JASMINE CURLEITHA CHARLES Applicant v. THE MINISTER OF CITIZENSHIP, 2021 FC 682

Date: 20210629 Docket: IMM-2437-20 Citation: 2021 FC 682 St. John’s, Newfoundland and Labrador, June 29, 2021 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:JASMINE CURLEITHA CHARLESApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Ms.

Jasmine Curleitha Charles (the "“Applicant”") seeks judicial review of the decision made by an Officer (the "“Officer”"), on orabout May 1, 2020, denying her request to seek permanent residence from within Canada on Humanitarian and Compassionate ("“H andC”") grounds, pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "“Act”"). [2] The Applicant is a citizen of St. Vincent and the Grenadines. She entered Canada as a visitor on February 26, 1999 and has remainedsince that day. She is a mother of a child who was born in Canada in 2013.

She based her H and C application on her establishment inCanada and the best interests of her child, among other things. [3] The Officer’s decision is reviewable on the standard of reasonableness, pursuant to the decision in Canada (Minister of Citizenshipand Immigration) v.

Vavilov (2019), 2019 SCC 65 , 441 D.L.R. (4th) 1 (S.C.C.). [4] The Applicant argues that the Officer’s decision is unreasonable, in particular with respect to the elements of establishment and thebest interests of her Canadian-born child. [5] The Minister of Citizenship and Immigration (the "“Respondent”") submits that the decision is reasonable. [6] Upon reading the materials filed and hearing the submissions of Counsel, I am not satisfied that the decision is reasonable.

Judicialintervention in this matter is warranted. [7] In my opinion, the Officer unreasonably used the fact that the Applicant stayed in Canada since 1999 without status, in assessing herestablishment in Canada since that time. The failure to regularize immigration status is not, per se, a factor that minimizes a person’sestablishing in Canada; see the decision in Mitchell v. Canada (Citizenship and Immigration), 2019 FC 190. [8] The Officer also unreasonably found that there was limited evidence of establishment.

This conclusion is not supported by theevidence. [9] In my view, the Officer further erred in her assessment of the best interests of the Applicant’s Canadian-born child by apparentlydismissing the fact that the child has spent his life in Canada.

I agree with the submissions of the Applicant that the Officer did notengage with the best interests of the Canadian-born child. [10] The following quotation from the Officer’s reasons demonstrates a misguided approach to assessment of the child’s best interests: … While I have considered that remaining united in Canada with his mother would be ideal, I am not persuaded that a returnto St. Vincent would seriously harm the child’s best interests.

I am mindful that the child will retain his Canadian citizenshipregardless of where he resides and thus will be afforded all the rights and opportunities available to other Canadian citizens.

Ifind it is in the best interests of the child to remain united with his mother regardless of geographical location. [11] While an H and C application involves the exercise of discretion by the Respondent and his agents and delegates, that discretion isto be exercised reasonably with a fair assessment of the personal circumstances of an applicant and not in a mechanical manner, seeking away to deny an application. [12] It is not necessary for me to address the other arguments raised by the Applicant. [13] The application for judicial review will be allowed, the decision of the Officer will be set aside and the matter remitted to a differentofficer for redetermination.

There is no question for certification arising. JUDGMENT in IMM-2437-20 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Officer is set aside and thematter is remitted to a different officer for redetermination. There is no question for certification arising.

“E. Heneghan” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2437-20 STYLE OF CAUSE: JASMINE CURLEITHA CHARLES v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELB BY WAY OF VIDEOCONFERENCE DATE OF HEARING: JUNE 28, 2021 JUDGMENT AND REASONS: HENEGHAN J. DATED: JUNE 29, 2021 APPEARANCES : Lorne Waldman FOR THE APPLICANT Leanne Briscoe FOR THE RESPONDENT SOLICITORS OF RECORD : Lorne Waldman Waldman & Associates Toronto, Ontario FOR THE APPLICANT Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT