Date:
20120801
Docket:
IMM-9363-11
Citation:
2012 FC 954
Ottawa, Ontario,
August 1, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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SATYA DEVI
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Applicant
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and
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THE MINISTER OF CITIZENZHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Ms
Satya Devi’s daughter, Babita, and Babita’s children, Harish and Alisha, are
Canadian citizens. In 2006, Ms Devi came to Canada from India on a visitor’s visa to help Babita care for Harish, a quadriplegic with cerebral
palsy, who was undergoing surgery at the time. Ms Devi asked for and received
extensions to her visa over the years. In 2011, she applied for permanent
residence in Canada based on humanitarian and compassionate considerations. In
support of her application, she relied primarily on the care she provides for
Harish and the strong bond she shares with Alisha.
[2]
An
immigration officer denied Ms Devi’s application. The officer found that the
care Ms Devi provides Harish could be provided by others, including Babita’s
husband. The officer accepted that Ms Devi’s ongoing presence could benefit the
Canadian health care system by relieving it of the burden of providing care to
Harish. However, Ms Devi would probably have trouble meeting the physical
demands of caring for Harish as he grew. The officer also concluded that Ms
Devi had not shown that she had firmly established herself in Canada. The officer recognized the strong bond between Ms Devi and Alisha, but felt that Ms
Devi’s departure would not cause Alisha unusual or disproportionate hardship.
She could still provide emotional support from India, and their relationship
could be nurtured through future visits.
[3]
Ms
Devi argues that the officer failed to give adequate consideration to the best
interests of the children affected by the decision. She asks me to quash the
officer’s decision and order another officer to reconsider her application.
[4]
I
agree with Ms Devi that the officer did not give sufficient attention to the
best interests of the children, particularly Alisha’s, and must, therefore,
allow this application for judicial review.
[5]
The
sole issue is whether the officer gave adequate consideration to the best
interests of the children.
II. Did the officer give
adequate attention to the best interests of Harish and Alisha?
[6]
Ms
Devi argues that the officer ignored important evidence. In particular, the
evidence showed that Babita’s husband was unable to help care for the children
because he experiences schizophrenia and physical limitations from a past
injury. The officer also believed that Ms Devi’s diminutive stature would make
it more difficult for her to care for Harish in the future but the evidence
showed that, even if true, this would not affect her ability to help with
household chores, feeding and changing Harish, and caring for Alisha.
[7]
In
addition, the officer did not consider the fact that Alisha lived with Ms Devi
in India from 2001, when she was just seven months’ old, until early 2005. Ms
Devi has been caring for her in Canada since July 2006.
[8]
I
agree with Ms Devi that the officer’s consideration of the best interests of
the children was inadequate. Ms Devi provided evidence of significant hardship
to Alisha if they were to be separated. The officer failed to recognize that
Alisha has spent almost her entire life in Ms Devi’s care.
[9]
Further,
the officer did not consider the evidence showing that Babita’s husband was
unable to work, or to care for himself or his children, and was abusive toward
them. In fact, it was due to his behaviour that Alisha left Canada to live with Ms Devi in India from 2001 to 2005.
[10]
Similarly,
while the officer concluded that Ms Devi would have difficulty caring for
Harish in the future, this did not take account of her other tasks or a
physician’s letter explaining that Ms Devi plays an important role in helping
Babita lift Harish.
[11]
In
my view, the officer was not sufficiently alert, alive and sensitive to the
needs of Harish and Alisha. Therefore, the officer’s decision was unreasonable.
III. Conclusion and
Disposition
[12]
While
the best interests of children do not determine the outcome of applications
based on humanitarian and compassionate grounds, officers must be alert, alive
sensitive to children’s needs. Here, the officer overlooked and discounted
evidence that showed that Ms Devi plays a significant role in the lives of two
children, and that her removal from Canada would cause them serious hardship.
Accordingly, the officer’s decision was unreasonable and I must, therefore,
allow this application for judicial review. Neither party proposed a question
of general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to
another officer for reconsideration;
2.
No
question of general importance is stated.
“James W. O’Reilly”
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