Date: 20100616
Docket: IMM-5687-09
Citation: 2010 FC 652
Toronto, Ontario, June 16, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
NIKE OKAFOR
SYDNEY JUNIOR OKAFOR (Minor)
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
a Pre-Removal Risk Assessment Officer (the Officer) where Nike Okafor
and Sydney Junior Okafor’s application for permanent residence from within
Canada on humanitarian and compassionate (H&C) grounds was refused.
[2]
At
the beginning of the hearing, the parties agreed that the name of the minor
should be spelled “Sydney” instead of “Sidney”.
[3]
The
Applicant’s claim for refugee protection was denied on June 2, 2005 on the
ground of credibility issues. In early 2006, she submitted a permanent resident
application on the basis of H&C grounds. On July 9, 2009, a negative risk
opinion was rendered regarding the risk allegations made in the H&C
application. The H&C application was refused on August 26, 2009 and is the
subject of this judicial review.
[4]
Review
of decisions on H&C applications is to be held to the reasonableness
standard (Kisana v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, (2009), 392 N.R. 163 at paragraph
18). The Court looks to the justification, transparency and
intelligibility of the decision and whether it falls within the range of
acceptable outcomes defensible on the facts and in law (Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paragraph 47). As to procedural fairness, the standard of review is correctness
(Soares v. Canada (Minister of Citizenship and
Immigration), 2007 FC 190, 308 F.T.R. 280).
[5]
The
Applicant submits that the Officer failed to be alert, alive and sensitive to
the best interests of the children in this case. She argues that he simply
listed facts and made a hasty conclusion instead of considering the benefit of
her non removal from Canada and the hardships that Praise (the
Applicant’s second son, born in Canada) would suffer from
either her removal or from a voluntary departure to accompany her. The
Applicant further contends that the Officer erred by not considering the
issues of culture and adaptation required of the children in Nigeria.
[6]
In
Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA
475, [2003] 2 F.C. 555, the Federal Court of Appeal held that an officer
assessing the best interests of a child should usually assess the degree of
hardship that is likely to result from the removal of its parents from Canada
and then to balance that hardship against other factors that might mitigate
their removal. Furthermore, it was held that an officer is presumed to know
that living in Canada will generally provide children with many
opportunities that are not available to them in other countries and that
residing with their parents is generally more desirable than being separated
from them (paragraphs 4 to 6).
[7]
The
Applicant argues that the Officer failed to conduct an analysis of the kind
prescribed in Hawthorne. I disagree; the Officer gave adequate
consideration to the best interests of the children in this case and the
decision is reasonable in this regard.
[8]
The
Officer’s reasons show that he assessed the necessary factors, for example – he
recognizes that the Applicant is the sole caregiver of the children and that
their father is deceased. He also notes that it would be in the best interests
of the children to remain with their mother wherever that might
be and that the Applicant indicated that she will act in the best interests of
her children and that she is devoted to their care. However, the Officer finds
that very little information was submitted to show that the children would be
without the proper care or support required to meet their basic needs. The
Officer also discusses the relation between these factors and others. It is true
that an Officer must be alert, alive and sensitive to the best interests of the
children but he need not treat this as the only determinative factor.
[9]
With
regard to the question of the required cultural adaptation required of the
children in Nigeria, I would first note that the Officer found that both
children are of an age where they can adapt to changes as long as they have
their mother to care and guide them. Furthermore, the Applicant’s H&C
submissions do not detail particular concerns on this issue; they only say that
the children do not know Nigeria.
[10]
The
Applicant also submits that the Officer breached the duty of fairness owed to
her as he failed to take into consideration the rebuttal response to the risk
opinion. She admits that this response was filed after the deadline to do so
but claims that she responded long before the decision on her application was
received (at paragraph 5 of her affidavit, she states that she received the
final decision on October 19, 2009) and that her response to the risk opinion
should have been considered.
[11]
The
Respondent counters that the Applicant has admitted that her response was dated
September 9, 2009, which was a full two weeks after the H&C application was
decided. In its further memorandum of argument, the Respondent argues that the
doctrine of functus officio prevents the consideration of new evidence
once the tribunal has made a final decision and that it does not matter that
the Applicant responded to the risk opinion before she received the final
decision on the H&C application.
[12]
At
the hearing, the Respondent suggests that there is no need to apply the
doctrine of functus officio to dismiss the present application because
the evidence adduced in the rebuttal response from the Applicants was outdated
or irrelevant.
[13]
I
note that the position advanced by the Respondent on the doctrine of functus
officio is at odds with the recent decision of Justice Mactavish in Kurukkal
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 695, 347 F.T.R. 60 where it was held
that functus officio does not apply to H&C decisions. The
Respondent argues that the correct approach is set out in the Supreme Court of
Canada’s decision in Chandler v. Alberta Association of Architects,
[1989] 2 S.C.R. 848.
[14]
A
question was certified on the issue of functus officio in Kurukkal
but has yet to be addressed by the Federal Court of Appeal.
[15]
I
have reviewed the additional documents enclosed with the September 9, 2009
letter from the Applicants’ counsel (Applicants’ record, pages 134 to 164) and
I must say that numerous articles are outdated and those that post date the
risk opinion of July 9, 2009 are practically the same to the ones (Applicants’
record, documents submitted, page 17) analyzed and considered by the Officer.
[16]
Therefore,
I conclude that there was no breach of procedural fairness even if the Officer
could have considered the Applicants’ rebuttal.
[17]
Though
the Court has sympathy for the Applicant’s situation, it is not its role to substitute
its own assessment over the Officer’s on the H&C application.
[18]
No
question for certification was submitted and none arises.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question is certified.
“Michel Beaudry”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS
OF RECORD
DOCKET: IMM-5687-09
STYLE
OF CAUSE: NIKE OKAFOR
SYDNEY JUNIOR OKAFOR (Minor)
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 15,
2010
REASONS FOR JUDGMENT
AND JUDGMENT: Beaudry J.
DATED: June
16, 2010
APPEARANCES:
Richard Odeleye FOR
THE APPLICANTS
Stephen Jarvis FOR
THE RESPONDENT
SOLICITORS OF RECORD:
Babablola, Odeleye FOR
THE APPLICANTS
Toronto, Ontario
Myles J. Kirvan FOR
THE RESPONDENT
Deputy Attorney General of Canada
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