Date: 20050809
Docket: IMM-8117-04
Citation: 2005 FC 1091
Toronto, Ontario, August 9th, 2005
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
SUSANA ALABI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of an Immigration Officer dated September 3, 2004 in which the applicant's request for permanent resident status on humanitarian and compassionate grounds was denied.
FACTS
[2] The applicant is a 64 year-old Nigerian national who arrived in Canada as a visitor in December 2000. In May 2002, the applicant submitted a request for permanent resident status on humanitarian and compassionate grounds ("H & C application"). At the same time the applicant was sponsored by the applicant's daughter and son-in-law, both Canadian citizens.
[3] The applicant's submissions in support of her H & C application are brief and consist of the following:
I am retired. I intend to spend my time caring for and educating my grandchildren. My daughter and my son-in-law are supporting me.
I am widowed and I have no one to return to in Nigeria. My other children are all grown up and are no longer residing with me. I would be staying by myself in the event that I go back there...
THE DECISION
[4] By letter dated September 3, 2004, the applicant was informed that her H & C application was denied. The reasons for decision are in the Immigration Officer's notes:
I am not satisfied that subject would be able to support herself in Canada and a sponsorship is required. She has four children in Nigeria, one daughter in Canada. She lived with her son before coming to Canada and she has not indicated that she would be unable to return to live with the same son. Since she has a large family network in Nigeria, I am not satisfied that she would suffer unusual, undeserved or disproportionate hardship were she to return to Nigeria to apply through the normal channels.
ANALYSIS
[5] The applicant challenges the decision on the basis that the Officer ignored factors that were key to the H & C application. In particular, it is submitted that the Officer failed to recognize that a sponsorship application had been filed in support of the H & C request.
[6] The standard of review applicable to the discretionary decision of an Immigration Officer in the context of a humanitarian and compassionate application is reasonableness simpliciter. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. In my view, the Officer's notes and reasons for decision disclose an error that renders the decision unreasonable. The Officer did not take into account the sponsorship application that had been filed by the applicant's daughter and son-in-law on her behalf. The Officer's notes, which summarize the key points of the application, contain no reference to the sponsorship application. Moreover the Officer's reasons state that the applicant "would not be able to support herself in Canada and a sponsorship is required". This means that the Officer implicitly found that no sponsorship application had been filed. This is a critical consideration and a patently unreasonable finding of fact.
[7] For this reason, the Court will allow the application with a direction that the applicant's sponsorship application dated May 13, 2002 be processed concurrently with the applicant's H & C application so that the H & C Officer properly considers the fact that the applicant is sponsored by her daughter and son-in-law.
[8] Neither party proposed a question for certification and no question will be certified.
ORDER
THIS COURT ORDERS THAT:
The application for judicial review of the H & C Immigration Officer's decision dated September 3, 2004 is allowed, the decision is set aside, and the H & C application is to be decided by another H & C Immigration Officer concurrently with the processing of the sponsorship application dated May 13, 2002.
"Michael A. Kelen"
JUDGE
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-8117-04
STYLE OF CAUSE: SUSANA ALABI
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: AUGUST 9, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: AUGUST 9, 2005
APPEARANCES BY:
Kingsley Jesuorobo FOR THE APPLICANT
Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kingsley Jesuorobo
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims Q.C
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
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