Date: 20090320
Docket: IMM-4245-08
Citation: 2009 FC 300
Ottawa, Ontario, March 20,
2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
NAFISA
ABDIRISAQ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is a 17-year old citizen of Somalia and currently lives in Nairobi, Kenya with
her great-aunt. Her mother landed in Canada in 2003 under the
sponsorship of her second husband and applied to sponsor her daughter under the
family class category in 2007. For reasons she relates to emotional and
physical abuse suffered in her first marriage, the applicant’s mother did not
disclose her daughter as a non-accompanying dependent when she applied for
permanent residence. Consequently, the applicant cannot be sponsored as a
family class member pursuant to paragraph 117(9)(d) of the Immigration and
Refugee Protection Regulations, SOR/2002-227.
[2]
This
proceeding is the judicial review of the Second Secretary’s refusal to grant
the applicant’s request for permanent residence based on humanitarian and
compassionate (“H&C”) considerations.
[3]
Decisions
on H&C application are discretionary. The onus is on the applicant to
provide the decision-maker with sufficient evidence to show that exceptional relief
is warranted. It is not for the Court to re-weigh the relevant factors in
reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1; Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, at paras. 4 and 46.
[4]
The
tribunal record does not disclose any information about the applicant’s current
situation in Kenya other than
she is living with an Aunt and attending school. The only evidence that was available
to the Second Secretary was that which was contained in the sponsor’s affidavit
and a psychologist’s report respecting the sponsor.
[5]
A
combined reading of the Second Secretary’s refusal letter and Computer Assisted
Immigration Processing System (“CAIPS”) notes demonstrates an analysis
consistent with the factors Justice Campbell suggested were relevant in Gill
v. Canada (Minister of Citizenship), 2008 FC 613, at para. 17. The decision
was based on the evidence tendered by the applicant, which failed to disclose
any information to explain why the best interests of the child warranted an
exemption from paragraph 117(9)(d). I am satisfied that it was open to the
Second Secretary, based on the sparse evidence then available to her, to
exercise her discretion as she did.
[6]
Counsel
for the applicant submits that procedural fairness required the Second
Secretary to interview the applicant; however no interview was requested by the
applicant or her counsel. The respondent argues, and I agree, that there is no
legal requirement to conduct an interview: Owusu v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 38; Glushanytysa v. Canada (Minister of
Citizenship and Immigration), 2008 FC 725.
[7]
No
question of general importance was submitted for certification.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that this application for
judicial review is dismissed. No question is certified.
“Richard
G. Mosley”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4245-08
STYLE OF CAUSE: NAFISA
ABDIRISAQ
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
PLACE OF
HEARING: Ottawa, Ontario (via Video Conference
with
Edmonton)
DATE OF
HEARING: March
16, 2009
REASONS FOR JUDGMENT: MOSLEY
J.
DATED: March
20, 2009
APPEARANCES:
|
Michael J.
Tilleard
|
FOR THE APPLICANT
|
|
Rick Garvin
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
MICHAEL J.
TILLEARD
Barrister
& Solicitor
Edmonton,
Alberta
|
FOR THE APPLICANT
|
|
JOHN H. SIMS,
Q.C.
Deputy
Attorney General of Canada
Edmonton, Alberta
|
FOR THE RESPONDENT
|
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