Baker v. Canada ( Minister of Citizenship and Immigration )
IMM-2477-94
Simpson J.
26/6/95
16 pp.
Application for judicial review of refusal of application for consideration on humanitarian and compassionate (H&C) grounds-Applicant, citizen of Jamaica, entered Canada as visitor in 1981-Thereafter worked illegally as live-in domestic for 11 years and gave birth to 4 children-After birth of last child, diagnosed as paranoid schizophrenic-In 1993, applied for landing on H&C grounds-Refused without written reasons-On request of applicant's counsel, case history notes prepared by immigration officer for superior produced-No notes or reasons from superior officer-Assessment must therefore be based entirely on immigration officer's notes-However, in previous case involving same immigration officers, Marques v. Canada (Minister of Citizenship & Immigration) (1995), 27 Imm. L.R. (2d) 209 (F.C.T.D.), Trial Judge not prepared to assume good faith of superior and required affidavit from him indicating reasons for decision-Wrong approach-In Shah v. Minister of Employment and Immigration (1994), 170 N.R. 238, FCA combined lack of requirement for reasons with heavy burden on applicant-In practical terms, in absence of evidence to contrary, H&C decision presumed made properly-Superior not required to file affidavit and matter not sent back on basis of lack thereof-Conclusion of immigration officer applicant would be tremendous strain on welfare system for probably rest of life supported by evidence-Notes listing all H&C factors-No bias revealed in comments-Evidence children significant factor in decisionmaking process-Convention on the Rights of the Child, s. 3 (in all actions concerning children best interests of child shall be primary consideration) not applicable as deportation of parents not action concerning children-Convention, s. 9 not applicable as deportation not requiring separation of parent and child-Doctrine of legitimate expectation applicable to matters of procedures, not applicable to determination of application on basis of children's welfare as primary factor-Furthermore, Convention ratified but not incorporated in domestic law-Application dismissed-Question certified: Given that Immigration Act not expressly incorporating language of Canada's international obligations with respect to Convention on the Rights of the Child, must federal immigration authorities treat best interests of Canadian child as primary consideration in assessing applicant under Immigration Act, s. 114(2)-Convention on the Rights of the Child, November 20, 1989, [1992] Can. T.S. No. 3-Immigration Act, R.S.C., 1985, c. I-2 s. 114(2) (as am. by S.C. 1992, c. 49, s. 102).