Vassell-Samuel v. Canada (Minister of Citizenship and Immigration), (2013) 450 F.T.R. 16 (FC)

• Judge: Annis, J.
• Court: Federal Court (Canada)
• Case Date: July 23, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 450 F.T.R. 16 (FC);2013 FC 995

Vassell-Samuel v. Can. (M.C.I.) (2013), 450 F.T.R. 16 (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: [2014] F.T.R. TBEd. JL.064

Suzette Alicia Vassell-Samuel (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8827-12; 2013 FC 995; 2013 CF 995)

Indexed As: Vassell-Samuel v. Canada (Minister of Citizenship and Immigration)

Federal Court

Annis, J.

September 27, 2013.

Summary:

The applicant was denied a request to sponsor her husband (Mr. Samuel) for a permanent resident visa in the family class because he was found to be inadmissible to Canada under s. 52(1) of Immigration and Refugee Protection Act. A visa officer determined that a removal order had been enforced against Mr. Samuel in December 2000 and that he therefore required a Minister's written Authorization to Return to Canada. The applicant appealed on humanitarian and compassionate (H&C) grounds for special relief, taking into consideration the best interests of Mr. Samuel's son who was born in January 2000 from a short relationship with another woman with whom he continued to share custody in Jamaica. The Immigration Appeal Division was not satisfied that there were sufficient H&C considerations to warrant granting special relief. The applicant applied for judicial review of that decision.

The Federal Court allowed the application.

Aliens - Topic 11

Definitions and general principles - Immigration consultants - The applicant was denied a request to sponsor her husband (Mr. Samuel) for a permanent resident visa in the family class because he was found to be inadmissible to Canada under s. 52(1) of Immigration and Refugee Protection Act - The applicant appealed on humanitarian and compassionate (H&C) grounds for special relief - The Immigration Appeal Division was not satisfied that there were sufficient H&C considerations to warrant granting special relief - The applicant applied for judicial review - The applicant alleged incompetence by her representative, an immigration consultant, in particular with respect to the decision not to call Mr. Samuel as a witness - The Federal Court was not satisfied that the applicant had demonstrated incompetence on the part of her representative at the hearing - In addition, the applicant had not met "the high onus of demonstrating that she was substantially prejudiced by an error on the part of counsel, or that this prejudice flowed from the actions or inactions of counsel, or that the prejudice brought about a miscarriage of justice" - See paragraphs 25 to 35.

Aliens - Topic 1206

Admission - Immigrants - General - Upon compassionate or humanitarian grounds - [See second Aliens - Topic 1287 ].

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See first Aliens - Topic 1287 ].

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - The applicant was denied a request to sponsor her husband (Mr. Samuel) for a permanent resident visa in the family class because he was found to be inadmissible to Canada under s. 52(1) of Immigration and Refugee Protection Act - A visa officer determined that a removal order had been enforced against Mr. Samuel in December 2000 and that he therefore required a Minister's written Authorization to Return to Canada - The circumstances of the removal in 2000 were that Mr. Samuel had entered Canada as a visitor in 1999 but overstayed his visitor's visa when it expired and had worked without a work permit - In November, 2000, he was convicted of assault - The applicant appealed on humanitarian and compassionate (H&C) grounds for special relief - The Immigration Appeal Division was not satisfied that there were sufficient H&C considerations to warrant granting special relief - The applicant applied for judicial review - The Federal Court allowed the application - The court stated, inter alia, that "there has been a failure of procedural fairness. The problem arises from the respondent failing to give notice of the omission in the application or taking it up in any fashion during the hearing ... There is an equally serious problem with the Board's justification in attributing to Mr. Samuel the conduct described in the FOSS [Field Operations Support System] notes on the basis of his failure to testify. ... I further find that the Board violated section 5 of the Criminal Records Act by referring to Mr. Samuel's conviction in respect of which a pardon was granted in a manner that reflected adversely on his character" - See paragraphs 36 to 47.

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - The applicant was denied a request to sponsor her husband (Mr. Samuel) for a permanent resident visa in the family class because he was found to be inadmissible to Canada under s. 52(1) of Immigration and Refugee Protection Act - A visa officer determined that a removal order had been enforced against Mr. Samuel in December 2000 and that he therefore required a Minister's written Authorization to Return to Canada - The circumstances of the removal in 2000 were that Mr. Samuel had entered Canada as a visitor in 1999 but overstayed his visitor's visa when it expired and had worked without a work permit - In November, 2000, he was convicted of assault - The applicant appealed on humanitarian and compassionate (H&C) grounds for special relief taking into consideration the best interests of Mr. Samuel's son who was born in January 2000 from a short relationship with another woman with whom he continued to share custody in Jamaica - The Immigration Appeal Division was not satisfied that there were sufficient H&C considerations to warrant granting special relief - The applicant applied for judicial review - The Federal Court allowed the application - The court stated, inter alia, "The Board stated in its reasons that in 2008, two years after the applicant met her sponsored spouse, he fathered a son with another woman. This was incorrect. ... the spouse's son was born eight years earlier, in 2000 ... Having a child by another woman while courting the appellant surely would be seen as probative evidence to support the conclusion that Mr. Samuel had not changed his ways. This was therefore a significant mistake of fact. For all of the foregoing reasons, I am not satisfied that the Board's decision was justified or reasonable in so far as it was based upon the Board's negative conclusions about Mr. Samuel's character and moral qualities" - See paragraphs 48 to 51.

Aliens - Topic 4085.1

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

Cases Noticed:

Singh (Amrik) v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 610; 2002 FCT 347, refd to. [para. 17].

Boroumand v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 387; 2011 FC 643, refd to. [para. 18].

Sidhu v. Canada (Minister of Citizenship and Immigration) (2012), 409 F.T.R. 58; 2012 FC 515, refd to. [para. 19].

Galyas v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 1; 2013 FC 250, refd to. [para. 20].

Andujo v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 298; 2011 FC 731, refd to. [para. 21].

Akbari v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 785; 2006 FC 1421, refd to. [para. 21].

Chazaro v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 563; 2006 FC 966, refd to. [para. 21].

Betesh v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 126; 2008 FC 173, refd to. [para. 26].

Brown v. Canada (Minister of Citizenship and Immigration) et al., [2012] F.T.R. Uned. 663; 2012 FC 1305, refd to. [para. 31].

Lopes v. Canada (Minister of Citizenship and Immigration) (2010), 367 F.T.R. 41; 2010 FC 403, refd to. [para. 33].

Shirvan et al. v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 920; 2005 FC 1509, refd to. [para. 34].

Rajagopal v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.T.R. Uned. 378; 2007 FC 523, refd to. [para. 44].

Counsel:

David Orman, for the applicant;

Martin Anderson and Norah Dorcine, for the respondent.

Solicitors of Record:

David S. Orman, Toronto, Ontario, for the applicant;

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

This application was heard on July 23, 2013, at Toronto, Ontario, before Annis, J., of the Federal Court, who delivered the following decision on September 27, 2013.