Sousa Do Nascimento et al. v. Canada (Minister of Citizenship and Immigration), (2012) 422 F.T.R. 147 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: October 09, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 422 F.T.R. 147 (FC);2012 FC 1424

Sousa Do Nascimento v. Can. (M.C.I.) (2012), 422 F.T.R. 147 (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: [2012] F.T.R. TBEd. DE.022

Marta Sousa Do Nascimento, Yasmin Thatyanne Nascimento Braga and Manuel Sousa Carreiro (applicants) v. The Minister of Citizenship and Immigration (respondent)

(IMM-9219-11; 2012 FC 1424; 2012 CF 1424)

Indexed As: Sousa Do Nascimento et al. v. Canada (Minister of Citizenship and Immigration)

Federal Court

Mosley, J.

December 6, 2012.

Summary:

The principal applicant and her daughter (the applicants) were Brazilian nationals. An immigration officer denied their inland application for permanent residence under the spouse/ partner class. The applicants were inadmissible because they illegally crossed into Canada. They applied for judicial review, claiming that the officer refused to consider humanitarian and compassionate (H&C) considerations, and that they were unfairly denied prior notice that the admissibility issue would be raised at the spousal sponsorship interview.

The Federal Court granted the application. The officer erred in failing to consider the submissions received at the spousal sponsorship interview as an implicit application for H&C consideration. The court referred the matter back for redetermination by a different officer.

Aliens - Topic 1206

Admission - Immigrants - Upon humanitarian and compassionate grounds - [See second Aliens - Topic 1287.2 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See first Aliens - Topic 1287.2 ].

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - The principal applicant and her daughter (the applicants) sought judicial review of a decision by an immigration officer denying their inland application for permanent residence under the spouse/partner class - They had been excluded for one year and were in breach of the requirement to obtain written authorization when they illegally crossed into Canada - The applicants contended that they were unfairly denied prior notice that the admissibility issue would be raised at the spousal sponsorship interview - The Federal Court stated that "the content of the duty of fairness in the context of a sponsorship interview does not require prior notice of an admissibility issue such as the breach of the authorization to return requirement. It is sufficient that the issue be raised and that the applicants are given an opportunity to respond. ... [T]he applicants had the benefit of immigration counsel who accompanied them to the interview but was not, apparently in the interview room. Further, they received legal advice immediately after the interview. Notwithstanding this, no effort was made to provide the officer with submissions in the five to six weeks prior to the determination of the application. In the circumstances, the lack of notice could not be said to have deprived the applicants of an opportunity to make submissions." - See paragraphs 8 to 10.

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - The principal applicant and her daughter (the applicants) sought judicial review of a decision by an immigration officer denying their inland spousal sponsorship application - They had been excluded for one year and were in breach of the requirement to obtain written authorization when they illegally crossed into Canada - During the spousal sponsorship interview, the husband stated: "... I am very happy with my wife ... I now have a daughter. I never had a child and it is a wonderful feeling. I work hard to provide for them and I would do anything for them. Is there anything I can do?" - The Federal Court held that the officer erred in failing to consider the submissions received at the spousal sponsorship interview as an implicit application for humanitarian and compassionate (H&C) consideration - The respondent's position that the officer had no authority to consider an implied request was inconsistent with the IP Manual, recent jurisprudence and the officer's own understanding of her duties - On the face of the information before the officer, it was unreasonable not to consider whether the H&C factors would justify an exemption - The court sent the matter back for redetermination before a different officer - See paragraphs 11 to 22.

Cases Noticed:

Husain v. Canada (Minister of Citizenship and Immigration) (2011), 388 F.T.R. 153; 2011 FC 451, refd to. [para. 6].

Millette v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 162; 2012 FC 542, refd to. [para. 6].

Jnojules v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 511; 2012 FC 531, refd to. [para. 6].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 7].

Kumari v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 878; 2003 FC 1424, refd to. [para. 16].

Fen v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 895; 2003 FC 1492, refd to. [para. 16].

Mustafa v. Canada (Minister of Citizenship and Immigration) (2006), 306 F.T.R. 52; 2006 FC 1092, refd to. [para. 16].

Araujo v. Canada (Minister of Citizenship and Immigration) - see De Araujo v. Canada (Minister of Citizenship and Immigration).

De Araujo v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 294; 2009 FC 515, refd to. [para. 18].

Toussaint v. Canada (Minister of Citizenship and Immigration) (2011), 417 N.R. 356; 2011 FCA 146, refd to. [para. 18].

Brar v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 192; 2011 FC 691, refd to. [para. 20].

Rogers v. Canada (Minister of Citizenship and Immigration) (2009), 339 F.T.R. 191; 2009 FC 26, refd to. [para. 20].

Authors and Works Noticed:

Canada, Citizenship and Immigration Canada, IP-5 - Immigration Applications in Canada made on Humanitarian and Compassionate Grounds, sect. 5.27 [para. 19].

Counsel:

Hadayt Nazami, for the applicants;

Nimanthika Kaneira, for the respondent.

Solicitors of Record:

Hadayt Nazami, Jackman & Associates, Toronto, Ontario, for the applicants;

Myles J. Kirvan, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on October 9, 2011, before Mosley, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated December 6, 2012.