Baker v. Canada Minister of Citizenship and Immigration

1. 2. 3. 9 Simpson J. certified the following as a “serious question of general importance” under s. 83(1) of the Immigration Act: “Given that the Immigration Act does not expressly incorporate the language of
Canada’s international obligations with respect to the International Convention on the Rights of the
Child, must federal immigration authorities treat the best interests of the Canadian child as a primary consideration in assessing an applicant under s. 114(2) of the Immigration Act?” 4. 5.

6. There are several factors in which determine the content of procedural fairness, according to the Supreme Court. As written in Knight v. Indian Head School Division No.19, ,(1990), “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case”. This refers to the basis that there are no two cases alike, thus there is no standard definition for what is fair in all cases, as fairness varies according to the circumstances. The duty of procedural fairness is to make sure that decisions made on the administrative level are done so in a manner that is fair, and appropriate to the context in which the decision is being based on.

7. 8. 9. 10. In making their decision, immigration officers are forced to make H&C decisions, (Humanitarian and Compassionate considerations). The immigration officers who make such decisions are given a set of rules in which to conduct their decisions. These officers have a duty to decide which cases are to be given a favourable recommendation. By doing so, they must take into perspective every aspect of the case, and placing the “average person” in the case, and the decisions that would be made by such average person. Although officers are not expected to explore factors in which were not presented during the interviews or examination, it is beneficial for them to illuminate humanitarian grounds, as well as public policy considerations.

17 The guidelines also set out the bases upon which the discretion conferred by s. 114(2) and the
Regulations should be exercised. Two different types of criteria that may lead to a positive s. 114(2) decision are outlined -- public policy considerations and humanitarian and compassionate grounds.
Immigration officers are instructed, under guideline 9.07, to assure themselves, first, whether a public policy consideration is present, and if there is none, whether humanitarian and compassionate circumstances exist. Public policy reasons include marriage to a Canadian resident, the fact that the person has lived in Canada, has become established, and has become an “illegal de facto resident”, and the fact that the person may be a long-term holder of employment authorization or has worked as a foreign domestic. Guideline 9.07 states that humanitarian and compassionate grounds will exist if “unusual, undeserved or disproportionate hardship would be caused to the person seeking consideration if he or she had to leave Canada”. The guidelines also directly address situations involving family dependency, and emphasize that the requirement that a person leave Canada to apply from abroad may result in hardship for close family members of a
Canadian resident, whether parents, children, or others who are close to the claimant, but not related by blood. They note that in such cases, the reasons why the person did not apply from abroad and the existence of family or other support in the person’s home country should also be considered.
C. Procedural