IMM-4742-96
BETWEEN:
FARAZH MOHAMMED
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SIMPSON, J.
Let the attached transcript of my Reasons for Order delivered orally from the Bench in Toronto, Ontario, the 7th day of August, 1997, now edited, be filed to comply with section 51 of the Federal Court Act.
Sandra J. Simpson
Judge
Ottawa, Ontario
August 29, 1997
Registry No. IMM-4742-96
IN THE FEDERAL COURT OF CANADA
(TRIAL DIVISION)
B E T W E E N :
FARAZH MOHAMMED
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
EXCERPT OF ORAL REASONS
_________________________________________________________
BEFORE THE HONOURABLE MADAME JUSTICE SIMPSON
_________________________________________________________
HELD AT: Federal Court of Canada,
330 University Avenue,
Toronto, Ontario.
DATE: August 7, 1997
APPEARANCES:
Osborne G. Barnwell for the Applicant
Kevin Lunney for the Respondent
The applicant is seeking judicial review of a decision of an immigration officer (the "Officer") dated November 26, 1996, refusing the applicant's application, under section 114(2) of the Immigration Act, to be processed for permanent resident status from within Canada.
BACKGROUND
The applicant, aged 29 years, is a citizen of Trinidad. He came to Canada in September of 1988 on a visitor's visa with his mother and two siblings. The family claimed Convention refugee status, but these claims were rejected.
In September 1992, a deportation order was registered against the applicant, and the applicant's application for a landed status under the Backlog Regulations was refused in October of 1992.
He then applied for a humanitarian and compassionate ("H & C") review of his claim in November 1993. However, this application was rejected in February 1994 and application for leave to appeal this decision was refused. A second H & C application was also refused in June of 1995.
Thereafter, the applicant made a second application for landed status in July of 1996 on H & C grounds. This application was rejected by the Officer on November 26, 1996, and it is this decision which is presently under review.
THE FACTS
At all times since arriving in Canada, the applicant has lived with his mother and one or more of his siblings. The applicant began a common-law relationship with a woman (the "Wife") in 1989 and had three children between 1989 and 1992. The Wife and the three children lived with the applicant, his mother, and his siblings.
However, the common-law relationship ended in July of 1992 and the Wife took two of the children with her to parts unknown. She had been charged with child abuse against a son whose name is Ishmil Mohammed ("Ishmil"). However, the Wife was acquitted at trial. The applicant now has joint custody of Ishmil with his mother and, at the date of these reasons, Ishmil is approximately six and a half years old.
The Officer did not provide written reasons for her decision, but her notes (the "Notes") indicate her conclusions and the analysis she undertook. I have carefully reviewed the Notes and have considered counsel's submissions and, in all the circumstances, I cannot conclude that her decision was perverse or that she ignored relevant facts or made material errors of fact in reaching her decision.
THE APPLICANT'S SUBMISSIONS
The applicant submitted that the Officer ignored the principles in the Immigration Manual which govern H & C review. In particular, the applicant submitted that the Officer erred in failing to give due attention to the fact that all the applicant's family members reside in Canada and that his family is very close. However, the Notes disclose that these matters were considered.
The applicant also submitted that, given that the applicant was prohibited from working, the Officer placed undue emphasis on the applicant's failure to establish himself in Canada in an economic sense.
However, the Officer noted that the applicant had worked when he could and that he was not prepared to work illegally. She clearly understood the situation, but concluded correctly that he did not work and was not established in that sense. But she also considered the fact that he had spent long hours as a volunteer at his son's nursery school and that he worked in the home. In all the circumstances, I cannot conclude that the applicant's lack of paid employment received undue emphasis.
The applicant submitted, as well, that the Officer erred when she made inquiries of Metro Services to see whether the applicant's family was on welfare. This inquiry, it is argued, generated improper extrinsic evidence which should have been put to the applicant.
In my view, in a circumstance where an applicant lives with his mother and knows that welfare, at least in part, supports the household in which he lives, it cannot be said that welfare information, of the kind obtained by the Officer, is extrinsic evidence.
While it appears that the officer overstated the degree of welfare support to the applicant's household in the sense that the mother worked and was only subsidized by welfare, I have concluded that this error was not material.
Finally, the applicant submitted that the Officer's conclusion that Ishmil could go to Trinidad with the applicant was perverse, given that all her family and support systems are in Canada. However, in my view, what the Officer actually concluded was that legally the applicant was entitled to take Ishmil with him or leave him behind, and this was correct. The Officer did not express an opinion about which situation would be in the best interests of the child.
CONCLUSION
It is always difficult to deal with a section 114(2) application when someone who is illegally in Canada fathers a child. However, I am satisfied that there are no reviewable errors in the Officer's decision and, accordingly, the application will be dismissed.