Deputy Attorney General of Canada for respondent.

The following are the reasons for order rendered in English by

[1]Blanchard J.: This is an application for judicial review of the decision of Maha Suleiman, an immigration officer, made on February 10, 2000 wherein the said immigration officer decided not to recommend for the applicant a waiver of the requirement to apply for landing outside of Canada pursuant to subsection 9(2) [as am. by S.C. 1992, c. 49, s. 4] of the Immigration Act, R.S.C., 1985, c. I-2, on humanitarian or compassionate considerations.

[2]The applicant is a citizen of Jamaica. She entered Canada as a visitor on September 23, 1985, and has remained here since. She is the mother of three Canadian-born children: Jamaar Mulholland, age 12, born October 8, 1989; Patchardo Mulholland, age 13, born February 20, 1988, and Jessean Kidd, age 9, born November 11, 1991.

[3]On September 9, 1987, the applicant claimed Convention refugee status. However, no decision was rendered on her application, as a result of a backlog of cases in Toronto. The applicant was eventually part of the Toronto Refugee Backlog Clearance Program.

[4]The applicant is the only living or supportive parent to the three children. The father of Jamaar and Patchardo Mulholland was killed in a shooting accident in 1989. Jessean Kidd's father returned to Jamaica shortly after Jessean's birth and has provided no support.

[5]On January 22, 1992, the applicant was approved for landing under the humanitarian or compassionate considerations (H & C) pursuant to subsection 114(2) [as am. by S.C. 1992, c. 49, s. 102] of the Immigration Act.

[6]On October 10, 1992 the applicant was involved in a motor vehicle accident and suffered a broken arm requiring treatment by open reduction. This initial treatment was not successful and the applicant had to return for more surgery. As a result of this accident the applicant could not work.

[7]Prior to the accident of October 10, 1992, the applicant contends that she worked as a packer and was fully employed in various odd jobs and was capable of supporting herself and her family.

[8]Following her recuperation from the injuries she suffered, the applicant was only able to secure part-time employment at minimum wage. From August 1993 to November 1993 she worked as a short order cook at a tavern.

[9]The applicant's work authorization from Immigration Canada expired in December 1993, thereby ending her opportunity to work.

[10]The applicant obtained a job offer from the Weston United Pentecostal Church for the position of cleaner, conditional upon her obtaining an employment authorization from Immigration Canada.

[11]On October 11, 1994, the applicant applied for a work permit only to be informed that she was not eligible for such a permit. It was only on October 17, 1996, that she was able to obtain an employment authorization and began work as a general labourer for Ecco Staffing Services in September of 1996.

[12]From March 1997 until May 17, 1997, the applicant worked at Montecassino Place Hotel. From July 1997 to December 1997, the applicant was employed by Global Telecommunications until the expiration of her employment authorization in December 1997.

[13]The applicant contends that she only accepted social assistance while recuperating from the October 10, 1992 accident and submitted letters of reference confirming that she is a good worker.

[14]The applicant, since her arrival in Canada, has attended various programs to upgrade her skills for employment, and has, together with her children, substantially integrated into the Canadian community.

[15]On May 6, 1993, the applicant was advised that although she satisfied the H & C requirements, she was inadmissible in Canada because she was unable to support herself and her dependents, as evidenced by the fact that she was receiving social assistance, pursuant to paragraph 19(1)(b) [as am. by S.C. 1992, c. 49, s. 11] of the Immigration Act.

[16]On February 10, 2000, the applicant was informed that her second request for processing of a permanent residence application from within Canada on humanitarian or compassionate considerations was not granted. This is the decision being reviewed in this application.

Standard of Review

[17]The Supreme Court of Canada in Baker¹ set the standard of review of a Canadian immigration officer's decision in an humanitarian or compassionate application pursuant to subsection 114(2) of the Immigration Act to be reasonableness simpliciter.

Issue

[18]Did the immigration officer reasonably conclude that the applicant did not merit a positive H & C decision?

The Decision Under Review

[19]The decision under review would require the applicant to leave Canada and to apply from outside Canada for leave to return. In support of the decision, the following reasons and rationale were submitted by the interviewing officer:

I have reviewed this case under humanitarian and compassionate grounds and under the guidelines relating to Ms. Mulholland's case, with her three dependant children. There are insufficient compelling humanitarian and compassionate grounds to warrant an exemption from normal legislative requirements.

Ms. Mulholland's reasons for wishing to apply from within Canada are that she feels that she is very well established here and that she has built a life for herself and her children. Ms. Mulholland stated that she has been financially independent and has not relied on social assistance since May 1995. As well, Ms. Mulholland has indicated that she did not want to return to Jamaica because her children are all born in Canada and they deserve to enjoy living here. In addition, she indicated that her youngest child, Jessean has been diagnosed with behavioral problems and is in need for a special program.

I have carefully considered Ms. Mulholland's Canadian born children and the effect of having to leave Canada. I have also considered the fact that the children would suffer if they were to go to a country "they don't know", and that the applicant wants the best for her children. However, having children in Canada while her status was undetermined and while knowing that she was facing removal from Canada was a decision that Ms. Mulholland made. Also, it would be her decision to take her children with her or leave them here with a family member. As well, the Canadian Citizenship of her children is a status they will keep in spite of where they reside. In addition, I have considered Ms. Mulholland's concern with regards to her youngest child Jessean. Jessean was diagnosed with having traces of sickel cell anemia in his blood and that he has behavioral problems and is presently attending St. Fields Catholic School where he was placed in a special behavioral class. However, information received from the visa office in Jamaica (on file), indicates that there are facilities there to deal with both of those concerns. This information and the supporting pamphlets were shared with Ms. Mulholland at the time of the interview. In addition, I have considered all the support letters and reference letters on file as well as the petition from the schoolteachers at St. Wilfrid Catholic School where Ms. Mulholland's children are attending.

I have also considered Ms. Mulholland's establishment in Canada. Ms. Mulholland stated that she is financially independent and has not relied on social assistance since May 1995. It is noted that her reliance on social assistance was from March 1988 until March 1996. As well, Ms. Mulholland stated that she is very well established in Canada and that she has worked very hard to raise her children. She states that she is socially established as well. It is noted that Ms. Mulholland was convicted of assault with a weapon in December 1998 and she is presently serving a two-year probation sentence as a result of the conviction.

After carefully considering all information gathered at the interview and other information provided in submissions and on file, as well as all the reference letters from family and friends and children's school and day care, I am not satisfied that sufficient humanitarian and compassionate grounds exist to warrant the applicant's request to waive A 9(1) of the immigration act.

The Position of the Parties

[20]The applicant argued that the immigration officer's statement that the applicant had three children in Canada knowing that her status was undetermined discloses a reasonable apprehension of bias on the part of the decision maker. The applicant further argued that the officer erred in law by failing to address the best interest of the Canadian-born children and erred in law by ignoring relevant evidence.

[21]Counsel for the respondent argued that the immigration officer made no reviewable error and that she turned her mind to what would be in the best interest of the children.

Analysis

[22]The immigration officer in her reasons indicated that she considered the applicant's establishment in Canada and noted that the applicant relied on social assistance from March 1988 until March 1996. This finding by the officer is not supported by the facts as related earlier in these reasons. There may well have been a time when the applicant was recuperating from her accident of October 10, 1992, that she had to rely on social assistance, but to conclude that the applicant was on social assistance from March 1988 to March 1996 is, in my view, an error of fact made without regard to the material before her. The officer, in her reasons, makes no mention of the employment that the applicant did secure during this period, albeit part time employment, no mention of the efforts of the applicant to improve her skills by taking courses and no mention of the fact that the applicant's work authorization had expired during this period on two occasions. At least one job offer from the Weston United Pentecostal Church could have been accepted during this period, had a work permit been issued.

[23]The immigration officer, in her reasons, further notes that the applicant was convicted of assault with a weapon in December 1998, and served a two-year probation sentence as a result of the conviction. It is interesting to note that this incident is the result of a dispute with an ex-friend, and that the "weapon" in question is a vase. It is not my purpose to trivialize an assault of this kind, suffice it to say that the incident is not of the gravity that one could infer from reading the immigration officer's reasons. There is no evidence of any prior offences and this was an offence for which no jail time was served.

[24]Before I turn to the immigration officer's analysis of the Canadian-born children, it is useful to review the Supreme Court of Canada's decision in Baker. The Baker decision has indeed "raised the bar" in terms of how an immigration officer must deal with the best interest of Canadian-born children and in particular how the officer explains his or her decision.

[25]At paragraph 68 of the Baker decision, Madam Justice L'Heureux-Dubé referred to the immigration objective reflected in paragraph 3(c) of the Immigration Act. She wrote:

Although this provision [paragraph 3(c)] speaks of Parliament's objective of reuniting citizens and permanent residents with their close relatives from abroad, it is consistent, in my opinion, with a large and liberal interpretation of the values underlying this legislation and its purposes to presume that Parliament also placed a high value on keeping citizens and permanent residents together with their close relatives who are already in Canada. The obligation to take seriously and place important weight on keeping children in contact with both parents, if possible, and maintaining connections between close family members is suggested by the objective articulated in s. 3(c).

[26]At paragraphs 74 and 75, Madam Justice L'Heureux-Dubé continued:

Therefore, attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for an H & C decision to be made in a reasonable manner . . . .

That is not to say that children's best interests must always outweigh other considerations, or that there will not be other reasons for denying an H & C claim even when children's interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada's humanitarian and compassionate tradition and the Minister's guidelines, the decision will be unreasonable.

[27]In the case at bar, the immigration officer, in considering the interest of the Canadian-born children, stated that the children would suffer if they were to go to a country "they don't know", and it would be the applicant's decision to take her children with her or leave them here with a family member. The tribunal record (at page 129) reveals that the applicant has but one sister in Canada. The officer gave no consideration as to whether this sibling was able or willing to take the children or indeed whether she was suited to be the guardian of these children. To advance such an option as acceptable without such an assessment is to minimize the interests of the children and is unreasonable.

[28]The immigration officer also made the following statement in her reasons:

However, having children in Canada while her status was undetermined and while knowing that she was facing removal from Canada was a decision that Ms. Mulholland made.

[29]This comment assumes a number of things which are not self-evident. It assumes that the birth of the children was a matter of choice. It could just as easily have been the result of a failure of contraception or of religious belief which prevented the use of effective contraception. Or it could be an implicit moral criticism as to the consequences of personal immorality. There is nothing in the record which would justify such an assumption or any conclusion flowing from it. On the other hand, it could be a statement about who should bear the risk of Ms. Mulholland's deportation. To the extent that it suggests that the children should, it is truly a question of visiting the sins of the mother upon the children. The duty to be alive to the interests of the children is not satisfied by identifying reasons for not giving weight to their interests.

[30]The focus of the H & C application is the applicant. The issue is the humanitarian and compassionate considerations which would justify allowing her to apply for landing from within Canada. The presence of three Canadian-born children, who cannot be removed, and whose need for their mother is to be assumed, cannot be taken to be anything other than a factor in favour of the exercise of the Minister's discretion. It is inconceivable that, given the ages of the children, their mother would have to justify their need for her. To suggest that the children's interest could be equally served by accompanying their mother to Jamaica since they remain Canadian citizens no matter where they live is to ignore subsection 4(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 3] of the Immigration Act which states:

4. . . .

(2) Subject to any other Act of Parliament, a Canadian citizen and a permanent resident have a right to remain in Canada except where, in the case of a permanent resident, it is established that the person is a person described in subsection 27(1).

Where the Minister purports to remove from Canada a person who has dependent children, the Minister cannot ignore the fact that the practical consequence of her decision is to deprive the children of the benefit of subsection 4(2) of the Act. In those circumstances, is it not up to the Minister to rebut the conclusion that the presence of the children is a humanitarian factor justifying the exercise of discretion? Nothing in Baker would make such a presumption irrebuttable. No state can consistently excuse the misconduct of adults because of the effects on their children without creating a climate of irresponsibility both as to the adults' conduct and as to the motives for having children. But the rebuttal must be based upon facts in relation to the parent which would weigh more heavily in the balance than the dependency of the children upon the parent and their statutory, if not constitutional right, to remain in Canada. The bald statement that the presence of the children is the result of a parental choice does not amount to rebuttal.

[31]In my view, the immigration officer's assessment of the best interest of the children is not consistent with the objective reflected in paragraph 3(c) of the Act, and therefore not consistent with Canada's humanitarian and compassionate tradition. The approach taken by the immigration officer minimizes the interest of the Canadian born children, and is, in my view, unreasonable. The Supreme Court in Baker makes it clear that failure to give serious weight and consideration to the interest of the children constitutes an unreasonable exercise of the discretion conferred by the Immigration Act.

[32]The facts in this case are very similar to those in Naredo v. Canada (Minister of Citizenship and Immigration).² In that case, the immigration officer, in his reasons, made the following comments with respect to the children:

Having children born in Canada while their immigration status was undetermined and they possibly faced the requirement of having to leave Canada was a decision Mr. Arduengo (and, once again, presumably Ms. Arduengo) took.3

[33]The immigration officer also stated that it would be the parents' decision to leave their children in Canada and it was for the parents to decide what would be in the best interest of the children. Mr. Justice Gibson concluded that the analysis reflected in the reasons of the immigration officer's decision as they related to the interests of the children, was entirely insufficient, given the requirements set out in Baker. He stated at paragraph 22 of his decision:

In paragraph 65 of her reasons on behalf of the majority of the Court in Baker, Madam Justice L'Heureux-Dubé wrote:

The officer was completely dismissive of the interests of Ms. Baker's children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonble exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision to the immigration officer.

I am satisfied that the same could be said here. It was not open to the immigration officer, against the guidance provided by Baker, to simply leave the issue of what is in the best interests of the applicants' children to the applicants in circumstances where the applicants were about to be required to leave Canada to an uncertain fate in Chile. To do so, as was done here, was to be "completely dismissive" of the interests of the children. The immigration officer did not, herself, give "serious weight and consideration to the interests of the children. . .". Rather, she determined that the applicants would not be granted the right to apply for landing from within Canada and in so doing, left the agonizing decision of what would be in the best interests of the children to the applicants alone.

[34]I am also satisfied that the reasons of the immigration officer for the decision under review, have "minimized in a manner inconsistent with Canada's humanitarian and compassionate tradition" the interests of the applicant's children.

[35]I therefore find the decision under review unreasonable and should be set aside.

[36]Against the foregoing analysis, this application for judicial review will be allowed, the decision under review will be set aside and the applicant's application for permission to apply for landing from within Canada will be referred back to the respondent for reconsideration and redetermination.

[37]The parties, having had the opportunity, have not requested that I certify a serious question of general importance as contemplated by section 83 [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act. Therefore, I do not propose to certify a serious question of general importance.

    ORDER

THIS COURT ORDERS that:

1.    This application for judicial review will be allowed, the decision under review is set aside and the applicant's application for permission to apply for landing from within Canada is referred back to the respondent for reconsideration and redetermination before a different immigration officer.

¹ ;Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

² (2000), 192 D.L.R. (4th) 373 (F.C.T.D.).

³ Ibid., at para. 21.