Jani v. Canada (Citizenship and Immigration), 2018 FC 1229 : Refusal Upheld Where Officer Reasonably Found Remaining in India Was in Children’s Best Interests

Brothers Kshitij and Darshith Jani sought judicial review after an immigration officer refused humanitarian and compassionate relief from their exclusion under paragraph 117(9)(d) of the IRPR. The Federal Court upheld the refusal after examining the officer’s best-interests analysis, the allegations of bias and the Charter argument, finding that remaining in India with their mother, grandparents, community and established support network was in the children’s best interests.

Key Principle

In an H&C application involving children, the decision-maker must be alert, alive and sensitive to their best interests and assess those interests contextually. However, the best interests analysis does not require accepting the parents’ preferred living arrangement. An officer may independently conclude, on the evidence, that remaining in the child’s existing environment is in the child’s best interests, provided those interests are clearly identified, carefully examined and reasonably explained.

Background

The applicants were born in India in 2008 and 2009. Their father became a Canadian permanent resident in 2010 but did not declare either son in his skilled-worker application. He initially claimed he learned of their paternity only after moving to Canada, but later admitted that he had always known they were his sons.

Because they had not been declared and examined, the boys were excluded from the family class under paragraph 117(9)(d). The family argued that the boys faced stigma as children of an unmarried mother, had better educational and healthcare opportunities in Canada, and had psychological concerns. Their psychological assessments were also submitted. The officer concluded instead that they were cared for and supported in India and that removing them from their mother and familiar environment could negatively affect them.

Court Findings

• Best Interests Assessment Was Reasonable

The Court found that the officer did more than merely state that the children’s interests had been considered. The reasons focused extensively on their individual circumstances, including their mother’s role as primary caregiver, their grandparents, community, culture, education, health and psychological evidence. The officer could reasonably find that remaining in India was preferable.

• Error About Parents’ Marriage Was Not Determinative

The officer incorrectly found that the boys’ biological parents were married. However, the evidence showed that the parents presented themselves as married. There was therefore no evidence that the boys were perceived as children of an unwed mother. The factual error did not undermine the overall decision.

• Bias and Parental-Rights Arguments Failed

The allegation of a reasonable apprehension of bias failed because the officer who conducted the allegedly hostile interview was not the officer who ultimately decided the applications. There was no evidence that the deciding officer was improperly influenced.

The Court also rejected the Charter argument concerning parental decision-making. The sponsorship barrier resulted from the father’s earlier decision not to declare the children.

 Outcome

The Federal Court dismissed both applications for judicial review. It found the H&C decision justified, transparent and intelligible and concluded that the officer reasonably and carefully determined that remaining in India was in both children’s best interests. No question of general importance was proposed or certified.

Case Citation:

Jani v. Canada (Citizenship and Immigration), 2018 FC 1229 (CanLII)