CITIZENSHIP AND IMMIGRATION
Status in Canada
Humanitarian and Compassionate Considerations
Judicial review under Immigration and Refugee Protection Act, s. 72(1) of immigration officer’s decision insufficient humanitarian and compassionate (H&C) grounds to warrant exempting applicant from requirements of Act, s. 11(1)— Application based on close ties with family applicant working for and living with in Canada (father, children aged 13, 23), especially mother-daughter relationship with youngest, Nadja; being removed from Canada would cause severe emotional distress for both applicant, Nadja—Immigration officer determined applicant had not demonstrated would face unusual, undeserved or disproportionate hardship if required to leave Canada and obtain permanent resident visa from outside Canada in normal manner—Officer acknowledged mother-figure role in Nadja and brother’s lives, some connection to community here—In officer’s view, however, even though would be difficult to replace applicant, services commercially available for looking after children and home—Officer considered best interests of children involved, noting would still have support from closest living relative, their father—Application allowed—Immigration officers’ decisions subject to standard of reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, as explained in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247—Officer not properly considering best interests of child—Duty to examine Nadja’s best interests engaged herein—Although Baker not directly assisting applicant in view of narrow holding therein, Act since amended (s. 25(1)) so as to include explicit legislative direction that H&C decision-makers must take into account best interests of directly-affected children, wording broader than best interests of parents’ own child—On facts, Nadja “child directly affected”, therefore her best interests must be properly assessed—Officer’s decision not reasonable— Referring to children without identifying separate interests, needs or relationship to applicant; no analysis of Nadja’s young age and her view of applicant’s role in home; no mention of father’s extensive travelling, that applicant Nadja’s primary caregiver; no recognition degree of hardship to be suffered by Nadja will far exceed that of brother—On facts, officer not “alert, alive and sensitive” to Nadja’s interests, since nature of interests, likely degree of hardship she would suffer not defined—Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11(1), 25(1), 72(1).
Momcilovic v. Canada (Minister of Citizenship and Immigration) (IMM-5601-03, 2005 FC 79, O’Keefe J., order dated 20/1/05, 18 pp.)