Date: 20110513
Docket: IMM-5639-10
Citation: 2011 FC 550
Ottawa, Ontario, May 13, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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GILBERT MOORE
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of The
Immigration and Refugee Protection Act (the Act), of a decision dated
September 16, 2010, refusing the applicant’s application for permanent
residence from within Canada on humanitarian and compassionate grounds
[H&C].
A. Facts
[2]
In
June 1997, the applicant arrived in Canada, at Vancouver
International Airport, and
obtained refugee status in May 1999. Shortly thereafter, he applied for
permanent residence on humanitarian and compassionate grounds. The documents
submitted with his application were analysed and deemed false. In January 2009,
there was an application to the Refugee Protection Division [RPD] for vacation
of the applicant’s refugee claim, on the basis that Canada Border Services
Agency [CBSA] for Citizenship and Immigration Canada [CIC] had
intercepted a package, received in 1997, containing false identification
documents. In December 2009, the applicant’s claim was deemed to be rejected
and the decision that had lead to the conferral of refugee protection was
nullified.
[3]
The
applicant submitted another H&C application in April 2009.
[4]
The
applicant married a Canadian citizen in 2002 and has three young children
living in Canada.
B. Decision
of the review tribunal
[5]
The
immigration officer rejected the applicant’s H&C application.
[6]
The
immigration officer studied the spousal relationship and the best interests of
the children. The officer notes that the applicant son’s behavioural problems
in school might be related to his anxiety over the uncertainty of his father’s
immigration status. However, as he has the support of his mother and school, he
would be able to adjust to being separated from his father. After reviewing a
report from a psychologist, the immigration officer recognizes that Mrs. Moore
and her children would experience emotional and financial hardship, but he
notes that the children would have the support of their mother and other
members of the family. Furthermore, the officer mentions that it is an option
for Mrs. Moore and the children to move to Liberia, should the applicant
be deported.
[7]
The
officer then analysed the establishment factors. He notes that the applicant
has held several different jobs since 2007, that he completed college courses,
and that he is involved in his community. The officer concludes that the applicant
shows a significant degree of establishment in Canada. However, as
the degree of establishment in Canada is not determinative of a positive H&C
decision, the officer concludes that it does not constitute sufficient
humanitarian and compassionate grounds to merit visa exemption, considering
that he has misrepresented himself on several occasions throughout the process.
[8]
With
regards to post-traumatic stress disorder developed after the trauma
experienced in Liberia, the officer notes that the psychologist relied
on documents provided by the applicant and did not conduct a formal
psychological assessment. The officer assigns little weight to Dr. Williams’
opinion on consequences, should the applicant return to Liberia.
[9]
Concerning
the applicant’s identity, the officer states that the documents used by the applicant
to prove his identity at the beginning of the immigration process (when he
arrived and later in front of CIC) were deemed false. Passports obtained in
1999 and 2005 were “probably authentic.” The officer concludes that the applicant
had, to date, presented insufficient credible evidence of his identity and that
his statements with regards to the ability of Liberia to produce
such documents were speculative.
[10]
The
officer concludes that the applicant has not satisfied him that he would suffer
unusual and undeserved, or disproportionate hardship, if required to apply for
permanent residence from outside Canada. He adds that the applicant
has not presented enough documents to satisfy him of his identity and that the
misrepresentation in this regard is such a significant negative factor that it
cannot be overcome by the positive humanitarian and compassionate factors.
C. Questions
in issue
[11]
The
following issues are raised by this application
(1) What is the
standard of review?
(2) Did the officer
err in rejecting the H&C application on the basis that the applicant had
not established his identity?
D. Analysis
(1) What
is the standard of review?
[12]
The
applicant states that the applicable standard of review is that of
reasonableness.
[13]
Justice
Dawson discusses this issue in Ahmad v Canada (Minister of
Citizenship and Immigration), 2008 FC 646, 167 ACWS (3d) 974 (QL),
where she mentions, at paragraph 11:
The appropriate standard of review for a
humanitarian and compassionate decision as a whole had previously been held to
be reasonableness simpliciter. See: Baker v. Canada (Minister of Citizenship and
Immigration),
[1999] 2 S.C.R. 817 at paragraphs 57 to 62. Given the discretionary nature of a
humanitarian and compassionate decision and its factual intensity, the
deferential standard of reasonableness is appropriate. See: Dunsmuir at
paragraphs 51 and 53.
[14]
The
appropriate standard of review is that of reasonableness.
(2) Did
the officer err in rejecting the H&C application, on the basis that the applicant
had not established his identity?
[15]
The
main issue in this case concerns the identity of the applicant. The officer
based her decision on the fact that the applicant had misled the authorities in
this regard.
[16]
The
applicant argues that the officer’s conclusion that his identity had not been
established is not supported by the CBSA’s removal order that seeks to deport
the applicant back to Liberia as they are satisfied that he is a Liberian
citizen. As such, the officer’s conclusion is contrary to the principles of
fundamental justice. The applicant also argues that the officer fettered her
discretion by treating the applicant’s identity as a paramount factor which
precludes the possibility of a positive decision despite positive H&C
factors. This issue was addressed in Sultana v Canada (Minister of
Citizenship and Immigration), 2009 FC 533 [Sultana].
[17]
The
respondent states that a significant positive factor for an inland H&C
application is a good civil record and compliance with immigration authorities.
He adds that his nationality is not questioned, but his personal identity is. Without
evidence to establish the applicant’s true identity, appropriate security and
other verifications cannot be carried out. The respondent argues that the officer
duly considered all of the positive factors that were submitted to her and
concluded that there were insufficient to outweigh the significant negative
factor that immigration authorities still do not know who the applicant is and
that the applicant has not clarified this situation. The respondent states that
the Sultana case does not apply.
[18]
Justice
Mactavish discussed the issue of identity in a H&C application in Singh
v Canada (Minister of
Citizenship and Immigration), 2004 FC 187, 39 Imm LR (3d) 208 (QL),
where she mentions at paragraph 25 that:
Once again, I am not persuaded that the
immigration officer acted unreasonably in considering issues relating to Mr.
Singh’s identity. While the identity of an applicant will be a central issue in
the admissibility phase of the process, it does not mean that it is necessarily
irrelevant at the first stage. The Ministerial guidelines governing H&C
applications mandate that immigration officer should consider an application in
light of all of the information known to the Department. In my view, it was not
unreasonable for the immigration officer to do so.[…]
[19]
As
such, it was appropriate for the officer to address issues relating to the applicant’s
identity.
[20]
A
similar factual situation was recently addressed by this Court in Ebebe v
Canada (Minister of Citizenship and Immigration), 2009 FC 936, [2009] FCJ
No 1146 (QL) [Ebebe], where the applicant had misled immigration
authorities and his family with regards to his identity, to finally admit his
true identity before the H&C process began. At paragraphs 14 to16, Justice
Barnes states that:
[14] Mr. Ebebe also contends that the
Officer was fixated on the issue of his misconduct to the exclusion of other
relevant considerations and, in particular, the best interests of his child.
This decision, it is argued, suffers from the same frailties that were identified
in Sultana v. Canada (Minister of Citizenship and
Immigration),
2009 FC 533, [2009] F.C.J. No. 653 (QL).
[15] Sultana, above, was a case
where important evidence was overlooked and where there was not a proper
weighing of the competing evidence by the decision-maker. This is evident from
Justice Yves de Montigny’s finding at paragraph 29:
[...] A careful reading of the CAIPS
notes reveals that the Immigration officer, on more than one occasion,
considers the failure to disclose as a paramount factor precluding any
possibility that H&C factors could overcome the exclusion mandated by
s.117(9)(d)...
[16] I am not satisfied that the decision
under review contains an error of the sort recognized in Sultana, above.
Instead, what the Court is being asked to do in this case is to reweigh the
evidence and to effectively reconsider the Officer’s decision on its merits.
That is not the proper role of the Court on judicial review: see Suresh v. Canada (Minister of Citizenship and
Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3 at paragraph 38.
The same analysis is applicable in this
case. The applicant has misled immigration authorities since his arrival in Canada and, as
mentioned by the H&C officer, his personal identity is still not
established. As such, it is an element that could be taken into account by the
officer when rendering her decision.
[21]
The
applicant argues that the officer assigned too much importance to the issue of
his identity and should have given more weight to the best interests of the
children. The applicant argues that the officer erred in assessing the best
interest of the children. Citing Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817, he states that the decision-maker should
consider children’s best interests as an important factor and that he should be
alert, alive and sensitive to them. The applicant submits that the officer’s
analysis of the best interests of the children is deficient on a number of
accounts and as such, the officer was not alive, alert and sensitive to them.
He notes many errors of the officer, such as the fact that the interests of the
younger children are barely assessed, that she did not address the advantages
of the non-removal of the applicant on the children, that she did not address
the financial situation of the family nor did she consider the hardship should
the applicant’s family move to Liberia.
[22]
The
respondent argues that the best interests of the children were addressed and taken
into consideration by the officer. He notes the absence of an expert’s report
about the eldest son’s alleged actions after he learnt about his father’s
situation and that the officer took into consideration the scant evidence
regarding the two younger children. The respondent analyses the various income
tax information provided by the applicant and notes that the applicant’s spouse
is shown to have earned an income. Finally, the respondent argues that the officer
did not err when he considered the option for the family to move to Liberia, as
it is the applicant’s own evidence that his wife and children would move to Liberia, should he
be removed.
[23]
In
Ebebe, Justice Barnes mentions that the officer was alert, alive and
sensitive to the best interests of the child. After reviewing the conclusions
of the officer in this regard, he concludes at para 21, that:
All of the above confirms that the
Officer carried out a thorough and thoughtful assessment of the best interests
of the child. What is essentially being advanced on behalf of Mr. Ebebe is that
this decision must be irrational because, in the end, the Officer’s concerns
about Mr. Ebebe’s misconduct overwhelmed the evidence supportive of maintaining
family unity. While a different decision could certainly have been reached on
this record, it was not an error to give great and, indeed, overriding weight
to Mr. Ebebe’s misconduct. This was, after all, a case of serious and prolonged
misrepresentation of the sort that was of concern to the Court in Legault v.
Canada (Minister of Citizenship and
Immigration),
2002 FCA 125, [2002] 4 FC 358 at paragraph 19:
In short, the Immigration Act and the
Canadian immigration policy are founded on the idea that whoever comes to
Canada with the intention of settling must be of good faith and comply to the
letter with the requirements both in form and substance of the Act. Whoever
enters Canada illegally contributes to
falsifying the immigration plan and policy and gives himself priority over
those who do respect the requirements of the Act. The Minister, who is
responsible for the application of the policy and the Act, is definitely
authorised to refuse the exception requested by a person who has established
the existence of humanitarian and compassionate grounds, if he believes, for
example, that the circumstances surrounding his entry and stay in Canada
discredit him or create a precedent susceptible of encouraging illegal entry in
Canada. In this sense, the Minister is at liberty to take into consideration
the fact that the humanitarian and compassionate grounds that a person claims
are the result of his own actions.
[24]
In
this case, the applicant does not come to the Court with clean hands. He has
used false identity documents to support his refugee claim when he arrived in Canada. He
submitted new passports which are alleged to have been issued on the
presentation of a false birth certificate. Even if the documents were deemed
“probably authentic,” the applicant has failed to provide any additional
documents to clear the uncertainties surrounding his identity.
[25]
It
is not this Court’s duty to reweigh the evidence that was before the officer.
The conclusion reached by the officer to give weight to the issue of identity
and to conclude that the H&C considerations, even though positive, were not
sufficient to grant the application, was reasonable in this instance since the
actual identity of the applicant was not clearly and definitively established.
As such, the judicial review should be dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for judicial review is dismissed.
2.
There
is no question of general importance to certify.
"André
F.J. Scott"
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