Date: 20000825
Docket: IMM-277-00
BETWEEN:
MOHAMMAD QURESHI
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS, J.A.
| A. INTRODUCTION |
[1] Mohammad Qureshi is a citizen of Pakistan and his wife, Narges Zarafatkar, is a citizen of Iran. They arrived in Canada in March, 1998. Immediately before coming to Canada with their small child they had lived in Iran and, before that, in Pakistan, where Mr. Qureshi had owned and managed a successful shoe factory.
[2] On their arrival in Canada, they made refugee claims against both Iran and Pakistan, but these were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") in a decision rendered in April, 1999, in part, at least, because their evidence was not found to be credible. Their subsequent applications to be members of the Post-Determination Refugee Claimants in Canada class were rejected in October, 1999, when the officer responsible for their file concluded that they faced no reasonable possibility of risk in Iran or Pakistan.
[3] Meanwhile, they had applied on humanitarian and compassionate grounds ("H. & C.") under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 for an exemption from the general requirement that applications for permanent residence visas must be made from outside Canada. One week before they were interviewed by the immigration officer handling their H. & C. claim, Ms. Zarafatkar gave birth in Canada to a second son. In a decision dated December 29, 1999 their application was refused.
B. THE OFFICER'S DECISION
[4] The officer explained her decision not to exercise the broad statutory discretion in favour of the applicants on the following grounds:
| _. (i) they had entered Canada illegally; |
| (ii) they had been found both by the Board and a Post-Claim Determination Officer ("PCDO") not be at risk in Iran or Pakistan; |
| (iii) while Mr. Qureshi had shown commendable enterprise in starting up a business in the short time that the family had been in Canada, it now employed only one Canadian citizen and economic self-sufficiency is not in itself sufficient to justify the positive exercise of discretion; |
| (iv) Mr. Qureshi had been in receipt of social assistance for a few months after the family's arrival in Canada, even though the sale of his business had realized $100,000 US, and he had also applied for extended benefits under the interim Federal Health Care Programme, despite having a significant bank balance; |
| (v) the family are all in good health and are able to travel to Iran or Pakistan, where they can apply for immigrant visas in the normal manner. |
[5] Finally, because of its importance, I reproduce verbatim the following paragraph from the officer's decision:
| I have considered the welfare of the newborn Canadian child. I note however, that the decision to have a child in Canada is one decision Mr. Qureshi and Ms. Zarafatkar took knowing full well that they are in Canada without status and that they may face the requirement of possibly having to leave Canada. The Canadian Citizenship of the child is a status that will always remain no matter where the family resides. As for the eldest son, Arman, he is 5 years old and should have no difficulty adjusting to life back in Pakistan or Iran. |
C. ISSUES AND ANALYSIS
[6] The applicants have applied for judicial review of the refusal of their H. & C. application on the ground of unreasonableness. In oral argument, counsel made three submissions in support of his contention
(a) failure to consider the necessity to sell the business
[7] First, counsel argued, the officer failed to have regard to the fact that, if required to apply for a visa from abroad, the applicants would have to sell the business that they had established in Canada. And, if visas were issued to them, on their return they would have to start over again.
[8] In my opinion, this is not a factor of such critical importance to the exercise of discretion that it was unreasonable in the administrative law sense for the officer to have failed to mention it in her reasons. It was not an issue that was explicitly raised by Mr. Qureshi with her, either at the interview, or in the material that he had submitted in support of the H. & C. application.
[9] I take counsel's point that the applicants' need to wind up their business if they had to leave Canada to apply for visas from abroad, and the hardship that this would cause to them, were implicit in the facts that they had put before the officer. Nonetheless, in view of the following considerations, I remain unpersuaded that the failure to advert in her reasons to this aspect of the case constituted reviewable error on the part of the officer: the breadth of the statutory discretion and the residual role that it plays in the statutory scheme; the responsibility borne by applicants under subsection 114(2) to present their case fully; and the fact that, in establishing a business when they had no immigration status, the applicants took a calculated risk that they would be permitted to remain in Canada.
(b) errors with respect to receipt of public assistance
[10] Second, counsel submitted that the references to the applicants' resorting to public assistance programmes when they had ample assets of their own were unduly negative and, in any event, were factually inaccurate. Thus, as for the applicants' receipt of social assistance shortly after they arrived in Canada, despite the sale of the business in Pakistan for $100,000 US, counsel submitted that this money was not immediately available to them and that, like many others, they needed some initial financial assistance while they awaited the result of their refugee claims. Mr. Qureshi also explained that he had applied for an extension of benefits under the Interim Federal Health Programme in order to enable their elder son to attend school.
[11] As for the health coverage issue, the officer stated in her affidavit that she had no previous knowledge of the explanation now offered by Mr. Qureshi. Since Mr. Qureshi does not contradict her, the officer's observation on this issue in her reasons for decision is unimpeachable.
[12] The receipt of social assistance is a rather different matter. The officer's affidavit does not address the statement in Mr. Qureshi's affidavit that he told her at the interview that, after he had paid to the agent who had arranged their journey to Canada (including the provision of false passports), the balance of the proceeds of the sale of the business was not available to him until the family had been in Canada for several months. In the absence of evidence to the contrary, I accept Mr. Qureshi's account of what was said at the interview on this issue and the truth of his explanation to the officer.
[13] However, on balance, it is my opinion that the officer's treatment of this issue is not in itself a ground for setting aside her decision, although, as will become clear later, it is not totally irrelevant either.
[14] First, the officer did not exactly say that the family had applied for and was in receipt of social assistance when they had available to them the proceeds of the sale of the business. She simply noted how much they had sold the business for, and added that the family had "nonetheless" applied for social assistance. The clear innuendo of this statement is that it was, in some unspecified way, improper for them to have done so, and may conjure up the stigmatising stereotype of unsuccessful refugee claimants as "welfare cheats".
[15] Second, in the context of the decision as a whole, I cannot say that this one aspect of the reasons was of sufficient importance to justify setting the decision aside. In other respects, the claim was light on positive merit and had several negative aspects, including the application for extended health coverage when, counsel conceded, the family was in funds.
(c) best interests of the children
[16] Counsel's third submission was that the officer had failed adequately to consider the best interests of the children, and especially those of the new-born Canadian citizen, Armin. He argued that the passage from the decision that I have quoted at paragraph [6]_of these reasons indicates that the officer had failed to comply with the stricture of L'Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 864, paragraph [75], when she said that:
| for the exercise of discretion to fall within the standard of reasonableness, the decision-maker [scil. under subsection 114(2)] should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is no 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. |
[17] Counsel for the Minister responded that, since the Canadian born child was only a week old at the time of the officer's decision, departure with his parents to Iran or Pakistan would not tear him from an established and familiar life in Canada. Therefore, going with his parents to Iran or Pakistan, either temporarily or, if their visa applications were unsuccessful, more permanently, would not be an undue hardship for him. As for Arman, the five year old, the officer concluded that he would have no difficulty in adjusting to life with his parents in Iran or Pakistan.
[18] I make two preliminary observations before considering in detail the allegation that the officer's reasons indicated that she had not given adequate consideration to the best interests of the children. First, whether it can be inferred from the reasons given that a decision-maker failed to give sufficient weight to the best interests of the children must be determined in part by context: including, not only the statutory and administrative settings in which the decision was made, but also the facts of the particular case.
[19] For instance, the effect of leaving Canada to accompany parents to a strange country, or of remaining here without one or both of their parents, is likely to be much more damaging for children who have spent their formative years here than for a new born infant. Hence, the officer in this case was not obliged to consider with the same scrutiny the impact on Armin and Arman of refusing the family's H. & C. application that would be required in a case such as Baker, supra, where the children were much older and where there was evidence of the kinds of privation that they were likely to face in Jamaica.
[20] However, I also note that, in the instant case, the officer had before her material of a general nature describing in less than glowing terms the human rights situations in Pakistan and Iran. Nonetheless, in the absence of new evidence, the officer was entitled to accept the findings of the Board and of the PCDO that, if required to return, the applicants or their children would not be seriously at risk of persecution or other threats to life or limb.
[21] Second, the officer's explanation of the consideration that she had given to the best interests of the Armin, the new born child, was notably terse, especially given the importance of this factor in the decision-making process:
| I have considered the welfare of the newborn Canadian child. .... The Canadian Citizenship of the child is a status that will remain no matter where the family resides. |
[22] To turn to the particulars of the officer's decision, I cannot infer from these two sentences that the officer was "alert, alive and sensitive to" Armin's best interests, even taking into account his very recent birth. At the very least, it would be difficult not to think that he might well be adversely affected by the stress and anxiety that his parents were bound to experience if they had to go to Iran or Pakistan to await the result of their visa applications.
[23] In addition, although the applicants had not put before the officer the kind of individualised information about the children that was produced in Baker, supra, the country condition reports that she did have surely required her to consider this "important factor" with more care than she seems from the reasons to have done.
[24] However, this does not mean that the officer was obligated to undertake an in-depth comparative assessment of Armin's life prospects in Canada and Iran or Pakistan, on the assumption that the applicants would be refused visas. Given the uncertainties of the future, and the information available to her about the family, this would be both unduly burdensome and of very little value.
[25] Finally, I am influenced by the second sentence from this section of the officer's reasons, which I omitted from paragraph [20] above. It is as follows:
| I note however, that the decision to have a child in Canada is one decision Mr. Qureshi and Ms. Zarafatkar took knowing full well that they are in Canada without status and that they may face the requirement of possibly having to leave Canada. |
[26] Whether or not the applicants deliberately decided to have another child, knowing that they had no immigration status in Canada and, possibly, hoping thereby to improve their prospects of being allowed to remain, has nothing whatsoever to do with the due consideration of the best interests of the child that the officer was obliged to give. The parents' deliberate intention to have a second child (about which there was, in any event, no evidence before the officer), knowing their precarious immigration status, is a legally irrelevant factor that further supports my conclusion that, in the scant consideration that the officer appears to have given to the best interests of Armin, she exercised her discretion unreasonably.
[27] The officer's observation on this point is reminiscent of the apparently negative inferences at which she hinted when, despite the uncontradicted explanation provided to her by Mr. Qureshi, she said that, having sold a business in Pakistan for $100,000 US, the applicants "nonetheless" had claimed social assistance on their arrival in Canada.
[28] Together, these two statements about the applicants'conduct suggest that the officer approached the exercise of her discretion in a manner that was less than fair-minded, which may have contributed to the error that she committed in failing to give adequate consideration or sufficient weight to the best interests of Armin.
[29] In view of the above conclusion, I do not have to decide whether it can be inferred from the reasons for decision that the officer adequately considered the best interests of the older child, Arman, who is not a Canadian citizen. However, in my opinion, a decision-maker exercising the discretion conferred by subsection 114(2) cannot ignore the best interests of children in Canada, simply because they are not Canadian citizens.
| D. CONCLUSIONS |
[30] For these reasons, the application for judicial review is allowed, the officer's decision set aside and the matter remitted to a different officer to be decided in accordance with these reasons.
[31] Needless to say, when the matter is considered afresh by another officer, nothing in these reasons is intended to compel the conclusion that the best interests of the children override all other aspects of the applicants' H. & C. application.
[32] Counsel did not request that a question be certified under subsection 83(1) and, in my view, no certifiable question arises.
(Sgd.) "John M. Evans"
J.A.
August 25, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET: IMM-277-00 |
| STYLE OF CAUSE: Mohammad Qureshi |
v.
MCI
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: August 24, 2000 |
| REASONS FOR ORDER OF Evans, J.A. |
| DATED: August 25, 2000 |
APPEARANCES:
| Mr. Lee Rankin For the Applicant |
| Mr. Mark Sheardown For the Respondent |
SOLICITORS OF RECORD:
Rankin & Associates
Barristers & Solicitors
| Burnaby, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |