GILBERT MOORE Applicant v. THE MINISTER OF CITIZENSHIP AND, 2011 FC 550
Opinion
Federal Court Cour fédérale Date: 20110513 Docket: IMM-5639-10 Citation: 2011 FC 550 Ottawa , Ontario, May 13, 2011 PRESENT: The Honourable Mr. Justice Scott BETWEEN: GILBERT MOORE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review pursuant to
section 72 of The Immigration and Refugee Protection Act (the Act), of a decision dated September 16, 2010, refusing the applicants application for permanent residence from within Canada on humanitarian and compassionate grounds [H&C]. A. Facts [ 2 ] In June 1997, the applicant arrived in Canada , at Vancouver International Airport , and obtained refugee status in May 1999. Shortly thereafter, he applied for permanent residence on humanitarian and compassionate grounds. The documents submitted with his application were analysed and deemed false.
In January 2009, there was an application to the Refugee Protection Division [RPD] for vacation of the applicants refugee claim, on the basis that Canada Border Services Agency [CBSA] for Citizenship and Immigration Canada [CIC] had intercepted a package, received in 1997, containing false identification documents. In December 2009, the applicants claim was deemed to be rejected and the decision that had lead to the conferral of refugee protection was nullified. [ 3 ] The applicant submitted another H&C application in April 2009.
[ 4 ] The applicant married a Canadian citizen in 2002 and has three young children living in Canada . B. Decision of the review tribunal [ 5 ] The immigration officer rejected the applicants H&C application. [ 6 ] The immigration officer studied the spousal relationship and the best interests of the children. The officer notes that the applicant sons behavioural problems in school might be related to his anxiety over the uncertainty of his fathers immigration status. However, as he has the support of his mother and school, he would be able to adjust to being separated from his father.
After reviewing a report from a psychologist, the immigration officer recognizes that Mrs. Moore and her children would experience emotional and financial hardship, but he notes that the children would have the support of their mother and other members of the family. Furthermore, the officer mentions that it is an option for Mrs. Moore and the children to move to Liberia , should the applicant be deported. [ 7 ] The officer then analysed the establishment factors. He notes that the applicant has held several different jobs since 2007, that he completed college courses, and that he is involved in his community.
The officer concludes that the applicant shows a significant degree of establishment in Canada .
However, as the degree of establishment in Canada is not determinative of a positive H&C decision, the officer concludes that it does not constitute sufficient humanitarian and compassionate grounds to merit visa exemption, considering that he has misrepresented himself on several occasions throughout the process. [ 8 ] With regards to post-traumatic stress disorder developed after the trauma experienced in Liberia , the officer notes that the psychologist relied on documents provided by the applicant and did not conduct a formal psychological assessment. The officer assigns little weight to Dr.
Williams opinion on consequences, should the applicant return to Liberia . [ 9 ] Concerning the applicants identity, the officer states that the documents used by the applicant to prove his identity at the beginning of the immigration process (when he arrived and later in front of CIC) were deemed false.
Passports obtained in 1999 and 2005 were probably authentic. The officer concludes that the applicant had, to date, presented insufficient credible evidence of his identity and that his statements with regards to the ability of Liberia to produce such documents were speculative. [ 10 ] The officer concludes that the applicant has not satisfied him that he would suffer unusual and undeserved, or disproportionate hardship, if required to apply for permanent residence from outside Canada .
He adds that the applicant has not presented enough documents to satisfy him of his identity and that the misrepresentation in this regard is such a significant negative factor that it cannot be overcome by the positive humanitarian and compassionate factors. C. Questions in issue [ 11 ] The following issues are raised by this application
(1) What is the standard of review?
(2) Did the officer err in rejecting the H&C application on the basis that the applicant had not established his identity? D. Analysis
(1) What is the standard of review? [ 12 ] The applicant states that the applicable standard of review is that of reasonableness.
[13] Justice Dawson discusses this issue in Ahmad v Canada (Minister of Citizenship and Immigration), 2008 FC 646, 167 ACWS(3d) 974 (QL), where she mentions, at paragraph 11: The appropriate standard of review for a humanitarian and compassionate decision as a whole had previously been held to bereasonableness simpliciter. See: Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R.817 at paragraphs 57 to 62. Given the discretionary nature of a humanitarian and compassionate decision and its factual intensity, thedeferential standard of reasonableness is appropriate.
See: Dunsmuir at paragraphs 51 and 53. [14] The appropriate standard of review is that of reasonableness.
(2) Did the officer err in rejecting the H&C application, on the basis that the applicant had not established his identity? [15] The main issue in this case concerns the identity of the applicant. The officer based her decision on the fact that the applicanthad misled the authorities in this regard. [16] The applicant argues that the officers conclusion that his identity had not been established is not supported by the CBSAsremoval order that seeks to deport the applicant back to Liberia as they are satisfied that he is a Liberian citizen.
As such, the officersconclusion is contrary to the principles of fundamental justice. The applicant also argues that the officer fettered her discretion bytreating the applicants identity as a paramount factor which precludes the possibility of a positive decision despite positive H&C factors.This issue was addressed in Sultana v Canada (Minister of Citizenship and Immigration), 2009 FC 533 [Sultana]. [17] The respondent states that a significant positive factor for an inland H&C application is a good civil record and compliancewith immigration authorities.
He adds that his nationality is not questioned, but his personal identity is. Without evidence to establish theapplicants true identity, appropriate security and other verifications cannot be carried out.
The respondent argues that the officer dulyconsidered all of the positive factors that were submitted to her and concluded that there were insufficient to outweigh the significantnegative factor that immigration authorities still do not know who the applicant is and that the applicant has not clarified this situation.The respondent states that the Sultana case does not apply. [18] Justice Mactavish discussed the issue of identity in a H&C application in Singh v Canada (Minister of Citizenship andImmigration), 2004 FC 187, 39 Imm LR (3d) 208 (QL), where she mentions at paragraph 25 that: Once again, I am not persuaded that the immigration officer acted unreasonably in considering issues relating to Mr.
Singhs identity.While the identity of an applicant will be a central issue in the admissibility phase of the process, it does not mean that it is necessarilyirrelevant at the first stage. The Ministerial guidelines governing H&C applications mandate that immigration officer should consider anapplication in light of all of the information known to the Department.
In my view, it was not unreasonable for the immigration officer todo so.[] [19] As such, it was appropriate for the officer to address issues relating to the applicants identity. [20] A similar factual situation was recently addressed by this Court in Ebebe v Canada (Minister of Citizenship and Immigration),2009 FC 936, [2009] FCJ No 1146 (QL) [Ebebe], where the applicant had misled immigration authorities and his family with regards tohis identity, to finally admit his true identity before the H&C process began. At paragraphs 14 to16, Justice Barnes states that: [14] Mr.
Ebebe also contends that the Officer was fixated on the issue of his misconduct to the exclusion of other relevant considerationsand, in particular, the best interests of his child. This decision, it is argued, suffers from the same frailties that were identified in Sultanav. Canada (Minister of Citizenship and Immigration), 2009 FC 533, [2009] F.C.J. No. 653 (QL). [15] Sultana, above, was a case where important evidence was overlooked and where there was not a proper weighing of the competingevidence by the decision-maker. This is evident from Justice Yves de Montignys finding at paragraph 29:
[...] A careful reading of the CAIPS notes reveals that the Immigration officer, on more than one occasion, considers the failure todisclose as a paramount factor precluding any possibility that H&C factors could overcome the exclusion mandated by s.117(9)(d)... [16] I am not satisfied that the decision under review contains an error of the sort recognized in Sultana, above. Instead, what the Court isbeing asked to do in this case is to reweigh the evidence and to effectively reconsider the Officers decision on its merits. That is not theproper role of the Court on judicial review: see Suresh v.
Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1S.C.R. 3 at paragraph 38. The same analysis is applicable in this case. The applicant has misled immigration authorities since his arrival in Canada and, asmentioned by the H&C officer, his personal identity is still not established. As such, it is an element that could be taken into account bythe officer when rendering her decision. [21] The applicant argues that the officer assigned too much importance to the issue of his identity and should have given moreweight to the best interests of the children.
The applicant argues that the officer erred in assessing the best interest of the children. CitingBaker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, he states that the decision-maker should consider childrens best interests as an important factor and that he should be alert, alive and sensitive to them. Theapplicant submits that the officers analysis of the best interests of the children is deficient on a number of accounts and as such, theofficer was not alive, alert and sensitive to them.
He notes many errors of the officer, such as the fact that the interests of the youngerchildren are barely assessed, that she did not address the advantages of the non-removal of the applicant on the children, that she did notaddress the financial situation of the family nor did she consider the hardship should the applicants family move to Liberia. [22] The respondent argues that the best interests of the children were addressed and taken into consideration by the officer.
Henotes the absence of an experts report about the eldest sons alleged actions after he learnt about his fathers situation and that the officertook into consideration the scant evidence regarding the two younger children. The respondent analyses the various income taxinformation provided by the applicant and notes that the applicants spouse is shown to have earned an income.
Finally, the respondentargues that the officer did not err when he considered the option for the family to move to Liberia, as it is the applicants own evidencethat his wife and children would move to Liberia, should he be removed. [23] In Ebebe, Justice Barnes mentions that the officer was alert, alive and sensitive to the best interests of the child. Afterreviewing the conclusions of the officer in this regard, he concludes at para 21, that: All of the above confirms that the Officer carried out a thorough and thoughtful assessment of the best interests of the child.
What isessentially being advanced on behalf of Mr. Ebebe is that this decision must be irrational because, in the end, the Officers concerns aboutMr. Ebebes misconduct overwhelmed the evidence supportive of maintaining family unity. While a different decision could certainlyhave been reached on this record, it was not an error to give great and, indeed, overriding weight to Mr. Ebebes misconduct. This was,after all, a case of serious and prolonged misrepresentation of the sort that was of concern to the Court in Legault v.
Canada (Minister ofCitizenship and Immigration), 2002 FCA 125, [2002] 4 FC 358 at paragraph 19: In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with theintention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoeverenters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect therequirements of the Act.
The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refusethe exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, forexample, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouragingillegal entry in Canada.
In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionategrounds that a person claims are the result of his own actions. [24] In this case, the applicant does not come to the Court with clean hands. He has used false identity documents to support hisrefugee claim when he arrived in Canada. He submitted new passports which are alleged to have been issued on the presentation of afalse birth certificate.
Even if the documents were deemed probably authentic, the applicant has failed to provide any additionaldocuments to clear the uncertainties surrounding his identity.
[ 25 ] It is not this Courts duty to reweigh the evidence that was before the officer. The conclusion reached by the officer to give weight to the issue of identity and to conclude that the H&C considerations, even though positive, were not sufficient to grant the application, was reasonable in this instance since the actual identity of the applicant was not clearly and definitively established. As such, the judicial review should be dismissed. JUDGMENT THIS COURTS JUDGMENT is that : 1. The application for judicial review is dismissed. 2. There is no question of general importance to certify. "André F.J.
Scott" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5639-10 STYLE OF CAUSE: GILBERT MOORE Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 3, 2011 REASONS FOR JUDGMENT AND JUDGMENT: SCOTT J.
DATED: May 13, 2011 APPEARANCES : Lorne Waldman FOR THE APPLICANT Kristina Dragaitis FOR THE RESPONDENT SOLICITORS OF RECORD : Waldman & Associates Toronto , Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada Toronto, Ontario FOR THE RESPONDENT
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