Date: 20050117
Docket: IMM-2116-04
Citation: 2005 FC 50
Ottawa, Ontario, this 17th day of January, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
PETER UHUANGHO and JUSTINA UHUANGHO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] Mr. and Mrs. Uhuangho seek judicial review of the decision of Immigration Officer G. St. Hilaire, dated February 19, 2004, which denied their request for an exemption, pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"), to apply from within Canada for permanent residence on humanitarian and compassionate grounds.
[2] The Uhuangho's are from Nigeria. They came to Canada in 1997 and claimed Convention refugee status. Their claim was denied and leave for judicial review of that decision was not granted. A daughter, Edna, was born in March 1999. A son, Maxwell, was born to the Uhuanghos in July 2002. In December 2001, the couple submitted their application for humanitarian and compassionate ("H & C") consideration. A pre-removal risk assessment ("PRRA") was also initiated and remained pending as of the date Officer St. Hilaire rendered her decision.
[3] In their H & C application, the Uhuanghos submitted a large number of references from church and community members and documentation regarding their personal development through education and volunteer work together with information about human rights problems in Nigeria. Their grounds for requesting exemptions from the immigrant visa requirements included fears for their personal safety in Nigeria, the financial hardship they would suffer if forced to apply for residence from outside Canada, the emotional trauma they would suffer if removed, and the harm their Canadian born children would suffer if the applicants were persecuted in their home country.
[4] Mr. and Mrs. Uhuangho were given an opportunity in 2003 to provide additional information before the review was concluded, and in particular, to provide details as to the nature of the personal risk they would face if returned to Nigeria. As counsel for the applicants was unsure of the procedure to follow with the transition to IRPA, and the PRRA application was then pending, she opted to focus her submissions on non-risk based compassionate considerations and requested that the officer grant the Uhuanghos a personal interview to allow them to address any concerns she might have with their application. A further group of supporting letters was submitted together with more information respecting the applicants' educational achievements.
[5] The officer elected to complete her review without interviewing the Uhuanghos. She concluded that there were insufficient grounds to warrant waiving of the permanent resident visa requirements of subsection 11(1) of IRPA.
Issues:
[6] The primary issue in this application is whether the officer erred in failing to properly take into account the best interests of the Canadian-born children. In written submissions not pressed in oral argument, Mr. and Mrs. Uhuangho contended that the officer had breached her duty of fairness to them in failing to conduct a personal interview and had fettered her discretion by considering guidelines in reaching her decision.
[7] It was not necessary for the officer to conduct a personal interview with the applicants in order to fairly consider their request. As noted in Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635 (F.C.A.) at paragraph 8, "H & C applicants have no right or legitimate expectation that they will be interviewed". Accordingly, there was no breach of the duty of fairness in this respect. However, in the particular circumstances of this case it may well have been advisable for the officer to have met with the Uhangho's before reaching a decision.
[8] The applicants also argued that the guidelines[1] that the officer indicated she considered in reaching her decision imposed mandatory rules rather than provided guidance and by their very nature fettered her discretion. The guidelines go much further than simply guide and establish a code of conduct that immigration officers must follow, the applicants contend. The respondent submits and I agree, that there is no evidence before me that the officer's discretion was in any way fettered by the guidelines. Guidelines do not bind the decision-maker and are a useful administrative tool: Legault v. Canada (Minister of Citizenship and Immigration [2002] 4 F.C. 358 para.20.
Best Interests of the Children
[9] At the hearing of this matter at Calgary on November 17, 2004, I questioned counsel as to the status of the pending PRRA application as it appeared that Officer St. Hilaire had put aside any consideration of risk factors in her assessment. The officer's written reasons for refusing the H & C application indicate that her review assessed only non-risk factors "[b]ecause the additional information received addressed only the humanitarian and compassionate aspect of their application...". However, risk factors had been identified in the initial H & C submissions and it would have been preferable, in my view, for the officer to have considered the PRRA report prior to arriving at her decision.
[10] Following the hearing, counsel for the applicants advised the Court by letter that a negative PRRA decision was rendered on June 21, 2004 and was served on Mr. Uhangho on December 9th, 2004. The Court was further advised that in a letter dated December 9, 2004 from an Immigration Enforcement officer in Winnipeg, where they currently reside, the Uhuanghos were invited to make written submissions respecting risk to the children if they were to accompany the parents to their home country, as such risk "...has not yet been addressed."
[11] In her reasons, Officer St. Hilaire made these comments about the interests of the Uhuangho children:
The best interests of the applicants two Canadian born children have been considered. Their daughter is almost 5 years old and their son is 1½. They are not yet at an age where they would recognize or experience ties or attachment to any country. As with all children of their age, their attachment is with their parents. Naturally, it would be in the children's best interest to be with their parents. I am satisfied that the children are young enough and would be able to adjust with little difficulty to a move to Nigeria with their parents. The Canadian citizenship of their children is a status that will always remain no matter where they reside.
[12] The applicants submit that the decision does not meet the reasonableness simpliciter standard set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The officer's conclusion that the children are young enough and would be able to adjust with little difficulty to a move to Nigeria with their parents minimizes the children's interests and does not stand up to a somewhat probing scrutiny.
[13] The applicants further argue that independent documentary evidence about the situation in Nigeria was part of the Record. It should have been expressly considered in regard to the children's interests. The documentary evidence indicates that Nigeria is not a place where Canadian children would have little trouble adjusting. There is also violence between Muslims and Christians. In all, the material submitted to the officer met the burden and standard of proof identified by the Court of Appeal in Owusu, supra.
[14] The respondent submits that it is up to the officer to determine the weight to be given to the children's interests and the evidence, and the presence of children does not call for a certain result: Baker, supra; Legault, supra; Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555. The consideration of a child's best interests must be realistic and based on the submissions of the applicants: Owusu,supra.
[15] It must be clear from the reasons given by an immigration officer for rejecting an H & C application that the officer has been "alert, alive and sensitive" to the best interests of a child with a right to remain in Canada who is likely to be adversely affected by the decision: Baker, supra.
[16] A bald assertion by the officer that the best interests of the children have been considered is not sufficient to meet the Baker standard. The interests must be "well identified and defined": Legault, supra at paragraph 12. That which will suffice to indicate what those interests may be and to demonstrate that the officer has adequately considered them will depend upon the circumstances of each case.
[17] In this case, it was unrealistic, given the age of the children, to consider any scenario other than that if the parents were to return to Nigeria the children must necessarily accompany them there. In those circumstances, it was necessary for the officer to be "alert, alive and sensitive" to potential risks to the children in considering their best interests.
[18] It will not be necessary for a H & C officer to wait for and consider a PRRA report before arriving at a decision in every case. But in this matter, I believe that it was unreasonable to compartmentalize the two processes. Where risk to the children in returning to Nigeria was alleged, it had to be clearly addressed before concluding that no disproportionate hardship would be caused to the family by denying the request for an exemption. Accordingly, this application will be allowed and the matter remitted for a fresh determination by a different officer.
[19] The parties having jointly requested time to consider whether to propose serious questions of general importance, the respondent will have one week from the date of the issuance of these reasons and the applicants one week thereafter to submit questions for consideration before the formal Order is issued.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2116-04
STYLE OF CAUSE: PETER UHUANGHO and JUSTINA UHUANGHO
v. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 17, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Mosley
DATED: January 17, 2005
APPEARANCES:
Roxanne Haniff-Darwent FOR THE APPLICANT
Rick Garvin FOR THE RESPONDENT
SOLICITORS OF RECORD:
ROXANNE HANIFF-DARWENT FOR THE APPLICANT
Darwent Law Office
Barrister and Solicitor
Calgary, Alberta
JOHN H. SIMS FOR THE RESPONDENT
Deputy Attorney General of Canada
Edmonton, Alberta