2016
The portion of the Decision which deals with the Applicant's s 25(1) submissions, in essence, can be reduced to the following:
a) The Applicant (an 8-year-old boy) will not suffer any unusual or disproportionate hardship if he remains in China because the separation from his parents and siblings "was a direct result of [his] sponsor's personal choice"; and
b) "While factors affecting children should be given substantial weight, the best interests of a child is only one of the many important factors that need to be considered when making a humanitarian and compassionate decision that directly affects a child."
In short, this Decision is far from what an H&C decision involving three children ought to be. Meanwhile a young boy remains in China, with aging grandparents who are in poor health, with no prospect of long-term care and without the immediate family who yearn to be reunited with him. The Officer in this case appears to think that this is an acceptable situation, by and large, because his father chose to leave him behind when he himself came to Canada with the family to establish himself. But a very young boy can do nothing about the hard choices his family feels it had to make to leave China.
THIS COURT'S JUDGMENT is that
1. The Decision is quashed;
2. Within 30 days of the date of this order, a different H&C Officer will reconsider and decide this matter in accordance with my reasons;
16
The Officer said that while s 117(9)(d) may apply in this case, subject to the possible application of s 117(1), the exception in s 117(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] does not apply to the Applicant as he was not disclosed by his sponsor in his application for permanent residence nor at his landing. Due to this non-disclosure, an officer could not make a determination that he was not required by the Act to be examined. Consequently, the Applicant was deemed excluded as a member of the family class.
In addressing the Applicant's request that H&C reasons be considered pursuant to s 25 of the Act, the Officer concluded that the Applicant's application failed to present sufficient grounds to warrant a positive consideration. Specifically, the Officer was not satisfied that the Sponsor did not intentionally exclude the Applicant on his permanent residence application made in March 2009.
The Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."
The Applicant did not meet this burden and has failed to demonstrate that the Decision was based on a finding of fact that was truly erroneous, made capriciously and without regard to the evidence.
The Applicant argues that overall, the Officer demonstrated an extreme lack of sensitivity and empathy in this Decision. He did not acknowledge the suffering that the Applicant would experience from a negative decision, but continued to remind the Applicant that his parents chose to leave him in China. A proper BIOC analysis, in line with the requirements of the Kolosovs, above, test was never conducted and the Decision should be quashed.
Permanent Residence
General relevance - all sectors
Manggagawa (im) migrante
Alberta
Pranses and Ingles
