Garasova v. Canada ( Minister of Citizenship and Immigration )
IMM-2674-98
Lemieux J.
2/11/99
21 pp.
Compassionate and Humanitarian Considerations -- Application for judicial review of decision by Immigration Officer denying application under Immigration Act, s. 114(2) for exemption from Act, s. 9(1) in order that application for permanent residence be processed from within Canada-Applicant born in Czech Republic in 1975-Gave birth to son Patrik in January 1993-Came to Canada in May 1993 on valid employment authorization-Married on May 4, 1995-Experienced cycle of abuse, reconciliation, marriage breakdown-Had problems with mother in Czech Republic-On October 31, 1997, applicant made application within Canada for permanent residence, invoked humanitarian, compassionate grounds-Husband convicted on six counts of assault, sexual assault, sentenced to five months in prison, three years' probation-Had withdrawn previous sponsorship of her-Recent S.C.C. case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 of critical importance in terms of substantive grounds for judicial review, role of guidelines, accounting of children's interests-In Baker, according to L'Heureux-Dubé J., appropriate standard of review reasonableness simpliciter-Failure to give serious weight, consideration to interests of children constituting unreasonable exercise of discretion conferred by s. 114(2), notwithstanding important deference that should be given to decision of immigration officer-Reasonable exercise of power conferred by s. 114(2) requiring close attention to interests, needs of children-Children's rights, attention to their interests central humanitarian, compassionate values in Canadian society-Indications of children's interests as important considerations governing manner in which H & C powers should be exercised in purposes of Act, international instruments, in guidelines for making H & C decisions published by Minister-L'Heureux-Dubé J. disagreeing with F.C.A. decision in Shah v. Canada (Minister of Employment and Immigration) (1994), 29 Imm. L.R. (2d) 82 that s. 114(2) decision "wholly a matter of judgment and discretion"-Discretion granted confined within certain boundaries-S.C.C. decision in Baker mandating new perspective, new emphasis by immigration officers when rendering humanitarian and compassionate decisions under Immigration Act-Where children involved, immigration officer must consider children's best interests as important factor, must give them substantial weight, be alert, alive to them-Baker also embracing interests of adult applicant-Placing new, more "hands-on" responsibility by reviewing judge-Reviewing judge must take "hard look" at H & C decision, must assess whether reasonable by examining reasons to see if they can stand up to probing examination in evidentiary foundation-Analysis of humanitarian considerations by Immigration Officer exclusively in respect of applicant-Absence of consideration of interests of either Canadian or Czech-born child-Such approach by Immigration Officer not reasonable exercise of power which requires close attention to interests, needs of children-Application allowed-Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 114(2).