Date: 20020709
Docket: IMM-2695-01
Neutral citation: 2002 FCT 763
Ottawa, Ontario, Tuesday the 9th day of July 2002
PRESENT: The Honourable Madam Justice Dawson
B E T W E E N:
VERNA ROBERTSON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Ms. Robertson, the applicant, has not established any reviewable error in the decision of an immigration officer not to grant an exemption on humanitarian and compassionate grounds from the requirement that Ms. Robertson obtain an immigrant visa prior to coming to Canada.
[2] At issue is whether the immigration officer was alert, alive and sensitive to the interests of Ms. Robertson's Canadian born son, Shawn. At the time of the officer's decision Shawn was just over two and one-half years of age.
[3] The submission made to the immigration officer in support of the humanitarian and compassionate application as it touched on Shawn's interests was sparse, and was as follows:
As to the issue of the interest of the Canadian born child: One cannot minimize the possible irreparable harm that Ms. Robertson's Canadian born son would suffer, if this application were to fail and she were to be removed from these shores. To explore this argument one must look at the available options for the mother.
Those options are: 1) Leave the Canadian born child with a guardian; and 2) Take the child with her when removed from Canada
As to option 1:Sheldon [sic] has no blood relatives in Canada who would assume guardianship. His father has totally abandoned him. There is no doubt that it can be argued that he may find a Canadian or permanent resident to assume guardianship. But at what cost to his emotional stability? This would mean the permanent amputation of his relationship with his mother. The impact could be long lasting. Such a high price is too much to ask an infant to pay so as to acquire his rights.
As to option 2:If as expected, the mother opts to have the child accompany her on removal, there would be a heavy downside to the child's interest. For the foreseeable future he would not benefit from being Canadian. In his formative and teenage years he would not enjoy high quality medical attention, high standard of education, and all the benefits available to him as a Canadian citizen. No doubt, that in this scenario, when Sheldon [sic] becomes of age and is ready to assume his rightly places in Canadian society, he would start with an impediment.
[4] Option two dealt with the effect upon Shawn should he accompany his mother to Grenada. No evidence was cited, nor was any submission made to the immigration officer as to the quality of medical care and education opportunities Shawn would likely receive in Grenada.
[5] As to the officer's decision, after quoting verbatim the submission made on Shawn's interests, the immigration officer wrote as follows:
I am satisfied that option (1) would not be in the best interest of the child in regards to his relationship with his mother. As for option (2), as put forward by counsel, that the applicant's Canadian born child would start with an impediment upon a return to Canada, I have given much weight and sensitivity to his rights as a Canadian citizen, these rights would never be taken away from him.
[...]
I have weighted all elements and facts in this case, mainly the child's best interest, Ms. Robertson's establishment and upon taking into account all of the above and considering all avenues in this case, I am not satisfied that, as put together by counsel, that these twin factors are sufficient to warrant waiving the requirements of A9(1) of the Immigration Act, as such the application is refused.
[6] In Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125; [2002] F.C.J. No. 457, the Federal Court of Appeal recently considered the application of the Supreme Court's decisions in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 with respect to the Minister's responsibility to consider the best interests of a child in the context of a humanitarian and compassionate application. The Court expressed itself, at paragraph 12, as follows:
In short, the immigration officer must be "alert, alive and sensitive"(Baker, para. 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. 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. [emphasis added]
[7] The Court went on to clarify that the mere mention of a child is not sufficient, but the child's interest is a factor to be examined with care and weighed along with other relevant factors.
[8] I am satisfied that in the present case the officer did do more than merely mention Shawn. The officer's decision shows that the officer identified and defined Shawn's interests in the context of the submission made to the officer.
[9] The officer considered the option that Shawn remain in Canada and the impact that would have upon him. The officer's reference to Shawn's rights as a Canadian not being taken away was responsive to the suggestion that Shawn would not benefit from being Canadian.
[10] The only submission advanced on Shawn's behalf as to the effect of his mother being required to apply to immigrate from abroad was that Shawn would not be able to enjoy the benefits of being Canadian for the foreseeable future and on his return to Canada he would start with an impediment. The officer considered and weighed that submission. In the absence of any submission or evidence as to the contemplated effect of a move to Grenada upon Shawn, I cannot find the officer's decision to require Ms. Robertson to apply to immigrate in the normal course was unreasonable or clearly wrong.
[11] In sum, the submission before the immigration officer was that it was in Shawn's best interest for him to remain in Canada with his mother. To conclude that the immigration officer's
decision was unreasonable on the evidentiary record and submissions before the officer would be to conclude that the Minister was obliged to exercise his discretion in favour of Ms. Robertson solely because the interests of Shawn favoured his mother remaining in Canada. In Legault, the Court of Appeal made it clear that Baker did not create a prima facie presumption that children's interests should prevail.
[12] Finally, it was strenuously argued on Ms. Robertson's behalf that the officer should have asked for more information about Shawn. It was said, for example, that the officer should have asked what had been done to have Shawn's father support him, or whether someone could assume guardianship of Shawn in Canada while his mother made her application. However, in my view, this submission ignores the requirement that it is for the applicant to satisfy an immigration officer that in the applicant's circumstances the hardship of applying for an immigrant visa from abroad would be unusual and undeserved or disproportionate.
[13] The application for judicial review will therefore be dismissed.
[14] Counsel posed no question for certification.
ORDER
[15] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2695-01
STYLE OF CAUSE: VERNA ROBERTSON v. MCI
DATE OF HEARING: June 18, 2002
PLACE OF HEARING: Toronto, Ontario
REASONS FOR JUDGMENT BY: The Honourable Justice E. R. Dawson on
July 9, 2002
APPEARANCES BY:
For the Applicant: Mr. Leroy A. Crosse
For the Respondent: Mr. Marcel Lerouche
SOLICITORS OF RECORD:
For the Applicant: Mr. Leroy A. Crosse
705 Lawrence Ave. West
Suite 203
Toronto, Ontario
M6A 1B5
Tel:416-785-8338
Fax:416-785-9369.
For the Respondent: Mr. Marcel Lerouche
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel:416-952-7262
Fax:416-954-8289