Digests

Cilbert v. Canada (Minister of Citizenship and Immigration)

IMM-5420-99

Nadon J.

17/11/00

11 pp.

Judicial review of senior immigration officer's refusal of applicant's request pursuant to Immigration Act, s. 114(2) for exemption based on humanitarian and compassionate (H & C) grounds from s. 9(1) requirement immigrant apply for, obtain visa before appearing at port of entry--Applicant, British citizen born in Turks and Caicos Islands, visiting Canada in 1994, during which had relationship with Mr. Dobbin, resulting in pregnancy--Applicant giving birth to child in 1995 in United States--Applicant, child returning to Canada, living with Dobbin for five months before separated--In 1998 consent order granting applicant, Dobbin joint custody of child, with day-to-day care entrusted to Dobbin; applicant granted access to child every other weekend and every Wednesday, as well as right to participate jointly in decision-making with regard to all major issues in child's life--Court order also prohibiting applicant from removing child from Alberta without written permission from Dobbin or further court order--Specified that should applicant leave Alberta, Dobbin could apply for sole custody--On December 30, 1998 applicant ceased to be visitor--On February 9, 1999 submitted request for exemption from immigrant visa requirement--Before refusing request, immigration officer referring to custody order, stating courts have dealt with best interest of child--Application allowed--Standard of review reasonableness simpliciter--With respect to consideration of best interests of children in H & C review, Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 stating attentiveness, sensitivity to importance of rights of children, to their best interests, and to hardship that may be caused to them by negative decision essential for H & C decision to be made in reasonable manner--Although immigration officer referred to best interests of child in decision, made no substantive consideration of child's interests--Instead of considering on his own best interests of child, immigration officer relied entirely on Alberta Court's custody order--Interests of child considered during custody hearing substantially different from those which must be considered by immigration officer in H & C application when child facing possible separation from mother for significant amount of time--Unreasonable for senior immigration officer to rely on conclusion reached by Court in context of custody hearing to evaluate best interests of child--That joint custody granted significant and should not have been ignored--That immigration officer considered treatment available to autistic child in Turks and Caicos Islands not demonstrating any consideration for best interests of child--As Court order preventing applicant from leaving Alberta with child, unnecessary to evaluate whether treatment for child better in Canada, since child must stay in Canada--Unreasonable of immigration officer not to have considered impact on child or on applicant of separation between two or potential hardship that might result for child from separation--By reason of failure to consider effect of separation of mother, child on child, especially in light of fact child autistic, immigration officer not demonstrating attentiveness, sensitivity to best interests of child--Decision unreasonable--Immigration Act, R.S.C., 1985, c. I-2, ss. 9(1) (as am. by S.C. 1992, c. 49, s. 4), 114(2) (as am. idem, s. 102).