Saporsantos Leobrera v. Canada (Citizenship and Immigration)

Saporsantos Leobrera v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2010-06-01
Neutral citation
2010 FC 587
File numbers
IMM-3078-09
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20100601
Docket: IMM-3078-09
Citation: 2010 FC 587
Ottawa, Ontario, June 1, 2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ELAIZA SAPORSANTOS LEOBRERA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
(Simply due to clerical errors, two corrections are being made in regard to the reference of a specific number of a regulation (reference is made to section 20 rather than to section 2 on p. 16 at para. 36) and the word “that” substitutes the word “of” on p. 35 at para. 79)
I. Overview
[1] Every child is a dependent but not every dependent is a child.
[2] It is clear that Article 1 of the Convention on the Rights of Persons with Disabilities (CRD) is an inclusive definition which can be expanded; however, the distinction drawn between children with disabilities and adults with disabilities, with the added emphasis on the best interests of the former, shows that an adult with a disability remains an adult with a disability and ought not to be deemed a “child” for the purposes of the Convention on the Rights of the Child, (Can. T.S. 1992 No. 3) or section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
[3] The Court concludes that the distinction between children with disabilities and adults with disabilities in the CRD is significant for the current discussion. Both the Convention on the Rights of the Child and the CRD support the argument that childhood is a temporary state which is delineated by the age of the person, not by personal characteristics. It is recognized that the domestic legislation, the specified international instruments and the jurisprudence of the Federal Court of Appeal and the Supreme Court of Canada all lead to this conclusion.
[4] [59] … at the time the matter was considered by the Immigration Division, Mr. Poshteh was no longer a minor. He was 18 when he arrived in Canada. As I read the Convention, it is concerned with the interests of children while they are children. It does not purport to confer rights on adults.
[60] It is important in this case to distinguish between considerations such as whether an individual has the knowledge or mental capacity to understand the nature and effect of his actions, which are relevant, and the "best interests of the child" considerations under the Convention, which are not relevant. Mr. Poshteh was an adult when he invoked and became subject to Canada's immigration laws and procedures and therefore he cannot rely on the Convention.
(As Justice Marshall Rothstein has stated in the Federal Court of Appeal decision in Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 487, 2005 FCA 85).
II. Preliminary Note
[5] Both parties are in accord that the spelling error in the Style of Cause is to be rectified from “Leobreza” to “Leobrera”.
III. Judicial Procedure
[6] This is an application for judicial review pursuant to subsection 72(1) of the IRPA of a decision of an immigration officer, dated May 5, 2009, denying the Applicant’s humanitarian and compassionate (H&C) application.
IV. Background
[7] The Applicant, Ms. Elaiza Saporsantos Leobrera, is a mentally challenged 23 year old citizen and resident of the Philippines who is cared for by her grandparents.
[8] The Applicant’s mother is a Canadian citizen, having gained permanent residence through the skilled worker program. She is barred from sponsoring her daughter under the Family Class due to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR) on account of not declaring her during the initial immigration process. The mother states that Elaiza was omitted on the advice of an immigration consultant in order to avoid the risk of being inadmissible on medical grounds.
[9] The Applicant initiated an H&C application for an exemption from paragraph 117(9)(d) of the IRPR and subsection 38(1) of the IRPA, in regard to medical inadmissibility.
V. Decision under Review
[10] As a preliminary matter, the officer removed from the file, after summary review, all of the submitted documents dealing with conditions in the Philippines, except for a World Health Organization report, on the grounds that they were “open source general documents on the Philippines” and were not relevant to the claim.
[11] The officer found that the Applicant is not a member of the Family Class due to an informed decision by her sponsor not to declare her existence at the time of her immigration to Canada.
[12] The officer noted the representative’s argument that the Applicant’s caregivers, her grandparents, are aging and can no longer take care of her. This argument was rejected on the grounds that this situation does not constitute unusual hardship. The officer noted the sponsor has been in Canada since 2001 and has therefore had ample time in which to arrange for the care of the Applicant.
[13] The officer found no evidence to suggest that the Applicant faces unusual discrimination due to her disability. Specifically, the officer found no evidence of unusual poverty, of inadequate access to development opportunities or of a lack of special education facilities.
[14] The officer undertook an analysis of the best interests of the sponsor’s child, Ericka, and found that she would not be subject to unusual hardship if the sponsor is forced to return to the Philippines in order to care for the Applicant.
VI. Issues
[15] 1) Did the officer err by failing to make a proper determination of the best interests of a child directly affected by the decision, the Applicant herself, in accordance with section 25 of the IRPA?
2) Did the officer err by summarily dismissing evidence?
VII. Relevant Legislative Provisions
[16] The officer has the jurisdiction to consider H&C applications pursuant to subsection 25(1) of the IRPA, which states:
Humanitarian and compassionate considerations
25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
Séjour pour motif d’ordre humanitaire
25. (1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
[17] “Dependent child” is defined in section 2 of the IRPR as:
“dependent child”
« enfant à charge »
“dependent child”, in respect of a parent, means a child who
(a) has one of the following relationships with the parent, namely,
(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
(ii) is the adopted child of the parent; and
(b) is in one of the following situations of dependency, namely,
(i) is less than 22 years of age and not a spouse or common-law partner,
(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student
(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and
(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or
(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.
« enfant à charge »
“dependant child”
« enfant à charge » L’enfant qui :
a) d’une part, par rapport à l’un ou l’autre de ses parents :
(i) soit en est l’enfant biologique et n’a pas été adopté par une personne autre que son époux ou conjoint de fait,
(ii) soit en est l’enfant adoptif;
b) d’autre part, remplit l’une des conditions suivantes :
(i) il est âgé de moins de vingt-deux ans et n’est pas un époux ou conjoint de fait,
(ii) il est un étudiant âgé qui n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans ou est devenu, avant cet âge, un époux ou conjoint de fait et qui, à la fois :
(A) n’a pas cessé d’être inscrit à un établissement d’enseignement postsecondaire accrédité par les autorités gouvernementales compétentes et de fréquenter celui-ci,
(B) y suit activement à temps plein des cours de formation générale, théorique ou professionnelle,
(iii) il est âgé de vingt-deux ans ou plus, n’a pas cessé de dépendre, pour l’essentiel, du soutien financier de l’un ou l’autre de ses parents à compter du moment où il a atteint l’âge de vingt-deux ans et ne peut subvenir à ses besoins du fait de son état physique ou mental.
[18] Subsection 3(3) of the IRPA states:
Application
(3) This Act is to be construed and applied in a manner that
(a) furthers the domestic and international interests of Canada;
(b) promotes accountability and transparency by enhancing public awareness of immigration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments, foreign states, international organizations and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of the English and French linguistic minority communities in Canada; and
(f) complies with international human rights instruments to which Canada is signatory.
Interprétation et mise en oeuvre
(3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet :
a) de promouvoir les intérêts du Canada sur les plans intérieur et international;
b) d’encourager la responsabilisation et la transparence par une meilleure connaissance des programmes d’immigration et de ceux pour les réfugiés;
c) de faciliter la coopération entre le gouvernement fédéral, les gouvernements provinciaux, les États étrangers, les organisations internationales et les organismes non gouvernementaux;
d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada;
e) de soutenir l’engagement du gouvernement du Canada à favoriser l’épanouissement des minorités francophones et anglophones du Canada;
f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire.
VIII. Positions of the Parties
Applicant’s Position
1) Did the officer err by failing to make a proper determination of the best interests of a child directly affected by the decision, the Applicant herself, in accordance with section 25 of the IRPA?
[19] In the case of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 243 N.R. 22, the Supreme Court of Canada held that the best interests of the child are to be a “primary consideration” in any H&C determination and should be examined with “special attention”. The Applicant cites the case of Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555, where the Federal Court of Appeal held that the best interests of the child requires a thorough analysis to be undertaken with the child’s interests being “well identified and defined” (Applicant’s Memorandum of Fact and Law at paras. 14-15).
[20] The Applicant notes there is no definition of “child” in the IRPA, but submits the criteria used to determine if a person is a “dependent child” for the purposes of Family Class sponsorship, contained in section 2 of the IRPR, are determinative of whether a person is a “child” for the purposes of section 25 of the IRPA.
[21] The Applicant submits the officer erred by confining her analysis of the best interests of the child to the sponsor’s daughter Ericka and, in light of her disability, should have considered Elaiza as a “child”, in spite of her age (Applicant’s Memorandum of Fact and Law at para. 23).
a. Did the officer err by summarily dismissing evidence?
[22] The Applicant notes the officer dismissed a majority of the evidence submitted on the grounds of relevance (Applicant’s Memorandum of Fact and Law at para. 28, citing the case of Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 83 A.C.W.S. (3d) 264, 157 F.T.R. 35). The Applicant submits that a decision-maker is presumed to have reviewed all the evidence before her unless probative evidence which contradicts the decision-maker’s conclusions is not mentioned (Applicant’s Memorandum of Fact and Law at para. 30).
[23] The Applicant notes that the officer concluded that there was no evidence to suggest that Elaiza will suffer undue hardship due to poverty, education or lack of coverage of the disability system in the Philippines; and further submits that the documents which the officer removed from the file contained evidence contradicting these findings and show that disabled persons living in the Philippines suffer undue hardship (Applicant’s Memorandum of Fact and Law at paras. 34, 36).
Respondent’s Position
1) Did the officer err by failing to make a proper determination of the best interests of a child directly affected by the decision, the Applicant herself, in accordance with section 25 of the IRPA?
[24] The Respondent submits that the Applicant is not a “child” for the purposes of section 25 of the IRPA. The Respondent states the fact that the Applicant may fit the definition of a “dependent child” pursuant to section 2 of the IRPR is not determinative of whether she is a “child” for the purposes of an H&C application because “dependent child” deals with Family Class sponsorships, not H&C applications. The Respondent notes that the Convention on the Rights of the Child defines “child” as a person under the age of eighteen. Also, the Respondent submits the Applicant’s intellectual disability does not render her a child, as the law recognizes the right of persons with intellectual disabilities to make their own decisions to the extent of their abilities (Respondent’s Memorandum of Argument at paras. 8-10).
2) Did the officer err by summarily dismissing evidence?
[25] The Respondent submits the officer made a reasonable decision regarding the Applicant’s H&C request.
[26] The Respondent contends that the officer did not ignore evidence regarding the circumstances of disabled persons in the Philippines and considered all of the evidence which contradicted her findings. The Respondent submits the officer was not required to consider irrelevant evidence (Respondent’s Memorandum of Argument at para. 16).
Applicant’s Reply
[27] The Applicant replies that the Convention on the Rights of the Child is not incorporated into Canadian law and, although it may be used to guide interpretation of the IRPA, it is not determinative of the definition of “child.”
IX. Standard of Review
[28] In the case of Ramsawak v. Canada (Minister of Citizenship and Immigration), 2009 FC 636, [2009] F.C.J. No. 1387 (QL), Justice Yves de Montigny was faced with a similar issue regarding the extension of the best interests of the child analysis. Justice de Montigny considered the relevant standard of review and held:
[13] The first two issues raised by the applicants are clearly of a legal nature. The first one relates to the proper interpretation to be given to the concept of a “child” in the analysis required by the Supreme Court of Canada in assessing the “best interests of the child”. The second one bears upon the proper test to apply in an application under s. 25(1) of IRPA. These legal issues, however, are clearly intertwined with the factual matrix in which they arise; moreover, they pertain to the interpretation of the very statute empowering the officers to make their determinations, and it is to be assumed that the officers will have acquired a particular familiarity with the IRPA as a result of applying it in the normal course of their duties. For those reasons, I am of the view that the applicable standard of review in examining the first two questions ought to be the “reasonableness” standard.
[29] The Court agrees with Justice de Montigny that the appropriate standard of review is reasonableness.
X. Analysis
1) Did the officer err by failing to make a proper determination of the best interests of a child directly affected by the decision, the Applicant herself, in accordance with section 25 of the IRPA?
[30] H&C applications are meant to be exceptional remedies for deserving cases which do not fit the strict rules of the Canadian immigration system. The jurisprudence is clear that the best interests of children hold a special place in the H&C process. The unique nature of the best interests of the child analysis was aptly explained in Segura v. Canada (Minister of Citizenship and Immigration), 2009 FC 894, [2009] F.C.J. No. 1116 (QL):
[32] The Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, observed that what is required when conducting a best interests of a child analysis in an H&C context is an assessment of the benefit the children would receive if their parent was not removed, in conjunction with an assessment of the hardship the children would face if their parent was removed or if the child was to return with his or her parent.
[31] The “best interests of child” is not meant to be a decisive factor in an H&C application; however, it has long been recognized as a significant element in the process.
The prior jurisprudence of the Federal Court
[32] The expansion of the best interests of the child began in the case of Naredo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1250 (QL), 187 F.T.R. 47. In that case, the applicants’ children were over 18 years old at the time of their parents’ H&C application (Naredo at para. 20). As a result of their ages, the officer did not perform an analysis of the best interests of the children (Naredo at para. 21). In finding that the officer should have performed an analysis of the best interests of the child, the court held:
[20] Without going further, I conclude, against the requirements set out in Baker, that the analysis reflected in the reasons for the immigration officer's decision, as they relate to the interests of the applicants' children, is entirely insufficient; and I reach this conclusion bearing in mind the ages of the applicants' children, only one of whom was 18 or under at the date of the decision under review. Indeed, at that time, he was very close to 19 years of age. The two sons of the applicants, whatever their ages, remained "children" of the applicants who could reasonably be expected to be dramatically affected by the removal from Canada of their parents.
[21] I repeat here from what I regard to be the reasons for decision, the comments of the immigration officer with respect to the children:
Mr. Arduengo [and indeed, Ms. Arduengo as well] has two Canadian born children, aged 22 and 18 years. I recognize his sons willingness to submit a family class appliction [sic]. Having children born in Canada while their immigration status was undetermined and they possibly faced the requirement of having to leave Canada was a decision Mr. Arduengo [and, once again, presumably Ms. Arduengo] took.
It would also be their own decision if they were to leave their children, aged 22 and 18, in Canada. The parent are free to decide what would in the best interests of the children. The children will retain their Canadian citizenship no matter where they reside.
It goes without saying that the having of the children in Canada while their parents' immigration status was undetermined was not a "decision" that the children had any part in making.
[22] In paragraph 55 of her reasons on behalf of the majority of the Court in Baker, Madame Justice L'Heureux-Dubé wrote:
The officer was completely dismissive of the interests of Ms. Baker's children. As I will outline in detail in the paragraphs that follow, I believe that the failure to give serious weight and consideration to the interests of the children constitutes an unreasonable exercise of the discretion conferred by the section, notwithstanding the important deference that should be given to the decision of the immigration officer.
I am satisfied that the same could be said here. It was not open to the immigration officer, against the guidance provided by Baker, to simply leave the issue of what is in the best interests of the applicants' children to the applicants in circumstances where the applicants were about to be required to leave Canada to an uncertain fate in Chile. To do so, as was done here, was to be "completely dismissive" of the interests of the children. The immigration officer did not, herself, give "serious weight and consideration to the interests of the children...". Rather, she determined that the applicants would not be granted the right to apply for landing from within Canada and in so doing, left the agonizing decision of what would be in the best interests of the children to the applicants alone. (Emphasis added).
[33] In the case of Swartz v. Canada (Minister of Citizenship and Immigration), 2002 FCT 268, 218 F.T.R. 23, the applicants arrived in Canada with their son, Ronville, who was, at that time, 14 years old. The applicants could not regularize their status and made an H&C application when Ronville was 19 years old (Swartz at para. 2). The officer did not perform an analysis of the best interests of the child for Ronville, presumably because of his age (Swartz at para. 9).
[34] The court in Swartz took up the reasoning from Naredo, above, and held:
[14] I note at the outset that Ronville was 19 years old at the date of the interview and the decision, and he might legally be considered an adult. Nevertheless, in light of all his circumstances I find that the fact of his age does not prevent him from being considered a "child" for the purposes of considering the principle of the Baker decision. In Naredo v. Canada (Minister of Citizenship and Immigration) (2000), 192 D.L.R. (4th) 373, the applicants, who had two children, submitted an application for landing from within Canada on h & c grounds. On the date the application was rejected, the youngest child was 18 years old, and the eldest was 20 years old. In allowing the application, Mr. Justice Gibson commented, at para. 20:
The two sons of the applicants, whatever their ages, remained "children" of the applicants who could reasonably be expected to be dramatically affected by the removal from Canada of their parents.
In this case, I find that Ronville was a "child" within the principle of Baker, because although he was 19 years old, he was a dependant, and he was not authorized to work or to continue studies beyond May 2001, in Canada. (Emphasis added).
[35] The court concluded, at para. 25:
[25] I allow the application because in my opinion, despite her thorough review of most circumstances of this case, the immigration officer failed to give consideration to the best interests of the dependent son, Ronville, in light of the decision in Baker. (Emphasis added).
[36] The court’s use of the term “dependent son” is noteworthy because under the pre-IRPA system, “dependent son” was a defined term in section 2 of the Immigration Regulations, 1978, SOR/78-172 (IR), roughly equivalent to the modern definition of “dependent child” in the IRPR. It is also noteworthy that the court chose to use this term to interpret what was then subsection 114(2) of the Immigration Act of Canada, R.S.C. 1985, c. I-2, in light of the fact that subsection 2(1) of the IR limited the application of the definitions in that section to the IR. Nonetheless, it appears the court was persuaded that dependency is an overriding factor when determining whether a person is deserving of a best interests of the child analysis.
[37] In the case of Yoo v. Canada (Minister of Citizenship and Immigration), 2009 FC 343, 343 F.T.R. 253, the court was faced with two adult sons making a joint H&C claim with their father (Yoo at para. 1). The officer considered the sons, age 20 and 24 at the time, to be “dependent adults” and did not perform an analysis of the best interests of the children (Yoo at para. 9).
[38] The case of Yoo is significant because it is the first time a court cited the definition of “dependent child” contained in section 2 of the IRPR when considering whether a dependent adult can be a “child” for the purposes of section 25 of the IRPA (although, as will be explained below, the two definitions have never been explicitly compared to one another).
[39] In that case, the applicant submitted that the sons were both “dependent children” at the time of the H&C application because they were attending school full-time and were financially dependent on their father (Yoo at para. 20). The respondent argued that the sons did not remain “children” simply because they met the definition of “dependent children” in the IRPR. Instead, the respondent cited Article 1 of the Convention on the Rights of the Child and submitted that individuals are “children” only if they are under the age of 18 (Yoo at para. 25). The respondent concluded that there was no domestic or international law support for the proposition that the sons would be considered “children” merely on account of their dependency (Yoo at para. 26).
[40] The court cited Naredo, above, for the proposition that dependent adults could remain “children” for the purposes of H&C applications and held, with reference to the principle of judicial comity (Yoo at para. 31), that Mr. Yoo’s sons deserved a best interests of the child analysis. The court noted several factors which led to this conclusion:
[32] I am persuaded by Justice Gibson’s reasoning in Naredo that adult children may receive the benefit of a “best interests of the child” analysis and I should differ from that reasoning only if the evidence before me requires it. I find, in this proceeding, that the Applicant sons are deserving of a best interests of the child analysis because:
a. their father is the parent that undertook responsibility for their care after the mother abandoned the family in 1995 and rejected the sons in 1999;
b. the sons are financially dependent on their father as they pursue their education;
c. one, the younger Rubin, has been continuously in school and has not left the dependency;
d. the other, James, left school briefly but has returned to continue his education and is also financially dependent on his father; and
e. neither son had any choice in the situation they are in since they were compelled as children to leave their mother in Korea and join their father in Canada
[41] Although the court does not expound a list of factors to be considered when determining whether an adult is deserving of a best interests of the child analysis, it appears from the reasons that dependency was considered to be the defining characteristic of a “child”.
[42] The most recent decision in this chain of jurisprudence is Ramsawak v. Canada (Minister of Citizenship and Immigration), 2009 FC 636, [2009] F.C.J. No. 1387 (QL). In that case, the applicant made an H&C application which included two of his children, ages 18 and 21 (Ramsawak at para. 7). The officer did not perform an analysis of the best interests of the children, as they were both over 18 at the time of the application (Ramsawak at para. 9). Justice de Montigny heard similar arguments to those in Yoo, above, and held:
[17] All of these arguments put forward by the respondent were recently canvassed by my colleague Justice Mandamin in the case of Yoo v. Canada (Minister of Citizenship and Immigration), 2009 FC 343. Noting that Mr. Justice Gibson had already decided that adult age children were entitled to receive the benefit of “the best interests of the child” analysis in Naredo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1250, Mr. Justice Mandamin felt compelled to apply the same reasoning on the basis of judicial comity. I would also add, for the sake of completeness, that Justice MacKay followed the Naredo decision in Swartz v. Canada (Minister of Citizenship and Immigration), 2002 FCT 268, [2002] F.C.J. No. 340.
[18] While I may have some misgivings about these decisions, I find that it would be most inappropriate to unsettle the state of the law. With the exception of one contrary decision relied upon by the respondent, which itself was rendered in the context of a motion for a stay of removal (Hunte v. Canada (Minister of Citizenship and Immigration), IMM-3538-03), there appears to be no conflicting case law on this issue. Nor can it be said that relevant statutory authority or binding jurisprudence has been overlooked in coming to that conclusion. As a result, I am prepared to accept that the mere fact a “child” is over 18 should not automatically relieve an officer from considering his or her “best interests” along the lines suggested in Baker.
[19] That being said, the assessment of the best interests of the children must take into account the relevant facts of each case. The best interests of a two year-old infant, for example, will most certainly differ from those of a grown up young adult of 21. For example, it is clear from a reading of Mme Justice L’Heureux-Dubé’s decision in Baker that what she had in mind were the interests of minor children (see, for example, paras. 71 and 73, where she refers to the UN Convention on the Rights of the Child and to the importance and attention that ought to be given to children and “childhood”).
[20] Similarly, if one is to look at the hardship that a negative decision would impose upon the children of an H&C claimant, the autonomy of these children or, conversely, their state of dependency upon their parents, must be a relevant factor. In that respect, it is interesting to note that Justice MacKay came to the conclusion that the 19 year-old child of the applicant was still a “child” for the purposes of the Baker analysis because he was still a dependent and was not authorized to work or to continue his studies in Canada. Similarly, Justice Mandamin considered that the adult sons of the applicant were deserving of a best interest of the child analysis because they were financially dependent on their father as they were pursuing their education.
[21] In the present case, both younger applicants had, at the time of the application, regular or full-time jobs. According to the applicant’s record, they have both attained high school diplomas and are both permanently employed. They were clearly not in the same dependency relationship with their parents as the children considered in previous cases.
[22] However, there is more. Far from being dismissive, the officer did consider the submissions regarding the applicant’s two youngest children. Despite stating that Deevin Randy and Annalisa Nirmala would “not be considered under the factor Best Interests of the Children” by virtue of their age, the officer nonetheless considered their circumstances in the analysis of establishment and hardship. Under the heading “Links to Canadian Society”, the PRRA officer writes:
Deevin Randy and Annalisa Nirmala completed their education in Canada, though they began their studies in their home country. The two young applicants are both young adults and with their educational level, could potentially find work in their home country as they have done in Canada. They have not shown that they have any language barriers, or other significant obstacles, that would prevent them from being employed in their home country. Though they have spent some of their developmental years in Canada, I do not find that the link created for them provides excessive difficulties in returning to their home country.
[23] This analysis, it seems to me, cannot be characterized as being dismissive of their best interests. Of course, it is not cast the same way it would have been if they were still dependent on their parents, irrespective of their age. Because they are now self-sufficient, the impact of a negative H&C decision is not assessed indirectly, in terms of the consequences that might befall them as a result of their parents having to move back to Guyana; more appropriately, the officer looks at their prospects from their own perspective, with a view to determining their likelihood of integrating and finding jobs in their country of origin. This does not strike me as being antithetical or contrary to the best interests of the child analysis developed in Baker; it is rather a more apposite way to be “alert, alive and sensitive” to their needs and interests in light of their particular circumstances. Accordingly, I am of the view that the officer did not fail to appreciate and assess the factors relevant to the two youngest applicants, despite the fact that he did not undertake a separate analysis under the rubric of the “best interests of the children”. (Emphasis added).
[43] These cases have expanded the best interests of the child analysis to include adults in child-like states due to situations of dependency. The previous courts have emphasized the definition of “dependent child” found in section 2 of the IRPR and have minimized the role of the Convention on the Rights of the Child in interpreting section 25 of the IRPA. For the reasons that follow, the Court re-examines the path the prior jurisprudence has chosen.
(a) The inapplicability of the definitions in section 2 of the IRPR to the IRPA
[44] As mentioned above, the Applicant submits that the definition of “dependent child” in section 2 of the IRPR is “determinative” of whether a person is deserving of a best interests of the child analysis (Applicant’s Memorandum of Fact and Law in Reply at para. 3).
[45] The Court notes that subsection 1(1) of the IRPR states:
1. (1) The definitions in this subsection apply in the Act and in these Regulations
1. (1) Les définitions qui suivent s’appliquent à la Loi et au présent règlement
[46] Section 2 of the IRPR, where the definition of “dependent child” is found, states:
2. The definitions in this section apply in these Regulations
2. Les définitions qui suivent s’appliquent au présent règlement
[47] The Court concludes, in spite of the fact that “child” is undefined and may be open to interpretation, that the definition of “dependent child” is not applicable to section 25 of the IRPA due to the boundary placed on the definitions found in section 2 of the IRPR.
[48] The Court notes that the previous cases have not mentioned these provisions when citing the definition of “dependent child” in section 2 of the IRPR. Also, it is unclear how the earlier courts have used this definition to interpret section 25 of the IRPA. In light of the wording of section 2, it is the Court’s conclusion that the IRPA ought to be insulated from the definition of “dependent child” and it should not be used to influence section 25 of the IRPA.
[49] In spite of the barrier between the definition of “dependent child” and “child”, the Court will also discuss why, in its opinion, the definition of “dependent child” ought not to influence the interpretation of the definition of “child” in any way.
(b) The presumption of consistent expression
[50] The Court notes that the prior jurisprudence speaks of the dependency of the adults in question when they expanded the best interests of the child analysis. The case of Yoo, above, goes so far as to cite the definition in the IRPR, but nowhere has a court explained the interaction between the definition of “dependent child” and “child.”
[51] Although it has already been established that “dependent child” does not apply to the IRPA, the Court also finds that the use of the “dependent child” to interpret “child” is contrary to the presumption of consistent expression. In Sullivan on the Construction of Statutes (5th edition, 2008), Ruth Sullivan explains this presumption in the following terms:
It is presumed that the legislature uses language carefully and consistently so that within a statute or other legislative instrument the same words have the same meaning and different words have different meanings. Another way of understanding this presumption is to say that the legislature is presumed to avoid stylistic variation. Once a particular way of expressing a meaning has been adopted, it makes sense to infer that where a different form of expression is used, a different meaning is intended. (Sullivan at pp. 214-215).
[52] Setting aside, for the moment, the barrier in section 2 of the IRPR, this Court acknowledges that Parliament intended the terms “child” and “dependent child” to have different meanings due to the fact that different, although prima facie related, terms were used in the legislation. Parliament did not define “child” and this Court respects its choice by not importing the definition of a similar, but not identical, term into section 25.
[53] The case of Swartz, above, emphasizes the idea that dependency can lead the court to deem dependent adults to be “children” for the purposes of section 25. The court held “… I find that Ronville was a "child" within the principle of Baker, because although he was 19 years old, he was a dependant, and he was not authorized to work or to continue studies beyond May 2001, in Canada” (Swartz at para. 14). The Court observes that the case of Swartz, above, comes close to changing the “best interests of the child” analysis into “best interests of the dependent.”
[54] Although the Court is sympathetic to situations of dependency, it is also cognizant, in keeping with the presumption of consistent expression, that Parliament is presumed to have chosen to use “child” and “dependent child” for two distinct purposes and it would be questionable, in the absence of firm evidence to the contrary, to import, in whole or in part, the definition of one into the other.
(c) The importance of the Convention on the Rights of the Child
[55] As has been mentioned, the Respondent submits that the Applicant is not a “child” partially because Article 1 of the Convention on the Rights of the Child defines children as persons who are under the age of 18 (Respondent’s Memorandum of Argument at para. 8). The court in Yoo, above, implicitly dismissed