Digests

Swartz v. Canada (Minister of Citizenship and Immigration)

IMM-5926-00

2002 FCT 268, MacKay J.

8/3/02

10 pp.

Judicial review of immigration officer's refusal of application on humanitarian and compassionate (H&C) grounds for permanent residence from within Canada-- Applicants, mother and son (Ronville) arrived in Canada from South Africa in December 1995 to join husband, father-- Ronville 14 at time of arrival, 19 when H&C application considered, refused--In 1998 applicants moved out of family home because Mr. Swartz allegedly emotionally, physically abusive--Mr. Swartz obtaining permanent residence--Not including applicants in application--Application allowed-- Following Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, reasons may now be expected for discretionary decisions which adversely affect individual interests--Reasons for decision necessary herein, reasonableness simpliciter appropriate standard for review of immigration officer's decision--Ronville's age not preventing him from being considered "child" for purposes of principle of Baker decision--Naredo v. Canada (Minister of Citizenship and Immigration) (2000), 192 D.L.R. (4th) 373 (F.C.T.D.) holding whatever their ages, sons therein remaining "children" who could reasonably be expected to be dramatically affected by removal from Canada of parents--Ronville "child" within Baker principle, because, although 19, dependant, and not authorized to work or to continue studies in Canada beyond May 2001--Although immigration officer commenting on whether physical presence of Ronville in Canada would facilitate reconciliation with father, not considering other factors concerning Ronville's best interests--Erred by failing to be attentive, sensitive to Ronville's best interests, hardship might suffer by reason of negative decision--While officer's reasons referring to some of circumstances concerning son, reflecting substance of written submissions accompanying H & C application, not demonstrating attention paid to best interest of son at time decision made--Inland Processing Manual providing officers should consider using positive discretionary authority where spouse of permanent resident leaving abusive situation and, as result, not having approved sponsorship--Although reasons acknowledging abusive nature of marriage, not considering circumstances in accord with guidelines--But guidelines not law--Difficult to conclude discretionary decision unreasonable if this only shortcoming--But application allowed because of failure to consider best interests of dependent son--Guidelines should be carefully considered in any reconsideration of application.