Date: 20000918
Docket: IMM-5609-99
BETWEEN:
SHERRY MOHAMMED, CRYSTAL MOHAMMED
AND CHRISTIAN MOHAMMED
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicants challenge by way of judicial review the decision, dated November 8, 1999, made by Senior Immigration Officer P.M. Johnson, in which the applicants' application for an exemption from subsection 9(1) of the Immigration Act1 was refused on the basis of insufficient humanitarian and compassionate (H & C) grounds. Leave to commence this application for judicial review was granted on April 25, 2000.
Background
[2] The applicants are a family from Trinidad. The principal applicant is the mother, Sherry Mohammed. The other applicants are her two children, Crystal and Christian Mohammed.
[3] The family came to Canada in February 1995 and sought Convention refugee status on the basis that the principal applicant was a victim of spousal abuse in Trinidad. The CRDD denied her claim, and a subsequent risk assessment was also negative. Following that, the principal applicant submitted an application seeking an exemption, pursuant to subsection 114(2) of the Act, from the requirement of applying for and obtaining visas from outside of Canada. She was interviewed on October 26, 1999, and was accompanied by her children and her sister.
[4] The immigration officer's computer notes2 of the interview indicate that the principal applicant had been working as a caregiver for the past two years, earning $2,400. per month (her earnings are $600. per week). Before that, the principal applicant had worked at a cosmetics shop for five to six months and did "odd jobs" from 1995-1996. She had also collected welfare for six months. The principal applicant has sought to upgrade her skills, and has taken a one year Microsoft Office Assistant course. She also volunteered at Providence Centre since 1996.
[5] The principal applicant's two children attend school and appear to be doing well. The family lives with the principal applicant's sister. The principal applicant has two sisters and one brother in Canada, and one sister and four brothers in the United States.
[6] The immigration officer's notes read, in part, as follows:
| MS MOHAMMED CLAIMS TO HAVE BEEN ABUSED BY HER SPOUSE PRIOR TO COMING TO CANADA AND THAT REPORTS OF THREATS WERE MADE TO THE POLICE BUT THAT NOTHING WAS DONE. THERE ARE COPIES OF TWO LETTERS ON FILE FROM TRINIDADIAN POLICE ATTESTING TO A REPORTED DOMESTIC INCIDENT IN MARCH 1993 WHERE SUBJECT ASKED THAT HER HUSBAND BE WARNED -- BOTH LETTERS STATE THAT SPOUSE WAS WARNED AS REQUESTED -- IN ONE CASE SHE ASKED TO BE ESCORTED HOME TO GET HER BELONGINGS AND WAS IN FACT ESCORTED BY THE WRITER OF THAT LETTER. SHE ADMITS THAT SHE NEVER LAID CHARGES AGAINST HER SPOUSE. IT WOULD APPEAR THAT POLICE PROTECTION WAS AVAILABLE TO HER AND THAT SHE USED IT WHEN SHE NEEDED IT. IT IS NOTED THAT SUBJECT HAS SINCE DIVORCED HER HUSBAND AND THAT AS RECENT AS SEPTEMBER OF THIS YEAR [1999] HE HAS SIGNED OVER CUSTODY OF THE CHILDREN TO HER. THERE IS NO EVIDENCE THAT HE WAS EVER ABUSIVE TO THE CHILDREN IN ANYWAY [sic]. IT IS MY OPINION THAT RETURNING TO TRINIDAD DOES NOT MEAN RETURNING TO HER EX-HUSBAND. SHE ACKNOWLEDGES THAT THE MATRIMONIAL HOME WAS SOLD AND THAT SHE RECEIVED HER PORTION OF THE PROCEEDS FROM THE SALE. IT IS MY OPINION THAT MS. MOHAMMED AND HER CHILDREN WOULD NOT SUFFER UNDUE OR DISPROPORTIONATE HARDSHIP SHOULD THEY RETURN TO THEIR HOMELAND. TRINIDAD IS HER HOME SO GETTING RE-ADJUSTED AFTER LESS THAN FIVE YEARS SHOULD NOT BE TOO DIFFICULT AND SHE HAS MONEY TO MAKE THE ADJUSTMENT EASIER. THE CHILDREN WERE BOTH BORN IN TRINIDAD AND ARE STILL YOUNG ENOUGH TO MAKE THE RE-ADJUSTMENT. SUBJECT HAS BEEN UNDER A REMOVAL ORDER FOR THE PAST 4 YEARS -- REMAINING IN CANADA WITH HER CHILDREN IS A RISK SHE CHOSE TO TAKE. MS. MOHAMMED AND HER CHILDREN HAVE BEEN IN CANADA FOR UNDER FIVE YEARS AND ALTHOUGH SHE HAS BEEN EMPLOYED STEADILY FOR 2 YEARS AND HAS DONE SKILLS UPGRADING AND SOME COMMUNITY WORK, THIS IN ITSELF IS NOT SUFFICIENT GROUNDS TO WARRANT FAVOURABLE CONSIDERATION. |
| BASED ON ALL OF THE FOREGOING, I AM NOT SATISFIED THAT THERE ARE SUFFICIENT GROUND (sic] FOR H & C CONSIDERATION IN THIS CASE. CONSEQUENTLY, A9(1) WAIVER IS NOT GRANTED.3 |
Applicants' Position
[7] The principal applicant contends that the immigration officer failed to take into account all of the circumstances. The principal applicant urges that the immigration officer placed too much emphasis on the abusive marriage and did not properly consider factors of establishment and family ties in Canada. The principal applicant also contends that the immigration officer based her decision, in part, on the fact that the applicants have been in Canada for less than five years.
Respondent's Position
[8] The respondent maintains that the immigration officer did not commit a reviewable error as her decision was based on a thorough review of all of the evidence. The respondent submits that the immigration officer's notes reveal that she took all of the applicants' evidence and circumstances into account. The respondent argues that the decision was not based on the fact that the applicants have been in Canada for less than five years; rather, it is based on the principal applicant's employment history, skills upgrading, and community work.
Preliminary Matters
[9] At the commencement of the present hearing, counsel for the respondent brought a verbal motion to have the present application struck for mootness. It appears, or I was told by respondent's counsel, that the applicant has remarried and that her husband is a Canadian citizen. As a result of this marriage, the applicant has applied for an H & C hearing based on this fact.
[10] Counsel for the respondent suggests that, at best, if I were to allow the present judicial review application, I would send the matter back for a new H & C hearing before a different immigration officer.
[11] Counsel for the applicant disagreed. It was her submission that the presently pending H & C application only deals with the issue of her present marriage.
[12] I took the matter under reserve.
[13] I am satisfied that the issues raised in the present judicial review application are separate and apart of the applicant's presently pending H & C application. The presently pending H & C application should only be decided on the new fact that the applicant has remarried a Canadian citizen. It should not consider any facts that were before Senior Immigration Officer P.M. Johnson.
[14] During the hearing, counsel for the applicant attempted to make a submission that one reason why I should quash the decision of Senior Immigration Office Johnson was that he failed to give any consideration to the welfare of the children as mandated by the Supreme Court of Canada in the case of Baker v. Canada (M.C.I.).4
[15] Counsel for the respondent objected to this submission on the basis that this legal argument was never raised by the applicant before the hearing.
[16] I allowed the objection. I am satisfied that no new arguments can be raised at the hearing that were not raised in any written submission previously to the hearing.
[17] To allow new legal arguments raised at the hearing for which the opposing party is not prepared would cause a serious prejudice. The respondent stated that he was not prepared for the "Baker" argument.
[18] It is the responsibility, in this case, of the applicant to ensure that all her legal submissions are put before the Court so that the opposing party may be prepared to make written submissions opposing the submissions. This was not done.
Discussion
[19] The appropriate standard of review for a challenge to an H & C decision is that of reasonableness simpliciter, as established by the Supreme Court of Canada in Baker v. Canada (M.C.I.).5
[20] Subsection 114(2) of the Immigration Act grants the Minister or her delegate authority to exempt applicants from subsection 9(1) of the Act and to facilitate their admission into Canada when the Minister is satisfied that such an exemption is warranted based on humanitarian and compassionate grounds. Such a decision is highly discretionary. To successfully challenge such a decision on judicial review, an applicant must show that the decision maker erred in law, proceeded on the basis of a wrong or improper principle, or acted in bad faith.
[21] The evidence before the immigration officer was that of the principal applicant's employment history while in Canada, skills upgrading, community involvement, living arrangements with her sister, bank account savings, presence of siblings in Canada and the United States, her unsuccessful claim for Convention refugee status, the two children's schooling, and the prospects faced by the applicants should they return to Trinidad.
[22] The applicant's arguments essentially are that she disagreed with the weight that the immigration officer gave to facts of the applicant having established herself and her children in Canada.
[23] There is no doubt that the evidence put before the immigration officer shows that the applicant has a job as a caregiver earning $600. per week and this for the past two or three years and that she is a good mother. This is borne out of the fact that her two children are doing well in school. Furthermore, the applicant upgraded her skills and has been volunteering her services.
[24] All of the evidence of how the applicant attempted to establish herself in Canada was put before the immigration officer. I have no evidence before me to indicate that she disregarded any evidence put before her.
[25] The applicants' arguments essentially amount to the inconvenience of leaving Canada to make their application for landing in the usual manner, from abroad and to the weight given by the officer to the evidence. The facts of their case do not show unusual, undeserved, or disproportionate hardship. The record does not indicate that the immigration officer's decision was unreasonable such that judicial intervention is warranted.
[26] I am satisfied the application for judicial review should be dismissed.
[27] No question was submitted for certification.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
September 18, 2000
__________________
1R.S.C. 1985, c. I-2 [hereinafter the "Act"].
2Applicant's Application Record, pp. 7-18.
3Applicant's Application Record, pp. 13-18.
4[1999] 2 S.C.R. 817
5See footnote 4
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