Date: 20020308
Neutral citation: 2002 FCT 268
BETWEEN:
VERONICA SWARTZ AND RONVILLE SWARTZ
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of an immigration officer, dated October 18, 2000, refusing the applicants' application on humanitarian and compassionate ("h & c") grounds for permanent residence from within Canada. That application was made pursuant to s-s. 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended ("the Act"), and
s. 2.1 of the Immigration Regulations, 1978 ("the Regulations").
Background
[2] The applicants, a mother and her son, Ronville, arrived in Canada from South Africa on December 19, 1995, to join her husband and his father, Neville Swartz ("Mr. Swartz"), who had earlier arrived in Canada to pursue graduate studies at the University of British Columbia, in Vancouver. The applicants then lived for a time with Mr. Swartz in a common family home.
At the time the applicants arrived in Canada, Ronville was 14 years old. When their h & c application was considered and refused in 2000 he was 19 years of age.
[3] On February 23, 1996, Ms. Swartz obtained an employment authorization from Immigration Canada, valid until October 31, 1996, an authorization subsequently extended until May 1, 2001. Ronville was issued a student authorization for the same time period.
[4] Since May 1997, Ms. Swartz has been accessing the services and support of Battered Women's Support Services, in Vancouver. In her affidavit, Ms. Swartz states:
My husband was emotionally and physically abusive towards both my son and me. He threatened to kill me on several occasions. He has told our son that he would blow my brains out and he (sic) kill himself.
[5] In January 1998, the applicants moved out of the family home. Since then, they have lived separate and apart from Mr. Swartz. In February 1999, Mr. Swartz and Ms. Swartz concluded a separation agreement, giving custody of Ronville to Ms. Swartz. The agreement did not provide for payment by Mr. Swartz of support of Ms. Swartz or Ronville, and he provided no support for them.
[6] Subsequently, Mr. Swartz applied for, and was granted, permanent residence in Canada. He did not include the applicants in his application. Counsel for the applicants sought to have him complete an application to sponsor admission for permanent residence of his son Ronville. An application for this was submitted to immigration officers. It was returned to Mr. Swartz with directions that it be submitted to the Immigration Centre at Vegreville, the proper office for the application, but that was not done.
[7] On December 30, 1999, Ms. Swartz submitted, on behalf of Ronville and herself, an application for exemption from regular requirements, to permit them to apply for permanent residence from within Canada, based on h & c grounds. She and her son were interviewed in relation to this application by an immigration officer on August 17, 2000.
[8] By letter dated October 18, 2000, the immigration officer advised that, having considered the application, an exemption would not be granted. The officer's notes of the interview, dated October 12, 2000, are extensive, set out in four sections, headed in turn: case outline, written submissions, interview, and rationale. I take the section entitled "rationale" to be the immigration officer's reasons for her decision.
Issues
[9] The applicants submit that the immigration officer's decision is unreasonable on three grounds. First, they submit that the officer failed to consider Ronville's best interests in remaining in Canada, particularly in regard to possible reconciliation with his father. Second, the applicants submit that the officer failed to consider evidence of physical and emotional abuse inflicted upon them by Mr. Swartz, and in so doing ignored Ministerial guidelines for considering h & c applications by abused members of a family. Third, the applicants submit that the officer ignored evidence that Mr. Swartz had filed a completed application to sponsor Ronville for landing in Canada. Before addressing these issues, I turn to consider the standard of review applicable in this case.
Standard of review
[10] Following Baker v. Minister of Citizenship and Immigration (1999), 174 D.L.R. (4th) 193, the applicants submit that the standard of reasonableness simpliciter should be applied when reviewing the immigration officer's discretionary decision to refuse their h & c application for exemption from requirements to apply for permanent residence from outside Canada.
[11] The respondent submits that since the decision of an immigration officer not to recommend an exemption under s-s. 114(2) of the Act does not deprive an individual of any rights, significant deference should be shown to that decision. In support of this submission, the respondent relies on Singh (Saran) (C.K.) v. Canada (Minister of Employment and Immigration)
(1986), 6 F.T.R. 15, where Mr. Justice Cullen commented, at para. 12:
What duty or responsibility should be imposed on a Minister of Immigration in this situation? In my view, only a duty to fairly consider the reasons advanced, to acknowledge that they were read and considered, and then to decide. No reasons need be given.
[12] Following Baker, supra, reasons may now be expected for discretionary decisions which adversely affect individual interests. In this case, reasons for the decision are necessary, and the standard of reasonableness simpliciter is appropriate for review of the decision of the immigration officer.
Was the decision unreasonable by failing to consider the best interests of the son?
[13] The applicants submit that the immigration officer erred by failing to consider the best interests of Ronville, including his interest in remaining in Canada in hopes of reconciling with his father.
[14] I note at the outset that Ronville was 19 years old at the date of the interview and the decision, and he might legally be considered an adult. Nevertheless, in light of all his circumstances I find that the fact of his age does not prevent him from being considered a "child" for the purposes of considering the principle of the Baker decision. In Naredo v. Canada (Minister of Citizenship and Immigration) (2000), 192 D.L.R. (4th) 373, the applicants, who had two children, submitted an application for landing from within Canada on h & c grounds. On the date the application was rejected, the youngest child was 18 years old, and the eldest was 20
years old. In allowing the application, Mr. Justice Gibson commented, at para. 20:
The two sons of the applicants, whatever their ages, remained "children" of the applicants who could reasonably be expected to be dramatically affected by the removal from Canada of their parents.
In this case, I find that Ronville was a "child" within the principle of Baker, because although he was 19 years old, he was a dependant, and he was not authorized to work or to continue studies beyond May 2001, in Canada.
[15] Although in her notes the immigration officer commented on whether the physical presence of Ronville in Canada would facilitate reconciliation with his father, the officer failed to consider other factors concerning Ronville's best interests. In Baker, supra, Madam Justice L'Heureux-Dubé commented, at para. 74:
...(A)ttentiveness 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. While deference should be given to immigration officers on s. 114(2) judicial review applications, decisions cannot stand when the manner in which the decision was made and the approach taken are in conflict with humanitarian and compassionate values....
[16] In Legault v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 277 (T.D.), Mr. Justice Nadon reviewed recent jurisprudence of the Federal Court, Trial Division, and concluded, at para. 67:
In conclusion, it is my view that the Supreme Court's decision in Baker, supra, calls for a certain result, and that result is that, save in exceptional cases, the children's best interests must prevail...
[17] Having regard to the comments of Madam Justice L'Heureux-Dubé in Baker, and the comments of Mr. Justice Nadon in Legault, I am of the view that the immigration officer in this case erred by failing to be attentive and sensitive to Ronville's best interests, and to the hardship
that he might suffer by a negative decision. In her rationale, the immigration officer wrote:
While I can empathize with Veronica [Ms. Swartz] and Ronville in that Neville [Mr. Swartz] did not take into consideration their best interests, I am satisfied that this hardship is not disproportionate to situations when a family separation occurs.
[18] While the officer's report and reasons make reference to some of the circumstances concerning the son, and reflect the substance of written submissions accompanying the h & c application, the reasons do not demonstrate attention was paid to the best interests of the son at the time the decision was made.
Was the decision unreasonable by failing to follow guidelines?
[19] The applicants submit that the immigration officer failed to consider the physical and emotional abuse inflicted upon the principal applicant, and her son, by her husband, and in so doing failed to follow Ministerial guidelines. Section 8.10 of chapter 5 of the Inland Processing Manual ("the Manual"), concerning consideration of h & c applications, in situations where there has been family violence, provides, in part, that:
Family members in Canada, particularly spouses, who are in abusive relationships and are not permanent residents or Canadian citizens, may feel compelled to stay in the relationship or abusive situation in order to remain in Canada; this could put them at risk.
Officers are reminded to consider using their positive discretionary authority where the spouse (or other family member) of a Canadian citizen or permanent resident leaves an abusive situation and, as a result, does not have an approved sponsorship.
Note that women are most often the victims of spousal abuse. An important consideration is the protection of the person being abused.
[20] In my view, the immigration officer considered and generally accepted the evidence of the applicants on the history of the abusive relationship, and particularly the physical and emotional abuse of Ms. Swartz by her husband, both before and after the family's arrival in Canada. In the "rationale" section of her notes, the immigration officer acknowledged that the marriage was an abusive one, stating that it was commendable that Ms. Swartz had extricated herself from "an abusive marriage".
[21] While the officer considered, as her notes also demonstrate, the support network Ms. Swartz had developed in Canada, and the difficulties she would face if she were required to return to South Africa, the reasons show no direct reference to sympathetic consideration of Ms. Swartz's circumstances as a result of her leaving an abusive relationship and thus foregoing any prospect of an approved sponsorship by her husband. In that way the reasons of the immigration officer do not consider the circumstances in accord with the guidelines concerning family violence set out in the Manual.
[22] Nevertheless, guidelines are guidelines - they are not law. It would be difficult to intervene simply because one guideline appears to have been overlooked where other relevant guidelines have been followed. If this were the only shortcoming in the immigration officer's decision, it would be difficult to conclude that her discretionary decision, made in what was clearly a difficult case, was unreasonable.
[23] In any reconsideration of the application, the guidelines applicable to h & c applications by persons who, having left a family relationship in which they were abused, have lost the prospect of an approved sponsorship, should be carefully considered.
Conclusion
[24] The applicant also urged, in relation to the conclusions concerning Ronville, that the officer had overlooked the fact that a completed application to sponsor his application for permanent residence had been submitted by Mr. Swartz, albeit not to the proper office. It is unnecessary to deal with this issue in view of my decision that the application for judicial review is to be allowed.
[25] I allow the application because in my opinion, despite her thorough review of most circumstances of this case, the immigration officer failed to give consideration to the best interests of the dependent son, Ronville, in light of the decision in Baker.
[26] An order goes allowing the application for judicial review, setting aside the decision of the officer who refused the h & c application, and referring the application for reconsideration by a different immigration officer. In that reconsideration the guidelines, in the manual, for consideration of such applications by those who left a family relationship in which they were abused, should be considered.
[27] Neither party suggested a question for certification pursuant to s-s. 83(1) and no question is certified.
W. Andrew MacKay
_____________________________
JUDGE
OTTAWA, Ontario
March 8, 2002.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-5926-00
STYLE OF CAUSE:VERONICA SWARTZ AND RONVILLE SWAERTZ v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: June 20, 2001
REASONS FOR ORDER of The Honourable Mr Justice Mackay DATED: Mars 8, 2002
APPEARANCES:
Mrs. Naomi Minwalla FOR THE APPLICANT
Mrs. Kim Shane FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mrs. Naomi Minwalla FOR THE APPLICANT Barrister and Solicitor
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada