Date: 20061005
Docket: IMM-1630-06
Citation: 2006 FC 1186
Ottawa, Ontario, October 5, 2006
PRESENT:
The Honourable Mr. Justice Harrington
BETWEEN:
AMINATA
KEITA
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Born on
August 2, 1980, in Ottawa, Canada, Aminata Keita always thought she was a
Canadian citizen. Two years after she was born, she had to leave the country
with her parents for financial reasons. Her father still had a position with
the Guinean Embassy, but he was reassigned to Mali. Four years later, the Keita
family returned to its country of origin, Guinea. In 2001, when the applicant
was 21 years old, she received a Canadian passport from the Canadian Embassy in
Guinea. She then came to live in Montréal to study. After her arrival, she
applied for a Canadian certificate of citizenship, which she received in 2003.
[2] As a result of the
applicant’s dealings with Citizenship and Immigration Canada, the Canadian
authorities found that, in spite of the fact that Ms. Keita’s place of
birth was Canada, her parents had Guinean diplomatic status when she was born
in 1980. Although according to the general rule, set out in
paragraph 3(1)(a) of the Citizenship Act, R.S.C. 1985, c.
C-29, that a person born in Canada after February 14, 1977, is entitled to
obtain Canadian citizenship, there is a statutory exception that limits the
scope of its application. According to paragraph 3(2)(a) of the
same Act, this exception applies when, as in this case, the child is born in
Canada, “. . . either of his parents was a citizen or lawfully admitted to
Canada for permanent residence and either of his parents was (a) a
diplomatic or consular officer or other representative or employee in Canada of
a foreign government . . .”.
[3] The applicant does
not challenge the law as it stands and concedes that she cannot be granted
Canadian citizenship because of her family situation. However, in order to have
a legal status in the country, she was given an opportunity to make an
in-Canada application for permanent residence, since she had come to live here
in 2001. She submitted the application to the Canadian authorities in summer
2004.
[4] When it enacted section 11
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(IRPA), Parliament established that an application for permanent residence made
by a foreign national interested in settling in Canada must usually be made to
the Canadian Embassy in the applicant’s country of nationality or in the
country where the applicant has been residing for at least one year, as stated
in subsection 11(1) of the Immigration and Refugee Protection
Regulations, SOR/2002-227. In spite of this, there is an exception to the
rule in Canada, as provided in subsection 25(1) of the IRPA, which the
applicant relied on when she submitted her application in 2004. Basically, this
exception enables the Minister, upon request of a foreign national who is
inadmissible in Canada or who does not meet the requirements of the IRPA, to
examine an application for permanent resident status made in Canada when it is
justified by humanitarian and compassionate considerations.
[5] In the case at bar,
on February 28, 2006, the immigration officer rejected the application for
permanent residence on humanitarian and compassionate grounds made by
Ms. Keita. This is the decision that is now being judicially reviewed
before this Court.
ISSUES
[6] The following
issues arise in this case:
A. The
applicable standard of review
B. Ms.
Keita’s good faith
C. Is the
immigration officer’s decision reasonable?
BACKGROUND
[7] It bears mentioning
that Ms. Keita applied to the Canadian Embassy in Guinea for a passport before
coming to live in Canada to study. It should be specified that the Canadian
passport application form does not ask any questions about the diplomatic
status of a parent at the time of the applicant’s birth. Consequently,
following her application, Ms. Keita had a duly obtained Canadian passport
when she entered the country.
[8] Some time after she
arrived, the applicant was issued a new Canadian passport, as her old one had
been stolen. In 2003, she received a certificate of citizenship, which was
issued in spite of the fact that, on the application form, the applicant
surprisingly did not indicate whether one of her parents had diplomatic status.
In fact, the applicant did not personally complete the written form to obtain
the certificate. She claims that, instead, it was a friend who did it for her
and that she signed it without even reading it beforehand. Although this is
inexcusable in any case, this omission did not lead the immigration officer to
conclude that the applicant had acted in bad faith.
[9] Nevertheless, after
Ms. Keita’s certificate of citizenship was issued, her actual family
situation with respect to her parents’ diplomatic status came to light, which
is when the Canadian authorities confiscated her Canadian passport and
certificate of citizenship. There seems to be an agreement between Canada and
Guinea that Guinea is to inform the Canadian authorities of the presence of its
diplomats and if they give birth to children in the country. This information
was not available when the applicant’s first Canadian passport was issued. The
issue here is not to determine which government is to blame for the omission.
Consequently, Ms. Keita cannot be said to have acted in bad faith.
STANDARD OF
REVIEW
[10] As
established in the case law in Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, the standard of review applicable to a
decision on an application for permanent residence on humanitarian and
compassionate grounds is reasonableness simpliciter.
ANALYSIS
[11] First of all, it is
important to remember the immigration officer’s role when reviewing an
application for permanent residence on humanitarian and compassionate grounds,
and that is what Layden-Stevenson J. succeeded very well in doing at
paragraph 8 in Agot v. Canada (Minister of Citizenship and Immigration),
2003 FCT 436, [2003] F.C.J. No. 607 (QL):
It is useful to review some of the established principles regarding
H & C applications. The decision of the ministerial delegate with
respect to an H & C application is a discretionary one: Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Baker).
The standard of review applicable to such decisions is that of reasonableness simpliciter:
Baker. The onus, on an application for an H & C exemption,
is on the applicant: Owusu v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 94, [2003]
F.C.J. No. 139 per Gibson J. citing Prasad v. Canada (Minister of
Citizenship and Immigration) (1996), 34
Imm.L.R. (2d) 91 (F.C.T.D.) and Patel v. Canada (Minister of Citizenship and
Immigration) (1997), 36 Imm.L.R. (2d)
175 (F.C.T.D.). The weighing of relevant factors is not the function of a court
reviewing the exercise of ministerial discretion: Suresh v. Canada (Minister
of Citizenship and Immigration), [2002] 1 S.C.R. 3 (Suresh); Legault
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358
(C.A.) (Legault). The ministerial guidelines are not law and the
Minister and her agents are not bound by them, but they are accessible to the
public and the Supreme Court has qualified them as being of great assistance to
the court: Legault. An H & C decision must be supported by
reasons: Baker. It is inappropriate to require administrative officers
to give as detailed reasons for their decisions as may be expected of an
administrative tribunal that renders its decisions after an adjudicative
hearing: Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394 (F.C.A.)
[12] In addition, it is
important to emphasize that an application on humanitarian and compassionate
grounds is an exception to the general rule in Canada to the effect that an
application for permanent residence is to be made abroad. In this regard,
Rouleau J. stated the following at paragraph 15 in Nazim v. Canada
(Minister of Citizenship and Immigration), 2005 FC 125, [2005] F.C.J. No.
159 (QL):
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.
[13] Ms. Keita
alleges the following with respect to the exceptional hardship she would suffer
if she had to submit her application at a visa office in Guinea, as required by
the legislation:
[translation]
If I return to Guinea without
completing my university studies in Montréal, I will have to give up my
international career plans. In Guinea, women are not encouraged to get a
university education, but rather to get married to an old man who is most
probably illiterate and already has one or two wives and wants me to give birth
to his children. This completely goes against my actual ambitions and plans.
The immigration officer
correctly concluded that the applicant’s reasons were simply baseless
assumptions.
[14] Moreover, in light
of the circumstances in this case, Ms. Keita’s ties to Canada are
comparable with those of foreign nationals who have a student visa and come to
the country to study. Everything seems to indicate that the immigration officer
was sensitive to the applicant’s situation, as her stay in the country was
extended until April 2006, when, according to Ms. Keita, she was to finish
her studies. The immigration officer stated the following in this connection:
[translation]
I gave the applicant
extensions on a number of occasions to enable her to prove to me that she would
obtain her degree in April 2006 and to finish her studies before leaving.
To date, I have received as documented evidence the results of only eight
university courses taken since her return to Canada in 2001. The applicant will
therefore not be granted any further extensions to stay longer in the country.
[15] As for the issue of
the IP5 guidelines entitled Immigrant Applications in Canada made on
Humanitarian or Compassionate Grounds, published by Citizenship and
Immigration Canada, it does not appear, upon reading the record in this case,
that the immigration officer failed to comply with them.
[16] During the
submissions by the parties before the Court, I learned that Ms. Keita
currently has a pending refugee claim in the country. The Court will not
comment on the matter, since its duty today is only to rule on an application
for judicial review. The Court rules in favour of dismissing the application.
ORDER
THE COURT
ORDERS that the
application be dismissed.
No question is
certified.
“Sean Harrington”
Certified
true translation
Jason
Oettel
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