Date: 20070413
Docket: IMM-4022-06
Citation: 2007
FC 387
Ottawa, Ontario, April 13, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
MONIKA
THIARA
(aka MONIKA SAHOTA)
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Thiara wants to remain in Canada to parent her Canadian born daughters. An
Immigration Officer (the officer) concluded that there were insufficient
humanitarian and compassionate (H&C) grounds to warrant an exemption from
the requirement of applying for a visa from outside of Canada in accordance
with subsection 11(1) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA). Ms. Thiara seeks judicial review of the officer’s
decision and contends that if the officer had considered certain international
human rights instruments in the manner mandated by the IRPA, the result would
have been different.
[2] Despite the articulate
submissions of Ms. Thiara’s counsel, I am not persuaded that the officer erred
as alleged. I am satisfied that the officer’s conclusion was reasonable and
does not warrant intervention. Consequently, the application for judicial
review will be dismissed.
Background
[3] Ms. Thiara is a 30-year-old citizen
of India. She first immigrated
to Canada as a sponsored spouse
in March 1996. She claims that her marriage to Jaswinder Singh Sahota was
arranged when she was seventeen years old. However, the man she knew as
“Sahota” was really a refugee claimant named Rajinder Heer, who had stolen his
friend’s identity and married Ms. Thiara for the purpose of attaining permanent
residence status. Ms. Thiara alleges that she did not realize that she had
been deceived by her new husband “until it was too late”. Despite learning of
her husband’s lies, she resigned herself to the fact that she had married him
and “tried to abide by his wishes”.
[4] Mr. Heer intended that his new wife
would divorce “Mr. Sahota” in Canada and subsequently “meet” and marry him (Mr. Heer) under his
true identity. On December 11, 1996, the British Columbia Supreme Court
dismissed Ms. Thiara’s petition for divorce and declared that the marriage
solemnized in India on November 16, 1994
was not between Ms. Thiara and Mr. Sahota. On October 7, 1997, Ms. Thiara was
reported under paragraph 27(1)(e) of the former Immigration Act and a
warrant for her arrest for an immigration inquiry was issued on March 17, 1999.
Later that year, Ms. Thiara married Mr. Heer and submitted an application to
sponsor him. On August 24, 2001, pursuant to paragraph 27(1)(e) of the Immigration
Act, a deportation order was issued with respect to Ms. Thiara after an
adjudicator found her to have been granted landing by reason of
misrepresentation of a material fact. After she unsuccessfully appealed to the
Immigration Appeal Division (IAD) and her application for leave and for
judicial review was dismissed, Ms. Thiara was removed from Canada on January 18, 2005.
[5] While she was in Canada, Ms. Thiara and Mr.
Heer had three children, all of whom are Canadian citizens. Their son lives in
India with his paternal
grandparents and their two daughters reside with Ms. Thiara. She and Mr. Heer
separated in January 2005 and she raises the two girls, ages six and nine
years, on her own. She claims that Mr. Heer continues to live illegally in Canada and does not provide
any means of support.
[6] Upon deportation in January 2005,
Ms. Thiara returned to her parents’ home in India. Approximately one month later, her daughters
joined her. In her affidavit, she testifies that she had great difficulty
securing a job in India as a single mother and
was unable to find any work. She could not rely upon financial assistance from
her family of limited means. Nor was she successful in her plea to her husband’s
family for assistance. When she visited her in-laws in Bombay, they refused to help
her or her daughters and prevented Ms. Thiara from seeing her son.
[7] In April 2005, Ms. Thiara returned
to Canada, by presenting her old
immigration papers to officials at the Canadian Embassy and telling them that
she did not have a permanent resident card and was having difficulty returning
to Canada. She concealed the
fact that she had been deported and successfully obtained a returning resident
permit. She left her daughters with her parents, intending to send for them
once she was re-established in Canada.
[8] Upon her arrival at the Vancouver airport, Ms. Thiara
attempted to make a refugee claim under a false name. Although she was
discovered and detained, she was allowed to proceed with her claim for
protection. She sent for her daughters and they arrived in August 2005. Since
her return to Canada, Ms. Thiara has secured a job and supports herself and her
children; she also sends money to her parents in India.
[9] On March 14, 2006, Ms. Thiara’s
claim for refugee protection was denied. In May 2006, her application for
judicial review was dismissed for failure to file an application record.
[10] Prior to her deportation to India in January 2005, Ms. Thiara
and Mr. Heer filed an H&C application. In April 2006, Ms. Thiara’s lawyer
sent a letter to Citizenship and Immigration Canada (CIC) advising it that she
no longer resided with Mr. Heer and requesting that she be given additional
time to file submissions. The extension of time was granted. Approximately
one month later, Ms. Thiara’s counsel submitted extensive additional
information and documentation. Counsel explained that Mr. Heer and Ms. Thiara
had separated and now she was concerned only with ensuring that “the best
interests of her children were attended to”. Counsel provided UNESCO and other
NGO reports and statistics on the state of education, poverty and the problems
faced by young girls in India. The officer was urged
to have specific regard to the following international instruments when
considering Ms. Thiara’s application: International Covenant on Economic,
Social and Cultural Rights (ICESCR), Universal Declaration of Human
Rights (UDHR), Convention on the Rights of the Child (CRC), Convention
on the Elimination of all Forms of Discrimination against Women (CEAFDAW),
and Declaration on Social and Legal Principles relating to the Protection
and Welfare of Children, with special reference to Foster Placement and
Adoption Nationally and Internationally (DSLPPWC). The excerpts from these
instruments, referenced in Ms. Thiara’s H&C submissions, are attached to
these reasons as “Appendix A”.
The
Decision
[11] On June 29, 2006, the immigration
officer denied Ms. Thiara’s application for permanent residence based on
humanitarian and compassionate grounds. The officer noted that the application
was based on the following factors:
- the best interests of Ms. Thiara’s
children;
- Ms. Thiara’s establishment in Canada;
- Ms. Thiara’s lack of family members
in India; and
- Ms. Thiara’s inability to support
herself or her children in India.
[12] The officer also stated that “in
considering the applicant’s H&C application, I have taken into account as a
negative factor her immigration history in Canada and her dealings with CIC”. With respect
to her degree of establishment, the officer noted that Ms. Thiara had lived in Canada for over ten years, had
worked almost continuously since 1997 in a variety of occupations and had taken
courses in Canada. The officer also
noted that Ms. Thiara’s establishment in Canada was acquired as a result of her own actions in
attaining permanent residence through misrepresentation.
[13] In reference to the best interests of
the children, the officer considered the impact on Ms. Thiara’s daughters if
they were to return to India. Although she accepted
that the country conditions and the public education system in India may not be
comparable to those in Canada, the officer was not
satisfied that Ms. Thiara had demonstrated that her daughters would not have an
opportunity for education and basic amenities in India. The officer also noted that it would be Ms.
Thiara who would have to make the difficult decision between her daughters
accompanying her to India or remaining in Canada. Specifically, the officer stated:
While
I recognize that a separation would be difficult for the applicant and her
daughters if the applicant chooses for her daughters to remain in Canada, it is nonetheless an option available to her…
While
the best interests of the applicant’s children may be for the applicant to
remain in Canada, after considering all of the information in the applicant’s
case in its totality, I am not satisfied that this factor while significant
outweighs the negative factors in the applicant’s case.
[14] In concluding her decision, the
Immigration Officer determined:
After
considering all the factors in the applicant’s case, those that support a
finding of hardship and those that do not, and weighing these accordingly, I
have decided that insufficient humanitarian and compassionate grounds exist in
her case to warrant an exemption from the requirement of subsection 11(1) of
the Immigration and Refugee Protection Act and from other legislative
requirements associated with becoming a permanent resident of Canada.
The
Issues
[15] Ms. Thiara alleges two errors on
the part of the immigration officer:
1.
The
immigration officer erred by failing to consider or make any mention of the
international human rights instruments which she was required to consider. Specifically,
when taking into account the best interests of the children, the officer failed
to construe and apply section 25 of IRPA in a manner that complies with the
human rights instruments raised in submissions by Ms. Thiara’s counsel.
2.
The
immigration officer erred by making unreasonable findings with respect to the
best interests of the children.
Standard
of Review
[16] It is common ground that the standard
of review applicable to H&C determinations is reasonableness: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). A
decision will be unreasonable only if there is no line of analysis within the
given reasons which could reasonably lead the administrative decision-maker
from the evidence before it to the conclusion at which it arrived; if the
reasons are able to withstand a somewhat probing examination, the reviewing
court must not interfere: Law Society of New Brunswick v. Ryan, [2003]
S.C.J. No. 17, 2003 SCC 20 (Ryan).
Analysis
Failure
to consider or make mention of the international instruments
[17] In written submissions, Ms. Thiara
argues that the officer erred in law by not considering or making any mention
of the international instruments specifically referred to in her H&C submissions.
Although she identifies this as the officer’s most substantial error, she
provides little explanation for her assertion. At the hearing, counsel
explored the issue in greater depth. Therefore, I will address the main points
in the oral arguments.
[18] At the outset, I should state that I
do not regard the officer’s failure to specifically mention the international
instruments by name to be an error of law. It is well established that the
officer, in her reasons, need not cite all of the evidence before her. Unless
the contrary can be shown, it is presumed that a decision-maker has weighed and
considered all of the evidence: Florea v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 598 (F.C.A.) (QL); Hassan v. Canada (Minister of Employment
and Immigration)
(1992), 147 N.R. 317 (F.C.A.). The rationale underlying this proposition is to
ensure that one does not elevate form over substance.
[19] As I see it, the real
issue in this matter turns on whether the officer’s decision reveals a failure
to consider and apply the principles contained within the cited international
instruments.
[20] The focus of Ms. Thiara’s arguments
is the Federal Court of Appeal’s decision in De Guzman v. Canada (Minister of
Citizenship and Immigration) [2006] 3 F.C.R. 655, 262 D.L.R. (4th) 13 (F.C.A.)
(De Guzman). She contends that De Guzman provides “substantial
guidance” on the applicability of both binding and non-binding international
human rights instruments.
[21] In De Guzman, the court considered
the scope of paragraph 3(3)(f) of the IRPA, which directs that the act be
construed and applied in a manner that complies with international human rights
instruments to which Canada is a signatory. Ms. Thiara points specifically to
paragraphs 87-89 of the reasons for judgment, where both binding and
non-binding international instruments were considered:
¶
87 … a legally binding international human rights instrument to which Canada is signatory is determinative of how IRPA must be
interpreted and applied, in the absence of a contrary legislative intention.
¶
88 However, paragraph 3(3)(f) also applies to non-binding instruments to
which Canada is signatory. Because the only
international instruments relevant to this case are legally binding on Canada, it is not necessary to decide here the effect of paragraph
3(3)(f) with respect to non-binding international human rights instruments.
¶
89 However, in view of the considerations outlined above regarding such
instruments, I am inclined to think that Parliament intended them to be used as
persuasive and contextual factors in the interpretation and application of
IRPA, and not as determinative. Moreover, of these non-binding instruments, not
all will necessarily be equally persuasive...
[22] Thus, as Ms. Thiara
submits, the content of the “best interests of a child” (as contemplated in the
wording of section 25 of the IRPA) is elucidated and informed by international
law. Binding international instruments such as the ICESCR, the CRC and the
CEAFDAW are determinative of how the criteria of the “best interests of a
child” must be interpreted and applied. Non-binding international instruments
such as the UDHR and the DSLPPWC are to be used as “persuasive and contextual
factors in the interpretation and application” of the “best interests of a
child” factor.
[23] According to Ms. Thiara, the
international instruments cited in her H&C submissions inform four general
areas to be considered in an analysis of the “best interests of a child”:
education, parental responsibilities, parental conduct and health. She submits
that the officer failed to address, in any substantial way, all four of them.
[24] First, Ms. Thiara takes issue with
the officer’s finding that while the public education system in India is not
comparable to that of Canada, the officer was not
satisfied that her daughters would not have “the opportunity for education and
basic amenities in India”. She asserts that the
officer must “do more than analyze whether there is an opportunity for
education”, as the international instruments direct States Parties to do more
than that. In particular, she points to Article 6 of the CRC which declares
that “States Parties shall ensure to the maximum extent possible the survival
and development of the child”. She also refers to Article 29, where States
Parties agree that the education of a child shall be directed to the
development of his or her personality, talents and abilities to the “fullest
potential”. Ms. Thiara also contends that the CEAFDAW mandates that states
party to the convention shall take all appropriate steps to eliminate
discrimination against women in the field of education (Article 10). Although
a non-binding instrument, the UDHR specifies that everyone has the right to
education and parents have “a prior right” to choose the kind of education that
shall be given to their children (Article 26).
[25] Second, she finds fault with the
officer’s consideration of the option that the children could remain in Canada
while she alone returned to India.
She argues that the international instruments recognize that the best
interests of the children are for them to be raised by their mother and that
this should be done where she can support them and provide for their education.
She points to Article 10 of the ICESCR, which recognizes the importance of
providing protection to the family unit. Article 18 of the CRC provides that
States Parties shall render “appropriate assistance” to parents in the
performance of their child-rearing responsibilities. Ms. Thiara also refers to
the non-binding DSLPPWC, which states in Article 3 that “the first priority for
a child is to be cared for by his or her own parents”.
[26] Third, Ms. Thiara maintains that the
officer “applied [her] actions and immigration problems against the best
interests of the children”. She asserts that the international instruments
direct the officer not to discredit the children’s best interests for reasons
of parental conduct or improperly acquired status. Ms. Thiara refers to
Article 2 of the CRC, which stipulates that states party to the convention
shall respect and ensure the rights set forth in the convention, “irrespective
of the child’s or his or her parent’s… national, ethnic or social origin….
birth or other status”. She further references Article 10 of the ICESCR, which
states that special measure for the protection of children should be taken
“without any discrimination for reasons of parentage or other conditions”.
[27] Fourth, she contends that the officer
made no specific findings as to the children’s likely standard of health if
they joined their mother in India.
She maintains that their “overall health will be better attended to in Canada”. Ms. Thiara again
points to Article 6 of the CRC and refers to Article 24 of the same convention,
which provides that States Parties “recognize the right of the child to the
enjoyment of the highest attainable standard of health…”.
[28] Despite Ms. Thiara’s attempts to
persuade me otherwise, I am not convinced that the immigration officer failed
to apply the principles contained within the cited international instruments. Contrary
to Ms. Thiara’s assertion, in my view, the officer’s failure to cite the
instruments in her decision does not support the inference that “this entire
body of law was ignored”. The immigration officer’s reasons constitute a
comprehensive and thoughtful analysis of the factors that support an exemption
and those that do not. Although she did not specifically cite the
international instruments submitted (and argued) by counsel, she did address
their substance, as reflected by her engagement with the concerns raised in Ms.
Thiara’s submissions.
[29] The comments of the majority in Hawthorne v. Canada (Minister of
Citizenship and Immigration), [2003] 2 F.C. 555, 222 D.L.R. (4th) 265 (F.C.A.)
(Hawthorne) are apposite:
¶
5 The officer does not assess the best interests of the child in a
vacuum. The officer may be presumed to know that living in Canada can offer a
child many opportunities and that, as a general rule, a child living in Canada
with her parent is better off than a child living in Canada without her
parent. The inquiry of the officer, it seems to me, is predicated on the
premise, which need not be stated in the reasons, that the officer will end up
finding, absent exceptional circumstances, that the "child's best
interests" factor will play in favour of the non-removal of the parent. In
addition to what I would describe as this implicit premise, the officer has
before her a file wherein specific reasons are alleged by a parent, by a child
or, as in this case, by both, as to why non-removal of the parent is in the
best interests of the child. These specific reasons must, of course, be
carefully examined by the officer.
¶
6 To simply require that the officer determine whether the child's best
interests favour non-removal is somewhat artificial - such a finding will be a
given in all but a very few, unusual cases. For all practical purposes, the
officer's task is to determine, in the circumstances of each case, the likely
degree of hardship to the child caused by the removal of the parent and to
weigh this degree of hardship together with other factors, including public
policy considerations, that militate in favour of or against the removal of the
parent.
[30] The primary difficulty with Ms.
Thiara’s submissions on this first issue (which the submissions ignores) stems
from the fact that the immigration officer found that the best interests of
the children militated in favour of allowing Ms. Thiara to remain in Canada. She arrived at that
finding after careful consideration of Ms. Thiara’s submissions, which included
the international human rights instruments. Although she recognized this
positive factor as “significant”, the officer ultimately concluded that it did
not outweigh the other negative factors in her case, which included the
applicant’s long history of misrepresentation to immigration officials. Ms.
Thiara takes issue with the weight with which the officer accorded the various
factors she considered in making her decision.
[31] In essence, Ms. Thiara’s
position is: if the officer had construed the best interests of the children in
a manner compliant with the international instruments cited in her H&C submissions,
the officer would have had to conclude that Ms. Thiara’s circumstances
warranted an exemption from the requirement of subsection 11(1) of the IRPA. This
leads me to the Federal Court of Appeal’s observation in Legault v. Canada (Minister of Citizenship
and Immigration),
[2002] 4 F.C. 358 (F.C.A.) (Legault):
¶
12 … The presence of children…does not call for a certain result. It is
not because the interests of the children favour the fact that a parent
residing illegally in Canada should remain in Canada… that the Minister must exercise his discretion in favour
of said parent. Parliament has not decided, as of yet, that the presence of
children in Canada constitutes in itself an impediment to any “refoulement” of
a parent illegally residing in Canada…
[32] Although De Guzman post-dates Legault,
in my opinion it does not, nor did it intend to, overrule the determination in Legault.
Further, regard must also be had to Baker, where Madam Justice
L’Heureux-Dubé stated:
¶
75 … 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
consideration…
[33] In reality, Ms. Thiara’s arguments
are tantamount to an invitation for me to re-weigh the evidence. That is not
my function. Nor it is open to me to substitute my opinion for that of the
decision-maker. The “best interests of the child” is an important factor which
must be taken into account and given substantial weight. However, it is not
the only factor. Once it has been well identified and defined, it is for the
immigration officer to determine what weight it will be given in the
circumstances (Legault).
Unreasonable findings with respect to the
best interests of the children
[34] Ms. Thiara also
contends that the officer made various unreasonable findings with respect to
the best interests of the children. She cites the following examples:
§
It
was unreasonable for the officer to speculate that the children have an option
to remain in Canada if Ms. Thiara returns
to India. There was no evidence
that her relatives were interested or able to care for the girls.
§
It
was unreasonable for the officer to merely mention that the separation of Ms.
Thiara from her children would be “difficult”. This was insufficient analysis.
§
It
was unreasonable for the officer to weigh the problems the children could
expect to face (either separated from their mother or living with her in India) by referring to Ms. Thiara’s
conduct.
§
It
was unreasonable for the officer to find that Ms. Thiara would face challenges
in India, possibly without
family support. The evidence submitted in her H&C application indicated
that she received little to no financial support from her family.
§
It
was unreasonable for the officer to equate Ms. Thiara’s ability to establish
herself in Canada with her ability to do so in India.
§
It
was unreasonable for the officer to diminish the significance of Ms. Thiara’s
remaining immediate family coming to Canada as a matter of choice when there was no
evidence as to why the parents and brother are immigrating to Canada.
§
It
was unreasonable for the officer to assert that the educational system in India
“may” not be comparable to Canada where there is clear evidence that it is not.
[35] Microscopic examination of a decision
is not useful. The caution in Miranda v. Canada (Minister of Employment
and Immigration)
(1993), 63 F.T.R. 81 (T.D.) bears repeating. There, Mr. Justice Joyal stated:
For
purposes of judicial review, however, it is my view that a Refugee Board
decision must be interpreted as a whole. One might approach it with a
pathologist's scalpel, subject it to a microscopic examination or perform a
kind of semantic autopsy on particular statements found in the decision. But
mostly, in my view, the decision must be analyzed in the context of the
evidence itself. I believe it is an effective way to decide if the conclusions
reached were reasonable or patently unreasonable.
While Justice Joyal’s admonition emerged in a
review of an Immigration and Refugee Board decision, it applies equally in the
context of an immigration officer’s H&C decision. See also: Lesanu v. Canada (Minister of Employment
and Immigration),
[1993] F.C.J. No. 962 (F.C.A.) and Condo v. Canada (Attorney General) (2005), 67 W.C.B. (2d)
847 (F.C.A.) for application of the proposition in other contexts.
[36] Microscopic examination will
undoubtedly yield the potential for alternative findings. However, that does
not render the decision made by the immigration officer unreasonable. Intervention
is not warranted where the immigration officer’s conclusions are reasonably
open to him or her.
[37] There is no doubt that, as Canadian
citizens, Ms. Thiara’s children may remain in Canada as of right. There was evidence before
the immigration officer that Ms. Thiara’s sister, living in Canada, spent time with the
children. There was also evidence that Ms. Thiara’s parents and brother were
in the process of immigrating to Canada. When Ms. Thiara returned to Canada in 2005, she left her
children in her parents’ care during her absence. Thus, there was evidence to
support the officer’s comments regarding the children’s ability to remain in Canada. The observations were
reasonable.
[38] The same can be said of the officer’s
findings regarding Ms. Thiara’s ability to support herself in India. In this respect, the
officer stated:
I
accept that the experience of trying to resettle in India may be stressful and difficult for the applicant. I note,
however, that she was able to resettle and relocate herself successfully in Canada. I recognize that finding employment in India would entail difficulty and resourcefulness for the
applicant. The applicant obtained a diploma in medical science in India and has
taken courses in Canada. She has worked in Canada and been self-supporting. It is reasonable to expect that
her education, transferable skills and work experience would assist her in
securing employment in India.
While the officer had Ms. Thiara’s affidavit
before her, which stated that she had difficulty securing employment during the
four months she lived in India in 2005, the officer
also had Ms. Thiara’s educational and employment records to consider. The
officer’s finding that Ms. Thiara’s education, transferable skills and work
experience would assist her in finding a job in India was reasonably open to her.
[39] Moreover, Ms. Thiara misconstrues the
issue when she takes exception to the officer’s findings regarding her conduct
and the availability of family support. The officer’s analysis of the best
interests of the children does not mention or include Ms. Thiara’s conduct with
Canadian immigration officials. Rather, Ms. Thiara’s misrepresentation and
negative history with CIC was raised at the outset of the decision where the
officer noted that she took this negative factor into account, when weighing
all of the factors together. In Legault, the Federal Court of Appeal
explicitly stated that immigration officers are entitled to consider the past
actions of an applicant in their assessment of humanitarian and compassionate
grounds:
¶
29 As to question 7,
7.
Is the fact that an applicant under subsection 114(2) of the Immigration
Act faces an outstanding indictment for serious offences in a foreign country
one of those "other considerations" or "other reasons"
mentioned in paragraph 75 in Baker, supra, which might outweigh the
children's best interests?
I
would answer that the Minister can take into account the actions, past and
present, of the person that requests the exception. [emphasis mine]
[40] The officer’s comments regarding the
challenges that Ms. Thiara would face in India, “possibly without family support”, were not
made specifically in reference to financial support. Placed in their context,
I read them as an allusion to the possibility that her parents and brother may
be successful in their attempts to immigrate to Canada, thereby potentially leaving Ms. Thiara
without the support that she would derive from their presence in India. The finding was not an
unreasonable one.
[41] To summarize, I do not find that the
officer’s failure to specifically cite the international instruments in her
decision indicates a concomitant failure to consider the general principles
contained within these documents. The officer’s analysis of the best interests
of the children was cogent, considered and thoughtful, signifying that she was
sensitive to the issues raised in the CRC, UDHR, and so on. Binding precedence
stipulates that, although significant, the “best interests of a child” is not
the only factor which an officer must consider and weigh in reaching her
decision.
[42] Ms. Thiara’s second
argument fails because the officer’s findings were reasonably open to her. A
decision does not have to be perfect, for perfection is not the test. Rather,
it must be able to withstand a somewhat probing examination. This decision
does withstand such examination and my intervention is not warranted.
[43] The applicant seeks certification
of the following question:
Is
“clear legislative intent to the contrary”, referred to in De Guzman,
satisfied by the existence of discretion in section 25 of the IRPA?
The
respondent suggests that the question below better reflects the argument.
To
what degree does paragraph 3(3)(f) of the IRPA mean than an officer exercising
discretion under section 25 of the Act, must specifically take into account
human rights instruments to which Canada is signatory?
[44] A certified question is a serious
question of general importance which would be dispositive of an appeal. Thus,
it must be a question that has been raised and determined.
[45] The first question is not appropriate
for certification because it is not addressed in these reasons and would not be
determinative of an appeal. Although the second question is a more accurate
reflection of the arguments, it lacks specificity. Additionally,
it is arguable whether the proposed question is truly determinative in the
present circumstances where the immigration officer concluded that the “best
interests of the child” factor militates in favour of the applicant.
[46] Notwithstanding, the submissions at the
hearing were largely devoted to the issue of the purported obligation of
immigration officers to refer to and analyse the impugned international human
rights instruments. While I entertain doubt as to whether the proposed
question would be dispositive of an appeal in this matter, it has been raised
and addressed in these reasons. Therefore, I will certify a slightly
reformulated question to better reflect the submissions and my determination. I will certify the
following question:
Does
paragraph 3(3)(f) of the IRPA require that an immigration officer, exercising
discretion under section 25 of the IRPA, specifically refer to and analyse the
international human rights instruments to which Canada is signatory, or is it
sufficient if the officer addresses their substance?
ORDER
THIS COURT ORDERS THAT the application for
judicial review is dismissed. The following question is certified:
Does
paragraph 3(3)(f) of the IRPA require that an immigration officer, exercising
discretion under section 25 of the IRPA, specifically refer to and analyse the
international human rights instruments to which Canada is signatory, or is it
sufficient if the officer addresses their substance?
“Carolyn
Layden-Stevenson”
SCHEDULE “A”
to
the
Reasons
for order dated April 13, 2007
in
MONIKA
THIARA
(aka
MONIKA SAHOTA)
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
IMM-4022-06
I International
Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3
Article 10
The States Parties
to the present Covenant recognize that:
1.
The widest possible protection and assistance
should be accorded to the family, which is the natural and fundamental group
unit of society, particularly for its establishment and while it is responsible
for the care and education of dependent children…
3.
Special measures of protection and assistance
should be taken on behalf of all children and young persons without any
discrimination for reasons of parentage or other conditions.
Article 11
1.
The States parties to the present covenant
recognize the right of everyone to an adequate standard of living for himself
and his family, including adequate food, clothing and housing, and to the
continuous improvement of living conditions. The States Parties will take
appropriate steps to ensure the realization of this right, recognizing to this
effect the essential importance of international co-operation based on free
consent.
Article 13
1. The states Parties to the present Covenant recognize the right of
everyone to education. They agree that education shall be directed to the full
development of the human personality and the sense of its dignity, and shall
strengthen the respect for human rights and fundamental freedoms. They further
agree that education shall enable all persons to participate effectively in a
free society, promote understanding, tolerance and friendship among all nations
and all racial, ethnic or religious groups, and further the activities of the
United Nations for the maintenance of peace.
II Universal
Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810
Article 25
1.
Everyone has the right to a standard of living
adequate for the health and well-being of himself and of his family, including
food, clothing, housing and medical care and necessary social services, and the
right to security in the event of unemployment, sickness, disability,
widowhood, old age or other lack of livelihood in circumstances beyond his
control.
2.
Motherhood and childhood are entitled to special
care and assistance. All children, whether born in or out of wedlock, shall
enjoy the same social protection.
Article 26
1.
Everyone has the right to education. Education
shall be free, at least in the elementary and fundamental stages. Elementary
education shall be compulsory. Technical and professional education shall be
made generally available and higher education shall be equally accessible to
all on the basis of merit.
2.
Education shall be directed to the full
development of the human personality and to the strengthening of respect for
human rights and fundamental freedoms. It shall promote understanding,
tolerance and friendship among all nations, racial or religious groups, and
shall further the activities of the United Nations for the maintenance of
peace.
3.
Parents have a prior right to choose the kind of
education that shall be given to their children.
III Convention
on the Rights of the Child, Can. T.S. 1992 No. 3
(excerpts from the preamble)
Recalling that,
in the Universal Declaration of Human Rights, the United Nations has proclaimed
that childhood is entitled to special care and assistance,
Convinced
that the family, as the fundamental group of society and the natural
environment for the growth and well-being of all its members and particularly
children, should be afforded the necessary protection and assistance so that it
can fully assume its responsibilities within the community,
Recognizing
that the child, for the full and harmonious development of his or her
personality, should grow up in a family environment, in an atmosphere of
happiness, love and understanding,
Considering
that the child should be fully prepared to live an individual life in society,
and brought up in the spirit of the ideals proclaimed in the Charter of the
United Nations, and in particular in the spirit of peace, dignity, tolerance,
freedom, equality and solidarity,
Article 2
1.
States Parties shall respect and ensure the
rights set forth in the present Convention to each child within their
jurisdiction without discrimination of any kind, irrespective of the child’s or
his or her parent’s or legal guardian’s race, colour, sex, language, religion,
political or other opinion, national, ethnic or social origin, property,
disability, birth or other status.
2.
States Parties shall take all appropriate
measures to ensure that the child is protected against all forms of
discrimination or punishment on the basis of the status, activities, expressed
opinions, or beliefs of the child’s parents, legal guardians, or family
members.
Article 6
2. States Parties shall ensure to the maximum extent possible the
survival and development of the child.
Article 18
1. States Parties shall use their best efforts to ensure recognition
of the principle that both parents have common responsibilities for the
upbringing and development of the child. Parents or, as the case may be, legal
guardians, have the primary responsibility for the upbringing and development
of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set
forth in the present Convention, States Parties shall render appropriate
assistance to parents and legal guardians in the performance of their
child-rearing responsibilities and shall ensure the development of
institutions, facilities and services for the care of children.
Article
20
1. A child temporarily or permanently deprived of his or her family
environment, or in whose own best interests cannot be allowed to remain in that
environment, shall be entitled to special protection and assistance provided by
the State.
2. States parties shall in accordance with their national laws
ensure alternative care for such a child.
Article
24
1. States Parties recognize the right of the child to the enjoyment
of the highest attainable standard of health and to facilities for the
treatment of illness and rehabilitation of health. States Parties shall strive
to ensure that no child is deprived of his or her right of access to such
health care services.
Article 28
1. States Parties recognize the right of the child to education, and
with a view to achieving this right progressively and on the basis of equal
opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage
the development of different forms of secondary education, including general
and vocational education, make them available and accessible to every child,
and take appropriate measures such as the introduction of free education and
offering financial assistance in case of need;
(c) Make higher
education accessible to all on the basis of capacity by every appropriate
means;
(d) Make
educational and vocational information and guidance available and accessible to
all children;
(e) Take measures
to encourage regular attendance at schools and the reduction of drop-out rates.
Article 29
1. States Parties
agree that the education of the child shall be directed to:
(a) The
development of the child’s personality, talents and mental and physical
abilities to their fullest potential;
(d) The
preparation of the child for responsible life in a free society, in the spirit
of understanding, peace, tolerance, equality of sexes, and friendship among all
peoples, ethnic, national and religious groups and persons of indigenous
origin;
IV Convention on the Elimination of All forms of
Discrimination against Women,
Can. T.S.1982 No. 31
Article
10
States Parties
shall take all appropriate measures to eliminate discrimination against women
in order to ensure to them equal rights with men in the field of education and
in particular to ensure, on a basis of equality of men and women:
(a)The same
conditions for career and vocational guidance, for access to studies and for
the achievement of diplomas in educational establishments of all categories in
rural as well as in urban areas; this equality shall be ensured in pre-school,
general, technical, professional and higher technical education, as well as in
all types of vocational training;
(b) Access to the
same curricula, the same examinations, teaching staff with qualifications of
the same standard and school premises and equipment of the same quality;
(c) The
elimination of any stereotyped concept of the roles of men and women at all
levels and in all forms of education by encouraging coeducation and other types
of education which will help to achieve this aim and, in particular, by the
revision of textbooks and school programmes and the adaptation of teaching
methods;
(d) The same opportunities to benefit from scholarships and other
study grants;
(e) The same
opportunities for access to programmes of continuing education, including adult
and functional literacy programmes, particularly those aimed at reducing, at
the earliest possible time, any gap in education existing between men and
women;
(f) The reduction
of female student drop-out rates and the organization of programmes for girls
and women who have left school prematurely;
(g) The same
Opportunities to participate actively in sports and physical education;
(h) Access to
specific educational information to help to ensure the health and well-being of
families, including information and advice on family planning.
V Declaration on Social and Legal Principles
relating to the Protection and Welfare of Children, with special reference to
Foster Placement and Adoption Nationally and Internationally, GA Res. 41/85, UN
GAOR, (1986)
Article 1
Every State should give a high
priority to family and child welfare.
Article 2
Child welfare depends upon good
family welfare.
Article 3
The first priority for a child
is to be cared for by his or her own parents.
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