Docket: IMM-2431-11
Citation: 2011 FC 1482
Toronto, Ontario, December 15, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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CLEMENT ANAENE OKONKWO
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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 ORDER AND ORDER
[1]
The
present Application concerns a decision of an Immigration Officer of the Canadian
High Commission in Accra, Ghana, dated January 10, 2011, in which the
finding was made that the Applicant did not meet the requirements for a
permanent resident visa under the federal investor class on the following
central finding:
Based on a careful review of the
information on your file, it has not been establish [sic] that you are
coming to Canada to establish permanent residence in Canada. You were elected to the Senate of the
Federation of Nigeria in April of 2007, are currently continuing to sit as a
senator and are actively seeking re-election.
After careful consideration of
the information provided by you in your letter dated December 23, 2010, I am
not satisfied that it has been established that you intend to establish
permanent residence in Canada. According to the Order Paper for the senate,
sessions run from late June to the following mid June and appear to cover most
months (no sessions seen in August) with the number of monthly sessions ranging
between 10 and 22, for an average 15 sessions per month. Given that, on
average, these sessions take place 3-4 times on most weeks, I do not find
the suggestion that you would be able to spend sufficient time in Canada to
meet this residency obligation to be credible. In coming to this
conclusion, I have considered travel time to and from Canada, other obligations
outside of the Senate within your home state as well as your business interests
in Nigeria.
[Emphasis added]
(Application Record, pp. 5 - 6)
[2]
The
history with respect to the Applicant’s application is important contextual
information. The Applicant, a Nigerian citizen, applied for permanent residence
under the federal investor class in August of 2004, and provided evidence of
his purchase of real estate in Mississauga, his involvement with a Canadian
business entity, and his son’s residence in Canada. The Applicant also declared
in the course of his application that, in 2007, he was elected a Senator in the
government of Nigeria. In July 2010, the Applicant was informed that his application
was complete and was requested to make the required $400,000 investment; the
Applicant deposited the money. On November 9, 2010, the Applicant received a
letter expressing the Immigration Officer’s intention concern.
[3]
The
Applicant was given 60 days to respond, and he did respond in an attempt to
persuade the Immigration Officer that his re-election as Senator was not contrary
to his intention to be a permanent resident, and would not interfere with the
fulfillment of his residency obligation.
[4]
An
important fact in play at the time the decision was made was that the impending
election in which he was running was to be held in May 2011. The issue with
respect to the central finding is whether it is fairly made. In my opinion,
given the significance of the decision to the Applicant, the Immigration
Officer was required to consider all the available evidence respecting intention,
past, present, and future, if the latter can be reliably ascertained. In the
result, the Immigration Officer neglected to meaningfully consider the evidence
with respect to the Applicant’s past and present except the fact that he became
a Senator in 2007 and was a Senator at the moment of decision.
[5]
Indeed,
the most focussed reliance was placed on speculation that the Applicant would
be elected in May 2011. The Immigration Officer determined that, if the
Applicant continues to be a Senator, it is evidence that he has no intention to
be a permanent resident. Thus, I find that the corollary applies: if the
Applicant does not continue to be a Senator, there is no evidence that he has
no intention to be a permanent residence. Either way, I find that the
Immigration Officer’s decision was the result of sheer speculation at work in
the decision-making process. As a result, I find that the decision under review
is made in reviewable error.
ORDER
UPON the Court providing draft
reasons and upon counsel consenting to the following:
1. Granting the application for judicial review;
2. The
matter is sent back for redetermination and the redetermination is to be
completed within 120 days of this order;
3. The
Application will be processed in accordance with the law as it stood on August
16, 2004 and on the basis of the Applicant’s Record currently on file, along
with any updated submissions provided by the Applicant;
4. If
requested the Applicant and his accompanying family members will attend for
medicals at a designated medical practitioner within 10 days of receiving any
such request, and if requested, provide updated security certificates, and
provide within 10 days of such request evidence of having applied for such
certificates;
AND
UPON reading the material filed, including the consent of the parties;
THIS
COURT ORDERS that:
1. The
application is granted on terms recited.
2. There
is no order as to costs.
“Douglas R. Campbell”
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