A Canadian Federal Court judge has struck down an Immigration Appeal Division (IAD) ruling claiming that under law, unborn children have no “best interests” to consider until they have undergone a live birth.

This raises very interesting points.

Let us examine some of the facts published in a 20-page judgment as it relates to Mr. Li who came to Canada in April 2002,  aged 18, on a genuine student permit, and that some 19 months later he “fraudulently” married a Canadian citizen to become a legal resident.

He became a landed immigrant in August 2007 and divorced in December 2008. In January 2012, he entered into a genuine marriage with his present wife from the bona fide marriage, a Canadian citizen.

Canada Border Services Agency carried out an investigation with respect of a marriage of convenience, a report was written and Mr. Li was convoked for an admissibility hearing for misrepresentation. At this hearing a removal order was issued against him.

He appealed this decision to the Immigration Appeal Division. At this hearing he conceded he was inadmissible due to misrepresentation but submitted that he should be allowed to remain in Canada under humanitarian and compassionate grounds. The IAD held that the evidence confirms that Li and his wife are well-established and he and his wife would suffer hardship if he was removed from Canada.

The IAD then proceeded to the analysis of the best interests of the then-unborn child. The IAD accepted that the appellant’s wife was pregnant and expecting their first child on Oct. 15, 2014.

The IAD held that it could not give much weight to the pregnancy: “The fact of the pregnancy is just that and the panel cannot give it much weight given that until there is a live birth there are per se no best interests to take into consideration such that the best interests of this yet-to-be-born child would be determinative of the appeal.”

In balancing the factors, the IAD mentioned that it had to take into consideration the maintenance of the integrity of the immigration system and, there should be consequences to one who commits misrepresentation. Consequently, the IAD was of the opinion that even if there were a number of positive considerations, such as the applicant’s establishment in Canada, that “to offer a relief under these circumstances would send a message that rolling the dice was preferable to candour.”

Thus, the IAD held that the removal order was valid in law and there were insufficient humanitarian and compassionate considerations to merit special relief in light of all the circumstances. The appeal was dismissed and he then sought judicial review.

A Federal Court judge ruled that “an unborn child’s best interest” must be considered equal to those of a child already born when assessing immigration claims.

The judge quashed the IAD’s decision that upheld the removal order issued against Mr. Li whose wife was five months pregnant at the time of the appeal hearing in June 2014.  He ordered the matter be remitted to the IAD for new assessment by a different panel.

In this case, the judge stated, “The IAD was of the opinion that notwithstanding numerous positive considerations, Mr. Li decision to enter into a marriage of convenience in 2003 had to be punished.  For the reasons below, the court finds that the IAD unreasonably considered the humanitarian factors, that thus, its decision is unreasonable.”

Secondly the IAD unreasonably held that an applicant can only demonstrate remorse if she or he tells his / her employer and his / her relatives of previous wrongdoing. While this might be one of several factors to consider, it is unreasonable to doubt Mr. Li’s remorsefulness, simply because he did not tell his employer and all of his relatives that he committed a misrepresentation in the past, the judge ruled.

Thirdly, and most importantly, the legislation specifically provides at paragraph  67(1)© of the IRPA that removal orders, issued as a result of misrepresentation may be excused in light of sufficient  humanitarian and compassionate consideration. Thus, even though Parliament did intend there be consequences for misrepresentation, it also recognized there may be circumstances where a removal order issued due to misrepresentation may be cured by special relief, the judge opined.

Sukhram Ramkissoon is a member of ICCRC and specializes in immigration matters at 3089 Bathurst St., Suite 219A, Toronto. Phone 416-789-5756.