Chiamak Edokwe v. Canada (Minister of Citizenship and Immigration), 2006 FC 1452

 

 

 

Date: 20061201

Docket: IMM-354-06

Citation: 2006 FC 1452

Ottawa, Ontario, December 1, 2006

PRESENT:     The Honourable Mr. Justice Kelen

 

 

BETWEEN:

FELICIA CHIAMAK EDOKWE

Applicant

 

and

 

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

 

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]                        This is an application for judicial review of a decision of an immigration officer dated December 1, 2005 denying the applicant’s application for permanent residence on humanitarian and compassionate grounds (the H&C application) pursuant to subsection 25(1) of the Immigration and Refugee Protection Act (the Act).

Background

[2]                        The applicant is a citizen of Nigeria. She came to Canada as a participant in the World Youth Day celebrations on July 17, 2002. On September 18, 2002, the applicant applied for refugee protection. Her claim was dismissed on June 2, 2004. Leave to commence an application for judicial review of the Refugee Protection Division’s decision was dismissed on September 8, 2004. The applicant subsequently filed an H&C application on March 21, 2005. It was refused on December 1, 2005. This decision is the subject of this judicial review.

The decision under review

[3]                        The immigration officer found that the applicant had not demonstrated that there were sufficient humanitarian and compassionate grounds to warrant an exemption of subsection 11(1) of the Act, which requires that a foreign national must apply for a visa or other immigration document before entering Canada. The immigration officer was also not satisfied that the applicant would suffer unusual, undeserved or disproportionate hardship if she were required to apply for permanent residence from outside of Canada.

Relevant Legislation

[4]                        The legislation relevant to this application is the Immigration and Refugee Protection Act, S.C. 2001, c. 27. Subsection 25(1) of the Act states:

Humanitarian and compassionate considerations 25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.

Séjour pour motif d’ordre humanitaire   25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.

 

Issue

[5]                        The only issue raised in this application is whether the immigration officer erred in refusing the applicant’s H&C application.

Standard of Review

[6]                        The appropriate standard of review for H&C application decisions, as established by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 62, is reasonableness:

[…] I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.

[Emphasis added]

 

A decision is unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. This means that a decision may satisfy the standard if it is supported by a tenable explanation even if it is not one that the reviewing courts find compelling: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.

Analysis

[7]                        At the hearing, the applicant argued that the immigration officer made the following errors:  

1.                  The officer disregarded letters from the applicant’s employers and clients. These letters indicated support for the applicant’s H&C application;

2.                  The officer rejected the applicant’s claim that she was employed by Elliot Family Care Ltd. because the letter provided by the company did not indicate the applicant’s salary;

3.                  The officer rejected the applicant’s submission that she was not in contact with her family due to personal reasons. The officer stated that the applicant failed to provide a rationale as to why her large family would not support her; and

4.                  The officer disregarded the applicant’s stated vulnerability due to her gender in light of the prevalent unrest in Nigeria, the general violence against women, and her serious medical condition.

 

[8]                        The respondent argues that the onus lies on the applicant to establish the grounds for an H&C application and that, in this case, the applicant failed to provide the immigration officer with sufficient compelling evidence to warrant an exception to the normal processing requirements under subsection 11(1) of the Act. The respondent further argues that the immigration officer did not disregard or ignore the evidence provided by the applicant, but rather determined that the evidence did not justify granting the applicant’s application for permanent residence on humanitarian and compassionate grounds.

[9]                        The respondent emphasises the following findings made by the immigration officer:

1.                  the applicant’s letter of employment from Elliot Family Care Ltd. did not state the applicant’s salary;

2.                  the applicant did not provide evidence of assets or savings; and

3.                  the applicant provided no rationale as to why her large immediate family in Nigeria would not be willing or able to support or assist her if she were required to apply for permanent residence outside of Canada.

 

[10]                    I agree with the respondent’s submission that the immigration officer did not disregard the portions of the evidence identified by the applicant. It was reasonably open to the immigration officer to weigh the evidence available and draw factual conclusions accordingly. Based on the evidence before the immigration officer, I cannot conclude that any of the factual findings were unreasonable. As indicated at the hearing, the Court does not consider that the immigration officer rejected the letter from Elliot Family Care Ltd. as proof of the applicant’s employment because the letter did not state what the applicant was paid. Rather, the immigration officer noted that this letter did not indicate what her salary was and that the applicant did not provide any evidence of assets or savings. The subject of her savings and wage is relevant to whether the applicant has established herself in Canada, which is one of the criteria to be considered in an H&C decision.

[11]                    At the hearing, counsel for the applicant advised the Court that the applicant has had a baby in Canada and would be returning to Nigeria as a single mother. This information was not before the immigration officer, and the respondent objected to the Court’s consideration of this evidence. At the hearing, the Court stated in obiter, that the best interests of a Canadian born child must be weighed against the public policy consideration of ensuring that the immigration laws are not circumvented by allowing persons without legal status to obtain legal status by having a baby in Canada. The child’s best interests are not engaged in this application for judicial review as such considerations were not before the immigration officer.

Conclusion

[12]                    The immigration officer did not commit any reviewable error in denying the applicant’s H&C application. Accordingly, this application for judicial review must be dismissed. Neither party proposes a question for certification. No question will be certified.

 

JUDGMENT

 

THE COURT ORDERS AND ADJUDGES that:

 

This application for judicial review is dismissed.

 

 

 

 

“Michael A. Kelen”

 

 

 

FEDERAL COURT

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                              IMM-354-06

 

STYLE OF CAUSE:              FELICIA CHIAMAK EDOKWE

 

                                                and

 

                                                MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:        Toronto, Ontario

 

DATE OF HEARING:          November 28, 2006

 

REASONS FOR

JUDGMENT:                        KELEN J.

 

DATED:                                 December 1, 2006

 

 

 

APPEARANCES:

 

Danish Munir                                                   FOR THE APPLICANT

 

Margherita Braccio                                           FOR THE RESPONDENT

 

 

 

 

SOLICITORS OF RECORD:

 

Laurence Cohen & Associates                          FOR THE APPLICANT

Barrister & Solicitor

Toronto, Ontario

 

John H. Sims, Q.C.                                          FOR THE RESPONDENT

Deputy Attorney General of Canada

Department of Justice

Toronto, Ontario