Date: 20090604
Dockets: A-199-08
A-200-08
Citation: 2009 FCA 189
CORAM: LÉTOURNEAU
J.A.
NADON J.A.
TRUDEL
J.A.
Docket: A-199-08
BETWEEN:
SUSHIL KISANA, SEEMA KISANA
SUBLEEN KISANA
By her Litigation Guardian, Sushil Kisana
Appellants
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
Docket: A-200-08
BETWEEN:
SUSHIL KISANA, SEEMA KISANA
LOVLEEN KISANA
By her Litigation Guardian, Sushil Kisana
Appellants
and
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
These are
appeals from a decision of Mr. Justice Mosley of the Federal Court, 2008 FC
307, dated March 6, 2008, who dismissed the appellants’ applications for
judicial review of a determination made by a visa officer not to grant the
minor appellants, Subleen and Lovleen Kisana, permanent resident visas on
humanitarian and compassionate (H&C) grounds.
[2]
In
concluding as he did, Mosley J. certified the following question of general
importance:
Does
fairness require that an officer conducting an interview and assessment of an
application by a child for landing in Canada to join her
parents be under a duty to obtain further information concerning the best
interests of the child if the officer believes the evidence presented is
insufficient?
The Facts
[3]
The minor
appellants are the twin daughters of Sushil and Seema Kisana. They were born in
India on August 20, 1991, before
their parents were married. Sushil immigrated to Canada on February 16, 1993, and was landed as
an unmarried dependent of his parents. He married Seema upon his return to
India in 1994 and subsequently sponsored her for permanent residence in Canada. Seema was landed on April
25, 1999. Both Sushil and Seema are now Canadian citizens.
[4]
Neither
Sushil nor Seema listed their daughters as dependents on their permanent
residence applications. Seema further denied having any children during two
call-in interviews while her application was being processed. Their explanation
for failing to make the disclosure is that they were ashamed of having had
children out of wedlock and that they had not disclosed the fact that they had
children to their parents. Sudesh, the girls’ aunt, has been caring for them in
India since Seema left for Canada.
[5]
Sushil
applied to sponsor his daughters for permanent residence as members of the
family class in 2003. His application was refused because of the twins’
ineligibility as members of the family class pursuant to paragraph 117(9)(d) of
the Immigration and Refugee Protection Regulations, SOR/2002-27 (the “Regulations”),
on the ground that they had not been declared as dependents and examined at the
time their sponsor (Sushil) had been granted permanent residence.
[6]
Sushil and
Seema again applied to sponsor their daughters in 2005, this time with the
assistance of an immigration consultant. They specifically requested that the
application be considered on H&C grounds pursuant to subsection 25(1) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
Pursuant to their H&C submissions, Sushil and Seema requested that the visa
officer consider the emotional impact of continued separation and indicated
that the girls’ aunt was no longer in a position to adequately care for their
daughters, since it had not been envisaged that they would remain permanently
with her.
[7]
The girls
were called in for an interview by the Canadian High Commission Office in New Delhi. Their call-in letter was a
form letter which requested that they bring their birth certificates and
documentary evidence pertaining to their relationship with their sponsors. The
letter also required other proof of relationship with the sponsors for persons
being sponsored by their spouses or by adult parents. On October 11, 2006, the
twins and their aunt were interviewed by a designated immigration officer (the “officer”).
[8]
The
officer’s computerized notes (“CAIPS notes”) indicate that she asked questions
relating to the manner and frequency of contact between the parents and their
children, details about the parents’ life in Canada and their plans for their
daughters, how the twins were supported, their relationship with their aunt and
the girls’ daily routine in Rohini (where they lived). The officer also noted
that the twins had brought only their birth certificates and passports to the
interview and that they had provided no proof of communication with their
parents despite a follow-up e-mail from the Immigration section to their
consultant which requested that they should bring “proof of communication with
sponsor” to the interview.
[9]
By letter
dated November 7, 2007, the officer refused the application. Specifically, the
officer’s refusal was based on the following grounds:
1.
There were
insufficient reasons for the adult applicants to have failed to declare their
children on their own residency applications.
2.
There were
inadequate efforts on the part of the adult applicants to reunite with their
children.
3.
There was
insufficient evidence of the expected regular communication between the parents
and their children.
4.
There was
insufficient evidence of financial support of the children by their parents.
5.
Insufficient
information had been provided to the girls about Canada and insufficient plans
had been made for their future in Canada.
6.
The
evidence on file at the hearing did not show difficulties or undue hardship
faced by the girls in living in India
with their aunt.
[10]
The girls’
parents sought to appeal the officer’s decision to the Immigration Appeal
Division (the “IAD”) of the Immigration and Refugee Board. The IAD dismissed
their appeal for lack of jurisdiction. As a result, the parents commenced
applications for judicial review in the Federal Court.
Decision of the Federal Court
[11]
Mosley J.
reviewed the officer’s decision on the standard of reasonableness, which led
him to conclude that the officer had not failed to be attentive or sensitive to
the best interests of the children, that she had not ignored evidence or taken
irrelevant factors into consideration and that she had not made unreasonable
findings of fact. In his view, the officer’s reasons were adequate and
addressed the question of whether H&C considerations justified granting an
exemption from the requirements of the Regulations.
[12]
In Mosley
J.’s view, it could be taken for granted that the children would want to be
reunited with their parents. Thus, there is no merit in the allegation that the
officer had failed to assess the twins’ emotional response to their separation
from their parents and had thereby committed an error.
[13]
In the
Judge’s view, the principal issue before the officer was whether the girls were
suffering undue hardship because of their separation from their parents and
their having to live in India. The appellants having failed
to adduce sufficient evidence to either prove hardship or the existence of a
strong relationship between the girls and their parents, the Judge concluded
that the officer had not erred in concluding as she did.
[14]
The Judge
further held that the parents’ misrepresentations with respect to their
daughters was a proper consideration for the officer in determining the H&C
application. Mosley J. opined that “the parents’ misrepresentations engaged
public policy considerations involving the integrity of the immigration
system”. He found that paragraph 117(9)(d) of the Regulations “would be
rendered meaningless if all such [H&C] applications were given special
dispensation and approved because of family separation and hardship” (see para.
32 of Mosley J.’s Reasons).
[15]
Finally,
although the Judge agreed that it was unlikely that the parents would have had any
well-defined plans for their daughters other than school, the officer’s
conclusion that she would have expected a better effort on the part of the
parents to inform the children more fully with respect to Canada did not vitiate her conclusion
and was reasonable.
[16]
As a
result, Mosley J. dismissed the applications for judicial review and certified
the question set out at paragraph 2 of these Reasons.
The Issues
[17]
In
addition to the issue raised by the certified question, i.e. whether fairness
imposed a duty on the officer to obtain further information concerning the best
interests of the children if she believed that the evidence adduced was
insufficient, the appeal raises the following questions:
1.
Did Mosley
J. err in concluding that the officer’s decision was reasonable?
2.
Did Mosley
J. err in concluding that the officer had given adequate consideration to the
children’s best interests?
Analysis
A. Standard of Review:
[18]
It is
unnecessary to engage in a full standard of review analysis where the
appropriate standard of review is already settled by previous jurisprudence
(see: Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, 2008 SCC 9, at para. 62). The parties agree that the
standard of review to be applied to an H&C decision is reasonableness. This
standard is supported by both pre- and post-Dunsmuir cases (see: Baker
v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817; Thandal v. Canada (Minister of Citizenship and
Immigration), 2008 FC 489; Gill v. Canada (Minister of Citizenship and Immigration), 2008 FC 613, (2008), 73
Imm.L.R. (3d) 1).
[19]
Whether
Mosley J. chose and applied the proper standard of review is a question of law
and will be reviewed on a standard of correctness. As my colleague Evans J.A.
stated for this Court in Canada (Canada Revenue Agency) v.
Telfer, 2009
FCA 23, dated January 28, 2009, at para. 18:
[18]
Despite some earlier confusion, there is now ample authority for the
proposition that, on an appeal from a decision disposing of an application for
judicial review, the question for the appellate court to decide is simply
whether the court below identified the appropriate standard of review and
applied it correctly. The appellate court is not restricted to asking
whether the first-level court committed a palpable and overriding error in its
application of the appropriate standard.
[Emphasis
added]
[20]
There can
be no doubt that this Court cannot substitute its opinion for that of the
original decision-maker, even where the H&C application may have merit (see:
Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38,
[2004] 2 F.C.R. 635, at para. 12). Thus, our role is to determine whether the
Federal Court correctly applied the reasonableness standard of review –
essentially, to determine whether the officer’s decision was reasonably open to
her on the basis of the facts and the applicable law.
B. Legislative Framework:
[21]
As I have
already indicated, the father’s 2003 sponsorship application was precluded by
paragraph 117(9)(d) of the Regulations because the children had not been
declared and examined as accompanying members of their parents at the time they
had applied for immigration to Canada. That provision reads as follows:
|
117.
(9) A
foreign national shall not be considered a member of the family class by
virtue of their relationship to a sponsor if
[…]
(d) subject to
subsection (10), the sponsor previously made an application for permanent
residence and became a permanent resident and, at the time of that
application, the foreign national was a non-accompanying family member of the
sponsor and was not examined.
|
117. (9) Ne
sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes
suivantes :
[…]
d) sous
réserve du paragraphe (10), dans le cas où le répondant est devenu résident
permanent à la suite d’une demande à cet effet, l’étranger qui, à l’époque où
cette demande a été faite, était un membre de la famille du répondant
n’accompagnant pas ce dernier et n’a pas fait l’objet d’un contrôle.
|
[22]
However,
pursuant to subsection 25(1) of the Act, the Minister has discretion to
grant a foreign national an exemption from any requirement of the Act or
the Regulations on H&C grounds. In exercising this discretion, the
Minister is expressly directed to take into account the best interests of any
child affected by the decision or public policy considerations:
|
25. (1) The
Minister shall, upon request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
the Minister’s own initiative or 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 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 se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
de sa propre initiative ou sur demande d’un étranger se trouvant hors du
Canada, 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.
|
C. Did Mosley J. err in finding that the officer had
given adequate consideration to the children’s best interests and that her
decision was reasonable?
[23]
I begin with this
Court’s pronouncement in Legault v. Canada (Minister of Citizenship and
Immigration), [2002] 4 F.C. 358 (C.A.), leave to appeal to Supreme Court of
Canada denied on November 21, 2002 in file 29221, where my colleague Décary
J.A. opined as follows at paragraphs 11 and 12:
[11] In Suresh, the Supreme Court clearly indicates that Baker
did not depart from the traditional view that the weighing of relevant factors
is the responsibility of the Minister or his delegate. It is certain, with Baker,
that the interests of the children are one factor that an immigration officer
must examine with a great deal of attention. It is equally certain, with Suresh,
that it is up to the immigration officer to determine the appropriate weight to
be accorded to this factor in the circumstances of the case. It is not the role
of the courts to reexamine the weight given to the different factors by the
officers.
[12] In short, the immigration officer must be "alert, alive and
sensitive" (Baker, para. 75) to the interests of the children, but
once she has well identified and defined this factor, it is up to her to
determine what weight, in her view, it must be given in the circumstances. […] It
is not because the interests of the children favour the fact that a parent
residing illegally in Canada should remain in
Canada (which, as justly stated by
Justice Nadon, will generally be the case), 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 (see Langner v. Minister of Employment and
Immigration (1995), 184 N.R. 230 (F.C.A.), leave to appeal refused, SCC
24740, August 17, 1995).
[Emphasis added]
[24]
Thus, an applicant is
not entitled to an affirmative result on an H&C application simply because
the best interests of a child favour that result. It will more often than not be
in the best interests of the child to reside with his or her parents in Canada, but this is but one factor that must be weighed together
with all other relevant factors. It is not for the courts to reweigh the
factors considered by an H&C officer. On the other hand, an officer is
required to examine the best interests of the child “with care” and weigh them
against other factors. Mere mention that the best interests of the child has
been considered will not be sufficient (Legault, supra, at paragraphs 11
and 13).
[25]
The appellants make
three primary arguments on this issue: first, that the officer failed to
expressly consider that it was the parents and not the twins who made the
misrepresentations, that the parents were not subject to enforcement action and
that they were permitted to remain in Canada; second, that the officer erred in
refusing to accept the consistent oral statements of the twins and their aunt;
and third, that the officer limited her consideration of the best interests of
the children to hardship, without focusing on other relevant factors.
[26]
With respect to the
first argument, I am satisfied that it was not incumbent on the officer to
highlight the fact that the twins were innocent of any wrongdoing. The first
case cited by the appellants for this proposition, Momcilovic v. Canada (Minister of Citizenship and
Immigration), 2005 FC 79
at paragraph 53, does not suggest this in any way. The second, Mulholland v.
Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 99, (2001)
F.C.T. 597, at paragraphs 29-30, only stands for the proposition that it is
unreasonable for an immigration officer to effectively ignore the interests of
a child on the basis that it was the parents’ “choice” to have the child in the
first place.
[27]
In this type of case,
where children are “left behind” due to a parent’s misrepresentation on an
immigration application, it will usually be self-evident that the child was not
complicit in the misrepresentation. Yet, it is well established that such
misrepresentation is a relevant public policy consideration in an H&C
assessment (see, for example: Li v. Canada
(Minister of Citizenship and Immigration), 2006 FC 1292 at paragraph 33). Inevitably, the factors
favouring reunification of the family in Canada will not always outweigh the public
policy concerns arising from a misrepresentation. This is not tantamount to
“visiting the sins of the mother upon the children” as in Mulholland, supra,
where the officer failed to consider the children’s interests at all.
Similarly, in my view, an officer is not bound to mention the fact that the parents’
removal from Canada had not been sought as a result of their
misrepresentations. If the parents were being removed, they would obviously not
be in a position to sponsor a child in the first place. The fact that the
parents are entitled to remain in Canada is a fact that will be self-evident in
cases of children “left behind”.
[28]
The appellants’
second argument that the officer should have accepted the twins’ interview
statements as proof of their communication with their parents because of an
absence of contradictory evidence is, in my view, without merit. The appellants
had the burden of proving their claims. Having failed to adduce satisfactory evidence
in that regard, they cannot now argue that the officer erred in finding their
interview statements insufficient.
[29]
Further, contrary to
the situation which prevails in the context of refugee hearings, where it has
been held that an applicant’s sworn testimony before the Refugee Board is
presumed to be true, absent valid reasons to doubt its truthfulness – even if
uncorroborated by extrinsic evidence (see: Sadeghi Pari v. Canada (Minister
of Citizenship and Immigration) (2004), 37 Imm.L.R. (3d) 150, 2004 FC 282,
at paragraph 21, applying Maldonado v. Canada (Minister of Employment and
Immigration), [1980] 2 F.C. 302 (C.A.)) – a call-in interview, in the
context of an H&C application, is not an oral hearing where witnesses must
take an oath or must affirm that their testimony will be truthful. Clearly, in
the context of a call-in interview, assessment of credibility is neither the
prime nor a significant purpose of the interview. Rather, the purpose thereof is
to determine whether there exist sufficient H&C grounds to grant permanent
resident status or an exemption from the Act and its Regulations.
[30]
I now turn to the
appellants’ third argument that the officer limited her consideration of the
best interests of the children to hardship, without regard to the other
relevant factors. The fact that the officer focused her consideration of the
children’s best interests on the question of hardship does not necessarily lead
to the conclusion that she failed to consider their best interests. In Hawthorne v. Canada (M.C.I.), 2002 FCA 475, [2003] F.C. 555, a
majority of this Court (Décary J.A., with whom Rothstein J.A. (as he then was)
concurred), held at paragraph 5 that an officer did not assess the best
interests of children “in a vacuum” (para. 5 of the Reasons) and that an
officer was presumed to know that living in Canada will generally provide
children with many opportunities that are not available to them in other
countries and that residing with their parents is generally more desirable than
being separated from them.
[31]
For the majority in Hawthorne,
supra, an officer’s task in assessing the best interests of a child will
usually consist in assessing the degree of hardship that is likely to result
from the removal of its parents from Canada and then to balance that hardship
against other factors that might mitigate their removal. While Hawthorne,
supra, dealt with a situation where parent and child might be separated due
to the removal of the parent from Canada, it has also been applied, correctly
in my view, in child-sponsorship cases like the one now before us (see: Li,
supra; Yue v. Canada (Minister of Citizenship and Immigration), 2006 FC
717; and Sandhu v. Canada (Minister of Citizenship and Immigration),
2007 FC 156; (2008), 309 F.T.R. 243).
[32]
It is important in
this type of case to keep in mind the incisive remarks made by Décary J.A. in Hawthorne, supra, and more particularly, those found at paragraphs 4 to 8 of
his Reasons:
[4] The "best
interests of the child" are determined by considering the benefit to the
child of the parent's non-removal from Canada as well as the hardship the child would suffer
from either her parent's removal from Canada or her own voluntary departure should she wish
to accompany her parent abroad. Such benefits and hardship are two sides of the
same coin, the coin being the best interests of the child.
[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.
[7] The
administrative burden facing officers in humanitarian and compassionate
assessments - as is illustrated by section 8.5 of Chapter IP 5 of the
Immigration Manual reproduced at para. 30 of my colleague's reasons - is
demanding enough without adding to it formal requirements as to the words to be
used or the approach to be followed in their description and analysis of the
relevant facts and factors. When this Court in Legault stated at
paragraph 12 that the best interests of the child must be "well identified
and defined", it was not attempting to impose a magic formula to be used
by immigration officers in the exercise of their discretion.
[8] Third, I
reject the argument submitted by the intervener, the Canadian Foundation
for Children, Youth and the Law, that even if a reasonable balancing of
the various factors has been made by the officer, the reviewing Court must
go a step further and consider whether the damage to the child's interests is
disproportionate to the public benefit produced by the decision. To require
such a further step would be to reintroduce through the back door the principle
confirmed in Legault that the best interests of the child are an
important factor, but not a determinative one.
[Emphasis
added]
[33]
Many of the factors
which an officer is required to consider in determining an H&C application
can be found in the guidelines issued to immigration officers by the Minister,
to which Décary J.A. refers in paragraph 7 of his Reasons in Hawthorne,
supra, and which can be found at paragraph 30 of Evans J.A.’s concurring
Reasons in that case. These factors include hardship arising from the
geographical separation of family members. In examining this factor, the
officer should consider: the effective links with family members, i.e. in terms
of ongoing relationship as opposed to the simple biological fact of
relationship; has there been any previous period of separation and, if so, for
how long and why; the degree of psychological and emotional support in relation
to other family members; options, if any, for the family to be reunited in
another country; financial dependence, and; the particular circumstances of the
children.
[34]
It is clear that the
officer considered the girls’ relationship with their parents and that she did
not discount the interview statements made by them. Rather, she considered the
interview statements but found them to be insufficient evidence to justify an
exemption under subsection 25(1) of the Act.
[35]
It cannot be disputed
that the appellants had the burden of proving the claims made in their H&C
application. In Owusu, supra, at paragraph 5, Evans J.A., writing for
the Court, remarked as follows:
[5] An immigration
officer considering an H & C application must be "alert, alive and
sensitive" to, and must not "minimize", the best interests of
children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 75. However, this
duty only arises when it is sufficiently clear from the material submitted to
the decision-maker that an application relies on this factor, at least in part.
Moreover, an applicant has the burden of adducing proof of any claim on
which the H & C application relies. Hence, if an applicant provides no
evidence to support the claim, the officer may conclude that it is baseless.
[Emphasis
added]
[36]
The appellants rely
on Gill, supra, a recent child-sponsorship decision where Campbell J. of
the Federal Court refused to follow the majority’s approach in Hawthorne,
supra, on the basis that its reasoning “does not apply to overseas applications
because such applications do not involve the removal of a person from Canada” (paragraph 12 of his Reasons). Campbell J. then went on to hold, relying on the Supreme Court of
Canada’s decision in Young v. Young, [1993] 4 S.C.R. 3, a family law case
concerning custody and access to children, that an analysis of the child’s best
interests required a contextual approach based on family law principles. This
led him to opine that such an analysis “should be highly contextual and focused
on the future” (see para. 15 of his Reasons) and that, as a result, officers
should conduct their analysis by: identifying the factors impacting on a
child’s best interests; making a well reasoned choice between available
options; and weighing the child’s best interests against other relevant
factors.
[37]
In my view, Campbell
J.’s approach is undeniably wrong and should not be followed. The consideration
of a child’s best interests in an immigration context does not readily lend
itself to a family law analysis where the true issues are those of custody and
access to children. Contrary to family law cases where “the best interests of
the children” are, it goes without saying, the determining factor, it is not so
in immigration cases, where the issue is, as in the case before us, whether a
child should be exempted from the requirements of the Act and its Regulations
and allowed to become a permanent resident. As Décary J.A. made clear in his
Reasons for the majority in Hawthorne, supra, the principle which this Court enunciated in Legault
supra, is that although the best interests of a child are an important
factor, they are not determinative of the issue before the officer.
[38]
Thus, although there
cannot be much doubt in the present instance that the best interests of the
minor children, Subleen and Lovleen, would require that they be reunited with
their parents, that is not the question which the officer had to decide. She
had to determine whether the girls’ best interests, when weighed against the
other relevant factors, justified an exemption on H&C grounds so as to
allow them to enter Canada..
[39]
What Campbell J. was attempting to do in Gill, supra, is, in my
respectful view, what Décary J.A. alluded to in his Reasons in Hawthorne,
supra, when he stated at paragraph 8 that the intervenor, the Canadian
Foundation for Children, Youth and the Law, was attempting to circumvent the
principle enunciated by this Court in Legault, supra, that “the best
interests of the child are an important factor, but not a determinant one”.
[40]
I therefore conclude
that Mosley J. made no error in holding that the officer had given adequate
consideration to the children’s best interests and that her decision was
reasonable.
[41]
I now turn to the
issue raised by the certified question.
D. Did fairness impose a duty on the officer to
obtain further information concerning the best interests of Subleen and Lovleen
if she believed that the evidence was insufficient?
[42]
The Judge dealt
briefly with this issue when he said at paragraph 28 of his Reasons: “The
applicants failed to provide sufficient evidence of that hardship [i.e.,
resulting from their geographical separation] and cannot now complain that the
officer did not delve deeply enough to fill the void left by that failure”.
[43]
Thus, the Judge was
of the view that it was not the officer’s duty to make further inquiries so as
to discover evidence that might be favourable to the case put forward by the
appellants. For the reasons that follow, I see no error in the Judge’s
determination.
[44]
The appellants argue
that in the circumstances of this case, the officer was obliged to make an
effort to obtain further information regarding the best interests of the
children if she was of the opinion that what was before her was insufficient.
The respondent argues that an applicant bears the burden of making his or her case
on an H&C application and that, in the circumstances of this case, the
officer was not under any duty to assist the appellants in discharging that
onus.
[45]
It is trite law that
the content of procedural fairness is variable and contextual (see: Baker,
supra, para. 21; and Khan v. Canada (MCI), 2002 FCA 413). The
ultimate question in each case is whether the person affected by a decision
“had a meaningful opportunity to present their case fully and fairly” (see: Baker,
supra, para. 30). In the context of H&C applications, it has been
consistently held that the onus of establishing that an H&C exemption is
warranted lies with an applicant; an officer is under no duty to highlight
weaknesses in an application and to request further submissions (see, for
example: Thandal v. Canada (MCI), 2008 FC 489 at para. 9). In Owusu,
supra, this Court held that an H&C officer was not under a positive
obligation to make inquiries concerning the best interests of children in
circumstances where the issue was raised only in an “oblique, cursory and
obscure way” (at para. 9). The H&C submissions in that case consisted of a
7-page letter in which the only reference to the best interests of the children
was contained in the sentence: “Should he be forced to return to Canada, [Mr. Owusu] will not have any way to support his family
financially and he will have to live every day of his life in constant fear”
(at para. 6).
[46]
In support of their
view that there was a duty upon the officer to make further inquiries, the
appellants rely on two Federal Court decisions, namely, Del Cid v. Canada
(MCI), 2006 FC 326, and Bassan v. Canada
(MCI), [2001] F.C.J. No.
1084 (Q.L.). In Del Cid, supra, O’Keefe J. expressed the view that the
officer had an obligation to make further inquiries regarding the best
interests of the children. However, he recognized this duty specifically in
respect of Canadian born children (at paras. 30 and 33). His finding was also
contingent on his view that the evidence initially placed before the officer
was sufficient to merit further inquiries (at para. 43).
[47]
It is important to
note that in Del Cid, supra, there was evidence before the officer that
the applicant’s very young children were negatively affected by the separation:
they were unable to eat, cried for extensive periods of time, were integrated
into the Canadian system and spoke English as their language, and would be
losing the love and support of their custodial parent. Failure to balance these
factors made the officer’s decision unreasonable.
[48]
In Bassan, supra,
McKeown J. expressed a view similar to that expressed by O’Keefe J. in Del
Cid, supra, when he said at paragraph 6:
[6] An H and C
officer must make further inquiries when a Canadian born child is involved in
order to show that he or she has been attentive and sensitive to the importance
of the rights of the child, the child’s best interests and the hardship that
may be caused to the child by a negative decision. As stated by Madam Justice
L’Heureux-Dubé, such further inquiry “is essential for an H and C decision to
be made in a reasonable manner”.
[49]
For the reasons that
follow, I need not express a view as to the correctness of the decisions in Del
Cid, supra, and Bassan, supra. However, to the extent that these decisions
reached a conclusion inconsistent with these reasons, they should not be
followed.
[50]
In the present matter,
the minor appellants are not Canadian born, they speak Hindi as their native
language, are currently cared for by their aunt, are integrated into the school
system in India and did not disclose any information suggesting they suffered
undue hardship beyond that normally caused by family separation. As one
example, when asked what the parents and children spoke of on the telephone,
one of the twins answered (see Appeal Book, p. 33):
[Child appellant]: They
ask us how we are, whether we are happy.
[Interviewer]: What do
you say?
[Child appellant]: We
say we are fine.
[51]
The question for
determination is whether, in these circumstances, there was a duty upon the
officer to pursue further inquiries so as to uncover the existence of additional
elements to support a case of hardship resulting from the children’s separation
from their parents.
[52]
When the officer
interviewed the twins and their aunt, she had before her the letter dated March
6, 2006, sent on their behalf by Peter Carpenter, their immigration consultant.
In his letter, Mr. Carpenter made a number of points which may be summarized as
follows:
1.
The fact that the
children’s living conditions in India were “far from ideal” in that they were
living with their aunt, whose husband, a banker, worked and lived in Mumbai. As
a result, he was away from New
Delhi and thus, the
responsibility of raising the children fell upon his wife, the children’s paternal
aunt.
2.
The fact that these
living arrangements were meant to be temporary and not permanent.
3.
The fact that the
children were innocent victims of their parents’ failing to declare them on
their application for permanent residence.
4.
To deprive the twins
of the possibility of being raised by their natural parents [in Canada] “would be harsh and inhuman”. It could not be in their
best interests to be kept apart from their parents.
5.
The officer
considering the case should give much weight to the emotional impact on the
family resulting from the geographical separation of the children from their
parents.
6.
The fact that the
parents in Canada could provide financially for their
children and offer them “a sound education and bright future”.
7.
The fact that the
children’s mother can no longer bear children; thus, a permanent separation
from her daughters would be devastating to both her and her husband.
[53]
As a result, the officer
was well aware of all the H&C grounds on which the application was based.
[54]
The call-in letter
sent to the girls at the end of August 2006 requested that they bring
“documentary evidence that establishes their relationship to their sponsor”. It
also required them to bring “all evidence of communication with your sponsor,
e.g. cards/letters, telephone bills”.
[55]
Thus, with the
information contained in Mr. Carpenter’s letter in mind, as well as the information
revealed by the documents which the twins brought to the interview, the officer
conducted her interview of the twins and their aunt on October 11, 2006. Unfortunately
for the twins, the officer concluded that the information provided in support
of their H&C application was not sufficient to overcome their ineligibility
under paragraph 117(9)(b) of the Regulations. I have already indicated
at paragraph 9 of these Reasons the grounds which led the officer to refuse the
application.
[56]
There can be no doubt
that the officer could have asked more questions in order to obtain additional information
with regard to the twins’ situation in India, but, as well shall see, she was
under no duty to do so in this case. It may be that the pointed and narrow
questions disclosed by the CAIPS notes probably did not constitute the most
effective manner of obtaining information from these applicants, particularly
in light of the lack of documentary evidence provided by them. However, the
vacuum, if any, was created by the appellants’ failure to assume their burden
of proof. In these circumstances, the officer’s poor interviewing techniques,
if that be the case, are, in my view, insufficient to justify intervention on
our part.
[57]
The appellants have
failed to specify what areas of investigation or inquiry the officer should
have pursued, other than in the following respects. At paragraph 3 of their
Memorandum, they state that although the officer asked the girls “what their
lives were like with their aunt and how they were doing in school”, she did not
ask them “how they coped without their parents, if they missed them or if they
had any particular problems because of separation from them”. They then affirm
at paragraph 25 of their Memorandum that “it is implicit in the officer’s
reason for rejecting the application that had the officer been satisfied that
the twins were being supported by their parents and had ongoing contact with
them – which were asserted but not supported by corroborative evidence – the
results might well have been favourable to the girls”.
[58]
With respect to the first
point, I fail to see the necessity of asking questions with regard to whether
the children missed their parents or whether the separation caused them any
particular problem. In my judgment, there would have been no purpose in asking
these questions, considering that Mr. Carpenter, in his letter of March 6,
2006, had already indicated that the separation was having a considerable
emotional impact on the family and that it “would be harsh and inhuman” to
prevent the parents from raising their children in Canada. Further, one has to
assume that the officer was capable of realizing that it must have been difficult
for children of that age to be permanently separated from their parents.
[59]
With respect to the
second point, it is difficult, if not impossible, to say whether the officer’s
decision would have been different had she received additional evidence
concerning the nature of the relationship between the parents and their
children and, more particularly, with regard to the frequency of their contacts,
i.e. daily, weekly, monthly, etc. However, the appellants’ assertion on this
point does not lead to the conclusion that the officer ought to have pursued
the matter further.
[60]
Given that the
appellants were represented by an immigration consultant, that the girls were
clearly asked to bring to the interview documents pertaining to “communication
with your sponsor, e.g. cards/letters, telephone bills”, and considering that
their aunt had accompanied them to the interview and was also interviewed and
thus had the opportunity of providing an explanation with regard to the children’s
plight, I cannot conclude that the officer had a duty to make further
inquiries. I have not been persuaded that, in the circumstances of this case, fairness
required the officer to provide them with another opportunity to produce
documents and/or information in support of their application.
[61]
The burden was on the
appellants to demonstrate to the officer that there were sufficient H&C
grounds to grant them an exemption from the requirements of the Act and
its Regulations. They were unable to meet that burden. Hence, I conclude
that the officer did not have a duty to make further inquiries.
[62]
Because of the highly
factual and variable circumstances of each H&C application, I cannot see
how the certified question can be answered in the affirmative. However, I do
not rule out the possibility that there may be occasions where fairness may or
will require an officer to obtain further and better information. Whether
fairness so requires will therefore depend on the facts of each case.
Disposition
[63]
I would therefore dismiss
the appeals and decline to answer the certified question.
“M. Nadon”
“I agree.
Gilles
Létourneau J.A.”
TRUDEL J.A. (Concurring)
[64]
I am in
substantial agreement with the reasons of my learned colleague Nadon J.A.; in
this case, I am satisfied that it was not unreasonable for the officer to
conclude that Loveleen and Subleen Kisana had not suffered undue hardship as a
result of their separation from their parents. I only wish to address some
arguments related to the best interests of the child that were raised by the
appellants.
[65]
As Nadon
J.A. acknowledges at paragraph 55 of his reasons, it is clear that the officer
could have conducted a more effective interview. I agree with him that the poor
interviewing techniques in this case do not warrant this court’s intervention,
considering the record as a whole. However, I would not rule out the
possibility that in another case, the conditions of a call-in interview may
constitute a failure to be “alert, alive and sensitive” to the best interests
of the child, as required by the Supreme Court’s decision in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph
75.
[66]
In my
view, being “alert, alive and sensitive” to the best interests of the child
does not simply require that an immigration officer take the child’s interests
into account when he or she performs the final weighing of the evidence. It
also requires that the officer be “alert, alive and sensitive” to the child’s
needs and interests when he or she is being interviewed. Canadian law has long
recognized the special needs of children and acknowledged that sensitivity is
required when they are interviewed or examined in the context of family and
criminal proceedings (see for example L.E.G. v. A.G., 2002 BCSC 1455 at
paragraphs 25-26; R. v. L.T.H., 2008 SCC 49 at paragraph 3; R. v. J.
(J.T.), [1990] 2 S.C.R. 755 at 766). While I would not suggest that the
same protections given to a child being interrogated by a police officer must
be provided in an immigration office, it is clear that a child should not be
treated the same as an adult in a call-in interview that will seriously affect
his or her interests.
[67]
Nor is
this to say that an immigration officer is expected to be a child psychologist
or a social worker. However, in my view the officer must keep in mind the
linguistic, cognitive and emotional differences between children and adults
when conducting an interview. In many ways, this is a matter of common sense.
It can be presumed that children will be nervous at a call-in interview and may
not be very forthcoming. A child confronted with pointed, closed-ended
questions will likely give simple “yes” or “no” responses and not make efforts
to volunteer any additional information. He or she may be reluctant to ask for
clarification if a question is not understood. Younger children may not be
capable of comprehending the nature of the interview at all.
[68]
An officer
who is “alert, alive and sensitive” to the best interests of the child will
take these vulnerabilities into account. I would not endeavour to dictate an
exhaustive list of procedures that ought to be followed, but generally officers
should endeavour to ask age-appropriate questions, satisfy themselves that the
questions are understood and ask open-ended questions or follow-up questions
where appropriate. Particularly in cases involving very young children, it may
be appropriate for an adult to accompany the child in the interview room. In
short, while an officer is under no obligation to attempt to elicit all
evidence that may help a child’s case, being “alert, alive and sensitive” to
the child’s best interests requires that an interview be conducted in a manner
that will allow the child to express him or herself effectively (see Hawthorne
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2
F.C. 555 at paragraph 33, per Evans J.A., concurring in the result).
[69]
The
significance of the conduct of a call-in interview is especially apparent in a
case like this, where it appears on the record that little documentary evidence
was submitted in support of the humanitarian and compassionate (H&C)
application. On this note, the appellants argued that they were not clearly
informed about the type of evidence that they were expected to bring to the
interview. The call-in letter they received, dated August 22, 2006, stated that
they were required to bring birth certificates and documents establishing their
relationship to their sponsor (e.g. school documents listing parents’ names).
According to the appellants, that letter could reasonably be read as requiring
that other documentary evidence about the nature of the relationship between
the applicant and sponsor (such as cards, letters, photos and telephone bills)
be provided only if the applicant was being sponsored by a spouse or fiancé or
an adoptive parent, none of which was applicable to Subleen and
Loveleen. I think it is fair to say that the letter, which appears at pages
128-129 of the appeal book, contains some ambiguity.
[70]
However,
like my colleague, I am satisfied that there has been no breach of procedural
fairness in this case, because the call-in letter stated that any further
documentation could have been submitted after the interview. An email to the
appellants’ consultant also stated that Subleen and Loveleen should bring
“proof of communication with sponsor” to the interview (at page 47 of the
appeal book).
[71]
This email
was sent on October 9, 2006, two days before the interview, and I am willing to
accept that it could have been difficult for the consultant to get in touch
with his clients in India and for them to prepare the
necessary documents on such short notice. However, the record demonstrates that
the appellants were asked to submit evidence on the closeness of their
relationship; certainly, the officer’s questions at the interview made it
apparent that they should do so. The appellants or their consultant could have
submitted documentary evidence following the interview but chose not to do so.
I note this confusion only to underscore the potential significance of a
call-in interview, and the need for sensitivity when dealing with children
where the answers given at an interview will be given significant weight in the
disposition of their application.
[72]
Finally, I
wish to comment very briefly on the relevance of family law in the immigration
context. I agree with my colleague Nadon J.A. that it is wholly inappropriate
to import the “best interests of the child” framework that is used in custody
and access cases into immigration applications. As he points out, the best
interests of the child are the determinative factor in a family law case; not
so in the immigration context, where it is but one factor to be weighed along
with others. This is not to say, however, that considerations and expertise
regarding the moral, intellectual, emotional and physical needs of children
ought not to be regarded and that, in this respect, the expertise of family
courts, where appropriate and relevant, cannot be looked at for valuable
information.
[73]
Nonetheless,
I agree with my colleague that there is not a sufficient basis for the court to
intervene in this case, given the lack of hardship disclosed by the record.
Like him, I would decline to answer the certified question and I would dismiss
the appeal.
Johanne Trudel J.A.
Email this Content