Date: 20000811
Docket: IMM-6034-99
BETWEEN:
RICARDO ALEXANDER RUSSELL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of a Senior Immigration Officer, dated November 24, 1999, wherein the said Immigration Officer decided not to recommend a waiver of the requirement to apply for landing outside of Canada as contained in subsection 9(1) of the Immigration Act1 (the "Act").
[2] The applicant immigrated to Canada on September 24, 1976 at the age of seven. He has continuously remained in Canada since that time. Between 1986 and 1996 he has been convicted on 15 separate charges, mostly related to theft and the possession of stolen credit cards.2
[3] A deportation order was issued against the applicant on September 11, 1996, pursuant to paragraph 27(1)(d) of the Act on the basis of criminal inadmissibility.
[4] The applicant has a son, Isaiah, born in April 1998. In June 1998, he married Emee Talaban, who is not Isaiah"s mother. The applicant deposes that he sees his son on weekends and paid $300 per month in child support until he lost his job. At the time of the interview considered herein the applicant was not working, and he deposed that his wife was helping with payments.3
[5] On August 8, 1998 the applicant filed an application for landing in Canada on humanitarian and compassionate grounds.
[6] On January 31, 1999 the applicant was detained for not reporting to a departure interview. The deportation order was stayed by order of McKeown J. dated February 24, 1999. The applicant was released from detention on March 9, 1999.4
[7] On August 13, 1999 the applicant was informed he should report for removal to Jamaica on August 31, 1999.
[8] At some point between the end of the interview on August 27, 1999 and November 24, 1999, when the reasons were received, the removal order was executed.5
[9] On November 24, 1999, by way of letter, the reasons for the decision were communicated to the applicant"s counsel.
[10] The officer notes that the applicant"s parents and four siblings continue to reside in Canada, and that the applicant would suffer emotionally should he be removed. She recognized the bona fide nature of the marriage which he entered into on June 6, 1998.
[11] The officer noted the close relationship between the applicant and his Canadian born child, "whom he regularly visits and financially assists", that his removal from Canada would deprive both he and the child of "an ongoing father/son relationship" and that he would suffer emotionally from being returned to Jamaica, a country with which he maintains no ties.
[12] In terms of the degree of establishment of the applicant, the officer considers his primary and secondary education, as well as his completion of a three year program at the DeVry Institute of Technology in programming, his continuous employment his voluntary work with Meals on Wheels from September 1996, and the fact that he had provided $300 per month in child support payments until June 1998.
[13] However, she concluded that the applicant"s criminal history prevails over any humanitarian and compassionate factors.
[14] The applicant argues that the respondent breached procedural fairness when she failed to provide proper reasons as to why humanitarian and compassionate grounds do not outweigh the applicant"s inadmissibility.
[15] There is no debate that reasons are thus required in this sort of case. Nor is there debate that reasons were provided. The only debate seems to centre around the question of the adequacy of those reasons.
[16] In Suresh v. Canada,6 the Court of Appeal addressed the issue of adequacy of reasons. It was argued that a memorandum of a first level immigration officer, upon which a Minister based her decision was insufficient to meet the reasons requirement in Baker.7 Robertson J.A. stated:
| In my view, there is no merit to the appellant"s argument. If, as was held in Baker, supra, the scribbled notes of an immigration officer can be deemed written reasons then so too can the memorandum submitted to the Minister in the present case. That being said, I do accept that the adequacy of those reasons is a matter which can be properly raised on a judicial review application to the extent that those reasons do not reflect consideration of relevant factors [...] [emphasis added]8 |
[17] In summary if the reasons requirement is fulfilled, the only basis on which the adequacy of the reasons can be reviewed is on the basis of whether they failed to take into account relevant criteria.
[18] In the case at bar, I am of the view that the officer looked at the relevant factors. Her typed notes show a consideration of the applicant"s family connections in Canada and lack thereof in Jamaica. She notes his relationship with his wife and child, and the financial support he gives to the child. As well, his employment and education history are noted as are his criminal convictions.
[19] She weighed those factors and determined that the one set of factors outweighed the other.
[20] Further, in Baker, the decision of the officer was found to be unreasonable because of the failure to take into account the interests of the children. L"Heureux-Dubé J. stated:
| I conclude that because the reasons for this decision do not indicate that it was made in a manner which was alive, attentive, or sensitive to the interests of Ms. Baker"s children, and did not consider them as an important factor in making the decision, it was an unreasonable exercise of the power conferred by the legislation, and must, therefore, be overturned.9 |
[21] In I.G. v. Canada (M.C.I.)10 Lemieux J. found that the best interests of the children of the applicant were not considered at all, and as such found the determination unreasonable.
[22] In Sovalbarro v. Canada (M.C.I.)11 McDonald J. (sitting as a trial judge) found that the best interests of the children had not been considered. He noted:
| [...] the Immigration Officer gave little or no weight to the interests of the applicants" children. Indeed, there is only very limited mention of the children in the immigration officer"s notes. |
[23] Unlike the above cases, in the case at bar, there is evidence that the officer considered the interests of the Canadian born child.12 She noted in her notes:
| Subject also enjoys a close relationship to his Canadian born child, whom he regularly visits and financially assists. Subject"s removal from Canada would deprive both subject and child of an ongoing father/son relationship.13 |
[24] As well, in the recommendation portion of her notes, she stated:
| Subject"s relationship and his emotional and financial assistance to his Canadian born child has also been noted. Nevertheless, it is my opinion that subject"s criminal history prevails over any humanitarian and compassionate factors. Financial assistance to his child may continue to be provided by his spouse, until such time that subject is able to provide assistance from abroad. Consequently, it is considered that disproportionate hardship would not be experienced by the Canadian born child should subject"s application for landing be refused.14 |
[25] The situation in the present case is not similar to Baker. The child does not stay with the applicant. He currently gives limited financial assistance to the child, but his wife helps out. The officer concluded that while the applicant established himself outside of Canada, there was no reason why that support could not continue. The officer was also clearly attentive to the emotional loss to the child of the relationship with his father, but specifically concluded that "disproportionate hardship" would not be experienced by the Canadian child.
[26] As such, I do not believe that the decision can be said to be unreasonable for failing to take into account the best interests of the child.
[27] For these reasons, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
August 11, 2000.
__________________2 Applicant "s Record pp. 45-47.
3 Applicant "s Record pp. 21-26, affidavit of Ricardo Alexander Russell.
4 Applicant "s Record pp. 35-39, affidavit of Marko Virotovich and p. 72, order of McKeown J. (February 24, 1999).
5 Applicant "s Record p. 88, Applicant"s Memorandum, para. 4.
7 Baker v. Canada (M.C.I.) [1999] 2 S.C.R. 817.
8 Supra note 6 para 55 at 637.
10 (November 2, 1999) IMM-2674-98 (F.C.T.D).
11 (1999) 174 F.T.R. 156 at para 12.
12 For a similar case, where the Immigration Officer did take into account the best interests of the children so that the decision was found to be reasonable, see: Mayburov v. Canada (M.C.I.) (June 8, 2000) IMM-2218-99 (F.C.T.D.)