Kisana v. Can. (M.C.I.) (2009), 392 N.R. 163 (FCA)
MLB headnote and full text
Temp. Cite: [2009] N.R. TBEd. JL.029
Sushil Kisana, Seema Kisana and Subleen Kisana by her Litigation Guardian, Sushil Kisana (appellants) v. The Minister of Citizenship and Immigration (respondent)
(A-199-08)
Sushil Kisana, Seema Kisana and Lovleen Kisana by her Litigation Guardian, Sushil Kisana (appellants) v. The Minister of Citizenship and Immigration (respondent)
(A-200-08; 2009 FCA 189)
Indexed As: Kisana v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Létourneau, Nadon and Trudel, JJ.A.
June 4, 2009.
Summary:
The minor appellants were the twin daughters of the appellants, Sushil and Seema Kisana. The girls were born in India in 1991 before their parents were married. Sushil immigrated to Canada in 1993, and was landed as an unmarried dependent of his parents. He married Seema in 1994 and subsequently sponsored her for permanent residence in Canada. Seema was landed in 1999. Both Sushil and Seema were now Canadian citizens. Neither had listed their daughters as dependents on their permanent residence applications. The girls’ aunt had been caring for them in India. Sushil’s 2003 application to sponsor his daughters for permanent residence as members of the family class was refused because the twins had not been declared as dependents and examined at the time Sushil had been granted permanent residence (Immigration and Refugee Protection Regulations, s. 117(9)(d)). In 2005, Sushil and Seema again applied to sponsor their daughters and they requested that the application be considered on humanitarian and compassionate (H&C) grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act. A visa officer refused the application. The appellants applied for judicial review.
The Federal Court, in decisions reported at [2008] F.TR. Uned. 241 and [2008] F.T.R. Uned. 302, dismissed the applications. The court certified the following question: Does fairness require that an officer conducting an interview and assessment of an application by a child for landing in Canada to join her parents be under a duty to obtain further information concerning the best interests of the child if the officer believes the evidence presented is insufficient. The appellants appealed.
The Federal Court of Appeal dismissed the appeals. The court held that the applications judge did not err in holding that the officer had given adequate consideration to the children’s best interests and that the officer’s decision was reasonable. The court also held that the visa officer did not have a duty to make further inquiries in this case. The court stated that “Because of the highly factual and variable circumstances of each H&C application, I cannot see how the certified question can be answered in the affirmative. However, I do not rule out the possibility that there may be occasions where fairness may or will require an officer to obtain further and better information. Whether fairness so requires will therefore depend on the facts of each case”. The court therefore declined to answer the certified question.
Aliens – Topic 4
Definitions and general principles – Children – In Gill v. Canada (Minister of Citizenship and Immigration) (2008 FC), a child sponsorship decision, Campbell, J., held that an analysis of the child’s best interests required a contextual approach based on family law principles – The Federal Court of Appeal held that Campbell, J.’s approach was wrong and should not be followed – Contrary to family law cases where the best interests of the children were the determining factor, it was not so in immigration cases where, although the best interests of a child were an important factor, they were not determinative and were but one factor to be weighed along with others – See paragraphs 36 to 37 and 72.
Aliens – Topic 4
Definitions and general principles – Children – The Federal Court of Appeal, per Trudel, J.A., stated that “being ‘alert, alive and sensitive’ to the best interests of the child does not simply require that an immigration officer take the child’s interests into account when he or she performs the final weighing of the evidence. It also requires that the officer be ‘alert, alive and sensitive’ to the child’s needs and interests when he or she is being interviewed … a child should not be treated the same as an adult in a call-in interview that will seriously affect his or her interests. … in my view the officer must keep in mind the linguistic, cognitive and emotional differences between children and adults when conducting an interview. … In short, while an officer is under no obligation to attempt to elicit all evidence that may help a child’s case, being ‘alert, alive and sensitive’ to the child’s best interests requires that an interview be conducted in a manner that will allow the child to express him or herself effectively” – See paragraphs 65 to 68.
Aliens – Topic 4
Definitions and general principles – Children – [See first, third and fifth
Aliens – Topic 1206
].
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – The minor appellants were the twin daughters of the appellants, Sushil and Seema Kisana – They were born in India – Sushil and Seema became permanent residents and citizens of Canada – The twins remained in India in the care of their aunt – Neither Sushil nor Seema had listed their daughters as dependents on their permanent residence applications – Sushil and Seema applied to sponsor their daughters for permanent residence and they requested that the application be considered on humanitarian and compassionate grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act – A visa officer refused the application – The appellants’ applications for judicial review were dismissed – The appellants appealed – The appellants argued that the officer failed to expressly consider that it was the parents and not the twins who made the misrepresentations, that the parents were not subject to enforcement action and that the parents were permitted to remain in Canada – The Federal Court of Appeal held that it was not incumbent on the officer to highlight the fact that the twins were innocent of any wrongdoing – The court stated that “the factors favouring reunification of the family in Canada will not always outweigh the public policy concerns arising from a misrepresentation. This is not tantamount to ‘visiting the sins of the mother upon the children'” – Similarly, an officer was not bound to mention the fact that the parents’ removal from Canada had not been sought as a result of their misrepresentations – The fact that the parents were entitled to remain in Canada was self-evident in cases of children “left behind” – See paragraphs 25 to 27.
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – The minor appellants were the twin daughters of the appellants, Sushil and Seema Kisana – They were born in India – Sushil and Seema became permanent residents and citizens of Canada – The twins remained in India in the care of their aunt – Sushil and Seema applied to sponsor their daughters for permanent residence and they requested that the application be considered on humanitarian and compassionate (H&C) grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act – A visa officer refused the application – The appellants’ applications for judicial review were dismissed – The appellants appealed, arguing that the officer erred in refusing to accept the consistent oral statements of the twins and their aunt – The Federal Court of Appeal held that the appellants’ argument that the officer should have accepted the twins’ interview statements as proof of their communication with their parents because of an absence of contradictory evidence was without merit – The appellants had the burden of proving their claims – Having failed to adduce satisfactory evidence in that regard, they could not now argue that the officer erred in finding their interview statements insufficient – Further, a call-in interview, in the context of an H&C application, was not an oral hearing where witnesses had to take an oath or affirm that their testimony would be truthful – In the context of a call-in interview, assessment of credibility was neither the prime nor a significant purpose of the interview – Rather, the purpose was to determine whether there existed sufficient H&C grounds to grant permanent resident status or an exemption from the Act and its Regulations – See paragraphs 28 to 29.
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – The minor appellants were the twin daughters of the appellants, Sushil and Seema Kisana – They were born in India – Sushil and Seema became permanent residents and citizens of Canada – The twins remained in India in the care of their aunt – Sushil and Seema applied to sponsor their daughters for permanent residence and they requested that the application be considered on humanitarian and compassionate (H&C) grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act – A visa officer refused the application – The appellants’ applications for judicial review were dismissed – The appellants appealed, arguing that the officer limited her consideration of the best interests of the children to hardship, without focusing on other relevant factors – The Federal Court of Appeal stated that the fact that the officer focused her consideration of the children’s best interests on the question of hardship did not necessarily lead to the conclusion that she failed to consider their best interests – The officer found the interview statements to be insufficient evidence to justify an exemption under s. 25(1) of the Act – The appellants had the burden of proving the claims made in their H&C application – Although there could not be much doubt that the best interests of the minor children would require that they be reunited with their parents, that was not the question which the officer had to decide – She had to determine whether the girls’ best interests, when weighed against the other relevant factors, justified an exemption on H&C grounds – The applications judge made no error in holding that the officer had given adequate consideration to the children’s best interests and that her decision was reasonable – See paragraphs 30 to 40.
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – The minor appellants were the twin daughters of the appellants, Sushil and Seema Kisana – They were born in India – Sushil and Seema became permanent residents and citizens of Canada – The twins remained in India in the care of their aunt – Sushil and Seema applied to sponsor their daughters for permanent residence and they requested that the application be considered on humanitarian and compassionate grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act – A visa officer refused the application – The appellants’ applications for judicial review were dismissed – The appellants appealed – They argued that the officer was obliged to make an effort to obtain further information regarding the best interests of the children if she was of the opinion that what was before her was insufficient – The Federal Court of Appeal rejected the argument – The court stated, inter alia, “It may be that the pointed and narrow questions disclosed by the CAIPS notes probably did not constitute the most effective manner of obtaining information from these applicants, particularly in light of the lack of documentary evidence provided by them. However, the vacuum, if any, was created by the appellants’ failure to assume their burden of proof. In these circumstances, the officer’s poor interviewing techniques, if that be the case, are, in my view, insufficient to justify intervention on our part” – See paragraph 56.
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – The minor appellants were the twin daughters of the appellants, Sushil and Seema Kisana – They were born in India – Sushil and Seema became permanent residents and citizens of Canada – The twins remained in India in the care of their aunt – Sushil and Seema applied to sponsor their daughters for permanent residence and they requested that the application be considered on humanitarian and compassionate (H&C) grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act – A visa officer refused the application – The appellants’ applications for judicial review were dismissed – The appellants appealed – The appellants argued that the officer was obliged to make an effort to obtain further information regarding the best interests of the children if she was of the opinion that what was before her was insufficient – The Federal Court of Appeal stated that “Given that the appellants were represented by an immigration consultant, that the girls were clearly asked to bring to the interview documents pertaining to ‘communication with your sponsor, e.g. cards/letters, telephone bills’, and considering that their aunt had accompanied them to the interview and was also interviewed and thus had the opportunity of providing an explanation with regard to the children’s plight, I cannot conclude that the officer had a duty to make further inquiries. I have not been persuaded that, in the circumstances of this case, fairness required the officer to provide them with another opportunity to produce documents and/or information in support of their application” – The burden was on the appellants to demonstrate that there were sufficient H&C grounds to grant them an exemption from the requirements of the Act and its Regulations – They did not meet that burden – Hence, the officer did not have a duty to make further inquiries – However, the court did not rule out the possibility that there might be occasions where fairness would require an officer to obtain further and better information – Whether fairness so required would depend on the facts of each case – See paragraphs 42 to 62 and 70 to 71.
Aliens – Topic 1230
Admission – Immigrants – Application for admission – Immigrant visa – Duty of officer (incl. duty of fairness) – [See second
Aliens – Topic 4
and fifth
Aliens – Topic 1206
].
Cases Noticed:
New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 18].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [paras. 18, 65].
Thandal v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 363; 2008 FC 489, refd to. [para. 18].
Gill v. Canada (Minister of Citizenship and Immigration) (2008), 334 F.T.R. 229; 73 IMM. L.R.(3d) 1; 2008 FC 613, refd to. [para. 18].
Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 19].
Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 20].
Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 288 N.R. 174; 2002 FCA 125, refd to. [para. 23].
Momcilovic v. Canada (Minister of Citizenship and Immigration) (2005), 268 F.T.R. 150; 2005 FC 79, refd to. [para. 26].
Mulholland v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 99; 206 F.T.R. 77; 2001 FCT 597, refd to. [para. 26].
Li v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 735; 2006 FC 1292, refd to. [para. 27].
Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 131; 37 Imm. L.R.(3d) 150; 2004 FC 282, refd to. [para. 29].
Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302; 31 N.R. 34 (F.C.A.), refd to. [para. 29].
Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; 297 N.R. 187; 2002 FCA 475, consd. [paras. 30, 68].
Yue v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 440; 2006 FC 717, refd to. [para. 31].
Sandhu v. Canada (Minister of Citizenship and Immigration) (2007), 309 F.T.R. 243; 2007 FC 156, refd to. [para. 31].
Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 36].
Khan (S.H.) v. Canada (Minister of Citizenship and Immigration) (2001), 283 N.R. 173; 2001 FCA 345, refd to. [para. 45].
Del Cid v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 192; 2006 FC 326, consd. [para. 46].
Bassan v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 440; 2001 FCT 742, consd. [para. 46].
L.E.G. v. A.G., [2002] B.C.T.C. 1455; 2002 BCSC 1455, refd to. [para. 66].
R. v. L.T.H., [2008] 2 S.C.R. 739; 379 N.R. 247; 268 N.S.R.(2d) 200; 857 A.P.R. 200; 2008 SCC 49, refd to. [para. 66].
R. v. J.T.J., Jr., [1990] 2 S.C.R. 755; 112 N.R. 321; 70 Man.R.(2d) 81, refd to. [para. 66].
Statutes Noticed:
Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25(1) [para. 22].
Counsel:
Barbara Jackman, for the appellants;
Alexis Singer and Sharon Stewart-Guthrie, for the respondent.
Solicitors of Record:
Jackman & Associates, Toronto, Ontario, for the appellants;
John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.
These appeals were heard on March 11, 2009, at Toronto, Ontario, before Létourneau, Nadon and Trudel, JJ.A., of the Federal Court of Appeal. The judgment of the Court of Appeal was delivered on June 4, 2009, including the following opinions:
Nadon, J.A. (Létourneau, J.A., concurring) – see paragraphs 1 to 63;
Trudel, J.A. – see paragraphs 64 to 73.
