Date: 20040702
Docket: IMM-1662-03
Citation: 2004 FC 953
Ottawa, Ontario, this 2nd day of July, 2004
Present: The Honourable Mr. Justice Mosley
BETWEEN:
EVELYN EDNA BAISIE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Evelyn Edna Baisie seeks judicial review of the decision of immigration officer, D. Jonas (the "officer"), dated February 19, 2003. In that decision, the officer denied the applicant's request for an exemption from the requirement of subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") and that she be permitted to apply from within Canada for permanent residence on humanitarian and compassionate ("H & C") grounds, pursuant to subsection 25(1) of IRPA. The applicant seeks an order setting aside the decision, as well as an order remitting her H & C application back for consideration by another officer.
BACKGROUND
[2] Ms. Baisie is a 34-year old citizen of Ghana. She came to Canada in March 1997 and made a refugee claim, fleeing an abusive ex-husband who had allegedly threatened the applicant that her child, unborn at that time, would have to be sacrificed to fetish priests through a documented religious practice called "Trokosi", in order to pay for family sins. Her refugee claim was denied in 1998.
[3] Ms. Baisie has two Canadian-born sons, born in 1997 and 1999. In January 2000 the applicant married a Canadian citizen, who is not the biological father of either child. Ms. Baisie has not been employed since arriving in Canada. She stated in her H & C application that she had the intention of working as an administrative assistant, having attended a secretarial school in Ghana from 1989 to 1991 and worked as a secretary there for four years.
[4] It appears that she applied for landing as a sponsored spouse in 2001 which was refused due to questions raised about the bona fides of her marriage. She then applied for landing from within Canada on H & C grounds in September 2001, which included a sponsorship undertaking from her Canadian husband. She indicated on her H & C application that in addition to the ground of hardship in being separated from her husband and the fact that she has two Canadian children with the right to remain in Canada, her application was also based on personalized risk if she were to be returned to Ghana.
[5] By letter dated January 22, 2003, a PRRA officer concluded that in relation to the portion of her H & C application based on risk, Ms. Baisie would not be at risk if she were returned to Ghana. The PRRA officer also concluded that since the documentary evidence indicated that young female virgins are preferred for servitude to the priests as part of the Trokosi religious practice, then there was little evidence that the applicant herself or her young sons would be subjected to Trokosi.
[6] The applicant was given the opportunity to comment on errors or omissions in the risk opinion report, which she did through further submissions. Those submissions focus on the difficulties the applicant would personally encounter in returning to Ghana as an outcast within her community, presumably for having left her former husband although that is not clear from the record. The potential for harm to her children is described as incidental to the risks she personally would face. In reply to the applicant's responding submissions, the PRRA officer stated, in part, as follows:
... As the subject is under a removal order (not her Canadian born children) the risk is only assessed in regards to the applicant. My opinion, therefore, remains unchanged.
The Decision under Review
[7] The officer determined that an exemption to the requirement of applying for a permanent resident visa from overseas was not warranted in the applicant's case on H & C grounds. The handwritten notes of the officer, which along with the Field Operating Support System ("FOSS") notes form the reasons for this decision, state as follows:
Subject married to C.C. and has 2 Cdn born children (father-unknown). Unemployed since her arrival in Canada. Subject worked as a secretary for 4 years in Ghana and has listed that she completed a course in stenography in Ghana. Subject listed that her goal would be to work as a personal or administrative assistant in Canada.
Subjects parents both reside in Ghana she is originally from Ghana and should be familiar with local customs and procedures. Subject's children are very young and so they should be able to adjust to a new life with their mother's assistance. Subject stated that she is being fully supported by her spouse and thus it [sic] hoped that he will continue with that support. The department is committed to processing spouses of Canadians with the highest priorities and thus if all is normal, subject's absence from Canada should not be excessive.
[8] In an affidavit submitted for the purposes of the applicant's successful stay application, the officer attested that he had arranged to have a further risk assessment prepared because of the applicant's argument that her children might be sacrificed to the "fetish priests" in Ghana. In considering the best interests of the children, he had regard to the information before him that the children were not in fact at risk of physical harm, the children were very young and in the very basic stages of their education, that there was no indication of any medical issues concerning the children, and that the applicant's parents remained in Ghana and could assist her if she were to return with the children.
ISSUE
[9] Did the officer commit a reviewable error in not adequately considering the best interests of the applicant's Canadian children who are affected by the H & C decision?
ANALYSIS OF THE PARTIES' SUBMISSIONS
[10] The applicant submits that pursuant to Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the appropriate standard of review of an H & C decision is reasonableness simpliciter. Also relying on Baker, the applicant argues that an officer must make her decision in a manner which demonstrates that she is alive, attentive or sensitive to the interests of an H & C applicant's children, as the rights and interests of children affected by the H & C decision are an important factor in making the decision.
[11] The applicant points out that IRPA now statutorily mandates that consideration of the best interests of children directly affected must occur in assessing an H & C application under s. 25(1). The applicant submits that the reasons of the officer do not indicate that the decision was made in a manner that was alive, attentive or sensitive to the interests of her children, and the reasons indicate that this was not an important factor in the decision.
[12] The applicant argues that her case is similar to that of Jack v. Canada (Minister of Citizenship and Immigration) (2000), 7 Imm. L.R. (3d) 35 (F.C.T.D.), where the officer's reasons for decision contained a similar, brief remark that an applicant's child was young and would be able to adjust to the change. The applicant submits that as in Jack, supra, the officer provided no assessment of the effects on the children if they were to be separated from her, that is, the effects on their schooling, particularly since the children's mother tongue is English and not the language spoken in Ghana.
[13] The respondent submits that the officer adequately considered all the evidence put forth by the applicant. The concerns that the applicant raised about her children's possible risk in Ghana were addressed in the risk assessment of the PRRA officer and it was reasonable for the reviewing officer to accept the findings of this risk assessment. The applicant did not provide any submissions about language or schooling of her children in her application that was before the officer. The officer was under no obligation to remedy the deficiencies in the applicant's materials. Here, the respondent relies on Owusu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 172 (T.D.), aff'd [2004] F.C.J. No. 158 (C.A.)(QL).
[14] In Jack, supra the applicant had one Canadian-born child, aged 9, for whom she received no support from the father. The child had little contact with the father. In addition there were two children in Trinidad supported by the applicant from Canada. There was no indication on the record that the immigration officer had considered the effects upon the Canadian-born child had the mother chosen not to take him with her to Trinidad, nor the effects of the loss of her ability to support her children in that country. In Owusu, supra, the children had been born in and remained in Ghana. Gibson J. (also the applications judge in Jack) held that the scope of the "best interests of the children" requirement in Baker was not limited to Canadian-born or resident children and that there was no indication on the record that the H & C officer had been "alert, alive and sensitive" (Baker, para.75) to the needs of the children in that case. However, that deficiency was attributable to the unaccountable failure of the applicant to provide any explanation as to how his removal would affect their interests. To send the matter back for reconsideration on the same information would result in the same outcome. Accordingly, while the immigration officer had erred in law, Justice Gibson declined to set aside the decision. The Court of Appeal concurred in the result but held that the officer had not erred in that the applicant did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them. The Court concluded at paragraph 12:
In the absence of a reviewable error by the immigration officer in rejecting Mr. Owusu's H & C application, the Court cannot intervene. It is not the function of the Court in judicial review proceedings to substitute its view of the merits of a H & C application for that of the statutory decision-maker, even though, on the record, Mr. Osuwu's in-country claim to be granted permanent resident status on H & C grounds might well have merit.
[15] In my view, the officer adequately addressed the interests of the applicant's Canadian children in making the H & C assessment, pursuant to the standard set out in Baker, supra, based on the limited information that was provided to him by the applicant. Had the applicant advised the officer that the Canadian-born children would remain in Canada, as is their right, there would have been an obligation on the officer to inquire into the effects of separation from their mother on them and the arrangements for their care in this country to ensure that their best interests would be met. The record indicates, however, that the applicant told the officer that she would take the children with her to Ghana and, indeed, on that basis arrangements were made for the costs of the children's travel to be covered by the respondent. In those circumstances, it was reasonable for the officer to focus his attention on how relocation to Ghana with their mother would affect the children. His reasons while sparse indicate that he did consider a number of relevant factors such as the availability of support in Ghana from the applicant's parents for the applicant and her children.
[16] Given that the applicant is now married to and supported by a Canadian citizen and has two Canadian-born children who are now both of school age, the court may well have come to a different conclusion on the merits of the H & C application. However, that is not a sufficient basis on which to conclude that there is a reviewable error. Accordingly the application will be dismissed. Neither party proposed that a question be certified.
ORDER
THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.
"Richard G. Mosley"
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1662-03
STYLE OF CAUSE: EVELYN EDNA BAISIE
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 24, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: July 2, 2004
APPEARANCES:
Mr. Ricardo Aguirre FOR THE APPLICANT
Mr. Michael Butterfield FOR THE RESPONDENT
SOLICITORS OF RECORD:
RICARDO AGUIRRE FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario