Date:
20080515
Docket: IMM-458-07
Citation: 2008 FC 613
Vancouver, British Columbia,
May 15, 2008
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
GURPREET
SINGH GILL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Gurpreet
Singh Gill (the Applicant), an 8-year-old citizen of India, applied for
admission to Canada on humanitarian and compassionate (H&C) grounds,
so that he could be reunited with his family. The present Application
challenges the decision of the Second Secretary, Immigration (the Officer),
dated December 7, 2006 in which he found that there are insufficient H&C
considerations to approve Gurpreet’s request. The issue for determination is
whether, in reaching this conclusion, the Officer made a reviewable error. For
the reasons that follow I find that he did.
[2]
Gurpreet’s
father, Amarjit Gill, submitted an application to immigrate to Canada as a skilled worker
prior to his son’s birth. Although he declared his two daughters on his
application as unaccompanying dependents, he failed to amend his
application to include his son. Amarjit Gill was landed in Canada on July 1,
2000, and has since sponsored his wife and two daughters. Their applications
also did not list Gurpreet as a family member. They are all now Canadian
citizens.
[3]
In
May of 2005 a family class sponsorship was submitted for Gurpreet, however it
was denied under s.117(9)(d) of the Immigration and Refugee Protection
Regulations, SOR/2002-227
(IRPR), which prohibits undeclared dependents from later being
sponsored as members of the family class. Instead of appealing this decision,
an H&C application was submitted under s.25 (1) of the Immigration
and Refugee Protection Act R.S.C. 2001, c. 27 (IRPA).
[4]
Counsel
for the Applicant sent a letter to Citizenship and Immigration Canada (CIC)
accompanying Gurpreet’s application. The letter explained the circumstances
surrounding the primary negative factor in Gurpreet’s application, being that
his family failed to declare him, but submitted reasons why this should not
result in his application being rejected. The letter then went on to outline
the H&C considerations in Gurpreet’s case. In addition to noting that it
was a goal in the IRPA to reunite families, the letter stated:
The Applicant…is financially dependent on
his parents and requires emotional support from his parents. The Child finds
himself alone in India as all immediate family
members are in Canada. In India although the Child has grandfather who
is elderly and unable to provide financial and emotional support [sic].
(Tribunal Record, p. 33)
[5]
The
Officer interviewed Gurpreet at the consulate in New Delhi on December
7, 2006. The interview, which was conducted through a glass security
partition, lasted 1 hour and 20 minutes. Gurpreet’s grandfather also attended
and was allowed to remain in the room, but was told by the Officer not to
interrupt or participate unless asked to do so. The Officer asked Gurpreet a
series of questions through an interpreter and recorded his questions and
Gurpreet’s answers in the CAIPS notes. The Officer then conducted an interview
with Gurpreet’s grandfather. It is agreed that the notes of these interviews,
along with others made by the Officer in the CAIPS system, constitute the
reasons for the decision. These reasons indicate that a determining factor in
the decision under review is that the Officer concluded that it is in the best
interests of Gurpreet to remain in India.
I. The Issues
[6]
The
primary issue in the present Application is the sufficiency of the Officer’s
best interests of the child analysis. However, the Applicant also raises
procedural fairness with respect to the Officer’s interview with Gurpreet. As
discussed below, although there are procedural concerns resulting from this
interview, I do not find that these concerns constitute a breach of due process.
[7]
The
statutory basis for H&C applications is provided in s.25(1) of the IRPA:
|
25. (1) The
Minister shall, upon request of a foreign national who is inadmissible or who
does not meet the requirements of this Act, and may, on the Minister’s own
initiative, examine the circumstances concerning the foreign national and may
grant the foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25.
(1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui
ne se conforme pas à la présente loi, et peut, de sa propre initiative,
étudier le cas de cet étranger et peut lui octroyer le statut de résident
permanent ou lever tout ou partie des critères et obligations applicables,
s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger
— compte tenu de l’intérêt supérieur de l’enfant directement touché — ou
l’intérêt public le justifient.
|
[8]
Baker
v. Canada (Minister of
Citizenship and Immigration) [1999] 2 S.C.R. 817 [Baker] establishes
that the standard of review applicable for H&C applications is
reasonableness (para. 62). Baker further establishes that a decision
will be unreasonable if the best interests of the child analysis is deficient
(see e.g. Ek v. Canada (Minister of Citizenship and Immigration) 2003
FCT 526; Reis v. Canada (Minister of
Citizenship and Immigration) [2002] F.C.J. No. 431).
[9]
In
order to assess whether the Officer’s analysis is deficient, it is first
necessary to determine what constitutes a sufficient analysis of the best
interests of the child and to decide how it fits into the scheme set out in
s.25(1) of the IRPA. Therefore, the following issues must be addressed:
- What is the approach to be adopted for
determining the best interests of the child in overseas s.25(1)
applications?
- What is the process
for determining the best interests of the child in overseas s.25(1) applications?
- Is the Officer’s
best interests of the child determination for Gurpreet deficient?
II. What
is the Approach to be Adopted for Determining the Best Interests of the Child
in Overseas s.25(1) Applications?
A. The relevant guidelines
[10]
As
the wording of s.25(1) confers
a broad discretion on visa officers to exempt applicants on H&C grounds,
the Supreme Court of Canada recognizes that the guidelines that are issued by
CIC “are a useful indicator of what constitutes a reasonable interpretation of
the power conferred by the section” (Baker at para. 72). Therefore, for
H&C applications made within Canada, the test is that set out in the Inland
Processing Manual 5: Immigrant Applications in Canada Made on Humanitarian
or Compassionate Grounds (IP5), which states at s.5.3:
Applicants bear the
onus of satisfying the decision-maker that their personal circumstances are
such that the hardship of having to obtain a permanent resident visa from
outside of Canada would be
(i) unusual and
undeserved or
(ii) disproportionate.
Applicants may present
whatever facts they believe are relevant.
[Emphasis added]
However, in the present Application, the facts
are different from those considered in IP5. Rather than someone obtaining
an exemption in order to make an application for landing from within Canada, the Applicant is
applying for an H&C exemption from the application of s.117(9)d of the IRPR
from outside Canada. Visa officers have a policy manual specifically designed
for assessing H&C applications made outside of Canada, being the
Overseas Processing Manual 4: Processing of Applications under Section 25 of
the IRPA
(OP4).
[11]
OP4
makes no mention of the “unusual, underserved or disproportionate hardship”
test, which is specified in IP5. By contrast, OP4, at s.5.5, instructs an
officer to
assess an H&C application as follows:
First, the
decision-maker assesses the eligibility of the applicant under one of the
existing three immigration classes. If the applicant does not meet the
requirements of the class in which the application was made, the decision-maker
can proceed to review the case under H&C.
The decision-maker then assesses H&C grounds and
decides whether the applicant should be
exempted
from these sections of the Regulations. The applicant bears the onus of
satisfying the decision-maker that the H&C factors present in their
individual circumstances are sufficient to warrant an exemption. The decision-maker
considers the applicant's submissions in light of all the information
known to the Department.
After
a positive H&C decision is made, the applicant must still satisfy the
remaining requirements for a permanent resident visa and must not be
inadmissible.
[Emphasis
added]
Nevertheless, the
Respondent argues that since OP4 makes reference to IP5 to say that “[f]or information
regarding the processing of applications under section 25 of the Act (IRPA) at inland
offices of Citizenship and Immigration Canada, see IP 5.” and “[f]or
more detailed guidelines on the best interests of the child in an inland
H&C context, see chapter IP 5, section 5.19”, the undue
hardship test should be applied under OP4. However, in my opinion, these
references do not have the effect of importing the IP5 test into OP4
evaluations, because the driving factor behind an applicant’s inland H&C
application is to avoid having to leave Canada to apply for
permanent residence from outside. It does not make sense to import the undue
hardship test in overseas applications because the hardship of having to leave Canada is not a
factor in play.
B.
The relevance of the decision in Hawthorne v. Canada [2003] 2 F.C. 555 (C.A)
[12]
The
Court of Appeal’s decision in Hawthorne is an authority often referred to with
respect to the application of the best interests of the child test in inland
applications. Since inland applications relate specifically to the removal of a
person from Canada and the impact of this removal on a child, a realistic
approach is acknowledged in the majority decision of Hawthorne which was
decided under s.114(2) being the H&C section of the former Immigration
Act. The certified question posed and the answer given in Hawthorne is as follows:
Q.: Is the requirement that
the best interests of children be considered when disposing of an application
for an exemption pursuant to subsection 114(2), as set out in Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
satisfied by considering whether the removal of the parent will subject the
child to unusual, undeserved or disproportionate hardship?
A.: The requirement that the
best interests of the child be considered may be satisfied, depending on the
circumstances of each case, by considering the degree of hardship to which
the removal of a parent exposes the child.
[Emphasis added] (Hawthorne,
at para 11)
Thus, Hawthorne stands for the
proposition that the best interests of a child must always be determined in
H&C applications, but, specifically for inland applications, the reality of
the situation might focus the analysis on the suffering that a child will
experience as a result of the removal of a person from Canada (Kolosovs v.
Canada (Minister of Citizenship and Immigration) 2008 FC 165). Obviously
the reasoning in Hawthorne does not apply to overseas applications
because such applications do not involve the removal of a person from Canada. Therefore, I do not
agree with the decisions in Yue v. Canada (Minister of
Citizenship and Immigration) 2006 FC 717 and Sandhu v. Canada
(Minister of Citizenship and Immigration), 2007 FC 156 which are advanced
by the Respondent as relevant because they apply the Hawthorne analysis to overseas
H&C applications.
C. The relevance of family law principles
[13]
In
the family law context, it is well established that the best interests of the
child analysis should not focus on harm, although the presence or absence of
harm may be an important factor to consider. Rather, the best interests of the
child is a child-centric analysis, as the best interests of the child “is the
positive right to the best possible arrangements in the circumstances of the
parties” (Young v. Young [1993] S.C.J. No. 112 (Q.L.) at para. 102 per
Justice L’Heureux‑Dubé [Young]).
[14]
Family
law values have often been reflected in immigration jurisprudence. Baker notes
that an officer assessing an H&C application must be “alert, alive and
sensitive” to the child’s best interests (Baker, above, at para. 75). Similarly,
in Canada (MCI) v. Legault, 2002 FCA 125 [Legault] the Federal
Court of Appeal says that, in order for the best interests of the child
analysis to be complete, these interests must be “well identified
and defined”. CIC
itself recognizes in its policy manual that the best interests of the child
analysis requires a contextual approach by reference to family law:
The outcome of a decision under
A25(1) that directly affects a child will always depend on the facts of the
case. Officers must consider all evidence submitted by an applicant in relation
to their A25(1) request. Thus, the following guidelines are not an exhaustive
list of factors relating to children, nor are they necessarily determinative of
the decision. Rather, they are meant as a guide to officers and illustrate the
types of factors that are often present in A25(1) cases involving the best
interests of the child. As stated by Madame Justice McLachlin of the Supreme
Court of Canada, “. . . The multitude of factors that may impinge on the
child’s best interest make a measure of indeterminacy inevitable. A more
precise test would risk sacrificing the child’s best interests to expediency
and certainty. . . .” (Gordon v. Goertz, [1996] 2 S.C.R. 27).
[Emphasis added] (IP 5 at
s.5.19, referenced in OP4 at s. 8.3)
[15]
All of these statements reflect the fact that the best interests
of the child analysis is necessarily context specific and requires an officer
to identify the factors in play in order to assess how they will impact the
child. The critical points in conducting the best interests of the child
analysis are found in Young in Justice L’Heureux‑Dubé’s
decision at para. 71:
A determination of the best interests of the child encompasses a myriad
of considerations, as child custody and access
decisions have been described as "ones of human relations in their most
intense and complex form". In contrast to most issues that come before
the courts, such decisions are "person‑oriented" rather than
"act-oriented" and require an evaluation of "the whole person
viewed as a social being" (L. LaFave, "Origins and Evolution of
the `Best Interests of the Child' Standard" (1989), 34 S.D.L. Rev.
459; R. H. Mnookin, "Child‑Custody Adjudication: Judicial Functions
in the Face of Indeterminacy" (1975), 39 Law & Contemp. Probs.
226). Courts are required to predict the happening of future events rather
than to assess the legal import of past acts and judge the effect of various
relationships on the best interests of the child, all the while weighing
innumerable variables without the benefit of a simple formula.
[Emphasis added]
Therefore, in my opinion, the best interests of
the child analysis must be highly contextual and focused on the future.
III. What is the Process for
Determining Best Interests of the Child in Overseas s.25(1) Applications?
[16]
Flowing
from the need for a contextual assessment of a child’s circumstances, it
is possible to outline two steps that must be taken by an officer in order to
adequately assess a child’s best interests.
A. Identify the factors impacting a child’s
best interests
[17]
The first step in
an analysis requires the identification of the evidentiary factors which affect
a child’s best interests. The immigration manuals suggest some common
factors that, when present, impact a child’s best interests:
Generally, factors relating to a child’s
emotional, social, cultural and physical welfare should be taken into
account, when raised. Some examples of factors that applicants may raise
include:
• the age of the child;
• the level of dependency between
the child and the H&C applicant;
• the degree of the child’s
establishment in Canada;
• the child’s links to the
country in relation to which the H&C decision is being considered;
• medical issues or special needs
the child may have;
• the impact to the child’s
education;
• matters related to the child’s
gender.
(IP 5 at s. 5.19, referenced by
OP4 at s. 8.3)
[18]
More
complete lists of possible factors are available from family law legislation where courts are tasked on a regular basis with
assessing the best interests of children. The following list is stated in s.24(2) of the Ontario Children's Law Reform Act, R.S.O. 1990, c. C-12., which states that, when
establishing what is in a child’s best interests:
24
(2) The court shall consider all the child’s needs and circumstances,
including,
(a)
the love, affection and emotional ties between the child and,
(i)
each person entitled to or claiming custody of or access to the child,
(ii)
other members of the child’s family who reside with the child, and
(iii)
persons involved in the child’s care and upbringing;
(b)
the child’s views and preferences, if they can reasonably be ascertained;
(c)
the length of time the child has lived in a stable home environment;
(d)
the ability and willingness of each person applying for custody of the
child to provide the child with guidance and education, the necessaries of life
and any special needs of the child;
(e)
any plans proposed for the child’s care and upbringing;
(f)
the permanence and stability of the family unit with which it is proposed that
the child will live;
(g)
the ability of each person applying for custody of or access to the child to
act as a parent; and
(h)
the relationship by blood or through an adoption order between the child and
each person who is a party to the application.
Similar sections are contained in family law
legislation in other jurisdictions in Canada (see e.g. British Columbia Family
Relations Act, R.S.B.C. 1979, c. 121 at s. 24 and the New Brunswick Family Services Act, S.N.B. 1980,
c. F-2.2, s.1).
[19]
Therefore,
if an officer fails to identify the factors which impact a child’s best
interests,
his or her analysis of the best interests of the child is defective.
B. Make a
well reasoned choice between available options
[20]
Once
the factors that impact on a child’s best interests have been identified and
analyzed, a decision-maker must apply this knowledge to make a choice between
the options available for the future of the child. The child is entitled to
careful reasons to explain the choice made.
C. Weigh best
interests against other relevant factors
[21]
In
my opinion, in the determination of an overseas H&C application, it is only
after the best interests of the child analysis is completed that an officer can
proceed to apply the analysis to the immigration issue at hand in reaching an
s.25(1) determination. Legault establishes that the
best interests of the child does not dictate a specific result under s.25(1)
and it is for the officer to determine the degree of weight to be placed on the
best interests conclusion. Clear reasons must be provided with respect to the
outcome of this balancing process.
IV. Was the
Officer’s Best Interests of the Child Determination for Gurpreet Deficient?
A. Procedural fairness concerns
[22]
The
Applicant argues that, because the circumstances of the interview were
intimidating, and the questions asked of Gurpreet were not age appropriate, it
was unfair to rely on the evidence of an 8-year-old child. As a child’s opinion
on his or her future may provide relevant information in concluding a child’s
best interests analysis, conducting an interview might very well be
appropriate. In the present case, in my opinion, it was appropriate. While the
interview was conducted under security requirements, I do not find either the process
adopted or the questions placed constitute a breach of due process. However, I
find the use of Gurpreet’s statements to the Officer to be troubling.
B. Were the factors impacting
Gurpreet’s best interests identified?
[23]
The
entire best interests of the child analysis of the Officer is as follows:
Gurpreet Singh Gill is already separated
from his family since a long time and his financial needs are in part assured
by his parents living abroad and the extended family living with him in India. The family configuration at home has
been able to cope with the emotional needs required in the absence of support
and assistance of the close family unit, as they provided basic necessities
(food, shelter) and provided support to pursue further studies. The best interest
of the child is to be with his grandfather and the person he is considering to
be his mother, his aunt.
[Emphasis added] (Tribunal
Record, p. 7)
In my opinion, this analysis shows that the
Officer failed to identify the factors impacting Gurpreet’s best interests.
Although the analysis includes passing reference to important issues, such as
financial and emotional needs, the Officer’s analysis is misdirected. The
Officer focuses on Gurpreet’s ability to cope in his current living
situation instead of determining which living option would serve his future
best interests.
[24]
Several
factors were mentioned in Gurpreet’s paper application and interview which
impact on his best interests: he is an eight-year-old separated from his
parents and his sisters; he misses his mother, father, and his sisters; he
talks to his parents on the phone several times a week; his family sends him
presents; he is financially dependent on his parents; his grandfather caregiver
is growing old and might not be able to care for him in the future; he wants to
go to Canada to be with his family; he is having trouble in school; and he
feels neglected by his aunt and uncle because they pay more attention to their
own children.
[25]
In
the decision rendered, the Officer does not clearly identify the factors in
play. Indeed, the Officer seizes on one response given by Gurpreet at the
interview and bases the best interests of the child conclusion on a misunderstanding
that Gurpreet considers his aunt to be his mother. The question and answer
evidence with respect to the misunderstanding is as follows:
Do you have your own room?
My uncle and aunt are with me.
Are there any other children in the
house?
My cousin brother and cousin sister, they
are younger than me.
[…]
How many persons live in your house?
Grandfather, uncle, aunt, cousin sister
and cousin brother.
Who is cooking food?
Mommy my aunt.
[…]
Do you know where is [sic] your mother
and father?
In Canada, In Vancouver.
[…]
Do you have any brother and sisters?
I have two sisters in Canada.
Are you missing anything?
My mother, father and two sisters.
Do you know why your family never came to
visit you?
I don’t know.
Do you think they miss you?
Yes.
Why do you say that?
They always telling [sic] me this on the
phone.
What is the difference between what your
grandfather can give you and your father?
I don’t know.
How do you called [sic] your aunt in your
house?
Mamma.
What does this mean?
I don’t know.
How do you called [sic] your uncle?
Chacha (uncle).
[Emphasis added]
(Tribunal Record,
pp 5-6)
In order to clarify why Gurpreet calls his
aunt “Mamma” the Officer specifically sought information about this from
Gurpreet’s grandfather:
What can you say about the fact that he
seems to consider his aunt as his mother?
Earlier he used to call her chachi (aunt)
but when their own kids called her mommy, he started the same [sic].
What is the difference with his own
mother he practically never saw?
They gave more attention to their own
kids now. It is all normal.
Could you tell me why his parents never
came back to India to visit Gurpreet?
When they left for the first time, he
used to cry a lot because he missed them. I told them, either you come and live
here permanently or arrange for a visa for him.
[Emphasis added] (Tribunal Record,
p. 6)
It is clear that, in reaching the decision
under review, the Officer relied upon an erroneous finding of fact being that
Gurpreet considers his aunt to be his mother.
C. Did the Officer make
a well reasoned choice between available options?
[26]
The
obvious answer is “no”. Since the Officer failed to identify many of the
factors that impact on Gurpreet’s future best interests, it was impossible for
him to make a well reasoned choice.
D. Did the Officer
weigh best interests against other relevant factors?
[27]
Since
the decision-making in reaching this conclusion was fundamentally flawed, in
fact, no weighing could take place.
V. Conclusion
[28]
Since
the Officer’s best interests of the child analysis is made in fundamental error,
I find that the decision under review is unreasonable and, thus, is made in
reviewable error.
JUDGMENT
Accordingly,
I set aside the decision under review, and refer the matter back for
redetermination by a different officer.
CERTIFIED QUESTION
Counsel
for the Respondent proposes the following question for certification:
When
considering the best interests of a child in the context of a humanitarian and
compassionate (H&C) request received overseas, following a finding that the
child is not a member of the family class based on subsection 117(9)(d) of the Immigration
and Refugee Protection Regulations, is it sufficient for an immigration
officer to consider whether the refusal to grant the H&C request made
overseas would cause the child unusual, undeserved or disproportional hardship?
(Respondent’s
Certification Argument dated April 24, 2008)
Counsel
for the Respondent argues that “[t]his question transcends the interests of the
parties, contemplates issues of broad significance and general application and
is dispositive of the case at hand” and, therefore, meets the test for
certification under s. 74(d) of the IRPA.
There
is no dispute that Counsel for the Respondent cites the correct test for
certification (Liyanagamage v. Canada (MCI), [1994] F.C.J. No. 1637
(C.A.)). However, Counsel for the Applicant objects to certification on the
basis of the following argument:
The draft reasons of the court
dated 17 April 2008 rely heavily on the unique facts of the case and in
particular, relies on a finding that the Visa Officer misconstrued the evidence
by stating in his refusal that the applicant considers his mother his aunt.
This was found to be an erroneous finding of fact. Moreover, it has been found
that the officer did not clearly identify the factors necessary for a proper
best interest of the child assessment. This is a factual determination, unique
to the situation evident in this application.
(Applicant’s Certification
Argument dated May 1, 2008)
I agree with Counsel for the
Applicant. Because the primary errors in the decision under review in the
present Application are factual in nature, and because the result is driven by
these errors, I find that the answer to the proposed question cannot be
determinative on appeal. Therefore, I find that the proposed question does not
meet the test for certification.
“Douglas
R. Campbell”
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