PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
LIONEL WILLIAMS
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
O'KEEFE J.
[1] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of a decision by an immigration officer, dated May 12, 2003, which refused to grant the applicants an exemption on humanitarian and compassionate (H & C) grounds to permit inland processing of their permanent residence application.
[2] In their notice of application, the applicants seek the following relief:
1. an order for a writ of certiorari to quash the immigration officer's decision;
2. an order for a writ of mandamus to process the H & C application in accordance with the law; and
3. costs of this application.
Background
[3] The applicants are citizens of St. Vincent. Sandra Williams entered Canada for the first time in 1988 with visitor status. She remained in Canada after her visitor status expired, and she was deported on March 26, 1989. She returned to Canada on July 5, 1991 with visitor status, and has since remained in Canada. A section 44 inadmissibility report was issued on May 13, 2003 for her failure to leave Canada when her visitor status expired on January 5, 1992.
[4] Sandra's son, Lionel, has been in and out of Canada to stay with his mother since he was 8 years old. On December 15, 1999, he entered Canada with visitor status and remained in Canada after his visa expired on June 14, 2000. Lionel was dependent on his mother. When the applicants' H & C application was submitted, he was 16 years old. When the application was refused, he was 19 years old. He is currently 22 years old.
[5] On December 5, 2002, Lionel was reported under section 44 for criminality. The immigration officer noted that he was convicted of assault, theft and two counts of uttering threats on November 22, 2002, and sentenced to 2 months imprisonment and 45 days pre-sentence custody. Apart from these convictions, Lionel was adjusted to life in Canada. A report card dated August 24, 2000 and interim progress reports dated October 2002 from Lionel's school were submitted for the H & C application.
[6] Sandra has been employed as a housekeeper since her arrival in Canada. She provided positive letters of recommendation from her employers. They indicate that the length of service ranges from 3 months to 8 years. She also provided proof of savings.
[7] On May 12, 2003, an immigration officer refused the H & C application. This is the judicial review of that decision.
[8] Lionel was deported from Canada in December 2005, between the filing of the application for leave to commence judicial review and the order granting leave.
Reasons for the Decision
[9] After briefly reviewing the evidence, the immigration officer stated the reasons for her conclusion as follows:
Mr. Lionel Williams-Alexander has demonstrated limited establishment in Canada and has submitted school report cards from Sir Sanford Fleming Academy. Mr. Williams-Alexander was convicted under the Criminal Code of uttering threats, assault and theft on November 22 2002.
According to her submissions Ms. Williams was gainfully employed in St. Vincent prior to her arrival in Canada. She has maintained ties to St. Vincent as her mother and brother are residing there. Lionel Williams-Alexander's father also resides in St. Vincent.
All submissions made by Sandra Williams and Lionel Williams-Alexander have been considered. It is understandable that Ms. Williams would like to remain in Canadaand has demonstrated some establishment since her arrival. She also violated Immigration Law by remaining in Canada beyond the validity of her visitor status and returning to Canada without permission after she was deported. Lionel Williams-Alexander has remained beyond the validity of his status, has demonstrated limited establishment and has 3 criminal convictions in Canada.
Sandra Williams and Lionel Williams-Alexander may experience personal hardship if they return to St. Vincent and apply for permanent residence in the usual manner. After considering the evidence however I am not satisfied that this hardship is undue, underserved or disproportionate. There are insufficient humanitarian and compassionate grounds for exceptional processing in Canada. This request is refused.
Issues
[10] The applicants submitted the following issues for consideration:
1. Did the officer err in failing to assess the best interests of Lionel Williams as a child?
2. Did the officer err in relying on Lionel William's criminal convictions in refusing the application without notifying the applicant of the third party information?
3. Did the officer err with respect to the number of convictions?
Applicants' Submissions
[11] The applicants submitted that the immigration officer's handwritten notes acknowledged that Lionel was a dependent child of Sandra. Moreover, Lionel did not submit a separate H & C application and the officer did not issue a separate refusal letter for Lionel.
[12] The applicants submitted that as Lionel was a child, the officer erred in failing to assess the best interests of the child in accordance with subsection 25(1) of IRPA, and therefore the decision must be set aside (see Joseph v. Canada (Minister of Citizenship and Immigration), 2004 FC 344). It was submitted that the officer simply indicated that Lionel "has demonstrated limited establishment in Canada", which is not the relevant criteria.
[13] The applicants submitted that the officer may have made an error of fact with respect to the criminal record of Lionel. It was submitted that the officer notes that Lionel was convicted of certain criminal offences on November 22, 2002, and sentenced to 2 months imprisonment and 45 days pre-sentence custody. It was submitted that pages 24 and 83 of the certified tribunal record have differing information with respect to the criminal charges and the immigration officer possibly erred in his or her finding of fact, by failing to reconcile the information.
[14] The applicants further submitted that they were denied procedural fairness as they were not provided an opportunity to respond to the evidence that the officer had regarding Lionel's criminal convictions.
Respondent's Submissions
[15] The respondent submitted that the applicants have failed to demonstrate that the officer's decision was unreasonable or based on a perverse assessment of the evidence.
[16] The respondent submitted that there is nothing to indicate that the criminality of the adult son was central to the decision. It was further submitted that the applicants should not be able to argue a breach of procedural fairness, since the applicant, in putting her son's interest into play, should have been aware that his criminal convictions would be considered.
[17] The respondent submitted that a child, under the Convention of the Rights of the Child, is defined as someone under the age of 18. Therefore, Lionel does not qualify as a child. It was submitted that the analysis considered by the officer was commensurate with the submissions provided by the principal female applicant with respect to her 19-year old son. The officer can only determine the best interests of the child in relation to the evidence submitted (see Anaschenko v. Canada(Minister of Citizenship and Immigration), 2004 FC 1328).
Relevant Legislation
[18] An H & C application is permitted under subsection 25(1) of IRPA, which provides:
| 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. |
25. (1) Le ministre doit, sur demande d'un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s'il estime que des circonstances d'ordre humanitaire relatives à l'étranger - compte tenu de l'intérêt supérieur de l'enfant directement touché - ou l'intérêt public le justifient. |
Analysis and Decision
[19] Subsection 25(1) of IRPA requires that an H & C officer take into account the best interests of any child that is directly affected. The officer treated Lionel Williams as a child for the purposes of the decision. The officer must therefore take into account the child's best interests based on the information submitted to the officer.
[20] I have reviewed the officer's decision in this case and I can find no analysis of Lionel Williams' best interests. There was evidence that at the time the officer's decision was made, Lionel Williams was 19 years old, he attended school, and he was dependent on his mother. In failing to do any analysis of Lionel Williams' best interests, the officer made a reviewable error.
[21] The application for judicial review is therefore allowed and the matter is referred to a different officer for re-determination.
[22] I need not deal with the remaining issues raised by the applicants.
[22] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
JUDGMENT
[23] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different officer for re-determination.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2500-05
STYLE OF CAUSE: SANDRA WILLIAMS AND
LIONEL WILLIAMS
- and -
-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT AND JUDGMENT: O'KEEFE J.
APPEARANCES:
| Mary Lam
|
|
| Jamie Todd
|
SOLICITORS OF RECORD:
| Mary Lam Toronto, Ontario
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| John H. Sims, Q.C. Deputy Attorney General of Canada
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