CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Permanent Residents |
Chik v. Canada (Minister of Citizenship and Immigration)
IMM-425-03
2003 FC 989, Kelen J.
21/8/03
7 pp.
Humanitarian and Compassionate Considerations Judicial review of denial of exemption from requirement to obtain immigrant visa on H&C grounds--Applicant arguing decision unreasonable, improperly minimizing best interests of applicant's Canadian-born child --Applicant, citizen of People's Republic of China, claimed refugee status on arrival in Canada in 1992, then abandoned claim--Exclusion order against him came into effect-- Applicant failed to show up for refugee, abandonment hearings as held by immigration authorities in United States --Married Canadian citizen in 1998--First H&C applications rejected--Child born of marriage after present H&C application submitted-- Application dismissed-- Immigration counsellor dismissed application as insufficient grounds to warrant special exemption, stating reasonable for couples deciding to marry when one spouse's immigration status undecided to expect separation for immigration processing-- Immigration counsellor also "alert, alive, sensitive" to best interests of applicant's child--Discussed child's interests at length, did not minimize child's interests in manner inconsistent with Canada's humanitarian and compassionate tradition, thereby adhering to guidelines set out by Supreme Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817--Neither Baker nor Immigration and Refugee Protection Act, s. 25(1) required according greater weight to best interests of child than to other factors considered by counsellor--While important part of analysis, presence of Canadian-born child not requiring immigration officer to exercise discretion in favour of parent: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.)--Furthermore, applicant has not demonstrated Immigration counsellor's decision unreasonable --Applicant's immigration history (11 years in Canada, conditional removal order against him since 1993, refugee claim abandoned) rightly considered as negative factor-- Legitimate public policy concern which could reasonably be weighed against applicant herein--As stated in Legault, Minister definitely authorized to refuse exception if circumstances surrounding person's entry, stay in Canada "discredit him or create a precedent susceptible of encouraging illegal entry in Canada" --Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 25(1).