Federal Court Decisions

Date: 20050429

Docket: IMM-3264-04

Citation: 2005 FC 594

Ottawa, Ontario, April 29, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON

BETWEEN:

MAVIS HOWELL

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]    Ms. Howell is a citizen of Grenada who arrived in Canada on a visitor's visa on October 11, 1996. Since the expiry of the visa, she has been living here illegally. Her sister and brother live in Canada. Her mother lives in Grenada. She seeks judicial review of the decision of an immigration officer denying her request for an exemption from the legislative requirement to apply for permanent residence outside of Canada on the basis of humanitarian and compassionate (H & C) grounds. Her application must fail.

[2]    On November 4, 1999, Ms. Howell made an application for permanent residence from within Canada. Her application was sponsored by her husband, a Canadian citizen. In support of her application, Ms. Howell told the immigration officer that she had moved to 22 Close Avenue in Toronto in October, 2000, with her husband. The lease agreement that she provided to support her statement was signed by a Mr. P. Tiwari. The application was refused on the basis that the marriage was one of convenience.

[3]    On April 24, 2001, Ms. Howell claimed refugee protection. A conditional order for her removal was issued. Her claim for refugee protection was rejected by the then Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board on the basis that the claim was not credible. Ms. Howell's application for leave for judicial review was denied.

[4]    On May 11, 2001, she filed another H & C application, which was refused. Her application for leave was denied.

[5]    On June 14, 2002, she completed her third H & C application. She listed her marital status as "legally separated". Her application was mailed to the case processing centre in Vegreville along with a covering letter from counsel dated June 20, 2002. In the letter, counsel explained that she represented both Ms. Howell and Mr. Parmashwar Tiwari, a citizen of Trinidad, whose H & C application was also enclosed. Counsel advised that the couple "are in a common-law relationship and have a Canadian son together". The only representations regarding the child were those of counsel as set out below:

Their son was born on September 13, 2000. As they are from different countries, it would be devastating to them if they had to be separated which would break up their family. They also feel that it is in the best interest of their child to stay in Canada. They cannot provide the basic necessities of life such as proper food, shelter and education if they have to leave Canada.

[6]    The correspondence also indicated enclosure of the application fee, various identifying documentation, Ms. Howell's marriage certificate, school letters with respect to Mr. Tiwari, job reference letters, supporting letters from family, and copies of Ms. Howell's T-4 statements.

[7]    On February 13, 2003, the file was transferred to the Canada Immigration Centre (CIC) in Entobicoke. On March 18, 2003, a psychological report in relation to Mr. Tiwari was forwarded to the CIC. On January 28, 2004, the CIC requested updated applications for both Ms. Howell and Mr. Tiwari. The requested documents were couriered to Entobicoke on February 20, 2004, again accompanied by a covering letter from counsel. The letter, in its entirety, reads as follows:

Enclosed herewith please find my clients' updated Applications for Permanent Residence and Supplementary Information forms as per your request. My clients have a Canadian child together.

Their son is 3 ½ years old. It would cause great devastation if they were separated as a family. I ask that you take into consideration Section 25 of IRPA and IP5 in this regard as well as Canada's obligations and commitments as signatories to the Declaration of the Rights of the Child. I ask that you pay special attention to Principle 6 which states "the child, for the full and harmonious development of his personality, needs love and understanding. He shall wherever possible, grow up in the care and under the responsibility of his parents". I attach a copy of same for your review and submit that it is clearly in the best interest of all parties involved and in particular, the children for this family to remain together. I also attach UN Convention on the Rights of the Child.

I look forward to hearing from you with respect to the status of this matter at your earliest opportunity and thank you for your assistance.

[8]    By letter dated March 19, 2004, the immigration officer refused Ms. Howell's application. The officer's notes were appended as reasons for the rejection. The immigration officer was not satisfied that Ms. Howell had been in Canada for so long, or had become so established, or that her circumstances were such that she would experience unusual, undeserved or disproportionate hardship if she had to apply for an immigrant visa outside of Canada. A number of factors were listed to support this conclusion. The immigration officer stated:

-          Ms. Howell has failed to provide satisfactory evidence to support that she is in a common-law relationship with Mr. Tiwari. At the time she made her 1999 application, she stated that she was married to Mr. Thompson and that she had moved with Mr. Thomspon, in October, 2000, to 22 Close Avenue, an address that she now purports to have shared with Mr. Tiwari since October, 2000;

-          During her interview with CIC in December, 2000, Ms. Howell failed to divulge the existence of her child. She failed [on this application] to provide satisfactory proof of the existence of the child;

-          After acknowledging receipt of the Convention on the Rights of the Child, the immigration officer, based on the evidence, was not satisfied that the child would suffer hardship if he had to follow either parent back to that parent's homeland considering the child's young age and the absence of any special needs. Further, given the extent of Ms. Howell's extended family support for Ms. Howell, the officer was not satisfied that the support would not also be extended to any child that she has;

-          Ms. Howell had not demonstrated that she had upgraded her skills or acquired assets or funds since coming to Canada;

-          The authenticity of the letter purporting to be from Pharm Canada and relating to Ms. Howell's volunteer activity in the company's office was questionable;

-          The family ties in Canada and Grenada were noted. The officer was not satisfied that Ms. Howell's ties to Grenada (her mother with whom she had previously resided) were not sufficiently strong such that she would have no support there. Due to her employment history in Grenada, she could find suitable employment there.

[9]    The sole issue is whether the immigration officer was alive, sensitive and alert to the best interests of the child as required by law. Ms. Howell claims that the officer did not properly consider the Convention and merely paid lip service to it. Additionally, the officer failed to consider relevant evidence, specifically the psychological assessment.

[10]                        In my view, the conditions delineated in Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 (F.C.A.) are dispositive. Mr. Justice Evans, for a unanimous court, stated that while an immigration officer considering an H & C application must be alert, alive and sensitive to, and must not minimize, the best interests of children who may be adversely affected by a parent's deportation, the duty only arises when it is sufficiently clear from the material submitted to the decision maker than an applicant relies on this factor, at least in part. The applicant has the burden of adducing proof of any claim on which the H & C applicant relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.

[11]                        Here, the officer had reasonable grounds upon which to doubt the existence of the child given Ms. Howell's immigration history and her failure to mention a child at her previous H & C interview, which occurred subsequent to the child's birth. I do agree with Ms. Howell that there was no requirement to include the child's name as a dependant on her application form. The "instructions for completing this form" on the first page of the application form specifically define the word "dependant" for purposes of completing the form as "the principal applicant's spouse or dependent child who is not a Canadian citizen or permanent resident".

[12]                        In any event and notwithstanding the immigration officer's doubts regarding the child's existence, the officer did address the issue of the child's best interests in the context of what was before the officer. The only references to the child were the previously noted, generalized comments contained in counsel's correspondence. There was not a shred of evidence to support those comments.

[13]                        Ms. Howell claims that the psychologist's report confirms the allegations contained in her counsel's correspondence and that the officer failed to consider the report. It may well be that the officer did not consider the psychologist's report because there is no reference to it in the notes. However, even if it had been considered, it could not have assisted Ms. Howell. The report related to Mr. Tiwari; it did not relate to Ms. Howell or the child. The only conclusion drawn by the psychologist was that Mr. Tiwari "is genuinely distressed about the prospect of being separated from his wife and son". All comments regarding Trinidad and Grenada emanated from Mr. Tiwari and the psychologist expressly stated that to be the case. Thus, they confirm nothing. Rather, they constitute a recitation of what the psychologist was told by Mr. Tiwari.

[14]                        Ms. Howell, through her counsel's correspondence, meets the first of the Owusu conditions because it is clear from the correspondence that she wishes to rely on the "best interests of the children" factor. She fails completely on the second condition - the obligation to provide evidence in support. The immigration officer cannot conduct an alert, alive and sensitive inquiry into the best interests of a child in a vacuum.

[15]                        The application for judicial review will be dismissed. Counsel did not suggest a question for certification and none arises on these facts.

ORDER

THIS COURT ORDERS THAT the application for judicial review is dismissed.

      "Carolyn Layden-Stevenson"