Date: 20030523
Docket: IMM-3616-02
Citation: 2003 FCT 643
Ottawa, Ontario, this 23rd day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
CHERYL LYNN STANDING
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] These are Reasons for an order granted in Halifax on April 30, 2003, after hearing counsel for the parties, and confirmed in writing the following day, whereby I allowed the applicant's application for judicial review and set aside a negative decision in relation to her application for an exemption from the normal requirement to apply abroad for immigration to Canada, on humanitarian and compassionate ("H & C") grounds. The applicant is a 47 year old woman, a citizen of the United States, a single mother of two children. The elder child, K., now 11 years, is also an American citizen who came to Canada in 1995 with the applicant who claims to have been fleeing her abusive ex-husband, the father of the elder girl. A second child, E., also a girl, now six years of age, was born in Canada.
[2] Following the dissolution of her marriage in the United States in 1992, the applicant claims to have discovered evidence of her ex-husband's abuse of their daughter, the elder child. Investigation of her concerns was initiated and family court proceedings were underway in the United States, but fearing that the court would reinstate her ex-husband's right to unsupervised visits with the daughter, Ms. Standing left the United States and came to Canada. In this country she married a second time and had a second daughter.
[3] After a few years in Nova Scotia, the applicant moved out of the matrimonial home with her two daughters. Proceedings for custody of the second child ultimately resulted in an application by Ms. Standing's ex-husband in the United States for custody of the elder child. Those proceedings were on appeal when the applicant made her H & C application in May 2002. She was interviewed in July 2002 and the immigration officer concerned then requested further information from the applicant regarding her situation in relation to U.S. custody law, outstanding U.S. court orders against her, and production of certain notes and psychological reports. Within four days of that request, counsel for the applicant had provided the requested information so far as that was available on hand and he advised that the balance, relating to legal circumstances in the United States, would be forthcoming as soon as he obtained it. Then, on July 16, 2002, eight days after her interview, the immigration officer concerned made a negative decision on the H & C application which was communicated by letter dated July 17, 2002. The applicant had not then had opportunity to submit all of the information requested by the immigration officer, but the outstanding materials requested were then being prepared for dispatch to the officer.
[4] In the statement of reasons provided to the applicant, the officer noted that the circumstances leading to the applicant's situation in Canada were not entirely beyond her control. The reasons made reference to the best interests of the children in these terms:
. . . I have attempted to look at the best interest of K. as well as E. K. will have to return to the United States with her mother to possibly make application from outside Canada for permanent resident status. E will likely have to remain in Canada with her father, . . . should Ms. Standing and K. return to the United States.
Issues
[5] At the hearing of this matter, counsel for the applicant raised two issues:
1. Whether there was a violation of procedural fairness; and
2. Whether the best interests of both children had been properly considered.
Analysis
[6] The applicant relies on Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, with respect to the elements of procedural fairness in consideration of a H & C application. Among the factors there considered are the legitimate expectations of the person challenging the decision concerning the procedure to be followed and the process actually followed in making the decision.
[7] In my opinion, the process here followed by the officer failed to meet the requirement of fairness in that, having asked for information from the applicant, obviously to be considered in relation to the latter's application, the officer then made a decision within a few days of the request before a reasonable opportunity to provide the information requested had been given. While the officer's decision is discretionary, discretion must be exercised on the basis of fair procedures. The officer failed to meet her obligation to ensure fair process, having held out to the applicant an opportunity to provide further information, and the applicant having legitimate expectations that she would have the opportunity to do so, and then not providing reasonable time for the requested information to be provided by Ms. Standing.
[8] This is sufficient in my view to warrant setting aside the decision.
[9] The second issued raised by the applicant relates to the comments of the officer concerning the best interests of the children involved. Those interests are referred to, but only in a cursory way and there is little or no analysis of their respective best interests and how those would be affected if the applicant, Ms. Standing, were to be removed from Canada.
[10] I make no further determination on this issue, but I do comment that in my view, Baker, supra, directs at least a reasonable effort at analyzing the interests of the children as those will be affected by removal of the applicant.
Conclusion
[11] For these reasons at the conclusion of the hearing I ordered orally, and subsequently confirmed in writing, that the application for judicial review was allowed and the decision in question was set aside. The H & C application by the applicant is to be reconsidered by a different officer, taking into account the information earlier requested of, and now provided by, the applicant.
[12] No question was proposed for certification pursuant to subsection 74(d) of the Immigration Act, R.S.C. 1985, c. I-2 and no question is certified.
"W. Andrew MacKay"
J.F.C.C.
Ottawa, Ontario
May 23, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3616-02
STYLE OF CAUSE: CHERYL LYNN STANDING
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: Wednesday, April 30, 2003
REASONS FOR ORDER OF MacKAY J.
APPEARANCES:
Lee Cohen
FOR APPLICANT
Melissa Cameron
FOR RESPONDENT
SOLICITORS OF RECORD:
Lee Cohen
P. O. Box 304, CRO
Halifax, Nova Scotia
B3J 2N7
FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR RESPONDENT