Ottawa, Ontario, April 13, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
(aka MONIKA SAHOTA)
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Ms. Thiara wants to remain in Canada to parent her Canadian born daughters. An Immigration Officer (the officer) concluded that there were insufficient humanitarian and compassionate (H&C) grounds to warrant an exemption from the requirement of applying for a visa from outside of Canada in accordance with subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Ms. Thiara seeks judicial review of the officer’s decision and contends that if the officer had considered certain international human rights instruments in the manner mandated by the IRPA, the result would have been different.
[2] Despite the articulate submissions of Ms. Thiara’s counsel, I am not persuaded that the officer erred as alleged. I am satisfied that the officer’s conclusion was reasonable and does not warrant intervention. Consequently, the application for judicial review will be dismissed.
Background
[3] Ms. Thiara is a 30-year-old citizen of India. She first immigrated to Canada as a sponsored spouse in March 1996. She claims that her marriage to Jaswinder Singh Sahota was arranged when she was seventeen years old. However, the man she knew as “Sahota” was really a refugee claimant named Rajinder Heer, who had stolen his friend’s identity and married Ms. Thiara for the purpose of attaining permanent residence status. Ms. Thiara alleges that she did not realize that she had been deceived by her new husband “until it was too late”. Despite learning of her husband’s lies, she resigned herself to the fact that she had married him and “tried to abide by his wishes”.
[4] Mr. Heer intended that his new wife would divorce “Mr. Sahota” in Canada and subsequently “meet” and marry him (Mr. Heer) under his true identity. On December 11, 1996, the British Columbia Supreme Court dismissed Ms. Thiara’s petition for divorce and declared that the marriage solemnized in India on November 16, 1994 was not between Ms. Thiara and Mr. Sahota. On October 7, 1997, Ms. Thiara was reported under paragraph 27(1)(e) of the former Immigration Act and a warrant for her arrest for an immigration inquiry was issued on March 17, 1999. Later that year, Ms. Thiara married Mr. Heer and submitted an application to sponsor him. On August 24, 2001, pursuant to paragraph 27(1)(e) of the Immigration Act, a deportation order was issued with respect to Ms. Thiara after an adjudicator found her to have been granted landing by reason of misrepresentation of a material fact. After she unsuccessfully appealed to the Immigration Appeal Division (IAD) and her application for leave and for judicial review was dismissed, Ms. Thiara was removed from Canada on January 18, 2005.
[5] While she was in Canada, Ms. Thiara and Mr. Heer had three children, all of whom are Canadian citizens. Their son lives in India with his paternal grandparents and their two daughters reside with Ms. Thiara. She and Mr. Heer separated in January 2005 and she raises the two girls, ages six and nine years, on her own. She claims that Mr. Heer continues to live illegally in Canada and does not provide any means of support.
[6] Upon deportation in January 2005, Ms. Thiara returned to her parents’ home in India. Approximately one month later, her daughters joined her. In her affidavit, she testifies that she had great difficulty securing a job in India as a single mother and was unable to find any work. She could not rely upon financial assistance from her family of limited means. Nor was she successful in her plea to her husband’s family for assistance. When she visited her in-laws in Bombay, they refused to help her or her daughters and prevented Ms. Thiara from seeing her son.
[7] In April 2005, Ms. Thiara returned to Canada, by presenting her old immigration papers to officials at the Canadian Embassy and telling them that she did not have a permanent resident card and was having difficulty returning to Canada. She concealed the fact that she had been deported and successfully obtained a returning resident permit. She left her daughters with her parents, intending to send for them once she was re-established in Canada.
[8] Upon her arrival at the Vancouver airport, Ms. Thiara attempted to make a refugee claim under a false name. Although she was discovered and detained, she was allowed to proceed with her claim for protection. She sent for her daughters and they arrived in August 2005. Since her return to Canada, Ms. Thiara has secured a job and supports herself and her children; she also sends money to her parents in India.
[9] On March 14, 2006, Ms. Thiara’s claim for refugee protection was denied. In May 2006, her application for judicial review was dismissed for failure to file an application record.
[10] Prior to her deportation to India in January 2005, Ms. Thiara and Mr. Heer filed an H&C application. In April 2006, Ms. Thiara’s lawyer sent a letter to Citizenship and Immigration Canada (CIC) advising it that she no longer resided with Mr. Heer and requesting that she be given additional time to file submissions. The extension of time was granted. Approximately one month later, Ms. Thiara’s counsel submitted extensive additional information and documentation. Counsel explained that Mr. Heer and Ms. Thiara had separated and now she was concerned only with ensuring that “the best interests of her children were attended to”. Counsel provided UNESCO and other NGO reports and statistics on the state of education, poverty and the problems faced by young girls in India. The officer was urged to have specific regard to the following international instruments when considering Ms. Thiara’s application: International Covenant on Economic, Social and Cultural Rights (ICESCR), Universal Declaration of Human Rights (UDHR), Convention on the Rights of the Child (CRC), Convention on the Elimination of all Forms of Discrimination against Women (CEAFDAW), and Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally (DSLPPWC). The excerpts from these instruments, referenced in Ms. Thiara’s H&C submissions, are attached to these reasons as “Appendix A”.
The Decision
[11] On June 29, 2006, the immigration officer denied Ms. Thiara’s application for permanent residence based on humanitarian and compassionate grounds. The officer noted that the application was based on the following factors:
- the best interests of Ms. Thiara’s children;
- Ms. Thiara’s establishment in Canada;
- Ms. Thiara’s lack of family members in India; and
- Ms. Thiara’s inability to support herself or her children in India.
[12] The officer also stated that “in considering the applicant’s H&C application, I have taken into account as a negative factor her immigration history in Canada and her dealings with CIC”. With respect to her degree of establishment, the officer noted that Ms. Thiara had lived in Canada for over ten years, had worked almost continuously since 1997 in a variety of occupations and had taken courses in Canada. The officer also noted that Ms. Thiara’s establishment in Canada was acquired as a result of her own actions in attaining permanent residence through misrepresentation.
[13] In reference to the best interests of the children, the officer considered the impact on Ms. Thiara’s daughters if they were to return to India. Although she accepted that the country conditions and the public education system in India may not be comparable to those in Canada, the officer was not satisfied that Ms. Thiara had demonstrated that her daughters would not have an opportunity for education and basic amenities in India. The officer also noted that it would be Ms. Thiara who would have to make the difficult decision between her daughters accompanying her to India or remaining in Canada. Specifically, the officer stated:
While I recognize that a separation would be difficult for the applicant and her daughters if the applicant chooses for her daughters to remain in Canada, it is nonetheless an option available to her…
While the best interests of the applicant’s children may be for the applicant to remain in Canada, after considering all of the information in the applicant’s case in its totality, I am not satisfied that this factor while significant outweighs the negative factors in the applicant’s case.
[14] In concluding her decision, the Immigration Officer determined:
After considering all the factors in the applicant’s case, those that support a finding of hardship and those that do not, and weighing these accordingly, I have decided that insufficient humanitarian and compassionate grounds exist in her case to warrant an exemption from the requirement of subsection 11(1) of the Immigration and Refugee Protection Act and from other legislative requirements associated with becoming a permanent resident of Canada.
The Issues
[15] Ms. Thiara alleges two errors on the part of the immigration officer:
1. The immigration officer erred by failing to consider or make any mention of the international human rights instruments which she was required to consider. Specifically, when taking into account the best interests of the children, the officer failed to construe and apply section 25 of IRPA in a manner that complies with the human rights instruments raised in submissions by Ms. Thiara’s counsel.
2. The immigration officer erred by making unreasonable findings with respect to the best interests of the children.
Standard of Review
[16] It is common ground that the standard of review applicable to H&C determinations is reasonableness: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker). A decision will be unreasonable only if there is no line of analysis within the given reasons which could reasonably lead the administrative decision-maker from the evidence before it to the conclusion at which it arrived; if the reasons are able to withstand a somewhat probing examination, the reviewing court must not interfere: Law Society of New Brunswick v. Ryan, [2003] S.C.J. No. 17, 2003 SCC 20 (Ryan).
Analysis
Failure to consider or make mention of the international instruments
[17] In written submissions, Ms. Thiara argues that the officer erred in law by not considering or making any mention of the international instruments specifically referred to in her H&C submissions. Although she identifies this as the officer’s most substantial error, she provides little explanation for her assertion. At the hearing, counsel explored the issue in greater depth. Therefore, I will address the main points in the oral arguments.
[18] At the outset, I should state that I do not regard the officer’s failure to specifically mention the international instruments by name to be an error of law. It is well established that the officer, in her reasons, need not cite all of the evidence before her. Unless the contrary can be shown, it is presumed that a decision-maker has weighed and considered all of the evidence: Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.) (QL); Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). The rationale underlying this proposition is to ensure that one does not elevate form over substance.
[19] As I see it, the real issue in this matter turns on whether the officer’s decision reveals a failure to consider and apply the principles contained within the cited international instruments.
[20] The focus of Ms. Thiara’s arguments is the Federal Court of Appeal’s decision in De Guzman v. Canada (Minister of Citizenship and Immigration) [2006] 3 F.C.R. 655, 262 D.L.R. (4th) 13 (F.C.A.) (De Guzman). She contends that De Guzman provides “substantial guidance” on the applicability of both binding and non-binding international human rights instruments.
[21] In De Guzman, the court considered the scope of paragraph 3(3)(f) of the IRPA, which directs that the act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. Ms. Thiara points specifically to paragraphs 87-89 of the reasons for judgment, where both binding and non-binding international instruments were considered:
¶ 87 … a legally binding international human rights instrument to which Canada is signatory is determinative of how IRPA must be interpreted and applied, in the absence of a contrary legislative intention.
¶ 88 However, paragraph 3(3)(f) also applies to non-binding instruments to which Canada is signatory. Because the only international instruments relevant to this case are legally binding on Canada, it is not necessary to decide here the effect of paragraph 3(3)(f) with respect to non-binding international human rights instruments.
¶ 89 However, in view of the considerations outlined above regarding such instruments, I am inclined to think that Parliament intended them to be used as persuasive and contextual factors in the interpretation and application of IRPA, and not as determinative. Moreover, of these non-binding instruments, not all will necessarily be equally persuasive...
[22] Thus, as Ms. Thiara submits, the content of the “best interests of a child” (as contemplated in the wording of section 25 of the IRPA) is elucidated and informed by international law. Binding international instruments such as the ICESCR, the CRC and the CEAFDAW are determinative of how the criteria of the “best interests of a child” must be interpreted and applied. Non-binding international instruments such as the UDHR and the DSLPPWC are to be used as “persuasive and contextual factors in the interpretation and application” of the “best interests of a child” factor.
[23] According to Ms. Thiara, the international instruments cited in her H&C submissions inform four general areas to be considered in an analysis of the “best interests of a child”: education, parental responsibilities, parental conduct and health. She submits that the officer failed to address, in any substantial way, all four of them.
[24] First, Ms. Thiara takes issue with the officer’s finding that while the public education system in India is not comparable to that of Canada, the officer was not satisfied that her daughters would not have “the opportunity for education and basic amenities in India”. She asserts that the officer must “do more than analyze whether there is an opportunity for education”, as the international instruments direct States Parties to do more than that. In particular, she points to Article 6 of the CRC which declares that “States Parties shall ensure to the maximum extent possible the survival and development of the child”. She also refers to Article 29, where States Parties agree that the education of a child shall be directed to the development of his or her personality, talents and abilities to the “fullest potential”. Ms. Thiara also contends that the CEAFDAW mandates that states party to the convention shall take all appropriate steps to eliminate discrimination against women in the field of education (Article 10). Although a non-binding instrument, the UDHR specifies that everyone has the right to education and parents have “a prior right” to choose the kind of education that shall be given to their children (Article 26).
[25] Second, she finds fault with the officer’s consideration of the option that the children could remain in Canada while she alone returned to India. She argues that the international instruments recognize that the best interests of the children are for them to be raised by their mother and that this should be done where she can support them and provide for their education. She points to Article 10 of the ICESCR, which recognizes the importance of providing protection to the family unit. Article 18 of the CRC provides that States Parties shall render “appropriate assistance” to parents in the performance of their child-rearing responsibilities. Ms. Thiara also refers to the non-binding DSLPPWC, which states in Article 3 that “the first priority for a child is to be cared for by his or her own parents”.
[26] Third, Ms. Thiara maintains that the officer “applied [her] actions and immigration problems against the best interests of the children”. She asserts that the international instruments direct the officer not to discredit the children’s best interests for reasons of parental conduct or improperly acquired status. Ms. Thiara refers to Article 2 of the CRC, which stipulates that states party to the convention shall respect and ensure the rights set forth in the convention, “irrespective of the child’s or his or her parent’s… national, ethnic or social origin…. birth or other status”. She further references Article 10 of the ICESCR, which states that special measure for the protection of children should be taken “without any discrimination for reasons of parentage or other conditions”.
[27] Fourth, she contends that the officer made no specific findings as to the children’s likely standard of health if they joined their mother in India. She maintains that their “overall health will be better attended to in Canada”. Ms. Thiara again points to Article 6 of the CRC and refers to Article 24 of the same convention, which provides that States Parties “recognize the right of the child to the enjoyment of the highest attainable standard of health…”.
[28] Despite Ms. Thiara’s attempts to persuade me otherwise, I am not convinced that the immigration officer failed to apply the principles contained within the cited international instruments. Contrary to Ms. Thiara’s assertion, in my view, the officer’s failure to cite the instruments in her decision does not support the inference that “this entire body of law was ignored”. The immigration officer’s reasons constitute a comprehensive and thoughtful analysis of the factors that support an exemption and those that do not. Although she did not specifically cite the international instruments submitted (and argued) by counsel, she did address their substance, as reflected by her engagement with the concerns raised in Ms. Thiara’s submissions.
[29] The comments of the majority in Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, 222 D.L.R. (4th) 265 (F.C.A.) (Hawthorne) are apposite:
¶ 5 The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
¶ 6 To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial - such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
[30] The primary difficulty with Ms. Thiara’s submissions on this first issue (which the submissions ignores) stems from the fact that the immigration officer found that the best interests of the children militated in favour of allowing Ms. Thiara to remain in Canada. She arrived at that finding after careful consideration of Ms. Thiara’s submissions, which included the international human rights instruments. Although she recognized this positive factor as “significant”, the officer ultimately concluded that it did not outweigh the other negative factors in her case, which included the applicant’s long history of misrepresentation to immigration officials. Ms. Thiara takes issue with the weight with which the officer accorded the various factors she considered in making her decision.
[31] In essence, Ms. Thiara’s position is: if the officer had construed the best interests of the children in a manner compliant with the international instruments cited in her H&C submissions, the officer would have had to conclude that Ms. Thiara’s circumstances warranted an exemption from the requirement of subsection 11(1) of the IRPA. This leads me to the Federal Court of Appeal’s observation in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (F.C.A.) (Legault):
¶ 12 … The presence of children…does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada… that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any “refoulement” of a parent illegally residing in Canada…
[32] Although De Guzman post-dates Legault, in my opinion it does not, nor did it intend to, overrule the determination in Legault. Further, regard must also be had to Baker, where Madam Justice L’Heureux-Dubé stated:
¶ 75 … 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 consideration…
[33] In reality, Ms. Thiara’s arguments are tantamount to an invitation for me to re-weigh the evidence. That is not my function. Nor it is open to me to substitute my opinion for that of the decision-maker. The “best interests of the child” is an important factor which must be taken into account and given substantial weight. However, it is not the only factor. Once it has been well identified and defined, it is for the immigration officer to determine what weight it will be given in the circumstances (Legault).
Unreasonable findings with respect to the best interests of the children
[34] Ms. Thiara also contends that the officer made various unreasonable findings with respect to the best interests of the children. She cites the following examples:
§ It was unreasonable for the officer to speculate that the children have an option to remain in Canada if Ms. Thiara returns to India. There was no evidence that her relatives were interested or able to care for the girls.
§ It was unreasonable for the officer to merely mention that the separation of Ms. Thiara from her children would be “difficult”. This was insufficient analysis.
§ It was unreasonable for the officer to weigh the problems the children could expect to face (either separated from their mother or living with her in India) by referring to Ms. Thiara’s conduct.
§ It was unreasonable for the officer to find that Ms. Thiara would face challenges in India, possibly without family support. The evidence submitted in her H&C application indicated that she received little to no financial support from her family.
§ It was unreasonable for the officer to equate Ms. Thiara’s ability to establish herself in Canada with her ability to do so in India.
§ It was unreasonable for the officer to diminish the significance of Ms. Thiara’s remaining immediate family coming to Canada as a matter of choice when there was no evidence as to why the parents and brother are immigrating to Canada.
§ It was unreasonable for the officer to assert that the educational system in India “may” not be comparable to Canada where there is clear evidence that it is not.
[35] Microscopic examination of a decision is not useful. The caution in Miranda v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 81 (T.D.) bears repeating. There, Mr. Justice Joyal stated:
For purposes of judicial review, however, it is my view that a Refugee Board decision must be interpreted as a whole. One might approach it with a pathologist's scalpel, subject it to a microscopic examination or perform a kind of semantic autopsy on particular statements found in the decision. But mostly, in my view, the decision must be analyzed in the context of the evidence itself. I believe it is an effective way to decide if the conclusions reached were reasonable or patently unreasonable.
While Justice Joyal’s admonition emerged in a review of an Immigration and Refugee Board decision, it applies equally in the context of an immigration officer’s H&C decision. See also: Lesanu v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 962 (F.C.A.) and Condo v. Canada (Attorney General) (2005), 67 W.C.B. (2d) 847 (F.C.A.) for application of the proposition in other contexts.
[36] Microscopic examination will undoubtedly yield the potential for alternative findings. However, that does not render the decision made by the immigration officer unreasonable. Intervention is not warranted where the immigration officer’s conclusions are reasonably open to him or her.
[37] There is no doubt that, as Canadian citizens, Ms. Thiara’s children may remain in Canada as of right. There was evidence before the immigration officer that Ms. Thiara’s sister, living in Canada, spent time with the children. There was also evidence that Ms. Thiara’s parents and brother were in the process of immigrating to Canada. When Ms. Thiara returned to Canada in 2005, she left her children in her parents’ care during her absence. Thus, there was evidence to support the officer’s comments regarding the children’s ability to remain in Canada. The observations were reasonable.
[38] The same can be said of the officer’s findings regarding Ms. Thiara’s ability to support herself in India. In this respect, the officer stated:
I accept that the experience of trying to resettle in India may be stressful and difficult for the applicant. I note, however, that she was able to resettle and relocate herself successfully in Canada. I recognize that finding employment in India would entail difficulty and resourcefulness for the applicant. The applicant obtained a diploma in medical science in India and has taken courses in Canada. She has worked in Canada and been self-supporting. It is reasonable to expect that her education, transferable skills and work experience would assist her in securing employment in India.
While the officer had Ms. Thiara’s affidavit before her, which stated that she had difficulty securing employment during the four months she lived in India in 2005, the officer also had Ms. Thiara’s educational and employment records to consider. The officer’s finding that Ms. Thiara’s education, transferable skills and work experience would assist her in finding a job in India was reasonably open to her.
[39] Moreover, Ms. Thiara misconstrues the issue when she takes exception to the officer’s findings regarding her conduct and the availability of family support. The officer’s analysis of the best interests of the children does not mention or include Ms. Thiara’s conduct with Canadian immigration officials. Rather, Ms. Thiara’s misrepresentation and negative history with CIC was raised at the outset of the decision where the officer noted that she took this negative factor into account, when weighing all of the factors together. In Legault, the Federal Court of Appeal explicitly stated that immigration officers are entitled to consider the past actions of an applicant in their assessment of humanitarian and compassionate grounds:
¶ 29 As to question 7,
7. Is the fact that an applicant under subsection 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those "other considerations" or "other reasons" mentioned in paragraph 75 in Baker, supra, which might outweigh the children's best interests?
I would answer that the Minister can take into account the actions, past and present, of the person that requests the exception. [emphasis mine]
[40] The officer’s comments regarding the challenges that Ms. Thiara would face in India, “possibly without family support”, were not made specifically in reference to financial support. Placed in their context, I read them as an allusion to the possibility that her parents and brother may be successful in their attempts to immigrate to Canada, thereby potentially leaving Ms. Thiara without the support that she would derive from their presence in India. The finding was not an unreasonable one.
[41] To summarize, I do not find that the officer’s failure to specifically cite the international instruments in her decision indicates a concomitant failure to consider the general principles contained within these documents. The officer’s analysis of the best interests of the children was cogent, considered and thoughtful, signifying that she was sensitive to the issues raised in the CRC, UDHR, and so on. Binding precedence stipulates that, although significant, the “best interests of a child” is not the only factor which an officer must consider and weigh in reaching her decision.
[42] Ms. Thiara’s second argument fails because the officer’s findings were reasonably open to her. A decision does not have to be perfect, for perfection is not the test. Rather, it must be able to withstand a somewhat probing examination. This decision does withstand such examination and my intervention is not warranted.
[43] The applicant seeks certification of the following question:
Is “clear legislative intent to the contrary”, referred to in De Guzman, satisfied by the existence of discretion in section 25 of the IRPA?
The respondent suggests that the question below better reflects the argument.
To what degree does paragraph 3(3)(f) of the IRPA mean than an officer exercising discretion under section 25 of the Act, must specifically take into account human rights instruments to which Canada is signatory?
[44] A certified question is a serious question of general importance which would be dispositive of an appeal. Thus, it must be a question that has been raised and determined.
[45] The first question is not appropriate for certification because it is not addressed in these reasons and would not be determinative of an appeal. Although the second question is a more accurate reflection of the arguments, it lacks specificity. Additionally, it is arguable whether the proposed question is truly determinative in the present circumstances where the immigration officer concluded that the “best interests of the child” factor militates in favour of the applicant.
[46] Notwithstanding, the submissions at the hearing were largely devoted to the issue of the purported obligation of immigration officers to refer to and analyse the impugned international human rights instruments. While I entertain doubt as to whether the proposed question would be dispositive of an appeal in this matter, it has been raised and addressed in these reasons. Therefore, I will certify a slightly reformulated question to better reflect the submissions and my determination. I will certify the following question:
Does paragraph 3(3)(f) of the IRPA require that an immigration officer, exercising discretion under section 25 of the IRPA, specifically refer to and analyse the international human rights instruments to which Canada is signatory, or is it sufficient if the officer addresses their substance?
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed. The following question is certified:
Does paragraph 3(3)(f) of the IRPA require that an immigration officer, exercising discretion under section 25 of the IRPA, specifically refer to and analyse the international human rights instruments to which Canada is signatory, or is it sufficient if the officer addresses their substance?
Judge
SCHEDULE “A”
to the
Reasons for order dated April 13, 2007
in
MONIKA THIARA
(aka MONIKA SAHOTA)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
IMM-4022-06
I International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3
Article 10
The States Parties to the present Covenant recognize that:
1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children…
3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.
Article 11
1. The States parties to the present covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
Article 13
1. The states Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.
II Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.
III Convention on the Rights of the Child, Can. T.S. 1992 No. 3
(excerpts from the preamble)
Recalling that, in the Universal Declaration of Human Rights, the United Nations has proclaimed that childhood is entitled to special care and assistance,
Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding,
Considering that the child should be fully prepared to live an individual life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity,
Article 2
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child’s parents, legal guardians, or family members.
Article 6
2. States Parties shall ensure to the maximum extent possible the survival and development of the child.
Article 18
1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.
2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall ensure the development of institutions, facilities and services for the care of children.
Article 20
1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
2. States parties shall in accordance with their national laws ensure alternative care for such a child.
Article 24
1. States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.
Article 28
1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular:
(a) Make primary education compulsory and available free to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;
(c) Make higher education accessible to all on the basis of capacity by every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children;
(e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
Article 29
1. States Parties agree that the education of the child shall be directed to:
(a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential;
(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin;
IV Convention on the Elimination of All forms of Discrimination against Women,
Can. T.S.1982 No. 31
Article 10
States Parties shall take all appropriate measures to eliminate discrimination against women in order to ensure to them equal rights with men in the field of education and in particular to ensure, on a basis of equality of men and women:
(a)The same conditions for career and vocational guidance, for access to studies and for the achievement of diplomas in educational establishments of all categories in rural as well as in urban areas; this equality shall be ensured in pre-school, general, technical, professional and higher technical education, as well as in all types of vocational training;
(b) Access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality;
(c) The elimination of any stereotyped concept of the roles of men and women at all levels and in all forms of education by encouraging coeducation and other types of education which will help to achieve this aim and, in particular, by the revision of textbooks and school programmes and the adaptation of teaching methods;
(d) The same opportunities to benefit from scholarships and other study grants;
(e) The same opportunities for access to programmes of continuing education, including adult and functional literacy programmes, particularly those aimed at reducing, at the earliest possible time, any gap in education existing between men and women;
(f) The reduction of female student drop-out rates and the organization of programmes for girls and women who have left school prematurely;
(g) The same Opportunities to participate actively in sports and physical education;
(h) Access to specific educational information to help to ensure the health and well-being of families, including information and advice on family planning.
V Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with special reference to Foster Placement and Adoption Nationally and Internationally, GA Res. 41/85, UN GAOR, (1986)
Article 1
Every State should give a high priority to family and child welfare.
Article 2
Child welfare depends upon good family welfare.
Article 3
The first priority for a child is to be cared for by his or her own parents.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4022-06
STYLE OF CAUSE: MONIKA THIARA
(aka MONIKA SAHOTA
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 28, 2007
AND ORDER: Layden-Stevenson J.
APPEARANCES:
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Mr. Sean Hern
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Ms. Sandra Weafer
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SOLICITORS OF RECORD:
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Mr. Sean Hern Farris, Vaughn, Wills & Murphy Victoria, British Columbia
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John H. Sims, Q.C. Deputy Attorney General of Canada |