Docket: IMM-423-15
Citation:
2015 FC 1277
Ottawa, Ontario, November 17, 2015
PRESENT: The
Honourable Mr. Justice Harrington
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BETWEEN:
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ESTHER CHIOMA
AWGU
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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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JUDGMENT AND REASONS
[1]
Ms. Awgu came to Canada from Nigeria in 2008;
pregnant and penniless. She promptly applied for refugee status, and soon
thereafter gave birth to twin boys, one of whom has a severe stutter.
[2]
Her application for refugee status was
dismissed. Her application for leave and judicial review from that decision was
dismissed. Her pre-removal risk assessment was dismissed. Her first application
to stay in Canada on humanitarian and compassionate grounds was dismissed. This
is the judicial review of her second humanitarian and compassionate
application.
[3]
The general principle is that one must apply for
Canadian permanent resident status from outside Canada. By exception, s 25(1)
of the Immigration and Refugee Protection Act provides that “the Minister must … examine the circumstances concerning the
foreign national and may grant the foreign national permanent resident status …
taking into account the best interests of a child directly affected”. A Senior
Immigration Officer of Citizenship and Immigration Canada dismissed her
application because she was not satisfied that it would amount to an unusual
and underserved or disproportionate hardship if Ms. Awgu returned to Nigeria.
I.
The Issues
[4]
The issue is not whether I would have granted
the application. The issue is whether the decision was unreasonable. The first
factor under consideration is whether Ms. Awgu would face unusual and
underserved or disproportionate hardship should she be returned to Nigeria. In
considering hardship, the Senior Immigration Officer was required to take into
consideration her degree of establishment in Canada.
[5]
The second factor is the best interest of the
children.
[6]
As I have come to the view that the Senior
Immigration Officer’s analysis of Ms. Awgu’s establishment in Canada was
unreasonable, it is not necessary to review her analysis of the best interests
of the children. However, a red flag is raised in that regard. Undeserved
hardship is not relevant when speaking of innocent children (Hawthorne v
Canada (Minister of Citizenship and Immigration), 2002 FCA 475). It may be
that the one sentence in which the Senior Immigration Officer appears to have
applied that principle to the children was taken out of context, when one
considers her reasons as a whole.
[7]
The fatal error is that the Senior Immigration
Officer equated establishment in Canada with economic establishment. Ms. Awgu has
been on the dole, although this may be attributable to her mental and physical
issues. Ms. Awgu is not applying for permanent resident status as a provincial nominee,
where economic establishment is the key factor (Immigration and Refugee
Protection Act, s 87). Although economic establishment may be a factor, it
is certainly not an exclusive one (Tartchinska v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 373 (QL), a decision of Mr.
Justice Nadon, as he then was).
[8]
The case which has most influenced my reasoning
is that of Madam Justice Mactavish in Klein v Canada (Citizenship and
Immigration), 2015 FC 1004, particularly at paragraph 7 where she speaks to
the officer demonstrating a lack of sensitivity: “To
require that someone in Mr. Klein’s position be able to demonstrate that he has
achieved the conventional markers of establishment is to ignore the reality of
his life.”
[9]
Ms. Awgu has a wide circle of friends and
acquaintances, and community involvement which should have been taken into
consideration.
JUDGMENT
FOR REASONS GIVEN;
THIS COURT’S JUDGMENT IS that:
1.
The application for judicial review is granted.
2.
The decision is quashed and the matter is
referred back to a different immigration officer for redetermination.
3.
There is no serious question of general
importance to certify.
“Sean Harrington”
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