Docket: IMM-3324-11
Citation: 2011 FC 1429
Ottawa, Ontario, December 14, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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FAVOUR ODAFE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
Introduction
[1]
This
decision arises from an application for judicial review of a March 1, 2011
decision under section 25 of the Immigration and Refugee Protection Act,
2001,
c. 27
(IRPA)
by a Pre-Removal Risk Assessment (PRRA) Officer. The Officer refused the
applicant’s application for permanent residency on Humanitarian and
Compassionate grounds (H&C). For the reasons that follow, the application
is dismissed.
Facts
[2]
The
applicant is originally from Nigeria. She arrived in Canada on March 11,
2007 and made a refugee claim on the same day. Her claim was refused on June
18, 2009. On September 16, 2009 she gave birth to her son. On November 18,
2009 this Court refused the applicant’s leave to seek judicial review
application. On March 9, 2010, the applicant submitted a Pre-Removal Risk
Assessment application, the refusal of which forms the basis of this
application.
Issue
[3]
The
issue in this case is whether the decision of the PRRA Officer to refuse the
applicant’s application for permanent residency on H&C grounds is
reasonable per Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
[4]
The
applicant’s sole argument is that the PRRA Officer failed to consider the best
interests of the child. The Supreme Court of Canada held in Baker v Canada
(Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817 that a
decision-maker must be alert, alive and sensitive to the best interests of the
child in an application for humanitarian and compassionate relief under section
25 of the IRPA. The decision in question is silent on this point, and
presumptively, in error. But the case is not so simple.
[5]
The
applicant did not argue, advance or contend that the best interests of her
child favoured a positive disposition on her H&C application. No
submissions were made in respect of the child, then two years old.
[6]
The
Officer was aware of the existence of the young child but did not give fulsome
consideration to the issue. There is no onus, in these circumstances, on
the Officer to makes further inquires concerning the best interests of the
child, particularly where the issues were raised in an oblique or cursory way
or, as in this case, not at all. This case thus falls squarely within the
reasons of the Federal Court of Appeal in Kisana v Canada (Minister of
Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360, at para
45 where the Court observed:
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 high-light
weaknesses in an application and to request further submissions (see, for
example: Thandal, above, at paragraph 9). In Owusu, above, this
Court held that an H&C officer was not under a positive obligation to make
inquiries concerning the best interests of children in circumstances where the
issue was raised only in an “oblique, cursory and obscure” way (at paragraph
9). The H&C submissions in that case consisted of a seven-page letter in
which the only reference to the best interests of the children was contained in
the sentence: “Should he be forced to return to Ghana, [Mr. Owusu] will
not have any ways to support his family financially and he will have to
live every day of his life in constant fear” (at paragraph 6).
[Emphasis in original]
[7]
The
burden remains on the applicant to advance all arguments in support of an
H&C application and does not shift to the respondent Minister by reason of
the failure of counsel to make arguments or to bring forward evidence that
might otherwise be available. I note however, that, in reviewing the
establishment factors, including the applicant’s large family in Nigeria, her
prior employment record in Nigeria and the fact that she
speaks two languages the Officer did consider factors that would be material to
the wellbeing of the child.
[8]
It
is argued that the failure of the applicant’s counsel to make submissions in
respect of the child constituted professional negligence, the consequences of
which should not be visited on the client. The Federal Court has set a
high threshold governing the circumstances and evidentiary criteria that must
be met before relief under section 18.1 of the Federal Courts Act
(R.S.C., 1985, c. F-7) will be given on the basis of the negligence of
counsel. In Nunez v Canada (Minister of
Citizenship and Immigration), 2000 CanLII 15156 (FC) , Justice Denis Pelletier
(now of the Court of Appeal) wrote:
I am not prepared to accept an allegation of serious
professional misconduct against a member of the bar and an officer of this
court without having the member"s explanation for the conduct in question
or evidence that the matter has been referred to the governing body for
investigation. In this case, there was ample opportunity to do one or the other
but neither was done. The failure to do so is inconsistent with the gravity of
the allegations made. This is not a question of being solicitous of
lawyers" interests at the expense of their clients. It is a question of recognizing
that allegations of professional negligence are easily made and, if accepted,
generally result in the relief sought being granted. The proof offered in
support of such an allegation should be commensurate with the serious nature of
the consequences for all concerned.
[9]
More
recently, in Jeffrey v Canada (Minister of Citizenship and Immigration),
2006 FC 605, Justice Richard Mosley noted that substantial prejudice must be
shown to flow from or in consequence of the actions of incompetent counsel. It
must also be established that there is a reasonable probability that, but for
the unprofessional errors, the result of the proceeding would be different. In
the context of this case, where all the material facts are on the record and
are uncontested, it would be very difficult for the applicant to establish
that, but for the incompetence, the result would, with reasonable probability,
be different.
[10]
The
application for judicial review is dismissed.
[11]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and the Court finds
that none arises.
"Donald
J. Rennie"
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