Ottawa, Ontario, June 28, 2006
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Oluwatomisona Fadayomi applied on humanitarian and compassionate grounds for an exemption from the statutory requirement that his application for permanent residence be made from outside Canada. While his humanitarian and compassionate application was pending, Mr. Fadayomi married a Canadian citizen. His wife then submitted sponsorship documents in order to allow his application to be assessed under the regulations of the spouse or common-law partner in Canada class. An immigration officer found that Mr. Fadayomi did not meet the requirements of that class because there was insufficient evidence that his marriage was not contrived or entered into for the purpose of obtaining immigration status. The officer also found that there were insufficient humanitarian and compassionate grounds to warrant exempting Mr. Fadayomi from the requirement that he apply for permanent residence from outside Canada.
[2] On this application for judicial review of that decision I find that the evidence before the officer reasonably supported her conclusion that the bona fides of the marriage had not been established, and conclude that the officer committed no reviewable error in the assessment of the humanitarian and compassionate factors. In result, the application for judicial review will be dismissed.
[3] With respect to the genuineness of Mr. Fadayomi's marriage, the officer noted that Mr. Fadayomi was married within three months of the first interview that was conducted in connection with his humanitarian and compassionate application. However, at that interview Mr. Fadayomi did not mention his relationship with his future wife and expressly stated that he was not in a relationship with anyone because he had insufficient time for a relationship. At a second interview, conducted after the marriage, Mr. Fadayomi stated that he had, in fact, begun dating his wife before the first interview. At the second interview, Mr. Fadayomi and his wife gave different versions of their financial situation and there were discrepancies in their recollection as to why the wife's mother did not attend their wedding. On the basis of the second interview the officer found that each spouse had a limited knowledge of important aspects of their partner's life.
[4] The finding that Mr. Fadayomi failed to establish that his marriage was genuine is one of fact. No challenge is made to the officer's recitation of the information each spouse provided at the interview. In my view, on that information it was not unreasonable for the officer to conclude that Mr. Fadayomi had failed to establish the bona fides of his marriage. Particularly telling was the fact that at the first interview Mr. Fadayomi denied being in any relationship when at the second interview he said that at the time of the first interview he was dating his future wife.
[5] With respect to the assessment of the humanitarian and compassionate factors, three reviewable errors are asserted. First, it is said that the officer breached the requirements of natural justice because she relied upon extrinsic evidence relating to Mr. Fadayomi's medical condition. That extrinsic evidence is said to be internet research on the effect of cold weather on sickle cell anemia, an opinion from the Medical Services Branch of Citizenship and Immigration Canada, and that branch's reply with respect to the availability of medical care in Nigeria. Second, it is argued that the officer erred in rejecting the medical evidence provided by Mr. Fadayomi's doctor, Dr. Turner. Finally it is submitted that the officer erred in her assessment of the disproportionate and undue hardship that would result if Mr. Fadayomi were required to return to Nigeria.
[6] I have not been persuaded that any breach of natural justice occurred. As to the internet research, the officer advised Mr. Fadayomi's counsel that she had learned from the internet that very cold weather had been found to aggravate sickle cell anemia. By doing so, she fully disclosed the nature of her concern so as to afford Mr. Fadayomi the opportunity to respond to that concern and thus meaningfully participate in the decision-making process. It was not, in my view, necessary for the actual research to be provided because sufficient information was disclosed so as to allow Mr. Fadayomi and his doctor to respond to the concern. (See: Hersi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2136).
[7] As to the other documents, the tribunal record establishes that information obtained from the Medical Services Branch was provided to Mr. Fadayomi's counsel (see pages 37 and 38 of the tribunal record) and I have not been satisfied that any other information was obtained by the officer from the Medical Services Branch.
[8] Turning to the second asserted error, while Dr. Turner undoubtedly has expertise with respect to the treatment of sickle cell anemia, what was at issue was the availability of adequate medical treatment in Nigeria. It was not unreasonable for the officer to prefer the information obtained by Medical Services Branch from a professor of medicine in Nigeria. To the extent that the same professor was quoted in a media article as expressing concern about the lack of government attention to the problem of sickle cell anemia in Nigeria, it appears that the article pre-dated the doctor's opinion by approximately three years and much of the professor's stated concerns were directed to the lack of a cure for the condition.
[9] With respect to the final asserted error, the officer's assessment of disproportionate or undue hardship was supported by the information provided by the professor of medicine in Nigeria to the effect that the drug Mr. Fadayomi requires is available in Nigeria and that effective care is available in Nigeria, especially to the better educated and economically empowered. The officer's decision withstands a somewhat probing examination on this point.
[10] For these reasons, the application for judicial review is dismissed. Counsel posed no question for certification and I am satisfied that no question of general importance arises on this record. No question will be certified.
JUDGMENT
[11] THIS COURT ORDERS AND ADJUDGES that:
The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-71-06
STYLE OF CAUSE: OLUWATOMISONA FADAYOMI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: JUNE 20, 2006
APPEARANCES:
RICK GARVIN FOR THE RESPONDENT
SOLICITORS OF RECORD:
BARRISTER, SOLICITOR, NOTARY PUBLIC
EDMONTON, ALBERTA
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA