Calgary, Alberta, October 12, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ANGELA FLORINA SIMBOAN
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The present Application concerns a Humanitarian and Compassionate (H&C) decision of an Immigration Officer with respect to citizens of Romania. A critical feature of the Applicants’ request for H&C consideration is that they have two Canadian born children whose best interests must be considered.
[2] In denying the Applicants’ request, the Immigration Officer considered the best interests of the children according to the following certain approach which the Applicants argue results in reviewable error :
H&C assessments must be alert, alive and sensitive, and not minimize, the best interests of children directly affected (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817). The presence of children does not call for a certain result (Legault v. Canada (Minister of Citizenship and Immigration) (C.A.), [2002] 4 F.C. 358), although, “absent exceptional circumstances, the child’s best interests will favour the parent’s non-removal” (Hawthorn v. Canada (Minister of Citizenship and Immigration) (C.A.), [2003] 2 F.C. 555).
The Applicants have two Canadian-born children. Brandon Christian Simboan is five years old, having been born in Saskatoon on February 13th 2000. Michelle Lorena Simboan is two years old, having been born in Saskatoon on August 12th 2003.
The best interests of the Applicants’ Canadian-born children favour approval of the Applicants’ applications.
I note that the Applicants have not indicated whether, if they are removed from Canada, they would take their children with them or leave them in Canada. When Dr. Ginsburg indicates that “if deported, Mr. and Mrs. Simboan face a difficult choice about how best to meet their children’s interests”, she implies that a choice has not yet been made. The Applicants indicate to Dr. Ginsburg that “there are no family members living in Canada with whom they could reside. Therefore, their care would fall in the purview of the Child Welfare system”. I accept Dr. Ginsburg’s evidence that if the Applicants’ children were to remain in Canada in the custody of the Child Welfare system when their parents are removed, their basic needs would be met, but that their separation from their parents would result in psychological and emotional hardships for both the Applicants and their children.
[…]
For the foregoing reasons, the best interests of Brandon and Michelle are in favour of the non-removal of the Applicants, their parents; however, the extent to which this factor militates against others is diminished by:
· Indications in the documentary evidence that there are programs to assist children with disabilities, and their families
· Indications that Romania’s education system is adequate to satisfy children’s rights under the Convention on the Rights of the Child
· Indications that economic conditions in Romania affect families indiscriminately
· Indications that economic indicators reveal that the Romanian economy is growing
· Indications that the Government of Romania has taken serious steps to address discrimination against ethnic minorities, including ethnic Hungarians
· Indications that the Government of Romania has taken serious steps to address discrimination against women
[…]
The best interests of the Applicants’ Canadian children favour approval of the Applicants’ requests; however, other considerations (set out above) militate against this being a determinative factor. The Applicants failed to present any credible or trustworthy evidence before the IRB upon which it could determine that they were Convention refugees. Although I accept that the Applicants will likely experience discrimination and harassment relating to Mrs. Simboan’s ethnic Hungarian heritage and Mr. Simboan’s Catholic faith, I find that such mistreatment would, on a balance of probabilities, amount to minimal hardship. The Applicants’ history in Canada, despite a lengthy stay, indicates that they have experienced some problems in establishing themselves here and, to the extent that they have established themselves, their establishment cannot be said to be due to circumstances beyond their control.
After carefully considering and weighing all of the above factors, I am not satisfied, on a balance of probabilities, that the Applicants’ circumstances, when considered in their totality, are such that the hardships that they would experience in having to obtain a permanent resident visa from outside of Canada would be undue and undeserved or disproportionate. There are insufficient humanitarian and compassionate grounds to warrant an exemption from requirements of the Immigration and Refugee Protection Act in this case.
[Emphasis added]
(Immigration Officer’s Decision, November 18th, 2005, Applicant’s Application Record, pp.8, 13, 17)
[3] In my opinion, in reaching the decision under review, I agree with Counsel for the Applicants that the Immigration Officer failed to meet the standard stated to be applicable in this particular case. That is, having decided that it is in the best interests of the children that their parents remain in Canada, exceptional circumstances must be found to exist in order to change this conclusion. As the Immigration Officer failed to state any such exceptional circumstances in the decision, I agree with Counsel for the Applicants that the best interests of the children prevail as found, and that a positive H&C decision was required. Since this was not the result, I find the decision is unreasonable, and, therefore, made in reviewable error.
ORDER
Accordingly, I set aside the decision under review and refer the matter back for redetermination before a different immigration officer.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1640-06
STYLE OF CAUSE: VIOREL CRISTIAN SIMBOAN
ANGELA FLORINA SIMBOAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: October 12, 2006
APPEARANCES:
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Ms. Jean Munn
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Ms. Camille Audain
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SOLICITORS OF RECORD:
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Caron & Partners, LLP Calgary, Alberta
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John H. Sims, Q.C. Deputy Attorney General of Canada
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