Date: 20010803
Docket: IMM-3105-00
Neutral citation 2001 FCT856
Between:
SOLANGE IRÈNE KOUD
JEREMY EDDY BOBONGO-KOUD
ANTONY ARISTIDE BOBONGO
Applicants
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
A. Introduction
[1] The applicants, Solange Irène Koud, a citizen of the People's Republic of Congo, her son Antony, born in Brazzaville, aged seven, and her son Jeremy, born in Canada, aged three, are seeking to have the decision made by Suzanne Pelletier, an immigration officer (the immigration officer) on May 8, 2000, denying their application for a ministerial exemption based on humanitarian and compassionate considerations for the purpose of obtaining permanent residence for Ms. Koud and her son Antony under subsection 114(2) of the Immigration Act (the Act).
[2] On February 16, 1999, they filed an application for permanent residence based on humanitarian and compassionate considerations.
[3] The application for a ministerial exemption was accompanied by written submissions by their counsel, who cited a number of factors in support of the application, particularly the fact that the young children were integrated in Canada, the only country they knew. The boy Antony goes to school and, according to a letter from the principal, is adapting very well in that environment. Counsel also pointed out the political instability and risk of danger in Congo-Brazzaville.
[4] Ms. Koud also made written submissions on April 30, 1999. She talked about her children and said that her son Antony was going to school, where he had a lot of friends, as he had in the neighbourhood where they live, and was on a sports team. She wrote that as a mother, she would feel very guilty about taking her young sons to a country that has developed a culture of war, violence, insecurity and corruption. She noted that there has been no public education or health care since the series of wars in that country. She concluded that to save her life and the lives of her children, she could not contemplate returning to Congo.
[5] The tribunal record contains notes written by the immigration officer during a telephone interview with Ms. Koud on April 12, 2000. The following are the questions asked by the immigration officer:
(1) Her place of work?
(2) Does Ms. Koud have a marriage certificate?
(3) Do you have children?
(4) Who is the father?
(5) Does the father provide financial support?
(6) What is his place of residence?
C. DECISION OF THE IMMIGRATION OFFICER
[6] The immigration officer's analysis comprises the reasons for the denial of the application for exemption by Ms. Koud and her son Antony.
[7] The immigration officer wrote the following regarding the two children:
[TRANSLATION] The applicant pointed out that her son is going to school, and also filed a letter from Notre-Dame-de-l'Assomption school showing us the child's academic progress. This simply amounts to normal adaptation, because the law provides that all children of that age must attend school in Canada.
The applicant has a child who was born in Canada and who is now two years and nine months old, and this is an important factor. I am sensitive to the needs, interests and rights of the child, and I have considered Baker in order to properly assess the welfare of the child born in Canada. A child of this age might have very little difficulty in adapting. The fact that the child is Canadian also provides a guarantee, because he could always be protected by the rights of Canadian citizenship when he capable of exercising them. However, although the child was born in Canada, he has had only a minimum of specific adaptation to life in Canada because of his young age (school attendance, friends, lifestyle, etc.). I note that the applicant has two other children in her country of origin, she reported only the oldest of the two children on her IMM-5001. She no longer talks about her youngest daughter who was born on 19-12-1990. Her family is still in her country of origin. [Emphasis added]
[8] The applicants submit that the following paragraph of the immigration officer's reasons contain an irrelevant factor:
[TRANSLATION] In assessing the facts in the file, the applicant states that she is married and she attaches a copy of her marriage certificate. I wondered why no sponsorship application was submitted. In a telephone call on 12-04-2000 the applicant informed me that she is no longer with her husband and that the divorce will be granted in the near future. She informed me that she had resumed cohabitation about seven months ago with the father of her two children, Alain Aristide Bobongo. I received a letter on May 1, 2000, confirming that fact. I note that they live at two different addresses, the applicant lives at 2210 de Rouen, apartment 2 in Montréal and on Mr. Bobongo's IMM-5001, he lives at 4488 Beaubonnière, apartment 401 in Montréal, that form having been dated and signed by Mr. Bobango on 15-03-2000.
[9] The immigration officer concluded by writing:
[TRANSLATION] The difficulties that the applicant would face if she were to apply for permanent residence from outside Canada are directly related to the application of the Immigration Act. They are not disproportionate or unusual.
ANALYSIS
(a) The principle
[10] In Baker, supra, Madam Justice L'Heureux-Dubé J. described how an immigration officer must consider the best interests of a child in determining the reasonableness of a discretionary decision based on humanitarian and compassionate considerations. At paragraph 75 of her reasons, she wrote:
The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. 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.
[11] At paragraph 73 of Baker, supra, L'Heureux-Dubé J. concluded as follows:
The above factors indicate that emphasis on the rights, interests, and needs of children and special attention to childhood are important values that should be considered in reasonably interpreting the "humanitarian" and "compassionate" considerations that guide the exercise of the discretion. I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker's children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.
(b) Application to this case
[12] Since the decision in Baker, the judges of this Court have had several occasions to examine its application in the particular circumstances before them. Recently, in Alexander Henri Legault v. Minister of Citizenship and Immigration, [2001] F.C.J. 568, Mr. Justice Nadon summarized those decisions.
[13] According to those decisions, the Court will intervene in at least three kinds of cases:
(1) In cases where the best interests of the child were simply not taken into consideration. This was the case in Sovalbarro v. Canada (Minister of Immigration and Citizenship) (1999), 174 F.T.R. 156, and in Ingrid Garasova v. Canada (Minister of Immigration and Citizenship) (1999), 177 F.T.R. 76.
(2) In cases where the immigration officer mentioned the Canadian child but did no analysis of the effect on the child of denying the exemption application. This was the case in Navaratnam v. Canada (Minister of Immigration and Citizenship) (1999), 179 F.T.R. 294.
(3) In situations in which the immigration officer took the child's best interests into consideration, but inadequately or deficiently. This was the case in:
(a) Wynter v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin.L.R. (3d) 99 in which the immigration officer wrote, at page 110, "subject's two Canadian citizen children are being considered. They may need little time to adjust to a new country, yet it would be subject's decision if she was to leave the children in Canada with whatever arrangement she may make, she would be free to decide what would be in the best interests of the children".
(b) Jack v. Canada (Minister of Immigration and Citizenship) (2000), 7 Imm. L.R. (3d) 35, in which the immigration officer wrote "her Canadian citizen child is young enough to adjust to the change should she choose to take him with her and she does have a family to return to". Mr. Justice Gibson allowed the application for judicial review for the following reason:
[4] . . . There is no reference whatsoever regarding the Canadian born child's involvement in schooling and in the community in Canada. Equally, there is absolutely no analysis of what the impact on the Canadian born child would be if his mother was forced to leave Canada and chose to leave without him; this, despite the acknowledgement that neither the applicant nor the Canadian born child receive any support from the child's father and that there is no strong bond between the child and the father.
[14] In the very recent decision by Mr. Justice McKeown in Sukdev Bassan et al. v. Canada (Minister of Citizenship and Immigration), [2001] F.C.T. 742, the immigration officer had concluded:
[4] . . . 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.
[15] McKeown J. allowed the application for judicial review and wrote the following, at paragraphs 6 and 7:
An H & 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... .
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.
[16] Like my colleagues in the cases cited supra, I conclude that the immigration officer's decision in this case was unreasonable and must be set aside, for the following reasons.
[17] First, the immigration officer wrote [TRANSLATION] "a child of this age might have very little or no difficulty in adapting". That observation is a conclusion made with no analysis and no foundation, because there was no assessment of the situation that the child would be in if he returned to Congo with his mother or remained in Canada without her. The immigration officer was required to do a more thorough investigation.
[18] Second, with respect to the boy Antony, there are different considerations that may come into play, since he was not born in Canada and therefore is not entitled to remain here, but I believe that the scope of the decision in Baker is not limited by Canadian citizenship.
[19] In Baker, L'Heureux-Dubé J. concluded, inter alia, at paragraphs 74-75, and I again quote paragraph 75:
[T]he decision must be made following an approach that respects humanitarian and compassionate values. 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. 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. The Minister's guidelines themselves reflect this approach. However, the decision here was inconsistent with it.
The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. 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.
[20] In this case, I am of the opinion that the analysis concerning Antony minimized his best interests, by concluding that he had adapted to Canada but that this was of no consequence since he was required to go to school.
DISPOSITION
[21] For all these reasons, this application for judicial review is allowed, the decision of the immigration officer is set aside, and the applicants' application for exemption must be re-examined by a different immigration officer.
[22] The applicant proposed questions for certification. I am of the opinion that those questions do not meet the tests set out in Liyanagamage,[1994] F.C.J. 1637. Consequently, no question will be certified.
"François Lemieux"
J U D G E
Ottawa, Ontario
August 3, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-3105-00
STYLE OF CAUSE: SOLANGE IRÈNE KOUD et al. v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 3, 2001
REASONS FOR ORDER OF LEMIEUX J.
DATED: August 3, 2001
APPEARANCES:
Alain Joffe FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Alain Joffe FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada