Toronto, Ontario, July 19, 2005
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] In the present Humanitarian and Compassionate (H & C) decision under review, a critical issue is the best interests of a Canadian born child. The test for determining this issue is set out in Hawthornev. Canada(Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.) at paragraph 32:
It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she
has taken into account the interests of a child of an H & C applicant (Legault, at paragraph 12). Rather, the interests of the child must be "well identified and defined" (Legault, at paragraph 12) and "examined ... with a great deal of attention" (Legault, at paragraph 31). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at paragraph 75) in the exercise of discretion under subsection 114(2).
[2] The determinant paragraph on best interests in the H & C decision reads as follows:
Mr. Kimotho claims a five year old son born in Canada who he cares for. He has not provided sufficient evidence of relationship to the child. The child has been living with the subject since birth and it is understood that a significant bond would have developed. I have reviewed the psychological assessment of the child Andrew which details his development and a communications assessment report. The child appears to need some care including care in the home. I have reviewed the affidavit on file from T W Gathenya which also includes a copy of the Master Plan on Education and Training for the Republic of Kenya for the years 1997 to 2010. Resources appear to be available in Kenya to address the child's needs. I looked at the best interest of the child and acknowledge that as in most cases the best interest of the child is served by remaining with the parents. I am not satisfied based on the evidence presented that the child Andrew's needs would suffer if he were to remain with this parents. Facilities appear to be available in Kenya and his parents appear to be motivated to care for the child.
(Applicant's Application Record, p. 11)
In my opinion, this cursory statement fails to meet the test in Hawthorne. The evidence on the record shows that the child in question has special needs which require a most careful examination and analysis. This was not accomplished.
[3] In addition, when the evidence from the Gathenya affidavit is closely examined, it is very clear that the finding made that "resources appear to be available in Kenya to address the child's needs" is so contrary to the evidence, it is capricious. The affidavit in question provides the following relevant evidence of the situation in Kenya at the time the decision under review was made (Applicant's Application Record, pp. 72-73):
· People with disabilities are viewed, in most of the Kenyan communities, as a curse to the society. They are therefore often mistreated and rarely accorded the necessary accommodation and dignity they deserve (para.8);
· Governmental policy pertaining to education for people with disabilities is in its infancy and the government lacks clear and sustainable official finding policies on special education programmes (para.10);
· Even where special education programmes for children and people with disabilities exist, there are other existing factors that undermine the efficacy and success of the programmes as well as the accessibility to these programmes by disabled children (para.11); and
· People with disabilities, specifically children with developmental problems, continue to face disproportionate hardship in accessing specialized educational and other useful intervention programmes (para.14).
[4] As a result, I find that the decision under review is patently unreasonable.
ORDER
Accordingly, I set aside the decision under review and refer the matter back to a different H & C officer for re-determination.
"Douglas R. Campbell"
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7418-04
STYLE OF CAUSE: DANIEL WAHOME KIMOTHO
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JULY 19, 2005
APPEARANCES:
Waikwa Wanyoike FOR THE APPLICANT
Anshumala Juyal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waikwa Wanyoike
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.