Date: 20030312
Docket: IMM-1204-02
Neutral citation: 2003 FCT 303
Toronto, Ontario, Wednesday, the 12th day of March, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
MYNOR MORE LONDON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- Mr. Mynor More London (the "Applicant") seeks judicial review of the decision of Immigration Officer Brian Clark (the "Officer"). In his decision, dated November 28, 2001, the Officer denied the Applicant's application for permanent residence from within Canada on humanitarian and compassionate grounds (the "H & C application").
[2] The Applicant, a citizen of Guatemala, arrived in Canada in 1988 and was granted Convention refugee status. He subsequently was granted permanent residence and Canadian citizenship. However, in April 1999, he was stripped of his Canadian citizenship on the grounds that he had obtained this status on the basis of misrepresenting his true identity. On October 19, 1999, a removal order was issued against him.
[3] The Applicant again applied for Convention Refugee status in November 1999, using his real identity, that of Mynor Rene More, a citizen of Guatemala. His application for Convention Refugee status was denied on June 8, 2000. The Applicant applied for assessment as a post-determination refugee claimant in Canada and this application was denied on August 22, 2000.
[4] The Applicant then applied for landing in Canada on humanitarian and compassionate grounds in September 2000. In this regard, he attended an interview with the Officer at the Citizenship and Immigration Canada ("CIC") office in Fredericton, New Brunswick on July 25, 2001.
[5] The Immigration Officer reviewed the positive and negative features of the Applicant's life in Canada. Among the positive factors were personal relationships in which the Applicant fathered three Canadian-born children. In his most recent marriage, he became the step-father of the child of his Canadian wife.
[6] On the negative side are a number of criminal offences for which the Applicant was convicted and in some cases, was sentenced to imprisonment.
[7] The Immigration Officer maintained extensive notes from the interview in which he commented on various aspects of the Applicant's life in Canada, including the circumstances of his arrival, the history of criminal activity, his employment and personal relationships. The interview lasted nearly 2 hours. Although the Applicant's wife accompanied him, she was not interviewed by the Immigration Officer.
[8] The Immigration Officer rejected the Applicant's application and, in his reasons, stated the following:
I am deciding against subject's request for permanent residence from within Canada based on humanitarian and compassionate grounds. I have decided that the following negative factors outweigh the positive factors:
1. Subject's acquisition of Canadian permanent residence and Canadian citizenship by fraudulent means.
2. Subject's lack of stable employment, lack of financial or other assets, indicate a minimum degree of establishment in spite of his length of time in Canada.
3. Subject's lengthy criminal record including significant periods of incarceration.
[9] The Applicant argues that the Immigration Officer erred by failing to consider the interests of his Canadian-born children, as required by Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The Applicant says that the mere reference to the children in the Immigration Officer's notes does not meet the standard set out in Baker, supra, for consideration of their interests. He says that the Immigration Officer failed to consider the negative impact on the children resulting from the refusal of his application.
[10] Further, the Applicant submits that the Immigration Officer erred by only giving superficial consideration to the degree of establishment which he had shown in Canada. The Applicant says this is a factor that the Immigration Officer is obliged to weigh in reaching a decision and he did not do so in this case.
[11] The Respondent argues that the Applicant has failed to show that the Immigration Officer committed any reviewable error in assessing the Applicant's application. The Respondent says that the Applicant is essentially challenging the manner in which the Immigration Officer weighed the evidence before him.
[12] The Respondent argues that the Applicant is now asking the Court to re-weigh the evidence and this is beyond the powers of a reviewing court.
[13] The decision here under review was made by the Immigration Officer in the exercise of discretion conferred by the Immigration Act, R.S.C. 1985, c. I-2 (as amended) (the "Act"), section 114(2). The applicable standard of review is reasonableness simpliciter, as discussed in Baker, supra, at paras. 57-62 .
[14] The dispositive issue in this case is whether the Immigration Officer reasonably considered the best interests of the Applicant's children, including his step-daughter, in reaching his negative decision. The guiding jurisprudence in this regard are the decisions of the Supreme Court of Canada in Baker, supra, and the post- Baker decision of the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.).
[15] In Legault, supra, the Court applied Baker, supra, and found that while the interests of children are not determinative of the outcome in a discretionary decision, they must be considered by the decision maker. The Federal Court of Appeal stated at paragraph 12:
In short, the immigration officer must be "alert, alive and sensitive" (Baker, para. 75) to the interests of the children, but once she has well identified and defined this factor, it is up to her to determine what weight, in her view, it must be given in the circumstances.
[16] In my opinion, the Applicant has shown that in this case, the Immigration Officer, while aware of the Applicant's children, did not clearly indicate in his reasons for refusal that he had considered their interests relative to the impact upon them resulting from the refusal of the Applicant's application. In fact, the Applicant's step-daughter was not even mentioned in the Officer's notes. This is a sufficient basis upon which to allow this application for judicial review.
[17] Accordingly, the application is allowed and the matter is remitted to a different officer for determination in accordance with the law. Counsel advised that there is no question for certification.
ORDER
The application for judicial review is allowed and the matter is remitted to a different officer for determination in accordance with the law. There is no question for certification.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1204-02
STYLE OF CAUSE:MYNOR MORE LONDON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: HALIFAX, NOVA SCOTIA
DATE OF HEARING: TUESDAY, MARCH 4, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: WEDNESDAY, MARCH 12, 2003
APPEARANCES BY: Mr. Lee Cohen
For the Applicant
Ms. Melissa Cameron
For the Respondent
SOLICITORS OF RECORD: Lee Cohen
Halifax, Nova Scotia
For the Applicant
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030312
Docket: IMM-1204-02
BETWEEN:
MYNOR MORE LONDON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER