Adegbayi v. Canada (Minister of Citizenship and Immigration), 2004 FC 1348

Date: 20040930

Docket: IMM-2708-03

Citation: 2004 FC 1348

BETWEEN:

                                                RUKAYAT OYEPEJU ADEGBAYI

                                                                                                                                            Applicant

                                                                         - and -

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                                        REASONS FOR ORDER

O'KEEFE J.

[1]                This is an application for judicial review of a decision of an immigration officer (the "H & C Officer"), dated March 14, 2003, wherein it was determined that there were insufficient humanitarian and compassionate and public policy grounds to warrant processing the applicant's permanent residence application from within Canada and to permit an exemption from subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").

[2]                The applicant requests an order quashing the H & C Officer's decision and directing the Minister or her delegates to re-assess the applicant's H & C application in accordance with law and procedural fairness.

Background

[3]                The applicant, Rukayat Oyepeju Adegbayi (the "applicant") is a citizen of Nigeria who came to Canada on October 8, 1998 and made a refugee claim which was ultimately rejected.

[4]                On January 28, 2000, the applicant gave birth to a son, whom she named Zion Olaoluwa Adeboye Adegbayi.

[5]                On September 24, 2000, the applicant married a Canadian permanent resident, Ayodele Oluborode Fagboye. Mr. Fagboye is step-father to the applicant's son Zion.

[6]                On October 5, 2001, the applicant submitted an application for permanent residence, asking that she be exempted on humanitarian and compassionate grounds from the requirement set out in subsection 11(1) of IRPA that such an application be made from outside Canada.

[7]                On December 19, 2002, Citizenship and Immigration Canada sent the applicant a letter asking her to provide updated information with respect to her H & C application within 30 days.

[8]                In response, the applicant submitted an updated application form dated January 6, 2003.

[9]                An updated application form had already been submitted, on January 17, 2003, and applicant's counsel wrote to the H & C Officer and requested a one week extension to file an updated application and written submissions. The extension was granted, however no further submissions were filed by counsel.

[10]            In a letter dated March 14, 2003, the applicant's H & C application was denied. Written reasons, comprised of the H & C Officer's "narrative report" were received by the applicant on April 7, 2003.

[11]            This is the judicial review of the H & C Officer's decision denying the applicant inland processing on humanitarian and compassionate grounds.

Reasons of the H & C Officer

[12]            The H & C Officer's "narrative report", dated March 14, 2003 contains his reasons for rejecting the applicant's H & C application.

[13]            The H & C Officer was not satisfied that the applicant would suffer undue, disproportionate or undeserved hardship if she were required to apply for permanent residence from outside Canada for the following reasons:

1.          He was not satisfied that the applicant cohabited with her husband after their September 2000 wedding because in his November 25, 2000 student loan documents, Mr. Fagboye reported a different address than that of the applicant;

2.          The applicant had not demonstrated sufficient establishment to suggest hardship if she were required to leave Canada. There was no evidence she attended or completed any education program, she has a very limited work history and provided no evidence of any community involvement aside from volunteering for a food bank for a short period in 1998; and

3.          The best interests of the applicant's son did not dictate that the applicant's H & C application must be granted, since there is no legal impediment to the child accompanying his mother if she were to leave Canada, there is no evidence to suggest a relationship between the child and his biological father, and it was otherwise not established by evidence that being in Canada would be in the child's best interests.

Applicant's Submissions

[14]            The applicant stated that she based her H & C application on her establishment in Canada, marriage to a Canadian permanent resident, and the best interests of her Canadian-born son who has medical problems.

[15]            Relying on Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.), the applicant argued that the H & C Officer's decision did not examine the interests of her Canadian-born son Zion with care and cannot stand up to a somewhat probing examination, meaning that it is unreasonable and should be set aside.

[16]            The applicant argued that the H & C Officer's decision is unreasonable because it barely devoted a paragraph of reasoning to the best interests of the child, and ignored his premature birth and medical difficulties. Attached to the applicant's affidavit are two documents regarding her son's medical condition. First, a neonatal intensive care unit final summary from Mount Sinai Hospital states, inter alia, that the applicant's son was born premature with chronic lung disease and would be seen by the neonatal follow-up clinic. Second, the applicant attached a report by the neonatal follow-up clinic at the Hospital for Sick Children and a letter confirming a future appointment, booked for November 2003.

[17]            In her affidavit, the applicant swore that her counsel sent the medical reports regarding her son's condition along with her H & C application.

[18]            The applicant argued that her son's best interests are to remain in Canada, where available medical resources are far superior to that in Nigeria.

[19]            The applicant noted that the respondent did not request an additional interview or arrange to interview her. It is submitted that the duty of fairness required the H & C Officer to make his concerns known to the applicant, either by an interview or by requesting further information in writing.

[20]            The applicant submitted that her husband loves her son as his own, that it was unreasonable for the H & C Officer to conclude that there was no evidence of a relationship between Zion and Mr. Fagbaye.

Respondent's Submissions

[21]            The respondent submitted that judicial intervention is not warranted in this case as the H & C Officer made no reviewable error.

[22]            The respondent stated that the medical documents appended to the applicant's affidavit were not put before the H & C Officer and should therefore be afforded no weight on judicial review. Citing Lemiecha (Litigation Guardian of) v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1333 (T.D.)(QL), the respondent submitted that this judicial review should proceed only on the basis of evidence that was before the decision maker. Since the certified tribunal record does not contain these documents, and the H & C Officer swears in his affidavit that the documents were not before him when the negative decision was made, the respondent submitted that these documents should not be considered by this Court.

[23]            Furthermore, the respondent submitted that much of the applicant's affidavit attempts to address the concerns raised by the H & C Officer in his decision by supplementing or clarifying the information she submitted as part of her H & C application. The respondent submitted that the applicant is attempting to put additional evidence of establishment in Canada before the Court in the hope that this Court will make its own, more favourable, findings of fact regarding the applicant's H & C application. In the respondent's view, this judicial review should be based solely on the merits of the material before the H & C Officer at the time of his decision.

[24]            The respondent submitted that this Court should not lightly interfere with the discretion given to immigration officers. The H & C decision is not a simple application of legal principles but rather a fact specific weighing of many factors. In the respondent's view, it is not the function of the Court to re-weigh the factors considered by the H & C Officer, and his decision should stand where, as here, it was made in good faith, did not consider irrelevant or extraneous factors and was not otherwise unreasonable.

[25]            On the specific facts of this case, the respondent submitted that the applicant did not meet the onus of establishing that H & C relief should be granted. The documents submitted cast doubt on the applicant's marriage since her husband had listed a different address, no medical information was submitted regarding the applicant's son, there was an indication that Mr. Fagbaye "liked" the applicant's son "very much" but no evidence of disproportionate hardship upon separation, and there was no information regarding educational upgrading by the applicant. Based on this information, the respondent submitted that the H & C Officer's negative decision was reasonable.

[26]            Moreover, the respondent emphasized that the applicant was given an opportunity to update her application but sent no corroborating documents and raised no new issues that would have required the H & C Officer to request further information or arrange an interview.

[27]            The respondent denied that the H & C Officer was required by the duty of fairness to interview or request further information from the applicant. In the respondent's view, the onus was on the applicant to make her case through written submissions and she failed to do so. Citing Baker, supra, the respondent stated that the applicant had no right to an oral hearing and was afforded full participatory rights by the opportunity to file written documentation to the H & C Officer.

[28]            The respondent submitted that the H & C Officer was alive, alert and sensitive to the best interests of the applicant's child. The length of the H & C officer's narrative report is, per se, irrelevant since it addressed the relevant issues and the conclusion was supported by cogent reasoning. The respondent submitted that in this case, it was reasonably open to the H & C Officer to find that the best interests of the applicant's son did not require that he remain in Canada, and that requiring the applicant to apply for permanent residence status from outside the country would not cause undue, disproportionate or undeserved hardship.

[29]            The respondent requested that this application for judicial review be dismissed.

Issue

[30]            Has the applicant established any basis for this Court to intervene?

Relevant Statutory Provisions

[31]            Subsection 11(1) of IRPA requires a foreign national to apply for a visa before entering Canada:

[32]            Subsection 25(1) of IRPA, however, permits the Minister to grant a foreign national permanent residence status, or an exemption from any applicable criteria or obligation of IRPA, if she is of the opinion that such an exemption is justified by humanitarian and compassionate considerations:

Analysis and Decision

[33]            The standard of review to be applied to the review of the H & C Officer's decision is reasonableness simpliciter (see Baker, supra).

[34]            In the present case, the applicant's H & C application stated that her application is based on, "It would be difficult in that I have already settled, my husband and I have started our life together and I would not like to be separated from her [sic]." It would appear that the applicant bases her application in part on the fact that she has recently married Ayodele Oluborode Fagboye, a Canadian citizen.

[35]            The H & C Officer, in his reasons, stated in part:

I reviewed the subject's relationship to her spouse. Based on the information provided I am not satisfied that this couple is cohabiting. I note on the spouses loan application dated 25 November 2000 that he lists his address as 137 Lyneduck Cres., Toronto and address that the subject does not list in her application. During that period she lists her address as the same as today, 24 Maryhill Dr., Etobicoke.

[36]            It is obvious that the H & C Officer came to the conclusion that the applicant and her husband were not cohabiting. This would be an important factor in coming to a decision on this application. I am of the view that the H & C Officer, if he had doubts about whether the applicant and her husband were cohabiting, ought to have given the applicant an opportunity to address that concern. In Baker, supra, at pages 835 to 836, L'Heureux-Dubé stated:

Immigration officers who make H & C decisions are provided with a set of guidelines, contained in chapter 9 of the Immigration Manual: Examination and Enforcement. The guidelines constitute instructions to immigration officers about how to exercise the discretion delegated to them. These guidelines are also available to the public. A number of statements in the guidelines are relevant to Ms. Baker's application. Guideline 9.05 emphasizes that officers have a duty to decide which cases should be given a favourable recommendation, by carefully considering all aspects of the case, using their best judgment and asking themselves what a reasonable person would do in such a situation. It also states that although officers are not expected to "delve into areas which are not presented during examination or interviews, they should attempt to clarify possible humanitarian grounds and public policy considerations even if these are not well articulated".

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, 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.

[37]            The applicant may have satisfied the H & C Officer's concerns about her spouse's student loan authorization form showing his former address in November 2000 when the couple were married in September 2000 and the applicant still uses the address she had before she was married.

[38]            I am of the view that procedural fairness dictated that the H & C Officer should have given the applicant an opportunity to address this concern.

[39]            The application for judicial review is therefore allowed.

[40]            The parties shall have five days from the date of these reasons to submit any proposed serious question of general importance for my consideration.

                                                                               "John A. O'Keefe"              

                                                                                                   J.F.C.                     

Ottawa, Ontario

September 30, 2004

                         FEDERAL COURT OF CANADA

                                      TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-2708-03

STYLE OF CAUSE: RUKAYAT OYEPEJU ADEGBAYI

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                   June 2, 2004

REASONS FOR ORDER OF                       O'KEEFE J.

DATED:                     September 30, 2004

APPEARANCES:

John Guoba

FOR APPLICANT

Alexis Singer

FOR RESPONDENT

SOLICITORS OF RECORD:

John Guoba

Toronto, Ontario

FOR APPLICANT

Morris Rosenberg, Q.C.

Deputy Attorney General of Canada

FOR RESPONDENT