Date: 20110412
Docket: IMM-4898-10
Citation: 2011 FC 451
Ottawa,
Ontario, April 12, 2011
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
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ZULQUANAIN HUSAIN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr.
Zulquanain Husain (the “Applicant”) seeks judicial review of the decision of
Visa Officer Kristin L. Erickson (the “Officer”) of the High Commission of
Canada in New
Delhi, India. In her
decision, the Officer rejected the Applicant’s application for permanent
residence in Canada as a de facto member of the family class, pursuant
to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
“Act”) and the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the “Regulations”). The Applicant applied for the exercise of
discretion on humanitarian and compassionate grounds pursuant to subsection
25(1) of the Act which provides as follows:
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25.
(1) The Minister must, on request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly
affected.
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25.
(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
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[2]
The
Applicant is a citizen of India. She is the sister of Riyaz Husain. In
November 1999, Riyaz Husain and his wife Arjumand became the parents of
triplets, all daughters. The Applicant travelled to Dubai, United Arab
Emirates to assist her sister-in-law in caring for the three children and
remained with her extended family for a few months. She became attached to Husaina,
one of the children, and when she returned to India her brother
and sister-in-law allowed her to take the baby with her. At this time, the
Applicant was married but no children had been born of her marriage.
[3]
The
Applicant and her husband raised their niece as their own child.
[4]
In
2001, the Applicant’s brother and sister-in-law applied for permanent resident
status in Canada. The child
Husaina was included in this application.
[5]
On
February 6, 2002, the Applicant’s brother and sister-in-law swore an Affidavit
making the Applicant Husaina’s guardian.
[6]
On
May 6, 2005, the Applicant’s brother and sister-in-law and all their children
were granted permanent residence in Canada. They immigrated to Canada shortly
thereafter and left their daughter Husaina in the custody of the Applicant.
[7]
In
July 2008, the Applicant’s husband died. She was left with significant debt and
relied upon Husaina’s parents for financial support.
[8]
The
Applicant’s brother and sister-in-law applied to sponsor the Applicant on
September 1, 2009. On April 20, 2009, Dr. V. Raut, a psychiatrist had written a
letter, stating that the best interests of Husaina would be met if she
immigrated to Canada accompanied
by the Applicant.
[9]
The
Applicant’s submissions in support of her application for permanent residence,
on humanitarian and compassionate (“H & C”) grounds, included submissions
concerning the best interests of the child Husaina.
[10]
The
Officer’s reason for refusing the Applicant’s application are set out in the
Computer Assisted Immigration Processing System (“CAIPS”) notes. She concluded
that the child’s parents must bear the “inevitable consequences” of their
decision to “give” their child to the Applicant and that Husaina’s best
interest would be satisfied by leaving her in the custody of the Applicant in India. The Officer
declined to positively exercise the discretion conferred by subsection 25(1) of
the Act in favour of the Applicant.
Discussion and
Disposition
[11]
In
light of the decisions of the Supreme Court of Canada in Dunsmuir v. New
Bruinswick, [2008] 1 S.C.R. 190 and Canada (Minister of
Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339
the Officer’s decision is reviewable upon either the standard of reasonableness
or correctness. The decision here in issue is one involving the exercise of
discretion having regard to the statutory purpose of the Act.
[12]
In
its decision in Dunsmuir, the Supreme Court also observed that where
prior jurisprudence has established the standard of review that should apply in
a particular case, that standard can be followed. In this regard, I refer to paragraph
57.
[13]
In
Paz v. Canada (Citizenship and Immigration), 2009 FC 412,
this Court held that the standard of review applicable to H & C
applications is reasonableness. That standard will be applied in this case.
[14]
The
Officer made the following entry in the CAIPS notes:
THERE IS NO COMPULSION ON SPONSORS TO
REMOVE HUSAINA FROM INDIA OR FROM THE CARE OF THE APPLICANT; IF THE SPONSORS
CHOOSE TO TAKE THAT ACTION, THEY ARE ONLY REACHING THE INEVITABLE RESULT OF
THEIR DECISION TO LEAVE HUSAINA IN THE APPLICANT’S CARE AS A BABY. THEY CHOSE
TO GIVE HUSAINA TO HER AUNT AS A DE FACTO CHILD BUT THEY NOW SEEK TO REVERSE
THAT DECISION AND TURN TO US TO AVOID THE INEVITABLE CONSEQUNCES OF THEIR
DECISION. THERE IS NO COMPULSION OR OBLIGATION TO REMOVE THE CHILD HUSAINA. IF
MATTERS ARE LEFT AS THEY ARE, THERE IS NO GROUND FOR H&C; IF THE SPONSORS
CHOOSE TO REMOVE HUSAINA, THE RESPONSIBILITY FOR THE EFFECT ON HUSAINA AND THE
APPLICANT RESTS WITH THEM
THE INTERESTS OF THE CHILD, HUSAINA, ARE
BEST SERVED BY REMAINING IN THE FAMILIAR SURROUNDINGS AND WITH THE FOSTER
MOTHER SHE HAS KNOWN AND CONSIDERED AS HER MOTHER SINCE INFANCY, AND BY
REMAINING IN HER FAMILIAR SURROUNDINGS. THERE IS NO EVIDENCE THAT REMOVING HER
FROM HER FAMILIAR SURROUNDINGS, FROM THE SCHOOL WHERE SHE HAS BEEN STUDYING,
FROM THE HOME SHE HAS KNOWN AND PLACING HER IN A COMPLETELY DIFFERENT FAMILY
DYNAMIC, AS ONE OF FOUR CHILDREN INSTEAD OF AN ONLY CHILD, AS ONE OF TRIPLETS
INSTEAD OF ALONE, IN A NEW SCHOOL IN AN UNFAMILIAR ENVIRONMENT AND WITH PARENTS
SHE HAS KNOWN AS HER BIOLOGICAL PARENTS BUT NOT AS HER DE FACTO PARENTS, WITH
THE APPLICANT’S POSITION ALTERED TO BEING HER AUNT RATHER THAN HER MOTHER, IN A
LARGER, MIXED FAMILY WOULD SERVE HER BEST INTERESTS.
[15]
As
noted above, the Officer’s decision is reviewable on the standard of
reasonableness. That standard applies both to the decision-making process and
the result. The reasonableness of the result will be assessed relative to the
purposes and aims of the Act in general and of subsection 25(1) in particular.
[16]
The
purposes of the Act are set out in section 3.
[17]
Subsection
3(1) sets out the statutory objectives with respect to immigration. Paragraph
3(1)(d) addresses family re-unification, as follows:
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3.
(1) The objectives of this Act with respect to immigration are
…
(d)
to see that families are reunited in Canada;
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3.
(1) En matière d’immigration, la présente loi a pour objet :
…
d)
de veiller à la réunification des familles au Canada;
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[18]
Subsection
12(1) of the Act provides that immigrants may be granted entry on the basis of
family relationships and provides as follows:
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Family
reunification
12.
(1) A foreign national may be selected as a member of the family class on the
basis of their relationship as the spouse, common-law partner, child, parent
or other prescribed family member of a Canadian citizen or permanent
resident.
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Regroupement
familial
12.
(1) La sélection des étrangers de la catégorie « regroupement familial » se
fait en fonction de la relation qu’ils ont avec un citoyen canadien ou un résident
permanent, à titre d’époux, de conjoint de fait, d’enfant ou de père ou mère
ou à titre d’autre membre de la famille prévu par règlement.
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[19]
Subsection
117(1) of the Regulations defines membership in the family class. The Applicant
is not a member of the “family” class as defined in subsection 117(1) of the
Regulations. This impediment can be waived by the Minister of Citizenship and
Immigration (the “Respondent”) by the positive exercise of discretion pursuant
to subsection 25(1) of the Act.
[20]
The
exercise of discretion pursuant to subsection 25(1), to overcome non-compliance
with the statutory and regulatory requirements of the current immigration
statutory regime, is not limited to consideration of the best interests of a
child. Section 12 of the Interpretation Act, R.S.C. 1985, c. I-21, reads
as follows:
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Every
enactment is deemed remedial, and shall be given such fair, large and liberal
construction and interpretation as best ensures the attainment of its
objects.
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Tout
texte est censé apporter une solution de droit et s’interprète de la manière
la plus équitable et la plus large qui soit compatible avec la réalisation de
son objet.
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[21]
As
discussed above, one of the objects of the Act is family re-unification.
[22]
The
Officer’s decision, and her reasons for same, demonstrate disregard for the
purposes of the Act, including family re-unification in Canada. The Officer
adopted a narrow-minded approach to the Applicant’s application. In taking this
narrow-minded approach, the Officer did not address the possibility of the
Applicant, Husaina and Husaina’s parents being re-unified in Canada.
[23]
The
Officer unreasonably characterized the parents’ action as “giving” their child
to the Applicant. The Applicant is the caregiver, not the “owner” of Husaina.
It is obvious that her parents did not intend to relinquish their family bonds
and responsibilities, since Husaina was included in the family’s application
for permanent residence in Canada.
[24]
For
the foregoing reasons I am satisfied that the decision fails to meet the
relevant standard of review. The application for judicial review is allowed,
the decision of the Officer set aside and the matter is remitted to a different
officer for re-determination. There is no question for certification arising.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for
judicial review is allowed, the decision of the Officer set aside and the
matter is remitted to a different officer for re-determination. There is no
question for certification arising.
“E.
Heneghan”
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