Lalane v. Canada (Minister of Citizenship and Immigration), 2009 FC 6

JudgeShore, J.
CourtFederal Court (Canada)
Case DateDecember 17, 2008
JurisdictionCanada (Federal)
Citations2009 FC 6;(2009), 338 F.T.R. 224 (FC)

Lalane v. Can. (M.C.I.) (2009), 338 F.T.R. 224 (FC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2009] F.T.R. TBEd. JA.024

Emmanuel Lalane (demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (défenderesse)

(IMM-2182-08; 2009 CF 6; 2009 FC 6)

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

Federal Court

Shore, J.

January 5, 2009.

Summary:

Lalane, a citizen of Haiti, became a permanent resident of Canada in 1990. From 2003 to 2007, Lalane was convicted of assault, breach of probation, conspiracy to import narcotics, importing narcotics, possession of narcotics for the purpose of trafficking and possession of prohibited substances. In June 2007, a s. 44 report was issued under s. 36(1)(a) of the Immigration and Refugee Protection Act and Lalane was found inadmissible on grounds of serious criminality. Lalane brought an application for permanent residence on humanitarian and compassionate grounds. An immigration officer dismissed the application. Lalane applied for judicial review.

The Federal Court dismissed the application.

Aliens - Topic 4

Definitions and general principles - Children - [See third Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Lalane, a citizen of Haiti, became a permanent resident of Canada in 1990 - From 2003 to 2007, Lalane was convicted of several criminal offences - In June 2007, a s. 44 report was issued under s. 36(1)(a) of the Immigration and Refugee Protection Act and Lalane was found inadmissible on grounds of serious criminality - Lalane brought an application for permanent residence on humanitarian and compassionate grounds - An immigration officer dismissed the application - Lalane applied for judicial review, asserting that the officer improperly assessed the evidence where the officer used the wrong test in assessing whether Lalane would have difficulty re-entering the labour market in Haiti; failed to have regard to the fact that Lalane had held several other jobs, including one as a volunteer with an organization that assisted the Inuit population, while he was incarcerated; failed to have regard to the tests set out in the regulations and case law under the Immigration and Refugee Protection Act concerning his wife and the reason for the marriage; and the officer "wore two hats" (immigration officer and Pre-Removal Risk Assessment officer) and thus failed to apply the rules of natural justice, in that he relied on a decision he had made himself and failed to inform Lalane of this, and allowed him no opportunity to make representations to counter that decision - The Federal Court dismissed the application - The officer considered all of these issues and his decision was reasonable - See paragraphs 23 to 34.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Lalane, a citizen of Haiti, became a permanent resident of Canada in 1990 - From 2003 to 2007, Lalane was convicted of several criminal offences - In June 2007, a s. 44 report was issued under s. 36(1)(a) of the Immigration and Refugee Protection Act and Lalane was found inadmissible on grounds of serious criminality - Lalane brought an application for permanent residence on humanitarian and compassionate (H&C) grounds - An immigration officer dismissed the application - Lalane applied for judicial review, asserting that the officer failed to have regard to or comment on the fact that Haiti was on the list of moratorium countries - The Federal Court dismissed the application - Because of the H&C considerations, the officer had no duty to refer to the moratorium in his decision - The allegation of risks made in an H&C application had to relate to a particular risk that was personal to the applicant - The applicant had the burden of establishing a link between that evidence and his personal situation - Otherwise, every H&C application made by a national of a country with problems would have to be assessed positively, regardless of the individual's personal situation, and this was not the aim and objective of an H&C application - The officer considered the difficult conditions in Haiti - However, that was not sufficient in itself for all applications for exemption on H&C grounds to be allowed - The officer concluded that there was no personalized risk that would result in unusual and undeserved or disproportionate hardship for Lalane - See paragraphs 35 to 46.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Lalane, a citizen of Haiti, became a permanent resident of Canada in 1990 - From 2003 to 2007, Lalane was convicted of several criminal offences - In June 2007, a s. 44 report was issued under s. 36(1)(a) of the Immigration and Refugee Protection Act and Lalane was found inadmissible on grounds of serious criminality - Lalane brought an application for permanent residence on humanitarian and compassionate (H&C) grounds - An immigration officer dismissed the application - Lalane applied for judicial review, asserting that the officer assigned no weight to the best interests of his four children - The Federal Court dismissed the application - The officer considered the best interests of the children in the context of the evidence submitted to him and noted that Lalane had four children from two different relationships; Lalane had not cited the best interests of the children from his first relationship; only his young son had his spouse's permission to visit him; Lalane submitted no concrete evidence of his involvement with his children; the older children had lived with their mother for a long time, and Lalane did not have visitation rights; and the younger children had been separated from their father since he was incarcerated in May 2007 and lived with their respective mothers in Canada - There having been no evidence before him as to the nature of the relationship that Lalane had developed with his children, it was reasonable for the officer to conclude as he did - See paragraphs 47 to 53.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - Lalane, a citizen of Haiti, became a permanent resident of Canada in 1990 - From 2003 to 2007, Lalane was convicted of several criminal offences - In June 2007, a s. 44 report was issued under s. 36(1)(a) of the Immigration and Refugee Protection Act and Lalane was found inadmissible on grounds of serious criminality - Lalane brought an application for permanent residence on humanitarian and compassionate grounds - An immigration officer dismissed the application - Lalane applied for judicial review, asserting that the fact that Lalane wore a pacemaker that had to be replaced in 2010 would be a death sentence because specialized care was not available in Haiti - The Federal Court dismissed the application - The officer analysed the documentary evidence, which indicated, inter alia, that health services were not non-existent, but that access to services was difficult for the poorest individuals - Lalane did not establish that he fell into that category - Additionally, Lalane was from Port-au-Prince, where the situation was less problematic - See paragraphs 54 to 57.

Cases Noticed:

Mathewa v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 548; 2005 FC 914, refd to. [para. 1].

Hussain v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 425; 149 A.C.W.S.(3d) 303; 2006 FC 719, refd to. [para. 1].

Nkitabungi v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 205; 169 A.C.W.S.(3d) 862; 2007 FC 331, refd to. [para. 4].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 11].

C.D. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 735; 2008 FC 501, refd to. [para. 22].

Alabadleh v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 422; 149 A.C.W.S.(3d) 470; 2006 FC 716, refd to. [para. 22].

Mijatovic v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 404; 149 A.C.W.S.(3d) 290; 2006 FC 685, refd to. [para. 22].

Tartchinska v. Canada (Minister of Citizenship and Immigration) (2000), 185 F.T.R. 161; 96 A.C.W.S.(3d) 112 (T.D.), refd to. [para. 27].

Aoutlev v. Canada (Minister of Citizenship and Immigration), 2007 FC 111, refd to. [para. 30].

Zolotareva v. Canada (Minister of Citizenship and Immigration) (2003), 241 F.T.R. 289; 2003 FC 1274, refd to. [para. 33].

Rasiah v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 365; 139 A.C.W.S.(3d) 112; 2005 FC 583, refd to. [para. 33].

Vasquez et al. v. Canada (Minister of Citizenship and Immigration) et al. (2005), 268 F.T.R. 122; 2005 FC 91, refd to. [para. 33].

Akpataku v. Canada (Minister of Citizenship and Immigration), [2004] F.T.R. Uned. 410; 131 A.C.W.S.(3d) 496; 2004 FC 698, refd to. [para. 33].

Chowdhury v. Canada (Minister of Citizenship and Immigration) (2002), 218 F.T.R. 264; 2002 FCT 389, refd to. [para. 33].

Pannu v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 924; 153 A.C.W.S.(3d) 195; 2006 FC 1356, refd to. [para. 33].

Liyanage et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 623; 141 A.C.W.S.(3d) 118; 2005 FC 1045, refd to. [para. 33].

Isomi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 919; 157 A.C.W.S.(3d) 807; 2006 FC 1394, refd to. [para. 36].

Alexis v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 257; 2008 FC 273, refd to. [para. 36].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 47].

Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; 288 N.R. 174; 2002 FCA 125, refd to. [para. 47].

Bolanos v. Canada (Minister of Citizenship and Immigration) (2003), 239 F.T.R. 122; 2003 FC 1032, refd to. [para. 47].

Owusu v. Canada (Minister of Citizenship and Immigration), [2004] F.C.R. 635; 318 N.R. 300; 2004 FCA 38, refd to. [para. 50].

Raji v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 332; 158 A.C.W.S.(3d) 464; 2007 FC 653, refd to. [para. 50].

Lim v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 884; 116 A.C.W.S.(3d) 929; 2002 FCT 956, refd to. [para. 57].

Uddin v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 624; 116 A.C.W.S.(3d) 930; 2002 FCT 937, refd to. [para. 57].

Counsel:

Jean-François Fiset, for the applicant;

Caroline Doyon, for the respondent.

Solicitors of Record:

Jean-François Fiset, Montreal, Quebec, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on December 17, 2008, at Montreal, Quebec, by Shore, J., of the Federal Court, who delivered the following judgment at Ottawa, Ontario, on January 5, 2009.

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47 practice notes
  • Table of cases
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Four
    • June 19, 2015
    ...142 Lalane v Canada (Minister of Citizenship and Immigration), 2009 FC 6 .................................................................................................... 419 Lamme v Canada (Minister of Citizenship and Immigration), 2005 FC 1336 ................................................
  • Applications Made on Humanitarian and Compassionate Grounds
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Two
    • June 19, 2015
    ...beyond Applicant’s Control”]; see Regulations, above note 22, s 230; Lalane v Canada (Minister of Citizenship and Immigration) , 2009 FC 6 at para 39. 154 Manual: “Circumstances beyond Applicant’s Control,” above note 153; Bansal , above note 102 at paras 28–30, where the applicant had co-o......
  • Monongo v. Canada (Minister of Citizenship and Immigration), (2009) 353 F.T.R. 220 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 15, 2009
    ... [2007] F.T.R. Uned. 205 ; 2007 FC 331 , refd to. [para. 25]. Lalane v. Canada (Minister of Citizenship and Immigration) (2009), 338 F.T.R. 224; 2009 FC 6 , refd to. [para. Singh (Harpal) v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 900 ; 2001 FCT 1376 , refd......
  • Gonzalez c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • March 26, 2015
    ...2004 CAF 38, [2004] 2 R.C.F. 635 [Owusu], au paragraphe 5). Les conditions générales dans le pays (Citizenship and Immigration), 2009 FC 6, 338 F.T.R. 224, at paragraphs 1 and 38; Piard v. Canada (Citizenship and Immigration), 2013 FC 170, at paragraph 19; Kanthasamy F.C.; Berthou......
  • Request a trial to view additional results
46 cases
  • Monongo v. Canada (Minister of Citizenship and Immigration), (2009) 353 F.T.R. 220 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 15, 2009
    ... [2007] F.T.R. Uned. 205 ; 2007 FC 331 , refd to. [para. 25]. Lalane v. Canada (Minister of Citizenship and Immigration) (2009), 338 F.T.R. 224; 2009 FC 6 , refd to. [para. Singh (Harpal) v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 900 ; 2001 FCT 1376 , refd......
  • Gonzalez c. Canada (Citoyenneté et Immigration),
    • Canada
    • Federal Court (Canada)
    • March 26, 2015
    ...2004 CAF 38, [2004] 2 R.C.F. 635 [Owusu], au paragraphe 5). Les conditions générales dans le pays (Citizenship and Immigration), 2009 FC 6, 338 F.T.R. 224, at paragraphs 1 and 38; Piard v. Canada (Citizenship and Immigration), 2013 FC 170, at paragraph 19; Kanthasamy F.C.; Berthou......
  • Joseph v. Canada (Minister of Citizenship and Immigration), (2015) 481 F.T.R. 236 (FC)
    • Canada
    • Canada (Federal) Federal Court (Canada)
    • April 14, 2015
    ...Uned. 736 ; [2013] 3 F.C.R. 20 ; 2011 FC 1210 , refd to. [para. 44]. Lalane v. Canada (Minister of Citizenship and Immigration) (2009), 338 F.T.R. 224; 2009 FC 6 , refd to. [para. Wan v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 39 ; 243 A.C.W.S.(3d) 955 ; ......
  • Kanthasamy v. Canada (Minister of Citizenship and Immigration), (2014) 459 N.R. 367 (FCA)
    • Canada
    • Canada (Federal) Federal Court of Appeal (Canada)
    • May 2, 2014
    ... [2003] 2 F.C. 555 ; 297 N.R. 187 ; 2002 FCA 475 , refd to. [para. 46]. Lalane v. Canada (Minister of Citizenship and Immigration) (2009), 338 F.T.R. 224; 2009 FC 6 , refd to. [para. Eng et al. v. Canada (Minister of Citizenship and Immigration) et al., [2011] F.T.R. Uned. 374 ; 2011 F......
  • Request a trial to view additional results
2 books & journal articles
  • Table of cases
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Four
    • June 19, 2015
    ...142 Lalane v Canada (Minister of Citizenship and Immigration), 2009 FC 6 .................................................................................................... 419 Lamme v Canada (Minister of Citizenship and Immigration), 2005 FC 1336 ................................................
  • Applications Made on Humanitarian and Compassionate Grounds
    • Canada
    • Irwin Books Immigration Law. Second Edition Part Two
    • June 19, 2015
    ...beyond Applicant’s Control”]; see Regulations, above note 22, s 230; Lalane v Canada (Minister of Citizenship and Immigration) , 2009 FC 6 at para 39. 154 Manual: “Circumstances beyond Applicant’s Control,” above note 153; Bansal , above note 102 at paras 28–30, where the applicant had co-o......

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