Date: 20050630
Docket: IMM-1503-04
Citation: 2005 FC 928
BETWEEN:
KWAME GODRED NSIAH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] In June 2000, the applicant Kwame Godred Nsiah arrived in Canada from Ghana, his country of citizenship. He sought refugee status on the basis of his political opinion and his membership in a particular social group, the New Patriotic Party. He alleged persecution from government authorities. Both parties acknowledge that the applicant withdrew or abandoned his refugee claim in February 2002.
[2] In May 2001, the applicant married a Canadian. Shortly thereafter, as the spouse of a Canadian citizen, he sought an exemption from the requirement that he apply for permanent resident status from abroad. As this application was not processed until after the coming into force of the Immigration and Refugee Protection Act, the matter was assessed as a humanitarian and compassionate application under section 25 of the new legislation: see, for example, Pashula v. Canada (Minister of Citizenship and Immigration), 2004 FC 1275.
[3] On February 6, 2004, an immigration officer refused the application for humanitarian and compassionate consideration. Although he was satisfied that the applicant's marriage was a genuine one, the immigration officer concluded the applicant would not face unusual, undeserved or disproportionate hardship if he were sponsored through the normal processing procedures. He reached this conclusion while acknowledging that the "temporary separation" of the spouses, while the applicant sought permanent residency from Ghana, would create a certain level of hardship.
[4] In my view, none of the applicant's arguments in this application for judicial review warrant the Court's intervention. The applicant has not established that the decision of the immigration officer is one which can be characterized as unreasonable.
[5] While the immigration officer did note that the applicant's application for humanitarian and compassionate consideration was not risk-based, he did consider the applicant's submissions concerning risk and found that there was insufficient evidence to support these concerns. On the record before the Court, it was open to the immigration officer to make this determination.
[6] Similarly, the immigration officer made no reviewable error in not specifying the length of the "temporary separation" which would result from the applicant's deportation. The record discloses no specific submissions by the applicant concerning the length of time to process a humanitarian and compassionate application from abroad: Pashula, supra, at paragraphs 60-65. Also, the applicant's concern on the impact the separation would have on his "new marriage" in 2001 may have had less relevance in 2004 when the negative decision was made by the immigration officer.
[7] Finally, the record discloses insufficient evidence to support the applicant's allegation that he had been sending money to Ghana "when necessary to support his mother and children". The applicant has two daughters, now 12 and 9 years of age respectively, who apparently live with their paternal grandmother in Ghana. It has yet to be determined that an immigration officer is required to be "alert, alive and sensitive" to the interests of non-resident, non-Canadian children who have never lived in Canada when considering an application for humanitarian and compassionate consideration: Owusu v. Canada (Minister of Citizenship and Immigration), 2004 FCA 38. In any event, in this case, there was an inadequate factual basis presented by the applicant upon which the immigration officer could make an informed decision on the issue.
[8] For these reasons, the application for judicial review will be set aside. Counsel were permitted to file supplementary material to clarify the factual history of the applicant's application for humanitarian and compassionate consideration. However, I have not considered paragraphs 6 and 7 of the immigration officer's affidavit. One of the issues raised by the applicant during the hearing was not clearly expressed in his former counsel's memorandum of law. The Court allowed both parties to address this issue in supplementary submissions. As requested, the parties will have seven days from the date of these reasons to suggest a serious question for certification.
(Sgd.) "Allan Lutfy"
C.J.F.C.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: KWAME GODFRED NSIAH v. MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER: LUTFY C. J.
APPEARANCES: Joel Etienne
Marina Stefanovic
SOLICITORS OF RECORD: Etienne Law Office
Toronto, ON
John H. Sims, Q.C.
Deputy Attorney General of Canada