JFCY was a public interest litigant in a judicial review of a decision to continue the detention of a woman, BB, held in immigration detention together with her Canadian-born daughter as a so-called “guest” for almost a year. BB had raised the detrimental effect of detention on her child as a relevant factor in her detention review hearing before the Immigration Division. The Immigration Division determined that it could not consider the best interests of the child and continued BB’s detention. BB sought judicial review of that decision.
On consent of the parties, the Federal Court issued an order clarifying the state of the law with respect to the Immigration Division’s consideration of the best interests of the child.
The Order confirms that the best interests of a non-detainee child may be taken into account when determining whether to release or detain a person for immigration purposes. The Order may have broader implications for children in immigration detention generally and for raising other factors in detention review hearings, such as the mental health status of detainees.
As a result of this case, CBSA Hearings Officers have been instructed to bring this Order to the attention of Immigration Division members, and have been advised that previous case law does not stand for the proposition that the Immigration Division cannot consider the best interests of the child.