Date:
20130122
Docket:
IMM-3277-12
Citation:
2013 FC 54
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
January 22, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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IMED ABDERRAHMAN
KAWECH
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001 c 27 (Act or IRPA) for judicial review of a
decision dated March 23, 2012, by a Citizen and Immigration Canada (CIC)
officer. In her decision, the officer rejected the application for permanent
residence submitted by the applicant, Imed Abderrahman Kawech, under the
provisions of the spouse or common‑law partner in Canada class because
she determined that the relationship between the applicant and his sponsor was
not bona fide and that the applicant was guilty of misrepresenting a
material fact that could have induced an error in the administration of the Act.
In her letter informing the applicant of her decision, the officer advised him
that she would transfer his case to the Canada Border Services Agency (CBSA) to
have the applicant removed from Canada.
[2]
In
this application for judicial review, the applicant submits that the officer’s
decision should be set aside because it is unreasonable and biased or appears
to be biased. He also contends that the officer made a reviewable error by
sending the file to the CBSA because his application based on humanitarian and
compassionate considerations was pending.
[3]
For
the following reasons, I find that the decision is reasonable, that the officer
was not biased nor was there an appearance of bias and that, in light of the
facts, the officer was not required to take into account the applicant’s
pending application based on humanitarian and compassionate considerations
since he had chosen instead to submit a sponsorship application in the spouse
or common‑law partner class. This application for judicial review will
therefore be dismissed.
Background
[4]
Because
the applicant’s arguments are based on the complex history of his case, a
detailed account of the factual framework of the case is necessary.
[5]
The
applicant, a Tunisian citizen, arrived in Canada on August 10, 2000. He
claimed refugee status in Canada on August 7, 2001, invoking his fear of
persecution in Tunisia because of his political activities when he was a
student that attracted police attention. The Refugee Protection Division of the
Immigration and Refugee Board of Canada (RPD) rejected the application on
May 14, 2002.
[6]
On
December 7, 2003, the applicant married Myriane Cholette, a Canadian
citizen, who was much older than the applicant and unable to have children.
Barely two weeks after their marriage, the applicant and Ms. Cholette separated
because Ms. Cholette had the impression that her husband was [translation] “going elsewhere”. The
breakup lasted until September 2004. During the separation, the applicant began
dating Elda Dani and subsequently had three children with her; he
considers her his [translation]
“mistress”.
[7]
On
December 2, 2004, the applicant filed with CIC an application for
exemption from a permanent resident visa based on humanitarian and
compassionate considerations (H&C application)
[8]
On
February 18, 2005, the Minister of Citizenship and Immigration adopted the
Public Policy under A25(1) of IRPA to Facilitate Processing in accordance
with the Regulations of the Spouse or Common‑law Partner in Canada Class (Policy)
with a view to relaxing the requirements of paragraph 124(b) of the
Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations), which provides that these types of applications must be
submitted from abroad. The Policy, which exempts applicants from this requirement,
allows foreign spouses and common‑law partners who do not have status in Canada and who are in Canada to obtain authorization to submit their application for permanent
residence from Canada without relying on an H&C application, which was
previously the only way they could obtain such authorization. The Policy, which
is aimed at family reunification, represents a substantial advantage for
foreign spouses and common‑law partners who wish to be granted the right
to remain in Canada with their spouse or partner.
[9]
On
July 5, 2005, CIC sent a letter to the applicant informing him that he
could take advantage of the Policy. To do so, it was sufficient that his wife
submit a sponsorship application. The CIC’s letter also told the applicant that
if no sponsorship application was submitted, his existing H&C application
would continue to be processed as presented. On July 22, 2005, the
applicant’s wife, Ms. Cholette, submitted a sponsorship application to CIC
to sponsor the applicant. She thus completed a sponsorship undertaking under
the Canada-Québec Accord Relating to Immigration and Temporary Admission of
Aliens (1991) (Canada-Québec Accord) and the Act Respecting
Immigration to Québec, RSQ c 1-0.2.
[10]
However,
the Minister of the ministre de l’Immigration et des Communautés culturelles du
Québec (MICCQ) had to approve the undertaking under the Canada-Québec Accord
before CIC could process the application for permanent residence. The MICCQ
refused to approve it, and CIC then continued reviewing the applicant’s H&C
application and denied it on October 11, 2005.
[11]
On
June 15, 2006, after its initial refusal, the MICCQ approved the
applicant’s undertaking and issued a selection certificate. However, on
June 21, 2006, the CBSA summoned the applicant for his removal from Canada on July 21, 2006. On July 19, 2006, this Court ordered a stay of the
removal given that the MICCQ had accepted the applicant’s undertaking and that
the applicant had a right to have his sponsorship application assessed in
accordance with the Policy (Kawech v Canada (Minister of Citizenship and
Immigration), 2006 FC 899).
[12]
On
August 31, 2006, Ms. Dani, the applicant’s mistress, gave birth to
their first son.
[13]
On
December 27, 2006, on consent of the parties, the Federal Court set aside
the decision of October 11, 2005, rejecting the H&C application and
remitted the file to CIC for reconsideration.
[14]
On
April 3, 2007, in the context of the sponsorship application, a CIC
officer questioned the applicant and his wife, Ms. Cholette, to establish
that their relationship was bona fide. The officer asked the spouses
separately whether the applicant had family in Canada. Both answered in the
negative. The applicant also stated that Ms. Cholette could not have
children but that the couple was considering other options such as adoption. The
officer determined that the relationship appeared to be bona fide
despite some inconsistencies she had noted and the fact that Ms, Cholette
seemed to know little about the applicant’s immigration history. In a letter
dated April 5, 2007, the CIC advised the applicant that he met the
preliminary admission criteria.
[15]
On
September 11, 2008, Ms. Dani gave birth to the applicant’s second
child, and on December 6, 2011, their third child was born. At the end of
December 2011, CIC found out by chance that the applicant had had three
children with Ms. Dani.
[16]
Considering
the delay in processing the sponsorship application, the applicant asked the
Federal Court on a motion for mandamus to order that a decision be
issued. On February 24, 2012, this Court, on consent of the parties,
ordered CIC to comply within 60 days following the expiration of the time
period given to the applicant. The applicant provided CIC with all the
information and the new documents required in anticipation of such a decision.
In the form “Additional Family Information”, in the section “all sons and
daughters” , the applicant listed his three children from his relationship with
Ms. Dani.
[17]
On
March 16, 2012, the applicant and his wife were summoned to an interview
at the CIC offices in Montréal. At the interview, the applicant stated that his
wife could not have children and that adoption was too expensive. Accordingly,
he found Ms. Dani, a woman who wanted to have children but did not want a
man in her day‑to‑day life. For these reasons, he explained that he
had had three children with Ms. Dani while continuing his life with his
wife. He stated that his wife was aware of this and understood the situation,
after an initial reaction of anger and jealousy.
[18]
At
the end of the interview, the officer said that her decision would be a little
delayed since she had an appointment at a clinic for women with fertility
problems. On March 23, 2012, the officer rejected the applicant’s
application for permanent residence.
[19]
In
the impugned decision, the officer determined that even though the applicant
was still living with his wife and even though she knew about the children, the
fact remained that their relationship could no longer be considered a bona
fide conjugal relationship because it was not exclusive. The officer based
her finding on section 5.25 of the OP2 Processing Members of the Family
Class Manual, which deals with the characteristics of conjugal
relationships, and according to which, exclusivity, to some degree, is a common
characteristic of all conjugal relationships.
[20]
The
officer also found that the applicant had made two misrepresentations by
omission: not revealing that he had a son on his application for permanent
residence form dated February 17, 2007, and at the interview on
April 3, 2007. Confronted with the first omission, the applicant stated
that he believed that a [translation]
“member of his family in Canada” meant his father, mother, brothers and
sisters, i.e. members of his Tunisian family in Canada. The officer was not
satisfied with this explanation because, given the applicant’s strong desire to
have children, it would be [translation]
“very unlikely . . . that he would not consider his son to be a
member of his family”. After she expressed this opinion to the applicant, he
changed his answer to indicate that he had not declared his son because he did
not believe that his son was involved in his sponsorship application.
[21]
As
for the second omission, the applicant submits that he was not asked the question.
The officer noted that the applicant and his wife, however, mentioned their
plan to adopt. In such a context, the officer found that the applicant was
obliged to disclose that he had a son. He had to provide the officer with all
the relevant information so that she could conduct a valid assessment. She
found that these misrepresentations could have induced an error in the administration
of the Act in 2007.
[22]
The
officer did not address the H&C application in her decision because the
applicant himself had not referred to it since July 2005 when he chose to avail
himself of the more generous conditions in the Policy and actually converted
his H&C application to an application as a spouse who was already in Canada.
Analysis
[23]
In
my view, the issues are as follows:
1. – Is there a
reasonable apprehension of bias in this case?
2. – Is the
immigration officer’s decision rejecting the sponsorship application
reasonable?
3. – Was the
applicant’s H&C application pending such that the officer erred by remitting
the applicant’s case to the CBSA after she rejected the sponsorship application
in the spouse or common‑law partner class?
[24]
The
first issue deals with a principle of procedural fairness, which is not subject
to any standard of review because it is for the Court to determine whether the
officer complied with the principles of natural justice (Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 43; Ramirez v Canada (Minister of
Citizenship and Immigration), 2012 FC 809 at para 4). Thus, no deference is
owed to the officer in this regard (Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283 at para 23).
Similarly, no deference should be shown to the officer with respect to the
third issue because the applicant is essentially claiming that the officer
declined to exercise her jurisdiction to make a decision on the pending
application that had been submitted for her assessment (Novell Canada Ltd v
Canada (Minister of Public Works and Government Services), [2000] FCJ No
951 at para 3, 257 NR 179 (CA); Bajwa v Canada (Minister of Citizenship and
Immigration), 2012 FC 864 at para 36).
[25]
With
respect to the officer’s findings about the applicant’s marriage and the
misrepresentations, the reasonableness standard applies. (For questions
relating to marriage, see Yadav v
Canada (Minister of Citizenship and Immigration), 2010 FC 140 at para 50, repeated in Akinmayowa
v Canada (Minister of Citizenship
and Immigration), 2011 FC 171 at para 18; Corona v Canada (Minister of Citizenship and
Immigration), 2012 FC 174 at para 13.
For questions concerning misrepresentations see, inter alia, Sinnachamy
v Canada (Minister of Citizenship and Immigration),
2012 FC 1092 at para 5; Jiang v Canada (Minister of
Citizenship and Immigration), 2011 FC 942 at para 19 citing Bellido v Canada (Minister of
Citizenship and Immigration), 2005 FC 452 at para 27 and Bodine v Canada (Minister of Citizenship and Immigration),
2008 FC 848 at para 17). I must therefore determine whether these findings are
justified, transparent, intelligible and whether they fall within “a range
of possible, acceptable outcomes which are defensible in respect of the facts
and law” (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para 47).
Is there a
reasonable apprehension of bias in this case?
[26]
The
applicant submits that the decision in this case is biased or appears to be
biased because the officer was infertile and therefore likely to view the
applicant unfavourably because he told her that his wife’s infertility had led
him to have children with another woman. The applicant also notes that the
officer’s decision was made in a context where the applicant had certainly
antagonized CIC with his history, and he referred to three factors: he obtained
a stay of his removal from Canada on July 19, 2006; the decision rejecting
his H&C application was set aside on December 27, 2006, and he
obtained a mandamus order on February 24, 2012, because of CIC’s
inexplicable delays. The applicant takes the position that the officer must
have been biased against him given his history. He also submits that the
officer’s decision to not interview Ms. Cholette raises an apprehension of
bias.
[27]
For
his part, the respondent submits that nothing in this case suggests that there
was bias or a reasonable apprehension of bias: there is absolutely no evidence
that the officer was biased nor is there any basis whatsoever for a reasonable
apprehension in this regard. On this point, the respondent maintains that there
is no evidence to support the idea that CIC harboured any malice towards the
applicant or that the officer did. In addition, the respondent contends that
the idea that the officer could have been biased against the applicant merely
because she was going to a fertility clinic is not only unfounded but
insulting. He argues that the applicant showed sexism by suggesting that the
officer was infertile and therefore was biased against him; it is just as
possible that it was her partner who could not conceive or that she wished to
use in vitro fertilization to conceive a child without a partner or with a same‑sex
partner. The respondent also submits that if we conclude that the agent was
biased there would be a reasonable apprehension of bias in any decision‑maker
who has to rule on a case in which the facts are comparable to something he or
she has personally experienced. This is an untenable proposition: for example,
no one questions the objectivity of a judge hearing a divorce case merely
because the judge is divorced.
[28]
I
agree with the respondent. There is nothing in this case to support a finding
that the officer was biased or that there was a reasonable apprehension of
bias, and the applicant’s allegations about the conclusions that could be drawn
from the fact that the officer had to go to a fertility clinic are insulting.
[29]
The
applicable test for identifying a reasonable apprehension of bias, according to
the decision in Committee for Justice
and Liberty et al. v National Energy Board et al., [1978] 1 S.C.R. 369 [Committee for Justice and Liberty],
affirmed in R v S (RD), [1997] 3 SCR
484 [S (RD)] at paras 11, 31 and 111, is
whether a reasonable informed person, with knowledge of all the relevant
circumstances, viewing the matter realistically and practically, would conclude
that the officer’s behaviour or statements resulted in a reasonable
apprehension of bias. Courts show great deference when the issue is giving
credence to arguments based on bias. The apprehension of bias must rest on
serious grounds, not grounds that a “very sensitive or scrupulous” person would
raise (Wewaykum
Indian Band v Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para 76
citing Committee for Justice and Liberty at page 395). Similarly, courts
do not believe suspicions, insinuations, conjectures or impressions that are
devoid of an objective foundation demonstrating conduct that derogates from the
standard (Arthur v Canada (AG), 2001 FCA 223 at para 8) and require
convincing, serious and substantial evidence (S (RD) at para 117; Arsenault-Cameron
v Prince Edward Island, [1999] 3 S.C.R. 851 at para 2; Es-Sayyid v Canada
(Minister of Public Safety and Emergency Preparedness), 2012 FCA 59 at para
39).
[30]
In
this case, I do not believe that a
reasonable informed person, with knowledge of all the relevant circumstances,
viewing the matter realistically and practically, would conclude that the
officer’s behaviour or statements resulted in a reasonable apprehension of bias.
Although the officer mentioned that she had to go to a fertility clinic after
the interview, there is nothing in her decision that justifies a reasonable
apprehension or bias or constitutes conduct that derogates from the standard,
especially since no evidence was adduced to corroborate this allegation. As the
respondent maintains, presuming that the officer in this case was incapable of
rendering an objective, fair decision simply because she had an appointment at
a fertility clinic is based on outrageous sexism.
[31]
Moreover,
it is impossible for me to detect any frustration on the part of the officer
with “the system” that would be similar to the facts in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 48,
which the applicant relies on, and would interfere with her duty to assess this
application impartially. In this case, the two Federal Court decisions were
consent judgements. There is also nothing in the officer’s reasons or conduct
that indicates the slightest animosity towards the applicant or any factors
suggesting institutional bias.
[32]
The
fact that the officer decided to question only the applicant is not sufficient
to lead to an apprehension of bias or a breach of procedural fairness. It
simply indicates that, after her meeting with the applicant, she had enough
evidence on which to base her decision. There is no rule requiring an officer
to meet with both spouses or common‑law partners in the context of a
sponsorship application in this class. Administrative tribunals are considered
“masters in their own house” in the sense that may fix their own procedures as
long as they comply with the principles of procedural fairness and natural
justice (Prassad v Canada (Minister of Employment and Immigration),
[1989] 1 S.C.R. 560 at para 16). Once the officer believed that she had sufficient
evidence and that she had conducted a thorough analysis of the case, she could
“adopt a suitable hearing process” absent a specific rule (Zhong v Canada (Minister of Citizenship and Immigration), 2011 FC 279 at para 20). There is none here.
[33]
For
these reasons, I find that the applicant’s arguments regarding bias have no
merit.
Is
the immigration officer’s decision rejecting the sponsorship application
reasonable?
[34]
With
respect to the second issue, the applicant alleges that the officer’s findings
that his marriage was not bona fide are unreasonable because the officer
based this finding on the applicant’s relationship with Ms. Dani. He
contends that an extramarital relationship should not have any bearing on the
validity of a conjugal relationship or a marriage.
[35]
The
applicant also claims that the officer’s findings on the misrepresentations are
unreasonable because he simply failed to mention certain facts and, based on
the circumstances, these omissions were not unreasonable. He states that, at
the interview on April 3, 2007, he did not disclose the existence of his
children when asked whether he had family in Canada nor did he do so when the
immigration officer questioned his wife on the issue of children; he submits
that it was normal that he thought that [translation]
“family in Canada” meant members of his Tunisian family because the wording of
the question does not indicate clearly that the answer has to include children
who are Canadian citizens. As for the discussions surrounding the process of
adoption by the couple, the applicant states that mentioning his son would only
have been relevant if the child’s mother had consented to her son being adopted,
but nothing in the file indicates that that was the case. He also argues that
the fact he identified his three children voluntarily in the new forms he had
to complete in 2012 and the fact that he consented to his name appearing on
their birth certificates are inconsistent with the idea that he was trying to
misrepresent his situation because it is obvious that he was disclosing the existence
of his three children from an extramarital relationship.
[36]
The
applicant argues that his situation is comparable to the situation in Chen v
Canada (Minister of Public Safety and Emergency Preparedness), 2010 FC 584
[Chen] and the one in Osisanwo v Canada (Minister of Citizenship and
Immigration), 2011 FC 1126 [Osisanwo]. In Chen at paras 14‑15,
Justice Sean Harrington found that the applicant did not have to
disclose rumours and that “[e]ven if they were true, it did not mean that the
marriage was necessarily at an end. The Divorce Act specifically
contemplates the possibility of reconciliation . . . . The duty of
candour did not oblige Mr. Chen to share his worries with an immigration
officer.” In Osisanwo, the applicant had not declared that one of the
couple’s two children had been conceived by someone other than the husband.
Justice Roger Hughes wrote:
[14] . . . History
is replete with children born to and raised by a married couple, believing it
to be their own. Must an applicant seeking entry into Canada disclose every extra‑marital relationship conducted at a time when there is
any possibility that a child might have been fathered by someone other than the
husband? Surely our society has not found itself at that point.
[37]
For
his part, the respondent submits that the officer’s decision is reasonable
because there was a solid basis for her findings. Counsel for the respondent
notes that the applicant argues that his marriage is a genuine marriage and
alleges that he had a relationship with Ms. Dani only to have a family,
which, for him, is an overriding need. Counsel says that if it is true that the
applicant had such a need, it is inconceivable that he would have married
Ms. Cholette when he was 28 years old and she was 50 and unable to have
children. The much more reasonable conclusion is the one the officer drew, i.e.
that the marriage was entered into solely for the purpose of acquiring
permanent resident status in Canada. This is especially so given that the
children’s mother has no status in Canada. The applicant therefore has a vested
interest in continuing to live with his surety for immigration purposes. The
respondent also notes that section 5.25 of the OP2 Manual clearly states that a
bona fide conjugal relationship implies the exclusivity of the
relationship, that is, a commitment to both sexual and relational exclusivity
and that the courts have also recognized that an exclusive sexual relationship
is one of the factors that may be considered in determining whether two persons
are really in a conjugal relationship (citing M v H, [1999] 2 S.C.R. 3 and Bustamante
v Canada (Minister of Citizenship and Immigration), 2011 FC 1198). As for
the misrepresentations, the respondent argues that relevant omissions may give
rise to a misrepresentation and that, in this case, the failure to mention the
fact that he had a relationship with another women—and had had a child with
her—was very relevant. By hiding the existence of a child at the 2007 interview
until the month of March 2012, the applicant prevented the immigration officer
from assessing all the factors relating to the bona fides of the
relationship in 2007.
[38]
The
tribunal’s finding that the omissions in this case were misrepresentations is
reasonable. Subsection 40(1) of the Act is worded very broadly and covers
a number of situations including the misrepresentation of a material fact such
as the existence of a child. In this case, the applicant’s first son was born
on August 31, 2006. At the time of the interview on April 3, 2007, he
was seven months old. Despite this fact, when the officer asked whether the
spouses had plans regarding children, the applicant simply replied that they
were thinking about adoption. The birth of a child in the circumstances of this
case was a material fact that should have been disclosed. In addition, the
applicant’s answers about the couple’s adoption plans were even more misleading
than not mentioning his son because they were diametrically opposed to the
facts. It was thus completely open to the officer to find that the applicant
had made misrepresentations contrary to section 40 of the IRPA.
[39]
It
was also open to the officer to find that the marriage was not genuine. On this
point, I share the applicant’s opinion that having a child with a person other
than one’s spouse does not necessarily indicate that a marriage is at an end
and that that is always a contextual question. However, the circumstances of
this case justify the finding that the marriage was not genuine, and the
situation is clearly distinguishable from the Osisanwo decision. In that
case, the spouses had been married for 42 years but had separated briefly.
During the separation, the wife had a relationship with another man then
returned to her husband. Although the husband knew about the extramarital relationship,
both spouses sincerely believed that they were the parents of the child who was
born subsequently. It was only through a DNA test requested by CIC that they
discovered that the husband was not the father.
[40]
In
this case, the applicant had an ongoing relationship with another woman who has
no status in Canada, whom he considered to be his [translation] “mistress” and with whom he had three children.
At the same time, he was married to a woman some twenty hears his senior; all
of this could significantly influence the genuineness of the relationship.
According to the decision in Mai v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 101 at para 16:
. . .
Material facts are not restricted to facts directly leading to inadmissible
grounds, but are broader. When relevant information affects the process
undertaken or the final decision, it becomes material (Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC 931, at paragraph 19). The
applicant’s failure to mention his wife and child prevented immigration
officials from investigating them and their relationship to the applicant. The
misrepresentation thus affected the process undertaken.
[41]
In
the same case, at paragraph 18, Justice Luc Martineau continues by
saying:
As
for the applicant’s child, the Tribunal reasoned that this also prevented the
immigration agent from investigating the child. This would prevent the
applicant from sponsoring his wife and child in the future under the category
of family reunification. It must be remembered that paragraph 40(1)(a) of
the Act refers notably to the “withholding [of] material facts relating to a
relevant matter that induces or could induce an error in the administration of
[the] Act” (my underlining)
[42]
Thus,
for these reasons, the officer’s findings that the marriage was not valid and was entered into primarily for the purpose of acquiring a status
or privilege under the Act and that the applicant had made misrepresentations
contrary to section 40 of the Act are reasonable.
Was
the applicant’s H&C application pending such that the officer erred by
remitting the applicant’s case to the CBSA after she rejected the sponsorship
application in the spouse or common‑law partner class?
[43]
In
the final analysis, the facts are inconsistent with the allegation that the
officer erred by not assessing the applicant’s H&C application because
there was no longer a H&C application to assess. By submitting a
sponsorship application in the spouse or common‑law partner in Canada class (and by not mentioning the H&C application subsequently), the applicant
actually converted his H&C application to a sponsorship application. If he
now wishes to use this mechanism, the applicant will have to submit a new
H&C application. The wording of the Policy is clear on this point:
However, if, after the A25 waiver [the waiver of the
requirement for the applicant to have valid status in Canada], these applicants
are refused for not meeting the requirements of the Spouse or Common-law
Partner in Canada class, they are not entitled to a reassessment on H&C
grounds, but may reapply for H&C consideration - Appendix H - Public Policy
under A25(1) of IRPA to Facilitate Processing in accordance with the
Regulations of the Spouse or Common‑law Partner in Canada Class, at p
53).
[44]
If
he had wanted to rely on humanitarian and compassionate considerations, the
applicant should have done so specifically via a written application in
accordance with section 66 of the Regulations (Uddin v Canada (Minister of Citizenship and Immigration), 2011 FC 1260 at para 13). He could
not expect the officer to take them into account on her own initiative since
humanitarian and compassionate grounds are not incorporated into all the
provisions of the Regulations (see by analogy de Guzman v Canada (Minister
of Citizenship and Immigration), 2005 FCA 436 at para 105 and Varga
v Canada (Minister of Citizenship and Immigration), 2006 FCA 394 at
para 13).
[45]
Furthermore,
in the absence of evidence in this regard, the officer was not required to
fully analyze an issue that the applicant did not bother to invoke although he
had the burden of establishing the existence of humanitarian and compassionate
grounds justifying his exemption from one of the requirements under by the Act
(Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38
at para 5).
[46]
For
the foregoing reasons, the application for judicial review is dismissed.
[47]
This
case does not raise any serious question of general importance under paragraph
74(d) of the IRPA.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES AS FOLLOWS:
1. This
application for judicial review of the decision dated March 23, 2012, by a
Citizen and Immigration Canada officer is dismissed.
2. No
question of general importance is certified.
3. No
costs.
“Mary J.L. Gleason”
Certified
true translation
Mary
Jo Egan, LLB
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