BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of Xochi Bryan, Second Secretary (Immigration) at the High Commission of Canada in Accra, Ghana (the “Visa Officer”), dated September 15, 2005, refusing the applicant’s application for permanent residence because she did not meet the requirements set out in the definition of “dependent child”.
[2] The applicant’s mother is a permanent resident in Canada and, on June 10, 2004, she submitted a sponsorship application for her daughter, the applicant. That application was approved by letter dated July 5, 2004. Based on this approval, the applicant then applied to the visa post in Ghana for permanent residence in Canada as a member of the family class.
[3] On September 15, 2005, the Visa Officer found that the applicant did not meet the definition of a “dependent child” for the following reasons:
At the time of the submission of your sponsorship undertaking, you were over the age of 22 years, therefore you were examined as an overage dependent. By your own admission, you were not enrolled in any courses between August 2004 and January 2005. In addition, you are currently studying only on a part-time basis (Monday to Friday from 6pm to 9pm and all day on weekends). Therefore, since before the age of 22 years, you have not been continuously enrolled in and attending a post-secondary institution and actively pursuing a course of academic, professional or vocational training on a full-time basis. As a result, you do not meet the definition of a member of the family class.
[4] At the hearing before me, learned counsel for the applicant limited herself to a single question: Should the respondent, given the circumstances, have considered the applicant’s case on humanitarian and compassionate (H&C) grounds?
[5] Subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) states:
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25. (1) The Minister shall, upon request of a foreign national who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations.
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25. (1) Le ministre doit, sur demande d’un étranger interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient.
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[6] The applicant submits that humanitarian and compassionate considerations should be taken into account pursuant to section 25 when a person is found not to be a member of the family class. According to the applicant, it is clear that section 25 does not have to be engaged only by request of an application, but should be used by the respondent in situations where circumstances, such as the ones at bar, so demand. Failure to use such discretion should be reviewed by this Court when appropriate. I do not agree.
[7] First, subsection 25(1) of the Act makes it clear that absent a request of a foreign national who is inadmissible or who does not meet the requirements of the Act, the Minister may, on the Minister’s own initiative, consider humanitarian and compassionate grounds (emphasis is mine). As no request for an assessment of humanitarian and compassionate considerations had been made in the case at bar prior to the Visa Officer’s decision dated September 15, 2005, the Minister was under no obligation to make such an assessment (see Javed Mustafa v. The Minister of Citizenship and Immigration, 2006 FC 1092).
[8] Furthermore, the applicant saw it fit, in November 2005, after the impugned decision was rendered, to make a formal request for an assessment of the case on humanitarian and compassionate grounds. There is no indication that an H&C decision has been rendered yet, and it is conceded by the applicant that no mandamus has been sought by her requesting that a decision be made in that regard. In the circumstances, the H&C application is a separate matter which cannot be dealt with by this Court by way of this application for judicial review.
[9] For all the above reasons, the application for judicial review is dismissed.
[10] Counsel for the applicant proposes the following question to be certified pursuant to subsection 74(d) of the Act:
Does procedural fairness, equity and the stated objectives of the act demand that the Respondent give an Applicant an opportunity to make submissions, pursuant to S. 25 of the Act, in such situations, in which the Applicant was a member of the “Family Class” at the time of the submission of his or her application for a permanent resident visa, but largely due to factors beyond the applicant’s control, the principle being the length of the processing time of the application, which is primarily dictated by the respondent, at the time the said application is finally assessed he or she is no longer a member of the said class?
[11] Upon considering the written representations made on behalf of the parties with respect to this request for certification, I agree with counsel for the respondent that the applicant has failed to show that the proposed question is a serious question of general importance which would be dispositive of the appeal (see Zazai v. Minister of Citizenship and Immigration, 2004 FCA 89). Accordingly, there will be no certification.
Ottawa, Ontario
September 29, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7199-05
STYLE OF CAUSE: OLUBUNMI OLAJUMOKE FADAIRO v. THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 6, 2006
REASONS FOR JUDGMENT: Pinard J.
DATED: September 29, 2006
APPEARANCES:
Ms. Wennie Lee FOR THE APPLICANT
Ms. Janet Ghisholm FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lee & Company FOR THE APPLICANT
Barristers and Solicitors
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada