Diabate v. Canada (Minister of Citizenship and Immigration), (2013) 427 F.T.R. 87 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: September 11, 2012
• Jurisdiction: Canada (Federal)
• Citations: (2013), 427 F.T.R. 87 (FC);2013 FC 129

Diabate v. Can. (M.C.I.) (2013), 427 F.T.R. 87 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. FE.037

Mahamoudou Sama Diabate (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8930-11; 2013 FC 129; 2013 CF 129)

Indexed As: Diabate v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

February 6, 2013.

Summary:

The applicant, a citizen of the Ivory Coast, applied for judicial review of an immigration officer's decision to deny his application for humanitarian and compassionate relief from the usual requirement that permanent residence be sought from abroad.

The Federal Court allowed the application, set aside the officer's decision, and remitted the matter to a different officer for reconsideration.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Diabate, a citizen of the Ivory Coast, left that country in 1986 - He came to Canada in 1993 and made a claim for refugee status under a false identity - His claim was refused - In 1996, he married a Canadian citizen who attempted to sponsor him for permanent residence - The application was refused and the couple separated - In 1997, Diabate was ordered to present himself for removal from Canada, but he failed to appear - Instead, he went to the United States where his application for permanent residence was also denied - He returned to Canada in 2005 and applied under s. 25 of the Immigration and Refugee Protection Act for humanitarian and compassionate (H&C) relief from the usual requirement that permanent residence be sought from abroad - Diabate had lived in the same residence (with his sister's family) for the past six years, a good civil record, regular employment, and a close relationship with his niece and nephew - An immigration officer denied the application - Diabate applied for judicial review, arguing that the officer had erred by ignoring his personal and economic ties to Canada and instead focusing on the fact that he had been in Canada for a lengthy period without status - The Federal Court rejected this argument - While the degree of establishment in Canada might be a relevant factor for an officer to consider, it was not determinative - The length of time Diabate had been in Canada did not, in and of itself, warrant positive H&C consideration, particularly in light of his lack of cooperation with immigration authorities in having previously declined to present himself for removal when ordered to do so - The officer considered Diabate's ties to Canada and concluded that they were not exceptional - This determination was reasonably open to her on the facts - See paragraphs 26 to 31.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Diabate, a citizen of the Ivory Coast, left that country in 1986 - He came to Canada in 1993 and made a claim for refugee status under a false identity - His claim was refused - In 1996, he married a Canadian citizen who attempted to sponsor him for permanent residence - The application was refused and the couple separated - In 1997, Diabate was ordered to present himself for removal from Canada, but he failed to appear - Instead, he went to the United States where his application for permanent residence was also denied - He returned to Canada in 2005 and applied under s. 25 of the Immigration and Refugee Protection Act for humanitarian and compassionate (H&C) relief from the usual requirement that permanent residence be sought from abroad - An immigration officer denied the application, finding that the problems in the Ivory Coast applied to the entire population, and Diabate had not shown how his situation was different from the population as a whole - Diabate applied for judicial review - The Federal Court allowed the application - The officer's formulation of the s. 25 test was incorrect and unreasonable - Section 25 existed to provide relief from the provisions of other sections of the Act - The officer imported a requirement of s. 97 (to be eligible for protection, a person must face a risk not generally faced by other individuals in or from that country) into her s. 25 analysis - Such an interpretation stripped s. 25 of its function - The Ivory Coast was a country struggling with violence in which Diabate had no family and had not lived for 26 years - The officer had to balance these considerations with Diabate's actions in disregarding the law and lengthening his period of absence from the Ivory Coast - General conditions faced by all Ivorians was a wholly foreign consideration to the required analysis - See paragraphs 32 to 38.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The Federal Court found that reasonableness was the standard of review for decisions involving an immigration officer's interpretation of s. 25 of the Immigration and Refugee Protection Act (humanitarian and compassionate considerations) - The court discussed the content of the reasonableness standard - See paragraphs 9 to 25.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 5].

Singh Gill v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 510; 2011 FC 863, refd to. [para. 6].

Mirza v. Canada (Minister of Citizenship and Immigration) (2011), 382 F.T.R. 211; 2011 FC 50, refd to. [para. 6].

Mann v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 66; 2009 FC 126, refd to. [para. 6].

B.L. v. Canada (Minister of Citizenship and Immigration) (2012), 408 F.T.R. 253; 216 A.C.W.S.(3d) 181; 2012 FC 538, refd to. [para. 10].

Prashad v. Canada (Minister of Citizenship and Immigration) (2011), 399 F.T.R. 281; 6 Imm. L.R.(4th) 105; 2011 FC 1286, refd to. [para. 10].

Sinniah v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 794; 2011 FC 1285, refd to. [para. 10].

Paul v. Canada (Minister of Citizenship and Immigration) (2011), 384 F.T.R. 15; 2011 FC 135, refd to. [para. 10].

Osegueda Garcia v. Canada (Minister of Citizenship and Immigration) - see Garcia v. Canada (Minister of Citizenship and Immigration).

Garcia v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 449; 2010 FC 677, refd to. [para. 10].

Herman v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 412; 2010 FC 629, refd to. [para. 10].

Ebonka v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 60; 2009 FC 80, refd to. [para. 10].

Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3; 410 N.R. 127; 2011 SCC 1, refd to. [para. 11].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 11].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 11].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 339 D.L.R.(4th) 428; 2011 SCC 61, refd to. [para. 11].

Canadian Human Rights Commission v. Canada (Attorney General) et al. (2012), 411 F.T.R. 14; 215 A.C.W.S.(3d) 439; 2012 FC 445, refd to. [para. 11].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 12].

Shpati v. Canada (Minister of Public Safety and Emergency Preparedness) (2011), 423 N.R. 309; 2011 FCA 286, refd to. [para. 16].

Patel v. Canada (Minister of Citizenship and Immigration) (2011), 419 N.R. 321; 2011 FCA 187, refd to. [para. 16].

Khan v. Canada (Minister of Citizenship and Immigration) (2011), 426 N.R. 12; 2011 FCA 339, refd to. [para. 16].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 19].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 19].

Abraham et al. v. Canada (Attorney General) (2012), 440 N.R. 201; 2012 FCA 266, refd to. [para. 21].

Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.) (2008), 237 O.A.C. 71; 2008 ONCA 436, refd to. [para. 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 26].

Allard v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 621; 2012 FC 1268, refd to. [para. 29].

Lee v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 259; 2005 FC 413, refd to. [para. 29].

Qiu v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 413; 2012 FC 859, refd to. [para. 30].

Singh v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 282; 2012 FC 612, refd to. [para. 30].

Luzati v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 723; 2011 FC 1179, refd to. [para. 30].

Benyk v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 577; 2009 FC 950, refd to. [para. 31].

Shah v. Canada (Minister of Citizenship and Immigration) (2011), 399 F.T.R. 146; 2011 FC 1269, refd to. [para. 34].

Rebaï v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 19; 2008 FC 24, refd to. [para. 35].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 25 [para. 1].

Counsel:

Anthony Navanleelan, for the applicant;

Margherita Braccio, for the respondent.

Solicitors of Record:

Mamann Sanduluk, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard in Toronto, Ontario, on September 11, 2012, before Gleason, J., of the Federal Court, who delivered the following judgment and reasons for judgment on February 6, 2013.