Judge urges new rules for ‘best interest of a child’

By Sukhram Ramkissoon

A 39-year-old citizen of Jamaica who was landed in 1989 at age 15 and later ordered deported for several serious criminal offences was successful in Federal Court in having his negative decision on his H & C application set aside. I will refer to him as Norman.

The case as reported shows Norman had a long criminal history. He had an appeal before the IAD in which he was granted a stay, then came his non compliance of his conditions and as a result his appeal was abandoned.

He filed for judicial review in 2011. It was dismissed. However, the judge noted Norman would appear “to be a strong candidate for an H&C decision.” In March 2013, an immigration officer refused his H&C application.

He then made another H &C application, requesting the decision be reconsidered regarding his support and involvement with his children. This was denied and he sought judicial review.

A number of factors were submitted for reconsideration – the best interests of his children, including documentary evidence to support his presence and involvement with all his 10 children and the impact on the care and development the children if he had to leave Canada; and his remorse for his multiple serious offences including risk of recidivism.

Other factors were presented, such as establishment for 24 years, financial support for his spouse and children in Canada, community and volunteering activities, etc.

The officer weighed all relevant factors and rejected the H&C application primarily due to the insufficiency of evidence. In particular, the officer concluded there was insufficient evidence concerning the applicant’s involvement and support of his children such that it did not outweigh the negative attributes of his significant criminal record.

A Federal Court judge in reviewing the application granted judicial review and made certain recommendations. In April 2012, five of Norman‘s children were removed from their mother’s care and custody on consent and were placed in his care. This was in addition to two children already residing with him.

CAS indicated the children would be at risk of harm if the mother continued to have custody due to a number of child protection concerns. The children were to remain in Norman’s care under CAS supervision for six months. CAS stated that placing the children with their father was believed to be in their best interest .CAS also indicated staff at the children’s schools had noted that, since being in Norman’s care, their attendance had improved and their negative behaviors had diminished.

“In my view,” stated the judge, “the evidence demonstrated that there was a serious possibility, even a probability, that Norman’s children, who had been previously determined to be vulnerable and at risk by qualified experts, would suffer unduly if the father was removed.

“The risks are such that they are more than comparable and probably exceed those of the children referred to in two Federal Court cases; such further inquiry is essential for an H & C decision to be made in a reasonable manner.

“I conclude that the officer could not have been alert, alive and sensitive to the affected children’s interests by simply accepting that a failure to provide updated evidence was sufficient to allow her to determine, in the circumstances of (this) case, the likely degree of hardship to the (children) caused by the removal of the parent and to weigh this degree of hardship together with other factors, including public policy considerations, that militate in favor of or against the removal of the parent.”

The judge added, “It is of concern to the court that it is setting aside a decision of an H&C officer on an issue that arises primarily because the applicant and his counsel failed to provide complete and updated evidence on the best interests of the affected children. Realistically, decision-makers in the immigration and refugee regime cannot be responsible for ensuring evidence on the best interests of children is brought before them.

“In my view, new rules should be put in place imposing obligations on applicants making submissions based on the best interests of children to provide all relevant and updated evidence that are pertinent to this issue, particulars of which should be specified in the rules. In addition, counsel acting for applicants on these cases should certify that they have explained the obligations on the applicants to bring forward all pertinent evidence on the best interests of the children and that have understood this obligation.”

The application was allowed and referred to a different officer for consideration.

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

Sukhram Ramkissoon
Sukhram Ramkissoon