Date: 20001207
Docket: IMM-4869-99
BETWEEN:
YASIR NOOR MOHAMED
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant seeks to set aside a decision of immigration officer Mrs. June Levato, dated July 7, 1999, pursuant to which his application for humanitarian and compassionate consideration was denied.
[2] The relevant facts can be summarized as follows. The applicant, born on July 12, 1977, is a citizen of Kenya. On July 24, 1998, he filed an application for permanent residence in this country, with a request that his application be processed from within Canada on humanitarian and compassionate grounds. In support of his request, the applicant submitted that the following reasons justified that he be allowed to file his application from within Canada:
| Prior to arriving in Canada, I lived with my mother, Halima Mohammed Bunu in Monbasa, Kenya. I was a full time student graduating from Kenya Secondary School on January 24, 1996. During this time my grandmother and two sisters lived with us. One of my sisters, Lubna Noor Mohamed lives with my mother. My other sister, Zahra Noor Mohamed is now living in Nairobi. |
| My mother is not working and would not be able to support me financially if I were to return to Kenya to continue my education. In addition, because of the political instability in the country, it is difficult to pursue an education on a full time basis. |
| My father is a landed immigrant and lives with his second wife, (my stepmother) and children. I have lived with them since arriving in Canada and my father supports me financially. I have a younger half-brother and half-sister who I have a close relationship with. It would be difficult to leave this family unit and return to Kenya. In addition, my educational opportunities are much better in Canada than they are in Kenya. Since my father would continue to support me financially I would like to continue my post secondary education in Canada. |
[3] Further, the applicant stated that he would suffer the following hardship if he had to submit his application at a visa office outside of Canada as required by subsection 9(1) of the Immigration Act (the "Act"):
| The hardships [sic] which I would endure in returning to Kenya to make the application are [sic] the following. I would be removed from a family unit which is very supportive emotionally and financially. I would incur great financial costs in returning to Kenya and then returning to Canada if successful. |
Subsection 9(1) of the Act reads as follows:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
[4] The applicant came to Canada on September 1, 1997, on a visitor's permit, to visit his father, a landed immigrant, who was granted refugee status in 1991. I should point out that on August 26, 1996, the Canadian High Commission in Nairobi advised the applicant that it could not proceed with his application for permanent residence in Canada until an undertaking of assistance from Canada had been received. I understand from counsel that the applicant's father was unable, at that time, to provide the required undertaking and, as a result, the applicant's application never went forward. The letter from the Canadian High Commission, dated August 26, 1996, reads as follows:
| This refers to your visit to our office on the 20th of August 1996 concerning your application for permanent residence in Canada. |
| We can not proceed with the processing of your case until we receive an Undertaking of Assistance from Canada. Please request your father to contact the Case Processing Centre, P.O. Box 6100, Station "A"' Mississauga, Ontario, L5A 4H4, Canada. Fax 905-803-7392, in order to submit an Undertaking on your behalf. |
| We note that your passport does not have an expiry date and suggest you bring this to the attention of the Kenya passport office. Please forward a photocopy of page 4 of your passport when the expiry date has been inserted by the passport office. |
It appears from the applicant's affidavit, dated September 18, 1999, that he came to Canada in September 1997 because his application for permanent residence had not been successful. At paragraph 9 of his affidavit, he states "[T]hat after the applicant got frustrated with the delay tactics by the Immigration officers he came to Canada ...".
[5] On August 18, 1999, a departure order was made against the applicant by a senior immigration officer, pursuant to subsection 27(4) of the Act.
[6] The applicant was interviewed by the immigration officer on April 21, 1999, and on July 7, 1999, she wrote to the applicant to inform him that his application for humanitarian and compassionate consideration was denied. The letter reads, in part, as follows:
| This refers to your request for processing from within Canada on humanitarian and compassionate grounds. |
| In order for your request to be approved, humanitarian and compassionate considerations are assessed to determine whether an exception from subsection 9(1) of the Immigration Act, the requirement to apply for and obtain an immigrant visa prior to coming to Canada, will be granted. |
| On 7/7/1999, a delegate of the Minister of Citizenship and Immigration reviewed the individual circumstances of our request for an exemption from the requirement of subsection 9(1) and decided that an exemption will not be granted for your application. |
[7] This is the decision which the applicant seeks to set aside. The applicant raises two issues for determination. Firstly, he submits that the immigration officer's conduct and decision raise a reasonable apprehension of bias. The applicant also submits that the evidence demonstrates bad faith on the part of the visa officer. In my view, the applicant's submissions are without merit.
[8] Secondly, the applicant submits that the immigration officer, in failing to consider the totality of the evidence, committed a reviewable error. Specifically, the applicant submits that the immigration officer failed to assess the risk to which the applicant might be exposed should he be forced to return to Kenya.
[9] In my opinion, the applicant's submissions in regard to the second issue must also fail. Mr. Hoffmann, for the Minister, referred me to the applicant's application for permanent residence and to the supplementary information given by him in regard to his humanitarian and compassionate request. I have already referred to and quoted the answers given by the applicant in response to questions 3(A) and (B) of the official questionnaire (see paragraphs 2 and 3 above).
[10] Mr. Hoffmann also referred me to the Visa Officer's Recommendation / Decision and Rationale, where the visa officer makes the following comments:
| After careful consideration of the information received at interview, I am not satisfied that undue, undeserved or disproportionate hardship would exist if subject returned to Kenya. |
| Subject has only been outside of Kenya since August 1997, a period less than two years. In Kenya, subject has both mother and siblings residing there. |
| Subject states he wishes to live with his father in Canada, a father he lived with in Kenya until his father came to Canada in 1990. Prior to coming to Canada, there was a seven year separation between father and son. |
| Subject's father is not in a position to financially support subject. He, himself, lives in subsidized housing, has four other children of his own and goes to school. |
| Subject has not attended school or been employed since his arrival in Canada. |
| His integration into Canadian society appears to be minimal. |
| Given the above, I am refusing the application for permanent residence. |
[11] Mr. Hoffmann points out, on the basis of the evidence before the visa officer, that the applicant did not advance any evidence regarding the risk to which he might be exposed should he return to Kenya. It is obvious why the applicant wishes to remain in Canada. His reasons appear quite clearly in the answers he gave to questions 3(A) and (B) of the questionnaire. Nowhere in those answers does he allude to a possible risk of return.
[12] In the circumstances, I cannot agree with the arguments put forward by Mr. Sirlin on behalf of the applicant. Mr. Sirlin argued that the visa officer never properly addressed the risk factor. In my view, the visa officer did not address the risk factor simply because the applicant did not raise any such risk with the visa officer.
[13] The applicant's concerns appear to be related to his education. He states, in answer to question 3(A) of the questionnaire, that should he return to Kenya, his mother would not be able to support him financially. On the other hand, he states that his father has been supporting him financially since he has been in Canada. Why his father could not support him financially if he returned to Kenya, I do not know. There is no evidence in that regard in the record. Although the applicant states that he would like to continue his post secondary education in Canada, he does not appear to have studied while in Canada. The visa officer states, quite correctly, in her reasons for denying the applicant's request, that the applicant "has not attended school or been employed since his arrival in Canada".
[14] I, like the visa officer, am of the view that the applicant's father does not appear to be in a position to financially support his son, other than providing room and board. I should perhaps add that in regard to the applicant's family situation, my impression is that the applicant has not been totally candid with this Court.
[15] In conclusion, it is my opinion that there is simply not sufficient evidence to support the forceful arguments put forward by Mr. Sirlin who, under difficult circumstances, was a credit to the Bar. Unfortunately, Mr. Sirlin was unable to convince me of the correctness of his position. Consequently, I am of the view that on the evidence before her, the immigration officer made no reviewable error, either of fact or of law, in concluding that she was not satisfied "that undue, undeserved or disproportionate hardship would exist if subject returned to Kenya".
[16] For these reasons, this application for judicial review will be dismissed.
Marc Nadon
JUDGE
OTTAWA, Ontario
December 7, 2000.3