Onowu v. Canada (Minister of Citizenship and Immigration), 2015 FC 64

• Judge: Gagné, J.
• Court: Federal Court (Canada)
• Case Date: September 04, 2014
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 64;(2015), 473 F.T.R. 288 (FC)

Onowu v. Can. (M.C.I.) (2015), 473 F.T.R. 288 (FC)

MLB headnote and full text

Temp. Cite: [2015] F.T.R. TBEd. JA.049

Anthonia Onowu Emmanuel Onowu in his own right, and as litigation guardian to the minors, Dave Onowu, Joel Onowu v. Emmanuelle Onowu (applicants) and The Minister of Citizenship and Immigration (respondent)

(IMM-786-14; 2015 FC 64)

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

Federal Court

Gagné, J.

January 16, 2015.

Summary:

The applicants applied for permanent residence from within Canada based on humanitarian and compassionate grounds pursuant to s. 25(1) of the Immigration and Refugee Protection Act. The application was filed by the principal applicant, a citizen of Nigeria, his Nigerian spouse, a 12 year-old son born in Nigeria, and an 11 year-old son and a five year-old daughter born in Hong Kong. The principal applicant and his spouse also had a two year-old Canadian born son who was not included in their application. A Senior Immigration Officer refused the application. The applicants applied for judicial review. The applicants argued that: (1) the officer applied the wrong test in determining the applicants' establishment in Canada; (2) the officer applied the wrong test to assess the best interests of the children; and (3) the officer erred in providing inadequate reasons.

The Federal Court dismissed the application.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Sufficiency of - [See Aliens - Topic 1239 ].

Aliens - Topic 4

Definitions and general principles - Children - The applicants applied for permanent residence from within Canada based on humanitarian and compassionate (H&C) grounds - The application was filed by the principal applicant, a citizen of Nigeria, his Nigerian spouse, a 12 year-old son born in Nigeria, and an 11 year-old son and a five year-old daughter born in Hong Kong - The principal applicant and his spouse also had a two year-old Canadian born son who was not included in their application - A Senior Immigration Officer refused the H&C application - The applicants applied for judicial review - They argued that the officer applied the wrong test to determine the best interests of the children (BIOC) and that the test in Williams v. Canada (Minister of Citizenship and Immigration) (2012 FC) should have been employed - The Federal Court held that there was no requirement to use the Williams approach - The Williams test was only one of several methods available to decision-makers in assessing the BIOC - The question was not whether the decision-maker chose and applied the right test, but rather whether he or she chose and applied a reasonable approach - In order for an approach to be reasonable, the officer's analysis had to demonstrate that he or she was "alert, alive and sensitive" to the BIOC - The intensity of the BIOC analysis would depend on the length and focus of the applicant's submissions and the evidence adduced - The officer was "alert, alive and sensitive" to the BIOC given the quality of the submissions raised and the amount of evidence before her - The approach employed was reasonable - See paragraphs 36 to 60.

Aliens - Topic 25

Definitions and general principles - Immigration manuals, guidelines, etc. - [See Aliens - Topic 1206 ].

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - A Senior Immigration Officer refused the applicants' application for permanent residence from within Canada based on humanitarian and compassionate (H&C) grounds - The applicants applied for judicial review - The applicants submitted that the officer applied the wrong test in determining their establishment in Canada and that her analysis should have been guided by Appendix B of the Inland Processing Policy Manual, Chapter 5, "Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds" (the Guidelines) - The Federal Court dismissed the application - The officer considered the applicants' establishment in Canada in a way that was defensible and acceptable on the facts before her - Her language of reference, or various modes of expression and comparison, in saying that the applicants' establishment was not exceptional for the purposes of an H&C application did not, in and of itself, create a wrong standard - The officer reasoned that she did not see the hardship that would result from the applicants' establishment in Canada to be beyond asking one to "leav[e] behind friends, perhaps family, employment or a residence" - It was fully reasonable for her to adopt such an approach - The legislator had chosen not to prescribe a particular test to be applied by a decision-maker when determining whether to grant H&C relief - In Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014 FCA), the court specified that the factors enumerated in the Guidelines were reasonable types of matters that an officer had to consider on H&C grounds when raised by an applicant, but they were not law - The Guidelines could not fetter the discretion of decision-makers - Therefore, there was no mechanical way in which an officer had to approach such factors - See paragraphs 26 to 35.

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - A Senior Immigration Officer refused the applicants' application for permanent residence from within Canada based on humanitarian and compassionate grounds - The applicants applied for judicial review - The applicants argued that the officer's reasons were unreasonable because they did not appear logical, transparent or intelligible - Counsel submitted, inter alia, that the reasons were vague - In saying that the applicants did not demonstrate a deep seated attachment and rooting in Canada, the officer did not explain how she reached her conclusion nor what "deep seated attachment and rooting" actually meant - The Federal Court dismissed the application - As a whole, the reasons were adequate - On a standard of reasonableness, the officer's reasoning process fell within the acceptable range because it clearly showed explicit and thoughtful consideration of the main relevant factors - The court stated that "... this Court has held that 'when notes are the method used to provide reasons, the threshold for adequacy of reasons is fairly low'; the law is clear that administrative officers are not required to provide detailed reasons for their decisions in a way similar to that expected of adjudicative administrative tribunals - such a requirement would be inappropriate ... Further, this Court is required to respectfully appreciate 'that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist'" - See paragraphs 61 to 74.

Cases Noticed:

Irimie v. Canada (Minister of Citizenship and Immigration), [2000] F.T.R. Uned. 597 (T.D.), refd to. [para. 18].

Blas et al. v. Canada (Minister of Citizenship and Immigration) (2014), 457 F.T.R. 182; 2014 FC 629, refd to. [para. 22].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 2014 FCA 114, refd to. [para. 22].

Kanthasamy v. Canada (Minister of Citizenship and Immigration) (2014), 459 N.R. 367; 2014 FCA 113, refd to. [para. 22].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al., [2013] 2 S.C.R. 559; 446 N.R. 65; 2013 SCC 36, refd to. [para. 22].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 22].

Jnojules v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 511; 2012 FC 531, refd to. [para. 22].

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, refd to. [para. 23].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 23].

Reis v. Canada (Minister of Citizenship and Immigration) (2012), 405 F.T.R. 104; 2012 FC 179, refd to. [para. 25].

Smith v. Minister of National Revenue (2001), 272 N.R. 174; 2001 FCA 86, refd to. [para. 25].

Quiroa et al. v. Canada (Minister of Citizenship and Immigration) (2007), 312 F.T.R. 262; 2007 FC 495, refd to. [para. 25].

Landazuri Moreno v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 198; 2014 FC 481, refd to. [para. 27].

Kisana v. Canada (Minister of Citizenship and Immigration) (2009), 392 N.R. 163; 2009 FCA 189, refd to. [para. 27].

Owusu v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 300; 2004 FCA 38, refd to. [para. 27].

Ahmad et al. v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 460; 2008 FC 646, refd to. [para. 28].

Paz v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 252; 2009 FC 412, refd to. [para. 31].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 31].

Iamkhong v. Canada (Minister of Citizenship and Immigration) et al. (2011), 386 F.T.R. 297; 2011 FC 355, refd to. [para. 31].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 33].

Williams v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 79; 2012 FC 166, refd to. [para. 36].

Chandidas v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 55; 2013 FC 258, refd to. [para. 43].

Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555; 297 N.R. 187 (F.C.A.), refd to. [para. 44].

Webb v. Canada (Minister of Citizenship and Immigration) (2012), 417 F.T.R. 306; 2012 FC 1060, refd to. [para. 44].

Moya et al. v. Canada (Minister of Citizenship and Immigration) (2012), 416 F.T.R. 247; 2012 FC 971, refd to. [para. 47].

Legault v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 174; 2002 FCA 125, refd to. [para. 48].

Griffiths v. Canada (Minister of Citizenship and Immigration) (2011), 388 F.T.R. 76; 2011 FC 434, refd to. [para. 50].

Hussain v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 425; 2006 FC 719, refd to. [para. 51].

Via Rail Canada Inc. v. National Transportation Agency et al., [2001] 2 F.C. 25; 261 N.R. 184 (F.C.A.), refd to. [para. 70].

He v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 207; 2012 FC 33, refd to. [para. 71].

Ozdemir v. Canada (Minister of Citizenship and Immigration) (2001), 282 N.R. 394; 2001 FCA 331, refd to. [para. 71].

Jaramillo et al. v. Canada (Minister of Citizenship and Immigration) (2014), 460 F.T.R. 208; 2014 FC 744, refd to. [para. 76].

Martinez Hoyos et al. v. Canada (Minister of Citizenship and Immigration) (2013), 440 F.T.R. 84; 2013 FC 998, refd to. [para. 76].

Zazai v. Canada (Minister of Citizenship and Immigration) (2004), 318 N.R. 365; 2004 FCA 89, refd to. [para. 76].

Counsel:

Stella Iriah Anaele, for the applicants;

Suranjana Bhattacharryya, for the respondent.

Solicitors of Record:

Stella Iriah Anaele, Toronto, Ontario, for the applicants;

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

This application was heard on September 4, 2014, at Toronto, Ontario, before Gagné, J., of the Federal Court, who delivered the following decision on January 16, 2015.