Docket: IMM-8546-04
Montréal, Quebec, May 18, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
BETWEEN:
BALBINDER SINGH
Applicant
AND
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), for judicial review of a decision by a Pre-Removal Risk Assessment Officer (the "Officer") acting in the capacity of the Minister's delegate to consider the applicant's request for permanent resident status based on humanitarian and compassionate grounds under section 25 of the Act, which she rejected.
[2] The Officer determined that an exemption pursuant to section 25 of the Act based on humanitarian and compassionate grounds was not warranted.
[3] In reaching this decision, the Officer considered the applicant's ties to Canada, in particular his conjugal relationship with a Canadian citizen and their newborn child, his work experience in Canada and his participation in the community, as well as the risks of torture, persecution and so forth that the applicant faced in the event that he was required to return to India.
[4] Decisions based on humanitarian and compassionate considerations generally engage the reasonableness simpliciter standard of review: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. That is the appropriate standard here.
[5] In Baker, ibid., the Supreme Court of Canada emphasized the importance of giving adequate consideration to the best interests of the child in the context of an application for an exemption from the requirements of the Act, otherwise known as an "H & C application". L'Heureux-Dubé J. stated at para. 67, for example, that "[c]hildren's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society."
[6] This gave rise to some measure of confusion, however. The fact of separating a parent from his or her child would always appear to be contrary to the best interests of that child.[1] However, the Federal Court of Appeal, clarified this aspect of the Baker, supra holding in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (F.C.A.). "The presence of children," Décary J.A. explained, "does not call for a certain result": Legault, ibid. at para. 12. The best interests of the child, while important, are one factor to be considered amongst other public policy considerations that may instead favour removal: see Legault, ibid. at paras. 17-28. The task of an Officer deciding an H & C application therefore entails weighing a number of different considerations.
[7] In this respect, it is critical to keep in mind the nature of the Court's inquiry when applying the standard of reasonableness simpliciter. Although the Court is entitled to engage in a "somewhat probing examination" of the decision (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 at para. 56), the Court is not licensed, by virtue of the ruling in Baker, supra for example, to reweigh the considerations relevant to a humanitarian and compassionate grounds application: see Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; Legault, supra at paras. 9-12. Equally, the Court cannot grant judicial review simply because it would have arrived at a different result: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 55ff.
[8] Provided the Officer is "alert, alive and sensitive" to the best interests of the child and gives them "substantial weight" (Baker, supra at para. 75), a reviewing Court is not in a position to interfere with the Officer's decision.
[9] Turning to the decision presently under review, the crux of the Officer's reasoning relating to the best interests of the child reads as follows:
[...] Je ne remets pas en doute les liens affectifs qui unissent le demandeur et sa conjointe. Par contre, le demandeur s'est engagé dans une union de fait et a eu un enfant au Canada alors qu'il ne possédait pas de statut juridique ou arrêté en matière d'immigration. Dans de telles circonstances, il était raisonnable de prévoir qu'il y ait une séparation, le temps de retourner en Inde et de se procurer le visa requis par la Loi.
[...]
L'enfant du demandeur a environ quatre mois. D'abord il est important de souligner qu'il appartient au couple de décider si la conjointe et l'enfant accompagnent le demandeur en Inde. S'il est décidé que l'enfant demeure avec sa mère au Canada, la présence de cet enfant n'est pas en elle-même suffisante pour exempter le demandeur de présenter sa demande à l'étranger. Le demandeur doit démontrer qu'il est dans l'intérêt de son enfant qu'il soit autorisé à demeurer au Canada pour présenter sa demande de visa. En l'espèce, le demandeur indique qu'il veut demeurer près de son fils pour assumer ses responsabilités de père. Toutefois, il soumet peu de renseignements au sujet de son rôle de support auprès de cet enfant et de sa famille.
Après avoir considéré tous les éléments, je conclus qu'il n'a pas été démontré, qu'il soit dans l'intérêt supérieur de cet enfant que le demandeur soit autorisé à demeurer au Canada.
[10] In my view, this analysis of the best interests of the child is problematic for two reasons.
[11] The applicant carries the burden of adducing evidence in support of an
H & C application (Owusu v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 158 (F.C.A.)(QL)). When considering the best interests of the child, however, Hawthorne, supra underlines that it can generally be presumed that the presence of the parent will generally be consistent with those interests.
[12] Understood in this context, in my view, the Officer placed a relatively high onus on the applicant to prove that his presence in Canada would be consistent with the best interests of the child. The applicant provided affidavit and oral evidence to the effect that he was the primary source of financial support for his child and the child's mother, the applicant's wife.The Officer gave little attention to this fact, and the Court of Appeal has in the past indicated that "[...] ignoring, for all practical purposes, the financial implications [of the parent's removal] for the child" is not akin to being "alert, alive and sensitive" to the child's best interests: Hawthorne, supra at para. 10.
[13] The affidavit evidence of his wife confirms that she is generally dependent on the applicant as well. It also makes clear that she has suffered both physical and mental abuse during her first marriage. It is apparent that the applicant, by providing financial and emotional support for her, indirectly serves the best interests of the child. This aspect of dependency, financial and emotional, contrasts markedly with the situation in Anaschenko v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1602 (F.C.)(QL), where the parents of the child in question were separated.
[14] It is also true that the applicant has three children, all over the age of majority, currently living in India. To suggest, however, that this weighed in favour of denying the H & C application, that they somehow counterbalanced the interests of a newborn child is indicative of how the Officer failed to meaningfully consider the best interests of the child.
[15] The fact of having a child is, in short, not determinative but the Officer cannot give minimal attention to relevant considerations such as the financial ramifications associated with a parent's departure, or the potential impact on his wife who is in need of emotional support. The Officer must rather give meaningful consideration to what the best interests of the child actually are, or what the "hardship" to the child would be: Hawthorne, supra. Here, the "hardship" that would potentially result to this newborn child simply does not enter the analysis.
[16] For all these reasons, the application for judicial review is allowed. The matter is referred back for redetermination before a newly constituted panel.
ORDER
THIS COURT ORDERS that
[1] The application for judicial review is allowed.
[2] The matter is referred back for redetermination before a newly constituted panel.
F.C.J.
STYLE OF CAUSE: BALBINDER SINGH
Applicant
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Indeed, as Décary J.A. noted in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 at para. 5 (F.C.A.), "absent exceptional circumstances...the "child's best interests" factor will play in favour of the non-removal of the parent".