Federal Court Decisions

Date: 20020430

Docket: IMM-2886-01

Neutral citation: 2002 FCT 491

Ottawa, Ontario, this 30th day of April, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                              PATRICIA STERLING

                                                                                                                                                       Applicant

                                                                              - and -

                                  MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application pursuant to subsection 82.1(1) of the Immigration Act, R.S.C. 1985, c. I-2, for judicial review of the decision of the immigration officer (the "officer") dated June 5, 2001, wherein the officer decided not to make a favourable recommendation under subsection 114(2) of the Immigration Act, supra.

[2]                 The applicant seeks a writ of certiorari, quashing the decision of the officer, referring the matter back for reconsideration by a different officer.

Background

[3]                 The applicant, Patricia Sterling, is a citizen of Jamaica. The applicant is the mother of 10 children, four Jamaican-born, and six Canadian-born.

[4]                 The applicant entered Canada with her husband and four Jamaican-born children, on a Minister's permit on August 28, 1990. In 1994, the Minister's permit was cancelled subsequent to the applicant's husband's reliance on welfare following an automobile accident injury.

[5]                 The applicant received a negative Convention refugee decision on January 13, 1995. A removal order was issued against the applicant on October 7, 1994, which became valid as of January 14, 1995. A previous humanitarian and compassionate ("H & C") application was refused in 1995. A warrant was issued against the applicant on the grounds that she did not appear for removal with her husband and four Jamaican-born children.

[6]                 The applicant currently resides in Canada with her six Canadian-born children. The applicant's husband resides in Jamaica with the couples' four Jamaican-born children.

[7]                 The applicant attended an interview with the officer in February of 2001. The officer subsequently denied the applicant's request on the basis of H & C grounds for an exemption from the landing requirement of subsection 9(1) of the Immigration Act, supra. This is the judicial review of the officer's decision.

Applicant's Submissions

[8]                 The applicant submits that the standard of review applicable to the H & C decision of the officer is reasonableness simpliciter.

[9]                 The applicant submits that the officer failed to give substantial weight to the best interests of the children. The applicant submits that the officer was preoccupied with the immigration violations of the mother, stating that he refused to reward her for her illegal conduct.

[10]            The applicant submits that the officer demonstrated a reasonable apprehension of bias, if not actual bias. The applicant submits that the language of the officer throughout his report supports a conclusion that he was motivated to dismiss the application because of his own personal views and not the merits of the case.

[11]            The applicant submits that the officer relied on extrinsic evidence which was critical to his assessment, such as stating that the poverty rate in Toronto was 36%, though the source of this information was never brought to the attention of the applicant or her counsel.

[12]            The applicant submits that the denial of the applicant's H & C application was unreasonable. The applicant submits that the officer failed to properly assess the best interests of the children.

[13]            The applicant submits that the officer committed a legal error by calling into question the applicant's conduct in having six Canadian born children. The applicant submits that the actions of an illegal immigrant having children when they have no status are irrelevant to the assessment of whether the applicant should be granted an exception.

[14]            The applicant submits that the officer ignored the report of Dr. Fiati who had noted in her opinion that the children had no supporting systems in Jamaica and that there were support systems in place in Canada. Dr. Fiati reported that it would be in the children's best interests to stay in Canada.

[15]            The applicant submits that if the officer who did the interview was not the Minister's delegate who was empowered to grant the exemption, then any recommendation between those two people should have been shared with the applicant, allowing her an opportunity to respond to any discrepancies.

Respondent's Submissions

[16]            The respondent submits that the applicant stated that her family would be in poverty if she were returned to Jamaica and that it would have a limiting effect on the children's development.

[17]            The respondent submits that the officer's notes reflect his apprehension of the substance of the applicant's argument and that he reviewed the supporting documentation. The respondent submits that the applicant would not necessarily be cut off from financial aid of her Toronto church if the applicant was removed to Jamaica.

[18]            The respondent submits that the officer had been advised that none of the applicant's children suffer from any medical problem, so they would not be in need of any specialized medical procedure that is not available in Jamaica.

[19]            The respondent submits that the officer dealt with the issues of education and health care when considering the interests of the Canadian born children. The respondent submits that the officer was alive to the children's interests.

[20]            The respondent submits that the applicant's arguments amount to a submission on the merits with a conclusion that the discretionary decision should have been decided in favour of the applicant. The respondent submits that the Court's power on a judicial review of a statutory discretion is narrow, and does not include a right to review the matter on its merits.

[21]            Issues

1.          Did the officer exhibit a reasonable apprehension of bias?

2.          Was the decision of the officer reasonable?

Relevant Statutory Provisions and Regulations

[22]            The relevant sections of the Immigration Act, supra state:

[23]            Section 2.1 of the Immigration Regulations, 1978, S.O.R./78-172 states:

Analysis and Decision

[24]            Issue 1

Did the officer exhibit a reasonable apprehension of bias?

The affidavit of the applicant states:

At the outset of the interview, Mr. Schembri gave us the clear impression that the application was not going to succeed. He voluntarily advised my lawyer that he has a good record in the Federal Court and that his lawyers have been very successful in defending his cases.

At one time, Mr. Schembri pointedly asked me in a very demeaning tone why I had so many children and at that point, my lawyer objected to the question and advised Mr. Schembri that it was his view that the question was inappropriate. He then told us stories of how women have explained to him in previous interviews, that they have had children for different reasons and that the case before him was very unusual. Consequently, he wanted to know why I decided to have so many children given that I was not that older than him. Although my Counsel objected, I advised Mr. Schembri that it was not my purpose to have children in Canada in order to get landing.

[25]            The allegation of the applicant that the officer had made up his mind prior to the interview is a factor suggesting a reasonable apprehension of bias. Asking the applicant why she had her children was not an appropriate or legally relevant question. There is no dispute that this question was asked by the officer as it was referred to in his decision and reasons.

[26]            The officer's tone and mind set can be discerned from the reasons for decision. The officer wrote:

Mrs. Sterling's and Mr. Osbourne's presentation of this case is based on an assumption that life is better in Canada than in Jamaica to such a degree that the children's move to Jamaica would cause disproportionate hardship. This is not supported by any factual evidence presented by the applicant. It is common knowledge that the poverty rate of children (0-10) in Toronto is 36%. The resulting consequences of poverty occurr [sic] in Toronto, much as they would in Kingston. In one of Mr. Barnwell's submissions, UNICEF points out that 26% of children under the age of 6 live in poverty, in the Untied States. It would be unwise, and indeed somewhat racist and Canada-centric to assume that the quality of children's lives in Kingston, Jamaica are not somewhat equivalent to that available in Canada. The applicant presents these factors as a given, unsupported by corroborating evidence. The counsel's assertion at the end of the interview that "the children's future is hopeless if they leave" is both grim and unsupported. The applicant stated that there would be a great financial hardship to provide for 10 children in Jamaica, but no submission was made to explain how raising 10 children in Canada would not be difficult.

It is noted that the applicant is currently raising six children in Canada, not ten, as her four Jamaican-born children are living with their father in Jamaica.

[27]            The officer further wrote:

I believe it is arrogance for a Canadian to simply assume that the educational system or medical facilities available in Jamaica or other countries is always and necessarily sub-standard.

. . .

During the interview, counsel was unhappy that I inquired as to why the applicant had ten children, six in Canada, even though she did not have status. I believe the client's actions indicate that any hardship accorded her due to the cost of caring for her children is not undue. It is most disturbing that counsel seeks to exploit the applicant's prodigious procreation as a basis for gaining permanent residency.

. . .

Finally, the applicant has shown a history of abusing the Canadian Immigration process. To this day, she has been unwilling to provide CIC with the original birth certificates for her Canadian-born children.   

. . .

Counsel pontificated during the interview and in subsequent conversations that refusal would amount to cruel and unusual punishment. However, when asked during the interview, "Are you telling me that anyone arriving from Jamaica with children should be allowed to stay?"; Mr. Osborne replied, "If a person only presents children without any means of support, then you have a prospect of "welfare bums". He continued on by saying this family has a support network in Canada (meaning friends and the church). He describes this case as being unique. Unfortunately, this case is all too familiar. The counsel has only succeeded in convincing me that the applicant does not have the ability to provide for her children in Canada, and that her negative behaviour (vis-à-vis CIC) should not be rewarded.

[28]            The applicant has a right to a fair hearing. It was not necessary for the officer to make comments such as "it would be unwise, and indeed somewhat racist and Canada-centric to assume...", "I believe it is arrogance...", "most disturbing...", "prodigious procreation...", and "has only succeeded in convincing me that the applicant does not have the ability to provide for her children in Canada, and that her negative behaviour (vis-à-vis CIC) should not be rewarded."

[29]            I am of the view that the comments of the officer, viewed as a whole, are sufficient to indicate a reasonable apprehension of bias. The officer's statements could lead a person to believe that he may not be able to make an impartial decision on the application.

[30]            The application for a judicial review is allowed. It is not necessary to address the second issue.

[31]            The applicant submitted the two questions for certification pursuant to section 83 of the Immigration Act, supra, that were certified in Bassan v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1084 (QL) (F.C.T.D.). These questions are:

1.          Is an immigration officer who is deciding a humanitarian and compassionate application entitled to consider the fact that the applicant knew about his uncertain immigration status when he engendered his Canadian-born child, insofar as it relates to the applicant's hardship?

2.          In light of the Supreme Court of Canada's decision in Baker v. Canada (MCI), [1999] 2 S.C.R. 817, what does it mean to be alert, alive and sensitive to the child's interests, and does this requirement shift the burden and impose a duty on the immigration officer to inquire about the child's interests, beyond what is submitted by the applicant?

[32]            I am not prepared to certify either question.

ORDER

[33]            IT IS ORDERED that the application for judicial review is allowed. The decision of the officer is set aside and the matter is referred back for reconsideration by a different officer.

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

April 30, 2002