Date: 19991102
Docket: IMM-2674-98
BETWEEN:
INGRID GARASOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION
[1] The applicant, Ingrid Garasova, challenges, in these proceedings launched under section 18.1 of the Federal Court Act, with leave of the Court, the decision of Immigration Officer L. M. Nunez (the "Immigration Officer") dated May 11, 1998, who denied the applicant's application, made pursuant to subsection 114(2) of the Immigration Act, for an exemption from subsection 9(1) of that Act in order that her application for permanent residence be processed from within Canada. The Immigration Officer ruled:
| I have carefully reviewed your application and your individual circumstances and have determined that there are insufficient humanitarian and compassionate considerations to warrant an exemption from normal legislative requirements. |
[2] The applicant's and respondent's application records were filed with the Court before the Supreme Court of Canada had rendered its decision in Mavis Baker v. The Minister of Citizenship and Immigration (Appeal 25823, July 9, 1999). Prior to the hearing of this matter, I requested counsel argue the impact the Baker case, supra, might have here. Both counsel did so.
BACKGROUND
[3] Ingrid Garasova was born in the Czech Republic in 1975. In 1990, she found full time employment there. On January 16, 1993, she gave birth to her son Patrik; her boyfriend abandoned her.
[4] In May 1993, the applicant came to Canada on a valid employment authorization. She had been offered employment as an exotic dancer. She left her son Patrik in the care of her mother it being understood she would return after making money in Canada.
[5] The applicant went back to the Czech Republic for Christmas 1993 spending three months before returning to Canada in March 1994; her purpose was to save money to purchase a condominium in the Czech Republic.
[6] By July 1994, the applicant realized her goal and purchased a condominium, a car and furniture in the Czech Republic. Her mother and son moved in; she did not stay. She again came to Canada in late 1994 and decided to buy a house in Toronto as an investment; she took in boarders to help with the mortgage. She also leased a car.
[7] In March 1995, she met a single parent, Robert MacDonald. They were married on May 4, 1995.
[8] In June 1995, she went to the Czech Republic with the intention of bringing her son to Canada. However, she could not obtain a visa for her son and returned to Canada alone.
[9] When she closed her Canadian real estate transaction on June 17, 1995, she said in an affidavit filed in support of her judicial review proceeding the mortgage broker advised her to add her husband's name to the ownership of the house because she did not have permanent status in Canada.
[10] In July 1995, she became pregnant. She deposes that her husband's attitude changed and the marriage ran into trouble and that her husband began to physically abuse her. In August 1995, she had a miscarriage. In her affidavit, she describes a cycle of abuse, reconciliation and further marriage breakdown. She became pregnant again in December 1995.
[11] On April 11, 1996, after her mother and her son Patrik came to visit her in Canada, she decided to return to the Czech Republic to be with her son. While there, her husband wanted reconciliation. The applicant's relationship with her mother deteriorated as she deposed, she "came to realize that her mother was mistreating her son because although he was already three years old, he could not speak yet and he was extremely aggressive". Since she was experiencing problems with her mother and was six months pregnant, she decided to see if her marriage could work.
[12] She says a legal battle ensued with her mother over the sale of the Czech condominium. She speaks about a false accusation by her mother against her to the Czech police about abusing Patrik and threats of placing her son in a foster home in the Czech Republic. She mentions a custody battle in the Czech courts who decided to grant her sole custody of her son with the result that "since that time, my mother and I have never spoken to each other". On her Czech lawyer's advice, she brought her son Patrik with her to Canada. The applicant gave birth in Canada to her daughter Rebecca on August 14, 1996.
[13] She attests to a renewed cycle of abuse by her husband and financial manipulation by him. In 1997, she instituted divorce, custody and support proceedings in the Ontario courts. Those proceedings were ongoing when she deposed her affidavit. She was awarded interim custody and support payments for her daughter and says there is an outstanding Ontario Family Court order prohibiting the removal of her daughter from Ontario because of the outstanding support and custody proceedings; her husband Robert continues to have visitation rights. She indicates she is employed in Canada and earns approximately $1,000 to $1,500 per week, has always paid taxes on her income each year and has never been on social assistance.
[14] She says she cannot return to the Czech Republic; her only family there are her mother, sister and brother. She is not on speaking terms with her mother, is distant from her sister, and her brother is only fourteen (14) years old. She has no friends there and has sold her residence; she would have nowhere to go with her two young children. She says she is established in Canada.
[15] On October 31, 1997, the applicant made an application within Canada for permanent residence and invoked humanitarian and compassionate grounds. Her husband had withdrawn previous sponsorship of her. She deposes that she was advised by her counsel that there are special humanitarian and compassionate guidelines dealing with situations of marriage breakdown and her establishment in Canada would be the primary factor to be considered as long as her original marriage to a Canadian citizen had been bona fide.
[16] The applicant was interviewed by the Immigration Officer on April 4, 1998. At the interview, she says she explained all of the facts recited above to the Immigration Officer. She showed her a copy of the court order preventing her from removing her daughter from Ontario. She told the Immigration Officer she had been in a bona fide marriage to a Canadian citizen but that he had abused her terribly and her marriage had broken down. She indicated to the Immigration Officer she was scheduled to appear in court the following day to testify against her husband on six charges of assault and sexual assault against her. She showed the Immigration Officer evidence she had accumulated significant savings and had established herself in Canada.
[17] She further deposes the day after the interview, her husband Robert was convicted on all six counts of assault and sexual assault and was sentenced to five months in prison and three years' probation. The Immigration Officer was informed of the convictions.
[18] The applicant's case, as originally framed, focussed on certain guidelines contained in subsection 9.14(3) of the Immigration Manual relating to situations involving marriage breakdowns. These guidelines address a situation where a sponsor withdraws the sponsorship application prior to landing. As noted, this is the case before me. The guidelines provide:
| b) If the request has not yet been processed, the case will be reviewed to determine if the spouse can become successfully established and if there are compassionate or humanitarian considerations. (see IE 9.07) which would warrant the continued processing of the case to landing. |
| c) The following factors should be examined in reviewing these cases. Meeting anyone of these factors is not in itself reason to approve; rather, officers should assess the weight of all factors before making a decision: |
| (i) In assessing potential establishment: |
| -does the client appear able to establish, based on previous education, training or employment? |
| - are there relatives in Canada willing and able to assist? |
| - what is the composition and disposition of sponsorable family members in Canada and abroad? |
| (ii) In assessing potential humanitarian and compassionate grounds: |
| -was the marriage originally a bona fide one that merely failed due to incompatibility or was it entered into solely to circumvent the regulations? |
| - were there elements of fraud, misrepresentation or bad faith on the part of the applicant, e.g., the person came to the CIC's attention as a result of an investigation instead of reporting voluntarily? |
| -did the applicant suffer physical or mental cruelty in the relationship, e.g., the sponsor's threatened withdrawal of sponsorship in order to keep the applicant subservient? |
| -evidence of physical or mental abuse may contribute to the decision to process a case to landing, but should not in itself be a reason for landing someone. An option in these cases is for abused spouses to return home to the safety and security of their families |
| - is the client pregnant? |
| -is there a Canadian child who would suffer if the client had to leave Canada? |
| - would return to the home country be merely a matter of inconvenience or would it result in severe economic and/or educational disruption to the person or to any family remaining in Canada? |
| - is there assistance available in the home country to help in resettlement? |
| d) Officers are encouraged to obtain background information on the persons involved and, if possible, on the cultural traditions and mores of their home country from the post abroad. An important factor that officers must consider in all cases is whether the person involved, or the relative in Canada, may become a public charge in Canada as a result of their decision. |
| e) If there are insufficient humanitarian and compassionate grounds for landing the person, the OIC section at NHQ should be asked to withdraw the name of the person from the list submitted to the Governor in Council and enforcement action initiated against the person. |
| f) Where there are sufficient humanitarian grounds, a new IMM 655 will be sent to the OIC section with a covering memorandum and the request will be processed on a priority basis. Alternatively, if the client's situation was reviewed within a few days, the OIC section will continue processing and the person will be landed when the OIC is approved. [emphasis mine] |
[19] Counsel for the applicant, also made reference to section 9.15 of the Immigration Manual. This section is headed "ILLEGAL DE FACTO RESIDENTS". What were referred to me are the following provisions:
| 1) Determination of Eligibility |
| There is a distinction between persons who are simply "long-term illegals" and those who are genuine "de facto residents". Generally, persons in the following situations would be considered de facto residents: |
| a) Persons who have never previously come to official immigration attention. Individuals such as unsuccessful refugee claimants in the Refugee Claims Backlog and persons under an unexecuted removal order do not qualify for this consideration; |
| b) Persons who are financially, socially and culturally established to the point where Canada, and not their country of origin, is their real home. It is expected that such a degree of establishment would take several years to achieve. Criteria to help determine if establishment has occurred are described in 3) below. |
| c) Evidence must exist that these persons would suffer undue hardship if compelled to leave Canada and seek immigrant visas in the normal manner. |
| Although persons who do not meet the above factors may not be illegal de facto residents, officers will nonetheless review their circumstances to determine if there are humanitarian and compassionate grounds to warrant favourable consideration. |
[20] Prior to the interview with the applicant, the Immigration Officer had received from the applicant's legal representatives, extensive written submissions dated October 31, 1997. The applicant's legal counsel was also present during the interview and made closing remarks. Those submissions addressed issues related to the applicant's ability to be self-sufficient, establishment in Canada and undue hardship. Legal counsel also made reference to the passage by the U.S. Congress of the Violence Against Women Act which includes provisions concerning immigration and allows abused women to "self petition without having to rely on their abusive spouse to sponsor them".
[21] The submissions in respect of undue hardship stress the following points:
| (a) the applicant cannot return to the Czech Republic as she has no support network and nowhere to go in that country. She has two small children and would need a place to stay and support; |
| (b) such support is not within her immediate family; |
| (c) in Canada, her son Patrik is now developing normally. He is talking; he is no longer aggressive; |
| (d) she fears losing her daughter Rebecca if she is deported to the Czech Republic. |
THE IMMIGRATION OFFICER'S REASONS AND NOTES
[22] The Immigration Officer expressed her reasons for a negative H & C in typewritten notes which are in substantial conformity with her handwritten notes. She stated:
| Subject has been in and out of Canada since her original entry in 1993. Her intention had always been to make money and return home and open a business. Her involvement in a bad marriage has led subject into suffering hardship here in the hands of her husband soon to be ex. It is my opinion that no undue or undeserved hardship would be caused to subject if she were asked to apply from outside Canada. Subject states she has nothing and no one to go back to, but the truth is she has all her family there. She has always since the age of 16 been independent so really it is my opinion that she has never really needed her family. She has no family here as she has petitioned for divorce. Another reason why subject indicates she cannot go back is due to the fact she can't leave Ontario with her daughter. But I believe given the violent history of child's father she would have little difficulty in obtaining full custody. Subject has managed to save a good amount of money in very short time enough that she bought property back home and here. Although she has sold property back home and is about to lose property here she has enough savings in the bank to aid her in resettling back home as well as more coming her way with the divorce. It is my opinion that the grounds subject has stated as her grounds for seeking permanent residence are temporary in nature and her degree of independence before coming to Canada outlines to me she can and will do OK without the need of family support.... Refusal letter was mailed to PC with copy to counsel. File is being forward to GTEC for inquiry action. [emphasis mine] |
THE BAKER DECISION
[23] As noted, the Supreme Court of Canada issued its judgment and reasons in Mavis Baker v. The Minister of Citizenship and Immigration on July 9, 1999. L'Heureux-Dubé J. wrote the main set of reasons on behalf of Gonthier, McLachlin, Bastarache and Binnie, JJ. Iacobucci J. (Cory J. with him) wrote concurring reasons. In my view, the Baker case has substantial material impact in the case before me. The Baker case concerned a decision by an immigration officer refusing an application by Mavis Baker who sought the same exemption as the applicant is seeking here.
[24] As expressed by L'Heureux-Dubé J., at the centre of the Baker appeal is "the approach to be taken by a court to judicial review of such decisions, both on procedural and substantive grounds. It also raises issues of reasonable apprehension of bias, the provision of written reasons as part of a duty of fairness, and the role of children's interests in reviewing decisions made pursuant to s. 114(2)". In the case at hand, no issues arise as they did in Baker, supra, as to procedural fairness, reasonable apprehension of bias and the provisions of written reasons. I take the Immigration Officer's notes to be those reasons. As I view Baker in this case, it is of critical importance in terms of the substantive grounds for judicial review, the role of the guidelines and accounting of the children's interests.
[25] In terms of factual background in Baker, L'Heureux-Dubé J. stated at paragraphs 2 and 3 of her decision:
| 2 Mavis Baker is a citizen of Jamaica who entered Canada as a visitor in August of 1981 and has remained in Canada since then. She never received permanent resident status, but supported herself illegally as a live-in domestic worker for 11 years. She has had four children (who are all Canadian citizens) while living in Canada: Paul Brown, born in 1985, twins Patricia and Peter Robinson, born in 1989, and Desmond Robinson, born in 1992. After Desmond was born, Ms. Baker suffered from post-partum psychosis and was diagnosed with paranoid schizophrenia. She applied for welfare at that time. When she was first diagnosed with mental illness, two of her children were placed in the care of their natural father, and the other two were placed in foster care. The two who were in foster care are now again under her care, since her condition has improved. |
| 3 The appellant was ordered deported in December 1992, after it was determined that she had worked illegally in Canada and had overstayed her visitor's visa. In 1993, Ms. Baker applied for an exemption from the requirement to apply for permanent residence outside Canada, based upon humanitarian and compassionate considerations, pursuant to s. 114(2) of the Immigration Act. She had the assistance of counsel in filing this application, and included, among other documentation, submissions from her lawyer, a letter from her doctor, and a letter from a social worker with the Children's Aid Society. The documentation provided indicated that although she was still experiencing psychiatric problems, she was making progress. It also stated that she might become ill again if she were forced to return to Jamaica, since treatment might not be available for her there. Ms. Baker's submissions also clearly indicated that she was the sole caregiver for two of her Canadian-born children, and that the other two depended on her for emotional support and were in regular contact with her. The documentation suggested that she too would suffer emotional hardship if she were separated from them. |
[26] Before considering the applicable legal principles, L'Heureux-Dubé J. addressed two issues, mainly:
| (1) the nature of the decision and; |
| (2) the role of guidelines contained in Chapter 9 of the Immigration Manual: Examination and Enforcement. |
These issues or factors are important, in my view, and I discuss them briefly.
[27] L'Heureux-Dubé J. wrote about the nature of the decision at paragraph 15 of her reasons:
| 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: ... 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. [emphasis mine] |
[28] At paragraphs 16 and 17 of her reasons for judgment, L'Heureux-Dubé J. said this about the guidelines:
| 16 . . . The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public. A number of statements in the guidelines are relevant to Ms. Baker's application. Guideline 9.05 emphasizes that officers have a duty to decide which cases should be given a favourable recommendation, by carefully considering all aspects of the case, using their best judgment and asking themselves what a reasonable person would do in such a situation. It also states that although officers are not expected to "delve into areas which are not presented during examination or interviews, they should attempt to clarify possible humanitarian grounds and public policy considerations even if these are not well articulated". |
| 17 The guidelines also set out the bases upon which the discretion conferred by s. 114(2) and the regulations should be exercised. Two different types of criteria that may lead to a positive s. 114(2) decision are outlined -- public policy considerations and humanitarian and compassionate grounds. Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist. Public policy reasons include marriage to a Canadian resident, the fact that the person has lived in Canada, become established, and has become an "illegal de facto resident", and the fact that the person may be a long-term holder of employment authorization or has worked as a foreign domestic. Guideline 9.07 states that humanitarian and compassionate grounds will exist if "unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada". The guidelines also directly address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a Canadian resident, whether parents, children, or others who are close to the claimant, but not related by blood. They note that in such cases, the reasons why the person did not apply from abroad and the existence of family or other support in the person's home country should also be considered. [emphasis mine] |
[29] L'Heureux-Dubé J. then embarked upon a fundamental discussion of the review of the exercise of the Minister's discretion. She acknowledged the language of the Act and Regulations give considerable discretion or choice to which the Courts will defer. She considered and fused together the traditional principles of administrative law in reviewing the exercise of discretion (citing [1982] 2 S.C.R. 2">Maple Lodge Frams v. Government of Canada, [1982] 2 S.C.R. 2) with the general doctrine of unreasonableness. She said it was inaccurate to speak of a rigid dichotomy of "discretionary" or "non-discretionary" decisions because most administrative decisions involve the exercise of implicit discretion in relation to many aspects of decision-making. She made reference to the "pragmatic and functional" approach which recognizes that standards of review of errors of law are seen on a spectrum.
[30] Applying the factors of the presence or absence of a privative clause, the expertise of the decision-maker, the purpose of the provision, in the particular, and that of the Act as a whole, as well as the nature of the problem in question related to fact appreciation, L'Heureux-Dubé J. established the standard of review of the soundness of the decision in this case in the following terms:
| 62 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. |
[31] L'Heureux-Dubé J. continued her analysis dealing with the question whether the immigration officer's refusal to grant Mavis Baker's humanitarian and compassionate exemption was reasonable. The test she adopted in scrutinizing whether the decision and the immigration officer's interpretation of the scope of the discretion conferred upon him was unreasonable in the sense was that expressed by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748:
| An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. |
[32] L'Heureux-Dubé J. found the immigration officer's decision to be unreasonable. In her opinion, the approach taken to the children's interests showed that the decision was unreasonableness in the sense contemplated in Southam, supra. She said the officer was completely dismissive of the interests of Ms. Baker's children. She expressed the view that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer. She said the reasons of the immigration officer showed that his decision was inconsistent with the values underlying the grant of discretion and that therefore they could not stand up to the somewhat probing examination required by the standard of reasonableness.
[33] The wording of subsection 114(2) and regulation 2.1 requires that a decision-maker exercise the power based upon "compassionate or humanitarian considerations". These words and their meaning must be central in determining whether an individual visa officer's decision was a reasonable exercise of the power conferred by Parliament.
[34] In her opinion, a reasonable exercise of the power conferred by the section required 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. The indications of children's interests as important considerations governing the manner in which H & C powers should be exercised are in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself.
[35] In particular, as to the importance of the ministerial guidelines, L'Heureux-Dubé J. said:
| 72 Third, the guidelines issued by the Minister to immigration officers recognize and reflect the values and approach discussed above and articulated in the Convention. As described above, immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. The guidelines show what the Minister considers a humanitarian and compassionate decision, and they are of great assistance to the Court in determining whether the reasons of Officer Lorenz are supportable. They emphasize that the decision-maker should be alert to possible humanitarian grounds, should consider the hardship that a negative decision would impose upon the claimant or close family members, and should consider as an important factor the connections between family members. The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power. |
| 73 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 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 had 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. [emphasis mine] |
[36] L'Heureux-Dubé J. concluded by saying she disagreed with the Federal Court of Appeal's decision in Shah v. Minister of Employment and Immigration (1994) 170 N.R. 238, that a subsection 114(2) decision is "wholly a matter of judgment and discretion. The wording of s. 114(2) and of the regulations shows the discretion granted is confined within certain boundaries. She concluded:
| 75 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 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. |
APPLICATION OF THE PRINCIPLES OF BAKER IN THIS CASE
[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. While Baker focussed upon a consideration of children's interests, what L'Heureux-Dubé J. said has wider application than just children's interests but also embraced the interests of the adult applicant.
[38] This aspect of Baker is clear when L'Heureux-Dubé J. stated at paragraph 72:
| ...immigration officers are expected to make the decision that a reasonable person would make, with special consideration of humanitarian values such as keeping connections between family members and avoiding hardship by sending people to places where they no longer have connections. |
[39] Not only does Baker require a more focussed approach by immigration officers, it places a new and more "hands-on" responsibility by a reviewing judge. A reviewing judge must take a "hard look" at the H & C decision, must assess whether it is reasonable by examining the reasons to see if they can stand up to a somewhat probing examination in the evidentiary foundation.
[40] 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.
[41] Such an approach by the immigration officer cannot be a reasonable exercise of power which requires a 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.
[42] The Immigration Officer found insufficient humanitarian and compassionate reasons in the applicant's individual circumstances to warrant processing her application for permanent resident within Canada. The reasonableness of this determination requires a somewhat probing examination of the evidence. As I see it, the Immigration Officer's reasons ignore the fact that the applicant has no connections with the Czech Republic; all her connections are in Canada. In addition, the Immigration Officer's reasons overemphasized her self-reliance and makes assumptions that "she will do OK".
DISPOSITION
[43] For all of these reasons, this judicial review application is granted, the decision of the Immigration Officer is set aside, and the matter is remitted to the Minister for redetermination by a different Immigration Officer. No question was proposed for certification.
J U D G E
OTTAWA, ONTARIO
NOVEMBER 2, 1999
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