Date: 20001130
Docket: IMM-1341-00
BETWEEN:
OLAYEMI ANNE BADEJO
ESTHER ADENIKE BADEJO
JOSHUA OLUMAYOWA BADEJO
THROUGH THEIR LITIGATION GUARDIAN
OLAYEMI ANNE BADEJO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review brought pursuant to section 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of the decision of an immigration officer dated February 29, 2000. In his decision, the immigration officer determined there were insufficient humanitarian and compassionate grounds to exempt the applicant from the requirements of subsection 9(1) of the Act.
ORDER SOUGHT
[2] The applicants state in the Application for Leave and Judicial Review that they seek an Order quashing the above decision and an Order "requiring that the respondent process the application for landing from within Canada in accordance with the policy provisions set out in section IE 9 and or IP 5 of the immigration manual."
BACKGROUND FACTS
[3] The applicants are Olayemi Anne Badejo and her two children, Esther Adenike Badejo and Joshua Olumayowa Badejo (for which she is their litigation guardian). The applicants are citizens of Nigeria and arrived in Canada on September 11, 1997 to make a refugee claim. Ms. Badejo's refugee claim was denied and she is now subject to a Removal Order. On February 19, 1999 Ms. Badejo submitted a request for visa exemption on the basis of humanitarian and compassionate ("H & C") grounds. She was interviewed February 11, 2000. The exemption was refused on February 29, 2000. In reaching this decision, the immigration officer's reasons state in part the following:
| Refusal. Ms. Badejo has not satisfied me that she would suffer disproportionate, undue or undeserved hardship. Ms. Badejo has stated that she does not fear the current government, but fears the military may reacquire power. The statement that her face was dunked in acidic water is noted; however, an observation of Ms. Badejo's face does not reveal any visible scars. She does not mention suffering any visual impairment because of this incident. Her fear of her uncle is noted; however, he has not proven to be a problem when she does not live with him. Having interviewed Ms. Badejo's children, I do not see how their behaviour has improved since their meeting with Dr. Pilowsky. It is apparent from the interview that the children have behavioural problems. Dr. Pilowsky has stated that "apparently Esther (daughter) has not improved" in her behaviour. Neither the applicant, nor her counsel state that treatment for Esther can not be received in Nigeria. Esther's treatment in Canada has proven unsuccessful. |
| Ms. Badejo never mentioned any problems her parents had with the Nigerian government or police during the interview. In the past, she told her psychologist that her father is missing. I accept Dr. Pilowsky's statements that Ms. Badejo suffers from "depression and anxiety"; however, this is not a disproportionate hardship. According to Dr. Pilowsky, much of her psychological problems stem from uncertainty regarding her immigration status. That uncertainty is removed with this decision. |
| Another hardship cited by the applicant is the lack of available employment. It is noted that Ms. Badejo was employed with reputable firms in a professional capacity. She stated this on her application and at the interview. In a submission with the application, counsel states, "Before her arrival in Canada she was a highly employed person". Counsel also states that "Ms. Badejo has been able to financially establish herself in Canada and is solely responsible for her two children. She is a clearly self-reliant, (sic) individual and will not ever want to rely on the Canadian tax payer". This is not completely correct, as Ms. Badejo has typically been employed through temporary agencies. Ms. Badejo has also relied on social services from 18 June 1998 until 31 December 1999 for additional funds. Her volunteer work with Canadian Blood Services, her daughter's school and her church are commendable. She has recently enrolled in a keyboarding course at Centennial College, and attended a YWCA 3 week basic computer literacy program. Recently, she has purchased furnishings for her apartment. Ms. Badejo's actions during her short time in Canada have not satisfied me that she is established. I do not believe she would suffer disproportionate, undue or undeserved hardship if required to apply as stated in A9(1). |
[4] The applicant, Olayemi Anne Badejo is the mother of two children, a daughter, Esther born May 19, 1994 and a son, Joshua born February 25, 1997. Joshua is an asthmatic and has to use a puffer on a regular basis.
[5] The applicant, Olayemi Anne Badejo filed an affidavit on her application for judicial review.
APPLICANT'S SUBMISSIONS
[6] The applicants frame the issues as follows:
| A. Did the officer err in law because he failed to properly assess the impact of removal on the children and, in particular, did he misconstrue the evidence with respect to the impact of removal on the son? |
| B. Did the officer misconstrue the totality of the evidence before him? |
| [7] The applicants submit that the rationale behind Baker v. Canada (Minister of |
Citizenship and Immigration), [1999_] 2 S.C.R. 817 does not restrict consideration to the impact on Canadian-born children. Ms. Badejo argues her children are established in Canada and both have medical and/or psychological problems that are being treated here. Ms. Badejo further argues that the reasons for the decision do not contain a sympathetic and careful assessment of the interests of the children as required by Baker.
| [8] Ms. Badejo submits that the officer's assessment as to the best interests of Joshua, |
who suffers from asthma, is defective as she clearly stated that there was no medicines available and that she could not afford them. She argues the officer's decision incorrectly notes that "no submissions mention a lack of available treatment." Ms. Badejo argues the officer ignored her submissions concerning treatment and states in her affidavit that the officer had undertook to contact a doctor in Nigeria to determine if treatment was available.
| [9] With regards to her daughter Esther, Ms. Badejo submits the officer was factually |
incorrect in concluding that there was no evidence that Esther could not receive treatment for her behavioural problems in Nigeria. Ms. Badejo argues that this fact was indicated in her uncontradicted affidavit. Furthermore, she argues that in the face of contradictory evidence, where she files an affidavit but the respondent relies only on notes, the jurisprudence of this Court indicates that preference will be given to the uncontradicted affidavit.
| [10] Ms. Badejo submits the officer gave very limited consideration to her anxiety, |
depression, suicidal risk and the psychology report. She argues the officer totally misconstrued the report by suggesting that her psychological problems stem from the uncertainty regarding her immigration status and by suggesting that she would improve by his rejecting her application. Ms. Badejo further argues that the officer's consideration of her fear at the hands of her uncle in Nigeria was misconstrued as she clearly indicated to him that she would have to return to her uncle's house because she had nowhere else to go. Thus, Ms. Badejo submits the officer misconstrued and ignored the evidence before him and erred in law by doing so.
RESPONDENT'S SUBMISSIONS
| [11] The respondent submits that the immigration officer's decision must be |
reasonable, that he must exercise his discretion in a reasonable manner with consideration given to the particular circumstances of the case. The respondent submits that the appropriate standard of review is reasonableness simpliciter.
| [12] The respondent submits the officer was alert to the H & C grounds and considered |
the hardship that a negative decision would have on the applicant and her children. The reasons of the officer clearly indicate that all circumstances were taken into account, including the children and their degree of establishment in Canada. The officer's reasons indicate that all factors put forward by the applicants were considered when he concluded they would not suffer undue or disproportionate hardship if required to apply for immigration to Canada in the normal way.
| [13] With regard to Ms. Badejo's submissions concerning her family and where she |
would go if she returned to Nigeria, the respondent submits that Ms. Badejo has all her family (including a brother and sister) in Nigeria and was well-employed there. The respondent argues that in these circumstances, little weight could be placed on Ms. Badejo's allegation that she would have to return to her uncle's house because she had no where else to go.
| [14] The respondent submits no facts in the material filed in support of the applicants' |
application indicate the immigration officer failed to fully and fairly assess the applicants' application for an extraordinary exemption from the requirements of the Act.
ISSUE
| [15] Did the officer make a reviewable error when he denied the applicants' |
humanitarian and compassionate application made pursuant to subsection 14(2) of the Immigration Act?
LAW
| [16] The relevant sections of the Act are: |
| 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. |
| 114.(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
| 114.(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
| ANALYSIS AND DECISION |
| [17] The applicant, Ms. Badejo, in this application filed an affidavit which stated in part |
| as follows: |
| I also stated during the H & C interview that my son, Joshua, is suffering from bronchial asthma. I provided a letter from the treating physician confirming this. I also stated to the immigration officer that it [sic] Joshua requires "puffers" and a special mask to treat his asthma. I also advised the immigration officer that it was very expensive for me to buy these medicines for Joshua and that I would not be able to afford these types of medicines in Nigeria. I also stated to the immigration officer, based on my knowledge of the medical care and availability of medicines in Nigeria that probably I would not be able to find the medicines that Joshua requires to treat his asthma. At the end of the interview, the immigration officer undertook to contact a doctor in Nigeria to determine if treatment would be available for Joshua in Nigeria. If he would have requested this information from me I would have provided it. I attach as Exhibit "B" to this my affidavit, copies of the documents that I submitted to the immigration officer in support of my H & C submissions for Joshua. |
| [18] A review of the immigration officer's notes show no reference to the undertaking |
| to contact the doctor in Nigeria. The immigration officer did not file an affidavit. |
| [19] As to the issue of the admissibility of affidavit evidence on judicial review, there |
| has always been some reluctance to entertain evidence that was not before the tribunal being reviewed, however, that issue does not arise here. There is no transcript kept of those proceedings and the officer's notes, which are not a complete transcript, is usually the only record of the interview. In the present application, there is only the affidavit evidence of the applicant, Ms. Badejo in relation to her assertion that the officer undertook to contact a doctor in Nigeria to determine if treatment would be available for her son's asthma in Nigeria. The officer did not file an affidavit to refute this statement nor does his notes make mention of it. The evidence submitted in paragraph 7 of the affidavit is not in conflict with any other evidence and the affiant was not cross-examined on the affidavit. The affidavit evidence was submitted to clarify what the applicant, Ms. Badejo claims was said at the interview. In these circumstances, I will accept the evidence contained in paragraph 7 of the affidavit. There is no evidence that a doctor was contacted. The applicant, Ms. Badejo states that had she known that the officer was not going to contact a doctor, she would have. |
| [20] There is no duty on an immigration officer to write a letter to a doctor in Nigeria. |
| I am of the view, however, that once the officer gave the undertaking to write a letter, it was a breach of the duty of fairness owed to the applicants not to write the letter. This is not because the officer was required to write the letter, but because he undertook to write the letter. He must follow through on his undertaking. In my opinion, this failure is a breach of the duty of procedural fairness owed to the applicants and therefore, the application for judicial review must be allowed and the application referred to a different immigration officer for consideration. |
| [21] Because of my disposition above, it is not necessary for me to deal with the |
| remaining issues raised in the application. |
| [22] Neither party wished to certify a serious question of general importance. |
| ORDER |
| [23] IT IS ORDERED that the application for judicial review is allowed. |
| "John A. O'Keefe" |
| J.F.C.C. |
| Toronto, Ontario |
| November 30, 2000 |
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
| COURT NO.: IMM-1341-00 |
| STYLE OF CAUSE: OLAYEMI ANNE BADEJO |
ESTHER ADENIKE BADEJO
JOSHUA OLUMAYOWA BADEJO
THROUGH THEIR LITIGATION GUARDIAN
OLAYEMI ANNE BADEJO
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| PLACE OF HEARING: TORONTO, ONTARIO |
| DATE OF HEARING: TUESDAY, NOVEMBER 28, 2000 |
REASONS FOR ORDER
| AND ORDER BY: O'KEEFE J. |
| DATED: THURSDAY, NOVEMBER 30, 2000 |
APPEARANCES:
Mr. Lorne Waldman
For the Applicants
Mr. Stephen H. Gold
| For the Respondent |
SOLICITORS OF RECORD: Mr. Lorne Waldman
| Barrister & Solicitor |
| Jackman, Waldman & Associates |
| 281 Eglinton Ave. East |
Toronto, Ontario
| M4P 1L3 |
| For the Applicants |
| Morris Rosenberg |
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20001130
Docket: IMM-1341-00
BETWEEN:
OLAYEMI ANNE BADEJO
ESTHER ADENIKE BADEJO
JOSHUA OLUMAYOWA BADEJO
THROUGH THEIR LITIGATION GUARDIAN
OLAYEMI ANNE BADEJO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER