CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Humanitarian and Compassionate Considerations |
Gurunathan v. Canada (Minister of Citizenship and Immigration)
IMM-6368-00
2001 FCT 1155, McKeown J.
24/10/01
6 pp.
Judicial review of Immigration Officer's refusal of application for permission to apply for permanent residence from within Canada on humanitarian and compassionate (H & C) grounds--Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 holding reasonable exercise of H & C power requiring close attention to interests, needs of children--Children, aged 15, 14 living in Canada for 9 years, attending school here--Proposed return to small village in Sri Lanka--Immigration officer not taking into account children's inability to speak Tamil language--Should have been taken into account in considering best interests of children--Immigration officer looked at risks to children and since risk same as parents' risk, concluded no risk to children--However analysis of best interests of children requiring officer to look at more than just risk to children--Officer's limited and only analysis of best interests of children that children would have to make some real adjustments to living outside Canada, but no evidence would not be able to manage adjustment--Nothing indicating officer looking at children's ability to communicate if returned to Sri Lanka--No analysis of best interests of children based on evidence before immigration officer--Best interests of children important factor, but not necessarily governing factor--Immigration officer will have to determine whether all circumstances, including best interests of children warrant granting of exemption from Immigration Act, s. 9--Officer also erred in considering fact applicants stayed in Canada in contravention of Act--Application allowed--Immigration Act, R.S.C., 1985, c. I-2, s. 9 (as am. by S.C. 1992, c. 49, s. 4).