Digests

Hawthorne v. Canada (Minister of Citizenship and Immigration)

IMM-4962-00

2001 FCT 1041, Pelletier J.

21/9/01

9 pp.

Application for judicial review of immigration officer's decision dismissing H&C application of single mother, of Jamaican origin, with 15-year-old daughter--Application allowed--Application of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817--Not yet definitive statement of meaning of child's best interests in context of H&C applications--Nor has Court received guidance on question of how to balance child's best interests against parents' deficiencies--Whatever test of best interests of child might be, not test of unusual, undeserved or disproportionate hardship which immigration officer applied herein, drawing on guidelines in Immigration Manual--Test in guidelines not hardship but unusual, undeserved, inappropriate hardship, which involves assessment of relationship of hardship to be suffered to conduct of applicant--Given that case herein dealing with children whose conduct not in issue, test inappropriate--Immigration officer focussed on issue of hardship to daughter in assessing question of best interests, as opposed to best interests--Finding immigration officer did not give adequate consideration to interests of daughter when applied test of unusual, undeserved or disproportionate hardship to assess question of daughter's best interests--Question certified: whether requirement that best interests of children be considered when disposing of H&C application, as set out in Baker satisfied by considering whether removal of parent will subject child to unusual, undeserved or disproportionate hardship.