Mckenzie v. Canada (Minister of Citizenship and Immigration), (2015) 482 F.T.R. 188 (FC)

JudgeO'Keefe, J.
CourtFederal Court (Canada)
Case DateDecember 10, 2014
JurisdictionCanada (Federal)
Citations(2015), 482 F.T.R. 188 (FC);2015 FC 719

Mckenzie v. Can. (M.C.I.) (2015), 482 F.T.R. 188 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JN.033

Richard Anthony Mckenzie and Allecia Allen Mckenzie (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5035-13; 2015 FC 719)

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

Federal Court

O'Keefe, J.

June 8, 2015.

Summary:

The applicants, citizens of Jamaica, applied for permanent residence on humanitarian and compassionate grounds. An immigration officer rejected the application. The applicants applied for judicial review, arguing that (1) the officer erred in assessing the best interests of their Canadian born child; (2) the officer erred in law and in fact in refusing their application; and (3) they were denied procedural fairness due to the incompetence of their immigration consultant.

The Federal Court dismissed the application.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - [See Aliens - Topic 11 ].

Aliens - Topic 4

Definitions and general principles - Children - The applicants, citizens of Jamaica, applied for permanent residence on humanitarian and compassionate (H&C) grounds - An immigration officer rejected the application - The applicants applied for judicial review, arguing that the officer erred in his best interests of the child (BIOC) analysis respecting their Canadian born child - The Federal Court dismissed the application - There was no specific "formula" that an officer was expected to follow in conducting the BIOC analysis - The BIOC assessment was better examined based on the reasonableness of the officer's analysis - The officer's reasoning about the BIOC displayed the requirements of being "alert, alive and sensitive" - He understood the perspective of the child and was aware of the applicants' interests and the impact that a refusal of the H&C application could have on the child's future - He did not use "adequate and basic care" as a standard - See paragraphs 64 to 66 and 73 to 83.

Aliens - Topic 11

Definitions and general principles - Immigration consultants - The applicants, citizens of Jamaica, were granted temporary resident status which expired in June 2012 - In January 2012, the female applicant was issued a study permit which was valid until December 2014 - However, she did not present herself at a port of entry to have the study permit issued - An immigration officer rejected the applicants' application for permanent residence on humanitarian and compassionate grounds - The applicants applied for judicial review, arguing that they were denied procedural fairness because their immigration consultant failed to (1) advise the female applicant that she needed to activate the study permit at a port of entry; and (2) submit letters of support that formed part of their hardship claim - The Federal Court dismissed the application - The fact that the applicants' complaint to the Immigration Consultants of Canada was being processed was a clear indication of negligence by the consultant - Although the female applicant's study permit might not have impacted the officer's overall determination, the letters of support were substantially related to the application - Nonetheless, the applicants failed to show that the result might have been different if the officer had considered the additional letters of support - Further, the letters were similar to ones they had previously submitted - The consultant's alleged incompetence did not constitute a breach of procedural fairness - See paragraphs 54 to 63.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - [See Aliens - Topic 4 ].

Aliens - Topic 4085.1

Practice - Hearings - Representation by non-lawyer - [See Aliens - Topic 11 ].

Cases Noticed:

Pokhan v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 732; 2012 FC 1453, refd to. [para. 20].

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. 29].

Kisana v. Canada (Minister of Citizenship and Immigration), [2010] 1 F.C.R. 360; 392 N.R. 163; 2009 FCA 189, refd to. [para. 29].

Moya et al. v. Canada (Minister of Citizenship and Immigration) (2012), 416 F.T.R. 247; 2012 FC 971, refd to. [para. 29].

Serda et al. v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 209; 2006 FC 356, refd to. [para. 30].

Mayburov et al. v. Canada (Minister of Citizenship and Immigration) (2000), 183 F.T.R. 280; 6 Imm. L.R.(3d) 246 (T.D.), refd to. [para. 30].

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; 297 N.R. 187; 2002 FCA 475, refd to. [para. 31].

Miller v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 558; 2012 FC 1173, refd to. [para. 31].

Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 597; 101 A.C.W.S.(3d) 995 (T.D.), refd to. [para. 32].

Memari v. Canada (Minister of Citizenship and Immigration), [2012] 2 F.C.R. 350; 378 F.T.R. 206; 2010 FC 1196, refd to. [para. 33].

Huynh v. Minister of Employment and Immigration (1993), 65 F.T.R. 11 (T.D.), refd to. [para. 33].

Cove v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 121; 2001 FCT 266, refd to. [para. 34].

El Ghazaly et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 909; 2007 FC 1329, refd to. [para. 34].

Betesh v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 126; 2008 FC 173, refd to. [para. 34].

Vieira v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 337; 2007 FC 626, refd to. [para. 39].

Dukuzumuremyi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 158; 2006 FC 278, refd to. [para. 40].

Odafe v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 874; 2011 FC 1429, refd to. [para. 40].

Teganya v. Canada (Minister of Citizenship and Immigration) (2011), 386 F.T.R. 160; 2011 FC 336, refd to. [para. 40].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 41].

Tabañag v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 798; 2011 FC 1293, refd to. [para. 44].

Mahouri v. Canada (Minister of Citizenship and Immigration) (2013), 428 F.T.R. 263; 2013 FC 244, refd to. [para. 44].

Isomi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 919; 2006 FC 1394, refd to. [para. 44].

Mikhno v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 325; 2010 FC 386, refd to. [para. 51].

Singh et al. v. Canada (Minister of Citizenship and Immigration) (2009), 340 F.T.R. 29; 2009 FC 11, refd to. [para. 51].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 51].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 53].

Kolosovs v. Canada (Minister of Citizenship and Immigration) (2008), 323 F.T.R. 181; 2008 FC 165, refd to. [para. 74].

Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.), refd to. [para. 88].

Counsel:

Mary Lam, for the applicants;

Alex C. Kam, for the respondent.

Solicitors of Record:

Mary Lam, Toronto, Ontario, for the applicants;

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

This application for judicial review was heard at Toronto, Ontario, on December 10, 2014, before O'Keefe, J., of the Federal Court, who delivered the following judgment and reasons at Ottawa, Ontario, on June 8, 2015.

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3 practice notes
  • Zhu v. Canada (Public Safety and Emergency Preparedness), 2017 FC 626
    • Canada
    • Federal Court (Canada)
    • 4 July 2017
    ...forward documentation clearly supporting his position and, in effect, filling that gap (McKenzie v Canada (Citizenship and Immigration), 2015 FC 719 at paras 61-63; Teganya v Canada (Citizenship and Immigration), 2011 FC 336 at paras 32 and 37). I have reviewed the evidence attached as an e......
  • Alarcon et al. v. Canada (Minister of Citizenship and Immigration), 2015 FC 1295
    • Canada
    • Federal Court (Canada)
    • 18 November 2015
    ...of the children are subject to the standard of review of reasonableness ( Mckenzie v Canada (Minister of Citizenship and Immigration) , 2015 FC 719; Miller v Canada (Minister of Citizenship and Immigration) , 2012 FC 1173). VIII. Analysis [13] The H&C decision-making process provided at......
  • Lu v. Canada (Minister of Citizenship and Immigration), 2016 FC 175
    • Canada
    • Federal Court (Canada)
    • 9 February 2016
    ...(Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61; McKenzie v Canada (Citizenship and Immigration) , 2015 FC 719 at para 52. [15] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justificatio......
3 cases
  • Zhu v. Canada (Public Safety and Emergency Preparedness), 2017 FC 626
    • Canada
    • Federal Court (Canada)
    • 4 July 2017
    ...forward documentation clearly supporting his position and, in effect, filling that gap (McKenzie v Canada (Citizenship and Immigration), 2015 FC 719 at paras 61-63; Teganya v Canada (Citizenship and Immigration), 2011 FC 336 at paras 32 and 37). I have reviewed the evidence attached as an e......
  • Alarcon et al. v. Canada (Minister of Citizenship and Immigration), 2015 FC 1295
    • Canada
    • Federal Court (Canada)
    • 18 November 2015
    ...of the children are subject to the standard of review of reasonableness ( Mckenzie v Canada (Minister of Citizenship and Immigration) , 2015 FC 719; Miller v Canada (Minister of Citizenship and Immigration) , 2012 FC 1173). VIII. Analysis [13] The H&C decision-making process provided at......
  • Lu v. Canada (Minister of Citizenship and Immigration), 2016 FC 175
    • Canada
    • Federal Court (Canada)
    • 9 February 2016
    ...(Information and Privacy Commissioner) v Alberta Teachers' Association, 2011 SCC 61; McKenzie v Canada (Citizenship and Immigration) , 2015 FC 719 at para 52. [15] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justificatio......

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