Shallow v. Can. (M.C.I.), (2012) 410 F.T.R. 314 (FC)

Judge:Snider, J.
Court:Federal Court
Case Date:June 07, 2012
Jurisdiction:Canada (Federal)
Citations:(2012), 410 F.T.R. 314 (FC);2012 FC 749
 
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Shallow v. Can. (M.C.I.) (2012), 410 F.T.R. 314 (FC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] F.T.R. TBEd. JN.048

Hayden Fay Dan Shallow, Chasford Harbana Logrick Glasgow, and Cazzie Shy-Ann Shallow, By His Litigation Guardian Hayden Fay Dan Shallow (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5529-11; 2012 FC 749; 2012 CF 749)

Indexed As: Shallow et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Snider, J.

June 14, 2012.

Summary:

The applicants were citizens of St. Vincent. The female applicant arrived in Canada in December 2000 on a visitor's visa. She was followed by her husband in November 2001 and by their son in July 2009. The female applicant and her husband had one Canadian-born child. In 2010, the applicants applied for permanent residence on humanitarian and compassionate grounds. The application was rejected. The applicants sought judicial review.

The Federal Court allowed the application, remitting the matter for reconsideration.

Aliens - Topic 1206

Admission - Immigrants - Upon humanitarian and compassionate grounds - The applicants were citizens of St. Vincent - The female applicant arrived in Canada in December 2000 on a visitor's visa - She was followed by her husband in November 2001 and by their son in July 2009 - The female applicant and her husband had one Canadian-born child - In 2010, the applicants applied for permanent residence on humanitarian and compassionate (H&C) grounds - The application was rejected - The applicants sought judicial review, asserting, inter alia, that the immigration officer had erred in finding that their level of establishment was insufficient to warrant allowing their application - The Federal Court rejected this ground of review - Establishment was a relevant factor - However, merely managing to evade deportation for a lengthy period of time ought not to enhance an applicant's right to remain in Canada on H&C grounds - The applicants' stay in Canada was of their own choosing - They could have returned to St. Vincent at any time - For establishment to weigh in favour of the applicant, "much more than simple residence" had to be demonstrated - See paragraphs 6 to 9.

Aliens - Topic 1206

Admission - Immigrants - Upon humanitarian and compassionate grounds - The applicants were citizens of St. Vincent - The female applicant arrived in Canada in December 2000 on a visitor's visa - She was followed by her husband in November 2001 and by their son in July 2009 - The female applicant and her husband had one Canadian-born child - In 2010, the applicants applied for permanent residence on humanitarian and compassionate grounds - The application was rejected - The Federal Court set aside that decision, remitting the matter for reconsideration - The immigration officer erred in assessing the hardship that would be caused to the applicants if they had to return to St. Vincent to apply for permanent residence - The officer's conclusion that the poor socioeconomic conditions in St. Vincent "may or may not be experienced" by the applicants was speculative, at best, and arguably had no basis in the evidence - Further, the officer's reliance on distinguishing the female applicant's present circumstances from her childhood was also misplaced, as the applicants indicated that it was their family's recent experience of poverty, and in particular their inability to provide their son with adequate food or medical treatment, that led them to travel to Canada - The officer's decision could not be said to demonstrate justification, transparency and intelligibility within the decision-making process - See paragraphs 10 to 14.

Aliens - Topic 1206

Admission - Immigrants - Upon humanitarian and compassionate grounds - The applicants were citizens of St. Vincent - The female applicant arrived in Canada in December 2000 on a visitor's visa - She was followed by her husband in November 2001 and by their son in July 2009 - The female applicant and her husband had one Canadian-born child - In 2010, the applicants applied for permanent residence on humanitarian and compassionate (H&C) grounds - The application was rejected - The Federal Court set aside that decision, remitting the matter for reconsideration - The immigration officer failed to engage with the evidence in assessing the best interests of the children - Immigration officers had to identify what was in an affected child's best interest before determining whether the child's interests would be compromised by their removal from Canada, such that the family should remain in Canada on H&C grounds - Rather than accepting that the best interests of the children would likely favour non-removal, the officer escaped that conclusion by ignoring the evidence of poor socioeconomic conditions in St. Vincent - The officer's conclusion that "[i]nsufficient evidence ha[d] been provided" was conclusory and unreasonable in that there was no explanation as to how the children's parents would overcome the significant obstacles to accessing health care and education in St. Vincent, beyond wishful statements regarding love and ambition - See paragraphs 15 to 20.

Cases Noticed:

Singh Gill v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 510; 2011 FC 863, refd to. [para. 5].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 5].

Serda et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 209; 2006 FC 356, refd to. [para. 7].

Mooker v. Canada (Minister of Citizenship and Immigration) et al., [2008] F.T.R. Uned. 386; 2008 FC 518, refd to. [para. 14].

Hawthorne v. Canada (Minister of Citizenship and Immigration) (2002), 297 N.R. 187; 2002 FCA 475, refd to. [para. 15].

Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2005), 268 F.T.R. 122; 2005 FC 91, refd to. [para. 17].

Elenes Gaona at al. v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 660; 2011 FC 1083, refd to. [para. 18].

Counsel:

Daniel Kingwell, for the applicants;

Nicole Paduraru, for the respondent.

Solicitors of Record:

Mamann, Sandaluk & Kingwell LLP, Immigration Lawyers, Toronto, Ontario, for the applicant;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on June 7, 2012, by Snider, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on June 14, 2012.

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