Date: 20000517
Docket: IMM-611-99
Between :
YU CHIAO YOUNG, KWONG YOUNG, YER YOUNG,
HEW YOUNG AND TAK YOUNG
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicants seek judicial review of a decision of Citizenship and Immigration Canada, dated January 19, 1999, refusing their request under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) and determining that there were insufficient humanitarian and compassionate grounds to warrant approval for their landing in Canada.
[2] In Baker v. Canada, [1999] 2 S.C.R. 817, Justice L'Heureux-Dubé applied the pragmatic and functional approach to determine the appropriate standard of review for decisions made under subsection 114(2) of the Act and section 2.1 of the Immigration Regulations, 1978, SOR/78-172. She concluded that the appropriate standard is reasonableness simpliciter. Justice L'Heureux-Dubé wrote, at pages 857 to 858:
| These factors must be balanced to arrive at the appropriate standard of review. I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court - Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter. |
[3] At issue in this application is whether the decision was unreasonable on the grounds that the officer failed to consider the psychological assessment of the principal applicant, the documentary evidence of Guyana's inability to deal with criminals and the interests of the principal applicant's children.
[4] In my opinion, the evidence does not support the applicants' claims. The officer's notes, which satisfy the requirement for reasons, make reference not only to the psychological assessment, but also to the fact that it was not before the Immigration and Refugee Board (IRB). In addition, they refer to documents provided by the applicants, for example "Guyana: Information on whether police refuse to pursue or follow up on complaints of crime due to the race or political affiliation of the complainant", dated August 26, 1994, and "Brief on Police Violence", dated July 1988. Furthermore, the notes indicate that the officer considered all of this evidence in relation to the issue of hardship:
| . . . I have reviewed the information on file, including IRB decision, the updated medical information and other evidence. I am satisfied that based on the provided information that risk as stated would not be undue.1 |
[5] Therefore, I think that the officer was alert to the principal applicant's psychological condition and to the documentary evidence, and considered the hardship that a negative decision would impose on the applicants.
[6] With respect to the principal applicant's children, Baker, supra, established that in the context of applications for consideration on humanitarian and compassionate grounds, the examination of whether a decision is reasonable should focus on "the question of the approach to be taken to the interests of children". Justice L'Heureux-Dubé stated, at page 860:
| . . . In my opinion, a reasonable exercise of the power conferred by the section requires close attention to the interests and needs of children. Children's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society. Indications of children's interests as important considerations governing the manner in which H & C powers should be exercised may be found, for example, in the purposes of the Act, in international instruments, and in the guidelines for making H & C decisions published by the Minister herself. |
[7] Here, the officer wrote the following in relation to the principal applicant's children and the issue of hardship at page 44 of the Application Record:
| [. . .] |
| - it is noted that the daughter passed a medical M3 in 1996. |
| Medical information on file from the Hospital for Sick Children (dated 08 July 1998) stated that the child is healthy - she requires monitoring for dental and orthodontic consideration, she may require jaw surgery in the future, and that she requires speech therapy - the Cleft Palate Program Team Assessment wishes to next confer when the child is twelve. (she is presently 8). |
| - The Francis Case (referring rights to of [sic] CC born children) was referred to as well. |
| [. . .] |
| The client and family had not provided sufficient grounds to state that hardship would be excessive or undue. The daughter's passed an immigration medical and the Team Assessment information provided by The Hospital; for Sick Children [sic] does not require to see her for four years. (although individual Doctor's wish to monitor her situation on a more regular basis) I am not satisfied that this issue warrants as exceptional circumstances. |
and at page 45:
| Counsel indicated that the children were subjected to bias in Guyana and returning them would cause them further similar problems. |
The officer also noted the following with respect to the degree of establishment of the principal applicant's children, at page 46:
| [. . .] |
| - it is also noted that she and her children have only been in Canada a relatively short period of time, since 1996. |
and at page 47:
| The applicant and her children are not well established and continue to rely on financial assistance from social services. They have only been in Canada since 1996. |
[8] In addition, the CAIPS notes indicate that the officer considered the fact that one of the principal applicant's children was born in Canada.2
[9] In my opinion, the officer's notes demonstrate that the decision to refuse the application was made in a manner which was sensitive to the interests of the principal applicant's children and that the officer considered them an important factor in making the decision.
[10] In this context, I think that the officer's decision was a reasonable exercise of the power conferred by the statute.
[11] Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 17, 2000
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