In this context, I think that the officer's decision was a reasonable exercise of power conferred by the statute.

[49]            In Mayburov v. Canada (Minister of Immigration and Citizenship) (2000), 183 F.T.R. 280; 6 Imm.L.R. (3d) 246, the applicants' youngest son was born in Canada. The immigration officer, who refused the H & C application, mentioned the following concerning the child, which was reproduced at para. 17:

I have taken into consideration the fact that subject has a Canadian born child. Having this child in Canada while their immigration status was undetermined and they possibly faced the requirement of having to leave Canada, was a decision they took. It would also be their decision if they were to leave their child in Canada with their relatives. The parents are free to decide what would be in the best interests of their Canadian child. Having considered all the information provided by the applicants and that presented by their counsel on their behalf, I do not find that there are sufficient humanitarian and compassionate grounds to warrant an exemption of the visa requirement. I recommend that they apply from abroad.

[50]            With respect to the issue of the interests of the Canadian born child, Lemieux J. reviewed the principles established in Baker, supra, and concluded that in this case, the immigration officer had considered the child's interests and that a reviewing court should not substitute its opinion for that of the immigration officer. He dismissed the application for judicial review, and concluded at para. 39 that: "this case is a far stretch from Baker, supra, and [...], on the evidence, it cannot be said that the immigration officer's decision was unreasonable to the extent of warranting intervention".

[51]            Finally, in Russell v. Canada (Minister of Immigration and Citizenship) (2000), 187 F.T.R. 97; 7 Imm.L.R. (3d) 173, the applicant had a son born in Canada. In her reasons for refusal, the immigration officer noted the following, reproduced at para. 23 and 24:

Subject also enjoys a close relationship to his Canadian born child, whom he regularly visits and financially assists. Subject's removal from Canada would deprive both subject and child of an ongoing father/son relationship. [...]

Subject's relationship and his emotional and financial assistance to his Canadian born child has been noted. Nevertheless, it is my opinion that subject's criminal history prevails over any humanitarian and compassionate factors. Financial assistance to his child may continue to be provided by his spouse, until such time that subject is able to provide assistance from abroad. Consequently, it is considered that disproportionate hardship would not be experienced by the Canadian born child should subject's application for landing be refused.

[52]            Tremblay-Lamer J. was of the opinion that the immigration officer had weighed the relevant factors and determined that one set of factors outweighed the other. She dismissed the application for judicial review, and concluded the following, at para. 25 and 26:

The situation in the present case is not similar to Baker. The child does not stay with the applicant. He currently gives limited financial assistance to the child, but his wife helps out. The officer concluded that while the applicant established himself outside of Canada, there was no reason why that support could not continue. The officer was also clearly attentive to the emotional loss to the child of the relationship with his father, but specifically concluded that "disproportionate hardship" would not be experienced by the Canadian child.

As such, I do not believe that the decision can be said to be unreasonable for failing to take into account the best interests of the child.

[53]            It is clear that in some of the above-mentioned cases, the immigration officer, in making his decision, simply did not consider the children's best interests. However, with respect to those cases where the immigration officer did discuss and consider the children, the results of the judicial review differed. The decisions in Naredo, supra, and Mayburov, supra, illustrate the difference. As previously mentioned, the immigration officers in those two cases wrote reasons which were very similar. These decisions read, in part, as follows:

[54]            Gibson J., in Naredo, supra, was of the opinion that the immigration officer had not sufficiently considered the interests of the children, and that he had been dismissive of those interests by leaving to the parents the choice of bringing the children or not. Lemieux J. in Mayburov, supra, was of the opinion that since the immigration officer had considered the interests of the children, the Court should not substitute its opinion to that of the immigration officer.    As a result, Lemieux J. dismissed the application.

[55]            What these decisions reveal are contradictory approaches to the meaning and significance of the Supreme Court's decision in Baker, supra. There appear to be two approaches taken by judges of this Court. The first one, which I would characterize as the process approach, is the one taken in the Young, Mayburov and Russell decisions. The other approach, which I would characterize as the substantive approach, is the one taken in the other cases. Under the process approach, the Court will examine whether the immigration officer has taken into consideration the effects which the parents' departure from Canada might have upon the children. If the immigration officer has taken into consideration these effects, the Court will not intervene, even though the decision made is not a favourable one to the applicant. On the other hand, under the substantive approach, the Court will not only verify whether the officer has considered the effects of a refusal of the parents' application under section 114(2), but will go further and assess whether the ultimate decision is the correct one.

[56]            A clear example of the substantive approach is the decision of Tremblay-Lamer J. in Holder v. Canada (Minister of Citizenship and Immigration), 2001 FCT 119. Tremblay-Lamer J., in allowing the judicial review application, stated that she had never seen more evidence of humanitarian considerations warranting an exemption under subsection 114(2) of the Act. Clearly, the learned judge was "intruding" into the merits of the matter. I am not criticising her because, in my view, this is precisely what Baker, supra, requires judges of this Court to do. As a result, Tremblay-Lamer J. concluded that the immigration officer had not given "serious weight or consideration to the interests of the child".

[57]            In Baker, supra, at page 164, L'Heureux-Dubé J. wrote that a decision made pursuant to subsection 114(2) of the Act would be considered unreasonable if the officer making the decision did not consider the children's best interests as an important factor, and give that factor substantial weight. She added that the officer had to be alert, alive and sensitive to the interests of the children concerned by the decision. Although L'Heureux-Dubé J. added that the children's interests would not always outweigh other considerations and that there could be other reasons for denying a claim made under subsection 114(2), notwithstanding the children's best interests, she nonetheless appears, in my view, to have dramatically curtailed the Minister's discretion.

[58]            One of the difficulties arising from L'Heureux-Dubé J.'s decision is what does proper consideration of the children's interests mean. What does it mean, in fact, to be alert, alive and sensitive to the children's interests? Because there is no easy answer to these questions, either on a factual basis or on a principled basis, immigration officers and judges of this Court have struggled whenever confronted with these questions^[2].

[59]            When considering the children's best interests, what should an immigration officer consider, bearing in mind that there are two possible scenarios: the first one is where the parent, if not allowed to remain in Canada, will take his or her children to another country; the other scenario is where the parent will not take his or her children. It must not be forgotten that in most of the cases considered, the children, by reason of their birth in Canada, were citizens of this country and were not subject to a deportation order. Coming back to my question, should the officer consider the fact that the children would be separated from one or both of their parents? If so, the answer to the question is obvious, since, save exceptions, children are better off with their parents. On the other hand, it must also not be forgotten that the parent or parents who have legal guardianship of their children have the right, subject to a court order, to take their children with them, even if deported.

[60]            If the parent or parents making the application intend to take their children with them if they are unsuccessful on their application, should the officer consider whether Canada is a "better place" than the country to which the children will be taken by their parents? For example, in the case of Ms. Baker, she would, in all likelihood, have returned to or have been removed to Jamaica in the event that she was unsuccessful on her H & C application. Should the immigration officer have therefore considered both Jamaica and Canada and compared them in regard to factors such as health care, education, quality of life, etc.? I believe that the answer to that question is yes, considering that at page 863 of her reasons in Baker, supra, L'Heureux-Dubé J. made the following remarks pertaining to Ms. Baker:

[...] In addition, the reasons for decision failed to give sufficient weight or consideration to the hardship that a return to Jamaica might cause Ms. Baker, given the fact that she has been in Canada for 12 years, was ill and might not be able to obtain treatment in Jamaica, and would necessarily be separated from at least some of her children.

[61]            Another question is what are those other considerations which might outweigh the children's best interests, bearing in mind that L'Heureux-Dubé J. stated in unequivocal terms that the children's best interests had to be given substantial weight? In Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592 (C.A.), Robertson J.A., in referring to the Supreme Court's decision in Baker, supra, suggested that perhaps the Minister's discretion under subsection 114(2) had been fettered. At pages 676 and 677, Robertson J.A. states:

       What is significant about Baker, supra, is that the Supreme Court did not conclude that the Minister's decision should be set aside on the ground that she failed to take into account a relevant consideration, namely the interests of Mrs. Baker's Canadian-born children. What Baker, supra, establishes is that if "insufficient" weight is given to a relevant consideration then the decision cannot stand. As the interests of the children had been "minimized", the Minister's exercise of her discretion was deemed "unreasonable". Quaere: How does a tribunal or administrative official respond to a direction to give more weight to one consideration? How does one determine whether sufficient weight is given to a factor without prejudging or directing the outcome of a decision? Does the expanded understanding of the "reasonableness" standard of review conflict with the standard imposed by Parliament under subsection 18.1(4) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] which outlines the statutory grounds for setting aside an administrative decision? Does the reasonableness standard applied in Baker conflict with that set out in Southam, supra?

[62]            In my respectful view, the difficulty which immigration officers are now confronted with stems in part from the Supreme Court's failure – by reason of its conclusions that there was a reasonable apprehension of bias and that the officer had not considered the children's best interests – to address the real issue in Baker, supra. That issue was whether the fact that Ms. Baker would be a burden on taxpayers was a consideration which could outweigh the children's best interests^[3]. Could the officer in Baker, supra, give importance to, inter alia, the fact that Ms. Baker had remained illegally in this country for over ten years?

[63]            Subsection 114(2) of the Act leaves no doubt that the humanitarian and compassionate grounds which are to be considered by an immigration officer are those pertaining to the person applying under that subsection. In my view, the best interests of children, whether they be Canadian or foreign, is only one of the considerations which an immigration officer should take into account. There are obviously many other factors which can be taken into account, including the objectives of Canadian immigration policy set out at section 3 of the Act. It is also my view that the manner in which an applicant has entered and remained in Canada is a relevant factor. The objectives of Canadian immigration policy cannot be viewed as an encouragement to foreigners that they should enter this country illegally and remain therein illegally so as to increase their chances of obtaining permanent residence.

[64]            However, Baker, supra, dictates that the immigration officer not only consider the children, but that he give considerable weight to them. The fact that Ms. Baker remained illegally in this country for over 10 years does not appear to have been a relevant consideration insofar as the Supreme Court was concerned. Nowhere in the decision can one find any condemnation or reproach concerning Ms. Baker's conduct in disregarding the law.

[65]            Furthermore, I can find nothing in the Convention on the Rights of the Child, which would lead me to conclude that in signing the Convention, Canada agreed to limit or curtail its right to remove illegal immigrants from Canada. For support of this proposition, one need only look at the Federal Court of Appeal's decision in Langner v. MCI (1995), 184 N.R. 230, where, at page 235, Décary J.A., for the Court, made the following remarks:

[11]         Counsel for the appellants also contended that removal of the parents would be contrary to the international obligations contracted by Canada when it ratified the Convention on the Rights of the Child. Even if these international obligations had been incorporated into Canada's domestic law by legislation, which is not the case, we need only look to articles 9 and 10 of that Convention to find that, here again, Mr. Grey's arguments are entirely devoid of merit. In addition, Mr. Grey made lengthy submissions with respect to a body of case law relating to the European Convention on the Rights of Man. While these cases may in some respects have certain persuasive value, they can have none in the case at bar since the provisions interpreted in those cases do not correspond to any provision found in the Canadian Charter.

Although no mention is made of the Langner decision in Baker, supra, it can safely be said that the substance of the Court of Appeal's decision in Langner has been overruled by the Supreme Court.

[66]            In Simoes v. Canada (2000), 7 Imm. L.R. (3d) 141, I wrote that it was clear that the purpose of the Convention was to protect the children's well-being, not to prevent governments from deporting or imprisoning parents. I further said that the existence of children could not bar governments from enforcing their laws in the absolute manner suggested by the applicant in that case. Sub-section 5(1) of the Act provides that no person, other than Canadian citizens and permanent residents, has a right to come into or remain in Canada. Visitors have a right to enter and to remain in Canada only for that period of time for which they were granted entry. Thus, after the usual six months, visitors must leave the country or obtain an extension of the time for which they were allowed to remain in this country. Consequently, those who do not leave or do not obtain an extension remain in this country illegally. Surely, that is an important consideration in regard to the exercise of discretion pursuant to subsection 114(2) of the Act. To direct the Minister to give more weight to one factor, namely, the children's best interests, is, in my respectful view, tantamount to fettering the Minister's discretion.

[67]            In conclusion, it is my view that the Supreme Court's decision in Baker, supra, calls for a certain result, and that result is that, save in exceptional cases, the children's best interests must prevail. On my reading and understanding of Baker, supra, if the decision-maker is of the view that the children's best interests are for them to remain in Canada with their parent or parents, then that decision-maker should exercise his discretion in favour of the parents applying for the exemption. In my view, there will be few cases where the immigration officer will be able to conclude that the children's best interests do not require that their parents' application for an exemption be granted.

[68]            As I have made it clear, I do not share the view expressed by the Supreme Court in Baker, supra. However, I am bound to apply its pronouncements and consequently, I have come to the conclusion that the decision rendered by Officer Nappi on September 16, 1999, must be set aside. In the light of the Supreme Court's decision in Baker, supra, I can only conclude that Officer Nappi's decision is unreasonable. Although she considered the children's best interests in coming to a decision, it cannot be said that she gave those interests the "substantial weight" that Baker, supra, directs that those interests be given.

Conclusion

[69]            For those reasons, this application for judicial review will be allowed and the matter will be returned to a different immigration officer for reconsideration.

[70]            Counsel for the applicant submits that the following questions should be certified:

1. Whether the findings of Officer Nappi were manifestly unreasonable and incompatible with Baker v. Canada, and in particular:

i. Whether Ms. Nappi minimized the interests of the children and failed to apply the liberal standard required by the Supreme Court;

ii. Whether she was entitled to doubt the good faith of the marriage which had produced the children;

iii. Whether she was entitled to conclude that a commercial partner could ensure the continuation of the company of the company and of the applicant's family income without any evidence to the effect or discussion of this;

iv. Whether she was entitled to rely on the fact that the applicant knew about his accusation when he engendered the children;

2. Whether the mere mention of the children is sufficient to fulfil the requirements of Baker v. Canada;

3. Whether Baker v. Canada created a prima facie presumption that the children's best interests should prevail, subject only to the gravest countervailing grounds;

4. Whether the sole negative consideration, the pending accusation in Louisiana, was a pertinent one and could be considered at all by the administrative decision-maker;

5. Whether it is possible to reconcile Baker v. Canada with a negative decision in this case taken as a whole;

6. Whether failure to deal with two of her children's emotional illness is consistent with the serious and respectful treatment of the children's interests required by Baker v. Canada.

[71]            Counsel for the respondent, on the other hand, submits that the following questions should be certified:

1. When the Court sits in judicial review of a decision under subsection 114(2) of the Immigration Act, should it not only verify whether the decision-maker considered the effects of a refusal on the applicant's children, but go further and assess whether the challenged decision is correct?

2. In light of the Supreme Court's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, what does proper consideration of the children's interests mean? What does it mean, in fact, to be alert, alive and sensitive to the children's interests?

3. Is the fact that an applicant under subsection 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those "other considerations" or "other reasons" mentioned in para. 75 in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, which might outweigh the children's best interests?

4. Are immigration officers entitled to refuse applications under subsection 114(2) of the Immigration Act due to the applicant's lack of "clean hands"?

[72]            I am prepared to certify the following questions:

1. Were the findings of Officer Nappi manifestly unreasonable and incompatible with Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, and in particular:

i. did Ms. Nappi minimize the interests of the children and fail to apply the liberal standard required by the Supreme Court?

ii. was she entitled to doubt the good faith of the marriage which had produced the children?

iii. was she entitled to conclude that a commercial partner could ensure the continuation of the company and of the applicant's family income without any evidence to this effect or discussion of this?

iv. was she entitled to rely on the fact that the applicant knew about his accusation when he engendered the children?

2. Is the mere mention of the children sufficient to fulfil the requirements of Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817?

3. Did Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 create a prima facie presumption that the children's best interest should prevail, subject only to the gravest countervailing grounds?

4. Is the failure to deal with two of the children's emotional illness consistent with the serious and respectful treatment of the children's interest required by Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817?

5. When the Court sits in judicial review of a decision under subsection 114(2) of the Immigration Act, should it not only verify whether the decision-maker considered the effects of a refusal on the applicant's children, but go further and assess whether the consideration is adequate?

6. In light of the Supreme Court's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, what does proper consideration of the children's interests mean? What does it mean, in fact, to be alert, alive and sensitive to the children's interests?

7. Is the fact that an applicant under subsection 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those "other considerations" or "other reasons" mentioned in para. 75 in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, which might outweigh the children's best interests?

[73]            Although some of these questions may not meet the test set out by the Federal Court of Appeal in Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, I am nonetheless prepared to certify them since, without doubt, questions 2 and 3, proposed by the Applicant, meet the test. As indicated by the Supreme Court in Baker, supra, when one question of general importance has been certified, the Court of Appeal is not confined to answering the stated question and can consider all issues raised by the appeal.

                                                                                        Marc Nadon

                                                                                                JUDGE

O T T A W A, Ontario

April 11, 2001.