Date: 20021112
Docket: IMM-5016-01
Neutral citation: 2002 FCT 1172
Toronto, Ontario, Tuesday, the 12th day of November, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
DALBIR SINGH DULKU
RANJIT KAUR DULKU
TALWINDER SINGH DULKU
MANDEEP SINGH DULKU
JASDEEP KAUR DULKU
through their litigation guardian
RANJIT KAUR DULKU
Applicants
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present application concerns a negative humanitarian and compassionate relief decision under s. 114(2) of the Immigration Act with respect to a family composed of a father, mother, and three children ages 7, 12, and 15.
[2] The primary argument raised by the Applicants in their application was that, unless they are allowed to apply for landed immigrant status from within Canada, they would suffer a risk of violence if forced to apply outside Canada, specifically from Kenya. Indeed, the risk assessment prepared in relation to the application establishes that Asians in Kenya suffer serious human rights violations, extortion, threats and attacks by African Kenyans. However, the Applicants acknowledge that the motivation for the violence is criminal rather than political.
[3] In addition to the primary argument, a closely related argument concerns whether the Immigration Officer who made the negative decision under review was "alert, alive and sensitive" to the needs and interests of the children as required by Baker v. Minister of Citizenship and Immigration [1999] 2 S.C.R. 817.
[4] In this respect, counsel for the Applicants made precise arguments to the Immigration Officer that it would not be in the children's best interests to require them to return to Kenya because they are fully assimilated into life in Canada, are doing extremely well in school, would suffer unequal treatment in Kenya, Canada is the only home they have, their mother's entire family resides in Canada, and no family exists in Kenya. In addition, in support of the submission on behalf of the children, a psychological report was tendered which includes the following statement:
It is my professional opinion that Mr. and Mrs. Dulku are presently suffering from symptoms of depression and anxiety. It seems that these problems are a direct result of the pressure the family has been though since their notice of deportation. This is evident in the reports of increased family disputes and difficulties. The couple seem to be arguing quite frequently and this has placed the marriage under stress as well. [The eldest child] Dalwander [sic] seems to be anxious as a result of the family tension and his own fear of returning to a country where he would most likely be discriminated.
(Applicants' Application Record, p. 159)
[5] With respect to all the evidence presented to the Immigration Officer regarding the best interests of the children, only the following statement was made in the Immigration Officer's notes, which form the reasons for the negative decision:
The applicants have three children, aged seven, twelve, and fifteen. While I appreciate that if they were to return to Kenya they would have to make new friends and would have to adapt to a new school system, they are still young enough to adapt.
(Applicants' Application Record, p. 9)
[6] Obviously, the reasons quoted are not responsive to the information and arguments presented by the Applicants' counsel. I agree with counsel for the Respondent that a rebuttable presumption arises that the Immigration Officer considered all the evidence on the record, including the psychological report, in reaching a decision regarding the best interests of the children. However, it is agreed that there is absolutely no evidence on the record that any consideration was given to the Applicants' precise arguments with respect to the children, and, in particular, with respect to the content of the psychological report.
[7] On this basis, I find that the presumption is rebutted and, thus, I find that the conclusion with respect to the best interests of the children was made without regard to the evidence on the record. As a result, I find that the test in Baker has not been met, and consequently, the decision was reached in reviewable error.
ORDER
Accordingly, the Immigration Officer's decision is set aside and the matter is referred back to a different immigration officer for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of counsel and solicitors of record
DOCKET: IMM-5016-01
STYLE OF CAUSE: DALBIR SINGH DULKU, RANJIT KAUR DULKU,
TALWINDER SINGH DULKU, MANDEEP SINGH DULKU, JASDEEP KAUR DULKU through their litigation guardian RANJIT KAUR DULKU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, NOVEMBER 12, 2002
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: TUESDAY, NOVEMBER 12, 2002
APPEARANCES BY: Mr. Lorne Waldman
For the Applicants
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021112
Docket: IMM-5016-01
BETWEEN:
DALBIR SINGH DULKU
RANJIT KAUR DULKU
TALWINDER SINGH DULKU
MANDEEP SINGH DULKU
JASDEEP KAUR DULKU
through their litigation guardian
RANJIT KAUR DULKU
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
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