Date: 20090202
Docket: IMM-4272-07
Citation: 2009 FC 108
Ottawa, Ontario, February 2,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
KOLAWOLE
IKPONMWOSA INNEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of the rejection of the Applicant’s humanitarian and
compassionate (H&C) application. The central issue in this case is whether
the Respondent properly considered the best interests of the children in
rendering that decision.
II. BACKGROUND
[2]
The
Applicant is a citizen of Nigeria who married his wife, a
permanent resident of Canada, on November 25, 2006. He had previously
been married to a Canadian citizen but that marriage apparently was dissolved.
[3]
The
Applicant is the father of a two-year old son, who is also a Canadian citizen.
The Applicant’s wife has two children, ages six and eight, who apparently
accept the Applicant as their father.
[4]
The
Applicant’s mother and his other son and daughter all live in Nigeria.
[5]
The
Applicant filed a refugee claim on October 7, 2001 in which he claimed that he
would be persecuted because of his Christian religion and his refusal to join
cults. That refugee application was rejected on the grounds of contradictions
in the Applicant’s narrative and implausibility of his story. Leave to appeal
was rejected on October 1, 2002.
[6]
The
Applicant filed an H&C application on November 18, 2002 and a PRRA
application on April 15, 2003. That PRRA application was rejected and a warrant
was issued based on the Applicant’s failure to appear at his removal hearing.
[7]
At
the time of filing his H&C application in 2002, the Applicant claimed the
risk of persecution and the interdependence of the couple, both financially and
emotionally, as the basis for the application. The application was updated in
2004 and alleged the same grounds.
[8]
In
2007, the H&C application was again updated. This time the Applicant raised
the same risk as earlier indicated, the existence of his marriage, the birth of
his latest child, and his responsibilities to the two other children from his
wife’s first relationship as grounds for the application. He also alleged that
the separation would be a hardship for the family. In addition, the Applicant
asserted that his wife presently worked and that he was prepared to do so as
soon as he could.
[9]
The
H&C decision rejecting the Applicant’s application noted that the risk
claimed was the same as that which had been rejected by the Immigration and
Refugee Board (IRB). The Officer found that there were no good grounds for
deciding differently from the IRB.
[10]
The
Officer then went on to address the issue of hardship. He noted that marriage
is only one factor to be considered in the analysis of an H&C, that the
hardship caused by separation is also a factor to be considered, but that the
Applicant was aware of his uncertain immigration status when he married and had
a child, and that his situation was similar to that of many people. As a
result, there was nothing unusual, undeserved, or disproportionate about the
hardship arising from separation.
[11]
The
Officer, in considering the best interests of the children, included in his
consideration both the children in Canada and in Nigeria. The Officer
noted that the best interests of the children do not necessarily outweigh all
other factors in an H&C analysis. The Officer reiterated that separation
would cause the same hardship and was subject to the same considerations as
earlier described.
[12]
At
this judicial review, the Applicant submitted affidavit evidence indicating
that his wife continued to be employed and that the husband’s role was now that
of a caregiver for the children. This evidence was not before the Officer at
the time of the decision. It is noteworthy that the Applicant’s role as a
caregiver for the children is inconsistent with the information, updated as
recently as 2007, indicating that the Applicant intended to work outside the
home.
III. ANALYSIS
[13]
The
standard of review for H&C determinations in general has been found to be
reasonableness (Ahmad v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646). It was also recognized in
that decision, the reasoning of which I adopt, that H&C decisions are
discretionary in nature and therefore there is a wider scope of possible
reasonable outcomes available.
[14]
While
the Officer’s decision and the focus on the best interests of the children are
somewhat sparse; as found in Ahmad, above, the Officer can hardly be
faulted if matters are not raised in the course of the application. A review of
the information provided in the updated submissions indicates that the Officer
was given little or nothing to consider in respect of the particular
circumstances of the best interests of the children.
[15]
In
addition, the Officer noted that the best interests of the children are but one
factor in the H&C analysis. As held by the Federal Court of Appeal in Legault
v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, while an
officer must seriously consider the best interests of the children and that
merely mentioning the existence of the children is not sufficient, the best
interests of children are not superior to other interests and do not create a prima
facie assumption that the children’s best interests should always prevail.
In this regard, the Court of Appeal noted that it would be better to describe
this factor as the “children’s interests” rather than the “children’s best
interests” (Legault, above, at paragraph 13).
[16]
In
this matter, the Officer considered the interests of the children, both inside
and outside Canada. The only
element advanced by the Applicant was the hardship which would be caused by
separation. There was no detail regarding the occurrence of hardship. The
assumption by the Applicant that separation of a parent and child amounts, per
se, to hardship meriting an H&C exemption cannot be sustained.
[17]
The
Officer then went on to consider other factors in the H&C analysis,
including that of “establishment” and “risk.” The Officer found that the Applicant’s
degree of establishment did not justify invoking the H&C exception, noting
in particular that the Applicant was not currently employed.
[18]
On
the matter of risk, the Officer noted that the country conditions in Nigeria are not
favourable, but accepted the finding of the IRB with respect to the absence of
risk and found that no undeserved or disproportionate hardship would arise from
requiring the Applicant to apply for permanent residence from outside Canada.
[19]
The
Officer’s decision, viewed as a whole, shows that the Officer was alert, alive,
and sensitive to the interests of the children, but that the application itself
was so devoid of substantive evidence and submissions that there was nothing
that would make this factor compelling. The Officer considered the interests of
the children against the other factors of establishment and risk, and reached a
reasonable conclusion that the circumstances of this case did not justify an
exemption from the usual rules for permanent residence applications.
IV. CONCLUSION
[20]
Therefore,
this application for judicial review will be dismissed. There is no question
for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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