Tuesday, November 1, 2011

The Court set aside a refusal to grant an exemption on humanitarian grounds of a child refused due to non declaration pursuant to section 117 9 (d). The Court found the officer's conclusion about the best interests of the child and the country conditions unreasonable:

[80] The Officer herself makes the situation in Zimbabwe a significant factor in her analysis and, of course, it ought to be when assessing the best interests of the Applicant. I think her incorrect analysis of the situation is a highly material error that renders the Decision unreasonable. I cannot say that the Officer would have come to the same conclusion regarding the best interests of the Applicant if she had taken into account what the evidence does say about declining conditions in Zimbabwe and the prospects for the Applicant if he has to remain there. Consequently, I believe this matter requires reconsideration.

[81] I am also concerned by the Officer’s assessment that “it is possible that [the Applicant] does have contact with his [biological] mother.” The evidence from the Sponsor is clear that there is no such contact and there is nothing in the record to suggest this is not true. The fact that the Applicant may have had a contact address for his biological mother does not mean that she plays, or will play, any role in his life. If the Officer felt that the Sponsor could not be believed on this issue, then she should have interviewed him to test his credibility. Her failure to do this renders her suggestion that the biological mother could be available to the Applicant unreasonable. Once again, this renders the Decision unsafe regarding the Officer’s analysis of the Applicant’s best interests. The finding was highly material and there is no evidence to support the Officer’s conclusion.

2011 FC 1243
Key Issues: 
H & C Regulation 117 (9) (D), Best interests of child