Federal Court Decisions

                                                                                                                                             Date: 20020301

                                                                                                                                 Docket: IMM-2469-01

                                                                                                                   Neutral Citation: 2002 FCT 224

BETWEEN:

                                                       HARKIRPAL SINGH KALKAT

                                                                                                                                                        Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Respondent.

                                                            REASONS FOR ORDER

KELEN J.:

[1]         This is an application for judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 of the decision of senior immigration officer Michael Cobb ("the officer"), dated May 4, 2001, wherein the officer determined that the applicant does not qualify for an exemption under subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 and is ineligible to have his application for an immigration visa processed on humanitarian and compassionate grounds ("H & C application") while he is within Canada.

FACTS

[2]         The applicant, Harkirpal Singh Kalkat, born July 20, 1965, is a citizen of India. He came to Canada as a visitor in 1991.

[3]         The applicant has had two previous H & C applications denied, on June 21, 1996 and November 29, 1999 respectively. On December 30, 1999 the applicant was held not to be a Convention Refugee by the CRDD. Leave to apply for judicial review of the CRDD decision was denied by this Court on June 1, 2000.

[4]         On November 8, 2000 the applicant filed a third application. The application stated:

If I leave Canada it will cause excessive hardship to my wife, my child from this marriage, and my two children from a previous marriage who are residing in Canada. It will be excessive for me to leave them and then come back spending hundreds of dollars for no reason.

[5]         On May 4, 2001 the officer decided that the H & C application would be denied.

THE DECISION OF THE IMMIGRATION OFFICER

[6]         In the "Case Summary" the officer set out his considerations for the decision which included the following:

Factors taken into consideration that support 9(1) waiver

·            Subject has a wife who is a Permanent Resident of Canada;

·            Subject has three Canadian-born children, two from his previous marriage and one from his current marriage;

·            Subject and spouse are expecting another child, with an expected due date of November 2001.

Factors taken into consideration that do not support 9(1) waiver

·            Subject has three criminal convictions in Canada. He was convicted of assaulting his first wife on 02 January 1995 in Surrey, BC. He was convicted of Drive[sp] While Ability Impaired in Surrey, B.C. on 10 April 1995. He was convicted of Failure or Refusal to Provide a Breath Sample in Edmonton, AB on 25 April 2001.

·            Subject has outstanding criminal charges - on 19 March 1998 subject was charged with Drive While Ability Impaired, Dangerous Driving and Driving While Disqualified in British Columbia. A BC-wide arrest warrant remains in effect for these charges. On 19 October 2000 subject was arrested and charged with [Im]Personation, Refusal to Provide a Breath Sample and Drive While Ability Impaired in Ponoka, AB. A warrant for the subject's arrest was issued regarding these charges, and warrant was executed by Edmonton Police Services on 02 April 2001. Subject is scheduled to appear in court on 03 August 2001 in Wetaskawin, AB to face charges for Drive While Ability Impaired, Failure to Provide a Breath Sample, Obstruct Peace Officer, Fail to Appear and Fail to comply with Recognizance.

·            Subject owes $4,447.25 as of 10 April 2001 in Maintenance/Support for his two children from his first marriage.

·            Subject has been in BC, away from his wife and child, from November 2000 until the end of February or beginning of March 2001.

Decision:

Application Refused

Rationale:

Subject has shown a repeated pattern of criminality during his time in Canada.

[...]

Subject states that he has been ordered to pay child support [...] this support is not being paid.

[...]

Subject states that if he were separated from his wife and children it would cause excessive hardship. However it is noted that subject states he did not reside with his wife and child for at least a period from November 2000 until the end of February or early March 2001.

This decision takes into consideration the effect that this decision would have on a bona fide marriage, and on Canadian born children, but it is my belief that the risks of re-offending are too strong. After considering all of the information, I am not satisfied that these are sufficient Humanitarian and Compassionate grounds to warrant waiving section 9(1) of the Immigration Act.

THE LAW

[7]         Section 9(1) of the Immigration Act reads:

Visas and Special Authorizations

Applications for visas

     9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.

Visas et autorisations spéciales

Demande de visa

9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.

STANDARD OF REVIEW

[8]         Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751(F.C.T.D.), wrote:

The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

In Wang v. Canada (M.C.I.),[2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].

Accordingly, reasonableness simpliciter is the appropriate standard to review the immigration officer's decision in this case. Reasonableness simpliciter was defined by Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc. (1997), 1 S.C.R. 748 (S.C.C.):

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.

ISSUES

[9]         Was the decision unreasonable, i.e. not supported by reasons that can stand up to somewhat probing examination?

[10]       Did the officer take into consideration the interests of the children?

ANALYSIS

[11]       The issues with respect to the reasonableness of this decision refusing the H & C application are: the applicant's criminal history; the applicant's child support arrears; and, the impact of the applicant's removal from Canada upon his wife and children.

(1)                 Criminal Record of Four Convictions

[12]       The applicant submits with regard to his criminal history, certain offences are from over five years ago and that he has "dealt with" these charges, along with more recent convictions, by serving his sentences, and that these charges should not take priority over the best interests of his family.

[13]       The officer considered the criminal record of the applicant, and decided that the applicant presents a significant risk of re-offending. The applicant's history of impaired driving has been ongoing and includes a conviction in August, 2001. The Court finds that the officer reasonably considered the applicant's history of criminal offences and reasonably concluded that the applicant presents a risk of re-offending.

(2)                 Interests of the Children

[14]       The officer refers to the interests of the applicant's children, and came to a decision reasonably open to him. The Supreme Court of Canada held in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 (S.C.C.)that the best interests of Canadian born children are an important consideration, but not to the point of removing all other considerations. L'Heureux-Dubé J. wrote at paragraph 75:

The certified question asks whether the best interests of children must be a primary consideration when assessing an applicant under s. 114(2) and the Regulations. The principles discussed above indicate that, for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children's best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.

[15]       The record shows that the interests of the children were weighed. The officer noted the applicant's apparent lack of commitment to, and interaction with, his children. The applicant stated in his affidavit that:

"...I will continue to pay child support when I have a work permit.".

The respondent states, as did the officer, that even when the applicant had a work permit, the applicant failed to make regular support payments for the care of his two children from a previous marriage. The applicant's support of his children is specifically referenced by the officer in his reasons:

"This decision takes into consideration the effect that this decision would have on a bona fide marriage, and on Canadian born children, but it is my belief that the risks of re-offending are too strong."

CONCLUSION

[16]       The decision of the officer is reasonable in that the reasons stand up to a probing examination. The applicant has had four criminal convictions while in Canada, and has not shown himself to be a good father, husband or supporter for his children from two marriages.

[17]       Accordingly, this application for judicial review is denied.

                                                                                                                                  (signed) Michael A. Kelen

                                                                                                            ____________________________

                                                                                                                                                               Judge

OTTAWA, Ontario

MARCH 1, 2002