Date: 20090129
Docket: IMM-3177-08
Citation: 2009 FC 89
Ottawa, Ontario, January
29, 2009
PRESENT: The Honourable
Mr. Justice Pinard
BETWEEN:
JEAN
WILMARC SAGESSE
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 by
an immigration officer, dated June 30, 2008, refusing the application for
permanent residence on humanitarian or compassionate grounds (H&C)
submitted by Jean Wilmarc Sagesse pursuant to subsection 25(1) of the Immigration
and Refugee Protection Act, S.C. (2001), c. 27.
[2]
Jean
Wilmarc Sagesse (the applicant) is a citizen of Haiti. His spouse,
Marthine Clervoix, resides in the United States with their son.
[3]
The applicant argued first that the immigration officer breached
her duty of fairness when updating his file. He submitted that he could not
argue his case fully because the officer did not give him the opportunity to
provide the documents missing from his file. He referred to the following
provision in the manual for immigration officers responsible for immigrant applications
in Canada made on humanitarian or compassionate
grounds (IP 5):
11.1 Procedural fairness
Officers must follow procedural fairness
in making their decisions.
Officers should:
-
carefully
consider all the information before them;
-
inform the
applicant when considering outside information, giving the applicant a chance
to respond;
-
request
any additional information needed;
-
weigh all
the facts according to their degree of importance;
-
separate
facts which favour a finding of hardship from those that do not;
-
consider
the objectives of the Act; and
-
make
complete file notes (see Section 9.1).
[Emphasis
added.]
[4]
The
applicant also referred to Section 17.1 of the IP 5 manual, entitled “Obtaining
further information for decision”. However, this provision concerns the actions
for obtaining such information and not the obligation to obtain it.
[5]
According
to Section 11.1, cited above, an officer must “request any additional
information needed”. In the case at bar, the applicant, during the update done
by telephone, proposed filing the birth certificate of his son and his marriage
certificate. However, neither his son nor his spouse was mentioned in his
refugee claim. Moreover, they do not reside in Canada. It is
therefore difficult to understand how this could be “needed” information. In
addition, the reasons why his application was refused have nothing to do with
the status of his son or of his spouse.
[6]
As
for the missing documents supporting his degree of establishment (bank
statements, income tax returns, etc.), I cannot accept the applicant’s
argument. The documents provided by the applicant, that is, the letters from
employers in the United States, were submitted to show that he was
“employable”, which is not a humanitarian or compassionate ground, and do not
serve as evidence of his current establishment in Canada. Apart from the
applicant’s simple statement in his application that he is fully integrated into
Canadian society and his degree of establishment is “above average”, there is
very little in the file to support his position. It seems to me that the
missing documents were not purely supplementary; they were the most basic
documents needed to establish that aspect of his application. Consequently, I
do not find that the officer breached her duty of procedural fairness.
[7]
The
applicant also took issue with the immigration officer for not having assessed the
degree of his establishment in Canada correctly. However, he made no serious
argument in that regard. Moreover, I see nothing in the officer’s decision that
would indicate that her assessment of the applicant’s degree of establishment was
incorrect.
[8]
Finally,
the applicant argued that the immigration officer erred in not making any
reference to the interests of the child.
[9]
The
applicant’s initial application did not refer in any way to his relationship
with his spouse or his son. Moreover, his spouse and son do not live in Canada, but rather in
the United
States.
When updating his file, the officer learned merely that, from time to time,
they visited the applicant in Canada. It should be pointed that it is the
applicant who has the burden of proving the basis of an H&C application. If
the applicant does not provide enough information to support his or her statements,
the officer is entitled to find that these statements have no basis. In the
circumstances, I am far from being satisfied that the officer did not exercise
her discretion in a reasonable manner.
[10] All in all,
after reviewing the file, I agree with the respondent that the applicant did
not provide sufficient documentation with his H&C application. The decision
at issue seems reasonable to me, and the immigration officer can certainly not
be criticized for the lack of evidence before her.
[11] For all of
these reasons, the application for judicial review is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3177-08
STYLE OF CAUSE: JEAN WILMARC SAGESSE v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal, Quebec
DATE
OF HEARING: January 20, 2009
REASONS
FOR JUDGMENT
AND
JUDGMENT: PINARD
J.
DATED: January 29, 2009
APPEARANCES:
Luc R. Desmarais FOR THE
APPLICANT
Zoé Richard FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
Luc
R. Desmarais FOR THE
APPLICANT
Montréal,
Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
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