2011 FC, 2011 FC 1429

Date: 20111214 Docket: IMM-3324-11 Citation: 2011 FC 1429 Ottawa, Ontario, December 14, 2011 PRESENT: The Honourable Mr. Justice Rennie BETWEEN: FAVOUR ODAFE Applicant and THE MINISTER OF CITIZENSHIP ANDIMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT Introduction [1] This decision arises from an application for judicial review of a March 1, 2011 decision under

section 25 of the Immigrationand Refugee Protection Act, 2001, c. 27 (IRPA) by a Pre-Removal Risk Assessment (PRRA) Officer. The Officer refused the applicant’sapplication for permanent residency on Humanitarian and Compassionate grounds (H&C). For the reasons that follow, the application isdismissed. Facts [2] The applicant is originally from Nigeria. She arrived in Canada on March 11, 2007 and made a refugee claim on the sameday. Her claim was refused on June 18, 2009. On September 16, 2009 she gave birth to her son.

On November 18, 2009 this Courtrefused the applicant’s leave to seek judicial review application. On March 9, 2010, the applicant submitted a Pre-Removal RiskAssessment application, the refusal of which forms the basis of this application. Issue [3] The issue in this case is whether the decision of the PRRA Officer to refuse the applicant’s application for permanentresidency on H&C grounds is reasonable per Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Analysis [4] The applicant’s sole argument is that the PRRA Officer failed to consider the best interests of the child.

The Supreme Courtof Canada held in Baker v Canada (Ministry of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 that adecision-maker must be alert, alive and sensitive to the best interests of the child in an application for humanitarian and compassionate

relief under

section 25 of the IRPA. The decision in question is silent on this point, and presumptively, in error. But the case is not sosimple. [5] The applicant did not argue, advance or contend that the best interests of her child favoured a positive disposition on herH&C application. No submissions were made in respect of the child, then two years old. [6] The Officer was aware of the existence of the young child but did not give fulsome consideration to the issue.

There is noonus, in these circumstances, on the Officer to makes further inquires concerning the best interests of the child, particularly where theissues were raised in an oblique or cursory way or, as in this case, not at all.

This case thus falls squarely within the reasons of theFederal Court of Appeal in Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, [2010] 1 FCR 360, at para 45where the Court observed: In the context of H&C applications, it has been consistently held that the onus of establishing that an H&C exemption is warranted lieswith an applicant; an officer is under no duty to high-light weaknesses in an application and to request further submissions (see, forexample: Thandal, above, at paragraph 9).

In Owusu, above, this Court held that an H&C officer was not under a positive obligation tomake inquiries concerning the best interests of children in circumstances where the issue was raised only in an “oblique, cursory andobscure” way (at paragraph 9). The H&C submissions in that case consisted of a seven-page letter in which the only reference to the bestinterests of the children was contained in the sentence: “Should he be forced to return to Ghana, [Mr.

Owusu] will not have any ways tosupport his family financially and he will have to live every day of his life in constant fear” (at paragraph 6). [Emphasis in original] [7] The burden remains on the applicant to advance all arguments in support of an H&C application and does not shift to therespondent Minister by reason of the failure of counsel to make arguments or to bring forward evidence that might otherwise beavailable.

I note however, that, in reviewing the establishment factors, including the applicant’s large family in Nigeria, her prioremployment record in Nigeria and the fact that she speaks two languages the Officer did consider factors that would be material to thewellbeing of the child. [8] It is argued that the failure of the applicant’s counsel to make submissions in respect of the child constituted professionalnegligence, the consequences of which should not be visited on the client. The Federal Court has set a high threshold governing thecircumstances and evidentiary criteria that must be met before relief under

section 18.1 of the Federal Courts Act (R.S.C., 1985, c. F-7)will be given on the basis of the negligence of counsel. In Nunez v Canada (Minister of Citizenship and Immigration), (CA IRB), (FC) , Justice Denis Pelletier (now of the Court of Appeal) wrote: I am not prepared to accept an allegation of serious professional misconduct against a member of the bar and an officer of this courtwithout having the member"s explanation for the conduct in question or evidence that the matter has been referred to the governing bodyfor investigation.

In this case, there was ample opportunity to do one or the other but neither was done. The failure to do so isinconsistent with the gravity of the allegations made. This is not a question of being solicitous of lawyers" interests at the expense of theirclients. It is a question of recognizing that allegations of professional negligence are easily made and, if accepted, generally result in therelief sought being granted.

The proof offered in support of such an allegation should be commensurate with the serious nature of theconsequences for all concerned. [9] More recently, in Jeffrey v Canada (Minister of Citizenship and Immigration), 2006 FC 605, Justice Richard Mosley notedthat substantial prejudice must be shown to flow from or in consequence of the actions of incompetent counsel. It must also beestablished that there is a reasonable probability that, but for the unprofessional errors, the result of the proceeding would be different.

Inthe context of this case, where all the material facts are on the record and are uncontested, it would be very difficult for the applicant toestablish that, but for the incompetence, the result would, with reasonable probability, be different. [10] The application for judicial review is dismissed. [11] No question for certification has been proposed and none arises. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review be and is hereby dismissed. No question for certification has

been proposed and the Court finds that none arises. "Donald J. Rennie" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-3324-11 STYLE OF CAUSE: FAVOUR ODAFE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto DATE OF HEARING: November 15, 2011 REASONS FOR JUDGMENT AND JUDGMENT: RENNIE J. DATED: December 14, 2011 APPEARANCES : Solmaz Separy FOR THE APPLICANT Khatidja Moloo-Alam FOR THE RESPONDENT SOLICITORS OF RECORD : Separy Law Toronto , Ontario FOR THE APPLICANT

Myles J. Kirvan, Deputy Attorney General of Canada Ottawa, Ontario FOR THE RESPONDENT