Umed v. Canada (Minister of Citizenship and Immigration), 2002 FCT 478

Date: 20020426

Docket: IMM-1986-01

Neutral citation: 2002 FCT 478

Ottawa, Ontario, this 26th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                                JAIKARRAN UMED

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review under section 82.1 of the Immigration Act R.S.C. 1985, c. I-2 of the decision by the immigration officer (the "H & C Officer") dated March 28, 2001. The H & C Officer's decision denied the applicant's request to be approved on humanitarian and compassionate ("H & C") grounds for an exemption from the requirement to apply for, and obtain, an immigrant visa prior to coming to Canada as required by subsection 9(1) of the Immigration Act, supra.

[2]                 The applicant seeks an order setting aside the decision of the H & C Officer and sending the matter back for redetermination.

Background

[3]                 The applicant, Jakiarran Umed is a citizen of Guyana.

[4]                 The applicant married Hamwattie in Guyana in 1981. The applicant and his wife had three children together in Guyana, two daughters and one son, all born between 1983 and 1987.

[5]                 Their two daughters were adopted by their grandparents (Hamwattie's parents) in 1993. In 1995, the grandparents were sponsored by their son to immigrate to Canada. The two daughters and Hamwaittie's sister were included in the sponsorship and came to Canada with the grandparents. The two daughters are now citizens of Canada.

[6]                 The applicant and Hamwattie divorced in 1995. At his interview, the applicant stated that his drinking problems led to the breakdown of the marriage in 1995. The applicant indicated that he had since overcome his problem.

[7]                 In 1996, Hamwaittie and their son came to Canada. Hamwaittie was sponsored for landing by her Canadian spouse at the time, Isaac Bolan. Hamwaittie and her son are now citizens of Canada. Hamwaittie and Mr. Bolan separated in 1997, and finalized their divorce in 1998.

[8]                 In 1998, while the applicant was still in Guyana, the applicant married Hamwaittie's sister. The applicant applied for immigration to Canada with Hamwaittie's sister as sponsor. The application was denied, stating that the marriage was one of convenience and that his sole purpose in coming to Canada was to be together with Hamwaittie and their three children.

[9]                 The applicant entered Canada without status on November 1, 1998. Immediately upon arrival, the applicant began living in Canada with Hamwaittie, their three biological children and the grandparents. The applicant remarried Hamwaittie on May 24, 1999. The applicant continues to live with Hamwaittie, their three biological children, and the children's grandparents.

[10]            In August 1999, the applicant filed an application for landing on humanitarian grounds. The basis for the application was his relationship with his Canadian wife and children. The applicant and his wife were interviewed in December, 2000 and January, 2001.

[11]            The application for exemption from the requirement in subsection 9(1) of the Immigration Act, supra on the basis of H & C grounds was denied. This is the judicial review of the H & C decision.

Applicant's Submissions

[12]            The applicant submits that following the decision of the Supreme Court of Canada in Baker v. Canada (M.C.I.) [1999] 2 S.C.R. 817, the appropriate standard of review for the decision of the H & C Officer in this case is reasonableness simpliciter.

[13]            The applicant submits that subsection 6.1 of the immigration guidelines states that humanitarian and compassionate grounds will exist if "unusual, undeserved or disproportionate hardship" would be caused to the person seeking consideration if he had to leave Canada.

[14]            The applicant cites the decision of Nadon J. in Legault v. Canada (M.C.I.) [2001] 3 F.C. 277 to support the paramountcy of the consideration of the children's best interests. Nadon J. wrote at page 306:

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.

[15]            The applicant submits that the H & C Officer gave, at best, cursory attention to the interests of the applicant's children. The applicant submits that the H & C Officer was not alive and attentive to the interests of the Canadian children as is required following the reasoning of the Supreme Court of Canada in Baker v. Canada (M.C.I.), supra.

[16]            The applicant submits that merely stating that the applicant allowed the two daughters to be adopted does not address the relevant consideration of the best interests of those children.

[17]            The applicant submits that the H & C Officer held that the applicant did not take considerable care about the upbringing of his son by reason that the applicant stated he did not even know where his son was when he came to Canada. The applicant submits that by so holding, the H & C Officer erred as the H & C Officer had previously found that the applicant was not credible on the issue of whether he knew where his son and wife were at the time he entered Canada. The applicant submits that this inconsistent finding of fact is an error of law, and indicates that the decision is unreasonable.

[18]            The applicant submits that the applicant is entitled to two intentions, one being to be together with his wife and children and the other to be in Canada permanently. The applicant submits that it was unreasonable for the H & C Officer to conclude that because the applicant had the second intent, that he should be rejected and a decision made that the marriage was one of convenience. The applicant submits that one of the objectives of the legislation is to facilitate family reunification.

[19]            The applicant submits that the H & C Officer had prejudged the H & C application so as to give rise to a reasonable apprehension of bias. The applicant submits that the attitude of the H & C Officer at the interview indicates a closed mind to the issue of whether the applicant was in a bona fide relationship. The applicant submits that the H & C Officer did not have an open mind to the issue of whether compelling H & C considerations, including whether the marriage was bona fide, had been established.

Respondent's Submissions

[20]            The respondent submits that the standard of review is reasonableness simpliciter.

[21]            The respondent submits that the H & C Officer's reasons are largely concerned with the chain of events and explaining her reasons to conclude that the applicant's marriage was entered into for the purposes of acquiring immigration status. The respondent submits that in light of the facts before the H & C Officer, this conclusion was certainly reasonable, if not inescapable. The respondent submits that this finding has important significance to the question of the best interests of the applicant's children as the applicant entered into the second marriage to Hamwattie for a purpose other than living with her and resuming his parental responsibilities.

[22]            The respondent submits that in light of the H & C Officer's conclusion of the lack of credibility for the second marriage, it was reasonably open to the H & C Officer to conclude that the best interests of the applicant's biological children would not be adversely affected were the application refused.

[23]            The respondent submits that there was no credible evidence to suggest that the applicant will assume the role of parent to his children.

[24]            The respondent acknowledges that there is an apparent inconsistency in the H & C Officer's reasoning in that she appears to have both accepted and rejected the applicant's statement that he was unaware of his son's whereabouts upon arriving in Canada in 1998. The respondent submits that this does not constitute a reviewable error. The respondent submits that the H & C Officer had an ample basis for doubting the applicant's credibility.

[25]            The respondent submits that the H & C Officer's conclusion that the marriage was one of convenience was supported by many more considerations than simply the fact that the applicant wants to live in Canada. The respondent submits that the H & C Officer's decision maps out an elaborate scheme in which many family members participated and obtained landed status by means of creating and severing relationships. This included, for example, the applicant's marriage to his spouse's sister in 1997.

[26]            The respondent submits that the record is devoid of any basis whatsoever for apprehending bias on the part of the H & C Officer.

[27]            Issue

Was the decision of the H & C Officer reasonable?

Relevant Statutory Provisions, Regulations and Rules

[28]            The relevant sections of the Immigration Act, supra state:

Analysis and Decision

[29]            Issue

Was the decision of the H & C Officer reasonable?

I agree with the parties that the appropriate standard of review for the decision of the H & C Officer in this case is reasonableness simpliciter.

[30]            The H & C Officer lists an exhaustive time-line of the events that have occurred involving marriages, divorces, and the immigration history of the applicant and Hamwaittie. The H & C Officer then writes:

The credibility of the subject and his wife has been seriously impeached based on the chain of events that have occurred spanning a period of 5 ½ years. It appears that the subject and his wife have both set out to deceive and circumvent Canadian immigration law. It appears as though they have systematically woven a web of deceit and now the final phase of this deceit is for the subject to obtain permanent resident status in Canada.

[31]            Since the decision of the Supreme Court of Canada in Baker, supra, an immigration officer must consider the best interests of the children. I find that no such consideration was given to the best interests of the children. The applicant's son was not allowed into the interview. There is no mention of the relationship of the applicant with his son. At the time of the interview on March 28, 2001, the son was not quite 11 years old. The applicant's uncontradicted evidence is that he told the officer he had a close relationship with his son. There is no assessment as to what was in the best interests of the son.

[32]            Chapter IP5 of the respondent's publication, "Immigrant Applications in Canada made on Humanitarian or Compassionate (H & C) Grounds" states at section 8.5:

Separation of parents and dependent children (outside of the family class)

(Special Category Code -SOF)

The removal of a status-less individual from Canada may have an impact in relation to family members who do have the legal right to remain (i.e., permanent residents or Canadian citizens). The geographic separation of family members could create a hardship that may warrant a positive H & C decision. Other than his or her spouse or partner (see Section 8.1 and Section 8.2 dealing with spouses and common-law, same-sex partners) the status-less individual's family members with legal status may include children, parents and siblings, among others.

In evaluating such cases, you should balance the different and important interests at stake:

- Canada's interest (in light of the legislative objective to maintain and protect the health, safety and good order of Canadian society)

- family interests (in light of the legislative objective to facilitate family reunification)

- the circumstances of all the family members, with particular attention given to the interests and situation of the status-less individual's children.

[33]            In the present case, the H & C officer assessed in detail, the applicant's immigration history but did not address the best interests of the children. I cannot tell what the H & C officer's decision would have been had this assessment been done. Consequently, the application for judicial review must be allowed and the matter referred to a different officer for redetermination.

[34]            I need not deal with the other matters raised by the applicant as my finding above disposes of the application.

[35]            Neither party wished to submit a serious question of general importance for certification.

ORDER

[36]            IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different officer for redetermination.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 26, 2002