Docket: IMM-14928-23
Citation: 2024 FC 2008
Edmonton, Alberta, December 11, 2024
PRESENT: The Honourable Madam Justice Turley
BETWEEN: |
JOSHUA UYI UHUNMWANGHO |
OGHENEKOME PATIENCE UGBI-UHUNMWANGHO |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicants seek judicial review of a decision by a senior immigration officer [Officer] dated November 17, 2023, refusing their application for permanent residence on humanitarian and compassionate [H&C] grounds under subsection 25(1) of the Immigration and Refugee Protection Act, SC 2001, c 27. After a global assessment of the relevant H&C factors, the Officer determined that the Applicants had not provided sufficient evidence to establish that an exemption was warranted in their circumstances.
[2] I am dismissing the application, without deciding the merits, based on the clean hands doctrine. The Applicants failed to appear for their scheduled removal from Canada on December 13, 2022, and an arrest warrant was issued. After the Officer’s decision, the Applicants agreed to turn themselves in to the Canada Border Services Agency [CBSA] on December 11, 2023, but they again failed to appear. The Court cannot condone this blatant disregard for Canadian immigration law. While the Applicants recently agreed to voluntarily turn themselves in on December 13, 2024, this was only after the Respondent raised the clean hands doctrine in this application. In my view, this recent overture is insufficient to overcome their past misconduct.
II. Background
[3] The Principal Applicant and her common law spouse [Associate Applicant] are citizens of Nigeria. They have lived in Canada since December 2017. Their two children were born in Canada, their son in 2019 and their daughter in 2021.
[4] The Applicants claimed asylum separately in January 2018, and the Refugee Protection Division [RPD] rejected their claim in March 2019. The Principal Applicant’s claim was refused due to credibility concerns, while the RPD found that an internal flight alternative was available to the Associate Applicant. The Refugee Appeal Division dismissed their appeal.
[5] The Applicants submitted their first H&C application in December 2020, which was refused on August 25, 2021. The CBSA commenced removal proceedings against the Applicants five days later on August 30, 2021. The Applicants submitted a Pre-Removal Risk Assessment on September 16, 2021, which was refused on December 16, 2021. In April 2022, the Applicants submitted their second H&C. This is the application currently under review.
[6] The Applicants based their H&C application on the following factors: their establishment in Canada, the best interests of their children [BIOC], the general country conditions in Nigeria, and their fear of re-establishing themselves there. After assessing these factors, the Officer refused their application. The Officer found that while the Applicants’ establishment in Canada was “impressive and a positive factor”
, there was insufficient evidence on the other factors advanced to justify an H&C exemption.
III. Analysis
[7] The Respondent raised three preliminary issues: (i) the Applicants’ children are not proper applicants in this proceeding; (ii) the admissibility of the parties’ affidavit evidence; and (iii) the application should be dismissed based on the clean hands doctrine.
A. The children are not proper applicants
[8] As I said at the hearing, I agree with the Respondent that the Applicants’ two children are not proper applicants in this proceeding. Although their concerns must be assessed under the BIOC framework, they are Canadian citizens and are not applying for permanent residency like their parents. I therefore amend the style of cause with immediate effect to remove the children as applicants.
B. Admissibility of new evidence
[9] Generally, the evidentiary record on judicial review is restricted to what was before the decision-maker. There are, however, limited exceptions to this general rule. New evidence may be admitted where it: (i) provides general background information that may assist the Court; (ii) highlights the complete absence of evidence before the decision-maker; or (iii) demonstrates procedural unfairness in the decision-making process: Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 13–25, Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 18–20.
[10] The Applicants filed affidavit evidence both at the leave stage (sworn March 31, 2024) and after leave was granted (sworn October 15, 2024). The March 2024 affidavits provide new evidence related to the hardship the Applicants and their children have faced since removal proceedings commenced, and attaches new medical evidence concerning their son that was not before the Officer. The Applicants’ October 2024 affidavits speak to events arising after the Officer’s decision, including the Principal Applicant’s pregnancy and their unborn child’s medical condition. None of this new evidence falls within any of the recognized exceptions and is not admissible. As I explained at the hearing, sitting as a reviewing court, it is not my role to assess the Applicants’ H&C claim de novo taking into account further, updated evidence. On judicial review, the Court’s mandate is limited to determining whether the Officer’s decision is reasonable and procedurally fair.
[11] The Respondent’s affidavit evidence (sworn on October 21, 2024) speaks to two issues. First, paragraphs 2–4 explain why the Respondent did not file a memorandum at the leave stage. As stated in the Court’s Direction dated December 2, 2024, contrary to the Applicants’ assertions, the Respondent is not precluded from filing this memorandum. This affidavit evidence is thus unnecessary to adjudicate this application.
[12] Further, the Respondent’s affidavit provides evidence relevant to the application of the clean hands doctrine. According to paragraph 5, the Applicants had not presented themselves to the CBSA as of October 10, 2024. This evidence is admitted as background information that assists the Court in adjudicating this matter. For future cases asserting the lack of clean hands, however, the Respondent should file an affidavit of a CBSA officer providing details about an applicant’s failure to appear, as opposed to evidence of a legal assistant with the Department of Justice.
[13] The Applicants sought to adduce new evidence in response to the Respondent’s argument about unclean hands. In their Book of Authorities filed on December 6, 2024, they included an email exchange dated November 24, 2023, between their former counsel and the CBSA. According to this email exchange, the Applicants agreed to turn themselves in to the CBSA on December 11, 2023. However, the Applicants provided no information about what occurred on and/or after that date.
[14] The Applicants further sought to adduce recent email exchanges between their current counsel and the CBSA from December 6–7, 2024, as well as records showing telephone calls between their counsel and the CBSA between November 27 and December 6, 2024. According to the email exchange, the Applicants have agreed to voluntarily turn themselves in to the CBSA on December 13, 2024.
[15] The Applicants have known that their failure to appear for removal was at issue since the Respondent filed their affidavit on October 30, 2024, and their factum on November 20, 2024. The Applicants should have sought leave to adduce affidavit evidence in response, rather than simply including emails in their Book of Authorities and attempting to submit evidence at the hearing. This is not appropriate practice and procedure.
[16] However, given that this information is relevant to the issue of unclean hands, I am admitting the evidence so that the Court has a clear understanding of what has transpired. For the same reason, the Court admits the information Respondent’s counsel provided at the hearing concerning the Applicants’ failure to appear in December 2023. This further information ensures that the Court has a complete picture of what actually happened in December 2023. As I noted at the hearing, I am troubled by Applicants’ counsel’s failure to disclose that their clients failed to appear in December 2023. The information provided by the Applicants was thus incomplete.
[17] Finally, the Court refuses to admit the new evidence included at tabs 19–24 of the Applicants’ Book of Authorities. This includes their son’s most recent medical report, and objective evidence about Nigeria’s health care system, treatment of autism, and attitudes towards female genital mutilation [FGM]. None of this evidence was before the Officer and it does not fit within any of the limited exceptions enumerated above.
C. The application is dismissed based on the clean hands doctrine
[18] The clean hands doctrine is one of equity. The Court may decline to grant a discretionary remedy based on an applicant’s past misconduct or bad faith: Canada (National Revenue) v Cameco Corporation, 2019 FCA 67 at para 37. The Court has applied the doctrine without adjudicating the merits of judicial review applications where an applicant failed to appear for removal: Amorocho Sanabria v Canada (Citizenship and Immigration), 2023 FC 803; Akinwumi v Canada (Citizenship and Immigration), 2022 FC 1599 [Akinwumi]; Ngo Sen v Canada (Citizenship and Immigration), 2020 FC 331 [Ngo Sen]; Wu v Canada (Citizenship and Immigration), 2018 FC 779 [Wu]; Debnath v Canada (Immigration, Refugees and Citizenship), 2018 FC 332 [Debnath].
[19] In determining whether to exercise its discretion, the Court must strike a balance “between the integrity of the judicial and administration process and the public interest in ensuring the protection of fundamental human rights”
: Debnath at para 17. The following factors are relevant to the Court’s consideration of the clean hands doctrine: (i) the seriousness of the applicant’s misconduct and the extent to which it undermines the proceeding; (ii) the need to deter others from similar conduct; (iii) the nature of the alleged administrative unlawfulness and the apparent strength of the case; and (iv) the importance of the individual rights affected and the likely impact upon the applicant if the impugned administrative action is allowed to stand: Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2006 FCA 14 at para 10.
[20] Here, the Applicants’ misconduct is serious. The Applicants failed to appear for removal in December 2022 and the CBSA subsequently issued an arrest warrant. Following the Officer’s decision, the Applicants agreed to turn themselves in to the CBSA in December 2023, but then failed to report. As of October 10, 2024, the Applicants had still failed to present themselves to the CBSA. Only after the Respondent raised the clean hands doctrine in this proceeding did the Applicants take steps to contact the CBSA. They have now arranged to turn themselves in voluntarily on December 13, 2024. The Applicants argue that this recent agreement should weigh in their favour. I do not agree. This last effort does not outweigh the Applicants’ previous failures to appear.
[21] This Court has determined that this type of misconduct has significant consequences for both the removal process and the overall integrity of the immigration regime: Ngo Sen at para 27; Debnath at para 25. There is also no question that deterrence is a critical consideration to ensure the proper functioning of Canada’s immigration system: Ngo Sen at para 28. As Justice Zinn aptly stated, “[c]ondoning misconduct sends the wrong message to those who respect and observe the law even when their claims have been unsuccessful”
: Akinwumi at para 14.
[22] The Applicants have not established that they have a strong case on the merits. The Officer considered all of the Applicants’ arguments, but ultimately determined that, apart from their establishment, the Applicants failed to adduce sufficient evidence in support of the various H&C factors they advanced. More particularly, the Officer found as follows: (i) “insufficient evidence”
about the impact on their children’s health considerations in Nigeria; (ii) “a scarcity of details”
to indicate any adverse effects on their son’s mental well-being; (iii) “a scarcity of information”
about any adverse effects on their son’s intellectual development; (iv) “insufficient evidence”
to indicate any threats or risk based on religious beliefs; (v) “insufficient evidence”
to support hardship if the Applicants could not continue to provide financial support to their family in Nigeria; (vi) “a scarcity of details”
about their previous hardship based on socio-economic status: Officer’s Decision at 3–5. Counsel for the Applicants could not identify anything in the record suggesting that the Officer ignored or misapprehended the evidence adduced on these issues.
[23] Furthermore, the Officer assessed the Applicants’ fear related to subjecting their young daughter to FGM under BIOC considerations. In their H&C application, the Applicants made very general arguments that FGM will have “a direct negative effect on [their daughter] should [they] be forced to go to Nigeria”
: Applicants’ H&C submissions at 10. The Officer acknowledged the documentary evidence about the prevalence of FGM in Nigeria. However, the Officer also noted that the performance of FGM depends on a number of factors, including the educational level and economic status of a family: Officer’s Decision at 33. In that regard, the 2022 report relied on by the Officer states, “[w]hether a woman or girl is at real risk of undergoing FGM will depend on her personal circumstances”
: Country policy and information note: female genital mutilation (FGM), Nigeria, July 2022 at 9 [2022 Report].
[24] Key among these circumstances is a family’s will to perform FGM: 2022 Report at 18–20. Indeed Applicants’ counsel argued at the hearing that in Nigeria, FGM is considered a private matter arranged for by the family. In that light, the Officer’s conclusion that there was “little information to indicate that the applicants’ families or anyone else has sought to inflict FGM on the child”
is reasonable: Officer’s Decision at 3.
[25] As the Officer pointed out, the onus was on the Applicants to support their H&C application with relevant evidence. The Federal Court of Appeal has made clear that “since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril”
: Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 at para 8. There is simply no merit to the Applicants’ argument that the Officer was required to ask them for further information if the Officer found their application lacking in some regard.
[26] Finally, in assessing the likely impact on the Applicants if the H&C decision stands, the lack of merit of the underlying application is also relevant: Ngo Sen at para 31; Wu at para 17.
IV. Conclusion
[27] Having considered the relevant factors, I am satisfied that the application should be dismissed due to the Applicants’ misconduct in failing to appear for removal and failing to present themselves to the CBSA after an arrest warrant was issued. The Applicants’ most recent effort to present themselves to the CBSA is not sufficient to overcome their past misconduct.
[28] At the end of their submissions, Applicants’ counsel proposed the following question for certification: “Where there are exigent circumstances that are life threatening, in an appeal of an H&C decision, should the Court take all necessary steps to protect the applicant even where evidence before the decision-maker was not rightly adduced?”
The Respondent objected given that the Applicants had failed to comply with the Court’s Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings (last amended October 31, 2023) [Guidelines].
[29] Paragraph 36 of the Guidelines provides that when a party intends to propose a certified question, opposing counsel must be notified at least five days prior to the hearing, with a view of reaching a consensus regarding the language of the proposed question(s). I decline to entertain this question because Applicants’ counsel failed to propose the certified question within the requisite timelines. This failing is just one of many instances throughout these proceedings where Applicants’ counsel have shown disregard for the Court’s practice and procedure.
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