Date: 20090921
Docket: IMM-5286-08
Citation: 2009 FC 936
Ottawa, Ontario, September 21,
2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
OBIOMA
OTUMDI EBEBE
Applicant
and
THE MINISTER OF CITIZENSHIP,
IMMIGRATION
AND MULTICULTURALISM
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is a sympathetic case, but it is also a case involving a history of egregious
immigration fraud on the part of Mr. Ebebe. The natural sympathies of the
matter rest with Mr. Ebebe’s Canadian spouse and their young Canadian child.
[2]
At
the center of the decision under review is the inherent conflict between
maintaining the unity of the family, including respect for the best interests
of an affected child, and the important principle of protecting the immigration
system from deception and abuse. As with most cases of this sort the choices available
to the responsible decision-maker are difficult and, in some measure,
unpalatable. The question facing the Court is whether the decision to refuse
humanitarian and compassionate (H & C) relief to Mr. Ebebe under s. 25 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) was
made lawfully and reasonably and in accordance with the principles expressed in
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190.
a.
Background
[3]
Mr.
Ebebe came to Canada from Brazil as a ship
stowaway and arrived in Montréal on July 6, 2002. Apparently he had made
his way from Nigeria to Brazil in 1993 and, during the intervening years,
the Brazilian authorities allowed him to work.
[4]
Upon
arrival Mr. Ebebe told Canadian immigration authorities that he was Peter Gogoh
and that he was a citizen of Sierra Leone born there on June 27,
1975.
[5]
In
fact, Mr. Ebebe was born in Nigeria on June 27, 1967 and
his parents and seven siblings still reside in the family home in Aba, Abia State, Nigeria.
[6]
Mr.
Ebebe met his future Canadian wife, Sonia Arsenault Gogoh, during the summer of
2003. She was a resident of Prince Edward Island and that is where they
have lived since their marriage on December 19, 2003. Mr. Ebebe initially
misrepresented his identity to his wife and when their son was born on December
8, 2005 he was named Jonah Anderson Ebebe Gogoh.
[7]
In
July 2002, Mr. Ebebe applied for refugee protection and his claim was heard by
the Immigration and Refugee Board (Board) on April 27, 2006. Through that
hearing he continued to maintain that he was a citizen of Sierra Leone and he
related a detailed, but fraudulent, history of persecution during the period of
that country’s civil unrest. His claim to protection was rejected by the Board
on credibility grounds on June 20, 2006.
[8]
Mr.
Ebebe continued to misrepresent his identity to immigration authorities and to
his wife and her family until March 2008. It was only when he was required to
produce a valid passport and police certificate in support of a pending claim
to H & C relief that his situation became untenable and he disclosed his
true personal history. He then corrected his application for H & C relief
and it is from the negative decision on that application that he brings this
application for judicial review. It is very clear from the decision under
review that the decision-maker (Officer) concluded that the factors that
supported the granting of relief were overridden by the significance of Mr.
Ebebe’s fraudulent conduct.
II. Issues
[9]
(a) What
is the standard of review?
(b) Did
the Officer err by applying wrong principles to Mr. Ebebe’s application?
(c) Did
the Officer err by overlooking or misconstruing the evidence?
III. Analysis
A. Standard
of Review
[10]
For
the purposes of applying an appropriate standard of review, I adopt the following
passage from the judgment of Justice Eleanor Dawson in Ahmad
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 646, 167 A.C.W.S. (3d) 974:
[10] Since the decision of the
Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, 2008
SCC 9, determining the appropriate standard of review involves two steps.
First, the Court must ascertain whether the jurisprudence has already
satisfactorily determined the degree of deference to be accorded to the
particular type of question at issue. Second, if that initial inquiry proves
unsuccessful, the Court must consider the relevant standard of review factors.
Those factors include: (i) the presence or absence of a privative clause; (ii)
the purpose of the decision-maker in question, as determined by its enabling
legislation; (iii) the nature of the question at issue; and (iv) the relative expertise
of the decision-maker. See: Dunsmuir at paragraphs 57, 62, and 64.
[11] The appropriate standard of
review for a humanitarian and compassionate decision as a whole had previously
been held to be reasonableness simpliciter. See: Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 at paragraphs 57 to 62. Given the discretionary nature of
a humanitarian and compassionate decision and its factual intensity, the
deferential standard of reasonableness is appropriate. See: Dunsmuir at
paragraphs 51 and 53.
[12] As to what review on the
reasonableness standard entails, the Supreme Court was express in Dunsmuir,
at paragraph 48, that the collapse of the patent unreasonableness standard of
review and the move toward a single standard of reasonableness was not an
invitation to more intrusive scrutiny by the Court. At paragraph 49, the
majority cautioned that:
Deference in the context of the
reasonableness standard therefore implies that courts will give due consideration
to the determinations of decision makers. As Mullan explains, a policy of
deference "recognizes the reality that, in many instances, those working
day to day in the implementation of frequently complex administrative schemes
have or will develop a considerable degree of expertise or field sensitivity to
the imperatives and nuances of the legislative regime": D. J. Mullan,
"Establishing the Standard of Review: The Struggle for Complexity?"
(2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect
for the legislative choices to leave some matters in the hands of
administrative decision makers, for the processes and determinations that draw
on particular expertise and experiences, and for the different roles of the
courts and administrative bodies within the Canadian constitutional system.
[13] Review on the reasonableness
standard requires the Court to inquire into the qualities that make a decision
reasonable, which include both the process and the outcome. Reasonableness is
concerned principally with the existence of justification, transparency, and
intelligibility in the decision-making process. It is also concerned with
whether the decision falls within the range of acceptable outcomes that are
defensible in fact and in law. See: Dunsmuir at paragraph 47.
B. Did the Officer Err by Applying Wrong
Principles to Mr. Ebebe’s Application?
[11]
The
principal argument advanced on behalf of Mr. Ebebe is that the Officer
misstated the legal test for the grant of relief under s. 25 of the IRPA. It
is argued the Officer conflated the relevant criteria for obtaining relief set
out in the Inland Processing Manual 5 (IP5) by requiring Mr. Ebebe to establish
unusual, undeserved or excessive hardship which was also the result of
circumstances beyond his control. This was an error, he says, because IP5
states only that, in most cases, the requisite hardship must result from
circumstances beyond one’s control. In other words, this is not to be taken as
a determinative consideration.
[12]
This
argument is not persuasive. First, the decision itself does not treat this
consideration as a sine qua non for relief. It is apparent from the
Officer’s reasons that she examined the various criteria disjunctively and
carried out a proper weighing of the evidence including the evidence bearing on
the best interests of Mr. Ebebe’s child. She did not deny relief on the sole
basis that the situation of hardship was the result of circumstances within Mr.
Ebebe’s control. This is evident from the Officer’s conclusion:
The evidence gathered in order to come to
a fair and balanced decision has lead me to conclude that Mr. Ebebe did not
misrepresent himself out of fear of being separated from his son and wife, and
therefore being unable to provide for them financially and emotionally. Mr.
Ebebe stated on multiple occasions that everything he had done to mislead the Government
of Canada, his child, his wife, her family and everyone around him was out of
fear and for his family in Nigeria and to ensure their
well-being. As outlined above, I am satisfied that the best interests of Mr.
Ebebe’s child will be ensured by Mrs. Gogoh and her family and he will be
allowed to live a safe, health [sic] and fulfilling life. I am
satisfied that Mr. Ebebe misrepresented himself knowing the potential outcome
of his decision on his ability to remain in Canada. After weighing the humanitarian and
compassionate factors presented by Mr. Ebebe and his counsel, and giving
consideration to the evidence available on Mr. Ebebe’s previous application for
permanent residence, I am not satisfied that Mr. Ebebe’s hardship outweighs his
contravention of the Act. I am not satisfied that Mr. Ebebe’s hardship
is usual [sic], disproportionate or underserved and meets the test as
set out in section 25(1) of the Immigration and Refugee Protection Act.
On this point, I rely upon the decisions in
Tameh v. Canada (Minister of Citizenship and Immigration), 2008 FC 1235,
[2008] F.C.J. No. 1563 (QL) and Pannu v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1356, 153 A.C.W.S. (3d) 195.
[13]
I
would add that although the IP5 guidelines are helpful and relevant to the
assessment of the reasonableness of an H & C decision they should not be
construed as though they are equivalent to a statutory instrument. In the
absence of a statutory test, an applicant for this type of relief has no right
to a particular outcome or to the application of any particular legal test:
see Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC
412, [2009] F.C.J. No. 497 (QL) at paragraph 28.
C. Did the Officer Err by Overlooking
or Misconstruing the Evidence?
[14]
Mr.
Ebebe also contends that the Officer was fixated on the issue of his misconduct
to the exclusion of other relevant considerations and, in particular, the best
interests of his child. This decision, it is argued, suffers from the same
frailties that were identified in Sultana v. Canada (Minister of
Citizenship and Immigration), 2009 FC 533, [2009] F.C.J. No. 653 (QL).
[15]
Sultana, above, was
a case where important evidence was overlooked and where there was not a proper
weighing of the competing evidence by the decision-maker. This is evident from
Justice Yves de Montigny’s finding at paragraph 29:
[…] A careful reading of the CAIPS notes
reveals that the Immigration officer, on more than one occasion, considers the
failure to disclose as a paramount factor precluding any possibility that
H&C factors could overcome the exclusion mandated by s.117(9)(d)…
[16]
I
am not satisfied that the decision under review contains an error of the sort
recognized in Sultana, above. Instead, what the Court is being asked to
do in this case is to reweigh the evidence and to effectively reconsider the
Officer’s decision on its merits. That is not the proper role of the Court on
judicial review: see Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at paragraph
38.
[17]
In
particular, I am satisfied that the Officer was alert, alive and sensitive to
the best interests of Mr. Ebebe’s child. Based on Mr. Ebebe’s submissions and
the follow-up interview with him on July 23, 2008, the Officer drew a number of
positive and negative conclusions. First, the Officer indicated that Mr. Ebebe’s
involvement in his child’s life was “obvious and undeniable” and that she was
satisfied a significant level of interdependence existed within the family.
Second, the Officer noted that Mr. Ebebe contributed financially to the
household, but that his wife earned a greater portion of the family income.
Nevertheless, she was satisfied that Mr. Ebebe contributed to the child’s
needs. Third, it was noted that the child had regular contact with his extended
maternal family, but little contact with Mr. Ebebe’s family in Nigeria.
[18]
On
matters of gender and race, the Officer agreed with Mr. Ebebe’s submission that
he and his son shared a close bond. However, the Officer also noted that Mr.
Ebebe did not speak of this matter during his interview and failed to address
it in his written submissions. When the Officer questioned whether Mr. Ebebe intended
to teach his son about their Nigerian heritage, Mr. Ebebe responded that his
son was too young. This combined with Mr. Ebebe’s hesitation in revealing his
identity to his family caused the Officer to conclude that this was not a
significant factor.
[19]
The
Officer concluded the analysis of the best interests of the child by noting
that “[t]he above discussion is not aimed at attempting to minimise the effect
of a father’s removal on his child, but rather to provide a clear picture of
Mr. Ebebe’s family’s circumstances”. While recognizing the important H & C
considerations that did exist, the Officer was nevertheless satisfied that:
[...] Mr. Ebebe’s son’s well-being would
be ensured even if Mr. Ebebe were to be removed. Mr. Ebebe and Mrs. Gogoh
have provided me with me [sic] sufficient evidence to satisfy me Mrs.
Gogoh and her family can provide her son the material, financial and emotional
support required for him to thrive. It is evident from the submissions on file
that Mrs. Gogoh’s family care deeply for this child and I am satisfied that
they would continue to do so were Mr. Ebebe to be removed.
[20]
The
Officer went on further to discuss the maternal family’s strong emotional
relationship with Mr. Ebebe’s son. She also noted that Mr. Ebebe’s removal
would not cause his child to face financial hardship based on the fact Mr. Ebebe’s
spouse was the main income earner in the family.
[21]
All
of the above confirms that the Officer carried out a thorough and thoughtful
assessment of the best interests of the child. What is essentially being
advanced on behalf of Mr. Ebebe is that this decision must be irrational
because, in the end, the Officer’s concerns about Mr. Ebebe’s misconduct
overwhelmed the evidence supportive of maintaining family unity. While a
different decision could certainly have been reached on this record, it was not
an error to give great and, indeed, overriding weight to Mr. Ebebe’s
misconduct. This was, after all, a case of serious and prolonged
misrepresentation of the sort that was of concern to the Court in Legault v.
Canada
(Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358
at paragraph 19:
In short, the Immigration Act and the
Canadian immigration policy are founded on the idea that whoever comes to
Canada with the intention of settling must be of good faith and comply to the
letter with the requirements both in form and substance of the Act. Whoever
enters Canada illegally contributes to
falsifying the immigration plan and policy and gives himself priority over
those who do respect the requirements of the Act. The Minister, who is
responsible for the application of the policy and the Act, is definitely
authorised to refuse the exception requested by a person who has established
the existence of humanitarian and compassionate grounds, if he believes, for
example, that the circumstances surrounding his entry and stay in Canada
discredit him or create a precedent susceptible of encouraging illegal entry in
Canada. In this sense, the Minister is at liberty to take into consideration
the fact that the humanitarian and compassionate grounds that a person claims
are the result of his own actions.
IV. Conclusion
[22]
This
was a decision that meets the standard set in Dunsmuir, above, that is,
a decision falling within the range of acceptable outcomes that are defensible
in fact and law: see paragraph 47.
[23]
This
decision does not preclude Mr. Ebebe’s return to Canada. The
Respondent does not appear to contest the genuineness of Mr. Ebebe’s marriage,
and the value of his presence in the life of his young son cannot be seriously
doubted. In these circumstances, it would behoove the Minister to expedite the
processing of Mr. Ebebe’s application for permanent residency under the
sponsorship of his wife.
[24]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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