2021 FC, 2021 FC 1070

Date: 20211014 Docket: IMM-6626-20 Citation: 2021 FC 1070 Ottawa, Ontario, October 14, 2021 PRESENT: The Honourable Madam Justice Simpson BETWEEN:THE MINISTER OF CITIZENSHIP AND IMMIGRATIONApplicantandSEVIL HUSEYNOVARespondent JUDGMENT AND REASONS (Delivered orally from the Bench by teleconference at Ottawa, Ontario on September 29, 2021) I.

THE PROCEEDING [1] This application for judicial review is brought by the Minister of Citizenship and Immigration (the “Minister”) with respect to adecision of the Immigration Appeal Division (“IAD”) dated December 7, 2020 (the “Decision”), in which it allowed the appeal andrestored the Respondent’s permanent resident status on humanitarian and compassionate (“H&C”) grounds notwithstanding her failure tomeet her residency obligation under s. 28 of Immigration and Refugee Protection Act ("“IRPA”"). II.

THE FACTS [2] Before the IAD, the Appellant asked for H&C relief because her daughter in Canada was pregnant and she planned to reside with herdaughter and her husband and the expected grandchild in order to care for the child so that her daughter could return to work. The IADaccepted that this was a bona fide plan. III.

DISCUSSION [3] The Minister has agreed that there is no need to have the H&C application reconsidered because his concern is with the analysisundertaken by the IAD, not with its decision to allow the appeal and grant H&C relief. [4] The Minister’s concern, with which I agree, is that the IAD conducted a Best Interests of the Child (“BOIC”) analysis and based itsdecision in large part on the best interests of the Applicant’s unborn grandchild.

The IAD made the following finding and reached thefollowing conclusions: FINDING [35] I find that the Appellant’s daughter’s unborn child would benefit from the Appellant residing in Canada. This is astrong positive factor in the appeal.

CONCLUSIONS [37] … the Appellant’s daughter’s unborn child would benefit from the Appellant residing in Canada. [38] I find that the Appellant’s family ties to her daughter and the best interests of her unborn grandchild outweigh thenegative factors in this appeal. [39] The Appellant did not make best efforts to integrate into Canadian society when she became a permanent resident.However, her Canadian family ties and the best interests of her unborn grandchild are significant positive factors that justifyher retaining her permanent resident status. [5] In my view, the decision of the Supreme Court of Canada in Winnipeg Child and Family Services (Northwest Area) v DFG, (SCC), [1997] 3 SCR 925, [1997] 3 RCS 925, [1997] SCJ No 96, [1997] ACS no 96 makes it clear that an unborn child hasno interests.

That being the case, the IAD incorrectly considered the best interests of the Respondent’s unborn grandchild. It had nointerests. IV. CONCLUSION

[ 6 ] The application for Judicial Review is dismissed. V. CERTIFICATION [ 7 ] No question was posed for certification for appeal. JUDGMENT IN IMM-6626-20 THIS COURT’S JUDGMENT is that 1 . The application for Judicial Review is hereby dismissed. "Sandra J. Simpson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-6626-20 STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION v SEVIL HUSEYNOVA PLACE OF HEARING: By TELEconference DATE OF HEARING: September 29, 2021 JUDGMENT AND REASONS: SIMPSON J.

DATED: October 14, 2021 APPEARANCES : Ian Hicks For The Applicant Ronald Poulton For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Department of Justice Toronto, Ontario For The Applicant Somjen Law Office Toronto, Ontario For The Respondent