Date: 20050615
Docket: IMM-9747-04
Citation: 2005 FC 851
OTTAWA, ONTARIO, June 15, 2005
Present: THE HONOURABLE JUSTICE LUC MARTINEAU
BETWEEN:
TERRY EGBEJULE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under section 72 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (the "IRPA") of decision of the Immigration Officer Marjolaine Pellettier, (the "Immigration Officer") dated November 6, 2004, wherein it was determined that there were not sufficient humanitarian and compassionate grounds to warrant exempting the applicant, Mr. Terry Egbejule, from the requirement of subsection 11(1) of the IRPA.
[2] The applicant, a twenty-eight-year-old citizen of Nigeria, arrived in Canada on July 20, 2000 with a British passport under the name of Paul William Kent. On July 24, 2000, he claimed refugee status declaring to be Terry Egbejule, born at Delta States, in Nigeria, on August 18, 1976. Meanwhile, the applicant met Sylvia Marioara Manirescu, now his wife, on November 11, 2000. The Immigration and Refugee Board (IRB) determined that the applicant was not a "Convention refugee" nor a "person in need of protection". The applicant submitted an application for judicial review of the IRB's decision. On September 20, 2001, this Court refused to grant leave for judicial review. That same month, the applicant asked Sylvia Marioara Manirescu to marry him. On December 15, 2001, the applicant and Sylvia Marioara Manirescu were married.
[3] On January 8, 2002, the applicant made a request for exemption for visa requirement as a spouse to a Canadian citizen and also completed a form entitled Supplementary Information Spouse in Canada of a Canadian citizen or permanent resident. In that form, the applicant explained the reason why he was applying for landing from within Canada as follows: "I am a Refugee, I fear for my life". On that same day, his wife made an application to sponsor the applicant as a member of the family class.
[4] On August 24, 2004, the applicant was informed that his application for permanent residence on humanitarian grounds was under process and that an update of his file had to be provided. A list of the required documents or information was provided and contained an important notice. The said notice was basically informing the applicant that since the coming into force of the IRPA, marriage or common-law relationship is no longer a sufficient reason in and of itself to grant a ministerial exemption. As a result, the applicant was compelled to demonstrate an excessive difficulty which would be caused if he was required to submit his application abroad as required by the IRPA.
[5] In September 2004, a Nigerian passport was issued to the applicant indicating that he was born in Ebute-Metta, Nigeria. On November 8, 2004, the applicant's application for permanent residence made from within Canada was refused. The Immigration Officer's decision was based on the following elements: the identity of the applicant was doubtful; proof of cohabitation was insufficient; there were doubts about the good faith of the marriage; accusations were pending against the applicant in Canada; the applicant did not successfully prove his life would be at risk if he was to be returned to Nigeria; and finally, the applicant did not convince the Immigration Officer that his personal circumstances are such that the hardship of having to obtain an immigrant visa from outside of Canada would cause an unusual and undeserved or disproportionate hardship. On that same day, the sponsorship application made by his wife was also refused.
[6] Fundamentally, the applicant argues that he did not make an application on humanitarian grounds, rather that he applied in Canada as a spouse based on the fact that his sponsor, his wife, is a Canadian. Furthermore, the applicant contends that if his application was indeed lawfully converted by the Immigration Officer into a humanitarian and compassionate application, he was not given all the latitude envisaged by section 66 of the Regulations and was not given the Form 5283 which is a document on which the applicant could have given his reasons for seeking exceptional consideration. In other words, the applicant argues that the Immigration Officer did not give the applicant room to establish sufficient facts commensurate to the Immigration Officer's expectations. In addition, the applicant submits that the Immigration Officer erred in determining that an exemption should not be granted pursuant to subsection 12(1) of the IRPA and section 4 of the Regulations. More specifically, the applicant argues that the Immigration Officer's conclusion that the applicant's marriage is not genuine and that he will not encounter undue or excessive hardship if he is forced to apply for permanent residence outside Canada is unreasonable.
[7] Irrespective of the standard applied, and for the reasons expressed later on in these reasons, the present application must fail. However, two preliminary remarks must be made before I examine the merit of the arguments submitted by the applicant.
[8] First, it is trite law that judicial review of a decision has to be made in light of the evidence that was submitted before the decision maker. The applicant has filed a document entitled "Further Affidavit of the applicant". After closely examining at that document, I conclude that it refers to facts and documents which are posterior to the date of the Immigration Officer's decision. Therefore, I cannot take into account the said document in the present judicial review (Ye v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1461 (F.C.T.D.) online: QL; Zolotareva v. Canada (Minister of Citizenship and Immigration), 2003 FC 1274, [2003] F.C.J. No. 1596 (T.D.) online: QL; Pfizer Canada Inc. v. Canada (Minister of Health), 2004 FC 1526; [2004] F.C.J. No. 1833 (T.D.) online: QL; Pauktuutit, Inuit Women's Assn. v. Canada, 2003 FCT 139; [2003] F.C.J. No. 238 (T.D.) online: QL)
[9] Second, in the context of a judicial review, the powers of the Court are limited and set out in subsection 18.1(3) of the Federal Courts Act, R.S.C., 1985, c. F-7. As for the applicant's request that this Court find that his removal order is moot and order that the applicant be accommodated under the new policy after having declared that the marriage is genuine, this Court does not have the power to make such rulings.
[10] Now, with respect to the merit of this case, I will start by reiterating that every immigrant and visitor must, before entering Canada, make an application for a visa or for any other document required by the Regulations (subsection 9(1) of Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and subsection 11(1) of the IRPA). Subsection 114(2) of the former Act, empowered the Governor in Council to authorize the Minister to facilitate a person's admission owing to the existence of compassionate or humanitarian considerations. Subsection 2.1 of the Immigration Regulations, 1978, SOR/78-172 (the former Regulations) so authorized the Minister. Section 25 of the IRPA is to the same effect. Therefore, all applications for exemption were based on the grounds of compassionate or humanitarian considerations. Moreover, in accordance with section 190 of the IRPA every application, proceeding or matter under the former Act that is pending or in process immediately before the coming into force of the IRPA shall be governed by the IRPA.
[11] That being said, it has already been noted that subsection 114(2) of the former Act is an exceptional measure which is part of a legislative framework where non-citizens do not have a right to enter or remain in Canada, where in general, immigration is a privilege not a right (Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358). Indeed, Parliament chose, at subsection 114(2), to restrain the discretionary exercise to cases where there are compassionate and humanitarian considerations (Legault, supra, at para. 17). On this matter, I note that prior to the coming into force of the IRPA, landing on public policy or humanitarian grounds could be granted to prescribed classes of immigrants but the "spouse in Canada" was not a prescribed class then (subsection 6(5) of the former Act and section 11.2 of the former Regulations). In fact, the "spouse in Canada" class has been prescribed by section 123 of the Regulations. Consequently, the "spouse in Canada" class did not exist prior to the IRPA coming into force.
[12] At this point, I wish to specify that an application for permanent residence from within Canada is a two-step decision making process. First, humanitarian and compassionate factors are assessed in order to decide whether an exemption should be granted. This determination is made in accordance with section 25 of the IRPA and not with subsection 12(1) of the IRPA and section 4 of the Regulations. On this matter, a request for exemption for immigrant visa is distinct from an application to sponsor and governed by distinct provisions in the IRPA and the Regulations. Then, if applicable, the applicant has to meet all other statutory requirements.
[13] As to the first issue raised by the applicant, I am of the opinion that the Immigration Officer did not err when she determined that the applicant had submitted an application for visa exemption based upon compassionate and humanitarian considerations. In addition, it is well known that Immigration Officers are bound to follow the policy of the government (Ochnio v. Canada (Minister of Employment and Immigration), [1985] F.C.J. No. 816 (F.C.T.D.)). They have a duty to act fairly and to conform to the regulations and policy. In the case at bar, the Immigration Officer was acting in accordance with the directive given by the Minister. The said directive provided that applications pending on June 28, 2002, should be treated as humanitarian and compassionate applications and there are no provisions to convert such applications into family class applications. In fact, there is no authority under the new legislation or its regulations for an Immigration Officer to convert a humanitarian and compassionate application under the former legislation to an application under the spouse in Canada class (Yun v. Canada (Minister of Citizenship and Immigration), 2004 FC 1062; [2004] F.C.J. No. 1283 (T.D.) online: QL). In the case at bar, I note that the applicant was notified that since the implementation of the IRPA, marriage and common-law relationship are no longer sufficient reasons in and of itself to grant ministerial exemption. Indeed, the applicant was given all the latitude envisaged by section 66 of the Regulations. The applicant was advised by Citizenship and Immigration Canada (CIC) that it was important that he demonstrate the excessive difficulty which would be caused if he was required to submit his application abroad as required by the IRPA and that he could provide any information or document which he deemed necessary in support of his application. The applicant completed his " Request for exemption from Immigrant Visa" and the "Supplementary Information spouse in Canada". Consequently, even though the applicant did not receive the Form 5283, he was still given all the latitude envisaged by section 66 of the Regulations.
[14] As for the Immigration Officer's decision regarding the genuineness of the applicant's marriage and the absence of undue or excessive hardship if the applicant had to apply for permanent residence outside Canada, I am of the opinion that it is not reviewable in the present circumstances. The onus was on the applicant to present any relevant evidence to the Immigration Officer to support the humanitarian and compassionate application (Borysova v. Canada (Minister of Citizenship and Immigration), 2002 FCT 696; [2002] F.C.J. No. 940 (F.C.T.D.) online: QL). The Immigration Officer simply concluded that the applicant did not successfully discharge himself of this onus. The said decision was based on several reasons. The applicant arrived in Canada with a false passport and claimed to have been born at Delta State in Nigeria instead of Ebutte-Metta as indicated in his real passport. The applicant did not successfully establish that he and his wife lived together and that their marriage was genuine. On this matter, the Immigration Officer took into account: the T-4 of the applicant and his wife revealed different addresses; the lease for 2003 was in the name of his wife and another man; the purchase of the family home was purchased solely by his wife; there is no joint account; the applicant had two different bank accounts revealing regular transactions at two different locations; the applicant readily admitted that he did not live with his wife at first; the applicant got married the same month his application for judicial review was refused; the applicant is not a refugee as he pretended to be; there was no evidence to sustain the applicant's claim of fear for his life; and there is no evidence with respect to the undue or excessive hardship the applicant would encounter if he had to apply for permanent residence outside Canada. In the particular circumstances of the case, the conclusion reached by the Board is reasonable. It is not the task of the Court to enter into a re-weighing of the evidence or of the factors listed above. In my opinion, any error made in this regard is not determinative in the present case. Furthermore, there was no duty imposed on the Immigration Officer to conduct an interview.
[15] In conclusion, I am satisfied that the Immigration Officer properly exercised her discretion in accordance with the objectives of the IRPA.
ORDER
THIS COURT ORDERS that the present application for judicial review be dismissed. No question of general importance has been proposed by counsel and none shall be certified.
"Luc Martineau"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9747-04
STYLE OF CAUSE: TERRY EGBEJULE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JUNE 7, 2005
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: June 15, 2005
APPEARANCES:
IDORENYIN E. AMANA FOR THE APPLICANT
LOUISE-MARIE COURTEMANCHE FOR THE RESPONDENT
SOLICITORS OF RECORD:
IDORENYIN E. AMANA FOR THE APPLICANT
BARRISTER & SOLICITOR
MONTREAL, QC
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA