Digests

Bassan v. Canada (Minister of Citizenship and Immigration)

IMM-3751-00

2001 FCT 742, McKeown J.

3/7/01

6 pp.

Judicial review of visa officer's decision not to exempt applicants on humanitarian and compassionate (H & C) grounds from requirement of Immigration Act, s. 9(1)--Visa officer's notes stating applicant had Canadian-born daughter at time when immigration status uncertain; situation of own making--Concern that statement located immediately before statement dealing with best interests of Canadian child, i.e. young enough to assimilate to new environments and would not cause adverse, disproportionate, or undue hardship if returned to India--No other comments with respect to Canadian-born daughter, except for counsel's comment that not in her best interest to go to Punjab--Lack of evidence with respect to child indicating interests of Canadian-born child minimized--Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 stating attentiveness, sensitivity to importance of rights of children, to best interests, and to possible hardship caused by negative decision essential for H & C decision to be made in reasonable manner--Visa officer not asking whether possibility of child remaining in Canada if parents left, although rarely in best interest of child to remain in Canada without parents--Presence of Canadian-born daughter and need for parents factors to be considered in exercise of Minister's discretion--In context of notes, Court concerned visa officer visiting sins of parents upon Canadian-born child--Duty to be attentive, alive to child's interests not satisfied by identifying reasons for not giving weight to child's interests--To suggest child's interests could be equally served by accompanying parent to India since remains Canadian citizen ignoring s. 4(2) (right of Canadian citizen to remain in Canada)--H & C officer must make further inquiries when Canadian-born child involved in order to show attentive, sensitive to importance of child's rights, best interests, hardship caused to child by negative decision--Failure to look into questions relating to best interests of child not meeting requirements of Baker--Visa officer's approach minimizing Canadian-born child's interests, unreasonable--Application allowed--Questions certified: (1) whether immigration officer, in deciding H & C application, entitled to consider fact applicant knew about uncertain immigration status when engendered Canadian-born child, in so far as relating to applicant's hardship; (2) in light of Baker, what does it mean to be alert, alive, sensitive to child's interests, and does requirement shift burden, impose duty on immigration officer to inquire about child's interests, beyond what is submitted by applicant--Immigration Act, R.S.C., 1985, c. I-2, ss. 4(2) (as am. by R.S.C., 1985, (4th Supp.), c. 28, s. 3), 9(1) (as am. by S.C. 1992, c. 49, s. 4).