Date: 20010921
Docket: IMM-4962-00
Neutral Citation: 2001 FCT 1041
Ottawa, Ontario, this 21st day of September 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
DAPHNEY HAWTHORNE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] Daphney Hawthorne came to Canada from Jamaica in 1992, following her boyfriend. She left behind their daughter, Suzette Sharon Allen. The relationship proved to be unstable, so that in 1994, after episodes of physical abuse, Ms. Hawthorne and Mr. Roy Anthony Allen parted company. Ms. Hawthorne did not forget about Suzette and from her employment income, she sent money to her parents for Suzette's upkeep. In 1999, with Mr. Allen's sponsorship, Suzette was admitted to Canada as a landed immigrant and rejoined her mother. Her father has taken a sporadic interest in her but she lives with her mother who is her sole source of support.
[2] Ms. Hawthorne had never regularized her status with Citizenship and Immigration Canada, so in January 2000, she applied for an exemption from the requirement that she apply for landing from outside Canada on humanitarian and compassionate grounds. Such an application is known in the jargon of immigration as an H & C application. While the application was pending before the Minister and some of her officials, other officials had taken an interest in having Ms. Hawthorne removed from the country. In doing so, they were doing nothing more than applying the law and carrying out their duty. But their duty and Suzette's interests were on a collision course, which resulted in a judge of this Court granting a stay of execution of the removal until the H & C application had been decided.
[3] Their troubles were not over when the H & C application was decided for it was decided against them. The notes of the Immigration officer who made the decision show how she arrived at her conclusion. The Court is asked to consider whether the officer considered Suzette's best interests in coming to the decision she did:
DECISION AND RATIONALE
ND 2 REFUSAL
After considering all the information on the file for Ms. Daphney Hawthorne I am not satisfied there is sufficient evidence to demonstrate that there are humanitarian and compassionate grounds to warrant waiving A9(1) of the Immigration Act for the following reasons:
Ms. Hawthorne, also known as the applicant, has the majority of her family living in Jamaica. Her mother and 7 siblings all live there and not in Canada. Since her close family ties are in Jamaica it would not be a major hardship to return to Jamaica. It is noted that Ms. Hawthorne has a daughter living in Canada who became a permanent resident of Canada on 2 May 1999. She had not been living with the daughter since she left Jamaica in January 1992. It was the applicant's choice to leave her daughter for eight years. Therefore, since she had not seen her daughter for that length of time one cannot consider it a major hardship if she were to be separated from her again.
Applicant states that her daughter's father, her daughter's sponsor has been charged with sexually assaulting his step daughter and that the applicant's daughter feels very uncomfortable living with her dad. There is insufficient evidence on this file to demonstrate that the father/sponsor of the daughter has been charged with any crime. Even if this statement is a true fact and her daughter does not want to live with her father, there must be alternatives to where her daughter could live, including back to Jamaica with her mother if she so chooses. Since the applicant's daughter was sponsored by her father, he is responsible for her welfare and should make arrangements for her living plans.
Applicant also states that her daughter has never lived with men and she is very uncomfortable with living with her father and she prefers to live with her mother. Again, since she is a permanent resident to Canada, her daughter can choose to live where she wishes and that includes returning to Jamaica with her mother. Only recently did her daughter come from Jamaica where they state is poverty and violence ridden. If her daughter lived there before, I do not see the hardship of living there again.
The applicant states that she was separated from her daughter but still acted as her mother since she would send her daughter money all the time. Again there is insufficient evidence to support this statement. Since she had been separated from this child for such a lengthy period I do not see how their relationship was close and how their separation now would be a major hardship for either one of them. Hence, returning the applicant to Jamaica would not be the major hardship they have expressed in their submissions.
The applicant's establishment in Canada is also being considered. It is noted that she has worked in Canada since her arrival and is recently working for Confectionately Yours since January 1996. She has not taken any courses to upgrade herself. There is no indication she has volunteered for any organization. She has not demonstrated to me that she has any attachments to any religious organizations. There is no evidence of any savings on her part. It is noted however that she owns a T.V., VCR, CD player, a microwave and an Acura Integra. Since her establishment in Canada is not of a high level it cannot be considered as a major hardship if she leaves and it cannot outweigh the fact that she lacks in any other grounds of hardship either.
In conclusion, after reviewing all of the facts and evidence on file I am not satisfied there is sufficient evidence to demonstrate that humanitarian and compassionate grounds exist to warrant waiving A9(1) of the Immigration Act for Ms. Daphney Hawthorne.
M. Correia
28/8/00
[4] The material before the Immigration officer included Suzette's statutory declaration:
STATUTORY DECLARATION
I, Suzette Sharon Allen, of the City of Toronto, in the Province of Ontario SOLEMNLY DECLARE that:
1. I arrived in Canada as a permanent resident on May 2, 1999. I was sponsored by my father, Roy Anthony Allen. Since my arrival in Canada, I have lived with my mother, Daphney Hawthorne, at 236 Clinton Street. I have not lived with my father in Canada.
2. I am a full-time student at Harbord Collegiate, in grade 10. I enjoy school a great deal and am doing very well. My mother and I are very close and my mother is very supportive of me. She pays for all my expenses and, as far as I know, does not receive any money from my father. My father occasionally gives me small amounts of money.
3. My father is married to another woman now, and has two children with him. They are my half-brothers. As well, my father has an eleven year old step-daughter. I was told by my mother that my father has been charged with sexually abusing his step-daughter. My mother said that my father told her about the charges himself. My father is out on bail and is awaiting trial. The last time I saw him, I met with him at the Dufferin Mall at the Children's Aid office, where he was meeting with his other children, under the CAS' supervision.
4. I love my father and would like to keep in touch with him. However, I do not feel that I could live with him, especially because of what he is accused of having done to his step-daughter. I have never lived with a man and would not feel comfortable for that reason. As well, I would not feel comfortable living with him because of the accusations made against him.
5. If my mother is deported to Jamaica, I do not know what I will do. I cannot live with my father, but I cannot live alone in Toronto since I am only fifteen years old. I would miss my mother desperately. I do not feel that I can return to Jamaica because I consider Canada to be my home now. As well, people in Jamaica are very poor. My grandmothers are old and do not work. There is no free high school in Jamaica and I do not think that I would ever have the opportunity to continue my studies there. When I lived in Jamaica, before coming to Canada, my mother sent me money to support myself, money that she earned at her job in Canada. She would not be able to support me if we were deported to Jamaica and I do not know what would happen to me. Also, there is a great deal of crime in Jamaica and I am scared to return there for that reason. I feel safe in Canada.
And I make this solemn declaration conscientiously believing it to be true and knowing that it is of the same force and effect as if made under oath and by virtue of the CANADA EVIDENCE ACT.
Suzette Sharon Allen
[5] The Immigration Manual, which is the policy manual for immigration officers, sets out the basis upon which H & C applications are to be considered:
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.
The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision-makers when they exercise their discretion in determining whether sufficient H & C considerations exist to warrant the requested exemption from A9(1).
Unusual and undeserved hardship
The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act or Regulations, and The hardship (of having to apply for an immigrant visa from outside of Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.
Disproportionate hardship
Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for an immigrant visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.
[6] In Baker v. Canada, [1999] 2 S.C.R. 817, the Supreme Court of Canada spoke about the care which should be taken when children's interests were implicated by an H & C application. Madame
Justice L'Heureux-Dubé wrote that:
[para 75] ...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.
[7] The applicant says that the analysis of Suzette's best interests was completely inadequate and was dismissive of her interests. Counsel points to various portions of the decision and makes the point that they either simply do not consider Suzette's best interests, referring instead to the degree of harm which she may or may not suffer, or simply minimizing her concerns, as in the matter of living with her father.
[8] It is said, on behalf of the respondent, that the officer's decision does take into the interests of the child. The failure to use the phrase "best interests of the child" does not mean that her best interests were not considered. It is said that consideration of whether Suzette would suffer hardship by either staying in Canada by herself or leaving with her mother is a sufficient inquiry into her best interests.
[9] There has yet to be a definitive statement of the meaning of the best interests of the child in the context of H & C applications. Nor has the Court received any guidance on the question of how one balances the best interests of a child against the deficiencies of the child's parent. If there is a calculus capable of resolving those unlike elements, it remains undiscovered and unpublished. So, as my colleague Nadon J. pointed out in Legault v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 568, judges do the best they can with what they have to work with. For the purposes of this application however, I find that whatever the test of best interests of the child might be, it is not the test of unusual, undeserved or disproportionate hardship which the Minister's delegate applied in this case, drawing on the guidelines in the Immigration Manual. The test in the guidelines is not hardship but unusual, undeserved or disproportionate hardship, which involves an assessment of the relationship of the hardship to be suffered to the conduct of the applicant. Hardship is undue, for example, if it is not justified by a person's conduct. So it is for unusual or disproportionate hardship. Given that we are dealing with children whose conduct is not in issue, the test is inappropriate.
[10] It is clear that the Minister's delegate focussed on the issue of hardship to Suzette in assessing the question of her best interests:
It is noted that Ms. Hawthorne has a daughter living in Canada who became a permanent resident of Canada on 2 May 1999. She had not been living with the daughter since she left Jamaica in January 1992. It was the applicant's choice to leave her daughter for eight years. Therefore, since she had not seen her daughter for that length of time one cannot consider it a major hardship if she were to be separated from her again.
[11] This passage focuses on the hardship to Ms. Hawthorne if she is required to leave Canada to apply for landing. It does not address how Suzette's interests will be affected by her mother's departure from Canada.
Only recently did her daughter come from Jamaica where they state is poverty and violence ridden. If her daughter lived there before, I do not see the hardship of living there again.
[12] This passage deals only with the hardship involved in returning to Jamaica. It does not address the impact of such a return upon Suzette's interests.
Since she had been separated from this child for such a lengthy period I do not see how their relationship was close and how their separation now would be a major hardship for either one of them.
[13] Once again, the only consideration is hardship, not Suzette's best interests.
[14] I therefore find that the officer conducting the assessment of the humanitarian and compassionate factors which might warrant an exemption from the requirement of applying for landing from abroad did not give adequate consideration to the interests of Ms. Hawthorne's daughter, Suzette, when she applied the test of unusual, undeserved or disproportionate hardship to assess the question of Suzette's best interests.
[15] Counsel for the Minister has proposed a number of questions for certification as follows:
1. Were the findings of the Officer manifestly unreasonable and incompatible with Baker v. Canada (M.C.I.), [1992] 2 S.C.R. 817, and in particular:
a) Did the Officer minimize the interests of the children and fail to apply the liberal standard required by the Supreme Court?
b) Did the Officer err by analysing the impact of the Applicant's removal on her child in terms of whether undue hardship would be caused to the child?
2. Did Baker v. Canada (M.C.I.), [1992] 2 S.C.R. 817 create a prima facie presumption that the children's best interest should prevail, subject only to the gravest countervailing grounds?
3. When the Court sits in judicial review of a decision under subsection 114(2) of the Immigration Act, should it not only verify whether the decision-maker considered the effects of a refusal on the applicant's children, but go further and assess whether the consideration is adequate?
4. In light of the Supreme Court's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, what does proper consideration of the children's interests mean? What does it mean, in fact, to be alert, alive and sensitive to the children's interests?
[16] The questions proposed are too broad to be determinative of this matter. Given that the issue in this case is the application of the standard proposed for humanitarian and compassionate exemptions to the best interests of the children, I am prepared to certify the following question:
Is the requirement that the best interests of children be considered when disposing of an application for an exemption pursuant to subsection 114(2), as set out in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship?
ORDER
The application for judicial review is allowed. The decision of Ms. Correia dismissing the applicant's application for an exemption pursuant to subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2, is quashed and the matter is remitted to the Minister of Citizenship and Immigration or her delegate for reconsideration.
"J.D. Denis Pelletier"
Judge