Date: 20070605
Docket: IMM-4750-06
Citation: 2007 FC 592
Ottawa,
Ontario, June 5, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
Bernard
Boateng
Applicant
and
The
Minister of Citizenship & Immigration
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is an adult male who claims to be a citizen of Rwanda. He
presently goes under the name of Bernard Boateng. By a decision dated August
14, 2006, an Officer of Citizenship and Immigration Canada refused the
applicant’s application for permanent residence in Canada. I am
allowing the application respecting that decision, quashing the decision and
referring the matter back for determination by a different Officer.
[2]
The
personal history of the applicant is not very clear. He claims to have been
born in Rwanda, and
baptized there under the name Bernard Darois. At some point he claims to have
left Rwanda and found
his way to Ghana where he
adopted the name Bernard Boateng. Subsequently he claims to have worked in
Libya, then Taiwan. He entered
Canada in 1994
under the name John Duke Qwansah claiming to be a citizen of Kenya. He was
bearing at the time a number of false documents.
[3]
Since
entering Canada, the
applicant has married a Canadian citizen and fathered a child. There is no
evidence that the applicant has any criminal record. He claims to have worked
as a mechanic at a number of locations in the Vancouver area.
[4]
The
applicant sought permanent residence in Canada under
Humanitarian and Compassionate grounds in June 2000, citing his marriage and
his child. Since that time, there has been a great deal of correspondence
between the applicant and his solicitor with Citizenship and Immigration Canada
(CIC) largely centred on the applicant’s inability to provide a Rwandan
passport. The Tribunal Record contains a letter dated June 19, 2000 in which
the Rwandan ambassador to Canada states that the documents furnished do not
appear to support the applicant’s claims to be a Rwandan citizen and thus no
passport could be issued. Nonetheless correspondence appears to have continued
including correspondence with the Rwandan embassy in Washington D.C.
[5]
CIC
was understandably concerned that the applicant could not provide a passport
nor could he seem to come up with other documentation such as that contemplated
by sections 50 or 178 of the Immigration and Refugee Protection Regulations
that would satisfy them as to the applicant’s identity. The Tribunal Record
demonstrates a vigorous correspondence between the applicant’s solicitor and
CIC during a period extending from November 2000 to June 2005. The applicant’s
solicitor sought and received a number of extensions of time to respond to
inquiries and requests made by CIC.
[6]
On
June 2, 2005, the applicant’s solicitor submitted to CIC an affidavit from a
clergyperson residing in Africa who claims to know the applicant and was
present at his baptism in Rwanda. Strangely and unlike previous
correspondence, no reply was immediately forthcoming from CIC. Instead, on
July 11, 2006, some thirteen months after receiving the affidavit, CIC wrote to
the applicant’s solicitor advising that the affidavit was unacceptable unless a
further identification as to the applicant clergyperson in accordance with
section 50 or 178 of the Regulations was provided within one month. On August
11, 2006, the applicant’s solicitor wrote asking for an extension until 30
October 2006 to reply. That request was denied. Instead the decision in
question sent by letter dated August 14, 2006, was made.
[7]
The
substantive portion of that decision reads:
I received Ms. Sas’ fax dated
Aug. 11, 2006. She requested an extension to October 30, 2006. I am not
willing to grant this extension. CIC has asked you for identification several
times in the past six years. We have not received an adequate explanation for
your inability to obtain identification nor adequate reason to believe you will
do so by the end of October
…
You have not complied with the
requirements of the Immigration and Refugee Protection Act and Regulations to
provide satisfactory identification. Therefore, I refused your application for
permanent residence.
[8]
No
explanation has been given for the thirteen month delay by CIC in responding to
the provision of the affidavit. No explanation is given for the refusal to grant
to the applicant a two month extension to respond notwithstanding the pattern
established for granting such responses.
[9]
On
the basis of lack of procedural fairness alone this decision must be set aside.
[10]
There
is a further basis for setting aside the decision of August 14, 2006. Section
25(1) of the Immigration Refugee and Protection Act (IRPA) requires
that, in considering a humanitarian and compassionate application, the Minister
shall have regard to the “best interests of a child directly affected, or …
public policy considerations”. The applicant is married to a Canadian and has
a Canadian born child.
[11]
Nothing
in the decision of August 14, 2006 indicates that regard was given either to
the child or to public policy. Section 25(1) provides to its Minister broad
powers to confer “an exemption from any applicable criteria or
obligation” of IRPA. This would extent to the provision of documents and
information under sections 50 or 178 of the Regulations. The Minister’s Officer
was clearly aware of the difficulties that the applicant was facing in
furnishing documents. To peremptorily turn the applicant down after a thirteen
month delay by CIC, without giving a short extension as requested and without
considering the child or public policy, is simply unacceptable.
[12]
Neither
party requested that a question be certified.
JUDGMENT
FOR THE REASONS GIVEN;
THIS COURT ADJUDGES that:
1.
The
application is allowed;
2.
The
decision of August 14, 2006 is set aside and returned for re-determination by a
different Officer;
3.
There is no question for certification;
4.
There
is no order as to costs.
"Roger
T. Hughes"
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