Federal Court Decisions

Date: 20020710

Docket: IMM-1918-01

Neutral citation: 2002 FCT 765

Toronto, Ontario, Wednesday the 10^th day of July, 2002

PRESENT:      The Honourable Mr. Justice Campbell

BETWEEN:

                               GODWIN IDEHEN OSAGIE

                                                                                                     Applicant

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                 Respondent

                     REASONS FOR ORDER AND ORDER

• [1]    This is an application for judicial review of an Immigration Officer's decision, dated March 27, 2001, refusing the Applicant's application for an exemption to the normal requirements of applying for and obtaining and immigrant visa from outside of Canada on H & C grounds under s.114(2) of the Immigration Act, R.S.C. 1985, c.I-2.

• [2]    The Applicant is a citizen of Nigeria who arrived in Canada in February 1998 as a visitor. Since that time, the Applicant has been steadily employed and has a child with his common law spouse. The Applicant's H & C application was based on his establishment in Canada and his fear of returning to Nigeria.
• [3]    In my opinion, the Immigration Officer's rationale for the decision indicates that a reviewable error was made in the failure to assess the best interests of the Applicant's Canadian-born child, and, as such, it is unnecessary to address all the issues raised by the Applicant is this review.

  

• [4]    In correspondence dated September 2000, Applicant's counsel indicated that since the time that the application had been initiated, the Applicant had entered into a common law relationship and had recently had a baby girl. The letter specifically stated that the Applicant was the sole breadwinner in the family while his spouse was on maternity leave.
• [5]    The Immigration Officer acknowledged and assessed this submission as follows:

In addition, I have taken into consideration counsel's correspondence stating that Mr. Osagie has been living common law with a woman by the name of Helena Osarogiagbon, and that they just had a baby together. Mr. Osagie did not present sufficient evidence or documents in connection to this relationship. Also, Ms. Osarogiagbon's status in Canada is still undetermined as she is still pursuing a Federal Court appeal with regards to her refugee claim.

(Applicant's Record, p. 7)

  

• [6]                 Indeed, evidence on the nature of the relationship was supplied through uncontested submissions by counsel and a physician's note confirming the birth of the child. In light of this uncontradicted evidence before her, I find the Immigration Officer's conclusion that sufficient evidence of the family relationship had not been provided to be patently unreasonable.
• [7]                 I find that there was no basis in the evidence to disregard the existence of the Applicant's Canadian-born child. As a result, there also was no basis upon which the Immigration Officer could then completely fail to address the best interests of the child as required by the immigration guidelines and clear legal authority stipulating that immigration officers must be alert, alive and sensitive to the best interests of children and afford them substantial weight (Baker v. M.C.I., [1999] 2 S.C.R. 817). The Immigration Officer seemed more concerned with the Applicant's common law spouse's legal status in Canada, rather than the financial, emotional and physical dependency and needs of the child and the family unit as a whole. In doing so, the Immigration Officer erred both in law and fact.                

     

                                                  ORDER

1.                    Accordingly, the Immigration Officer's decision is set aside and the matter is referred back to a different officer for redetermination.

          "Douglas R. Campbell"

Judge

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record                                                                                                  

COURT NO:                              IMM-1918-01

STYLE OF CAUSE:                       GODWIN IDEHEN OSAGIE

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                                                   

DATE OF HEARING:              WEDNESDAY, JULY 10, 2002                         

PLACE OF HEARING:              TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                         CAMPBELL J.

DATED:                          WEDNESDAY, JULY 10, 2002

APPEARANCES:                         Mr. Munyonzwe Hamalengwa

For the Applicant

Ms. Mielka Visnic

                                For the Respondent

SOLICITORS OF RECORD:       Munyonzwe Hamalengwa

Barrister & Solicitor

                                      45 Sheppard Avenue East

Suite 900

Toronto, Ontario

M2N 5W9

For the Applicant

                                                                   

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

     Date: 20020710

                                   Docket:IMM-1918-01

Between:

GODWIN IDEHEN OSAGIE

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                                   

REASONS FOR ORDER

AND ORDER