Date: 20060929
Docket: IMM-7199-05
Citation: 2006 FC 1139
BETWEEN:
OLUBUNMI
OLAJUMOKE FADAIRO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of a decision of Xochi Bryan, Second
Secretary (Immigration) at the High Commission of Canada in Accra, Ghana (the “Visa
Officer”), dated September 15, 2005, refusing the applicant’s application for
permanent residence because she did not meet the requirements set out in the
definition of “dependent child”.
[2]
The
applicant’s mother is a permanent resident in Canada and, on June
10, 2004, she submitted a sponsorship application for her daughter, the
applicant. That application was approved by letter dated July 5, 2004. Based on
this approval, the applicant then applied to the visa post in Ghana for
permanent residence in Canada as a member of the family class.
[3]
On
September 15, 2005, the Visa Officer found that the applicant did not meet the
definition of a “dependent child” for the following reasons:
At the time
of the submission of your sponsorship undertaking, you were over the age of 22
years, therefore you were examined as an overage dependent. By your own
admission, you were not enrolled in any courses between August 2004 and January
2005. In addition, you are currently studying only on a part-time basis (Monday
to Friday from 6pm to 9pm and all day on weekends). Therefore, since before the
age of 22 years, you have not been continuously enrolled in and attending a
post-secondary institution and actively pursuing a course of academic,
professional or vocational training on a full-time basis. As a result, you do
not meet the definition of a member of the family class.
[4]
At
the hearing before me, learned counsel for the applicant limited herself to a
single question: Should the respondent, given the circumstances, have
considered the applicant’s case on humanitarian and compassionate (H&C)
grounds?
[5]
Subsection
25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”) states:
|
25. (1) The Minister shall,
upon request of a foreign national who is inadmissible or who does not meet
the requirements of this Act, and may, on the Minister’s own initiative,
examine the circumstances concerning the foreign national and may grant the
foreign national permanent resident status or an exemption from any
applicable criteria or obligation of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to them, taking into account the best interests of a child directly
affected, or by public policy considerations.
|
25. (1) Le ministre doit, sur demande d’un étranger interdit de
territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre
initiative, étudier le cas de cet étranger et peut lui octroyer le statut de
résident permanent ou lever tout ou partie des critères et obligations
applicables, s’il estime que des circonstances d’ordre humanitaire relatives
à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement
touché — ou l’intérêt public le justifient.
|
[6]
The
applicant submits that humanitarian
and compassionate considerations should be taken into account pursuant to section
25 when a person is found not to be a member of the family class. According to
the applicant, it is clear that section 25 does not have to be engaged only by
request of an application, but should be used by the respondent in situations
where circumstances, such as the ones at bar, so demand. Failure to use such
discretion should be reviewed by this Court when appropriate. I do not agree.
[7]
First,
subsection 25(1) of the Act makes it clear that absent a request of a foreign
national who is inadmissible or who does not meet the requirements of the Act,
the Minister may, on the Minister’s own initiative, consider
humanitarian and compassionate grounds (emphasis is mine). As no request for an
assessment of humanitarian and compassionate considerations had been made in
the case at bar prior to the Visa Officer’s decision dated September 15, 2005,
the Minister was under no obligation to make such an assessment (see Javed
Mustafa v. The Minister of Citizenship and Immigration, 2006 FC 1092).
[8]
Furthermore,
the applicant saw it fit, in November 2005, after the impugned decision
was rendered, to make a formal request for an assessment of the case on
humanitarian and compassionate grounds. There is no indication that an H&C decision
has been rendered yet, and it is conceded by the applicant that no mandamus
has been sought by her requesting that a decision be made in that regard. In
the circumstances, the H&C application is a separate matter which cannot be
dealt with by this Court by way of this application for judicial review.
[9]
For
all the above reasons, the application for judicial review is dismissed.
[10]
Counsel
for the applicant proposes the following question to be certified pursuant to
subsection 74(d) of the Act:
Does
procedural fairness, equity and the stated objectives of the act demand that
the Respondent give an Applicant an opportunity to make submissions, pursuant
to S. 25 of the Act, in such situations, in which the Applicant was a
member of the “Family Class” at the time of the submission of his or her
application for a permanent resident visa, but largely due to factors beyond
the applicant’s control, the principle being the length of the processing time
of the application, which is primarily dictated by the respondent, at the time
the said application is finally assessed he or she is no longer a member of the
said class?
[11]
Upon
considering the written representations made on behalf of the parties with
respect to this request for certification, I agree with counsel for the
respondent that the applicant has failed to show that the proposed question is
a serious question of general importance which would be dispositive of the
appeal (see Zazai v. Minister of Citizenship and Immigration, 2004 FCA
89). Accordingly, there will be no certification.
“Yvon
Pinard”
Ottawa,
Ontario
September
29, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7199-05
STYLE OF
CAUSE: OLUBUNMI
OLAJUMOKE FADAIRO v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Toronto, Ontario
DATE OF
HEARING: September
6, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: September 29, 2006
APPEARANCES:
Ms. Wennie Lee FOR
THE APPLICANT
Ms. Janet
Ghisholm FOR THE RESPONDENT
SOLICITORS
OF RECORD:
Lee &
Company FOR THE APPLICANT
Barristers and
Solicitors
Toronto, Ontario
John H. Sims,
Q.C. FOR THE RESPONDENT
Deputy Attorney
General of Canada
Email this Content