Date: 20100930
Docket: IMM-5485-09
Citation: 2010 FC 974
Ottawa, Ontario, September 30, 2010
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
EDWARD AMPONSAH
Applicant
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, SC 2001, c 27 (the Act) of a decision of Visa
Officer Karen Salloum (the Officer) dated July 7, 2009, wherein the Officer
refused the applicant’s application for permanent residence as a member of the
family class based on humanitarian and compassionate grounds (H&C).
Factual Background
[2]
The
applicant is a 22-year-old citizen of Ghana. His mother and sponsor,
Ms. Georgina Asante (the sponsor), is a Canadian citizen. She first arrived in Canada in 1996
after being sponsored by her parents, who had immigrated to Canada a number of
years earlier.
[3]
At
the time of her application for permanent residence, she did not disclose the fact
that she had a son. She states that she did not do so because she was embarrassed,
since the applicant was conceived when the sponsor was 12 years old. She also
states that her parents were not aware of her pregnancy. She allegedly did not
disclose the existence of the applicant because she did not want her parents to
withdraw their sponsorship. She claims that she told her parents about the applicant
just a few days after her arrival in Canada, despite the fact that her
lawyer mistakenly wrote in the written submissions to the Officer that her
parents only found out about the applicant a year ago.
[4]
The
sponsor’s first application for sponsorship was rejected on March 22, 2006
because the applicant was not considered a member of the family class under
section 117(9)(d) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 due to the sponsor’s failure to declare him on
her permanent residence application. The sponsor did not pursue a consideration
of humanitarian and compassionate request at that time because she was not
aware that she could do so.
[5]
The
sponsor submitted another sponsorship application in February 2008 requesting
consideration of H&C factors. The Officer interviewed the applicant and the
sponsor, and concluded on July 7, 2009 that there were insufficient H&C
grounds on which to grant the applicant permanent residence. The applicant
seeks judicial review of this decision.
Impugned Decision
[6]
In
the letter of rejection, the Officer stated that after interviewing the applicant
and the sponsor, it became apparent that the H&C request was “not the true
reality of the situation”. She also noted that the sponsor had requested an
opportunity to revise her request, but the revision had not been forthcoming. The
Officer concluded that relief on H&C grounds was not warranted.
[7]
In
the Computer Assisted Immigration Processing System (CAIPS) notes, the Officer
noted that the sponsor had not provided any new information since she was
interviewed on January 28, 2009. Thus, the Officer assessed the information
that was before her and concluded that the H&C considerations were
questionable.
[8]
The
Officer accepted the DNA evidence demonstrating that the applicant was the
biological son of the sponsor. However, the Officer questioned the applicant’s
statement that said he had never met his father since his birth was registered
by his claimed father in 2001. The Officer also found that there was little
evidence of communication or support from the sponsor.
[9]
The
Officer noted that the applicant was attending university in Ghana and that he was
being cared for by his extended family. The Officer concluded that the applicant’s
motivation to come to Canada appeared to be more for his own benefit,
for a better chance of success. The Officer acknowledged the applicant’s
statement that he missed his mother. The Officer also noted that his mother,
the sponsor, had not made an effort to go and see him in Ghana.
[10]
The
Officer also found that the sponsor stated that her parents knew about the applicant
“early on” and she did not believe that they had only found out about him
recently.
[11]
Finally,
the Officer found that the H&C request was not consistent with the applicant
and the sponsor’s accounts. Thus, she concluded that there were insufficient
humanitarian and compassionate grounds upon which to grant the applicant
permanent residence.
Issues
[12]
This
application raises the following issues:
1-
Did
the Officer err by failing to properly assess the relevant evidence before her
with regard to the humanitarian and compassionate considerations?
2-
Did
the Officer err by failing to provide the sponsor with an opportunity to
respond to a concern?
3-
Did
the Officer breach the duty of fairness by failing to provide the sponsor with
a fair hearing?
Statutory provisions
[13]
The following provision of the Act is applicable in these
proceedings:
|
Humanitarian and compassionate considerations —
request of foreign national
25. (1)
The Minister must, on request of a foreign national in Canada who is
inadmissible or who does not meet the requirements of this Act, and may, on
request of a foreign national outside Canada, examine the circumstances
concerning the foreign national and may grant the foreign national permanent
resident status or an exemption from any applicable criteria or obligations
of this Act if the Minister is of the opinion that it is justified by
humanitarian and compassionate considerations relating to the foreign
national, taking into account the best interests of a child directly
affected.
|
Séjour pour motif d’ordre humanitaire à la demande
de l’étranger
25. (1) Le ministre doit, sur demande d’un
étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme
pas à la présente loi, et peut, sur demande d’un étranger se trouvant hors du
Canada, étudier le cas de cet étranger; il peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des considérations d’ordre humanitaire relatives
à l’étranger le justifient, compte tenu de l’intérêt supérieur de l’enfant
directement touché.
|
[14]
The
following provision of the Immigration and Refugee Protection Regulations (IRPA)
is also applicable in these proceedings:
|
Excluded
relationships
117. (9) A foreign national shall not be
considered a member of the family class by virtue of their relationship to a
sponsor if
[…]
(d) subject to subsection (10), the sponsor
previously made an application for permanent residence and became a permanent
resident and, at the time of that application, the foreign national was a
non-accompanying family member of the sponsor and was not examined.
|
Restrictions
117. (9) Ne sont pas considérées comme
appartenant à la catégorie du regroupement familial du fait de leur relation
avec le répondant les personnes suivantes :
[…]
d) sous réserve du paragraphe (10), dans
le cas où le répondant est devenu résident permanent à la suite d’une demande
à cet effet, l’étranger qui, à l’époque où cette demande a été faite, était
un membre de la famille du répondant n’accompagnant pas ce dernier et n’a pas
fait l’objet d’un contrôle.
|
Standard of Review
[15]
Since
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, issues relating
to a visa officer’s treatment and consideration of the evidence on an H&C
application arising outside of Canada are reviewable on a standard of
reasonableness (Odicho v Canada (Minister of Citizenship and Immigration,
2008 FC 1039, 341 FTR 18). According to the Supreme Court, the factors to be
considered are justification, transparency and intelligibility within the
decision-making process. The outcome must be defensible in respect of the facts
and the law (Dunsmuir, above, at para 47).
[16]
The applicant also raised issues of procedural fairness. It has
been decided that the standard of review applicable to issues of procedural
fairness is correctness (Dunsmuir, above, at para 129; Canada (Minister
of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
at para 43).
Analysis
1-
Did
the Officer err by failing to properly assess the relevant evidence before her
with regard to the humanitarian and compassionate considerations?
[17]
The
applicant raised a number of issues regarding the Officer’s treatment of the
evidence. First, the applicant claims that the Officer erred by failing to consider
the fact that he was not inadmissible for any reason at the time of his refusal
other than his exclusion under paragraph 117(9)(d) of the Regulations.
He alleges that the purpose of paragraph 117(9)(d) is to prevent
applicants from failing to disclose what would result in the exclusion of the
applicant.
[18]
It
is trite law that the applicant bears the burden of putting all relevant
evidence before the officer. In Madan v Canada (Minister of
Citizenship and Immigration), [1999] FCJ No 1198, 172 FTR 262, at para 6,
the
Court stated:
[6] It is well established that it is the
responsibility of a visa applicant to put before the officer all the material
necessary for a favourable decision to be made. Hence, visa officers are under
no general legal duty to ask for clarification or for additional information
before rejecting a visa application on the ground that the material was
insufficient to satisfy the officer that the applicant had met the relevant
section criteria.
[19]
In
the case at bar, the applicant did not make any submissions to the Officer
indicating that he would have been granted permanent residence (Mei v Canada (Minister of
Citizenship and Immigration), 2009 FC 1044, 85 Imm LR (3d) 99), but for
the fact that his mother had failed to disclose his existence on her permanent
resident application. Since the applicant bears the responsibility of
submitting all relevant evidence, it was not an error for the Officer to fail
to consider a factor on which no submissions had been made.
[20]
The
applicant further alleges that the Officer erred in her notes of the interview
conducted with the sponsor. The CAIPS notes state that the sponsor said that
her parents met the applicant in 1998. In her affidavit, the sponsor maintains
that she did not make such a statement because her parents have never met the applicant.
The applicant submits that this mistake was critical, relevant and material
because the basis of the Officer’s refusal was that the sponsor had
misrepresented. Consequently, the applicant asserts that the Officer’s view and
interpretation of the file was tainted from the outset.
[21]
The
applicant also refers to Nazir v Canada (Minister of Citizenship and
Immigration), 2010 FC 553, [2010] FCJ No 655, where the Court held that
absent an affidavit from the Officer attesting to the truth of the contents of
the CAIPS notes, the sponsor’s version of what transpired during an interview
is to be preferred.
[22]
However,
the Court is unconvinced that this was a material error that affected the
Officer’s decision. In the Court’s view, there is nothing in the reasons
provided by the Officer to indicate that she relied heavily on this information
in rendering a negative decision. The only statement from the Officer regarding
the sponsor’s parents’ knowledge of the applicant is when she writes that the “sponsor’s
parents knew about the app [applicant] early on and it is not true that they
just found out about him recently” [see CAIPS notes].
[23]
With
respect to the statement that the sponsor’s parents knew about the applicant
“early on”, there is nothing to indicate that the Officer relied on the sponsor’s
alleged admission that her parents met him in 1998. Indeed, there were a number
of other discrepancies between the information provided by the sponsor and the
information provided by the applicant. For instance, the applicant stated in
his interview that the sponsor’s parents knew about her pregnancy. In contrast,
the sponsor stated that her parents did not know about the pregnancy and that they
first found out about the applicant after she arrived in Canada. In light of
the other inconsistencies between the applicant and the sponsor’s accounts, this
Court cannot conclude that the alleged error was a critical, relevant or
material mistake that would warrant an intervention from this Court.
[24]
The
applicant further submits that the Officer ignored evidence that he and the sponsor
miss each other and improperly concluded that the applicant wanted to come to Canada for his own
benefit. The applicant notes that, in a handwritten letter submitted with the
application, the sponsor indicated her desire to be reunited with her son. The
applicant further notes that he stated in his interview that he misses his
mother. Thus, the applicant submits that there was no evidentiary basis on
which the Officer could conclude that he wanted to come to Canada “more for
his benefit”.
[25]
On
that point, the applicant refers to Krauchanka v Canada (Minister of
Citizenship and Immigration), 2010 FC 209, [2010] FCJ No. 245, in which the
Court allowed an application for judicial review because the Officer failed to
consider that the sponsor clearly loved his wife and child and that they wanted
to be together. The applicant submits that the Officer made the same error in
this case.
[26]
The
Court cannot agree because Krauchanka is distinguishable from the case
at bar. In Krauchanka, the sponsor had left Canada and returned to Belarus to be with
his wife and child. After eight months of unsuccessfully searching for a job,
the sponsor had to return to Canada because his money had run out.
[27]
However,
in the present case, the Officer noted that the sponsor had made no attempt to
come and visit her son since she came to Canada in 1996,
that there was very little evidence of communication between the sponsor and
the applicant, and that there was no evidence that the sponsor was providing
any support for the applicant. In his interview, the applicant also stated that
his mother took a long time to sponsor him because she wanted him to complete
his graduate studies in Ghana before he would complete a Master’s degree
in Canada. He further
stated that he wished to come to Canada because he misses his mother and because
he knows he will have a better chance for success in Canada. Based on
the evidence, the Officer’s conclusion that the applicant’s motivation for coming
to Canada “appears to
be more for his own benefit so he can have a better chance at being successful”
is reasonable.
[28]
The
applicant also submits that the Officer drew a negative inference from the fact
that the sponsor failed to provide an amendment to her H&C request. The
CAIPS notes state that she requested an opportunity to amend her H&C
request during her telephone interview. The applicant submits that he should
not have been penalized because the sponsor did not do so, particularly if the
amendment was simply to correct an error in the written statement, of which the
Officer was aware.
[29]
The
Officer noted that no new information had been provided by the sponsor despite
her request, and she then went on to consider the H&C factors that had been
put before her. This Court sees nothing indicating that the Officer drew a
negative inference from the sponsor’s failure to provide an amended H&C
request.
[30]
Finally,
the applicant alleges that the Officer erred by assessing ongoing communication
and support between the sponsor and the applicant. The applicant submits that
these considerations are relevant to an assessment of the legitimacy of a
relationship, but are not relevant in this case because the legitimacy of the
relationship was established through accepted DNA evidence.
[31]
The
applicant’s H&C application was based on the reunification of the sponsor
with her son. Although a biological relationship was established through DNA
evidence, the lack of communication and support was a relevant factor for
determining the legitimacy of the H&C request based on a loving
relationship between the sponsor and the applicant. The Officer’s decision is
this regard was reasonable.
2-
Did
the Officer err by failing to provide the sponsor with an opportunity to
respond to a concern?
[32]
The
applicant submits that the Officer erred by failing to communicate some of her
concerns to the sponsor during her telephone interview. Specifically, the applicant
claims that the Officer should have asked the sponsor why the applicant stated
in his interview that her parents knew about her pregnancy. The sponsor has
clearly stated in her affidavit that if she had been told that the applicant
made such a statement, she would have denied it completely.
[33]
The
Court does not agree. In the context of an H&C application, the onus lies
on the applicant. Recently, in Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360, at para
45, the Federal Court of Appeal stated the following:
[45] It is trite law that the content of
procedural fairness is variable and contextual […]. The ultimate question in
each case is whether the person affected by a decision “had a meaningful
opportunity to present their case fully and fairly” […]. In the context of
H&C applications, it has been consistently held that the onus of
establishing that an H&C exemption is warranted lies with an applicant; an
officer is under no duty to highlight weaknesses in an application and to
request further submissions […]
[34]
Moreover,
the information at issue here is not related to an extrinsic source, but was
provided by the applicant himself. While there may be a duty upon officers to
disclose extrinsic information and provide an applicant with an opportunity to
respond, there is no corresponding duty when the information provided is
provided by or readily available to the applicant. Thus, the Officer’s non
disclosure of the discrepancy between the applicant and the sponsor’s accounts does
not amount to a breach of procedural fairness.
3- Did the Officer breach the
duty of fairness by failing to provide the sponsor with a fair hearing?
[35]
Finally,
the applicant asserts that the Officer breached the duty of fairness when
interviewing the sponsor. The sponsor stated in her affidavit that the Officer
interviewed her by telephone at approximately four (4) o’clock in the morning.
She states that she had worked late the night before and was fast asleep when
the Officer called. She indicates that the Officer never asked if this was a good
time to call, and that she was exhausted and unprepared for such an important
interview. The applicant claims that he was significantly prejudiced by this
breach of procedural fairness, as statements made by the sponsor during that
interview were relied upon in rendering the negative decision.
[36]
The
applicant makes reference to Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, where the Supreme Court of Canada listed
five factors to consider when evaluating an issue of procedural fairness. These
factors include:
1)
The nature
of the decision being made and process followed in making it;
2)
The nature
of the statutory scheme and the terms of the statute pursuant to which the body
operates;
3)
The
importance of the decision to the individual or individuals affected;
4)
The
legitimate expectations of the person challenging the decision; and
5)
The
choices of procedure made by the agency itself.
[37]
The
applicant further submits that the stakes were high in this case, as it would
result in his reunion with his mother. The applicant also notes that his mother
cannot sponsor him a third time because he is now over 22 years of age and is
no longer able to be sponsored as a member of the family class. Finally, the applicant
submits that the Officer chose to phone the sponsor very early in the morning,
a choice which deprived the applicant of fairness to which he feels he was
entitled.
[38]
While
the Court sympathizes with the fact that the sponsor was expected to answer
questions regarding her son’s, the applicant, permanent resident application
quite early in the morning, the Court remains unconvinced that there was a
breach of procedural fairness that caused the applicant significant prejudice.
[39]
In
Baker, above, the Supreme Court discussed the general notion behind the
duty of fairness. When discussing the five factors identified by the applicant
above, the Court stated at para 22:
[22] I emphasize that underlying all
these factors is the notion that the purpose of the participatory rights
contained within the duty of procedural fairness is to ensure that
administrative decisions are made using a fair and open procedure, appropriate
to the decision being made and its statutory, institutional, and social
context, with an opportunity for those affected by the decision to put forward
their views and evidence fully and have them considered by the decision-makers.
[40]
In
the present case, the applicant alleges that he was significantly prejudiced
because of the timing of the sponsor’s interview. However, he has not specified
the manner in which he was prejudiced, apart from the fact that the Officer
relied partly on information obtained in that interview when rendering her
decision. It is also worth noting that the applicant himself has relied on
statements made by the sponsor during that interview. The sponsor provided an
affidavit regarding what transpired during the interview, demonstrating that
she was sufficiently alert at the time to recall the details of the
conversation. Further, neither the sponsor nor the applicant has sworn an
affidavit or submitted evidence to the effect that the sponsor was unable to
present her case fully and fairly because of her exhaustion, apart from a
general, unsubstantiated assertion that the applicant suffered severe prejudice.
[41]
The
Court also notes that, during the call, the sponsor requested to amend her
H&C request. Yet she did not take advantage of that opportunity. Thus,
while the timing of the interview was not ideal, this Court cannot find that
the applicant was prejudiced or that the sponsor was deprived of an opportunity
to fully and fairly present her case to the Officer.
[42]
This
Court finds that the Officer did not breach the duty of procedural fairness.
[43]
In
conclusion and based on the evidence, the Court finds that the Officer’s
decision falls within a range of possible, acceptable outcomes which are
defensible in fact and in law (Khosa). This application is therefore dismissed.
[44]
Counsel for the applicant
suggested the following proposed questions for certification:
Does
a visa officer or immigration officer err (for the purpose of applying H& C
consideration) in requiring ongoing communications and / or whether financial
support was provided between parent and child, when DNA results establish the
parent child relationship?
[45]
An
H&C application determined solely on the basis of a familial relationship
conflicts with paragraph 117(9)(d) of the IRPA Regulations which
provided that a foreign national cannot be considered a member of a family
class if he or she was a non-accompanying family member of the sponsor and was
not examined when the sponsor previously made an application for permanent
residence. Hence, and the Court agrees with the respondent, when considering an
H&C exemption, the Visa Officer’s role is to determine “whether there is a
sufficiently strong bond between parent and child that it would be inhumane or
uncompassionate to not allow them to be reunited in spite of a violation
of the IRPA or IRPA Regulations”.
[46]
This
Court is accordingly of the view that the question proposed for certification
does not raise any issue of general importance. It shall not be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review be dismissed. No question is certified.
“Richard
Boivin”
Email this Content