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Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
Best interestsofthechild
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Best interestsofthechild

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  • 1. My NotesTimeline 1. Applicant born in 1991. Mother comes to Canada after 8 months, leaving her behind. 2. Father gain PR in 1991 from Parental sponsorship as an “unmarried dependant” and he later sponsored applicant’s Mother as fiancee in 1996. Mother was married to the Father in 1989 but did not disclose the marriage. 3. 1998 Father “adopts” the applicant and applies for PR for her. Refused and caught by CIC for fraud. 4. In 2002 Applicant applies as a member of Family class and <due to A (117) (9) (d)> refused. 5. In 2003 When she is 13 years old she applies for PR again as FSW 6. 2006 Applicant files for PR again on H&C. Refused. 7. Judicial Review for the H&C refusal under analysis.IssuesThe Grandparents in bringing their son (The applicant’s Father) to Canada had two choices ● Show their son as an unmarried dependent even though he was married for the past two years and with a child of his own OR ● Show their son as married and thereby not become eligible for immigration as a dependent.They chose the first.They also chose, to leave the applicant behind, in the care of family relatives and always in a state oflanguish.As a consequence in a bid to bring the applicant to Canada the family let loose a trail of liesdeception, misrepresentation and fraud for their descendants over 15 years 1. The applicant, was not examined when the applications for permanent residence in Canada of her father and mother were processed. SECTION 117(9)(d) SECTION 117(9)(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. 2. Best interests of the child is an important factor and should be given substantial weight in an H&C application but is not determinative of the issue. The judge dismissed similar arguments as in the present case in Yue vs Canada1 The law recognizes the benefit of Parent child unity but it doesn’t overcome the admissibility of the applicant. In cases where a child is directly affected by a refusal decision, the VO should indicate both in the refusal letter as well as in the CAIPS notes that they actively considered the best interests of the child. It would likely be insufficient to simply state in the refusal1 Yue vs Canada 2006 FC 717
  • 2. letter that "I have considered the best interests of the children affected by the decision," if there is nothing further in the CAIPS notes. In the Legault case (Legault v. Canada (Minister of Citizenship and Immigration) it is made clear that the best interests of the child do not "outweigh" all other factors; in other words, it is not the case that the childrens best interests should prevail unless there are "gravest countervailing grounds." What the VO has to do is demonstrate somewhere on the record that they have carefully considered the interests of the children and that these interests have been "identified and defined" in a manner beyond mere mention. An indication on the record of what is in the childrens interest and the reasons for this opinion would be the minimum required to demonstrate that the VO was sensitive to the childrens interest. This would mean including in the notes a brief analysis of whether (and why) it would be in the childrens interest if the applicant were to be granted humanitarian and compassionate consideration. Cases related to best interests of the child ● Baker v. Canada (Minister of Citizenship and Immigration), Appeal allowed with costs ● Hawthorne v. Canada (Minister of Citizenship and Immigration), Dismissed ● Legault v. Canada (Minister of Citizenship and Immigration), Allowed 3. Is the Father chargeable under misrepresentation for concealing his family’s composition? <Section 40 (1) >and what about the Mother for saying that she is a fiancee when she was already married 3 years ago ? IRPR S 128 prescribes penalties2(footnotes) If the Mother herself is inadmissible due to Section 40 (1), her accompanying family member will also become inadmissible.3 But in this case the applicant was never classified as an accompanying family member. 4. Is the applicant inadmissible ? Can she apply independently on her own in the future ? Regulations 24(a) lists dependant child as an exception to A42(a) inadmissibility4 ? 5. Father attempting to use fraud in trying to bring the applicant as an adopted child.1998 Father using fraud to adopt his own child. What immigration or criminal consequences will that attract ?My questions to the applicant and her FATHER2 (S 127 MISREPRESENTATION) Penalties 128. A person who contravenes a provision of section 126 or 127 is guilty of an offenceand liable ● (a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or ● (b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.3 SEC 42 (b)... they are an accompanying family member of an inadmissible person.4 SEC 42 (b) they are an accompanying family member of an inadmissible person.
  • 3. 1. In 2003 how can a 13 year old apply as a FSW ? The Application for PR (APR) itself is moot let alone the criteria for judicial review. 2. Why didn’t the mother show herself as married and in addition reveal the new born baby ? 3. Was fiancee a category in Family class in 1996 ? It’s not now. 4. Motivations behind -- Father hiding her daughter from the family’s composition on the instructions from his Parents. 5. How can you adopt a child who is your own ? What if the VO request a DNA on suspicion ?Options available to the applicant now ? If she is admissible. 1. Wait till she acquires enough eligibility under Economic or spouse in family class. 2. Try studying in Canada and live with her Parents, though it will be an uphill battle to establish dual intent. AMANDEEP KAUR SANDHU Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT[1] Ms. Amandeep Kaur Sandhu, now 16 years-old and a citizen of India, in this judicialreview application challenges the June 5, 2006 decision of Jacqueline Desjardins at the CanadianHigh Commission in New Delhi (the Visa Officer) who determined pursuant to subsection25(1) of the Immigration and Refugee Protection Act (the Act)5 that it would not be justifiedon humanitarian or compassionate considerations to grant her permanent resident status orexempt her from any applicable criteria or obligation of the Act or the Immigration and RefugeeProtection Regulations (the Regulations).5 Humanitarian and compassionate considerations — Minister’s own initiative 25.1 (1) The Minister may, on the Minister’s own initiative, examine the circumstancesconcerning a foreign national who is inadmissible or who does not meet the requirementsof this Act and may grant the foreign national permanent resident status or an exemptionfrom any applicable criteria or obligations of this Act if the Minister is of the opinion that it isjustified by humanitarian and compassionate considerations relating to the foreign national,taking into account the best interests of a child directly affected
  • 4. I. The Facts[2] On September 9, 2003, the applicant submitted an application for permanentresidence in Canada under the skilled worker category. At the time of her application, she was 13years-old. She was born on January 9, 1991, in the Punjab.[3] In her visa application, the applicant requested an exemption from the requirementsof the Act and Regulations based on section 25(1) of the Act although she did not specify whichprovision 6or requirement she was asking to be exempted on humanitarian and compassionategrounds.[4] It was assumed by the visa officer the applicant sought an exemption from meetingeither the selection criteria under the skilled worker category, then being thirteen years oldand having no intended occupation, or sought exemption from paragraph 117(9)(d) of theRegulations which provides no foreign national shall be considered as a member of the familyclass if her sponsor, in his or her application for permanent residence, did not identify her as anon-accompanying family member7.[5] Her father had applied for and was granted permanent resident status in Canadain February of 1991 as the “unmarried” dependent son of his parents; the applicant’s motherwas sponsored by the applicant’s father as his fiancée and was granted permanent residence inCanada in 1996. She did not disclose the applicant was her child or that she had been marriedto Mr. Sandhu in 1989 rather than being his fiancée. The applicant, therefore, was not examinedwhen the applications for permanent residence in Canada of her father and mother wereprocessed.[6] In 1998, the applicants parents fraudulently attempted to sponsor the applicant astheir adopted daughter rather than acknowledging she was their natural-born child.[7] This is the second application for permanent residence made by the applicant. Shehad previously made a first application as a member of the family class but was refused onSeptember 23, 2002, by Officer Sarasa Nair at the High Commission in New Delhi. Officer Nairconcluded the applicant was excluded from membership in the family class based on section117(9)(d) of the Regulations.[8] In connection with her second application for permanent residence, the applicantwas interviewed on November 28, 2005, in New Delhi, by Officer Sarasa Nair who completedher extensive interview notes the same day and consigned them to CAIPS. She also prepared acase summary in CAIPS dated April 28, 2006.[9] Officer Nair referred the applicant’s second application for permanent residence tothe visa officer for decision.6There are two provisions she could have asked for. One- Section 1179 d and the second- eligibility as aFSW7 SECTION 117(9)(d) subject to subsection (10), the sponsor previously made an application forpermanent residence and became a permanent resident and, at the time of that application, theforeign national was a non-accompanying family member of the sponsor and was not examined.
  • 5. II. The Visa Officers Affidavit[10] The visa officer deposed an affidavit, to which her CAIPS notes were appended,describing the considerations that she took into account in making her decision. In her affidavitshe states on June 5, 2006, she conducted a complete review of the case and made her ownindependent assessment of the file which was based on the documentation in the file, oninformation obtained at the interview and on the CAIPS notes.[11] The visa officers affidavit is largely based on the CAIPS notes found in the file and,as such, does not transgress the rule that it would be improper for a visa officer to supplementin an affidavit the reasons given in a refusal letter or recorded in the record (see Yue v. Canada(Minister of Citizenship and Immigration), 2006 FC 717 (CanLII), 2006 FC 717.[12] At paragraph 9 of her affidavit, she deposes as follows:“In reviewing the file information and Ms. Sandhu’s application, I considered the actions ofMs. Sandhu’s parents, Ms. Sandhu’s circumstances including her connection to her parents, herextended family in India, and her establishment in the only home she has ever known in Indiaand her current enrolment and social network at school. Based on the information available tome, and bearing in mind the best interests of the child, I was not satisfied that Ms. Sandhu haddemonstrated sufficient H&C grounds to warrant an exemption from the requirements of the Actand Regulations pursuant to subsection 25(1) of the Immigration and Refugee Protection Act.”[13] She continued her analysis of the considerations she took into account in thefollowing paragraphs of her affidavit which I reproduce:Ms. Sandhu’s separation form her parents occurred because her parents chose to leave her toimmigrate to Canada and they failed to disclose the existence of Ms. Sandhu as their daughter tothe Immigration authorities. Ms. Sandhu’s parents provided false and misleading information tothe Canadian immigration authorities in their attempt to sponsor Ms. Sandhu as their “adopted”daughter. The situation of the separation of the family is a result of the family’s own action andmisrepresentation in their immigration applications.I noted that Ms. Sandhu’s father did not disclose her existence to immigration authoritieswhen he applied for and was granted permanent residence in Canada in February 1991 asthe “unmarried” dependent son of his parents. Ms. Sandhu’s mother was sponsored by theapplicant’s father as a fiancée and was granted permanent residence in Canada in 1996. She didnot disclose Ms. Sandhu was child or that she had been married to Mr. Sandhu. Ms. Sandhu,therefore, was not examined when the applications for permanent residence in Canada of herfather and mother were processed. She is, therefore, excluded from the family class pursuant toparagraph 117(9)(d) of the Immigration and Refugee Protection Regulations.”I also considered Ms. Sandhu’s circumstances living in India without her parents. Ms Sandhuwas one month old at the time of her father’s departure for Canada and four years old at thetime of her mother’s departure for Canada. According to information provided by Ms. Sandhuat her interview, when her mother left for Canada in 1995, she admitted Ms. Sandhu in aboarding school. Ms. Sandhu has been studying in the boarding school and staying in the school
  • 6. hostel since then. Ms. Sandhu has grand parents, maternal and paternal uncles and aunts andcousins as well as friends in Punjab, the state of India in which she lives. Ms. Sandhu’s paternalgrandfather, paternal uncle and his family and some cousins live about 4 or 4 ½ hours from theschool hostel. She spends her school holidays with her maternal grandparents and uncles andwith her paternal grandfather, uncles and cousins.I noted that Ms. Sandhu has lived in India for 15 years without her father and for 11 yearswithout her mother. Ms. Sandhu remembers only one visit from her father and brother and threevisits from her mother. Her mother visits for 1 or 1-1/2 months. Her mother speaks to her on thetelephone once or twice a week.By letter dated June 5, 2006, I refused Ms. Sandhu’s application. In my refusal letter, I advisedthat I was refusing the application because I had determined that there were insufficienthumanitarian or compassionate considerations to grant her permanent resident status or exempther from any applicable criteria or obligation of the Act. The reasons are set out in my entry inthe CAIPS notes dated June 5, 2006. [My emphasis]III. The Applicants Affidavit[14] The applicant filed an affidavit in support of her application in which she states she isfifteen years old, “sorely misses her parents and because her parents have been away from Indiasince she was of a very young age, I have cherished whatever time they have been able to spendwith me whenever they came to visit me in India.”[15] The applicant deposes “after each trip when they returned to Canada, I experiencedsupreme loneliness. The sadness of being away from my parents eats away at my heart andquite often I cannot even concentrate on my studies.” She continues noting she cannot run toher parents in order to obtain solace from them and “life has been extremely difficult for me thatsometimes when I am sitting alone and my being away from my parents hits me, I spend hoursand hours crying.” She adds that being away from her parents has affected her health physicallyand psychologically because “like any other child, I long to be with my parents.” She notes thatsometimes she has “suicidal tendencies because I feel desperately alone.”[16] She asserts she needs to be with her parents without further delay because “I amgetting at an age where physically I am developing also and I want to be close to my mother so Ican discuss my growing issues with my mother.”IV. Her Fathers Affidavit[17] Her father also filed an affidavit in support of her application. He indicates he wassponsored to Canada as a dependent child in 1989 and “at the order of my parents I was alsomarried in 1989. I had no choice with respect to my marriage and no choice with respect to myapplication for permanent residence in Canada because in our culture, one is required to obeyone’s parents without question.”
  • 7. [18] He confirms his daughter, the applicant, was born on January 9, 1991, and his wifewas sponsored in August of that year. He deposes “because of the order made by my parents, Idid not include my daughter with my wife’s sponsorship and my wife, also because of the orderof my parents, did not include my above daughter in her application for permanent residence.”He adds the following at paragraphs 6 and 7: That I believe in telling the truth and each time there was a diversion from telling the truth, it hurt me a lot emotionally. However, in our culture, the concept of obedience of orders given by parents is very strong and I simply had to go along with orders. It hurt me a lot but I believe I had no choice. That even though I made a variety of misguided applications based on my parent’s orders, applications based on wrong information were not successful.IV. AnalysisA. The applicants evidence[19] I am not at all moved by the father of the applicants evidence. He shows no remorsefor his numerous successful and not so successful attempts to deceive immigration officials andcausing unnecessary waste of public funds by forcing the Canadian government to undertakeinvestigations to uncover his schemes.[20] I do not doubt the sincerity of the applicant when she says she wants to be reunitedwith her mother. However, I have reservations about the consequences she feels about not beingwith her parents.[21] During her interview, which was conducted in Punjabi with the applicantaccompanied by her cousin, she simply stated she missed her mother and did not elaborate on theeffects she identified in her affidavit. She also stated she liked staying at the hostel because shehad friends there.B. The Standard of Review[22] The standard of review of a visa officers decision related to an application forpermanent residence in Canada based on humanitarian and compassionate considerations isreasonableness (see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII699 (SCC), [1999] 2 S.C.R. 817) "which means a decision which is not supported by any reasonsthat can stand up to a somewhat probing examination… The Court must look to see whether anyreasons support the decision."C. Some Principles[23] I take from the jurisprudence in Baker, above, and the Federal Court of Appealsdecision in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475(CanLII), 2002 FCA 475, the following principles which are derived from Justice Décarysmajority reasons:
  • 8. … [2] First, Baker v. Canada (Minister of Citizenship andImmigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 andLegault v. Canada (Minister of Citizenship and Immigration),2002 FCA 125 (CanLII), [2002] 4 F.C. 358 (C.A.) (leave to appealdenied by the Supreme Court of Canada, November 21, 2002,SCC 29221), stand for the proposition that the best interests of thechild is an important factor that must be given substantial weight.Legault stands for the further proposition that the best interests ofthe child is not determinative of the issue of removal to be decidedby the Minister. To the extent, therefore, that they could lead tothe impression that the "best interests of the child" factor should begiven some form of priority or preponderance, the words "primaryconsideration" found in Article 3, paragraph 1 of the Conventionon the Rights of the Child [November 20, 1989, [1992] Can. T.S.No. 3] (see paragraph 33 of my colleagues reasons) should beread with caution. (I am assuming, [page562] solely for the sake ofthis discussion, that removal of a parent is an "action concerningchildren" within the meaning of Article 3, paragraph 1 of theConvention, which Convention, as is noted by my colleague, hasbeen ratified by Canada but has not been enacted into domesticlaw.)[3] Second, I agree with counsel for the Minister that to insistas a matter of law that an immigration officer spell out expresslythat she had considered the best interests of the child beforeexamining the degree of hardship to which the child would besubject, is to elevate form above substance.[4] The "best interests of the child" are determined byconsidering the benefit to the child of the parents non-removalfrom Canada as well as the hardship the child would suffer fromeither her parents removal from Canada or her own voluntarydeparture should she wish to accompany her parent abroad. Suchbenefits and hardship are two sides of the same coin, the coinbeing the best interests of the child.[5] The officer does not assess the best interests of the childin a vacuum. The officer may be presumed to know that living inCanada can offer a child many opportunities and that, as a generalrule, a child living in Canada with her parent is better off thana child living in Canada without her parent. The inquiry of theofficer, it seems to me, is predicated on the premise, which neednot be stated in the reasons, that the officer will end up finding,absent exceptional circumstances, that the "childs best interests"factor will play in favour of the non-removal of the parent. Inaddition to what I would describe as this implicit premise, the
  • 9. officer has before her a file wherein specific reasons are allegedby a parent, by a child or, as in this case, by both, as to why non-removal of the parent is in the best interests of the child. Thesespecific reasons must, of course, be carefully examined by theofficer.[6] To simply require that the officer determine whether thechilds best interests favour non-removal is somewhat artificial --such a finding will be a given in all but a very few, unusual cases.For all practical purposes, the officers task is to determine, in thecircumstances of each case, the likely degree of hardship to thechild caused by the removal of the parent and to weigh this degreeof hardship together with other factors, including public policyconsiderations, that militate in favour of or against the removal ofthe parent.[7] The administrative burden facing officers in humanitarianand compassionate assessments -- as is illustrated by section 8.5of Chapter IP 5 of the "Immigration Manual: Inland Processing(IP)" reproduced at paragraph 30 of my colleagues reasons -- isdemanding enough without adding to it formal requirements asto the words to be used or the approach to be followed in theirdescription and analysis of the relevant facts and factors. Whenthis Court in Legault stated at paragraph 12 that the best interestsof the child must be "well identified and defined", it was notattempting to impose a magic formula to be used by immigrationofficers in the exercise of their discretion.[8] Third, I reject the argument submitted by the intervener,the Canadian Foundation for Children, Youth and the Law,that even if a reasonable balancing of the various factors hasbeen made by the officer, the reviewing Court must go a stepfurther and consider whether the damage to the childs interests isdisproportionate to the public benefit produced by the decision.To require such a further step would be to reintroduce through theback door the principle confirmed in Legault that the best interestsof the child is an important factor, but not a determinative one.[9] Fourth, "hardship" is not a term of art. As notedin section 6.1 of Chapter IP 5 of the Immigration Manual(reproduced at paragraph 30 of my colleagues reasons), theadministrative definition of "unusual and undeserved hardship"and "disproportionate hardship" in the Manual are "not meantas hard and fast rules" and are, rather, "an attempt to provideguidance to [page 564] decision makers when they exercisetheir discretion". It is obvious, for example, that the concept
  • 10. of "undeserved hardship" is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship. [10] That being said, I agree with my colleague that on the facts of this case, the officer was not "alert, alive and sensitive" to the childs best interests, more particularly in summarily dismissing the childs own concerns and ignoring, for all practical purposes, the financial implications for the child of her mothers removal. The matter was properly sent back by Pelletier J. to the Minister for reconsideration.V. Conclusion[24] Counsel for the applicant principally and essentially argued the visa officer in effectfailed to take into account the best interests of the applicant, as required under section 25 of theAct, because he gave excessive and overriding weight to the deceitful actions of her parents tosuch an extent that the decision was punitive in nature.[25] He made a subsidiary argument the applicant asked for the reasons for decision whichwere not received. There is no substance to this argument as the applicants application for leaveand judicial review indicates the decision-makers reasons were received. These are the reasonsexpressed in the CAIPS notes.[26] I cannot accept counsel for the applicants argument on the main point whileaccepting it would be in the best interest of the applicant to be with her parents.[27] As stated in Hawthorne, above (which was a case different than the one before thecourt here because it was a question of separating a parent from her child, who had the rightto remain here, by removing the parent) the best interest of the child is an important factorand should be given substantial weight in an H&C application but is not determinative of theissue. The best interests of the child must be balanced with other factors including public policyconsiderations. I hasten to add the wording of section 25 of the Act says just that "…is justifiedby humanitarian and compassionate considerations relating to them, taking into account the bestinterests of a child directly affected or by public policy considerations. [Emphasis mine][28] The visa officer engaged in the balancing test including the actions of her parentswhich breached the integrity of Canadas immigration system and the applicants personalcircumstances. I cannot conclude the balancing was unreasonable. This was the result reached byJustice Strayer in similar circumstances in the Yue above.[29] I conclude by saying the applicants separation from her parents is their choice, andthat it need not be that way.
  • 11. JUDGMENT This judicial review application is dismissed. No certified question was proposed. "François Lemieux" Judge FEDERAL COURT SOLICITORS OF RECORDDOCKET: IMM-4176-06 STYLE OF CAUSE: AMANDEEP KAUR SANDHU v. MCIPLACE OF HEARING: Vancouver, BCDATE OF HEARING: February 7, 2007REASONS FOR JUDGMENT: LEMIEUX J. AND JUDGMENTDATED: February 9, 2007Best interests of the child In cases where a child is directly affected by a refusal decision, the VO should indicate both in the refusal letter as well as in the CAIPS notes that they actively considered the best interests of the child. It would likely be insufficient to simply state in the refusal letter that "I have considered the best interests of the children affected by the decision," if there is nothing further in the CAIPS notes. In the Legault case (Legault v. Canada (Minister of Citizenship and Immigration) it is made clear that the best interests of the child do not "outweigh" all other factors; in other words, it is not the case
  • 12. that the childrens best interests should prevail unless there are "gravest countervailing grounds."What the VO has to do is demonstrate somewhere on the record that they have carefullyconsidered the interests ofthe children and that these interests have been "identified and defined" in a manner beyond meremention. An indication on the record of what is in the childrens interest and the reasons for thisopinion would be the minimum required to demonstrate that the VO was sensitive to thechildrens interest. This would mean including in the notes a brief analysis of whether (and why)itwould be in the childrens interest if the applicant were to be granted humanitarian andcompassionate consideration.

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