A-595-01
2002 FCA 475
The Minister of Citizenship and Immigration (Appellant)
v.
Daphney Hawthorne (Respondent)
and
The Canada Foundation for Children, Youth and the Law (Intervener)
Indexed as: Hawthorne v. Canada (Minister of Citizenship and Immigration) (C.A.)
Court of Appeal, Décary, Rothstein and Evans JJ.A.-- Toronto, October 29; Ottawa, November 28, 2002.
Citizenship and Immigration -- Status in Canada -- Permanent Residents -- Humanitarian and Compassionate Considerations -- Minister appealing decision of F.C.T.D. Judge immigration officer erred in refusing landing from within Canada -- Question certified: whether is best interests of child requirement established by S.C.C. in Baker satisfied by considering if parent's removal will subject child to unusual, undeserved, disproportionate hardship -- Respondent, mother of girl then eight, came to Canada from Jamaica in 1992 to live with Allen, girl's father -- Soon left him as abusive -- Girl remaining with relatives in Jamaica -- Respondent kept in touch, provided financial support -- In 1999 Allen sponsored girl's admission, provided minimal support after arrival -- Respondent gainfully employed, not on social assistance -- Obtained stay of deportation order on ground removal causing child irreparable harm -- Girl scared to live with Allen in belief had been charged with molesting step-daughter -- Officer finding insufficient grounds to waive statutory requirement -- Given eight-year separation, mother-daughter relationship not close -- Separation now not major hardship for either -- F.C.T.D. Judge held Baker requirement not met by officer -- Subsequent decisions in Legault, Suresh considered -- Officer's inquiry should be predicated on premise absent exceptional circumstances, child's best interests favour parent's non-removal -- Officer must carefully review file, determine likely degree of hardship, weigh that with public policy considerations -- Immigration Manual: Inland Processing defining "undeserved hardship" but innocent children rarely deserving of hardship -- Officer not alert, sensitive to child's best interests in summarily rejecting concerns, ignoring financial implications of mother's removal -- Per Evans J.A. (concurring in result): officer erred in concentrating on past events -- In proper best interests analysis, girl's current life as permanent resident relevant point of comparison -- Given evidence, officer should have inquired further whether girl's fear of Allen justified -- Rigorous process requirements for s. 114(2) applications appropriate as vital interests of vulnerable at stake, limited judicial review.
This was an appeal by the Minister from a decision of Pelletier J. setting aside an immigration officer's refusal to permit the respondent to seek permanent resident status from within Canada. The officer had not been satisfied that there were humanitarian and compassionate (H & C) grounds for waiving the statutory requirement that such applications be made from outside Canada. Upon judicial review it was argued that the officer had exercised her discretion unreasonably by giving inadequate consideration to the best interests of respondent's daughter, a permanent resident. The Trial Division Judge agreed and granted the application. The Judge certified for app eal the question as to whether the best interests of children requirement established by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration) is satisfied by considering whether the parent's removal will subject the chil d to unusual, undeserved or disproportionate hardship.
The respondent, a Jamaican citizen, came to Canada in 1992 to live with one Allen, the father to her daughter, Suzette, then eight years old. The girl was left in Jamaica in the care of relatives but respondent kept in touch and sent money for the child's support. After a short time, respondent left Allen because of physical and emotional abuse. In 1999, Allen sponsored Suzette's admission as a permanent resident but, since her arrival in Canada, the girl has resided with and been supported by respondent. Allen has had sporadic contact with the child but has made minimal contributions to Suzette's maintenance. Although lacking status, respondent has maintained gainful employment and not re lied upon social assistance. Hoping to better her precarious immigration situation, she made an H & C application at a time when her removal was under consideration. In fact, her deportation was ordered but she secured a stay on the ground that her removal would cause the child irreparable harm in that respondent was Suzette's only source of financial support. While there was a possibility that she could live with her father, she wished not to do so as she understood that Allen had been charged with sexuall y abusing a step-daughter. Suzette was then 15 and a grade 10 student. She also did not wish to return to Jamaica, a country where there is a high level of unemployment, poverty and violent crime. Even so, the immigration officer found that there were insufficient grounds to waive the statutory requirement. The officer took into account the fact that most of respondent's relatives lived in Jamaica and noted that, for some eight years, respondent had lived apart from Suzette. From that, the officer concluded that their relationship could not have been close and that their separation now would not be a major hardship for either of them. Pelletier J. granted an application for judicial review on the ground that, in considering only the degree of hardship to which respondent's removal would expose her daughter, the officer had not followed the Baker requirement to consider the best interests of the child as an important factor in exercising her H & C discretion.
Held, the appeal should be dismissed.
Per Décary J.A. (Rothstein J.A. concurring): While it was held in Baker that the best interests of the child is an important factor and must be given substantial weight, the decision of this Court in Legault was that the best interests of the child were not determinative of the removal issue. The officer's inquiry is not carried out in a vacuum and is predicated on the premise that, absent exceptional circumstances, the child's best interests will favour the parent's non-removal. In addition to this implicit premise, the officer has a file, the contents of which must be carefully examined, wherein reasons are alleged as to why the parent's removal would not be in the best interests of the child. The officer has to determine the likely degree of hardship and to weigh th at with other factors, including public policy considerations, that militate for or against removal. But when this Court, in Legault, said that the best interests of the child had to be "well identified and defined", it did not mean to impose formal requir ements upon officers in describing and analyzing the relevant facts and factors. If the officer has reasonably balanced the factors, it is not for the Court to consider whether the damage to the child's interests is disproportionate to the public benefit r esulting from the decision. "Hardship" is not a term of art. The definition of "unusual and undeserved hardship" found in the Immigration Manual: Inland Processing is but an attempt to provide guidance in the exercise of an officer's discretion. Indeed, th e concept of "undeserved hardship" is inappropriate in relation to innocent children who are rarely, if ever, deserving of hardship. That being said, the officer had not been alert and sensitive to the child's best interests in summarily rejecting her conc erns and ignoring the financial implications for her of respondent's removal. The answer to the certified question was as follows: the requirement that the best interests of the child be considered may be satisfied, depending on the circumstances of each c ase, by considering the degree of hardship to which the removal of a parent exposes the child.
Per Evans J.A. (concurring in the result): The submission of counsel for the intervener, Canadian Foundation for Children, Youth and the Law, was that the Court had to consider whether the officer had struck an unreasonable balance between the child's interests and the public interest in the due administration of the law by removing those who entered Canada unlawfully or have overstayed. Such an inquiry would inv olve a consideration as to whether Suresh has modified Baker by removing from the scope of review the substantive unreasonableness of the decision to deny the H & C application. The Court could, however, decide this appeal without having to deal with the question whether an inquiry into the substantive unreasonableness of the exercise of discretion, absent one of the nominate categories of ultra vires or a Charter right, is totally precluded by Suresh.
The argument of counsel for the Minister, that Pelletier J. erred in law by requiring the officer to look beyond the degree of hardship that Suzette would suffer were respondent removed, was not persuasive. The danger of subsuming a consideration of the child's best interests in an assessment of the degree of hardship resulting from a negative decision is illustrated by the officer's conclusions with respect to two representations made to her. First, it was submitted that respondent's removal would be detri mental to Suzette's best interests as she would feel her only choice was to go back to Jamaica. The officer did not consider this a major hardship, Suzette having lived in Jamaica most of her life. A proper best interests analysis would make the girl's pre sent life as a permanent Canadian resident the relevant point of comparison, rather than her previous residence in Jamaica. Second, the officer rejected the suggestion it would be detrimental to Suzette to be deprived of her mother's presence given the mat erial and emotional support the girl is now receiving from respondent. The officer stressed the fact that Suzette had lived apart from her mother for seven years prior to coming to Canada in 1999. Again, the relevant comparison is with the role respondent now plays in her daughter's life and the impact on Suzette's best interests of having to remain in Canada without her mother and the grandmothers who had looked after her in Jamaica.
Furthermore, it was wrong for the officer to have summarily dismissed Suzette's fear of going to live with her father, believing he had been charged with a step-daughter's sexual abuse. To discharge the duty of fairness owed by officers deciding H & C applications, she should have made further inquiries, the allegation not bei ng implausible and there being evidence that a children's aid society had concerns regarding Allen's fitness as a parent. The officer ought not to have entirely relied on the lack of proof that Allen had been charged with such an offence. Finally, there wa s no rational relationship between the officer's observation that Allen, as Suzette's sponsor, was responsible for her support and the girl's fears of living with him.
The officer having fallen into error before she weighed the H & C factors against law enforcement considerations, the statement in Suresh that Baker does not permit the Court to weigh the various factors was inapplicable herein.
Rigorous process requirements were justified since, in a subsection 114(2) application, vital interests of the vulnerable are at stake and substantive judicial review opportunities are limited.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
| Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3, Arts. 3, 12. |
| Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 83(1) (as am. idem, s. 73), 114(2) (as am. idem, s. 102). |
cases judicially considered
followed:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
applied:
Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; (2002), 212 D.L.R. (4th) 139; 20 Imm. L.R. (3d) 119; 288 N.R. 174 (C.A.); leave to appeal to S.C.C. refused, 21/11/02; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; (1997), 144 D.L.R. (4th) 1; 71 C.P.R. (3d) 417; 209 N.R. 20; affg (1995), 127 D.L.R. (4th) 329; 21 B.L.R. (2d) 68; 63 C.P.R. (3d) 67; 185 N.R. 291 (F.C.A.).
considered:
Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; (2000), 18 Admin. L.R. (3d) 159; 5 Imm. L.R. (3d) 1; 252 N.R. 1 (C.A.).
referred to:
Cilbert v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 90; 12 Imm. L.R. (3d) 182 (F.C.T.D.); Russell v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 97; 7 Imm. L.R. (3d) 173 (F.C.T.D.); Koud v. Canada (Minister of Citizenship and Immigration) (2001), 18 Imm. L.R. (3d) 280 (F.C.T.D.); P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; (1993), 108 D.L.R. (4th) 287; 18 C.R.R. (2d) 1; 159 N.R. 241; 58 Q.A.C. 1; 49 R.F.L. (3d) 317; Young v. Young, [1993] 4 S.C.R. 3; [1993] 8 W.W.R. 513; (1993), 108 D.L.R. (4th) 193; 34 B.C.A.C. 161; 84 B.C.L.R. (2d) 1; 18 C.R.R. (2d) 41; 160 N.R. 1; 49 R.F.L. (3d) 117; 56 W.A.C. 161; Anthony v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 67 (F.C.T.D.); Bassan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 316 (F.C.T.D.); Gurunathan v. Canada (Minister of Citizenship and Immigration) (2001), 212 F.T.R. 309; 17 Imm. L.R. (3d) 247 (F.C.T.D.).
authors cited
Citizenship and Immigration Canada. Immigration Manual: Inland Processing (IP). Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate (H&C) Grounds. Ottawa: Citizenship and Immigration, loose-leaf.
APPEAL from the Trial Division decision (Hawthorne v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1041; [2001] F.C.J. No. 1441 (T.D.) (QL)) setting aside an immigration officer's denial of an application, on humanitarian and compassionate grounds, for permanent resident status from within Canada. Appeal dismissed.
appearances:
David W. Tyndale for appellant.
Mark Rosenblatt for respondent.
Cheryl L. Milne and Naomi A. Johnson for intervener.
solicitors of record:
Deputy Attorney General of Canada for appellant.
Mark Rosenblatt, Toronto, for respondent.
Canadian Foundation for Children, Youth and the Law, Toronto, for intervener.
The following are the reasons for judgment rendered in English by
[1]Décary J.A.: I agree with my brother Evans that this appeal should be dismissed, but my conclusion is based on grounds different from his. For the relevant facts and legislative framework, I refer to his reasons.
[2]First, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.) (leave to appeal denied by the Supreme Court of Canada, November 21, 2002, SCC 29221), stand for the proposition that the best interests of the child is an important factor that must be given substantial weight. Legault stands for the further proposition that the best interests of the child is not determinative of the issue of removal to be decided by the Minister. To the extent, therefore, that they could lead to the impression that the "best interests of the child" factor should be given some form of priority or preponderance, the words "primary consideration" found in Article 3, paragraph 1 of the Convention on the Rights of the Child [November 20, 1989, [1992] Can. T.S. No. 3] (see paragraph 33 of my colleague's reasons) should be read with caution. (I am assuming, solely for the sake of this discussion, that removal of a parent is an "action concerning children" within the meaning of Article 3, paragraph 1 of the Convention, which Convention, as is noted by my colleague, has been ratified by Canada but has not been enacted into domestic law.)
[3]Second, I agree with counsel for the Minister that to insist as a matter of law that an immigration officer spell out expressly that she had considered the best interests of the child before examining the degree of hardship to which the child would be subject, is to elevate form above substance.
[4]The "best interests of the child" are determined by considering the benefit to the child of the parent's non-removal from Canada as well as the hardship the child would suffer from either her parent's removal from Canada or her own voluntary departure should she wish to accompany her parent abroad. Such benefits and hardship are two sides of the same coin, the coin being the best interests of the child.
[5]The officer does not assess the best interests of the child in a vacuum. The officer may be presumed to know that living in Canada can offer a child many opportunities and that, as a general rule, a child living in Canada with her parent is better off than a child living in Canada without her parent. The inquiry of the officer, it seems to me, is predicated on the premise, which need not be stated in the reasons, that the officer will end up finding, absent exceptional circumstances, that the "child's best interests" factor will play in favour of the non-removal of the parent. In addition to what I would describe as this implicit premise, the officer has before her a file wherein specific reasons are alleged by a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. These specific reasons must, of course, be carefully examined by the officer.
[6]To simply require that the officer determine whether the child's best interests favour non-removal is somewhat artificial--such a finding will be a given in all but a very few, unusual cases. For all practical purposes, the officer's task is to determine, in the circumstances of each case, the likely degree of hardship to the child caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favour of or against the removal of the parent.
[7]The administrative burden facing officers in humanitarian and compassionate assessments--as is illustrated by section 8.5 of Chapter IP 5 of the Immigration Manual: Inland Processing (IP) reproduced at paragraph 30 of my colleague's reasons-- is demanding enough without adding to it formal requirements as to the words to be used or the approach to be followed in their description and analysis of the relevant facts and factors. When this Court in Legault stated at paragraph 12 that the best interests of the child must be "well identified and defined", it was not attempting to impose a magic formula to be used by immigration officers in the exercise of their discretion.
[8]Third, I reject the argument submitted by the intervener, the Canadian Foundation for Children, Youth and the Law, that even if a reasonable balancing of the various factors has been made by the officer, the reviewing Court must go a step further and consider whether the damage to the child's interests is disproportionate to the public benefit produced by the decision. To require such a further step would be to reintroduce through the back door the principle confirmed in Legault that the best interests of the child is an important factor, but not a determinative one.
[9]Fourth, "hardship" is not a term of art. As noted in section 6.1 of Chapter IP 5 of the Immigration Manual (reproduced at paragraph 30 of my colleague's reasons), the administrative definition of "unusual and undeserved hardship" and "disproportionate hardship" in the Manual are "not meant as `hard and fast' rules" and are, rather, "an attempt to provide guidance to decision makers when they exercise their discretion". It is obvious, for example, that the concept of "undeserved hardship" is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship.
[10]That being said, I agree with my colleague that on the facts of this case, the officer was not "alert, alive and sensitive" to the child's best interests, more particularly in summarily dismissing the child's own concerns and ignoring, for all practical purposes, the financial implications for the child of her mother's removal. The matter was properly sent back by Pelletier J. to the Minister for reconsideration.
[11]I would dismiss the appeal and answer the certified question as follows:
| Q.: Is the requirement that the best interests of children be considered when disposing of an application for an exemption pursuant to subsection 114(2), as set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship? |
| A.: The requirement that the best interests of the child be considered may be satisfied, depending on the circumstances of each case, by considering the degree of hardship to which the removal of a parent exposes the child. |
Rothstein J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
Evans J.A. (concurring in the result):
A. INTRODUCTION
[12]This is an appeal by the Minister of Citizenship and Immigration from a decision of Pelletier J. (as he then was) in which he set aside the refusal of an immigration officer to permit Daphney Hawthorne to apply for permanent residence status from within Canada. The officer was not satisfied that the material before her demonstrated that humanitarian and compassionate grounds (H & C) existed that warranted waiving the normal statutory requirement that an application for permanent residence must be made from outside Canada.
[13]Ms. Hawthorne made an application for judicial review of this refusal. Counsel argued that the officer had exercised her discretion unreasonably by giving inadequate consideration to the best interests of Ms. Hawthorne's daughter, Suzette Sharon Allen, a permanent resident of Canada since May 1999. Pelletier J. concluded that the officer had erred as alleged, and granted the application for judicial review: Hawthorne v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1041; [2001] F.C.J. No. 1441 (T.D.) (QL). He certified the following question for appeal [at paragraph 16] pursuant to subsection 83(1) of the Immigration Act, R.S.C., 1985, c. I-2 [as am. by S.C. 1992, c. 49, s. 73]:
Is the requirement that the best interests of children be considered when disposing of an application for an exemption pursuant to subsection 114(2), as set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship?
[14]The question certified by Pelletier J. has become even more apt as a result of the significant judicial activity that has since occurred. First, in Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 208 D.L.R. (4th) 1, at paragraphs 35-38, the Supreme Court of Canada revisited the aspect of Baker dealing with the permissible scope of judicial review of the exercise of administrative discretion, including that conferred by subsection 114(2) [as am. idem, s. 102]. In particular, the Court stated, Baker was not to be read as authorizing a court, under the guise of review for unreasonableness, to reweigh the factors that the officer had taken into account when determining an H & C application.
[15]Second, in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 538 (C.A.), this Court established a broad framework for reviewing the reasonableness of H & C decisions in light of the guidance provided by Suresh on the proper scope of Baker. Third, the Legault decision has itself been considered in at least seven applications for the judicial review of H & C decisions and three stay applications.
B. FACTUAL BACKGROUND
[16]Ms. Hawthorne, a citizen of Jamaica, came to Canada in 1992 in order to live with Roy Anthony Allen, the father of her daughter, Suzette, then aged eight. Suzette was left in Jamaica in the care of her grandmothers. Although separated from her daughter, Ms. Hawthorne sent money to Jamaica for her support and regularly communicated with her by letter and telephone.
[17]Ms. Hawthorne's relationship with Mr. Allen in Canada was stormy and brief. She left him in 1994 after being physically and emotionally abused. Mr. Allen subsequently married another woman, the mother of two children; Mr. Allen and his wife also have had children together.
[18]In 1999, Mr. Allen sponsored Suzette's admission to Canada as a permanent resident. Since her arrival, Suzette has lived with and been supported by her mother, with whom she has developed a very close relationship. Contact with her father has been sporadic and he has contributed next to nothing to her material well-being.
[19]Unlike her daughter, Ms. Hawthorne has no legal immigration status in Canada. Nonetheless, she has been employed since shortly after she arrived and has been in the same employment since 1996. She has been able to support herself and Suzette without recourse to social assistance.
[20]In an attempt to regularize her precarious immigration position, Ms. Hawthorne made an H & C application in January 2000. At the same time, her removal from Canada was under active consideration by Citizenship and Immigration Canada because she is living here in breach of the law regulating immigration. She was ordered deported, but obtained a stay of her removal pending the determination of her H & C application, on the ground that, since Ms. Hawthorne was Suzette's only source of financial support, her removal would cause irreparable harm: Hawthorne v. Canada (Minister of Citizenship and Immigration) (IMM-3671-00; July 13, 2000) (F.C.T.D.).
[21]I should note at this point that, in many cases, the outcome of a subsection 114(2) application determines not only whether an applicant may apply for permanent residence from within Canada, but also whether she will be granted permanent residence status at all. Thus, if Ms. Hawthorne's H & C application is unsuccessful, she will almost certainly be removed from Canada. If she were then to apply from outside Canada for a visa to enter as a permanent resident in the independent category, a visa would likely be refused because she lacks the educational qualifications and job skills required to meet the selection criteria. However, if her H & C application succeeds, she will be granted permanent residence status in Canada on satisfying health and security requirements.
[22]In written representations to the officer handling the H & C application, counsel described Ms. Hawthorne's success in establishing herself in Canada, despite the difficult circumstances in which she found herself. Counsel also emphasized that to refuse Ms. Hawthorne's application would be detrimental to the best interests of Suzette, who was then 15 years old and a full-time grade 10 student at Harbord Collegiate Institute in Toronto.
[23]If Ms. Hawthorne were deported, Suzette stated that she did not know what she would do. She would be faced with the unenviable choice of either accompanying her mother to Jamaica, or remaining in Canada without the benefit of the material and emotional support, and encouragement that her mother has provided since she arrived as a permanent resident.
[24]If Suzette decided to remain, she might be able to live with her father. However, she stated in a statutory declaration that she would not want to do this because she had been told by her mother that her father, with whom she had never lived, had been charged with sexually abusing a step-daughter. Suzette had no other relatives in Canada with whom she could live and was too young to live on her own.
[25]Nor would it be a panacea for Suzette to accompany her mother to Jamaica. She would be giving up a bright future in Canada to go to a country that is plagued by violent crime and poverty. Country conditions were fully documented in the submissions to the immigration officer. Given the high levels of unemployment in Jamaica, Ms. Hawthorne might well not be able to support Suzette or to pay high school fees for her. Not surprisingly, Suzette expressed fear at the prospect of having to return to that milieu.
C. DECISION OF THE IMMIGRATION OFFICER
[26]In order to provide the full flavour of the immigration officer's consideration of Suzette's best interests, I reproduce below nearly all of her letter to Ms. Hawthorne, dated February 8, 2000, in which she communicated the reasoned decision that is under review in these proceedings.
DECISION AND RATIONALE
After considering all the information on the file for Ms. Daphney Hawthorne I am not satisfied there is sufficient evidence to demonstrate that there are humanitarian and compassionate grounds to warrant waiving A9(1) of the Immigration Act for the following reasons:
Ms. Hawthorne, also known as the applicant, has the majority of her family living in Jamaica. Her mother and 7 siblings all live there and not in Canada. Since her close family ties are in Jamaica it would not be a major hardship to return to Jamaica. It is noted that Ms. Hawthorne has a daughter living in Canada who became a permanent resident of Canada on 2 May 1999. She had not been living with the daughter since she left Jamaica in January 1992. It was the applicant's choice to leave her daughter for eight years. Therefore, since she had not seen her daughter for that length of time one cannot consider it a major hardship if she were to be separated from her again.
Applicant states that her daughter's father, her daughter's sponsor, has been charged with sexually assaulting his step daughter and that the applicant's daughter feels very uncomfortable living with her dad. There is insufficient evidence on this file to demonstrate that the father/sponsor of the daughter has been charged with any crime. Even if this statement is a true fact and her daughter does not want to live with her father, there must be alternatives to where her daughter could live, including back to Jamaica with her mother if she so chooses. Since the applicant's daughter was sponsored by her father, he is responsible for her welfare and should make arrangements for her living plans.
Applicant also states that her daughter has never lived with men and she is very uncomfortable with living with her father and she prefers to live with her mother. Again, since he is a permanent resident to Canada, her daughter can choose to live where she wishes and that includes returning to Jamaica with her mother. Only recently did her daughter come from Jamaica [which] they state is poverty and violence ridden. If her daughter lived there before, I do not see the hardship of living there again.
The applicant states that she was separated from her daughter but still acted as her mother since she would send her daughter money all the time. Again there is insufficient evidence to support this statement. Since she had been separated from this child for such a lengthy period I do not see how their relationship was close and how their separation now would be a major hardship for either one of them. Hence, returning the applicant to Jamaica would not be the major hardship they have expressed in their submissions.
. . .
In conclusion, after reviewing all of the facts and evidence on file I am not satisfied there is sufficient evidence to demonstrate that humanitarian and compassionate grounds exist to warrant waiving A9(1) of the Immigration Act for Ms. Daphney Hawthorne.
D. DECISION OF THE TRIAL DIVISION
[27]The principal ground on which Pelletier J. granted the application for judicial review was that the officer's letter did not disclose that the decision maker had complied with the direction of the Supreme Court of Canada in Baker to give adequate consideration to the best interests of the child. Instead of regarding Suzette's best interests as an important factor in the exercise of her H & C discretion, the officer considered only the degree of hardship to which Ms. Hawthorne's removal would expose her daughter.
[28]Pelletier J. attributed the officer's use of "major hardship" as the relevant test for determining the existence of humanitarian and compassionate grounds to the references to "unusual, undeserved or disproportionate hardship" in the sections of the guidelines published in the Immigration Manual dealing with H & C applications.
E. THE LEGISLATIVE FRAMEWORK
[29]The following provisions of the Immigration Act, R.S.C., 1985, c. I-2, are relevant to this appeal [subsection 9(1) (as am. by S.C. 1992, c. 49, s. 4)]:
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
. . .
114. (1) . . .
(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations.
[30]The Immigration Manual, published by Citizenship and Immigration Canada, includes instructions issued by the Minister to immigration officers in order to structure the exercise of their statutory discretion under subsection 114(2) and to advise potential applicants of what they may have to prove in order to obtain a favourable decision on an H & C application. Although the Manual is not a legislative document in the formal sense, its provisions form a sufficiently important part of the normative framework within which H & C decisions are made that the provisions most relevant to this appeal can usefully be reproduced here.
Chapter IP 5: Immigrant Applications in Canada Made on Humanitarian or Compassionate Grounds
6.1 What is meant by "humanitarian and compassionate grounds"
Applicants making an application under R2.1 are requesting processing in Canada due to compassionate or humanitarian considerations. Subsection R2.1 provides the flexibility to approve deserving cases for processing within Canada, the circumstances of which were not anticipated in the legislation.
Applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada in the normal manner would be (i) unusual and undeserved or (ii) disproportionate. Applicants may present whatever facts they feel are relevant.
The following definitions are not meant as "hard and fast" rules; rather, they are an attempt to provide guidance to decision makers when they exercise their discretion in determining whether sufficient H&C considerations exist to warrant the requested exemption from A9(1).
Unusual and undeserved hardship
The hardship (of having to apply for an immigration visa outside of Canada) that the applicant would face should be, in most cases, unusual. In other words, a hardship not anticipated by the Act or the Regulations, and
The hardship (of having to apply for an immigration visa from outside of Canada) that the applicant would face should be, in most cases, the result of circumstances beyond the person's control.
Disproportionate hardship
Humanitarian and compassionate grounds may exist in cases that would not meet the "unusual and undeserved" criteria but where the hardship (of having to apply for an immigration visa from outside of Canada) would have a disproportionate impact on the applicant due to his or her personal circumstances.
. . .
8.5 Separation of parents and dependent
children (outside family class)
The removal of a status-less individual from Canada may have an impact in relation to family members who do have the legal right to remain (i.e permanent residents or Canadian citizens). The geographic separation of family members could create a hardship that may warrant a positive H&C decision . . . .
In evaluating such cases, you should balance the different and important interests at stake:
. . .
| The circumstances of all the family members, with particular attention given to the interests and situation of the status-less individual's children. |
The applicant's submissions may be considered in light of international human rights standards such as the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, and the Convention on the Rights of the Child. International case law suggests that the State's interests in protecting society and regulating immigration are to be weighed or impact this removal on his/her family members.
Adult applicants may present submissions from, or on behalf of, members of their family, setting out the family members' view. For children, such submissions should be considered in accordance with the children's age and maturity, recognizing the increasing capacity of a child as he/she matures, to present his/her own views.
As in all H&C cases, consider the degree of hardship in relation to the applicant's personal circumstances (see Section 6.1--What is meant by "humanitarian or compassionate grounds").
Consider
. . .
What are the effective links with family members (children, spouse, parents, siblings, etc.) in terms of ongoing relationship as opposed to simple biological fact of relationship.
Where the applicant is residing in relation to the family members, particularly his/her children.
If there has been any previous period of separation, for how long and why.
If the applicant and his/her spouse are separated or divorced, has there been a court order in relation to custody arrangements? If the applicant is the non-custodial parent, has s/he been exercising any visitation rights? What do the materials filed with the family court indicate about the family's circumstances?
Degree of psychological / emotional support in relation to other family members.
Options for the family to be together in another country or possibility to maintain contact.
Impact on family members, especially children, if the applicant is deported.
Particular circumstances of the applicant's child (age, needs, health, emotional development).
Financial dependence involved in the family ties.
F. ANALYSIS
[31]Counsel agreed that, under the legal test established by Baker and Legault for reviewing officers' exercise of discretion, the refusal to grant Ms. Hawthorne's H & C application could be set aside as unreasonable if the officer had been "dismissive" of Suzette's best interests. On the other hand, if the decision maker had been "alert, alive and sensitive" to them (Baker, at paragraph 75), the decision could not be characterized as unreasonable.
[32]It was also common ground that an officer cannot demonstrate that she has been "alert, alive and sensitive" to the best interests of an affected child simply by stating in the reasons for decision that she has taken into account the interests of a child of an H & C applicant (Legault, at paragraph 12). Rather, the interests of the child must be "well identified and defined" (Legault, at paragraph 12) and "examined . . . with a great deal of attention" (Legault, at paragraph 31). For, as the Supreme Court has made clear, the best interests of the child are "an important factor" and must be given "substantial weight" (Baker, at paragraph 75) in the exercise of discretion under subsection 114(2).
[33]The best interests of the child also assumes an important place in an H & C decision because international law, a significant element of the interpretive context of domestic legislation, ranks the protection of the interests of children very highly: Baker, at paragraphs 69-71. For instance, Article 3, paragraph 1 of the Convention on the Rights of the Child, UN Doc. A/Res/44/25, [1992] Can. T.S. No. 3 (entry into force September 2, 1990), a treaty ratified by Canada but not enacted into domestic law, provides: "In all actions concerning children . . . undertaken by . . . administrative authorities . . . the best interests of the child shall be a primary consideration." The Convention also provides that, in determining the best interests of the child, decision makers must take the views of the child into account, in accordance with the child's age and maturity. In order to ensure that the child's wishes are properly considered, Article 12 provides that the child must be given an opportunity to be heard, either directly or indirectly, in administrative proceedings affecting her rights or interests.
[34]In an attempt to persuade us that the immigration officer either had or had not been sufficiently attentive to Suzette's interests, counsel for the Minister and for Ms. Hawthorne relied exclusively on the terms of the decision letter, the relevant provisions in the Guidelines, and the jurisprudence. For the purpose of this appeal, it is unnecessary to go beyond these parameters. In order to determine if the officer's decision was unreasonable, the Court must subject her consideration of the best interests of the child to the "somewhat probing examination" prescribed in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56.
[35]However, counsel for the intervener, the Canadian Foundation for Children, Youth and the Law, went further. She submitted that, even if the reasoning of the officer passed this test, the scope and standard of review mandated by Baker requires the Court to consider the substantive reasonableness of the outcome. In other words, the Court must consider whether, in refusing the H & C application, the officer struck an unreasonable balance between the interests of the child on the one hand and, on the other, the public interest in the due administration of the law that requires the removal of those who had entered Canada unlawfully, overstayed or otherwise remained in breach of the conditions on which they were given leave to enter. Discretion is exercised unreasonably or capriciously when the damage to important individual interests is disproportionate to the benefit produced by the decision.
[36]Such an inquiry would require the Court to consider whether Suresh has modified Baker by removing from the scope of review the substantive unreasonableness of the decision to refuse an H & C application. In Suresh, the Supreme Court emphasized (at paragraphs 35-38) that Baker did not authorize reviewing courts to substitute their view for that of the officer on the weight to be assigned to particular factors, including the best interests of the child, in the exercise of the H & C discretion. However, the Court affirmed the power of the courts to review the exercise of discretion on the ground that it was arbitrary or capricious: Suresh, at paragraph 34. However, it is a question for another day whether such an inquiry into the substantive unreasonableness of the exercise of discretion, absent one of the nominate categories of ultra vires or a Charter right [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], is totally precluded by Suresh.
[37]Counsel for the Minister put succinctly his argument for allowing the appeal. Pelletier J. erred in law by requiring the officer to look beyond the degree of hardship that Suzette would suffer if her mother were removed from Canada. An inquiry into the seriousness of the harm necessarily included consideration of Suzette's best interests: to insist as a matter of law that an officer spell out expressly that she had considered the best interests of the child was to elevate form above substance.
[38]In addition, counsel submitted, both the case law and the guidelines authorize the approach taken in this case by the immigration officer. For example, the Court stated in Baker (at paragraph 74) that the decision maker should carefully consider the best interests of children and "the hardship that may be caused" to them by a negative decision. It was also said in Baker (at paragraph 72) that the guidelines "are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section", and expressly direct officers to consider whether a negative decision would result in "unusual, undeserved or disproportionate hardship" [at paragraph 17].
[39]As well, in cases decided by the Trial Division after Baker, the degree of hardship has been regarded as the appropriate test for officers to apply under subsection 114(2): see, for example, Cilbert v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 90 (F.C.T.D.), at paragraph 21; Russell v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 97 (F.C.T.D.), at paragraph 25.
[40]These arguments do not persuade me that the Applications Judge erred in finding that the officer failed to give the careful consideration to the best interests of Suzette that is required by law. As Baker and the guidelines indicate, it is certainly necessary for the decision maker to consider the seriousness of the harm that a parent's removal is likely to cause to a child. However, unless the decision maker considers the degree of harm in the context of the best interests of the child, she is likely to be diverted from her duty to be "alert, alive and sensitive" to this important factor in the exercise of discretion. The danger of subsuming a consideration of the child's best interests in an assessment of the degree of hardship likely to be caused by a negative decision is well illustrated by the immigration officer's responses to two submissions respecting Suzette that were made to her.
[41]First, the submissions made to the immigration officer on behalf of Ms. Hawthorne emphasized that her removal would be very detrimental to the best interests of Suzette who might feel that she had no effective choice but to return to Jamaica with her mother. The officer found that this would not be a major hardship warranting a positive exercise of discretion, because Suzette had lived in Jamaica for nearly all her life, having been in Canada for less than a year. However, if the officer had started by identifying the best interests of Suzette, now a permanent resident, as being able to continue to live in Canada, the removal of Ms. Hawthorne could only reasonably have been regarded as highly detrimental to Suzette's best interests if she was thereby effectively compelled to return to Jamaica with her mother. A best interests analysis makes Suzette's present life in Canada the relevant point of comparison, not her previous residence in Jamaica: see Koud v. Canada (Minister of Citizenship and Immigration) (2001), 18 Imm. L.R. (3d) 280 (F.C.T.D.), at paragraph 18.
[42]Second, it was submitted to the officer that, given the closeness of their relationship and the material and emotional support that Ms. Hawthorne has provided to Suzette as she has adjusted to her new social and educational environments in Canada, it would be contrary to the best interests of Suzette to deprive her of her mother's presence. The officer's response was that it would not be a major hardship for Suzette to remain in Canada without her mother, since she had been separated from Ms. Hawthorne for the seven years before she came to Canada in 1999.
[43]Again, by failing adequately to identify and define the best interests of Suzette at the time of the decision, the officer compared the seriousness of her mother's removal with the previous period of separation. The relevant comparison is with the crucial part that her mother plays in her life in Canada, and the effect on her best interests of having to live in a new country without either her mother or other relatives who could assume her absent mother's role in the way that her grandmothers had done in Jamaica when Ms. Hawthorne came to Canada.
[44]The officer's treatment of these issues satisfies me that she was not "alert, alive and sensitive" to Suzette's best interests. The officer assessed the degree of harm that Ms. Hawthorne's removal would cause to Suzette by considering Suzette's life circumstances before she became a permanent resident in Canada, and not by reference to the damage to her present best interests. Cases on the best interests of the child in custody disputes (Young v. Young, [1993] 4 S.C.R. 3, and P. (D.) v. S. (C.), [1993] 4 S.C.R. 141, for example), as well as the various provisions of the Convention on the Rights of the Child, provide indirect guidance on the range of considerations that constitute the best interests of the child in the context of H & C applications.
[45]This conclusion is consistent with Trial Division decisions holding that officers who had focussed exclusively on hardship had not thereby discharged their duty to examine with care the best interests of the child before dismissing a parent's H & C application: Anthony v. Canada (Minister of Citizenship and Immigration) (2001), 17 Imm. L.R. (3d) 67 (F.C.T.D.); Bassan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R. (3d) 316 (F.C.T.D.); Gurunathan v. Canada (Minister of Citizenship and Immigration), (2001), 212 F.T.R. 309 (F.C.T.D.).
[46]In addition, it is my opinion that the officer's treatment of the concern expressed by Suzette at having to go to live with her father, whom she believed had been charged with the sexual abuse of a step-daughter, evidenced a dismissive attitude to her best interests. The officer's initial response to the concern was to attach no weight to it because there was no evidence that he had been charged. This was wrong for three reasons.
[47]First, given the relatively high procedural content of the duty of fairness owed by officers deciding H & C applications (Baker, at paragraph 32), the officer ought not to have rejected the submission without further inquiries, since the allegation was not inherently implausible and was accompanied by evidence suggesting that a children's aid society had concerns about Mr. Allen's suitability as a parent.
[47]Premièrement, vu le contenu procédural relativement élevé de l'obligation d'équité à laquelle sont tenus les agents chargés des demandes de considérations humanitaires (Baker, au paragraphe 32), l'agente n'aurait pas dû avoir rejeté l'observation sans fouiller davantage la question, puisque l'allégation n'avait pas un caractère intrinsèquement implausible et qu'elle était assortie de preuves laissant entendre qu'un bureau de l'aide à l'enfance avait émis des réserves sur les aptitudes parentales de M. Allen.
[48]Second, the officer appeared to disregard Suzette's expressed reluctance to live with her father because of what she had been told about him by her mother, and because she had never lived in the same house with a man. It was an inadequate response to these concerns for the officer to point to the lack of proof that Suzette's father had in fact been charged; Suzette's concern was based on her belief in the truth of what her mother had told her. Contrary to the Convention on the Rights of the Child, the officer seems to have given virtually no weight to the expressed wishes of Suzette in determining her best interests, even though the "child" in this case was 15 years old at the time.
[49]Third, the officer concluded her consideration of the submission that it was inappropriate for Suzette to have to live with her father by saying that, even if Mr. Allen had been charged with sexual abuse, he was responsible for her welfare and living plans as the parent who had sponsored her admission to Canada. However, I can see no rational relationship between this observation and the submission. The theoretical possibility that, as Suzette's sponsor, Mr. Allen could be made liable to provide for her support is simply not responsive to Suzette's concerns. The officer's letter of decision does not indicate that she had made inquiries and ascertained that Mr. Allen was willing and able to provide financial support for Suzette and to make suitable arrangements for her accommodation.
G. CONCLUSIONS
[50]In my opinion, it cannot be inferred from the reasons for the refusal of the H & C application that the officer was "alert, alive and sensitive" to Suzette's best interests. The summary, or less than responsive, treatment of the principal submissions made to the officer is indicative of a dismissive attitude towards her best interests. Indeed, apart from a brief reference to Mr. Allen's responsibilities as her sponsor, the financial implications for Suzette of her mother's removal are not discussed at all.
[51]Since the error identified in the officer's decision occurred before she weighed the H & C factors against law enforcement considerations, the statement in Suresh that Baker does not permit the Court to weigh the various factors is not germane to the disposition of this appeal.
[52]The requirement that officers' reasons clearly demonstrate that the best interests of an affected child have received careful attention no doubt imposes an administrative burden. But this is as it should be. Rigorous process requirements are fully justified for the determination of subsection 114(2) applications that may adversely affect the welfare of children with the right to reside in Canada: vital interests of the vulnerable are at stake and opportunities for substantive judicial review are limited.
[53]For all these reasons, I would dismiss the appeal and answer the certified question as follows:
| Q.: Is the requirement that the best interests of children be considered when disposing of an application for an exemption pursuant to subsection 114(2), as set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, satisfied by considering whether the removal of the parent will subject the child to unusual, undeserved or disproportionate hardship? |
| A.: It must be clear from the reasons given by an immigration officer for rejecting a subsection 114(2) application that the officer has been "alert, alive and sensitive" to the best interests of a child with a right to remain in Canada who is likely to be adversely affection by the decision. When made without express reference to the best interests of the child, an assessment of the harm that the parent's removal is likely to cause may, depending on the circumstances, indicate that the officer failed to give those interests the careful attention that they require. |