Docket: IMM-7537-03
Citation: 2004 FC 1309
Toronto, Ontario, September 23rd, 2004
Present: The Honourable Mr. Justice von Finckenstein
BETWEEN:
SONIA BEVERLEY WALKER
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench and subsequently
written for precision and clarification)
[1] The Applicant, a citizen of Jamaica, arrived in Canada in July 1990 and has been in
Canada for about fourteen years. The Applicant first attempted to regularize her status in Canada in February 1999, when she filed her first H & C application for permanent residence within Canada. The application was refused on October 26, 1999 and leave to appeal this decision was denied on May 19, 2000. A departure order was issued on April 3, 2001. The Applicant made a claim for refugee protection, which claim was dismissed on July 22, 2003, as the Refugee Protection Division found that there was no credible basis for the Applicant's claim. The Applicant did not seek leave to appeal this decision. The Applicant filed a second H & C application in May 2002 which was refused on August 5, 2003.
[2] In refusing the Applicant's request for landing in Canada based on H & C grounds, the
Immigration Officer stated that the best interests of all children must be taken into consideration. However, her three children in Jamaica are grown up and have lived without their mother's support for twelve years. Consequently, their best interests is not at issue in this case. With respect to the Canadian-born child, the Immigration Officer stated:
"Subject's decision on whether she will take her Canadian daughter with her to Jamaica or have her stay with Canadian relatives is one that she will have to ultimately decide. Subject clearly has a large number of relatives who live in Canada."
[3] In this case, it is the best interests of the Canadian born child that is at issue. The best interests of the Canadian born child were not addressed at all; the Officer merely addressed the mother's choice. She certainly was not "alert, alive and sensitive" to the best interests of the Canadian born child, as required by Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[4] The Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 1687 (C.A.) (QL) stated:
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).
[5] The Officer was required to address the best interests of the Canadian born child in
making her decision. The failure to address this issue sufficiently is a reviewable error.
[6] Accordingly, the Court has no choice but to allow this application.
ORDER
THIS COURT ORDERS that the writ of certiorari be granted, quashing the decision of the Immigration Officer of August 5, 2003 and the matter be referred back to be considered by a different Immigration Officer.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
Name of Counsel and Solicitors of Record
DOCKET: IMM-7537-03
STYLE OF CAUSE: SONIA BEVERLEY WALKER
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: SEPTEMBER 23, 2004
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: von FINCKENSTEIN J.
DATED: SEPTEMBER 23, 2004
APPEARANCES BY:
Mr. Osborne Barnwell
FOR THE APPLICANT
Ms. Margherita Braccio
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Osborne Barnwell
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040923
Docket: IMM-7537-03
BETWEEN:
SONIA BEVERLEY WALKER
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER