IMMIGRATION DEPORTATION – Deferral of removal pending finalization of spousal sponsorship – Best interests of the child

Huang v. Canada (MPSEP), 2018 FC 446, Country: China, Barnes J. (April 25, 2018)

Our client was scheduled to be deported. His wife was a Canadian permanent resident and together, they were parents of a six year old boy. We made a request for a deferral of his removal – based primarily on the principle of family unity and the prejudice to his young child arising from a possible lengthy separation. We asked the enforcement officer to allow him to stay until the finalization of his outstanding spousal sponsorship, but our request was denied.

We helped our client to seek the intervention of the Federal Court to stay his deportation. The court was satisfied we had met the legal test for a stay of removal and the deportation was stopped in the interim while the case proceeded to judicial review. On judicial review, the Honourable Justice Barnes was not satisfied that the officer’s analysis adequately addressed the evidence bearing on the child’s best interests in this case. It is significant that the court stated that the suggestion in the officer’s decision that the “the best interests of the child threshold could only be met with satisfactory evidence showing ‘irreparable and permanent separation’ vastly overstates the burden” (at para. 8). The relevant paras read:

[7]  I am not satisfied that the above analysis adequately addressed the evidence bearing on the child’s best interests in this case.  The likely lengthy separation of Mr. Huang from his child of tender years cannot be reasonably described on this record as routine or unexceptional.  I accept that a stronger argument could have been made about the financial and care-giving hardships faced by this family in the event of Mr. Huang’s removal.  However, there was evidence that the family was surviving on Ms. Lin’s modest income and repaying a relatively significant mortgage.  Mr. Huang was also looking after the child care responsibilities while Ms. Lin worked.

[8]  The suggestion in the Officer’s decision that the best interests of the child threshold could only be met with satisfactory evidence showing “irreparable and permanent separation” vastly overstates the burden.  There is no doubt that this separation would be prolonged and, therefore, hurtful to the child’s formative needs.  The lengthy separation of a parent from a child of tender years requires a far more nuanced assessment than this one.

The Federal Court also noted that it is one thing for a deferral officer to limit the scope of a best interests analysis where the child’s interests have already been fully considered in an earlier review and in situations where this has not occurred. Paragraph 9 reads:

[9]  It is one thing for a deferral officer to limit the scope of a best interests analysis in circumstances where the child’s interests have already been fully considered in an earlier review. It is quite another to conduct such a review where those interests have never been addressed before the proposed removal of a parent.  In this latter situation, the review must be reasonably robust.  Central to the exercise of that discretion must be a careful assessment of the length of the likely separation and the financial and emotional hardships that are expected to prevail over time.  In my view, the analysis done here was perfunctory and inadequate and, therefore, unreasonable.

The officer’s decision under review was set aside and sent back for re-determination.

To read the full case: https://www.canlii.org/en/ca/fct/doc/2018/2018fc446/2018fc446.html