Date: 20030813
Docket: IMM-3462-02
Citation: 2003 FC 976
Toronto, Ontario, August 13th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
KANTILAL PATEL
KAPILABEN PATEL
GAURAVKUMAR PATEL
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Kantilal Patel, his wife Kapilaben Patel, and their son Gauravkumar Patel (the "Applicants") seek judicial review of the decision made by Immigration Officer M. Correia (the "Officer"). In that decision, dated May 31, 2002, the Officer refused the Applicants' application for entry into Canada on humanitarian and compassionate grounds (the "H & C application").
[2] The Applicants are citizens of India. On January 26, 2001, they lost their home and personal belongings in an earthquake that occurred in the Gurjarat province of India. Upon application in March 2001 to the Canadian High Commission in New Delhi, the Applicants were issued Minister's permits, allowing them to enter Canada as visitors for a period of six months. The Applicants entered Canada in April 2001, as visitors. They took up residence in Canada with a family member.
[3] In August 2001, the Applicants submitted an application for landing from within Canada on the basis of humanitarian and compassionate considerations, pursuant to section 114(2) of the former Immigration Act, R.S.C. 1985, c. I-2 (the "former Act"). The Applicants sought an exception from the usual requirement for applying for permanent residence from outside Canada.
[4] By letter dated May 31, 2002, the Officer refused the request for an exemption and refused the Applicants' H & C application. This decision was made without the Applicants being interviewed.
[5] The reasons for the Officer's decision are set out in her typewritten notes entitled "H & C Refusal Decision and Rationale" dated May 31, 2002. These notes include the following:
After reviewing all of the documents on the file regarding their loss of their home, I am sympathetic that their home was devastated. However, I am not satisfied that their home has not been recovered or that it is not feasible for it to be reconstructed. Also, the applicants have mentioned that their family in Canada financially support them. It is reasonable then to assume that these family members would help them financially if they returned to India and aid them in their recovery.
The applicants also state that they are suffering emotionally and are traumatized by their experience of the earthquake. The applicants have visited a psychiatrist and have received a psychiatric assessment that reveals that amongst other things that it, "would be a significant loss and potentially very traumatic for the son if he had to leave Canada... "could be re-traumatizing experience for him and may lead to future emotional problems in the future." I have read and reviewed Dr. Baruch's assessment and with all due respect to the analysis of the doctor and the assessment, I am not satisfied that this is determinative of humanitarian and compassionate grounds.
[6] The Applicants now challenge the Officer's decision on the grounds of a breach of procedural fairness, disregard of the evidence and improper assessment of the interests of the minor Applicant, the son Gauravkumar. It is unnecessary to review the arguments of the Applicants on the first issue because I am satisfied, on the basis of the evidence in the Tribunal Record and the reasons of the Officer, that the Applicants have demonstrated a reviewable error by the Officer relative to the minor child.
[7] The Officer's notes mention the child and the opinion of the psychiatrist who assessed him. However, there is no evidence that the Officer addressed the issue of the possible impact of a negative H & C decision, upon this child. The Officer apparently did no more than identify the existence of this child and the fact that a psychiatric assessment had been conducted on the family.
[8] In my opinion, the Officer failed to meet the standard recently enunciated by the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) where the Court said the following at paragraphs 11 and 12:
[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 reexamine the weight given to the different factors by the officers.
[12] In short, the immigration officer must be "alert, alive and sensitive" (Baker, supra, at paragraph 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, 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 (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. ...
[9] In view of this statement from the Federal Court of Appeal concerning the appropriate approach required in assessing the best interests of children, I conclude that the Officer's failure to use this approach amounts to a reviewable error. The application for judicial review is allowed and the matter is remitted to a different Officer for redetermination.
[10] Counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter remitted to a different Officer for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3462-02
STYLE OF CAUSE: KANTILAL PATEL
KAPILABEN PATEL
GAURAVKUMAR PATEL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: AUGUST 6, 2003
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
APPEARANCES: Michael Battista
For the Applicants
Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Watson Jordan Battista
Barristers and Solicitors
Toronto, Ontario
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030813
Docket: IMM-3462-02
BETWEEN:
KANTILAL PATEL
KAPILABEN PATEL
GAURAVKUMAR PATEL
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER