Date: 20010423
Docket: IMM-1154-00
Neutral Citation: 2001 FCT 371
BETWEEN:
AGNETA BAKER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant seeks judicial review of an immigration officer's decision dated October 27, 1999, wherein her humanitarian and compassionate application pursuant to section 114(2) of the Immigration Act, R.S.C. 1985, c.I-2 was denied. The officer's decision held that the applicant did not demonstrate sufficient humanitarian and compassionate factors to warrant granting her an exemption from the normal legislative requirement to apply for landing from outside Canada.
[2] There are three issues in the case:
1. Did the immigration officer err by failing to give sufficient weight to the best interests of the applicant's Canadian-born child?
2. Did the immigration officer err by failing to give the applicant a chance to respond to her concerns regarding the long-term viability of the applicant's relationship with her fiancé, the father of the child?; and
3. Did the immigration officer err by failing to reasonably assess the H & C claim given the totality of the evidence?
[3] In my view, there is no merit to the applicant's submissions with respect to the second and third issues. The applicant submitted that the officer failed to question her or her fiancé on the issue of the long-term nature of the relationship. However, the onus is on the applicant to provide the officer with information which would assist in showing that there was a long-term relationship. The applicant and her fiancé had no wedding date set. They do not live together and they only get together once or twice a week to discuss the well-being of their son. Based on this evidence, the officer's conclusion cannot be said to be unreasonable.
[4] With respect to the third issue, it was open to the officer to decide that the applicant could return to Grenada. The officer considered the totality of the evidence and concluded that the hardships listed by the applicant are simply the hardships that are normally suffered by those who are subject to deportation.
[5] There is a serious issue, however, with respect to whether or not the officer gave sufficient weight to the interests of the applicant's Canadian-born child. I must note that the child was only four at the time of the interview and could hardly be in a position to speak for himself. I also note that the interview took place prior to the decision in Baker v. MCI, [1999] 2 S.C.R. 817, however, the decision was actually made shortly thereafter.
[6] I am not satisfied that the officer considered the child's best interests as an important factor, gave them substantial weight and was alert, alive and sensitive to them. L'Heureux-Dubé set out the principles to be considered in deciding what would be in the child's best interests at paragraph 75 of Baker, supra which reads as follows:
The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. 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 children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.
[7] The immigration officer stated in her reasons:
The point that Ms. Baker has a Canadian-born child is being considered. However, the fact that he is Canadian means he could remain in Canada as long as he wanted to since he does have [the same] citizenship and rights as any other Canadian. It would be the applicant's choice if she would take him back to Grenada or leave him here with his permanent resident father (a parent who is supports [sic] the son financially and emotionally).
However, the applicant has been the child's primary caregiver. Furthermore, according to the officer's notes, the applicant's fiancé stated at the interview that:
I cannot take all the responsibility of the child, we always communicate because of the child, we see each other about once or twice a week (it depends on the problems of the child).
In view of these remarks by the father, I cannot agree that the child's best interests were being looked after when the father did not appear to be prepared to assume the total responsibility for the child. The officer might have explored with the father as to what arrangements could be made to assist the him in looking after the child, however the matter seems to have been left unprobed.
[8] The immigration officer did give some consideration to the interests of the applicant's child. However, Baker, supra, stated that it is not sufficient for the officer to merely consider the best interests of the child in reaching a decision; the child's interests are also to be accorded significant weight. In the case before me, there is some obligation on the immigration officer to show that she has conducted a deeper examination of the child's interests and how they would be affected by the deportation of the applicant. The finding of fact that the four year old child had an option in this case is perverse and capricious in the circumstances of this case.
[9] I note that the respondent raised the case of Mohammed v. The Minister of Citizenship and Immigration, [2000] F.C.J. No. 1508 (T.D.) (Q.L.). However, the Mohammed case is not relevant because, in that case, the applicant had not raised the argument of the best interests of the child until the commencement of the hearing.
[10] The application for judicial review is allowed. The matter is returned to be redetermined by a different immigration officer in a manner not inconsistent with these reasons.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
April 23, 2001
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