Date: 20010703
Docket: IMM-3751-00
Neutral citation: 2001 FCT 742
BETWEEN:
SUKDEV BASSAN, PARAMJIT K. BASSAN,
SUNNY BASSAN and BUNNY BASSAN
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of the decision of a visa officer, dated June 21, 2000 pursuant to section 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (hereinafter the "Immigration Act"or the "Act"), not to exempt the applicants on humanitarian and compassionate grounds from the requirement of section 9(1) of the Act.
[2] The issues are:
1. Did the visa officer err in concluding that the applicants had not established themselves in Canada "beyond a minimal level"?
2. Was the visa officer biased?
3. Did the immigration officer import an extraneous and prejudicial consideration, namely, the parents' decision to have another child knowing that their status in Canada was precarious, and thereby fail to determine the best interests of the Canadian born child?
Analysis
[3] The visa officer found that the applicant and family had not established themselves beyond a minimal level in Canada. While I might have found in the circumstances that the applicants had established themselves in Canada, the visa officer did not err in a manner requiring the matter to be returned to a different visa officer. The visa officer noted the male applicant's work history, his ownership of a business and the trade courses he took in Canada, and the fact that the wife had a certificate in English as a second language. She further noted that the two older dependent sons were going to elementary school, but found that they were young enough to assimilate to new environments. She also considered that the family attended the Sikh Temple. She also considered many other factors that favoured the applicants, but found that the degree of establishment did not reach the level of "unusual, undeserved or disproportionate hardship" if the applicants were required to bring their application for landing from outside of Canada. This finding is not clearly wrong.
[4] The visa officer's finding, which the applicant submits shows a reasonable apprehension of bias, is as follows:
THE APPLICANT HAD HIS CANADIAN BORN DAUGHTER AT A TIME WHEN HIS IMMIGRATION STATUS WAS UNCERTAIN. THIS IS A SITUATION OF HIS OWN MAKING.
This statement relates only to establishment. It may be relevant to the extent that this should not be considered as assisting the applicant in demonstrating establishment. However, my concern in the case before me is that this statement is located in the visa officer's notes right above the following statement dealing with the best interests of the Canadian citizen child. The visa officer states:
THE CANADIAN BORN DAUGHTER ALONG WITH THE ACCOMPANYING DEPENDANTS ARE YOUNG ENOUGH TO ASSIMILATE TO NEW ENVIRONMENTS AND WOULD NOT CAUSE ADVERSE, DISPROPORTIONATE, OR UNDUE HARDSHIP IF RETURNED TO INDIA.
I was unable to find any other comment with respect to the Canadian born daughter in the record submitted by the visa officer except for one reference under the heading "Counsel comments" with respect to the child that it "is not best interest for her to go to Punjab". I do not accept that counsel's statement makes this a fact, but the lack of evidence with respect to the child indicates to me that the interests of the Canadian born child is minimized. As Madam Justice L'Heureux-Dubé stated in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 at paragraphs 74 and 75:
... Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner.
... 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 this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.
The visa officer did not ask whether there was any possibility of the child remaining in Canada if the parents left, although with two parents it would be rare that it would be in the best interests of the child to remain in Canada without her parents and siblings.
[5] As was stated in Baker, supra, the presence of the Canadian born daughter and her need for parents are to be taken as factors to be considered in the exercise of the Minister's discretion. This is not to say that in every case the Minister's discretion will be exercised in favour of keeping the Canadian born child in Canada. However in this case, in the context of the officer's notes, I am particularly concerned that she seems to be visiting the sins of the parents upon their Canadian born child. The duty to be attentive and alive to the interests of the child is not satisfied by identifying reasons for not giving weight to the child's interests. To suggest that the child's interests could be equally served by accompanying her parents to India, since she remains a Canadian citizen no matter where she lives is to ignore subsection 4(2) of the Immigration Act which states:
| Subject to any other Act of Parliament, a Canadian citizen and a permanent resident have a right to remain in Canada except where, in the case of a permanent resident, it is established that that person is a person described in subsection 27(1). |
Sous réserve des autres lois fédérales, les citoyens canadiens et, sauf s'il a été établi qu'ils appartiennent à l'une des catégories visées au paragraphe 27(1), les résidents permanents ont le droit de demeurer au Canada. |
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[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".
[7] In my view, the visa officer's failure to look into questions relating to the best interests of the child does not meet the requirements of the decision in Baker, supra. The approach taken by the visa officer minimizes the interests of the Canadian born child and it is in my view unreasonable.
[8] The application for judicial review is allowed. The decision of June 21, 2000 is set aside. The matter is returned to the respondent for reconsideration and redetermination by a different visa officer.
[9] The following two questions are certified:
1. Is an immigration officer who is deciding a humanitarian and compassionate application entitled to consider the fact that the applicant knew about his uncertain immigration status when he engendered his Canadian-born child, insofar as it relates to the applicant's hardship?
2. In light of the Supreme Court of Canada's decision in Baker v. Canada (MCI), [1999] 2 S.C.R. 817, what does it mean to be alert, alive and sensitive to the child's interests, and does this requirement shift the burden and impose a duty on the immigration officer to inquire about the child's interests, beyond what is submitted by the applicant?
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
July 3, 2001