PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
and
The Minister of Citizenship & Immigration
REASONS FOR JUDGMENT AND JUDGMENT
[1] The applicant is an adult male who claims to be a citizen of Rwanda. He presently goes under the name of Bernard Boateng. By a decision dated August 14, 2006, an Officer of Citizenship and Immigration Canada refused the applicant’s application for permanent residence in Canada. I am allowing the application respecting that decision, quashing the decision and referring the matter back for determination by a different Officer.
[2] The personal history of the applicant is not very clear. He claims to have been born in Rwanda, and baptized there under the name Bernard Darois. At some point he claims to have left Rwanda and found his way to Ghana where he adopted the name Bernard Boateng. Subsequently he claims to have worked in Libya, then Taiwan. He entered Canada in 1994 under the name John Duke Qwansah claiming to be a citizen of Kenya. He was bearing at the time a number of false documents.
[3] Since entering Canada, the applicant has married a Canadian citizen and fathered a child. There is no evidence that the applicant has any criminal record. He claims to have worked as a mechanic at a number of locations in the Vancouver area.
[4] The applicant sought permanent residence in Canada under Humanitarian and Compassionate grounds in June 2000, citing his marriage and his child. Since that time, there has been a great deal of correspondence between the applicant and his solicitor with Citizenship and Immigration Canada (CIC) largely centred on the applicant’s inability to provide a Rwandan passport. The Tribunal Record contains a letter dated June 19, 2000 in which the Rwandan ambassador to Canada states that the documents furnished do not appear to support the applicant’s claims to be a Rwandan citizen and thus no passport could be issued. Nonetheless correspondence appears to have continued including correspondence with the Rwandan embassy in Washington D.C.
[5] CIC was understandably concerned that the applicant could not provide a passport nor could he seem to come up with other documentation such as that contemplated by sections 50 or 178 of the Immigration and Refugee Protection Regulations that would satisfy them as to the applicant’s identity. The Tribunal Record demonstrates a vigorous correspondence between the applicant’s solicitor and CIC during a period extending from November 2000 to June 2005. The applicant’s solicitor sought and received a number of extensions of time to respond to inquiries and requests made by CIC.
[6] On June 2, 2005, the applicant’s solicitor submitted to CIC an affidavit from a clergyperson residing in Africa who claims to know the applicant and was present at his baptism in Rwanda. Strangely and unlike previous correspondence, no reply was immediately forthcoming from CIC. Instead, on July 11, 2006, some thirteen months after receiving the affidavit, CIC wrote to the applicant’s solicitor advising that the affidavit was unacceptable unless a further identification as to the applicant clergyperson in accordance with section 50 or 178 of the Regulations was provided within one month. On August 11, 2006, the applicant’s solicitor wrote asking for an extension until 30 October 2006 to reply. That request was denied. Instead the decision in question sent by letter dated August 14, 2006, was made.
[7] The substantive portion of that decision reads:
I received Ms. Sas’ fax dated Aug. 11, 2006. She requested an extension to October 30, 2006. I am not willing to grant this extension. CIC has asked you for identification several times in the past six years. We have not received an adequate explanation for your inability to obtain identification nor adequate reason to believe you will do so by the end of October
…
You have not complied with the requirements of the Immigration and Refugee Protection Act and Regulations to provide satisfactory identification. Therefore, I refused your application for permanent residence.
[8] No explanation has been given for the thirteen month delay by CIC in responding to the provision of the affidavit. No explanation is given for the refusal to grant to the applicant a two month extension to respond notwithstanding the pattern established for granting such responses.
[9] On the basis of lack of procedural fairness alone this decision must be set aside.
[10] There is a further basis for setting aside the decision of August 14, 2006. Section 25(1) of the Immigration Refugee and Protection Act (IRPA) requires that, in considering a humanitarian and compassionate application, the Minister shall have regard to the “best interests of a child directly affected, or … public policy considerations”. The applicant is married to a Canadian and has a Canadian born child.
[11] Nothing in the decision of August 14, 2006 indicates that regard was given either to the child or to public policy. Section 25(1) provides to its Minister broad powers to confer “an exemption from any applicable criteria or obligation” of IRPA. This would extent to the provision of documents and information under sections 50 or 178 of the Regulations. The Minister’s Officer was clearly aware of the difficulties that the applicant was facing in furnishing documents. To peremptorily turn the applicant down after a thirteen month delay by CIC, without giving a short extension as requested and without considering the child or public policy, is simply unacceptable.
[12] Neither party requested that a question be certified.
JUDGMENT
FOR THE REASONS GIVEN;
THIS COURT ADJUDGES that:
1. The application is allowed;
2. The decision of August 14, 2006 is set aside and returned for re-determination by a different Officer;
3. There is no question for certification;
4. There is no order as to costs.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-4750-06
STYLE OF CAUSE: Bernard Boateng v. MCI
APPEARANCES:
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Mr. Lorne Waldman |
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Ms. Caroline Christians |
SOLICITORS OF RECORD:
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c/o Catherine Sas Barrister and Solicitor 501-134 Abbott Street Vancouver, BC |
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Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Department of Justice Vancouver, BC
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