Leung v. Canada (Minister of Citizenship and Immigration), 2001 FCT 827

Date: 20010725

Docket: IMM-4824-00

Neutral citation: 2001 FCT 827

Vancouver, British Columbia, Wednesday, the 25^th day of July, 2001

PRESENT:    THE HONOURABLE MADAM JUSTICE HENEGHAN

BETWEEN:

OI HA BECKY LEUNG

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                            REASONS FOR ORDER and ORDER

INTRODUCTION

[1]         Mrs. Oi Ha Becky Leung (the "Applicant") seeks judicial review of the decision by A. Kawamoto, Immigration Counsellor (the "Immigration Counsellor") of Citizenship and Immigration Canada dated August 22, 2000. In her decision, the Immigration Counsellor declined to exercise her discretion to find that the Applicant is eligible for exemption from the requirements of section 9(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act") and, therefore, eligible to apply for permanent residence when in Canada based on humanitarian and compassionate grounds.

FACTS

[2]         The Applicant is a resident of Hong Kong. She and her husband, Hon Sing Tang, are the parents of a Canadian-born child, Grace. Grace was born in Canada on November 10, 1996. She suffers from seizures and has been treated by medical practitioners in Vancouver in respect to the illness. She has shown some improvement in response to treatment provided by a naturopathic physician and to a programme called hyperbaric oxygen treatment which is not available in Hong Kong. The treatment is administered every two to three weeks and appears to be helping the child.

[3]         The Immigration Counsellor refused the application for inland processing of the Applicant's claim for permanent residence on the ground that she had failed to show that undue, disproportionate or undeserved hardship would result if the Applicant were to return to Hong Kong for the processing of her application. The Immigration Counsellor purported to have considered the best interests of the Canadian-born child in reaching her decision.

ISSUE

[4]         The Applicant raises a single issue in the application, and that is whether that Immigration Counsellor gave sufficient attention to the well-being of the child in deciding to refuse the Applicant's request for in-land processing of her application for permanent residence.

Applicant's Submissions

[5]         The Applicant argues that the Immigration Counsellor erroneously based her decision on a consideration of the best interests of the Applicant and her husband, failing to consider the best interests of the child. She argues that the Immigration Counsellor ignored the evidence from Dr. Chan, the naturopathic physician who is treating the child with some success. According to Dr. Chan, the child requires the care and support of her parents.

[6]         The Applicant says that the present case parallels the situation described in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 where the Court set out the factors to be considered in an application for in-land processing where a Canadian-born child is involved:

In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself.

[7]         The Applicant submits that, since the decision of the Immigration Counsellor does not show consideration of the best interests of the Applicant's child in light of the evidence presented, the decision is unreasonable and should be vacated.

Respondent's Submissions

[8]         The Respondent argues that the Immigration Counsellor made a decision which was reasonably open to her upon the evidence submitted and that the decision clearly shows that the interests of the child was among the factors considered in reaching that decision. The Respondent also relies on Baker, supra and cites the following passage from page 233:

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.

ANALYSIS

[9]         The decision here in question is a discretionary one made pursuant to section 114(2) of the Act. That section provides as follows:

[10]       The operation of this section allows a person to seek entry to Canada from within the country, as opposed to the general process prescribed by section 9(1), as follows:

[11]       The exercise of discretion pursuant to section 114(2) of the Act is familiarly known as a "humanitarian and compassionate application", and is subject to review against the standard of reasonableness simpliciter; see Baker , supra, at paragraph 62.

[12]       In Baker, supra, the Supreme Court of Canada discussed the statutory scheme underlying all humanitarian and compassionate decisions. At paragraph 15, the Court said as follows:

15 Applications for permanent residence must, as a general rule, be made from outside Canada, pursuant to s. 9(1) of the Act. One of the exceptions to this is when admission is facilitated owing to the existence of compassionate or humanitarian considerations. In law, pursuant to the Act and the Regulations, an H & C decision is made by the Minister, though in practice, this decision is dealt with in the name of the Minister by immigration officers: see, for example, Minister of Employment and Immigration v. Jiminez-Perez, [1984] 2 S.C.R. 565, at p. 569. In addition, while in law, the H & C decision is one that provides for an exemption from regulations or from the Act, in practice, it is one that, in cases like this one, determines whether a person who has been in Canada but does not have status can stay in the country or will be required to leave a place where he or she has become established. It is an important decision that affects in a fundamental manner the future of individuals' lives. In addition, it may also have an important impact on the lives of any Canadian children of the person whose humanitarian and compassionate application is being considered, since they may be separated from one of their parents and/or uprooted from their country of citizenship, where they have settled and have connections.

[13]       The operative part of the Immigration Counsellor's decision reads as follows:

Rationale

I have reviewed all the information on this file including the submissions and her response to questions posed at the interview. I am satisfied that, having taken into consideration all the aspects of this case, there are insufficient grounds to believe that this client would suffer undue, disproportionate or undeserved hardship should [the application be] returned to Hong Kong for processing. I do not believe that case warrants an exemption from the requirement of A9(1) of the Immigration Act to apply from within Canada for permanent residence.

I have rpeviewed this case with the best interests of the child in mind, and I am satisfied that she is getting the care her parents desire. The parents of a child whose medical condition appears to be responding only to treatment in Canada are required to face the additional hardship of travel and financial worries. While it is gratifying to know that Ms. Leung's child is responding well to treatment here, I am not satisfied that this is a reason for waiving visa requirements in order for them to be processed as permanent residents from within Canada. The couple has been travelling back and forth from Hong Kong for the past year and Becky's husband, Hon Sing Tang, is presently residing and working in Hong Kong. Therefore, they have not satisfied me that it would be a hardship for him to submit the application to the visa office in Hong Kong and Becky has not satisfied me that she would not be able to return to Hong Kong when an interview was required. Her fear that she would not be able to book a seat is based on speculation. Furthermore, she could always request the visa office to rebook an interview to when she would be available to attend.

[14]       In my opinion, the Immigration Counsellor only provided a passing reference to the interests of the Applicant's Canadian-born child in her decision. She technically met the requirement recognized in Baker, supra but there is no indication that she considered the evidence before her about the necessary presence of the Applicant in Canada for the purpose of facilitating access by the child to medical treatment in Canada to which the child, as a Canadian citizen, is entitled. The decision is unreasonable and unsupported by the evidence. The application for judicial review is allowed and the matter is remitted to a different Immigration Counsellor for reconsideration.

[15]       Counsel advised that there is no question for certification arising from this application.

ORDER

[16]       The application for judicial review is allowed and the matter is remitted to a different Immigration Counsellor for reconsideration.

(Sgd.) "Elizabeth Heneghan"

                                                                    Judge

Vancouver, British Columbia

July 25, 2001

                                                FEDERAL COURT OF CANADA

                                                               TRIAL DIVISION

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                              IMM-4824-00

STYLE OF CAUSE:             Oi Ha Becky Leung v. The Minister of Citizenship and Immigration

PLACE OF HEARING:        Vancouver, British Columbia

DATE OF HEARING:           July 24, 2001

REASONS FOR ORDER OF THE COURT BY: Heneghan J.

DATED:                                  July 25, 2001

APPEARANCES:    

Kenneth S. Specht                                                     FOR APPLICANT     

Pauline Anthoine                                                        FOR RESPONDENT

SOLICITORS OF RECORD:

Sahmet & Company                                      FOR APPLICANT

Vancouver, British Columbia

Deputy Attorney General of Canada                        FOR RESPONDENT

Vancouver, British Columbia