PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant asks for judicial review of an Immigration Officer's decision determining that there were insufficient humanitarian and compassionate (H & C) grounds to warrant exemption from the requirements to apply for permanent residence from outside Canada. The central basis for the H & C application was the existence of the best interests of his Canadian-born child.
I. Background
[2] Mr. Ifada is a citizen of Nigeria who claimed refugee status upon his arrival in 2001. His claim was dismissed in October 2002; leave was denied. His subsequent PRRA was negative.
[3] While the Applicant was attempting to remain in the country, he fathered a child and, shortly before her birth, he married the mother. The parents have since separated. The Applicant visits the child as well as providing monthly support of $200.
[4] The Applicant filed an H & C application the day after his negative PRRA. He relied on his fear of returning to Nigeria on the basis of risk to his life from a cult there (a ground rejected in his refugee claim and his PRRA), on the existence of his Canadian-born daughter and on her need for his emotional and physical support.
[5] In the Officer's decision on the aspect of the Applicant's H & C application concerning the interests of his daughter, the Officer noted that the child is quite young (two years old) and that her primary care and control is with the mother. The Officer also took account of the financial support provided by the Applicant, that he could earn a living as a teacher in Nigeria, that his family has influence and wealth (disclosed in his PIF), that he could continue to provide some support if returned to Nigeria and that the child's maternal grandparents supply support for the child.
[6] On the subject of the separation between father and daughter, the Officer said:
While I acknowledge no child should be separated from a caring parent and such a separation does create a degree of hardship for both the applicant and his daughter, I am satisfied that the applicant's daughter would be able to adjust to the separation from her father, again considering her young age and the fact the applicant and Robynn are now separated and no longer reside together. In fact given the circumstances, I find a great degree of separation between the applicant and his child has already taken place by virtue of the dissolution of his marriage.
II. Analysis
[7] The central issue in this judicial review is whether the Officer's decision to refuse the H & C application and, in particular, the consideration and finding in regard to the best interests of the child, is reasonable. A secondary issue as to the sufficiency of the Officer's reasons was raised but not argued. It is subsumed in the consideration of the central issue.
[8] The standard of review for an H & C determination as to the sufficiency of the grounds for the exemption is well settled as reasonableness simpliciter, as held in Baker v. Canada (MCI), [1999] 2 S.C.R. 817. The case law also holds that in this regard reasonableness is established when there is a line of analysis that could reasonably lead from the evidence to the conclusion. See Law Society of New Brunswickv. Ryan, [2003] 1 S.C.R. 247 at paragraph 55:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
[9] It is not the Court's role to re-examine the weight given by an immigration officer to the various factors considered by the officer when deciding whether to grant the H & C exemption. See Legault v. Canada(Minister of Citizenship and Immigration), [2002] 4 F.C. 358 and Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.
[10] The Respondent has referred this Court to two recent decisions of Justice de Montigny which address the issue of best interests of children, one in respect of a PRRA, Munar v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1448 (QL); 2005 FC 1180, and the other an H & C matter, Serda v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 425 (QL); 2006 FC 356. These decisions reiterate the basic principles that H & C applications are an exception to the general law, that the consideration of the best interests of the child is one important factor in a H & C decision and that these best interests do not prevent a government from removing a parent.
[11] The responsibility of the Officer is to weigh these various factors in an H & C application. The burden in respect of the best interests of the child is to be "alert, alive and sensitive" to those interests. See Legault, above.
[12] It is a truism that a child is normally better off with the parent(s) than without. The Officer's reasoning, quoted in paragraph 6 of these Reasons, shows that he was "alert, alive and sensitive" to those issues unless there is something obviously wrong.
[13] While there may be a lacuna in the evidence about the Applicant's status and resources in Nigeria, the burden was on him to put such evidence forward. The Officer relied on what evidence was available. It is not for this Court to second guess the Officer's weighing of all the relevant factors in this H & C application.
[14] The Officer's reasons and reasoning were sufficiently clear to show the line of analysis and sufficiently fulsome to satisfy the standards of reasonableness and of meaningful reasons.
[15] For these reasons, this application for judicial review will be dismissed. There is no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review will be dismissed.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6588-05
STYLE OF CAUSE: KENNEDY IFADA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
APPEARANCES:
| Ms. Lori O'Reilly
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| Mr. W. Brad Hardstaff
|
SOLICITORS OF RECORD:
| O'REILLY LAW OFFICE Barristers & Solicitors Calgary, Alberta
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| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Edmonton, Alberta
|