Date: 20030123
Docket: IMM-3381-02
Neutral citation: 2003 FCT 72
Toronto, Ontario, Thursday the 23rd day of January, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
NARAINDAI SUKHAI
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant seeks judicial review of an Immigration Officer's decision dated June 27, 2002, wherein her humanitarian and compassionate application pursuant to s.114(2) of the Immigration Act was denied.
[2] The Applicant is a citizen of Guyana, with a young Canadian-born son. The basis of her request for humanitarian and compassionate relief is based primarily on the undue hardship that would result if she and her son were separated from their numerous relatives in Canada and the medical condition of her son, who suffers from asthma.
[3] On the evidence presented before the Immigration Officer, it is agreed that it cannot be in the child's best interest to be removed from Canada given the social security he enjoys and the readily available medical treatment he requires. However, the Immigration Officer refused the application on the basis that the Applicant had failed to demonstrate that she and her son would be subject to unusual, undeserved, or disproportionate hardship if required to leave Canada as follows:
I acknowledge applicant has been in Canada for 9 year and hardhip to secure employment and to resettle upon return to Guyana may exist to some extends [sic]. I am not satisfied that hardship would be disproportionate. Though it may not be the best education system in Guyana, free education is available for her children. I have considered that the cc [Canadian citizen] son is very young at age and I agree that the best interest for him is to be with his mother. Applicant also has an older child to return to in Guyana. Having considered all the information provided, applicant has not demonstrated that hardship would be unusual, undeserved or disproportionate should she be required to apply for the immigrant visa in the normal manner. (Applicant's Record, p. 14)
[4] The Applicant argues that the Immigration Officer erred in finding no undue hardship if the Applicant were to be removed from Canada, and submits that the Immigration Officer erred in the application of the decision in Baker v. Canada (Minister of Citizenship and Immigration)[1999] 2 S.C.R. 817 which requires adequate consideration of the best interests of the Canadian-born child.
[5] Thus, the issue for determination is whether the Immigration Officer was "alert, alive, and sensitive" to the child's needs (per Baker). On the evidence, I find that the Immigration Officer was alert and alive but not sensitive to the hardship the child would face.
[6] In my opinion, the following two pieces of evidence compel the most sensitive consideration:
Ms. Naraindai Sukhai and her son Ian, are both clients of the Regent Park Community Health Centre. Over the past two and a half years, Naraindai has continually demonstrated resourcefulness and determination to make a better life for herself and for her son in Canada.
Much to Naraindai's credit, she has raised an extremely well adjusted and personable young boy. Ian is thriving in school and in his community. In my opinion, it is best that Ian not be removed from his stable life and community in Canada. It is clearly in his best interest that he remain in school in Toronto and not have his world, as he knows it, turned upside down.
There is no doubt in my mind that Naraindai is a very good mother who wants the best for her son; stability, a sense of groundedness and an education. To uproot this little boy would shatter the hopes, aspiration and drams we all have for him...
Signed by Denis Michel, B.S.W., C.S.W. Community Health Worker
The above has been a patient at our facility since June, 1997. He is well known to us. He has problems with reactive airways disease and requires the use of asthma puffers to control his symptoms whenever it flares up. His mother is concerned that his illness will receive sub-optional treatment, or perhaps no care at all, if he goes to Guyana to live because of the state of the health care system there, and the cost of the medications he requires. This would certainly not be very good for him and could, if he were unlucky, even result in his death. The chances of dying of, or suffering the adverse affects of, asthma are much lower in Canada. This is a much safer place for him to grow up in terms of his asthma.
Christina Stonehouse, R.N.E.C. on behalf of Dr. Peggy Lathwell
(Applicant's Application Record, p. 41).
In my opinion, the Immigration Officer failed to "give serious weight and consideration" (per Baker) to this evidence.
[7] In my opinion, for a reasonable conclusion to be reached in the present case, more than the clinical approach of the Immigration Officer is required in assessing the best interest of the Applicant's young child.
[8] To arrive at a sensitive and compassionate evaluation of the above quoted evidence requires an empathetic understanding of the reality of the psychological and medical hardships the child would face if forced to go to Guyana if his mother's application for humanitarian and compassionate relief does not succeed. Since, in my opinion, this sort of evaluation was not completed, I find the Immigration Officer's decision to be unreasonable.
ORDER
Accordingly, I set the Immigration Officer's decision aside and refer the matter back to a different immigration officer for redetermination.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET NO.: IMM-3381-02
STYLE OF CAUSE: NARAINDAI SUKHAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, JANUARY 22, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, JANUARY 23, 2003
APPEARANCES BY: Mr. Ronald Shacter
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Mr. Ronald Shacter
Barrister & Solicitor
2200 Yonge Street
Suite 601
Toronto, Ontario.
M4S 2C6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030123
Docket: IMM-3381-02
BETWEEN:
NARAINDAI SUKHAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER