Date: 20050131
Docket: IMM-9476-03
Ottawa, Ontario, this 31st day of January, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
PRECIOUS UWA ENABOIFOH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Ms. Enaboifoh is a Nigerian national who came to Canada in March 2000 and sought refugee protection. Her claim was rejected in November 2000. She applied for permanent residence on the basis of humanitarian and compassionate ("H & C") considerations in July 2001 with the sponsorship of her permanent resident spouse. A child was born to the couple in June 2002[1] and they were married in April 2003.
[2] Ms. Enaboifoh's H & C application was based on her relationship with her spouse, her establishment in Canada, including steady employment, and the difficulty she would face finding work in Nigeria. Further information was provided to the respondent in April 2003, by applicant's counsel, concerning the birth of the child and the marriage.
[3] A Pre-removal Risk Assessment application was denied in June 2003 and Ms. Enaboifoh was ordered removed. However, by consent, a stay was subsequently granted. The primary argument in support of the stay was that her spouse had been involved in a motor vehicle accident in January 2003, and her presence was necessary to him and her child.
[4] The H & C officer rendered her decision on November 20, 2003. She found that there was insufficient proof that the applicant would suffer undue, undeserved or disproportionate hardship if she was forced to apply for permanent residence in the normal course from outside of Canada. While her parents were deceased, she had a grandmother in Nigeria with whom she had lived prior to coming to Canada. The officer noted that the applicant could take the child with her if she returned to Nigeria and could make her application for permanent residence from there sponsored by her husband. In part, her decision reads as follows:
... I am not satisfied that separation from her spouse and son if she chooses to not have him accompany her and leaving her place of employment and community work while applying for permanent residence from Nigeria would result in unusual undeserved or disproportionate hardship.
[5] There is a conflict between the parties as to what information was before the officer when she made her decision. The officer noted that the applicant had indicated in June 2003 that her spouse was recovering from a motor vehicle accident but states in her reasons that no other documentation was provided regarding the effects of this accident nor was any further mention made of it in the applicant's more recent correspondence. The applicant disputes this statement and contends that the officer was made aware of the effects of the accident, including the husband's need for rehabilitative treatment and loss of earnings as a direct result.
[6] The applicant has sworn an affidavit in these proceedings to which are attached as exhibits a considerable number of documents relating to the treatment required by her husband following the accident and the effects that it had on his earning ability. She attests that this information was submitted to the officer in advance of her decision. None of this material appears in the certified tribunal record and the respondent objects to it as new evidence that was not before the officer when she made her decision.
[7] There is also no evidence on the record indicating that the officer received submissions from the applicant or her representatives about the effect of a negative H & C decision on the applicant's child. This too is disputed by the applicant. During the extended period the application was under consideration the applicant was represented at different times by three members of the immigration bar and one immigration consultant, not including her present counsel. None of the submissions on record from these representatives appear to have addressed the best interests of the infant child to any degree, apart from advising the respondent of the fact of his birth. However, the applicant contends that the officer was made aware of her concerns that her husband could not care for the child if she was required to return to Nigeria.
ISSUE
[8] Did the H & C officer fail to consider the best interests of the child?
ANALYSIS
[9] The standard for review of decisions of immigration officers in relation to H & C applications is reasonableness simpliciter: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The decision must be one that is supported by reasons that can stand up to a somewhat probing examination: Canada (Director of Investigation and Research, Competition Act) v. Southam, [1997] 1 S.C.R. 748 at paragraph 56.
[10] Where there is a child with a right to remain in Canada who is likely to be adversely affected by the decision, it must be clear from the reasons given by an immigration officer for rejecting a H & C application that the officer has been "alert, alive and sensitive" to the child's best interests: Baker, supra. However, as stated by Evans J.A., in Owusu v. Canada (Minister of Citizenship and Immigration) [2004] 2 F.C.R. 635 at paragraph 5:
... this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.
[11] When made without express reference to the best interests of the child, an assessment of the harm that the parent's removal is likely to cause may, depending on the circumstances, indicate that the officer failed to give those interests the careful attention that they require. Hawthorne v. Canada (Minister of Citizenship and Immigration) [2003] 2 F.C. 555 (F.C.A.).
[12] The respondent argues that it is clear from the certified tribunal record that the applicant failed to meet the burden described by Justice Evans in Owusu, supra and that the officer's reasons for decision cannot therefore be faulted for the lack of any extensive consideration of the effects of the motor vehicle accident on the father's ability to care for the child. The respondent contends that the officer's decision was supported by cogent reasons and complied with the statute and the guidelines[2]. The Court should not lightly interfere with the exercise of the officer's discretion: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358.
[13] In judicial review proceedings this Court is generally bound by the record before the decision maker. New evidence submitted by the parties that was not before the administrative body below should not, normally, be considered: Koulamallah v. Canada (Minister of Citizenship and Immigration 2003 FC 1043.
[14] It is not clear what information or material the officer had before her in making her decision. Both parties had the opportunity to submit further evidence or to cross-examine on the affidavits prior to the hearing and neither chose to do so. I am left with considerable doubt, given the poor quality of the submissions made on the applicant's behalf by her former legal representatives, that the material filed as attachments to her affidavit was in fact submitted to the officer.
[15] However, I am satisfied that the officer had enough information about the father's accident to have been put on notice that she should have been "alert, alive and sensitive" to the effects that might have on the child's best interests. Her reasons do not indicate that she gave those considerations the careful attention that they deserved and thus they do not withstand a somewhat probing scrutiny. Accordingly, I find that the decision was not reasonable and the application will be granted.
[16] The applicant requested that I consider certifying the same question of general importance identified by Justice Gibson at the trial level in Owusu v. Canada (Minister of Citizenship and Immigration), [2003] 3 F.C. 172 at para. 34:
Where, as on this matter, a Trial Judge finds a reviewable error on an application for judicial review of a decision engaging the best interests of a child or children, is the Trial Judge obligated to set aside the decision under review and to remit the matter for reconsideration and redetermination on the basis, not merely of the record that was before the decision-maker whose decision is set aside, but on the basis of that record and any new evidence and submissions that the applicant might determine to put before the officer conducting the reconsideration and making the redetermination?
[17] In my view, the question would not be dispositive of any appeal in this matter and I decline to certify it. However, I note that this question stemmed from the view that it would be inappropriate for the Court to remit the matter for a redetermination on fresh evidence where the reversible error had stemmed from the applicant's failure to submit adequate evidence to the officer. The Court of Appeal did not consider it necessary to answer this question in finding that, on the evidence, no reversible error had been made.
[18] In this case, it is not clear to me that responsibility for the error can be attributed to the applicant as it was in Owusu. Accordingly, I do not believe that it would be appropriate to remit the matter for reconsideration with the type of limitation contemplated by Justice Gibson's question. It is not uncommon for orders of this Court to provide that a question should be determined on the basis of both the old record and any relevant supplementary information: Begum v. Canada (Minister of Citizenship and Immigration) 2004 FC 165; Khan v. Canada (Minister of Citizenship and Immigration) 2003 FCT 93; Sy v. Canada (Minister of Citizenship and Immigration) 2002 FCT 905; and Shahinian v. Canada (Minister of Citizenship and
Immigration) (2002), 222 F.T.R. 311.
ORDER
THIS COURT ORDERS that the application is allowed and the application for consideration on humanitarian and compassionate grounds is remitted for reconsideration by a different officer on the basis of both the old record and any supplementary relevant information.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9476-03
STYLE OF CAUSE: PRECIOUS UWA ENABOIFOH
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 25, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: January 31, 2005
APPEARANCES:
Jackie Esmonde FOR THE APPLICANT
Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACKIE ESMONDE FOR THE APPLICANT
Roach, Schwartz & Associates
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario
[1] A second child was born in 2004.
[2]Immigrant Applications in Canada Made on Humanitarian or Compassionate Grounds, Chapter IP-5.