Date: 20020703
Docket: IMM-2758-01
Neutral Citation: 2002 FCT 735
Between:
MARY OLUFUNMILAYO KOMOLAFE
and OLUJIMI CORNELIUS KOMOLAFE
Applicants
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
The applicants seek judicial review of a decision by B. L. Lloyd, Immigration Officer (the "officer"), dated May 22, 2001, refusing their application for ministerial exemption from subsection 9(1) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
The applicants are citizens of Nigeria. The applicant, Mary Olufunmilayo Komolafe ("the adult applicant") is the mother of the applicant Olujimi Cornelius Komolafe ("the minor applicant").
The applicants applied under subsection 114(2) of the Act to be considered for permanent residence from within Canada. The adult applicant was interviewed by the officer on February 27, 2001 and their application was refused by letter dated May 22, 2001.
In Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, L'Heureux-DubéJ. determined at pages 857 to 858 that the appropriate standard of review for decisions made under subsection 114(2) of the Act and section 2.1 of the Immigration Regulations, 1978, SOR/78-172, is reasonableness simpliciter:
. . . I conclude that considerable deference should be accorded to immigration officers exercising the powers conferred by the legislation, given the fact-specific nature of the inquiry, its role within the statutory scheme as an exception, the fact that the decision-maker is the Minister, and the considerable discretion evidenced by the statutory language. Yet the absence of a privative clause, the explicit contemplation of judicial review by the Federal Court -- Trial Division and the Federal Court of Appeal in certain circumstances, and the individual rather than polycentric nature of the decision, also suggest that the standard should not be as deferential as "patent unreasonableness". I conclude, weighing all these factors, that the appropriate standard of review is reasonableness simpliciter.
The reasonableness standard was defined by Justice Iacobucci in Dir. Inv. & Res. v. Southam Inc., [1997] 1 S.C.R. 748 at pages 776 and 777:
. . . An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
The fundamental issue raised by the applicants in their memorandum of argument is the failure of the officer to assess the best interests of the children. In Baker, supra, Madam Justice L'Heureux-Dubé carefully assessed the role of children's interests in reviewing decisions made pursuant to subsection 114(2) of the Act. At paragraph 67, she concluded that "(c)hildren's rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society."
Following the subsequent clarification made by the Supreme Court of Canada in Suresh v. Canada (M.C.I.), 2002 SCC 1, [2002] S.C.J. No. 3 (QL), concerning the assessment of children's interests, the Federal Court of Appeal in Legault v. Canada (M.C.I.), 2002 FCA 125, [2002] F.C.J. No. 457 (QL), stated the following:
[11] In Suresh, the Supreme Court clearly indicates that Baker did not depart from the traditional view that the weighing of relevant factors is the responsibility of the Minister of his delegate. It is certain, with Baker, that the interests of the children are one factor that an immigration officer must examine with a great deal of attention. It is equally certain, with Suresh, that it is up to the immigration officer to determine the appropriate weight to be accorded to this factor in the circumstances of the case. It is not the role of the courts to reexamine the weight given to the different factors by the officers.
_[12] In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances. The presence of children, contrary to the conclusion of Justice Nadon, does not call for a certain result. It is not because the interests of the children favour the fact that a parent residing illegally in Canada should remain in Canada (which, as justly stated by Justice Nadon, will generally be the case), that the Minister must exercise his discretion in favour of said parent. Parliament has not decided, as of yet, that the presence of children in Canada constitutes in itself an impediment to any "refoulement" of a parent illegally residing in Canada (see Langner v. Minister of Employment and Immigration (1995), 184 N.R. 230 (F.C.A.), leave to appeal refused, [1995] S.C.C.A. No. 241, SCC 24740, August 17, 1995).
In the present case, it appears that the officer made reference to the fact that she had given "significant weight and consideration to Ms. Komolafe's two children, Jane and Jimi" and took into account the Female Genital Mutilation issue. The following factors and evidence were particularly considered: the fact that the letter the adult applicant produced to prove that her father wants her daughter to undergo female circumcision is dated and written in different inks and the postmark is illegible; the adult applicant admitted during the interview that her father had not issued any threats against her; the children's father, whose request that their daughter be circumcised caused much of the adult applicant's concern, is now residing in Canada; the adult applicant stated in the interview that she had charged the children's father because he was violent towards her, but that he had changed his mind about the child's circumcision and finally, the government of Nigeria has taken steps to ban the procedure in several states and approximately 50% of the female population in Nigeria.
As the applicants have failed to satisfy me that the officer based her decision on an erroneous finding of fact that she made in a perverse or capricious manner or without regard to the material before her (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7), I must therefore conclude, in light of the evidence, that the applicants have failed to show that the officer's decision was an unreasonable exercise of power.
Consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
July 3, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2758-01
STYLE OF CAUSE: Mary Olufunmilayo Komolafe and Olujimi Cornelius Komolafe v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 28, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: July 3, 2002
APPEARANCES:
Michael E. Brodzky FOR THE APPLICANTS
Mary Mathews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michael E. Brodzky FOR THE APPLICANTS
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario