Date: 20060509
Docket: IMM-1548-05
Citation: 2006
FC 582
Toronto, Ontario, May 9, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
ABBEY
OKANLAWON BENJAMIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The Applicant, Abbey
Okanlawon Benjamin arrived in Canada in December 1999, and made a refugee claim
upon arrival. This was denied on July 18, 2001.
[2]
The Applicant met his
current wife, Teresa Michelle Benjamin, in April 2001. They were married September
2, 2001. The Applicant thereupon made an H&C application requesting an
exemption from the requirements set out in the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the Act) such that the Applicant could
have his Permanent Residence Application processed from within Canada.
[3]
On February 17, 2005
that application was denied and the Applicant is now seeking judicial review of
that decision.
I. Standard of Review
[4]
An H&C decision per
s. 25(1) of the Act is a discretionary one. The case law is clear that the
standard of review is reasonableness simpliciter. (Agot v. Canada (Minister of Citizenship and Immigration) (2003), 28 Imm. L.R. (3d) 24, 2003 FCT
436; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193;
Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358, 2002 FCA 125).
II. Issue
[5]
Did the Immigration Officer
(the Officer) commit a reviewable error when it rejected the H&C
application?
III. Argument and Analysis
[6]
The Applicant essentially
makes three arguments:
a) the officer
pre-judged the application;
b) the officer failed to make a risk assessment taking into account
new evidence; and
c) the officer failed consider the best interest of the Applicant’s
two step daughters.
[7]
In my view, none of
these arguments can succeed for the following reasons.
[8]
The Applicant argues
that the officer disregarded his degree of establishment in Canada. He states in his factum:
16. In assessing the applicant’s degree of establishment, IP 5,
section 11.2 provides that “the degree of the applicant’s establishment in Canada may include such questions as; 1)
does the applicant have a history of stable employment? 2) is there a pattern
of sound financial management? 3) has the applicant integrated into the
community through involvement in community organizations, voluntary services or
other activities? 4) has the applicant undertaken any professional, linguistic
or other study that show integration into Canadian society so the applicant and
family members have a good civil record in Canada (e.g., no interventions by
police or other authorities for child or spouse abuse, criminal charges)?
17. It is submitted that a careful review of the Officer’s notes and the
applicant’s application clearly show that most of those questions are
answerable positively for the applicant. It is difficult to fathom how instead
of the Officer utilizing the level of the applicant’s integration and other
positive achievements and contributions in Canada, same was used to determine that the applicant can easily
re-integrate into the Nigerian society.
[9]
Yet the Officer
observed:
The Applicant shows a degree of
establishment which is normal for someone who has lived/worked in Canada for the past 6 years. It is
expected that refugee claimant find work and support themselves while waiting
the outcome of their claims. The level of establishment is one factor to be
considered with all other factors in arriving at an H&C decision.
Applicant’s Record, p.9; Reasons, p.2
[10]
While this is not as
detailed an assessment as one would like to see, there is nothing unreasonable
about it. The court must keep in mind the characterization of the H&C
process as described in Nazim v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 159, 2005 FC 125 at paragraph 15:
The humanitarian and
compassionate process is designed to provide relief from unusual, undeserved or
disproportionate hardship. The test is not whether the applicant would be, or
is, a welcome addition to the Canadian community. In determining whether
humanitarian and compassionate circumstances exist, immigration officers must
examine whether there exists a special situation in the person's home country
and whether undue hardship would likely result from removal. The onus is on the
applicant to satisfy the officer about a particular situation that exists in
their country and that their personal circumstances in relation to that
situation make them worthy of positive discretion.
[11]
The Applicant further
alleges that the Officer did not make a proper risk assessment as he did not
take into account the present situation in Africa as stated in a letter from
the Applicant’s mother.
[12]
Yet a careful reading
of the risk assessment shows that it dealt with the threat described in the
mother’s letter. This is sufficient. As has been held in Rodriguez
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 664, 2001 FCT 414 at
paragraph 16:
The immigration
officer does not have to conduct her own risk assessment in determining an
H&C application, as this is not a refugee claim. It is sufficient that she
considered the Applicant’s claim on this issue in coming to her decision.
[13]
Finally, the Applicant argues that the Officer
did not sufficiently address the issue of his two dependent step-children. The
issue of children in H&C proceedings was well summarized in Dias Fonseca v. Canada (Minister of Citizenship and Immigration), 2005 FC 709, at paragraph 17:
In Legault v. Canada (Minister of
Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), the Court of Appeal
made clear that the best interests of the children are important factors,
though not the determinative factor in an H&C decision. In Hawthorne v.
Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555 (C.A.) that
Court also affirmed that, in considering such an application, careful and
sympathetic assessment must be given to the best interests of the children, and
it is not sufficient merely to refer to those interests or the relationships with
children involved. By its decision in Owusu, supra, that Court acknowledged
that in considering an H&C application, the officer concerned must be
alert, alive and sensitive to the best interests of the children when it is
clear the applicant indicates that he or she relies on their best interests as
a factor. The applicant has the burden of establishing that he relies on that
factor, and of establishing a claim that their best interests would be
adversely affected if the decision is not favourable to the applicant.
[14]
Here the Officer stated:
I have
considered the applicant’s marriage to a Canadian citizen. There is an
overseas sponsorship (family class) mechanism available to the applicant and it
is up to him to take advantage of this opportunity. It is a known fact there is
an immense number of people who travel from not only their own village, but to
different countries and suffer a great expense in order to facilitate their
immigration matters. While the department is conscious of the inconvenience that
this may cause, it is also true that whenever possible, clients are facilitated
through paper screening and the use of the mail to expedite the transmittal of
documents. It is possible that an applicant may be processed and never come
into face to face contact with a visa office official. In addition, routine
immigration (spousal – sponsorship) case cases are processed in 6-9 months.
The applicant
states that in his absence from Canada there will be no one to support his wife and she may have to resort
to being on public assistance. It is noted from the submissions that the
applicant’s wife has not worked consistently over the past number of years.
However, it is also noted that she found employment in February 2003 as a
‘fruit packer’. I therefore derive from this submission that the applicant’s
wife is capable for finding work. I also wish to add that if she chooses to go
on public assistance, then that is a decision that only she can make.
Information is not before me to show that she is unable to work or has any
conditions preventing her from working.
…
The role in
which the applicant plays in the lives of his 2 step daughters is
unknown.Whether he supports them or they are supported by other means is
unknown.
[15]
However cursory this assessment seems to be, it
reflects the sparse information found in the application. In it the Applicant
alleged:
Also I am
married to a Canadian citizen and we rely on each other for emotional support.
I would suffer immense emotional hardship should I be required to apply outside
Canada (see further submissions
by counsel)
[16]
His counsel’s submission was of no benefit
either. It stated:
Mr. Benjamin is
married to a Canadian citizen, Teresa Michelle Benjamin (nee Jacobs). They have
been married since September 2, 2001. They live together with her two daughters
to whom he serves as a father-figure. The children and their step-father have a
very living and good relationship. For the better part, Mr. Benjamin has been
the breadwinner of the home. To require him to leave would mean no one
available to support his wife and her two children short of going on public
assistance. His continued presence in Canada would ensure that his wife does not become a burden on the already
over-stretched public purse.
[17]
How could the Officer be alive to the interest
of the children if the Applicant failed to present the barest thread of
evidence? In light of the evidence presented, the Officer’s decision was not
unreasonable. Accordingly, this application cannot succeed.
IV. Addendum
[18]
This case was twice
postponed to allow the Applicant to make an application under the ‘Public
Policy under A25(1) of IRPA to Facilitate Processing in the Spouse or
Common Law Partner in Canada Class’ dated August 26, 2005. This has since
been done on December 31, 2005 and the application is in process. It is
expected that the Respondent will grant the Applicant an administrative
deferral of removal as set out in section “E” of that policy. This Court can
see no benefit in removing the Applicant to Nigeria, while his application (sponsored by his wife) is being considered, only
to bring him back to Canada in an expedited fashion should his
application be successful, as was suggested by the Respondent. Such a procedure
totally fails to take into account the pain, dislocation and emotional toil
entailed in any removal. The Respondent should keep the aforementioned factors
in mind before attempting a removal while the Applicant’s ‘spouse in Canada application’ is pending.
ORDER
THIS COURT ORDERS that this application be dismissed.
“Konrad
W. von Finckenstein”
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