Last updated on August 7th, 2019
One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).
In the removals context, s. 67(1)(c) of Canada’s Immigration and Refugee Protection Act specifically provides that removal orders issued as a result of misrepresentation may be excused in light of sufficient H&C considerations. As the Federal Court of Canada noted in Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451, even though Parliament intended there to be consequences for misrepresentation, it also recognized that there may be circumstances where a removal order issued due to misrepresentation may be cured by H&C relief
The balancing act can be especially complex when children are involved. In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.
As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application. This is simply not the case. For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “best interests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental to our societal notion of justice, and hence is not a principle of fundamental justice.
In Moore v. Canada, the Federal Court had the opportunity to analyze the relationship between the bests interests of the child analysis and misrepresentation. There, Justice Scott cited Ebebe v Canada (Minister of Citizenship and Immigration), 2009 FC 936, and noted that:
In Ebebe, Justice Barnes mentions that the officer was alert, alive and sensitive to the best interests of the child. After reviewing the conclusions of the officer in this regard, he concludes at para 21, that:
All of the above confirms that the Officer carried out a thorough and thoughtful assessment of the best interests of the child. What is essentially being advanced on behalf of Mr. Ebebe is that this decision must be irrational because, in the end, the Officer’s concerns about Mr. Ebebe’s misconduct overwhelmed the evidence supportive of maintaining family unity. While a different decision could certainly have been reached on this record, it was not an error to give great and, indeed, overriding weight to Mr. Ebebe’s misconduct. This was, after all, a case of serious and prolonged misrepresentation of the sort that was of concern to the Court in Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125,  4 FC 358 at paragraph 19:
In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions.
Justice Scott similarly found that the bests interests of the child do not necessarily trump misrepresentation.
The case is a useful reminder of both the severity of misrepresentation, as well as that the best interests of the child are not determinative.