A-114-03
2004 FCA 38
Samuel Kwabena Owusu (Appellant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Owusu v. Canada (Minister of Citizenship and Immigration) (F.C.A.)
Federal Court of Appeal, Strayer, Sexton and Evans JJ.A.--Toronto, January 26, 2004.
Citizenship and Immigration -- Status in Canada -- Permanent Residents -- Humanitarian and Compassionate Considerations -- Appellant denied refugee, permanent resident status -- Application for judicial review of latter denial rejected -- Appeal dismissed -- While officer dealing with H & C application must consider best interests of children, duty arises only if clear applicant relying on this factor -- Applicant's material not adequately raising impact on children of his deportation -- F.C.A. not affirming Judge's view officer must consider best interests of children never in Canada -- Issue not arising on facts, to be decided in some future case.
This was an appeal from a decision of the Trial Division denying an application for judicial review of an immigration officer's decision that there were insufficient humanitarian and compassionate (H & C) grounds for an exemption from the requirement to secure a visa prior to coming to Canada. While holding that the officer had erred in failing to be attentive to the best interests of applicant's children in Ghana, the Judge decided to exercise his discretion by not setting the decision aside and gave two reasons for so doing: (1) applicant had failed to provide any evidence that his deportation would be contrary to the childrens' best interests because he would be unable to find work and thereby support them; and (2) if remitted for redetermination, the application was bound to be again rejected.
Held, the appeal should be dismissed.
While Baker v. Canada (Minister of Citizenship and Immigration) is authority for the proposition that, in considering an H & C application, an immigration officer must be sensitive to and not minimize the best interests of children adversely affected by a parent's deportation, that duty arises only if it is clear, on the material submitted, that an applicant relies on this factor. The applicant bears the burden of proving any claim upon which he relies.
Appellant now says that while in Canada he has supported his children, remitting money to them on a regular basis. But this was not before the immigration officer. Apparently his lawyer supposed that the primary grounds for the H & C application--the fear of reprisals, if returned to Ghana, for his previous political activities there--would be enough to ensure a favourable decision. In addition, he expected to be called for an interview at which he would have demonstrated financial support of his children. But an H & C applicant has no right to, or legitimate expection of, an interview. So an applicant omits pertinent information from his written submission at his peril. All the officer had before him was the statement that, if deported, he would be unable to support his family financially. This was too oblique, cursory and obscure to impose upon the officer an obligation of further inquiry as to the childrens' best interests.
In dismissing this appeal, the Court was not affirming the Judge's view that an immigration officer's duty to consider the best interests of an H & C applicant's children arises even when they are not, and have never been, in Canada. That issue did not arise on the facts herein and must await determination on another day.
It was unnecessary that the Court answer the question that had been certified concerning new evidence and submissions where a matter is remitted for redetermination.
statutes and regulations judicially
considered
Immigration Act, R.S.C., 1985, c. I-2.
cases judicially considered
distinguished:
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; (1999), 174 D.L.R. (4th) 193; 14 Admin. L.R. (3d) 173; 1 Imm. L.R. (3d) 1; 243 N.R. 22.
APPEAL from the decision of a Trial Division Judge, reported at ([2003] 3 F.C. 172; (2003), 228 F.T.R. 19; 27 Imm. L.R. (3d) 114), denying an application for judicial review of an immigration officer's refusal of an H & C application. Appeal dismissed.
appearances:
Mark Rosenblatt for appellant.
Ann Margaret Oberst for respondent.
solicitors of record:
Mark Rosenblatt, Toronto, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
[1]Evans J.A.: Samuel Owusu, a citizen of Ghana, arrived in Canada in 1991 and has been here ever since. His claim for refugee status was unsuccessful. In 1999 he applied to remain in Canada as a permanent resident on humanitarian and compassionate grounds (H & C), but in 2001 his application was denied.
[2]Mr. Owusu applied for judicial review of that decision, but his application was dismissed: Owusu v. Canada (Minister for Citizenship and Immigration), [2003] 3 F.C. 172 (T.D.). This is an appeal by Mr. Owusu from that decision. These proceedings arise under the now repealed Immigration Act, R.S.C., 1985, c. I-2.
[3]The Applications Judge held that the immigration officer had erred in law in rejecting Mr. Owusu's H & C application because she had not been sufficiently attentive to the best interests of his children, who had always lived with his wife, their mother, in Ghana. Nonetheless, the Judge in his discretion decided not to set aside the decision, on two grounds. First, Mr. Owusu had unaccountably failed to provide any evidence to support the allegation that his deportation to Ghana would be contrary to the best interests of his children because he would be unable to find work and support them financially. Second, if the matter were remitted for redetermination by another officer on the same material, the application was bound to be rejected.
[4]In our view, the Applications Judge was correct to dismiss the application, but for the reasons that follow.
[5]An immigration officer considering an H & C application must be "alert, alive and sensitive" to, and must not "minimize", the best interests of children who may be adversely affected by a parent's deportation: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 75. However, this duty only arises when it is sufficiently clear from the material submitted to the decision maker that an application relies on this factor, at least in part. Moreover, an applicant has the burden of adducing proof of any claim on which the H & C application relies. Hence, if an applicant provides no evidence to support the claim, the officer may conclude that it is baseless.
[6]Although the lawyer representing Mr. Owusu when he made his H & C claim submitted a single-spaced, seven-page letter, the only reference to his children is on page 4:
Should he be forced to return to Ghana [Mr. Owusu] will not have any ways to support his family financially and he will have to live every day of his life in constant fear. [Emphasis added.]
The principal grounds on which Mr. Owusu urged the immigration officer to exercise the statutory discretion in his favour were his fear of reprisals in Ghana because of his political activities and associations there before he left, and his successful establishment and social integration in Canada, where he has lived since 1991, and worked continuously since 1993.
[7]Mr. Owusu now says that while he has been in Canada he has supported his children, who are financially dependent on him, and that he has evidence to show that he has remitted money to them on a regular basis. Unfortunately, none of this was before the immigration officer when she made her decision. Apparently, Mr. Owusu's lawyer thought the grounds on which the H & C application was primarily based would be sufficient to obtain a favourable decision and that, in any event, Mr. Owusu would be called for an interview at which he could present material showing that he had been supporting his children.
[8]H & C applicants have no right or legitimate expectation that they will be interviewed. And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril. In our view, Mr. Owusu's H & C application did not adequately raise the impact of his potential deportation on the best interests of his children so as to require the officer to consider them.
[9]The half-sentence on page four of the seven-page letter, quoted above in paragraph 6, said only that Mr. Owusu would be unable to support his family financially if he was deported was too oblique, cursory and obscure to impose a positive obligation on the officer to inquire further about the best interests of the children. The letter did not say that Mr. Owusu had been supporting his children from the money he earned while in Canada, and that they were financially dependent upon him and would be deprived of that support if he was deported. Nor was there any proof before the officer of any of these facts.
[10]Counsel argued that the officer should have inferred from what the letter did say that Mr. Owusu's children would be deprived of the financial support on which they depended if their father was deported. In the circumstances, the officer is not to be faulted for failing to draw this inference. Hence, the immigration officer did not err in rejecting the H & C application without analysing the likely impact of her decision on Mr. Owusu's children.
[11]Nor are we persuaded that, even though the officer mistakenly said that Mr. Owusu's mother lived in Ghana at the time of the decision, she committed a reviewable error in inferring from the H & C application that Mr. Owusu's ties were stronger to Ghana, where his wife and children lived, than to Canada, despite his 10 years' residence here.
[12]In the absence of a reviewable error by the immigration officer in rejecting Mr. Owusu's H & C application, the Court cannot intervene. It is not the function of the Court in judicial review proceedings to substitute its view of the merits of a H & C application for that of the statutory decision maker, even though, on the record, Mr. Osuwu's in-country claim to be granted permanent resident status on H & C grounds might well have merit.
[13]In deciding to dismiss the appeal, we must not be taken to have affirmed the Applications Judge's view that an immigration officer's duty to consider the best interests of an H & C applicant's children is engaged when the children in question are not in, and have never been to, Canada. This interesting issue does not arise for decision on the facts of this case and must await a case in which the facts require it to be decided.
[14]We do note, however, that the Supreme Court of Canada knew in Baker that the immigration officer had before him information that Ms. Baker had four children in Jamaica, as well as four in Canada: Baker, at paragraph 5. However, the Court made no mention of the four Jamaica-based children, nor did it comment on any consideration that the immigration officer gave or failed to give to the best interests of the children who did not reside in Canada.
[15]Nor do we find it necessary to consider whether the Judge was correct to conclude that if, as he found, the immigration officer had erred in failing to consider the best interests of the children, the matter could be remitted to another officer for redetermination on the basis of the materials that were before the immigration officer when she made the decision under review in this proceeding.
[16]Consequently, it is unnecessary for us to answer the following question certified by the Applications Judge and we decline to do so:
Where, as in this matter, a Trial Judge finds a reviewable error on an application for judicial review of a decision engaging the best interests of a child or children, is the Trial Judge obligated to set aside the decision under review and to remit the matter for reconsideration and redetermination on the basis, not merely of the record that was before the decision-maker whose decision is set aside, but on the basis of that record and any new evidence and submissions that the applicant might determine to put before the officer conducting the reconsideration and making the redetermination?
[17]For these reasons, the appeal will be dismissed.