Legault v. Can. (M.C.I.) (2002), 288 N.R. 174 (FCA)
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Temp. Cite: [2002] N.R. TBEd. AP.038
The Minister of Citizenship and Immigration (appellant) v. Alexander Henri Legault (respondent)
(A-255-01; 2002 FCA 125; 2002 CAF 125)
Indexed As: Legault v. Canada (Minister of Citizenship and Immigration)
Federal Court of Appeal
Richard, C.J., Décary and Noël, JJ.A.
March 28, 2002.
Summary:
Legault applied pursuant to s. 114(2) of the Immigration Act for an exemption, based on humanitarian and compassionate grounds, from the requirement prescribed in s. 9(1) of the Act that his application for permanent residence be submitted from outside Canada. An immigration officer refused the application. Legault applied for judicial review.
The Federal Court of Canada, Trial Division, in a decision reported at 203 F.T.R. 47, allowed the application. The court held that although the immigration officer considered the best interests of Legault’s six Canadian born children, it could not be said that she gave those interests the “substantial weight” that Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) directed that those interests be given. The Minister appealed.
The Federal Court of Appeal allowed the appeal and restored the immigration officer’s decision. The court held that the immigration officer examined the interests of the children with a great deal of attention, that she weighed that factor in the light of other factors related, inter alia, to Legault’s past conduct, and that she made a decision which was reasonable in the circumstances.
Aliens – Topic 4
Definitions and general principles – Children – An adjudicator found that Legault was criminally inadmissible under the Immigration Act and issued a conditional deportation order – Legault applied pursuant to s. 114(2) of the Act for an exemption, based on humanitarian and compassionate grounds, from the requirement prescribed in s. 9(1) that his application for permanent residence be submitted from outside Canada – Legault had six Canadian born children for whom he provided support – An immigration officer refused Legault’s application – The Federal Court of Canada, Trial Division, allowed an application for judicial review, holding that although the immigration officer considered the children’s best interests, she did not give those interests the “substantial weight” directed by Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) – The Federal Court of Appeal allowed an appeal and restored the immigration officer’s decision – The court held that the immigration officer examined the children’s interests with a great deal of attention, that she weighed that factor in the light of other factors related, inter alia, to Legault’s past conduct, and that her decision was reasonable.
Aliens – Topic 4
Definitions and general principles – Children – The Federal Court of Appeal stated that “[i]t is certain, with Baker [S.C.C.] that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh [S.C.C.], that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to reexamine the weight given to the different factors by the officers. In short, the immigration officer must be ‘alert, alive and sensitive’ (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children … does not call for a certain result … Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any ‘refoulement’ of a parent illegally residing in Canada” – See paragraphs 11 to 12.
Aliens – Topic 4
Definitions and general principles – Children – At issue on appeal was whether an immigration officer gave sufficient consideration to the interests of an applicant’s children in dismissing his humanitarian and compassionate application under s. 114(2) of the Immigration Act – The Federal Court of Appeal held that the mere mention of children was not sufficient to fulfil the requirements of Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) – The court stated that “[t]he interests of the children is a factor that must be examined with care and weighed with other factors. To mention is not to examine and weigh” – See paragraph 13.
Aliens – Topic 4
Definitions and general principles – Children – At issue on appeal was whether an immigration officer gave sufficient consideration to the interests of an applicant’s children in dismissing his humanitarian and compassionate application under s. 114(2) of the Immigration Act – The Federal Court of Appeal held that Baker v. Canada (Minister of Citizenship and Immigration) (S.C.C.) did not create a prima facie presumption that the children’s best interests should prevail subject only to the gravest countervailing grounds – See paragraph 13.
Aliens – Topic 4
Definitions and general principles – Children – The following question was certified: “Is the fact that an applicant under s. 114(2) of the Immigration Act faces an outstanding indictment for serious offences in a foreign country one of those ‘other considerations’ or ‘other reasons’ mentioned in paragraph 75 in Baker [S.C.C.], which might outweigh the children’s best interests” – The Federal Court of Appeal held that the Minister could take into account the actions, past and present, of the person that requested the exemption – See paragraph 29.
Aliens – Topic 1206
Admission – Immigrants – Upon compassionate or humanitarian grounds – [See first, third, fourth and fifth
Aliens – Topic 4
].
Aliens – Topic 1228
Admission – Immigrants – Application for admission – Immigrant visa – Place of application – [See first
Aliens – Topic 4
].
Aliens – Topic 1229
Admission – Immigrants – Application for admission – Immigration visa – Exemptions – [See first
Aliens – Topic 4
].
Cases Noticed:
Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 2].
Sadeghi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 337; 254 N.R. 337 (F.C.A.), refd to. [para. 2].
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, consd. [para. 4].
Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; 252 N.R. 1 (F.C.A.), consd. [para. 8].
Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1 (S.C.C.), refd to. [para. 9].
Chieu v. Canada (Minister of Citizenship and Immigration) (2002), 280 N.R. 268 (S.C.C.), refd to. [para. 10].
Langner v. Ministre de l’Emploi et de l’Immigration et al. (1995), 184 N.R. 230 (F.C.A.), leave to appeal refused [1995] 3 S.C.R. vii; 193 N.R. 400, refd to. [para. 12].
Maple Lodge Farms v. Canada et al., [1982] 2 S.C.R. 2; 44 N.R. 354; 137 D.L.R.(3d) 558, refd to. [para. 20].
Zand-Vakili v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 222 (T.D.), refd to. [para. 28].
Kessler et al. v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 240 (T.D.), refd to. [para. 28].
Agbonkpolor v. Minister of Employment and Immigration (1994), 85 F.T.R. 39 (T.D.), refd to. [para. 28].
Wekpe v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R.(2d) 274 (F.C.T.D.), refd to. [para. 28].
Martin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1517 (F.C.T.D.), refd to. [para. 28].
Chau v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 55 (T.D.), refd to. [para. 28].
Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R.(3d) 206 (F.C.T.D.), refd to. [para. 28].
Mayburov et al. v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 280 (T.D.), refd to. [para. 28].
Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161 (T.D.), refd to. [para. 28].
Quan v. Canada (Minister of Citizenship and Immigration) (2001), 15 Imm. L.R.(3d) 114 (F.C.T.D.), refd to. [para. 28].
Russell v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 97 (T.D.), refd to. [para. 28].
Chan v. Canada (Minister of Citizenship and Immigration) (1994), 87 F.T.R. 62 (T.D.), refd to. [para. 28].
Drame v. Ministre de l’Emploi et de l’Immigration (1994), 82 F.T.R. 177 (T.D.), refd to. [para. 28].
Statutes Noticed:
Immigration Act, R.S.C. 1985, c. I-2, sect. 114(2) [para. 3].
Counsel:
Normand Lemyre and Daniel Latulippe, for the appellant;
Julius H. Grey, for the respondent.
Solicitors of Record:
Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;
Grey Casgrain, Montreal, Quebec, for the respondent.
This appeal was heard on March 18, 2002, at Montreal, Quebec, before Richard, C.J., and Décary and Noël, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Décary, J.A., on March 28, 2002.
