Digests

Qureshi v. Canada (Minister of Citizenship and Immigration)

IMM-277-00

Evans J.A.

25/8/00

12 pp.

Application for judicial review of refusal of H & C application on ground of unreasonableness--Applicant, citizen of Pakistan, wife, citizen of Iran, and child arrived in Canada in 1998 and claimed Convention refugee status--Rejected by CRDD--Applications to be members of Post-Determination Refugee Claimants in Canada class rejected in October 1999--After made H & C application, wife gave birth to second child--H & C application refused in December 1999 on ground they had entered Canada illegally; found by both CRDD and Post-Claim Determination Officer (PCDO) not to be at risk in Iran or Pakistan; although applicant started up business, economic self-sufficiency not sufficient to justify positive exercise of discretion; applicant received social assistance although not needed and applied for extended benefits under Federal Health Care Programme, despite having substantial bank balance; family in good health, able to travel--Considered welfare of newborn Canadian child, noting decision to have child made with knowledge of uncertain status; child will keep Canadian citizenship wherever family resides; eldest child should have no difficulty in adjusting to life in Pakistan or Iran--Application allowed--Although officer did not mention possibility of applicant having to sell business, factor not of such critical importance to exercise of discretion as to make it unreasonable to have failed to mention it--As to receipt of social assistance, applicant explained proceeds from sale of business in Pakistan not available until family in Canada for several months--Officer's treatment of this issue not in itself ground for setting aside decision--Factor of insufficient importance to justify setting decision aside--As to consideration of best interests of children in light of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, officer entitled to accept findings of Board and PCDO that, if required to return, applicants or their children would not be seriously at risk of persecution--However, officer's observation on decision to have second child in Canada, knowing their precarious immigration status, inappropriate, as legally irrelevant factor in due consideration of best interests of child officer obliged to give, further supporting conclusion that, in scant consideration officer apparently gave to best interests of youngest child, officer exercised discretion unreasonably--Officer's observation on this point, together with negative inference of social assistance claim despite applicant having sold business in Pakistan for US$100,000, suggest officer approached exercise of discretion in manner less than fair-minded, which may have contributed to error committed in failing to give adequate consideration or sufficient weight to best interests of youngest child--Although not necessary to consider whether officer adequately considered best interests of older, non-Canadian child, decision-maker exercising H & C discretion cannot ignore best interests of children in Canada because children not Canadian citizens.