Ottawa, Ontario, April 27, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by the Applicant, Rasalingam Arulraj, seeking to set aside the decision of a Visa Officer by which his request to remain in Canada on humanitarian and compassionate
(H & C) considerations was rejected.
Procedural and Factual Background
[2] The Applicant applied for permanent residence in Canada claiming spousal status from within Canada. He also sought landing here on the basis of H & C considerations. Both claims were denied by the Visa Officer in a decision rendered on June 23, 2005.
[3] Initially, the Applicant challenged the correctness of the decision denying his spousal claim, but that position was abandoned when the matter came before me for argument. The Applicant has now conceded that he cannot bring himself within the spousal class because of the failure to be examined at the time his wife and child sought landing here as refugees in 1993. It is common ground that the Applicant's wife was somewhat less than candid about her precise marital circumstances and about her residency at the time of seeking status in Canada. She did not disclose that the Applicant and she had lived together in Germany before she came to Canada. She also represented that she did not know the Applicant's whereabouts and did not want him included in her application for permanent residency. For these reasons, the Applicant was not examined at the time of his wife's entry to Canada and it is clear that this is a bar to his claim to entry now as a member of the spousal class.
[4] The Applicant contends, however, that the Visa Officer erred in refusing to grant landed status to him on H & C grounds. Specifically, he argues that the Visa Officer failed to properly consider the best interests of his two children in the exercise of the discretion conferred by section 25 Immigration and Refugee Protection Act ,S.C. 2001, c. 27 (IRPA),
[5] The background to the Applicant's H & C claim is undisputed. He and his wife were married in Germany in 1989 where they had a son (Dinesh) born in 1990. Ms. Arulraj and Dinesh arrived in Canada in 1992 as refugee claimants, ostensibly as Tamils fleeing from Sri Lanka. They were landed here in 1994 and obtained citizenship in 1997.
[6] The Applicant did visit his family in Canada on three occasions. His first trip to Canada was in 1995 at which time he sought refugee status. That application was ultimately abandoned and he returned to Germany. He came back to Canada on a visit in 2000 but again returned to Germany. On August 13, 2002, he flew to Toronto from Germany and was briefly detained because of circumstances connected to his initial entry and departure in 1995.
[7] The Applicant has continued to live in Canada with his family since August 2002 and, indeed, there is now a second child in the family, namely Harini, born in Canada on November 7, 2003. Dinesh is now sixteen years old and he attends school in Scarborough, Ontario.
[8] It is clear that the Visa Officer's H & C decision took account of the circumstances of the children but, in the end, she did not believe that their interests were sufficiently compelling to support the Applicant's claim. In order to appreciate the Visa Officer's approach to the H & C application, the notes supporting that aspect of the decision are set out below:
I have considered the interest of the children. It is noted that in 1992 PC made the conscious choise [sic] to not to come to Canada with his wife and their then 2-year old son and remained in Germany to pursue his status there. Except for a couple of short visits by the father, the child grew up with his mother without presence of his father. It is acknowledged that a closer relationship may have developed between the son and father since PC's arrival in Canada in Aug2002, there is insufficient information and evidence, however, to satisfy me that another separation which allows PC to apply in the normal manner would cause irriparable [sic] damage to the child. It is noted that the child is 15 years old, it is reasonable to expect that explained to him properly, he would understand why his father should return to Germany and apply for permanent residence from there in accordance with Immigration Law. Counsel submitted documentary evidence that PC and his wife had a daughter in Nov2003. Counsel stated in his submission that the child was very much attached to the father and separation would cause irriparable [sic] damage. However, PC and counsel failed to satisfy me with detailed information and evidence that a temporation [sic] separation of this 1 ½ years [sic] old child from her father would cause her irriparable [sic] damage. It is noted that as a citizen of Germany, PC would have no difficulty coming to visit his wife and children in Canada while waiting for the completion of his immigration processing in the normal manner. He did so in the past. He could continue to do so.
Based on the totality of PC's circumstances, I am not satisfied that there are sufficient grounds to exempt PC from the regulatory visa requirement. Accordingly, this request is refused.
Effective removal order. GTEC advised of the decision. SHA
Issue
Did the Visa Officer's decision take proper account of the best interests of the children in the exercise of her H & C discretionary powers?
Analysis
[9] The standard of review for a decision of this type is, of course, reasonableness simpliciter: see Baker v. Canada(Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 (S.C.C.) at para. 62. The application of that standard was further clarified by the Supreme Court of Canada in Suresh v. Canada(Minister of Citizenship and Immigration) (2002) 208 DLR (4th) 1, 2002 SCC 1 in the following passage at paras. 37 and 38:
37 The passages in Baker referring to the "weight" of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Sheehan v. Ontario (Criminal Injuries Compensation Board) (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).
38 This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament's task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister's task is to make a decision that conforms to Parliament's criteria and procedures as well as the Constitution. The court's task, if called upon to review the Minister's decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament's legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold her decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.
[10] In Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, [2002] F.C.J. No. 457, 2002 FCA 125, the Federal Court of Appeal considered both Baker and Suresh, above, and made the following observation at para. 11 about the proper role of a reviewing court in assessing the reasonableness of a decision of the sort made in this case:
11 In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister or his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to re-examine [page369] the weight given to the different factors by the officers.
[11] The question before me is whether the Visa Officer's decision is supported by reasons that can stand up to a somewhat probing examination: see Baker, above, at para. 63. As in Baker, a failure to give serious weight and consideration to the interests of affected children will constitute an unreasonable exercise of discretion, as will a defect in the logical process by which the officer's conclusions were drawn.
[12] The Visa Officer's decision in this case was primarily focussed on two matters - the unfavourable circumstances of the parents' immigration history in Canada and the harm that would likely be occasioned to the children by the removal of their father to Germany. The Visa Officer minimized the degree of harm to the children by assuming that the resulting family separation will only be temporary while the Applicant seeks admission to Canada from Germany in the usual way. The Visa Officer's approach to the issue of the best interests of the children is also couched in the negative and defined by the absence of "irreparable harm".
[13] Counsel for the Applicant argues that the Visa Officer's decision is unreasonable on three grounds:
1. It imposes an erroneous burden of showing irreparable harm to the children, and thereby fails to comply with the "best interests" standard recognized by Baker, above;
2. It brings into account an irrelevant and potentially mistaken assumption that the Applicant's departure from Canada will only be temporary; and
3. It visits the sins of the parents upon the children.
[14] It is apparent that the Visa Officer felt that, in considering the best interests of the two Canadian children, it was necessary to find that they would be irreparably harmed by their father's "temporary" removal from Canada. This was an incorrect and, therefore, unreasonable exercise of the officer's discretion. There is simply no legal basis for incorporating a burden of irreparable harm into the consideration of the best interests of the children. There is nothing in the applicable Guidelines (Inland Processing 5, H & C Applications (IP5 Guidelines)) to support such an approach, at least insofar as the interests of children are to be taken into account. The similar terms found in the IP5 Guidelines of "unusual", "undeserved" or "disproportionate" are used in the context of considering an applicant's H & C interests in staying in Canada and not having to apply for landing from abroad. It is an error to incorporate such threshold standards into the exercise of that aspect of the H & C discretion which requires that the interests of the children be weighed. This point is made in Hawthorne v. Canada(Minister of Citizenship and Immigration) [2003] 2 FC 555, 2002 FCA 475 (F.C.A.) at para. 9 where Justice Robert Décary said "that the concept of 'undeserved hardship' is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship".
[15] While the potential harm to affected children is a factor, it is not the only matter deserving of consideration. The benefits to the children from a continuing presence of a parent and all other relevant factors must also be weighed in the balance. This broadly focussed approach is recognized in both Baker, above, and in Hawthorne, above. In Baker, the decision-maker was directed not only to be "alert, alive and sensitive" to the interests of children but also to be attentive and sensitive to the importance of their rights. Hardship is identified only as one factor among several others demanding attention (see para. 74). In Hawthorne, Justice Décary described the decision-maker's duty as follows:
4 The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
...
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.
...
45 This conclusion is consistent with Trial Division decisions holding that officers who had focussed exclusively on hardship had not thereby discharged their duty to examine with care the best interests of the child before dismissing a parent's H & C application: Anthony v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 67 (F.C.T.D.); Bassan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 316 (F.C.T.D.); Gurunathan v. Canada (Minister of Citizenship and Immigration), (2001), 212 F.T.R. 309 (F.C.T.D.).
[16] Here the Visa Officer's decision focussed only on the issue of harm to the two children and not at all on the benefits that would accrue to them by having their father remain in Canada. In that respect, as well, this decision failed to meet the standard required for considering the best interests of these two children.
[17] In making a determination that the Applicant be removed to Germany to apply for a visa and re-admission, the Visa Officer seems to have concluded that re-entry would be a virtual certainty because she refers to the negative impact of separation on the youngest child as temporary. If the granting of a visa to the Applicant would be little more than a formality, one wonders why the officer simply did not allow him to stay in Canada. Presumably, the H & C considerations would not materially change in the meantime. On the other hand, if the Applicant was unsuccessful in obtaining a timely visa, the entire foundation of the Visa Officer's decision concerning the best interests of the children would be undermined.
[18] The Visa Officer's speculation about the outcome of a future application for re-entry to Canada as part of the consideration of the children's interests constitutes a defect in the logical process by which the officer's conclusions were drawn: see Baker, above at para. 63. While the issue of re-entry may be a factor to consider, the Visa Officer should not have proceeded on the basis that early re-entry was a certainty: see Malekzai v. Canada(Minister of Citizenship and Immigration) [2005] F.C.J. No. 1956, 2005 FC 1571 at para. 20.
[19] I have considered the Applicant's third argument that the Visa Officer's decision incorrectly conflated the issues of the conduct of the parents with the best interests of the children. While it is correct that the sins of the parents ought not to be visited on their offspring (see Mulholland v. Canada(Minister of Citizenship and Immigration) [2001] F.C.J. No. 910, 2001 FCT 597, [2001] 4 F.C. 99 at 100), it is not entirely clear that that is what happened here. The Visa Officer's analysis is somewhat unclear on this issue; but hopefully when the case is reconsidered, those issues will be kept separate and distinct from each other.
[20] In conclusion, the Visa Officer's decision was unreasonable in its treatment of the best interests of the children which necessitates a re-consideration of the Applicant's claim by a different visa officer.
[21] Neither party proposed a certified question and no question will be certified.
JUDGMENT
THIS COURT ORDERS that this application is allowed with the matter to be remitted to a different visa officer for re-consideration on the merits.
" R. L. Barnes "
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4137-05
STYLE OF CAUSE: RASALINGAM ARULRAJ
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 20, 2006
REASONS FOR JUDGMENT
DATED: April 27, 2006
APPEARANCES:
Mr. Lorne Waldman for the Applicant
Mr. John Loncar for the Respondent
SOLICITORS OF RECORD:
Waldman & Associates for the Applicant
Barristers & Solicitors
Toronto, Ontario
DEPUTY ATTORNEY GENERAL OF CANADA for the Respondent
Department of Justice
Toronto, Ontario